kristin-wilkinson-v-usaa-federal-savings-bank-trust-services-indiv-and ( 2014 )

Affirmed and Memorandum Opinion filed July 1, 2014.
In the
Fourteenth Court of Appeals
NO. 14-13-00111-CV
KRISTIN WILKINSON, Appellant
V.
USAA FEDERAL SAVINGS BANK TRUST SERVICES, INDIVIDUALLY,
AND AS TRUSTEE, WILLIAMS, KHERKHER, HART & BOUNDAS,
L.L.P., LOOPER REED & MCGRAW, P.C., AND WILLIAM W. MORRIS,
Appellees
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2011-70651
MEMORANDUM OPINION
Appellant Kristin Wilkinson appeals the trial court’s granting of summary
judgment in favor of appellees USAA Federal Savings Bank Trust Services
(“USAA”), Williams, Kherker, Hart & Boundas, L.L.P. (“WKHB”), Looper Reed
& McGraw, P.C. (“LRM”), and William W. Morris, on Wilkinson’s claims for
vicarious liability, breach of fiduciary duty, fraud, defamation, breach of contract,
and violations of the DTPA. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Kristin Wilkinson represented a minor plaintiff, M.M., and her
mother, Saskia Madison,1 in a personal injury lawsuit against Warren Reid
Williamson and his wife in the 215th Judicial District Court. In March 2005, the
Madisons obtained a default judgment for approximately $4.75 million. The First
Court of Appeals affirmed the judgment. Madison v. Williamson, 241 S.W.3d 145,
149–51 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). Wilkinson, who
represented the Madisons on a contingent-fee basis, initially represented the
plaintiffs in post-judgment collection efforts.
On May 22, 2006, a Harris County probate court signed an order creating a
management trust for the minor plaintiff’s benefit pursuant to section 867 of the
Texas Probate Code. The probate court appointed USAA to serve as trustee.
In an effort to obtain financial assistance for the post-judgment collection
efforts, Wilkinson entered into a co-counsel agreement with appellee WKHB in
June 2007. Wilkinson agreed to a 50/50 split of her contingent-fee interest, and
WKHB agreed to reimburse half of Wilkinson’s litigation expenses incurred to
date and to fund future litigation costs and expenses.
In June 2008, USAA hired Wilkinson on a contingent-fee basis to pursue
judgment collection on behalf of the trust to benefit M.M. In March 2009, the
parties signed an amended representation agreement, which increased Wilkinson’s
contingent-fee interest from 33 1/3% to 40%.
On February 23, 2009, the trial court signed an order appointing a receiver
1
We employ the same pseudonyms used for the plaintiffs in the underlying case.
2
under the turnover statute to take charge of certain of Williamson’s property and
assets. See Tex. Civ. Prac. & Rem. Code § 31.002(b)(3) (West 2011).
In March 2009, Wilkinson asked appellee William W. Morris, an attorney
with appellee LRM, to serve as receiver. Morris agreed to “be retained by
[Wilkinson] to work as receiver on behalf of USAA,” and “[t]o the extent
possible,” Wilkinson agreed to perform legal work on behalf of the receivership.
The trial court ordered the original receiver discharged and appointed Morris as
substitute receiver on April 16, 2009.
The State Bar of Texas suspended Wilkinson’s license to practice law from
September 1, 2009, to February 28, 2010. Wilkinson filed an unopposed motion to
withdraw as attorney of record for Morris and USAA and to substitute Harry G.
Potter III, an attorney with WKHB, as their counsel. The trial court granted this
motion.
On March 8, 2010, USAA told Wilkinson that it would keep Potter and
WKHB as its counsel. That same day, Wilkinson terminated her agreement with
Morris.
In May 2010, Wilkinson moved the trial court to appoint a substitute
receiver. The trial court denied the motion but ordered Morris to report on his
progress every 45 days. In October 2010, Wilkinson again moved the trial court to
appoint a substitute receiver. In March 2011, Morris moved the trial court to
approve a rule 11 agreement involving certain funds owed to Williamson.
Wilkinson opposed this motion and again requested that the trial court appoint a
substitute receiver. On March 25, 2011, the trial court granted Morris’s motion
and denied Wilkinson’s motion.
The State Bar of Texas again suspended Wilkinson’s license to practice law
3
from May 1, 2011, to April 30, 2013. On May 9, 2011, Morris filed a motion to
release funds from the court registry.2 On May 12, 2011, Wilkinson filed a petition
in intervention. On May 20, 2011, the trial court granted Morris’s motion, except
as to his requests to release an as-yet-undetermined amount of funds to WKHB and
the remaining balance to USAA. In June 2011, Wilkinson filed a motion to release
40% of the remainder of the funds from the court registry to her. USAA opposed
Wilkinson’s motion. Morris requested that Wilkinson’s motion be “denied
pending a determination by the court of the interest of any parties in the funds of
the registry of the court.” After the trial court denied Wilkinson’s motion on July
22, 2011, she filed the instant suit.3
Wilkinson initially filed suit against USAA and WKHB in the probate
proceeding, but USAA successfully moved for the case to be transferred to the
215th District Court. Wilkinson then amended her petition to add Morris and
LRM as defendants.
In her live petition, Wilkinson alleged the following claims against all the
appellees: vicarious liability, breach of fiduciary duty, fraud, and breach of
contract. Wilkinson alleged defamation against USAA, WKHB, and Morris.
Wilkinson alleged Morris and LRM committed DTPA violations.
2
As of early May 2011, funds relating to the rule 11 agreement and to a family
inheritance had been deposited into the trial court’s registry. The receiver’s motion concerned
the distribution of a portion of such funds to the IRS for payment of Williamson’s back taxes, to
the Office of the Attorney General for payment of Williamson’s back child support, and to
William’s criminal defense attorney pursuant to the court-approved rule 11 agreement.
3
In October 2011, Wilkinson filed a petition for writ of mandamus concerning the trial
court’s various orders. The First Court of Appeals denied her petition. In re Wilkinson, No. 01-
11-00911-CV, 2011 WL 5626172, at *1 (Tex. App.—Houston [1st Dist.] Nov. 18, 2011, orig.
proceeding) (per curiam). Wilkinson then filed emergency motions for relief, which the First
Court denied. In February and March 2012, Wilkinson filed additional motions seeking the
disbursement of funds to her in the underlying case, which the trial court denied. In July 2012,
Wilkinson then filed a petition for writ of mandamus in the Texas Supreme Court, which denied
her petition without opinion.
4
In September 2012, all the appellees moved for summary judgment. USAA
filed separate traditional and no-evidence motions. WKHB filed a hybrid
traditional/no-evidence motion for summary judgment. So did Morris and LRM.
USAA argued the following grounds in its traditional motion for summary
judgment: (1) dominant jurisdiction over Wilkinson’s claims lies in the underlying
case; (2) her claims constitute an impermissible collateral attack upon the orders
issued in the underlying case; (3) her claims are barred by the absolute judicial
proceedings privilege; (4) her breach-of-fiduciary-duty claim fails because USAA
does not owe Wilkinson any fiduciary duty; (5) her breach-of-contract claim fails
because Wilkinson by her suspension abandoned her contract with USAA; and (6)
her “so-called” vicarious liability claim is not an independent cause of action.
USAA moved for no-evidence summary judgment as to all the elements of
Wilkinson’s breach-of-fiduciary duty, fraud, and defamation claims. With regard
to breach of contract, USAA argued Wilkinson has no evidence that USAA
breached its contract or that any alleged breach injured Wilkinson.
WKHB argued the following grounds in the traditional portion of their
hybrid motion: (1) Wilkinson’s lawsuit is an improper collateral attack on the
rulings in the underlying case; (2) her defamation claim, and all other claims, are
barred by the absolute judicial proceedings privilege, and any allegedly defamatory
statements are true; (3) her breach-of-fiduciary-duty and fraud claims fail because
WKHB does not owe Wilkinson any fiduciary duty; (4) her breach-of-fiduciary-
duty, fraud, and breach-of-contract claims fail because WKHB caused no damages
to Wilkinson; (5) her breach-of-fiduciary-duty, fraud, and defamation claims are
barred by the economic loss rule; (6) her breach-of-contract claim fails because by
her suspension Wilkinson breached the contract before any alleged breach by
WKHB; (7) Wilkinson lacks standing and capacity to bring any claims on M.M.’s
5
behalf or as a purported beneficiary of the trust; (8) Wilkinson is not entitled to
forfeiture of attorney’s fees; (9) dominant jurisdiction exists in the underlying case;
(10) as Morris’s attorney, WKHB is entitled to derived judicial immunity from
Wilkinson’s claims; and (11) vicarious liability is not an independent cause of
action and, regardless, does not apply here.
In the no-evidence portion of its motion, WKHB asserted that no evidence
exists as to one or more of all of the elements of breach of fiduciary duty, fraud,
defamation, and breach of contract. Out of an abundance of caution because
Wilkinson did not explicitly state them as separate claims in her petition, WKHB
asserted that no evidence exists as to one or more of all of the elements of
conversion, theft, and professional negligence.
Morris and LRM argued the following grounds in the traditional portion of
their hybrid motion: (1) Morris and LRM are entitled to derived judicial immunity
from Wilkinson’s claims; (2) dominant jurisdiction lies with the underlying case;
(3) Wilkinson’s lawsuit constitutes an impermissible collateral attack on the orders
in the underlying case; (4) her breach-of-fiduciary-duty and fraud claims fail
because Morris and LRM do not owe Wilkinson a fiduciary duty; (5) Wilkinson is
not entitled to contract damages because of her license suspension and is not
entitled to recover mental anguish damages because of the lack of duty owed; and
(6) vicarious liability is not an independent cause of action.
In the no-evidence portion of their motion, Morris and LRM asserted that
Wilkinson has produced no evidence of all the elements of breach of fiduciary
duty, fraud, defamation, DTPA violations, and professional negligence. With
regard to breach of contract, Morris and LRM argued Wilkinson has no evidence
that Morris or LRM breached its contract or that any alleged breach injured
Wilkinson.
6
Wilkinson filed responses to all the appellees’ motions for summary
judgment. On November 6, 2012, after an oral hearing, the trial court granted all
the motions for summary judgment without specifying any grounds. Wilkinson
moved for new trial or rehearing, which the trial court denied. This appeal by
Wilkinson followed.
II. ANALYSIS
Although Wilkinson4 raises four issues on appeal, they essentially reduce to
the following two: (1) that the trial court erred in granting no-evidence summary
judgment in favor of WKHB, USAA, Morris, and LRM on Wilkinson’s claims of
breach of fiduciary duty, vicarious liability, fraud, defamation, breach of contract,
conversion and theft, and DTPA violations (issue one) 5; and (2) that the trial court
erred in granting summary judgment in favor of the appellees based on immunity
(issue two); collateral attack, Wilkinson’s lack of standing or capacity, and
dominant jurisdiction (issue three); and the economic loss rule (issue four).6
A. Standard of review
Our review of a summary judgment is de novo. Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When
reviewing a summary judgment, we take as true all evidence favorable to the
nonmovant, and we indulge every reasonable inference and resolve any doubts in
4
While Wilkinson provides her license number in her appellate filings, she indicates that
her status is pro se and she is not currently practicing.
5
Wilkinson does not challenge the granting of summary judgment with regard to and
thus has abandoned any professional negligence claims on appeal. See Duerr v. Brown, 262
S.W.3d 63, 69 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
6
Wilkinson also appears to challenge, but within her first issue, certain other traditional
grounds—that the appellees owed her a fiduciary duty and that she is entitled to a forfeiture of
fees against WKHB. However, because we are able to affirm the summary judgments on other
grounds, we do not reach these arguments. See Tex. R. App. P. 47.1; Carr v. Brasher, 776
S.W.2d 567, 570 (Tex. 1989).
7
the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005). The scope of our review is limited to the summary judgment record
upon which the trial court’s ruling was based. Mathis v. Restoration Builders, Inc.,
231 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
To be entitled to traditional summary judgment, a movant must establish that
there is no genuine issue of material fact so that the movant is entitled to judgment
as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort, 289 S.W.3d at 848.
Once the movant produces evidence entitling it to summary judgment, the burden
shifts to the nonmovant to present evidence raising a genuine issue of material fact.
Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). A defendant who
conclusively negates a single essential element of a cause of action or conclusively
establishes an affirmative defense is entitled to summary judgment on that claim.
Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010).
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground that
there is no evidence to support an essential element of the nonmovant’s claim.
Tex. R. Civ. P. 166a(i). A no-evidence motion for summary judgment “must state
the elements as to which there is no evidence” and should not be general or
conclusory. Id.; id. 166a cmt. to 1997 change.
A no-evidence motion for summary judgment must be granted if: (1) the
moving party asserts that there is no evidence of one or more essential elements of
a claim on which the adverse party would have the burden of proof at trial, and (2)
the respondent produces no summary judgment evidence raising a genuine issue of
material fact on those elements. Tex. R. Civ. P. 166a(i). Although the nonmovant
need not marshal its proof, it has the burden to and must present evidence that
raises a genuine issue of material fact on each of the challenged elements. See id.;
8
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence
summary judgment motion may not properly be granted if the nonmovant brings
forth more than a scintilla of evidence to raise a genuine issue of material fact on
the challenged elements. Ridgway, 135 S.W.3d at 600. More than a scintilla of
evidence exists when the evidence would permit reasonable and fair-minded
people to differ in their conclusions. King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003). Less than a scintilla of evidence exists when the evidence is
so weak that it does no more than create a surmise or a suspicion of a fact. Id.Where, as here, a summary judgment fails to specify the grounds upon
which the trial court relied for its ruling, we must affirm the judgment if any of the
grounds advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.
1989); Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 127 (Tex. App.—
Houston [14th Dist.] 1994, no writ). Also, “when there are multiple grounds for
summary judgment and the order does not specify the ground on which the
summary judgment was granted, the appealing party must negate all grounds on
appeal.” State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993).
Thus, when a particular summary judgment ground goes unchallenged, we affirm
the judgment as to that ground. PAS, Inc. v. Engel, 350 S.W.3d 602, 608 (Tex.
App.—Houston [14th Dist.] 2011, no pet.); see Cuidado Casero Home Health of
El Paso, Inc. v. Ayuda Home Health Care Servs., LLC, 404 S.W.3d 737, 743–44
(Tex. App.—El Paso 2013, no pet.) (“When a summary judgment ground goes
unaddressed, its validity is presumed.”).
Where, as here, a trial court grants a summary judgment involving both no-
evidence and traditional grounds, we usually first address the no-evidence grounds.
See Ridgway, 135 S.W.3d at 600; PAS, 350 S.W.3d at 607. However, where the
appellate court concludes that it is required to affirm the trial court’s ruling on
9
summary judgment on traditional grounds, it need not address or review the no-
evidence grounds. Nalle Plastics Family Ltd. P’ship v. Porter, Rogers, Dahlman
& Gordon, P.C., 406 S.W.3d 186, 202–03 & n.13 (Tex. App.—Corpus Christi
2013, pet. filed) (affirming summary judgment on failure-to-advise claim on
traditional ground where defendant also moved on no-evidence ground); Shih v.
Tamisiea, 306 S.W.3d 939, 945 & n.8 (Tex. App.—Dallas 2010, no pet.) (same for
DTPA claim); see Tex. R. App. P. 47.1.
With these standards in mind and where the appellees each brought forth
multiple grounds for summary judgment in their various motions, as an initial
matter, we first consider whether on appeal Wilkinson has challenged each
possible ground on which summary judgment could have been granted for each
claim.
B. Wilkinson’s breach-of-contract claim
As a traditional ground for summary judgment, USAA, WKHB, and Morris
and LRM all relied on Wilkinson’s September 2009 law license suspension, and
Royden v. Ardoin, 160 Tex. 338, 331 S.W.2d 206 (1960),7 to attack the validity of
her breach-of-contract claim. USAA argued that Wilkinson was barred from
pursuing such claim because she had abandoned her contract with USAA; WKHB
argued that Wilkinson breached her agreement with WKHB long before any
alleged breach by WKHB; and Morris and LRM asserted that Wilkinson’s
abandonment barred her from collecting damages on any contract.
7
The Royden court affirmed summary judgment rendered against an attorney who had
sued to recover contingent fees where his license was suspended and rendered it impossible for
him to complete the work he was engaged to perform. 331 S.W.2d at 209. This court has
indicated that “the long-standing precedent in Texas . . . [is] when a lawyer is unable to fulfill his
or her representation of a client, the lawyer is not entitled to recovery of any legal fees from an
abandoned case and client.” Cruse v. O’Quinn, 273 S.W.3d 766, 773 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied) (citing Royden in affirming partial summary judgment barring
claims under fee-sharing agreement).
10
While Wilkinson was not required to respond to any traditional summary
judgment ground concerning her suspension’s effect on the ability to bring her
contract claim in order to complain on appeal that the appellees did not meet their
summary judgment burden, see Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217,
222–23, 225 (Tex. 1999), Wilkinson entirely fails to address, much less offer any
argument or authority on, this ground in her brief. Therefore, we affirm the trial
court’s summary judgment in favor of all the appellees on Wilkinson’s breach-of-
contract claim. See PAS, 350 S.W.3d at 608.
C. Wilkinson’s vicarious liability “claim”
As a traditional ground for summary judgment, USAA, WKHB, and Morris
and LRM all attacked the validity of any “claim” by Wilkinson for vicarious
liability because it is not an independent cause of action and such doctrine does not
apply where the alleged tortfeasor is not liable for damages as a matter of law. See
Crooks v. Moses, 138 S.W.3d 629, 637–38 (Tex. App.—Dallas 2004, pet. denied).
WKHB further argued that vicarious liability cannot be applied to it by virtue of
respondeat superior because Potter is not liable for any underlying tort. Again,
Wilkinson entirely fails to address, much less offer any argument or authority on,
this ground in her brief. Therefore, we affirm the trial court’s summary judgment
in favor of all the appellees on Wilkinson’s vicarious liability “claim.” See PAS,
350 S.W.3d at 608.
D. Judicial proceedings privilege, as to USAA and WKHB
Both USAA and WKHB relied on the affirmative defense of judicial
proceedings privilege as a traditional ground for summary judgment as to
Wilkinson’s defamation claims and all other causes of action arising out of
11
communications made during and in connection with the underlying case.8
As with the suspension and vicarious liability grounds, USAA contends in
its response that Wilkinson’s opening brief fails to address the judicial proceedings
privilege as a traditional ground and therefore this court should summarily affirm
the summary judgment. However, albeit within the defamation subpart of her first
issue, which purports to challenge the trial court’s granting of summary judgment
based on no-evidence grounds, Wilkinson states that none of the appellees “had
privilege, immunity or authority to misrepresent the ownership interests in the
property . . . and had no privilege or authority to obtain, receive or distribute
money held in the Receivership Estate to any entity other than Appellant
Wilkinson.” Moreover, within her second issue—Did the district court err in
granting the summary judgments in favor of Appellees based upon their claims of
immunity?—Wilkinson argues that “[n]one of the appellees are entitled to
immunity or privilege.” While her brief is not a model of clarity,9 we decline to
summarily affirm summary judgment for USAA and WKHB based on a complete
failure to address or challenge the judicial proceedings privilege.
In any event, we conclude that the trial court properly could grant summary
judgment for USAA and WKHB as to Wilkinson’s defamation, fraud, and breach-
of-fiduciary-duty claims based on the judicial proceedings privilege.
Texas courts have long recognized that an absolute privilege extends to
publications made in the course of judicial and quasi-judicial proceedings—
8
In their hybrid motion, Morris and LRM argued as a traditional ground that they were
entitled to the affirmative defense of derived judicial immunity, which barred all of Wilkinson’s
claims because they are based on Morris’s conduct while serving as court-appointed receiver.
However, Morris and LRM did not raise the affirmative defense of judicial proceedings privilege
as a traditional ground.
9
Indeed, Wilkinson does not respond to any of USAA’s and WKHB’s cited authority on
the judicial proceedings privilege.
12
“meaning that any statement made in the trial of any case, by anyone, cannot
constitute the basis for a defamation action, or any other action.” Hernandez v.
Hayes, 931 S.W.2d 648, 650 (Tex. App.—San Antonio 1996, writ denied) (citing
James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982) (per curiam); Reagan v.
Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909, 912 (1942)); Lane v. Port
Terminal R.R. Ass’n, 821 S.W.2d 623, 625 (Tex. App.—Houston [14th Dist.]
1991, writ denied) (same); see Bird v. W.C.W., 868 S.W.2d 767, 771–72 (Tex.
1994). The judicial proceedings privilege is “tantamount to immunity”; where
there is an absolute privilege, no civil action in damages for oral or written
communications will lie, “even though the language is false and uttered or
published with express malice.” Hernandez, 931 S.W.2d at 650 (citing Reagan,
166 S.W.2d at 912; Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 768
(Tex. 1987)); see Lane, 821 S.W.2d at 626. The scope of the absolute privilege
extends to all statements made in the course of the proceeding, whether made by
the judges, jurors, counsel, parties, or witnesses, and attaches to all aspects of the
proceeding, including statements made in open court, hearings, depositions,
affidavits, and any pleadings or other papers in the case. Daystar Residential, Inc.
v. Collmer, 176 S.W.3d 24, 27 (Tex. App.—Houston [1st Dist.] 2004, pet. denied);
Lane, 821 S.W.2d at 625.
Determining whether an allegedly defamatory communication is related to a
judicial proceeding is a question of law. Fitzmaurice v. Jones, 417 S.W.3d 627,
633 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Daystar, 176 S.W.3d
at 28). We consider the entire communication in its context, and must extend the
privilege to any statement that bears some relation to the proceeding and must
resolve all doubt in favor of the privilege. Id. (same). Communications made in
the course of a judicial proceeding “also cannot form the basis of liability for other
13
torts, including negligence, when the essence of the claim is that injury occurred as
the result of allegedly false statements made during a judicial proceeding.” de
Mino v. Sheridan, No. 14-05-00210-CV, 2006 WL 1026933, at *2 (Tex. App.—
Houston [14th Dist.] Apr. 20, 2006, pet. denied) (mem. op.); Hernandez, 931
S.W.2d at 654 (“The privilege would be lost if the appellant could merely drop the
defamation causes of action and creatively replead a new cause of action. The
United States Supreme Court and the Texas Supreme Court have firmly held that a
privilege in a defamation cause of action also extends to all other torts plead by the
plaintiff.”).10 Otherwise, the policy behind the privilege, protecting the integrity of
the process itself and insuring that the decision-making body gets the information
it needs, could be circumvented merely by placing a different label on the claim.
See Bird, 868 S.W.2d at 771–72; Attaya v. Shoukfeh, 962 S.W.2d 237, 239–40
(Tex. App.—Amarillo 1998, pet. denied).
Here, Wilkinson predicated her defamation claims on allegedly “defamatory
remarks” that the appellees made “in open court” and to “the judge” about her and
about “all kinds of problems” with her contracts. In particular, Wilkinson alleged
that at a July 22, 2011 court hearing USAA and WKHB defamed Wilkinson
through statements that “there are no assets to collect from and if Wilkinson was to
be paid, then the Section 867 Management Trust would not be able to pay legal
fees it had separately incurred outside of its contract with Wilkinson, therefore,
10
See Settle v. George, No. 02-11-00444-CV, 2012 WL 2923302, at *4 (Tex. App.—Fort
Worth Jul. 19, 2012, no pet.) (mem. op.) (“Because the fraud claim is based upon a privileged
communication made during the course of these judicial proceedings, the Settles did not allege a
viable cause of action for fraud.”); Perdue, Brackett, Flores, Utt & Burns v. Linebarger,
Goggan, Blair, Sampson & Meeks, L.L.P., 291 S.W.3d 448, 455 (Tex. App.—Fort Worth 2009,
no pet.) (absolute judicial proceedings privilege barred “claims for defamation, tortious
interference, business disparagement, and conspiracy to commit these torts”); Laub v. Pesikoff,
979 S.W.2d 686, 691–92 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (same for claims
for libel and slander, intentional interference, civil conspiracy, intentional infliction of emotional
distress, negligence, and constitutional violations).
14
Wilkinson should just not be paid.” WKHB “stated that Wilkinson was not
entitled to be paid by law,” and these inaccurate “statements made publicly in open
court[] . . . resulted in the denial of Wilkinson’s fees being paid.” Wilkinson also
alleged that all the defamation occurred “during post-judgment collection matters
ongoing for the satisfaction of judgment in the underlying case.”
USAA’s and WKHB’s summary judgment evidence11 conclusively proves
that USAA’s and WKHB’s allegedly defamatory statements were made to the trial
court during the judicial proceeding in the underlying case. Further, the evidence
indicates that all of Wilkinson’s tort claims and damages essentially flow from her
allegation that USAA and WKHB through their participation and false statements
in the underlying case prevented Wilkinson from recovering her alleged interest in
the underlying judgment. See Laub v. Pesikoff, 979 S.W.2d 686, 691 (Tex. App.—
Houston [1st Dist.] 1998, pet. denied). According to Wilkinson’s own testimony,
the “gist” of her claims is that USAA argued and misrepresented to the trial court
“that property that is not theirs is theirs to distribute,” and based on those
arguments, the court incorrectly approved distributions to third parties. Further,
USAA defrauded her by “misrepresent[ing] the truth to the court in an effort to get
the court to turn over money to third parties to whom it was not owed, depriving
[her] of [her] property.” Wilkinson testified that WKHB has defamed her: “In
argument they have said that I don’t—I’m not entitled to my fees, that there is [sic]
all sorts of problems.” According to Wilkinson, the hearing transcripts show how
WKHB “just sort of delve into this gobbledegook in front of the judge, and the
judge apparently believed them.”
Thus, because USAA and WKHB established their right to summary
11
USAA relied on excerpts from Wilkinson’s deposition; WKHB relied on excerpts from
Wilkinson’s deposition, as well as the transcript of the July 22, 2011 hearing on Wilkinson’s
motion to release funds from the court registry.
15
judgment as a matter of law, the burden shifted, and we consider whether
Wilkinson presented evidence raising a material fact issue. See Walker, 924
S.W.2d at 377. However, even considering Wilkinson’s evidence in the light most
favorable to her, as we must, see Valence, 164 S.W.3d at 661, we cannot conclude
that she has raised a fact issue. Indeed, everything Wilkinson points to as
summary judgment evidence that involved some kind of communication or
representation made by either USAA or WKHB—including hearing transcripts,
letters, faxes, emails, motions, and court-ordered status reports—related to and was
generated in or as part of the post-judgment turnover and collection proceeding in
the underlying case.12 See Lane, 821 S.W.2d at 625. Because the essence of each
of Wilkinson’s claims for defamation,13 fraud, and breach of fiduciary duty is that
she suffered injury as a result of USAA’s and WKHB’s communication of
allegedly false statements during a judicial proceeding, we conclude that the
absolute privilege bars all of her tort claims.14 See de Mino, 2006 WL 1026933, at
12
Wilkinson also points to an expert affidavit and certain deposition testimony, which
she attached to her motion for new trial and formal bill of exception, in an attempt to raise a fact
issue on privilege and immunity. However, this court cannot consider evidence not on file at the
time the trial court ruled on the summary judgment motions. See Tex. R. Civ. P. 166a(c);
Gammill v. Fettner, 297 S.W.3d 792, 802 (Tex. App.—Houston [14th Dist.] 2009, no pet.); see
Mathis, 231 S.W.3d at 52. And Wilkinson does not appeal the trial court’s denial of her motion
for new trial. She also argues in her reply that she placed the substance of the deposition
testimony before the trial court at the summary judgment hearing, but no oral testimony may be
considered to support a summary judgment motion. See Tex. R. Civ. P. 166a(c).
13
Although not alleged as such in her live petition, Wilkinson in her response and on
appeal also purports to bring a business disparagement claim for publication of disparaging
words about her economic interests to third parties, namely, to the IRS, the Office of the
Attorney General, Williamson’s criminal defense attorney, and an attorney representing the
executor of the estate of Williamson’s deceased mother. However, regardless of how Wilkinson
labels her claim, the evidence establishes that the essence of her allegations is defamation in the
context of the underlying judicial proceeding, subject to absolute privilege. See Bird, 868
S.W.2d at 771–72.
14
Both USAA and WKHB would have this court affirm the application of the absolute
judicial proceedings privilege as to all of Wilkinson’s claims. However, we have not located any
Texas case extending the privilege beyond tort claims to contract claims. See Farah v. Mafrige
16
*2; Laub, 979 S.W.2d at 691–92. Therefore, the trial court did not err in granting
summary judgment, and we overrule Wilkinson’s second issue, as to USAA and
WKHB.
E. Derived judicial immunity, as to Morris and LRM
Morris and LRM moved for summary judgment on the traditional ground of
derived judicial immunity as an affirmative defense to all of Wilkinson’s claims. 15
Wilkinson does not dispute Morris’s position as court-appointed receiver nor does
she challenge the order appointing him; rather, she contends that merely being
appointed does not conclusively establish entitlement to derived judicial immunity
and that Morris abused his position and authority. We conclude that the trial court
properly could grant summary judgment for Morris and LRM as to Wilkinson’s
claims for defamation, fraud, breach of fiduciary duty, and DTPA violations based
on derived judicial immunity.
When judges delegate their authority or appoint others to perform services
for the court, the absolute judicial immunity barring civil liability that attaches to
the judge may follow the delegation or appointment. Dallas Cnty. v. Halsey, 87
& Kormanik, P.C., 927 S.W.2d 663, 674 (Tex. App.—Houston [1st Dist.] 1996, no writ) (“Tort
obligations are those imposed by law when a person breaches a duty which is independent from
promises made between the parties to a contract; contractual obligations are those that result
from an agreement between parties, which is breached.”). In an unpublished memorandum
opinion and order, the Southern District of Texas made an Erie determination that the judicial
proceedings privilege would not bar a breach-of-contract counterclaim. See Tulloch v.
JPMorgan Chase & Co., No. Civ.A. H-05-3583, 2006 WL 197009, at *3, 7 (S.D. Tex. Jan. 24,
2006) (unpublished). In any event, we already have determined that the trial court properly
granted summary judgment in favor of all the appellees as to Wilkinson’s breach-of-contract
claim.
15
WKHB alternatively raised derived judicial immunity as a traditional ground in its
hybrid motion based on its acting as counsel and as agent for Morris. Because this court already
has determined that summary judgment as to WKHB was proper, we do not address derived
judicial immunity as to WKHB. See Tex. R. App. P. 47.1; Carr, 776 S.W.2d at 569; Rea v.
Cofer, 879 S.W.2d 224, 227 (Tex. App.—Houston [14th Dist.] 1994, no writ).
17
S.W.3d 552, 554 (Tex. 2002); Davis v. West, 317 S.W.3d 301, 306–07 (Tex.
App.—Houston [1st Dist.] 2009, no pet.); Delcourt v. Silverman, 919 S.W.2d 777,
781 (Tex. App.—Houston [14th Dist.] 1996, writ denied). This is because the
policy reasons for judicial immunity—protection of individual judges and of the
public’s interest in an independent judiciary—are also implicated when judges
delegate their authority and appoint persons to perform services as officers of the
court. Davis, 317 S.W.3d at 306–07 (citing Halsey, 87 S.W.3d at 554). Officers of
the court who are integral parts of the judicial process, such as court-appointed
receivers, are entitled to such derived judicial immunity if they actually function as
an arm of the court. Delcourt, 919 S.W.2d at 782.
Texas uses a functional approach in determining whether a person is entitled
to absolute derived judicial immunity. Halsey, 87 S.W.3d at 556–57; Davis, 317
S.W.3d at 307; Delcourt, 919 S.W.2d at 782. Under the functional approach,
courts determine whether the activities of the person seeking immunity are
intimately associated with the judicial process and whether the person exercises
discretionary judgment comparable to a judge. Halsey, 87 S.W.3d at 554; Davis,
317 S.W.3d at 307; Delcourt, 919 S.W.2d at 782. “The functional approach
focuses on the nature of the function performed, not the identity of the actor, and
considers whether the conduct is like that of the delegating or appointing judge.”
Davis, 317 S.W.3d at 307 (citing Halsey, 87 S.W.3d at 555). Once a person is
cloaked with derived judicial immunity because of a particular function being
performed for a court, every action taken with regard to the function, whether good
or bad, honest or dishonest, well-intentioned or not, is covered and immune from
civil suit. Id. However, derived judicial immunity is lost when the court officer
acts in the clear absence of all jurisdiction and outside the scope of his authority.
See Clements v. Barnes, 834 S.W.2d 45, 46 (Tex. 1992).
18
Morris contends that, as the court-appointed receiver acting within the scope
of his authority, he is entitled to derived judicial immunity. See Davis, 317 S.W.3d
at 307 (gathering cases where court-appointed receivers were entitled to derived
judicial immunity). We agree.
Morris’s and LRM’s summary judgment evidence16 conclusively proves that
derived judicial immunity applies here. Within her petition, Wilkinson complains
of Morris’s behavior in connection with: his demand for the turnover of certain
assets held in trust for Williamson; his delays in collecting funds toward the
judgment; his entering into a rule 11 agreement relating to the recovery and
payment of funds; his moving for court approval of the agreement; his failure to
satisfactorily account for and protect assets; and his fraudulent transfers of funds.
In her deposition, Wilkinson acknowledged that she is suing Morris “for his
performance as the receiver”; that a receiver garners his authority from the court
order appointing him; that Morris serves as “an officer of the court in his capacity
as the receiver”; and that Morris had the trial court’s approval for all fund
disbursements.
As was the order in Davis, the trial court’s order appointing Morris as
substitute receiver “is extremely broad.” See id. at 307–08. Here, Morris:
is authorized, subject to control of this Court and with the express
purpose and intent to receive and distribute non-exempt assets of
Defendant Warren Reid Williamson to satisfy the judgment; to
minimize expenses and not interfere with Plaintiff’s current
representation by Plaintiff’s counsel herein; to assist collection of the
judgment to the extent requested by Plaintiff’s counsel; and subject to
the express purpose and intent of this Order, to do any and all acts
necessary to the proper and lawful conduct of the receivership . . . .
16
Morris and LRM relied on Wilkinson’s live petition, the trial court’s April 16, 2009
order appointing Morris as substitute receiver, and excerpts from Wilkinson’s deposition.
19
Such authorized acts included: receiving and disbursing Williamson’s funds and
property until the final judgment is paid; taking charge of and attending to
Williamson’s non-exempt property; and subject to the court’s further orders taking
charge of and managing Williamson’s finances until the judgment is paid.
Additional receiver powers “in order to protect the property and the parties’
interest in it as Receiver determines necessary for preservation of sale and sale of
the property” included:
 to sell property and apply proceeds, after deducting necessary
and proper expenses, to the payment of Williamson’s debt to
the plaintiff;
 to take possession and charge of Williamson’s property and
assets;
 to ask, demand, or bring suit to collect all sums of money and
“things of whatsoever nature or description which now or
hereafter shall be or become due, owing, payable or belonging
to” Williamson and upon receipt to deliver receipts, releases, or
discharges for the same;
 to commence, prosecute, or defend actions touching the subject
property, have all lawful ways and means for the collection of
any subject property, and make and deliver receipts and
releases;
 “[t]o lease, purchase, exchange and acquire and to bargain,
contract and agree for the lease, purchase and exchange and
acquisition of and to take, receive and possess any real or
personal property whatsoever . . . as the receiver deems
proper”;
 to sell or exchange any portion of the subject property “as the
receiver shall see fit”;
 “[t]o engage in and actively transact any and all lawful business
of whatever kind and nature for the subject property”;
 to assign or convey any part of the subject property into
existing trusts “as the receiver shall deem proper”;
20
 to deposit any monies coming to the subject property, “employ
or expend as receiver shall think fit,” and “withdraw, in the
payment of any debts, or interest payable by the subject
property, or taxes, assessments, insurance, and expenses”; and
 “[i]n general, to do all acts, deeds, matters and things
whatsoever in or about the subject property and affairs, . . .
either particularly or generally described, as fully and
effectually to all intents as will effect the purposes of the
appointment as receiver in this matter.”
Wilkinson makes a blanket assertion that the evidence shows Morris abused his
position and authority as receiver.17 However, even considering the evidence
properly presented18 in the light most favorable to Wilkinson, see Valence, 164
S.W.3d at 661, we cannot conclude that any of the challenged conduct is not
intimately associated with Morris’s court-appointed receiver function and
authority. See Davis, 317 S.W.3d at 307. Wilkinson’s evidence—consisting of
hearing transcripts, letters, faxes, emails, motions, and court-ordered status
reports—reveals that Morris pursued and recovered funds for the receivership
estate, updated the trial court on his progress, and sought court approval relating to
the recovery and disbursement of funds, including for Williamson’s debts and
taxes. While Wilkinson may disagree that these actions were correct, or even well-
intentioned, they fall squarely within the bounds of the trial court’s order. See id.
at 308. Further, the rule 11 agreement and disbursements were approved by the
trial court, providing further evidence that Morris functioned as an extension or
arm of the court. See Rehabworks, LLC v. Flanagan, No. 03-07-00552-CV, 2009
WL 483207, at *3 (Tex. App.—Austin Feb. 26, 2009, pet. denied) (mem. op.)
(derived judicial immunity applied where all complained-of acts “were done within
17
Wilkinson does not allege any independent acts or omissions by LRM.
18
As indicated above, we cannot consider any evidence not properly before the trial court
when it granted summary judgment. See supra footnote 12.
21
the context of the receivership action, which was ultimately overseen by the trial
court and subject to the court’s further rulings”).19
Accordingly, Wilkinson has not raised a fact issue and we conclude that the
trial court properly could grant summary judgment as a matter of law on Morris’s
and LRM’s defense of derived judicial immunity.20 See Davis, 317 S.W.3d at 308;
Walker, 924 S.W.2d at 377. We overrule Wilkinson’s second issue, as to Morris
and LRM.
F. Conversion and theft
Wilkinson only included one reference to “theft” within the venue and
parties section of her live petition: “Plaintiff alleges serious misconduct and theft.”
However, out of an abundance of caution, WKHB moved for no-evidence
summary judgment on any claims for conversion and theft, see Tex. Civ. Prac. &
Rem. Code §§ 134.001–134.005 (West 2011), arguing that no evidence exists as to
19
To the extent Wilkinson purports to rely on cases addressing the litigation privilege or
government official immunity, they have little application here in the context of derived judicial
immunity for a court-appointed receiver. Moreover, her other cited authority is distinguishable.
Unlike in Alpert v. Gerstner, Wilkinson does not complain of Morris’s actions in managing a
portfolio of stock, nor did the court order here provide that Morris was granted the duties of a
trustee. See 232 S.W.3d 117, 130–31 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)
(although receiver had immunity “to the extent that she was authorized, as a receiver of the
property in the Trusts, to take charge and keep possession of the Trust property,” as to her
actions in investing and managing stock portfolios, she acted as a representative for the trustee
beneficiaries and “not as an agent of the Court”); see also Conner v. Guemez, No. 02-10-00211-
CV, 2010 WL 4812991, at *3–4 (Tex. App.—Fort Worth Nov. 24, 2010, no pet.) (mem. op.)
(distinguishing Alpert for same).
20
Again, we already have determined that we must affirm summary judgment as to
Wilkinson’s breach-of-contract and vicarious liability claims in favor of all the appellees. Thus,
upholding the derived judicial immunity ground as to Morris’s conduct as court-appointed
receiver here bars all of Wilkinson’s other claims against Morris and LRM for defamation, fraud,
breach of fiduciary duty, and DTPA violations. See Conner, 2010 WL 4812991, at *4 (derived
judicial immunity barred breach-of-fiduciary-duty claim); Davis, 317 S.W.3d at 307 (same for
abuse-of-process claim); Rehabworks, 2009 WL 483207, at *3 (same for “money had and
received” and quantum meruit claims); Rea, 879 S.W.2d at 227 (same for DTPA violations).
22
one or more of all the specified elements. Within her response, Wilkinson
included a section entitled “There is Evidence of Fraud, Breach of Fiduciary Duty,
Defamation, Breach of Contract, Conversion and Theft.” Wilkinson cited to 16
pages of email correspondence between Potter and her as circumstantial evidence
of the appellees’ “stealing” of her fees but did not explain how that evidence
related to any challenged element of conversion or theft. Wilkinson also cited to
the entirety of her 80 summary judgment exhibits, totaling over 2600 pages,
ostensibly in support of how the appellees “converted” her property.
On appeal, Wilkinson shifts gears. Instead of pointing this court to any
specific summary judgment evidence sufficient to raise a fact issue on any element
of conversion or theft, she argues, without authority, that “preventively alleging
there is a right to summary judgment, either traditional or no-evidence, on a claim
that has not been made is improper.” First, we note that Wilkinson did not present
any such argument in her response. See Tex. R. App. P. 33.1. And even assuming
without deciding this argument is properly construed as a legal-sufficiency one that
need not be raised in the trial court to be preserved, see Rhone-Poulenc, 997
S.W.2d at 222–23, 225; Cuyler v. Minns, 60 A.W.3d 209, 212–13 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied), the essence of any conversion or theft
claim is that Wilkinson’s inability to recover her alleged property interest was the
result of allegedly false statements made during the underlying judicial proceeding.
See de Mino, 2006 WL 1026933, at *2 (citing Bird, 868 S.W.2d at 771–72). Even
if unpleaded, as Wilkinson now insists, we conclude that the judicial proceeding
privilege would bar such claims. See Attaya, 962 S.W.2d at 240 (absolute judicial
proceedings privilege “extends to all perceived torts or other causes of action,
whether plead or not plead”). Therefore, the trial court did not err in granting
summary judgment, and we overrule this subpart of Wilkinson’s first issue.
23
Because we otherwise have concluded that the trial court’s granting of
summary judgment in favor of all the appellees was proper, we need not address
the rest of Wilkinson’s first issue, nor her third and fourth issues. See Tex. R. App.
P. 47.1; Carr, 776 S.W.2d at 570.
III. CONCLUSION
Accordingly, we affirm the trial court’s judgment.
/s/ Marc W. Brown
Justice
Panel consists of Justices Boyce, Christopher, and Brown.
24