Hoggard v. Snodgrass

• Decision Date: 05 April 1989
• Docket Number: No. 05-88-01126-CV,05-88-01126-CV
• Citation: 770 S.W.2d 577
• Parties: Judith Ellen HOGGARD, Relator, v. The Honorable Hugh SNODGRASS, the Honorable Leonard E. Hoffman, Jr. and the Honorable Joseph B. Morris, Respondents.
• Court: Texas Court of Appeals

Page 577

770 S.W.2d 577

Judith Ellen HOGGARD, Relator, v. The Honorable Hugh SNODGRASS, the Honorable Leonard E Hoffman, Jr. and the Honorable Joseph B. Morris Respondents.

No. 05-88-01126-CV.

Court of Appeals of Texas Dallas.

April 5, 1989.

Joseph W. Stewart, Steven R. Pierret, Arlington, and Charles M. Wilson, III, Dallas, for guardian ad litem, for Jay Wesley Hoggard, a minor.

Fred Misko and Paula Sweeney, Dallas, Thomas Black, San Antonio, and Ben L. Krage, Dallas, for Joseph Morris.

Gary W. Sibley, Dallas, for Judges Hugh Snodgrass and Leonard E. Hoffman, Jr.

Before WHITHAM, BAKER and KINKEADE, JJ.

KINKEADE, Justice.

Fred Misko, Jr., and Paula Sweeney (referred to collectively as "Misko") represented Relator Judith Hoggard (Hoggard), her husband, and her son in a negligence action involving an accident that injured Hoggard's son, Jay. Before the trial court had entered judgment in that action, Misko brought a negligence suit on behalf of Jay against Jay's mother and father, the Hoggards. Subsequently, Misko dropped Jay's father as a defendant. Hoggard moved to disqualify Misko, the trial court denied her motion, and Hoggard brought this petition for writ of mandamus. We conditionally grant Hoggard's petition for writ of mandamus to compel the trial court to vacate its order denying disqualification and to order the trial court to grant Hoggard's motion to disqualify.

On December 3, 1986, Jay, then two-and-one-half years old, fell into a neighbor's swimming pool and sustained profound brain damage. Hoggard and her husband hired Misko to represent them both individually and as next friends of Jay. Misko brought suit against Bruce Spencer, the owner of the swimming pool, and Ebby Halliday Real Estate, Inc. (Halliday), the real estate company that had the Spencer home listed for sale at the time of Jay's accident. Both Spencer and Halliday asserted that the Hoggards were comparatively negligent. Additionally, Halliday asserted a counterclaim against the Hoggards for contribution and/or indemnity. Misko tendered the defense of Halliday's counterclaim to the Hoggards' homeowners' liability insurance carrier. The carrier retained Joseph Stewart to handle the defense. The trial court appointed an attorney ad litem ¹ to represent Jay; this appointment suggests that Misko represented the entire Hoggard family, subject to the attorney ad litem's protection of any interest of Jay's that was potentially in conflict with the interests of either parent.

The parties arrived at a settlement agreement; however, Jay's attorney ad litem approved the settlement only on the condition that a subsequent suit by Jay against the Hoggards go forward. ² The However, on November 5, 1987, eight days before the trial court entered judgment disposing of the Hoggards' and Jay's claims against Spencer and Halliday, Misko brought a negligence suit on behalf of Jay against the Hoggards. Misko filed Jay's petition against his parents under the same cause number as Jay and the Hoggards' suit against Spencer and Halliday.

Hoggards agreed to this condition. In accordance with the settlement agreement, the trial court entered an agreed judgment on November 13, 1987.

The Hoggards, through Stewart, who defended the Hoggards against Halliday's counterclaim, ³ filed a motion to disqualify Misko from representing Jay. Subsequently, Misko dropped Jay's father as a defendant. Still later, the trial court severed Jay's claim against his mother from Jay's and the Hoggards' claims against Spencer and Halliday.

On August 17, 1988, the court heard Hoggard's motion to disqualify. At the hearing, Walter Steele, a professor at the Southern Methodist University School of Law, testified as an expert witness on behalf of Misko. Steele testified that Misko's representation of Jay would not violate any ethical duties. Citing Meyerland Community Improvement Ass'n v. Temple, 700 S.W.2d 263 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.), Steele said that the joint-client exception applied to the attorney-client privilege, so that any confidences given by Hoggard to Misko were not protected by the privilege. Steele further said that because Hoggard had previously given depositions regarding the accident, testimonial waiver applied, and any information given in the depositions was no longer protected by any privilege. Steele said that because Stewart defended Hoggard against Halliday's counterclaim, Misko never defended Hoggard; therefore, there was no substantial relationship between Misko's prosecution of Hoggard's suit against Spencer and Halliday and Stewart's defense of the contributory negligence claims asserted against Hoggard. Steele said that at one time he thought that Hoggard had consented to Misko's representation of Jay, but he was not certain now because of the testimony he heard at the disqualification hearing. Steele also opined that Misko was uniquely qualified to represent Jay. Steele admitted that in order to determine whether any confidences or secrets were shared, one would have to look at Misko's files. Steele admitted that he had not looked at any of Misko's files. He further admitted that confidences and secrets could exist. Steele also stated that even if one looked at Misko's files to determine whether confidences or secrets were shared, one would be assuming that every confidence or secret was "memorialized" in Misko's files. Regarding Spencer's affirmative defense that Hoggard was contributorily negligent, Steele admitted that Misko had "to deal with it." The trial court denied Hoggard's motion to disqualify.

Hoggard contends that the trial court abused its discretion by failing to disqualify Misko because Misko's representation of Jay violates Canon 9 of the Texas Code of Professional Responsibility. SUPREME COURT OF TEXAS, RULES GOVERNING THE STATE BAR OF TEXAS art. 10, § 9 (Code of Professional Responsibility) DR 9-101 (1984) (DR 9-101). ⁴ Misko responds that no ethical duty is violated because (1) Hoggard consented to his representing Jay, (2) he possesses no confidences or secrets that he may use against Hoggard, and (3) he represented Hoggard and Jay jointly; consequently, Misko argues that Hoggard may not rely upon the lawyer-client privilege. TEX.R.CIV.EVID. 503(d)(5).

REVIEWABILITY OF ORDER

As a preliminary matter, in his October 5, 1988, brief, counsel for two respondents Counsel for respondents correctly cites Firestone Tire & Rubber Co. and Gleason for the proposition that a party may not appeal an order disposing of a motion to disqualify because such an order is an interlocutory order and not a final judgment. Firestone Tire & Rubber Co., 449 U.S. at 370, 101 S.Ct. at 671; Gleason, 693 S.W.2d at 565. However, the fallacy of counsel's argument is that Hoggard has not appealed the trial court's order; rather, Hoggard has brought a petition for writ of mandamus, which is an original proceeding. An appellate court may issue a writ of mandamus to correct a clear abuse of discretion where the remedy by way of appeal is inadequate. West v. Solito, 563 S.W.2d 240, 244 (Tex.1978). A party's remedy for a trial court's clear abuse of discretion is by way of mandamus. Gleason, 693 S.W.2d at 567; see Firestone Tire & Rubber Co., 449 U.S. at 378 n. 13, 101 S.Ct. at 676 n. 13; cf. Maresca v. Marks, 362 S.W.2d 299, 301 (Tex.1962) (because discovery order was interlocutory, petitioner could not appeal it; petitioner's only remedy was by way of writ of mandamus). That a disqualification order is interlocutory may mean that it cannot be reviewed immediately on appeal, but the case before this Court is an original proceeding, not an appeal.

argues that the order denying Hoggard's motion to disqualify is an interlocutory order and is, therefore, nonappealable. To support his contention, counsel for respondents cites Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), and Gleason v. Coman, 693 S.W.2d 564 (Tex.App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.). Counsel also cites an unpublished order from this Court for the proposition that this Court has previously denied a motion for leave to file petition for writ of mandamus in a suit involving an order denying a motion to disqualify. For the reasons given below, we hold that mandamus, at least under the facts of this case, is an appropriate vehicle for reviewing the trial court's order denying Hoggard's motion to disqualify.

This Court has previously entertained petitions for writ of mandamus on orders disposing of disqualification motions. Petroleum Wholesale, Inc. v. Marshall, 751 S.W.2d 295, 295-96 n. 1 (Tex.App.--Dallas 1988, orig. proceeding); Gilbert McClure Enterprises v. Burnett, 735 S.W.2d 309 (Tex.App.--Dallas 1987, orig. proceeding); cf. Hall v. Birchfield, 718 S.W.2d 313, 322 n. 1 (Tex.App.--Texarkana 1986), rev'd on other grounds sub nom. Birchfield v. Texarkana Memorial Hospital, 747 S.W.2d 361 (Tex.1987) ("The filing of a writ of mandamus would be a better procedure than awaiting the outcome of the main trial. The disqualification issue should not be allowed to interfere with the fair disposition of the suit.").

In Petroleum Wholesale and Gilbert McClure Enterprises, the trial courts granted the motions to disqualify at issue in those cases. In the present case, the trial court denied the motion to disqualify. Respondents appear to argue that there is a distinction between an order granting a disqualification motion and an order denying a disqualification motion. Disqualification, when granted, is a severe remedy. See NCNB Texas Nat'l Bank v. Coker, 765 S.W.2d 398, 400 (Tex.1989) (NCNB). Disqualification also results in immediate and palpable harm: it disrupts the trial court proceedings and deprives a party of the right to have counsel of one's choice. Conversely, denying a motion to disqualify might or might not result in such an immediate and palpable harm. In the instant case, for example, Misko...