Tolbert v. Terisa Taylor & Pathway Forensics, LLC

• Decision Date: 07 April 2020
• Docket Number: NO. 14-18-00001-CV,14-18-00001-CV
• Citation: 629 S.W.3d 318
• Parties: Carl TOLBERT, Nizzera Kimball, and Vivian Robbins, Appellants v. Terisa TAYLOR and Pathway Forensics, LLC, Appellees
• Court: Texas Court of Appeals

629 S.W.3d 318

Carl TOLBERT, Nizzera Kimball, and Vivian Robbins, Appellants

v.Terisa TAYLOR and Pathway Forensics, LLC, Appellees

NO. 14-18-00001-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed April 7, 2020

Gregory B. Enos, Webster, for Appellants.

Vivian Robbins, pro se.

James Louis Doyle II, Marlene C. Williams, Houston, for Appellees.

Panel consists of Chief Justice Frost and Justices Bourliot and Poissant.

OPINION

Margaret "Meg"Poissant, Justice

The mother alleges that her electronic communications were illegally intercepted, used, and disclosed.The mother and other plaintiffs asserted various claims against the attorney for the mother's ex-husband in a child-custody modification suit and against a forensics company the ex-husband and his attorney hired as an expert in that suit.On appeal, the mother and two others challenge the trial court's orders granting two summary judgment motions in favor of two defendants, and one of the trial court's discovery orders.We reverse in part, affirm in part, and remand.

I.FACTUAL AND PROCEDURAL BACKGROUND

In 2013, Mark Broome filed a child-custody modification proceeding against his ex-wife, appellant/plaintiffVivian Robbins, regarding custody of their daughter ("Modification Proceeding").Appellee/defendantTerisa Taylor is an attorney who represented Broome in that proceeding.Robbins and appellants/plaintiffsCarl Tolbert and Nizzera Kimball(collectively the "Robbins Parties") allege that in the summer of 2013 their confidential and personal communications (i.e. , texts and emails) began appearing on an iPad owned by Broome's sister-in-law (the "iPad"), without the Robbins Parties' knowledge or consent.After Broome obtained the iPad, Broome shared Robbins's text messages and emails with Taylor by providing her with the iPad.

The Robbins Parties allege that Robbins's text messages and emails are illegally intercepted electronic communications (collectively the "Messages").Tolbert and Kimball are two of the people with whom Robbins communicated in the Messages.The Messages included a nude photograph of Robbins that she had sent to her boyfriend in a text message.

Broome and/or Taylor allegedly provided the iPad to Pathway Forensics, LLC, a computer forensics company hired by Broome and/or Taylor.Pathway allegedly used and disclosed the Messages and emails to Broome and Taylor.Taylor allegedly used and disclosed the contents of the Messages to the trial court in the Modification Proceeding, in conducting discovery, and in Broome's pleadings in that proceeding.

The Robbins Parties and others filed suit against Taylor, Pathway, and others.The Robbins Parties asserted against Taylor and Pathway (1) civil claims under article 18.20, section 16 of the Code of Criminal Procedure¹ based on the alleged interception, disclosure, or use of the Robbins Parties' electronic communications in violation of Chapter 16 of the Penal Code²(the "Texas Wiretap Claims") and (2) civil claims under title 18, sections 2511(a)and2520 of the United States Code³ based on the alleged interception, disclosure, or use of the Robbins Parties' electronic communications⁴(the "Federal Wiretap Claims").The trial court ordered that the Robbins Parties take nothing by their claims against Taylor based on its granting of Taylor's summary judgment motion, in which she asserted attorney immunity.

The trial court signed an order granting the Robbins Parties' motion to compel discovery and ordered Pathway to respond to various requests for production, but only after the Robbins Parties paid Pathway's reasonable costs and attorney's fees associated with producing the requested items.The trial court ordered the Robbins Parties to pay the costs and attorney's fees.The trial court later ruled that the "reasonable cost of production" which the Robbins Parties had to pay to Pathway before obtaining the requested items was $9,374.50, which included payment for a Pathway employee (manager) and the hourly rate of the attorney for Pathway to review the material before producing it.The Robbins Parties paid Pathway this amount.

In addition to the Texas Wiretap Claims and the Federal Wiretap Claims, the Robbins Parties asserted claims against Pathway for negligence, intentional infliction of emotional distress, a civil claim under title 18, section 1030(g) of the United States Code,⁵ an invasion of privacy claim based on the alleged public disclosure of private facts, and a civil claim under section 143.001 of the Civil Practice and Remedies Code.⁶Pathway filed a summary judgment asserting various grounds, including the judicial proceedings privilege applicable to an expert witness.The trial court granted Pathway's summary judgment motion, and based on this ruling, ordered that the Robbins Parties take nothing by their claims against Pathway.

After granting the summary judgment, the trial court severed Pathway's claims against Mark Broome and rendered a final judgment from which the Robbins Parties have timely appealed.

II.ISSUES AND ANALYSIS

On appeal, the Robbins Parties assert three issues, challenging (1)the trial court's order granting Taylor's summary judgment motion based on the affirmative defense of attorney-immunity, (2)the trial court's discovery orders requiring the Robbins Parties to pay Pathway costs of responding to the Robbins Parties' requests for production(the "Discovery Orders"), and (3)the trial court's order granting Pathway's summary judgment motion.

A.Did the trial court err in granting Taylor's summary judgment motion?

1.Standard of Review

We review summary judgments de novo.Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661(Tex.2005).A plaintiff moving for traditional summary judgment must conclusively establish all essential elements of its claim.Cullins v. Foster , 171 S.W.3d 521, 530(Tex. App.—Houston [14th Dist.]2005, pet. denied)(citingMMP, Ltd. v. Jones , 710 S.W.2d 59, 60(Tex.1986) );seeTex. R. Civ. P. 166a(c).Traditional summary judgment for a defendant is proper when it (1) negates at least one element of each of the plaintiff's claims or (2) establishes all elements of an affirmative defense to each claim.Am. Tobacco Co. v. Grinnell , 951 S.W.2d 420, 425(Tex.1997);Cullins , 171 S.W.3d at 530(citingSci.Spectrum, Inc. v. Martinez , 941 S.W.2d 910, 911(Tex.1997) );seeTex. R. Civ. P. 166a(c).

Once the moving party establishes its right to a traditional summary judgment, the burden shifts to the nonmoving party to present evidence raising a genuine issue of material fact, thereby precluding summary judgment.SeeM.D. Anderson Hosp. & Tumor Inst. v. Willrich , 28 S.W.3d 22, 23(Tex.2000)(per curiam);seeNavy v. Coll. of the Mainland , 407 S.W.3d 893, 898(Tex. App.—Houston[14th Dist.]2013, no pet.).We presume that all facts alleged by the Robbins Parties are true and indulge all reasonable inferences in the light most favorable to the Robbins Parties.Cantey Hanger, LLP v. Byrd , 467 S.W.3d 477, 481(Tex.2015).

2.Attorney-Immunity Defense

Attorney immunity is an affirmative defense that protects attorneys from liability to nonclients.Cantey Hanger , 467 S.W.3d at 481(citingSacks v. Zimmerman , 401 S.W.3d 336, 339–40(Tex. App.—Houston [14th Dist.]2013, pet. denied);Kruegel v. Murphy , 126 S.W. 343, 345(Tex. Civ. App.1910, writ ref'd) ).The purpose of the attorney-immunity defense is to ensure loyal, faithful, and aggressive advocacy to clients.Cantey Hanger , 467 S.W.3d at 481.To be entitled to summary judgment, Taylor must prove that there is no genuine issue of material fact as to whether her conduct was protected by attorney immunity and that she is entitled to judgment as a matter of law.Seeid.

The Texas Supreme Court recently affirmed that Cantey Hanger controls our analysis of attorney immunity.Youngkin v. Hines , 546 S.W.3d 675, 681–82(Tex.2018)(citingCantey Hanger , 467 S.W.3d at 481 ).The Youngkin court recognized the breadth of the attorney-immunity doctrine yet made clear that the doctrine is not without limits.Seeid.The Cantey Hanger opinion identified the following "nonexhaustive examples that may fall outside the reach of the attorney-immunity defense": participation in a fraudulent business scheme with a client, knowingly helping a client with a fraudulent transfer to avoid paying a judgment, theft of goods or services on a client's behalf, and assaulting opposing counsel during trial.Id.;Cantey Hanger, LLP , 467 S.W.3d at 482–83.All of these examples appear to refer to either non-litigation conduct or conduct not alleged to be fraudulent; thus, none of these examples appear to include fraudulent conduct while representing a client in litigation.SeeYoungkin , 546 S.W.3d at 682–83;Cantey Hanger, LLP , 467 S.W.3d at 482–83.The Youngkin court states that these examples are "nonexhaustive," yet, as in Cantey Hanger , the supreme court did not articulate a legal standard for determining if conduct is not covered by the attorney-immunity doctrine.SeeYoungkin , 546 S.W.3d at 682–83;Cantey Hanger, LLP , 467 S.W.3d at 482–85.After listing the nonexhaustive examples, the Youngkin court ends by saying, "[t]hus, while we recognize that some fraudulent conduct, even if done on behalf of a client, may be actionable, [the plaintiff] does not allege any such behavior."Id. at 683.Simply put, the Youngkin court appears to have concluded that attorney immunity applied because the alleged conduct fell within the scope of the attorney's representation of the client and did not fall within any of the examples listed in the Cantey Hanger opinion.Seeid. at 681–83.

3.Alleged Criminal Conduct

Under their first issue, the Robbins Parties assert that the trial court erred in granting Taylor's summary judgment motion and rendering a take-nothing judgment in Taylor's favor based on attorney-immunity.Taylor sought a traditional summary judgment based on attorney-immunity and did not rely on any...