Jeffrey D. Busby, Andrea Busby, and Busby Quarter Horse, L.L.C. v. Josh Harvey, DVM, and Outlaw Equine, L.L.C. , 551 S.W.3d 184 ( 2017 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00311-CV
JEFFREY D. BUSBY, ANDREA APPELLANTS
BUSBY, AND BUSBY QUARTER
HORSE, L.L.C.
V.
JOSH HARVEY, DVM, AND APPELLEES
OUTLAW EQUINE, L.L.C.
----------
FROM THE 271ST DISTRICT COURT OF WISE COUNTY
TRIAL COURT NO. CV14-01-002
----------
OPINION
----------
The resolution of this appeal hinges on whether a trial court abused its
discretion by overruling a motion to disqualify counsel. Appellants Jeffrey D.
Busby, Andrea Busby, and Busby Quarter Horse, L.L.C. appeal the trial court’s
take-nothing judgment in favor of appellees Josh Harvey, DVM (Dr. Harvey) and
Outlaw Equine, L.L.C. Because we conclude that the trial court did not abuse its
discretion by denying appellants’ motion to disqualify appellees’ counsel, we
affirm the trial court’s judgment.
Background Facts
Appellants own a barrel-racing horse colloquially known as Daisy. They
took Daisy to Dr. Harvey for a routine exam, and he treated Daisy for conditions
on her legs. According to appellants, Dr. Harvey’s treatment started a course of
events that resulted in severe injuries to one of Daisy’s legs. Appellants allege
that the injuries destroyed Daisy’s racing career and significantly reduced her
breeding value. Based on these facts, in 2013, appellants brought claims against
appellees for negligence, gross negligence, veterinary malpractice, and breach of
contract.
Attorney William H. Chamblee appeared in the case to represent
appellees. Appellants filed a motion to disqualify Chamblee. In that motion,
appellants alleged that before appearing as appellees’ counsel, Chamblee had
obtained confidential information about the case from appellants. Specifically,
appellants contended that when they were in the process of seeking an expert
witness to testify in support of their claims, Jeffrey Busby contacted Chamblee,
and Busby spoke with Chamblee and exchanged text messages with him.
According to appellants, Chamblee recommended a specific expert—Dr. Craig
Roberts—to Busby, appellants retained Dr. Roberts, and Chamblee appeared as
appellees’ counsel weeks later. Through their counsel, appellants then sent a
2
letter to Chamblee to remind him of Busby’s conversations with him and to ask
him to withdraw from appellees’ representation,1 but Chamblee refused to do so.
In the motion to disqualify, appellants argued in part,
While Mr. Busby did not retain Mr. Chamblee as an attorney,
Mr. Busby unquestionably shared sensitive information about his
case in the course of his conversations with Mr. Chamblee, and
relied on Mr. Chamblee’s professional advice and services. Mr.
Chamblee failed to ever advise [Busby] that he represented
[appellees’] insurance company in the course of their conversations
or that he might become adverse to [appellants].
....
[Appellants] are now in the untenable position of having
shared confidential information with an attorney, only to have that
attorney use that information against [appellants]. Worse,
[appellants] have designated an expert upon Mr. Chamblee’s advice,
who Mr. Chamblee used/uses and who will have an unfair
advantage in dealing with [appellants’] expert as a result. The timing
of Mr. Chamblee’s appearance in this case is also particularly
troubling to [appellants] mere weeks after [appellants] submitted
their expert designations and reports.
In appellees’ response to appellants’ motion to disqualify, appellees
contended in part,
1
Appellants’ December 2014 letter to Chamblee stated in part,
As you may recall, you spoke with my client Mr. Jeff Busby in
October 2014 about this case, its facts, and potential experts that
could be used. We actually retained the veterinary malpractice
expert that you recommended, Dr. Craig Roberts.
. . . Given your conversations regarding this case, its facts,
and potential expert witnesses, your representation of [appellees] in
this matter would constitute a conflict that [appellants] are unable
and unwilling to waive.
3
[Appellants] have not and will not suffer any prejudice as a result of
the retention of defense counsel. Defense counsel has no unfair
advantage and is not aware of any of [appellants’] counsel’s
strategy, work product, or discussions with their clients or experts.
[Appellants’] apparent displeasure with [appellees’] retained defense
counsel is insufficient to show actual prejudice.
After holding a hearing, without making explicit findings, the trial court denied
appellants’ motion to disqualify Chamblee.
Following the trial court’s decision concerning disqualification, the parties
presented evidence and arguments to a jury.2 The jury found that no negligence
of Dr. Harvey proximately caused an injury to Daisy. In accordance with this
verdict, the trial court signed a take-nothing judgment on appellants’ claims
against appellees. Appellants brought this appeal.
The Trial Court’s Decision on Disqualification
In one issue on appeal, appellants contend that the trial court abused its
discretion by denying their motion to disqualify Chamblee. They argue that Jeff
Busby told Chamblee confidential information about the case and that at trial,
Chamblee “repeatedly attacked the expert he recommended . . . based on the
confidential information Chamblee previously received from [a]ppellants.”
Appellees contend that Chamblee’s “casual” and non-confidential conversation
with Busby that was untethered to the rendition of legal services and concerned
only appellants’ desire to obtain an expert witness was insufficient to require
2
Appellants nonsuited their breach of contract and gross negligence
claims, therefore proceeding to trial on their negligence and veterinary
malpractice claims.
4
Chamblee’s disqualification after he later became appellees’ counsel. Appellees
also assert that appellants “suffered no harm from [the trial court’s disqualification
ruling] when the only harm alleged was [Chamblee’s] purported emphasis of the
fact that the expert was from Florida—a fact that [a]ppellants’ counsel elicited
from the expert.”
We review a trial court’s denial of a motion to disqualify counsel for an
abuse of discretion. See Metro. Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d
319, 321 (Tex. 1994); Smith v. Abbott, 311 S.W.3d 62, 73 (Tex. App.—Austin
2010, pet. denied) (op. on reh’g). A trial court abuses its discretion if the court
acts without reference to any guiding rules or principles, that is, if the act is
arbitrary or unreasonable. Savering v. City of Mansfield, 505 S.W.3d 33, 39
(Tex. App.—Fort Worth 2016, no pet.) (en banc op. on reh’g). An abuse of
discretion does not occur when the trial court bases its decision on conflicting
evidence and some evidence of substantive and probative character supports the
decision. H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 520 (Tex. App.—Fort
Worth 2012, no pet.); see also Holmes v. GMAC, Inc., 458 S.W.3d 85, 96 (Tex.
App.—El Paso 2014, no pet.) (“When reviewing a trial court’s decision under this
standard, we must view the evidence in the light most favorable to the trial court’s
ruling and indulge every presumption in its favor.”); Pollard v. Merkel, 114 S.W.3d
695, 697–98 (Tex. App.—Dallas 2003, pet. denied) (“When we consider factual
issues or matters committed to the trial court’s discretion, we may not substitute
our judgment for that of the trial court.”).
5
Disqualification of counsel is a severe remedy. See In re RSR Corp., 475
S.W.3d 775, 778 (Tex. 2015) (orig. proceeding). The party moving to disqualify
another party’s attorney generally bears the burden of proving that the alleged
conflict will cause the moving party to suffer actual prejudice. See In re Nitla S.A.
de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding) (op. on reh’g)
(explaining that “[e]ven if a lawyer violates a disciplinary rule, the party requesting
disqualification must demonstrate that the opposing lawyer’s conduct caused
actual prejudice that requires disqualification”); In re Meador, 968 S.W.2d 346,
350 (Tex. 1998) (orig. proceeding); see also In re Bahn, 13 S.W.3d 865, 873
(Tex. App.—Fort Worth 2000, orig. proceeding) (“The courts must adhere to an
exacting standard when considering motions to disqualify so as to discourage
their use as a dilatory trial tactic. In order to prevent such misuse[,] . . . the trial
court should require the party seeking disqualification to demonstrate actual
prejudice to itself resulting from the opposing lawyer’s service . . . .” (citation
omitted)).3 “The movant has the burden of proof on a disqualification motion. To
3
In their opening brief, appellants appeared to recognize the prejudice
requirement; they stated in their conclusion that Chamblee should have been
“disqualified . . . long before he appeared and prejudiced [a]ppellants before the
jury . . . by using the confidential information shared by [Busby].” In their reply
brief, appellants recognized that in Nitla, the supreme court required a showing of
actual prejudice to trigger a trial court’s duty to disqualify counsel, and appellants
presented argument concerning alleged prejudice. In oral argument, however,
appellants argued that they were not required to prove actual prejudice. Based
on the decisions cited above, we conclude that appellants were required to show
actual prejudice. See Nitla, 92 S.W.3d at 422. But see Hendricks v. Barker, No.
14-15-00673-CV, 2016 WL 7235459, at *5 (Tex. App.—Houston [14th Dist.] Dec.
13, 2016, no pet.) (stating that some situations concerning an attorney’s
6
prevent the abusive filing of such a motion for tactical reasons, the court must
carefully evaluate the motion and record to determine if disqualification is
warranted.” In re Tex. Windstorm Ins. Ass’n, 417 S.W.3d 119, 129 (Tex. App.—
Houston [1st Dist.] 2013, orig. proceeding) (citation omitted).
At the beginning of the hearing on appellants’ disqualification motion,
appellants’ counsel stated that when Jeff Busby spoke with Chamblee, Busby
was looking not only to seek legal advice regarding the expert, he
was also interested in the possibility of expanding the legal team to
include an attorney or attorneys who had . . . local practice
experience before the Court.
He spoke with Mr. Chamblee. Mr. Chamblee . . .
recommended an expert witness to take on the issues that Mr.
Busby discussed with Mr. Chamblee. That expert was retained, and
only after that expert was retained and his expert report was filed did
we receive a motion to substitute counsel seeing Mr. Chamblee
coming in as the counsel for [appellees].
....
. . . [T]he . . . problem, of course, is this sharing of confidential
information, relying on it, hiring the expert that was recommended
based on the facts given to the counsel only to have that very
counsel come in and appear on behalf of [appellees] after the expert
report was sent out. Mr. Chamblee represented that this was the
expert, quote, we use. He apparently[,] or his firm[,] knows the
expert, may have inside information about him. There’s a Pandora’s
box of issues that could come up with defense counsel being on the
other side of this particular expert . . . .
representation of a party after having represented an adverse party require no
showing of prejudice).
7
Also during that hearing, Chamblee told the court about the reason for his
contact with Busby.4 He explained that he practices equine law and that a
mutual friend of his and Busby’s referred Busby to him for assistance in locating
an expert witness. Chamblee said that the mutual friend informed him that
Busby was already represented and had already filed suit regarding the claim for
which he needed an expert. Concerning the scope of his contact with Busby,
Chamblee stated,
[T]he call went like this -- and I don’t think there’s any dispute about
this. One, Mr. Busby said, I already have a lawyer. Two, I’m not
retaining you to be my lawyer. Our mutual friend . . . gave me your
name because you know horses and you do equine law, and my
attorney is having a hard time finding an expert because we cannot
find people locally to testify against a local vet. I said, I don’t know
the name of anybody off the top of my head. I’ll get in touch with my
office, and maybe I can get a name and send you a name.
I sent . . . a copy of my text message back to the gentlemen,
Mr. Busby. The text message says: (Reading) Sorry for delay in
getting to you. My partner, who knew an expert, was out yesterday.
The expert we use is Craig Roberts, DVM, located in Florida. My
partner had the same issue as you not being able to find a local
expert to testify against a local DVM. Dr. Roberts’ number is -- and
then I give his number and I sign off “good luck.”
. . . That is the extent of our conversation. Mr. Busby and I
never had another conversation about this. I didn’t get into the
details about his case with him at all. He didn’t convey to me, this is
4
Chamblee was not under oath at the hearing, but appellants characterize
his statements at the hearing as testimony. An attorney’s unsworn statements
that are based on personal knowledge and that are on a contested issue have
evidentiary value when they are received by a court without objection. See
Mathis v. Lockwood, 166 S.W.3d 743, 744–45 (Tex. 2005); Banda v. Garcia, 955
S.W.2d 270, 272 (Tex. 1997).
8
my issue. What’s your advice? What do you think? I forgot about
the call.
I mean I get a case in December sent to me from [an
insurance company]. I run a conflicts check. Mr. Busby doesn’t
show up anywhere in my conflicts check because he never was my
client. . . .
....
So what was conveyed to me in that call from Mr. Busby?
Was there any confidential information? The name of an expert in
Florida that I don’t know and never used but my firm apparently has
is not confidential information because the expert is someone that
they have now designated and disclosed. If they designated and
disclosed him, it was never intended to be confidential, and it’s not
confidential in the first place. That would be one.
And then the second thing is there was no other information
conveyed by Mr. Busby to me about his case. Hey, here’s what
we’re thinking. Here’s our defense. What do you think? Will this
work? Here’s what’s going on. None of that conversation occurred.
This call related to one thing and one thing only: an equine vet
friend of his that happens to know me who gave him my name and
said, hey, if you can’t find an expert, he might be able to give you the
name of one. But that’s the totality of it. [Emphases added.]
Chamblee explained that this case “came to [him] through [an insurance
company] a month” after his communication with Busby. He stated that when he
received the case, he did not initially remember the call with Busby or make a
connection between the case and that call. He explained that he did not initially
remember the call because he has “phone conversations about horses every day
of [his] life.”
9
In response to this explanation from Chamblee, appellants called Busby to
testify. Busby testified that he had a more expansive conversation with
Chamblee than Chamblee had recalled:
I discussed details about the case, about the type of lameness
issue, how it happened and who the local Defendant was, that I
needed -- that I was looking -- that I already had legal counsel but I
was looking to add local legal counsel[5] and potentially experts in
the equine industry and that I needed a recommendation from
somebody of his experience in equine law of an expert to use.
....
[Chamblee] . . . told me he had . . . practiced equine law and
his partner had some equine experts that their firm had used and he
was on his cell phone so when he got back to his office, he would
get me that information. . . .
....
. . . [N]othing . . . was told to me that Mr. Chamblee
represented defendants and, in particular, insurance companies as
defendants, and specifically this insurance company in the past as a
defendant, in equine cases or I would have never told him the details
and I would have gone about finding my own expert witness.
On appeal, the parties contest whether the Texas Disciplinary Rules of
Professional Conduct or principles derived from those rules required Chamblee’s
disqualification. See Nat’l Med. Enters., Inc. v. Godbey, 924 S.W.2d 123, 132
(Tex. 1996) (orig. proceeding) (“The Texas Disciplinary Rules of Professional
Conduct do not determine whether counsel is disqualified in litigation, but they do
provide guidelines and suggest the relevant considerations.”). However, under
5
The trial of this case occurred in Decatur. Appellants’ attorneys’ office is
in Fort Worth. Chamblee’s firm’s office is in Dallas. Thus, Chamblee would not
have been more “local” than the counsel that already represented appellants.
10
the circumstances presented here, we conclude that we need not examine
whether the rules or principles flowing from the rules prevented Chamblee’s
representation.6 Instead, as appellees argue, we hold that the trial court’s denial
of appellants’ disqualification motion must be upheld based on appellants’ failure
to sustain their burden of showing actual prejudice from Chamblee’s
representation. See Nitla, 92 S.W.3d at 422; Meador, 968 S.W.2d at 350; Bahn,
13 S.W.3d at 873.
Any showing of actual prejudice from the trial court’s refusal to disqualify
Chamblee must flow from a strategic benefit that he received through his
communications with Busby and that he later used during his representation of
appellees. In contending that Chamblee used the information that Busby had
communicated to him to attack Dr. Roberts at trial, appellants contend that
Chamblee (1) “repeatedly attacked Dr. Roberts for being from Florida,” and
(2) questioned how appellants had “found this ‘one witness.’” For these
assertions, appellants rely on statements that Chamblee made during closing
arguments. Appellants contend that Chamblee “proceeded to argue
unabashedly in closing how inappropriate it was to have Dr. Roberts testifying in
6
Therefore, our opinion should not be construed as endorsing an attorney’s
representation of a client under circumstances akin to the facts of this appeal.
We note that in fulfilling his or her primary duty to a client, “a lawyer must be ever
mindful of the profession’s broader duty to the legal system.” In re J.B.K., 931
S.W.2d 581, 583 (Tex. App.—El Paso 1996, no writ) (citing Order of The
Supreme Court of Texas and The Court of Criminal Appeals, adopting the “Texas
Lawyer’s Creed—A Mandate for Professionalism,” Nov. 7, 1989)).
11
this case.” They assert that Chamblee attacked Dr. Roberts “as an unscrupulous
out-of-towner who ‘doesn’t really treat horses,’ and worked for [a]ppellants
because he liked the fees ‘he got paid as an expert.’” In summary, appellants
argue that Chamblee
used his insider knowledge to subvert the jury’s role in fairly
weighing the credibility of the experts, and should have been
disqualified.
....
By advising a potential client to retain a specific expert,
learning confidential facts of the case, and then attempting to use
those facts and that hiring against the potential client, [Chamblee]
stepped over a bright line and should have been disqualified.
[Emphasis added.]
Viewing the evidence presented at the disqualification hearing in the light
most favorable to the ruling denying disqualification and resolving evidentiary
conflicts in a way that supports that ruling, as we must, the evidence shows that
Chamblee’s communications with Busby narrowly concerned appellants’ need to
obtain an expert witness, not their desire to obtain additional counsel7 and not
7
Thus, we disagree with appellants’ contention that Busby qualified as
Chamblee’s “client” under rule of evidence 503(a). See Tex. R. Evid.
503(a)(1)(B) (stating that a “client” is a person who “consults a lawyer with a view
to obtaining professional legal services from the lawyer” (emphasis added)); see
also Mixon v. State, 224 S.W.3d 206, 209 (Tex. Crim. App. 2007) (“The use of
the words ‘with a view to obtaining professional legal services’ . . . indicates that
the protection of the attorney-client privilege is available equally to those persons
who had hired the lawyer as well as those . . . seeking to do so.” (emphasis
added)). Viewed in the light most favorable the trial court’s ruling, the evidence
also does not support appellants’ contention that they sought “legal professional
services” from Chamblee.
12
any other factual details or legal or strategic impressions about appellants’ case.
Viewed in that light, the evidence further shows that the scope of the
communications about appellants’ need to obtain an expert witnesses included
only two components: (1) appellants had been unable to obtain a local expert
witness; and (2) Chamblee’s partner, who had also had difficulties in obtaining a
local expert witness in equine litigation, knew of and had used a Florida expert
witness, Dr. Roberts.
The record from the trial does not establish that on any occasion,
Chamblee referred to or otherwise used the information about appellants’
difficulty in obtaining a local expert witness.8 Cf. In re N.P.H., No. 09-15-00010-
CV, 2016 WL 5234599, at *8 (Tex. App.—Beaumont Sept. 22, 2016, no pet.)
(mem. op.) (reviewing an attorney’s conduct at trial to determine whether parties
seeking disqualification of the attorney before trial were actually prejudiced by the
attorney’s representation of another party); In re Duke, No. 09-16-00185-CV,
2016 WL 4040128, at *2 (Tex. App.—Beaumont July 28, 2016, orig. proceeding
[mand. denied]) (mem. op.) (“In this case, William failed to meet his burden to
show that actual prejudice existed, as the record contains no evidence to show
that Shipley acquired any confidential information about the Dukes’ case from her
conversation with Rhodes.”). Chamblee’s cross-examination of Dr. Roberts
8
During oral argument in this appeal, appellants’ counsel contended that
appellants’ trouble in finding a local expert witness was a “confidential, privileged
piece of information” and was the “critical piece of data” that Busby disclosed to
Chamblee.
13
focused on, among other matters, the facts of Dr. Harvey’s treatment,
Dr. Roberts’s opinions about that treatment, and discrepancies between those
opinions as expressed at trial and what Dr. Roberts had written in his report.
Chamblee did refer during closing argument to the immutable, public fact that Dr.
Roberts provided veterinary care in Florida (as contrasted with appellees’ local
expert witness),9 but that fact was first elicited by appellants during their
questioning of Dr. Roberts. In response to appellants’ questions, Dr. Roberts
9
Chamblee briefly referred to Dr. Roberts’s veterinary practice in Florida as
part of a larger critique of his expert qualifications:
They have a case of medical negligence that they brought against
Dr. Harvey, and they brought y’all one witness to try to prove that
case, a Dr. Roberts out of Florida. That’s who they brought you.
Y’all don’t practice veterinary medicine. I don’t practice veterinary
medicine, so you ought to evaluate Dr. Harvey’s credibility and who
he was on the stand. And you also have to evaluate who they
brought you. He hasn’t practiced in a hospital setting, in the clinic
setting in -- what was it -- 13, 14 years? He does pre-purchase
exams, which is going out before someone buys a horse and just
doing some general things and saying it’s sound, not sound,
collecting the money, and going on down the road to the next one.
He said he does lameness exams, too, but he doesn’t treat them in
any hospital setting.
....
Now, maybe Roberts down in Florida running around doing
pre-purchase exams for the last 13 years -- he isn’t really treating
horses. Maybe he ain’t using it or maybe he doesn’t like it or maybe
he just likes the 15 to $17,000 he got paid as an expert. I don’t
know his motive for what he did. I can guess at his motives, but I
don’t know. But I know what he told y’all, and I know that you good
folks [are] evaluating him and evaluating that gentleman sitting right
out there. I truly believe that you folks can tell truth from jibber-
jabber.
14
described his Florida residency and his current Florida equine veterinary
practice. As appellees contend, appellants elicited from their expert that he was
not local, and that appellees later highlighted that fact is not a surprise or
prejudice.
Next, appellants emphasize on appeal that Chamblee criticized
Dr. Roberts concerning the amount of fees that he had charged. But appellants
have not directed us to any part of the record establishing that Chamblee and
Busby’s pretrial conversation had anything to do with fees or that Chamblee
learned something about fees in that conversation that he later used at trial.
Similarly, appellants do not direct us to any evidence proving that the other
grounds upon which Chamblee criticized Dr. Roberts at trial—either through
cross-examination or in the closing argument—had anything to do with the
contents of his pretrial conversation with Busby or that he would not have made
those criticisms without speaking to Busby.10 Thus, we reject appellants’
argument that Chamblee used “insider knowledge” or employed “confidential
facts” to “subvert the jury’s role in fairly weighing the credibility of the experts.”
Appellants rely on a decision from another court of appeals to contend that
Chamblee’s disqualification in this case was mandatory. See Petroleum
Wholesale, Inc. v. Marshall, 751 S.W.2d 295 (Tex. App.—Dallas 1988, no writ).
10
At trial, appellants did not object to Dr. Roberts’s testimony or to
Chamblee’s closing argument on the basis that the testimony or argument
regarded matters that Busby had confidentially disclosed to Chamblee.
15
In that case, an attorney had worked for a law firm that represented the plaintiff in
a wrongful death suit and had participated in confidential discussions concerning
litigation strategy and the potential for settlement negotiations before becoming
employed by the law firm that represented the defendant in the same suit. Id. at
296. The court of appeals held that despite attempts at the defendant’s law firm
to use a “Chinese wall” to shield the attorney from matters related to the wrongful
death case, disciplinary rules required the defendant’s firm’s disqualification. Id.
at 300–01. The court reasoned that when
an attorney in private practice has actual knowledge of the
confidences of a former client in a particular case, and he or she
undertakes employment with a law firm representing a party whose
interests in that identical case are adverse to that former client, the
construction of a Chinese wall does not refute the appearance of
professional impropriety—the possible disclosure of the former
client’s confidences—which is prohibited by . . . the Texas Code of
Professional Responsibility.
Id. at 301. The facts here are distinguishable because Chamblee never
represented appellants and, according to him, was never even prospective
counsel for them.
Appellants also contend that the trial court “compounded” the alleged error
of denying their motion to disqualify Chamblee by “refusing to allow the jury to
learn the real facts of Dr. [Roberts’s] retention.” The following exchange
occurred during appellants’ questioning of Dr. Roberts:
[APPELLANTS’ COUNSEL:] You were asked about your
experience as a veterinarian testifying expert and whether you
testified in Texas before --
16
A. Yes.
Q. -- and what your payments -- what your payments were
and all that kind of stuff. Do you know how we found you as an
expert?
A. I believe it’s because I was working for the [appellees’]
counsel --
MR. CHAMBLEE: Whoa, whoa. Your Honor -- he didn’t ever
work for you. What are you about to say? Let’s -- let’s approach.
....
(At the Bench, off the record)
THE COURT: Thank you, gentlemen.
Q. (BY [APPELLANTS’ COUNSEL]) Let me narrow my
question a little bit. Have you worked on both the Plaintiffs’ side and
the [Defendants’] side in your -- in your work as a veterinary expert?
A. Yes.
To the extent that appellants seek reversal because they should have
been allowed to inform the jury that Chamblee had referred Dr. Roberts to them,
we disagree for two reasons. First, because the trial court never sustained an
objection to Dr. Roberts’s statement that he had “work[ed] for [appellees’]
counsel” or instructed the jury to disregard that statement, that evidence
remained for the jury to consider for all purposes. See In re Bent, 487 S.W.3d
170, 182 (Tex. 2016) (orig. proceeding). Second, to the extent that appellants
argue that the trial court should have allowed them to develop Dr. Roberts’s
testimony on that matter further, the record does not contain a specific request or
objection that was sufficient to preserve error or a ruling on any such request or
17
objection. See Tex. R. App. P. 33.1(a); Warrantech Corp. v. Comput. Adapters
Servs., Inc., 134 S.W.3d 516, 529 (Tex. App.—Fort Worth 2004, no pet.) (“[T]his
complaint is waived because the . . . general statement of ‘objection’ when the
testimony was offered, followed by an off-the-record bench conference, did not
create a record sufficient to preserve the complaint for our review.”).
Finally, we reject appellants’ characterizations of Chamblee as having
“recommend[ed]” Dr. Roberts as “the exact expert for this exact case” or as
having been “unfairly in the unique position of choosing both [parties’] experts.”
Chamblee stated during the hearing on appellants’ disqualification motion that he
did not personally know Dr. Roberts and that he had merely told Busby that
Chamblee’s firm had previously used Dr. Roberts. Nothing in Chamblee’s
statements indicates that he “chose” Dr. Roberts as appellants’ expert or
warranted to appellants that Dr. Roberts would be an appropriate expert to testify
about the facts and legal theories involved in this case. The record does not
indicate what investigation or evaluation appellants conducted concerning
Dr. Roberts after the conversation between Chamblee and Busby and before
designating him as their expert and eliciting his testimony at trial.
In summary, when viewed in the light most favorable to the trial court’s
ruling denying disqualification, the record does not disclose any strategic or
tactical advantage that Chamblee received and used based on his limited
communication with Busby. Thus, we conclude that the trial court did not abuse
its discretion by denying appellants’ motion to disqualify Chamblee because
18
appellants failed to establish that allowing Chamblee to represent appellees
would cause appellants actual prejudice. See Nitla, 92 S.W.3d at 422; Metro.
Life Ins. Co., 881 S.W.2d at 321; Bahn, 13 S.W.3d at 873. We overrule
appellants’ sole issue.11
Conclusion
Having overruled appellants’ only issue, we affirm the trial court’s take-
nothing judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GABRIEL and PITTMAN, JJ.
DELIVERED: July 27, 2017
11
We decline to discuss alternative arguments presented by appellees
because the resolution of those arguments is not necessary to this appeal’s
disposition. See Tex. R. App. P. 47.1.
19