Zeifman v. Nowlin

• Citation: 322 S.W.3d 804
• Decision Date: 27 August 2010
• Docket Number: No. 03-08-00657-CV.,03-08-00657-CV.
• Parties: Clifford ZEIFMAN, Appellant, v. Laurie J. NOWLIN, Appellee.
• Court: Texas Court of Appeals

322 S.W.3d 804

Clifford ZEIFMAN, Appellant,

v.Laurie J. NOWLIN, Appellee.

No. 03-08-00657-CV.

Court of Appeals of Texas,Austin.

Aug. 27, 2010.

COPYRIGHT MATERIAL OMITTED.

Clifford Zeifman, Riesel, TX, pro se appellant.

Michael B. Johnson, Jeff D. Otto, Jesse B. Butler, Thompson, Coe, Cousins & Irons, L.L.P., Austin, TX, for appellee.

Before Justices PATTERSON, PEMBERTON and WALDROP.

OPINION

G. ALAN WALDROP, Justice.

This is a suit brought by a parent against an amicus attorney appointed by the trial court to assist the court in protecting the best interests of a child in a suit affecting the parent-child relationship. This suit is an unfortunate off-shoot of one of the most contentious divorce and child custody proceedings to come before this Court-repeatedly-in recent years. Appellant Clifford Zeifman sued appellee Laurie J. Nowlin alleging fraud and “gross negligence” on the part of Nowlin acting as the amicus attorney in proceedings regarding the implementation of certain provisions of the divorce decree between Zeifman and his former wife Sheryl Michels. The district court granted a summary judgment in Nowlin's favor on the basis that she is statutorily immune from the claims brought by Zeifman and owes him no duty of care with respect to her work. The district court also awarded Nowlin sanctions against Zeifman in the form of attorneys' fees on the basis that his claims are frivolous. We affirm the judgment of the district court.

Background

Zeifman and Michels were divorced in 1998. They had two children-a son with special educational needs and a daughter. Since the divorce, disputes over the education and care of the children have generated substantial and acrimonious litigation. ¹ In 2005, Michels filed a petition to modify parent-child relationship, raising issues as to who would act as their son's guardian and what school he would attend. The trial court appointed Nowlin to act as an amicus attorney for Zeifman's son in these proceedings. The parties ultimately reached an agreed settlement in February 2007 of the dispute over the motion to modify.

Zeifman filed this action against Nowlin in March 2008, alleging causes of action for fraud and “gross negligence” and complaining of Nowlin's performance of her duties as amicus attorney for his son. Nowlin filed a general denial and raised the affirmative defense of immunity. See Tex. Fam.Code Ann. § 107.009 (West 2008) (providing court-appointed amicus attorneys immunity from liability for actions taken, recommendations made, or opinions given in that capacity). Nowlin filed a motion for summary judgment on Zeifman's claims of fraud and “gross negligence.” Nowlin also filed a motion for sanctions. The trial court granted the motion for summary judgment and the motion for sanctions. The trial court ordered Zeifman to pay Nowlin $39,999 as sanctions for filing a frivolous lawsuit. In this appeal Zeifman challenges both the summary judgment and the order granting sanctions. We affirm.

Standard of review

We review the trial court's summary judgment rulings de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). When, as here, the district court's order does not specify the grounds for its summary judgment, we must affirm the order granting summary judgment if any of the grounds presented to the district court and preserved for appellate review are meritorious. See Provident Life & Accident Ins. Co., 128 S.W.3d at 216.

A defendant moving for a traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Once the defendant has done so, the burden shifts to the plaintiff to produce evidence creating a fact issue on the element or defense. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). A genuine issue of material fact exists if the nonmovant produces more than a scintilla of evidence establishing the existence of the challenged element. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). More than a scintilla of supporting evidence exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)).

Summary judgment on the fraud claim

In his first issue, Zeifman complains that the district court erred by granting summary judgment in Nowlin's favor on his fraud claim. Nowlin sought summary judgment on the basis that she is immune from this type of fraud claim pursuant to section 107.009 of the family code. Section 107.009 provides:

A guardian ad litem, an attorney ad litem, or an amicus attorney appointed under this chapter is not liable for civil damages arising from an action taken, a recommendation made, or an opinion given in the capacity of guardian ad litem, attorney ad litem, or amicus attorney.

Tex. Fam.Code Ann. § 107.009(a). There are certain exceptions to this immunity. The statutory immunity does not apply to an action taken, recommendation made, or opinion given (1) with conscious indifference or reckless disregard to the safety of another; (2) in bad faith or with malice; or (3) that is grossly negligent or willfully wrongful. Id. § 107.009(b). There is no exception to this statutory immunity for a claim that the amicus attorney committed fraud with respect to one of the parents of a child the attorney is assisting.

The summary judgment evidence conclusively proves that Nowlin was appointed to serve as an amicus attorney in the underlying suit pursuant to family code section 107.021. See id. § 107.021 (West 2008). All of the allegations supporting Zeifman's causes of action pertain to Nowlin's performance of her duties as amicus attorney and actions taken in that capacity.

Nowlin sought summary judgment on the basis that she conclusively proved the application of section 107.009. Nowlin demonstrated that Zeifman's claims for damages in this lawsuit derive from and challenge the service she provided as amicus attorney-a fact that is not disputed-and, therefore, conclusively established that she was entitled to immunity for any claim not covered by an exception. The immunity statute recognizes no exception for allegations of fraud as to the parents. The trial court properly granted summary judgment on Zeifman's fraud claim. ²

Moreover, even if Zeifman's fraud claim could be construed to allege a cause of action for conduct that could fit within an exception to immunity, summary judgment is still proper. Once Nowlin conclusively established as an affirmative defense that she was entitled to the statutory immunity afforded an amicus attorney, the burden of production shifted to Zeifman to present evidence sufficient to create a fact issue on at least one element of either the affirmative defense or an exception to the affirmative defense. See Palmer v. Enserch Corp., 728 S.W.2d 431, 435 (Tex.App.-Austin 1987, writ ref'd n.r.e.) (citing Moore Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934 (Tex.1972)). Zeifman did not produce or file any summary judgment evidence at all in response to Nowlin's motion, relying instead solely on the allegations contained in his petition. It is well-settled that, with exceptions that do not apply here, pleadings are not competent summary judgment evidence. Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.1995); Hidalgo v. Surety Sav. & Loan Ass'n, 462 S.W.2d 540, 543-44 (Tex.1971). Zeifman cannot rely on his pleadings to claim that he met his burden of producing evidence to create a fact issue on the application of section 107.009. We overrule Zeifman's first issue.

Summary judgment on the “gross negligence” claim

In his second issue, Zeifman contends that the trial court erred by granting judgment in Nowlin's favor on his “gross negligence” claim. Nowlin sought summary judgment on the basis that an amicus attorney appointed to assist the court in a suit affecting the parent-child relationship owes no duty of care to either of the child's parents. Thus, Nowlin argued, Zeifman's negligence claim fails as a matter of law for lack of an essential element.

The family code defines an “amicus attorney” as “an attorney appointed by the court in a suit, other than a suit filed by a governmental entity, whose role is to provide legal services necessary to assist the court in protecting a child's best interests rather than to provide legal services to the child.” Tex. Fam.Code Ann. § 107.001(1) (West 2008). ³ The amicus attorney is appointed to assist the court, not to represent the child or either of the parents. See O'Connor v. O'Connor, 245 S.W.3d 511, 515 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Therefore, it is the trial court, not the parties, to whom the amicus attorney is responsible for the limited purposes delineated in the statute. Id. The amicus attorney owes a duty of competent representation to the trial court, not to the parents. We hold that an amicus attorney appointed by the court in a suit affecting the parent-child relationship has no duty of care to either parent. ⁴ The trial court properly granted Nowlin's motion for summary judgment on Zeifman's “gross negligence” claim. We overrule Zeifman's second issue.

Imposition of sanctions

In three issues, Zeifman challenges the district court's sanctions order. We review a trial court's ruling on a motion for sanctions applying an abuse of discretion standard. Low v. Henry, 221 S.W.3d 609, 614 (Tex.2007). The trial court abuses its discretion when it acts without reference to any guiding rules or...