Citizens State Bank of Dickinson v. Shapiro

• Citation: 575 S.W.2d 375
• Decision Date: 14 December 1978
• Docket Number: No. 1171,1171
• Parties: CITIZENS STATE BANK OF DICKINSON, Texas, Ind. Exec. of Estate of Fagan Dickson, Appellant, v. Sander W. SHAPIRO et al., Appellees.
• Court: Texas Court of Appeals

Page 375

575 S.W.2d 375

CITIZENS STATE BANK OF DICKINSON, Texas, Ind. Exec. of Estate of Fagan Dickson, Appellant, v. Sander W. SHAPIRO et al., Appellees.

No. 1171.

Court of Civil Appeals of Texas, Tyler.

Dec. 14, 1978.

Rehearing Denied Jan. 11, 1979.

James R. (Ron) Weddington, Austin, for appellant.

Scott R. Kidd, Jack Maroney, Brown, Maroney, Rose, Baker & Barber, Austin, for appellees.

McKAY, Justice.

This is an appeal from a summary judgment granted by the trial court against appellant.

This case arises out of the alleged legal representation by appellees, a firm of attorneys, and two individual members thereof, of J. Fagan Dickson and his then wife, Roberta P. Dickson (now Roberta Crenshaw). Fagan Dickson, the original plaintiff below, died during the course of proceedings in the trial court, and the present appellant, Citizens State Bank of Dickinson, Texas, as Independent Executor of his estate, was substituted as plaintiff.

Fagan Dickson, acting pro se, petitioned the district court on July 9, 1976, for authority to take his own deposition to perpetuate testimony pursuant to Rule 187, T.R.C.P. The court ordered that the deposition be taken before the court on a question-and-answer basis to permit rulings on objections, and the same was taken by video tape on December 20-21, 1976, a transcription of which is a part of the record before us. Fagan Dickson thereafter filed his original petition herein on March 3, 1977.

In final form the petition named as defendants the law firm of Clark, Thomas, Winters and Shapiro, and the individuals, Sander W. Shapiro and Frank N. Ikard, Jr., both of whom were members of said firm. It was alleged that Fagan and Roberta Dickson enjoyed harmonious and profitable marriage and business relationships from 1947 until 1972. In 1971 they retained the defendant law firm to perform various legal services. It was further alleged that defendants Shapiro and Ikard made false and secret communications to Mrs. Dickson to the effect that Dickson had disinherited her two daughters, had kept dishonest books, and had attempted to defraud her. In the spring of 1972, defendant Shapiro, according to the petition, devised a plan concerning the family corporation which called for the transfer of various properties into the name of the corporation, Dickson Properties, Inc., with the effect of placing the bulk of Dickson's separate property and the community property into the corporation which Mrs. Dickson controlled. In April of 1972 this plan was carried out.

Appellant alleged that as a direct and proximate result of the communications made by Shapiro and Ikard to Mrs. Dickson, both the marital and business relationships of the Dicksons significantly deteriorated. Mrs. Dickson filed for divorce on April 8, 1974 and was represented therein by the defendant law firm. The divorce was granted and the property divided. The opinion on appeal of the divorce judgment is reported in Dickson v. Dickson, 544 S.W.2d 200 (Tex.Civ.App. Austin 1976, writ ref'd n. r. e.). Under her powers as a majority shareholder in the family corporation, Mrs. Dickson called a stockholders' meeting and removed Dickson from his position as an officer of the corporation. It was further alleged that at the divorce trial defendants Shapiro and Ikard testified against Fagan Dickson and there told the alleged falsehoods that had theretofore been kept secret. The petition states that from the time the defendant law firm began its representation of the Dicksons until the testimony of Shapiro and Ikard at the divorce trial, the defendants fraudulently concealed their actions and in furtherance of this concealment, wrote Dickson a letter in March of 1972, the purpose of which was to mislead him into thinking there was no conspiracy against him. It was further alleged that the defendants attempted to place all of Dickson's property in a trust to be administered by a bank whom the defendant law firm also represented. Fagan Dickson refused to sign over his property as suggested by the defendants, but it was alleged that this showed that the defendants were working against the interests of Dickson and Mrs. Dickson to the advantage of another client.

There are then alleged in the petition six separate causes of action: (1) the defendants violated the Code of Professional Conduct of the State Bar Act by failing to represent Dickson in an ethical manner, specifically indicating alleged violations of disciplinary rules 4-101, 5-101, 5-102, 5-105, and 7-102; (2) the defendants failed to discharge their duty to exercise the degree of skill and learning ordinarily exercised and possessed under the same circumstances by other attorneys in Austin, Texas, or similar communities; (3) the defendants set out on a course of conduct which they knew or should have known would destroy the marriage between Fagan Dickson and his wife by alienating and destroying her affections for him and causing her to seek a divorce from him; (4) the defendants breached implied warranties that they would provide Fagan Dickson with accurate information and that they would comply with their obligations under their contract with him and honor the attorney-client privilege; the defendants failed to perform their obligations under the contract, misrepresented facts and law to Fagan Dickson, and divulged privileged information to third parties; (5) the defendants actively interferred with Fagan Dickson's interest in the family business; and (6) the defendants made defamatory statements about Fagan Dickson with intent to disgrace him and to injure his reputation. The petition then alleges damages in the total amount of $19,700,000.00.

In their answer the defendants pleaded a general denial, and specifically that Fagan Dickson sought only to relitigate the issues already determined adversely to him in the divorce suit and that plaintiff was therefore barred by res judicata, collateral estoppel, and estoppel by judgment. The defendants further pleaded that most of the accusatory allegations made by plaintiff involved acts allegedly occurring at such a time that any purported causes of action arising therefrom would be barred by the two-year statute of limitations.

The defendants further state in their answer that the only allegations made by plaintiff not barred by the statute of limitations involved the testimony of Shapiro and Ikard during the divorce action and that such matters are absolutely privileged in law and cannot give rise to a cause of action. Defendants deny that their actions caused plaintiff any financial damage except with regard to the division of property on divorce which was a matter for the discretion of the trial court. Defendants further deny the allegations of violations of the Code of Professional Conduct and specifically deny even representing the plaintiff. Moreover, defendants deny receiving or using any secrets or confidences of the plaintiff, and state that Fagan Dickson, as well as the defendants, was an attorney for Mrs. Dickson and owed the duty of full disclosure to the defendants. Therefore, there were no secrets to be kept.

Appellees, defendants below, submitted their motion for summary judgment under the provisions of Rule 166-A, T.R.C.P., on the ground that there was no genuine issue as to any material fact and they were entitled to judgment as a matter of law.

Appellees' summary judgment proof, attached as exhibits to their motion for summary judgment, consisted of nine items: (1) a certified copy of the divorce judgment; (2) the opinion of the Court of Civil Appeals on the appeal of the divorce case, attached to an affidavit by appellees' attorney attesting to its genuineness; (3) certified copies of pleadings in the divorce action, to-wit: (a) Roberta Dickson's second amended original petition, (b) her second amended original answer to cross-petitioner's (Fagan Dickson's) second amended cross-action, and (c) Fagan Dickson's second amended original answer and second amended cross-action (to be discussed in detail, infra); (4) a certified copy of Fagan Dickson's motion in the divorce action to disqualify Mrs. Dickson's attorneys and strike their testimony; (5) an affidavit by Roberta Crenshaw (formerly Roberta Dickson); (6) an affidavit by Steve Pena; (7) an affidavit by John Anderson; (8) an affidavit by Donald S. Thomas; and (9) an affidavit by Arthur Mitchell.

Appellant's response to appellees' motion for summary judgment indicated that because the original plaintiff, Fagan Dickson, had died during the course of the proceedings, it would be difficult to produce controverting affidavits. Appellant, however, urged the court to consider the deposition of Fagan Dickson and its exhibits which were on file in the trial court.

Inasmuch as this is a summary judgment case, the general rules relating to such judgments must be applied. Rule 166-A(b), T.R.C.P., states, "A party against whom a claim . . . is asserted . . . may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof." Subdivision (c) of that rule states, in part, "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues as expressly set out in the motion or in an answer or any other response."

In summary judgment cases, the question presented for decision on appeal, as it is in the trial court, is not whether the summary judgment proof raises fact issues regarding essential elements of the plaintiff's cause of action, but rather whether such proof establishes as a matter of law that there is no genuine issue of fact as to one or more...