in Re: VSDH Vaquero Venture, Ltd. ( 2014 )

Conditionally Grant and Opinion Filed August 28, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00958-CV
IN RE VSDH VAQUERO VENTURE, LTD., Relator
Original Proceeding from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-09-05232-A
MEMORANDUM OPINION
Before Justices FitzGerald, Francis, and Myers
Opinion by Justice Francis
Relator VSDH Vaquero Venture, Ltd. filed this mandamus proceeding after the trial court
made an oral ruling disqualifying Evan L. Shaw as its counsel on the ground he may be a witness
in the case. To obtain mandamus relief, relator must show both that the trial court abused its
discretion and that it has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d
124, 135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.
1992) (orig. proceeding). VSDH has met its burden. We therefore conditionally grant the writ
of mandamus.
Real parties in interest Kenneth and Betsy Gross are counter-plaintiffs below. The
following facts are taken from their counterclaim and VSDH’s motion for continuance. The
Grosses purchased residential property from VSDH; Shaw and Douglas M. Hickok are limited
partners in VSDH. The contract contained a “buy back” option requiring VSDH to repurchase
the property subject to particular terms and conditions. According to the Grosses, they exercised
the option. The Grosses allege that after VSDH, Shaw, and Hickok “affirmatively represented”
they would not “honor” the provision, the Grosses sold the property to a third party. VSDH filed
a declaratory judgment action contending it did not breach the contract, and the Grosses
counterclaimed against Shaw, Hickok, and VSDH for damages for breach of contract and fraud.1
Two weeks before the case was set to go to trial, VSDH received the Grosses’ witness list
identifying VSDH’s counsel, Shaw, as a “person who may be called as an adverse witness.” By
this time, Shaw was no longer a defendant in the suit. Shaw wrote to the Grosses’ counsel twice
to determine if he planned to call Shaw as a witness at trial. When the Grosses’ counsel refused
to say one way or the other, Shaw filed a motion to continue the case until the Grosses decided
whether they were calling him as a witness and, if they decided they would be calling him,
additional time to locate and engage new counsel to represent VSDH. The trial was reset for
July 2014.
Two and a half months later, the Grosses filed a motion to disqualify Shaw asserting that
Shaw had not withdrawn from representing VSDH and that “[n]othing had changed in terms of
the likelihood that Shaw will be called as a witness in the trial of this case.” Relying on rule 3.08
of the Texas Disciplinary Rules of Professional Conduct, they asserted Shaw should not be
permitted to act as an advocate in the case. As the trial date neared, the Grosses set the motion
for a hearing on June 18, 2014. At the hearing, the Grosses presented no evidence to support
their motion, only argument. Counsel for the Grosses would not confirm whether he would call
1
Our record does not contain VSDH’s petition, only the Grosses’ counterclaim. The absence of the petition does not impair our ability to
consider the issue in this proceeding. See TEX. R. APP. P. 52.7(a).
.
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Shaw as a witness but said he believed it was “more than a 50 percent chance.” He also
represented that counsel for real party Hickok had previously represented he would call Shaw as
a witness, but Hickok’s counsel disputed that assertion, saying he may need to call him “simply
to rebut testimony that has been offered by Mr. Gross . . . regarding certain interactions he has
had with Mr. Shaw.” In response, VSDH complained the Grosses had failed to produce evidence
to trigger disqualification under rule 3.08(a). In particular, they asserted the Grosses failed to
show that Shaw would be testifying to an essential fact that could not be obtained by other
evidence. The trial court disagreed that evidence needed to be presented as to “what the lawyer
would testify to” and orally ruled that Shaw “may stay on the case, but he may not make any
presentations before the Court.”
An oral ruling may be subject to mandamus review if the ruling is clear, specific,
enforceable, and adequately shown by the record. See In re Penney, No. 05-14-00503-CV, 2014
WL 2532307, at *2 n.3 (Tex. App.—Dallas June 14, 2014, orig. proceeding) (mem. op.). An
appellate court can determine whether an oral ruling meets these criteria by reviewing the
reporter’s record. Id. We conclude the oral ruling in this case meets the criteria.
Because disqualification is a severe remedy, courts must adhere to exacting standards
when considering motions to disqualify so they are not used as a trial tactic. Spears v. Fourth
Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding). Here, the Grosses relied
on rule 3.08(a) of the disciplinary rules of professional conduct to disqualify Shaw. While the
disciplinary rules are not controlling as standards governing motions to disqualify, they serve as
guidelines that “articulate considerations relevant to the merits of such motions.” Id. The
burden is on the movant to establish with specificity a violation of the disciplinary rules. Id.
Rule 308(a) of the disciplinary rules provides in relevant part: “A lawyer shall not accept
or continue employment as an advocate before a tribunal in a contemplated or pending
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adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness
necessary to establish an essential fact on behalf of the lawyer’s client” except under certain
circumstances. See TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 3.08(a), reprinted in TEX.
GOV’T CODE ANN., tit. 2, subtit. G, app. A (WEST 2013) (TEX. STATE BAR R. art. X, § 9). A
party seeking disqualification of a lawyer under rule 3.08(a) must present evidence that the
testimony of the lawyer is necessary, that it goes to an “essential fact,” and that the party will be
prejudiced if the opposing lawyer is permitted to serve in dual roles. See In re Lavizadeh, 353
S.W.3d 903, 904 (Tex. App.—Dallas 2011, orig. proceeding); see also In re Bahn, 13 S.W.3d
865, 872 (Tex. App.—Fort Worth 2000, orig. proceeding). An attorney’s testimony is not
considered necessary if there is no unqualified, positive intent to call the attorney as a witness.
See In Interest of A.M., 974 S.W.2d 857, 864 (Tex. App.—San Antonio 1998, no pet.) (citing
Spears, 797 S.W.2d at 658). If relying on rule 3.08(a), the moving party must further show that
the fact to be established by the attorney’s testimony is essential to the testifying attorney’s own
client’s case as opposed to another’s party’s case. In re Lavizadeh, 353 S.W.3d at 904. Finally,
the moving party must show the trial court lacks any means other than disqualification to remedy
the harm to the opposing party. In re Bivins, 162 S.W.3d 415, 421 (Tex. App.—Waco 2005,
orig. proceeding). Where a party fails to present evidence to support all of these matters, the
party seeking disqualification fails to carry its burden and the trial court cannot reasonably
conclude the attorney’s testimony is necessary to establish an essential fact to the party’s case.
In re Lavizadeh, 353 S.W.3d at 904; Gilbert McClure Enters. v. Burnett, 735 S.W.2d 309, 311
(Tex. App.—Dallas 1987, orig. proceeding).
Here, the Grosses did not present any evidence to support their motion to disqualify.
Consequently, based on the record before us, the trial court could not have reasonably concluded
that Shaw’s testimony was necessary to establish an essential fact of VSDH’s case. See In re
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Lavizadeh, 353 S.W.3d at 904; Gilbert McClure Enters., 735 S.W.2d at 311. In reaching this
conclusion, we reject the Grosses’ argument that the trial court could take judicial notice of the
contents of its file in making its decision. We note, first, that no party requested the court to take
judicial notice of any document. Second, nothing in the record reflects that the trial court took
judicial notice of any document. To the contrary, the record suggests the trial court did not know
what essential fact Shaw’s testimony would establish or how the Grosses would be prejudiced if
permitted to testify to those facts. When VSDH’s counsel asked what testimony was “being used
to prohibit” Shaw from representing VSDH, the trial court responded, “The problem is we don’t
know, but we do know that he is likely to be a witness in this case. And that’s what the rule
addresses. . . .”
Appeal is an inadequate remedy for the improper disqualification of Shaw. See Spears,
797 S.W.2d at 657–58. Accordingly, we conditionally grant the relator’s petition for writ of
mandamus and direct the trial court to vacate its oral order granting the Grosses’ motion to
disqualify and to enter a written order denying the motion. A writ will issue only in the event the
trial court fails to comply.
140958F.P05
/Molly Francis/
MOLLY FRANCIS
JUSTICE
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