Danielle Armstrong-Briley v. Ronald Christopher Briley ( 2021 )

REVERSE AND REMAND and Opinion Filed September 21, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00452-CV
DANIELLE ARMSTRONG-BRILEY, Appellant
V.
RONALD CHRISTOPHER BRILEY, Appellee
On Appeal from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-18-05997
MEMORANDUM OPINION
Before Justices Schenck, Smith, and Garcia
Opinion by Justice Garcia
Danielle Armstrong-Briley (“Wife”) appeals the trial court’s dismissal with
prejudice of her suit against Ronald Christopher Briley (“Husband”). In four issues,
Wife argues that the trial court erred (i) in disqualifying her counsel’s firm because
Husband failed to prove that disqualification was required, (ii) by dismissing the suit
without providing Wife the opportunity to present evidence, (iii) in concluding that
Wife could not meet her burden of proof, and (iv) in concluding that jeopardy had
attached.
We conclude that Husband did not meet his burden to show that
disqualification was required, reverse the trial court’s judgment, and remand for
further proceedings consistent with this opinion.
I. BACKGROUND
Husband and Wife were divorced, and the final decree required that Husband
transfer certain assets and mineral documents to Wife. Wife alleged that Husband
failed to comply and initiated this action for contempt, enforcement, and clarification
of the decree.
At trial, Wife’s counsel called his firm’s paralegal to testify that the firm had
not received the documents. Husband’s counsel objected and moved to disqualify
Wife’s firm based on TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a). Specifically,
Husband’s counsel argued that disqualification was required because the paralegal
was a necessary witness in the case. The trial court disqualified Wife’s counsel and
dismissed the parties from the courtroom.
Wife obtained new counsel who entered an appearance on December 17,
2019, but no further proceedings occurred. On January 10, 2020, the court entered a
final judgment dismissing Wife’s action with prejudice and finding that Wife could
not meet her burden of proof. Wife now appeals from that judgment.1
1
Husband argues we have no jurisdiction because the appeal is from the denial of a contempt order.
The contempt issue, however, was dismissed prior to the entry of final judgment, and the final judgment
disposes of all parties and claims. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192–93 (Tex. 2001)
(absent a conventional trial, a judgment is final if it disposes of all parties and claims or states with
unmistakable clarity that it is a final judgment).
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II. ANALYSIS
Wife’s first issue argues that Husband did not meet his burden to show that
disqualification was required. We agree.
We review a trial court’s ruling on a motion to disqualify for an abuse of
discretion. Hendricks v. Barker, 523 S.W.3d 152, 157 (Tex. App.—Houston [14th
Dist.] 2016, no pet.). In so doing, we consider whether the trial court acted in an
arbitrary or unreasonable manner, or without reference to any guiding rules or
principles. Id. A trial court also abuses its discretion if it fails to analyze or apply the
law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Thus, the trial
court’s failure to apply the proper legal standard to a motion to disqualify counsel
constitutes an abuse of discretion. Cimarron Agricultural, Ltd. v. Guitar Holding,
L.P., 209 S.W.3d 197, 203 (Tex. App. — El Paso 2006, no pet.).
Husband’s motion to disqualify was based on Disciplinary Rule 3.08 (a). This
rule was promulgated as a disciplinary standard rather than one of procedural
disqualification, but the Texas Supreme Court has recognized that the rule provides
guidelines relevant to a disqualification determination. Anderson Producing Inc. v.
Koch Oil Co., 929 S.W.2d 416, 421 (Tex.1996) (citing Ayres v. Canales, 790 S.W.2d
554, 556 n. 2 (Tex.1990)). The rule provides:
(a) A lawyer shall not accept or continue employment as an advocate
before a tribunal in a contemplated or pending 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,
unless:
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(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is
no reason to believe that substantial evidence will be offered in
opposition to the testimony;
(3) the testimony relates to the nature and value of legal services
rendered in the case;
(4) the lawyer is a party to the action and is appearing pro se; or
(5) the lawyer has promptly notified opposing counsel that the lawyer
expects to testify in the matter and disqualification of the lawyer would
work substantial hardship on the client.
TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a).
It is well established that “[d]isqualification is a severe remedy.” Spears v.
Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex.1990). Disqualification is a
measure that can cause immediate harm by depriving a party of its chosen counsel
and disrupting court proceedings. In re Nitla S.A. de C.V., 92 S.W.3d 419, 423 (Tex.
2002). Thus, “[m]ere allegations of unethical conduct or evidence showing a remote
possibility of a violation of the disciplinary rules will not suffice” to merit
disqualification. Spears, 797 S.W.2d at 656. Moreover, that a lawyer serves as both
an advocate and a witness does not in itself compel disqualification. See Ayres, 790
S.W.2d at 557–58; In re Chu, 134 S.W.3d 459, 464 (Tex. App.—Waco 2004, orig.
proceeding).
Disqualification is only appropriate if the lawyer’s testimony is “necessary to
establish an essential fact.” TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a).
Consequently, the party requesting disqualification must demonstrate that the
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opposing lawyer’s dual roles as attorney and witness will cause the party actual
prejudice. Ayres, 790 S.W.2d at 558. Without these limitations, the rule could be
improperly employed “as a tactical weapon to deprive the opposing party of the right
to be represented by the lawyer of his or her choice.” TEX. DISCIPLINARY R. PROF’L
CONDUCT 3.08(a) cmt. 10 (stating that a lawyer “should not seek to disqualify an
opposing lawyer by unnecessarily calling that lawyer as a witness”).
“Rule 3.08 is grounded principally on the belief that the finder of fact may
become confused when one person acts as both advocate and witness.” Anderson
Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416, 422 (Tex. 1996) (citing TEX.
DISCIPLINARY R. PROF’L CONDUCT 3.08 cmt. 4 (1989); Ayres, 790 S.W.2d at 557 n.
4). “A witness is required to testify on the basis of personal knowledge, while an
advocate is expected to explain and comment on evidence given by others. It may
not be clear whether a statement by an advocate-witness should be taken as proof or
as an analysis of the proof.” TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08 cmt. 4
(1989). The rule reflects the concern that an opposing party may be handicapped in
challenging the credibility of a testifying attorney. See Ayres, 790 S.W.2d at 557 n.
4.
Neither party addresses whether the rule applies to paralegals. See, e.g., In re
Reeder, 515 S.W.3d 344, 354 (Tex. App.—Tyler 2016, no pet.) (nothing in plain
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language of the rule indicates that it applies to paralegals).2 But we need not decide
that question here. See TEX. R. APP. P. 47.1. Assuming without deciding that the rule
applies, Husband did not meet his burden to show that disqualification was required.
As Wife’s counsel explained to the trial court, the paralegal was not a
necessary witness, and her testimony was not required to prove Wife’s case. Indeed,
the paralegal’s testimony was offered only to demonstrate that documents requested
from opposing counsel had not been received. Counsel explained to the court that
neither he nor his paralegal needed to testify, and he could prove his case through
his expert witness and his client.
In response, Husband offered nothing to support the conclusion that the
paralegal would testify to an essential fact on which the Wife had the burden of
proof. Husband argued generally that the paralegal was an essential witness based
on her proffered testimony about the document production. Husband’s counsel’s
failure to produce documents, however, does not establish that Husband violated the
terms of the decree. Likewise, on appeal, Husband does not explain how the
paralegal’s testimony about document production concerned anything of substance
or was more than a formality.
2
Father argues that the rule applies to paralegals because Rule 5.03 holds paralegals to the same standards
as attorneys. We disagree. Rule 5.03 provides that attorneys have a duty to supervise paralegals. TEX.
DISCIPLINARY R. PROF’L CONDUCT 5.03.
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In this trial to the bench, it is not clear how a paralegal’s testimony about
document production might confuse the fact finder about the firm’s role as an
advocate. The trial court, having been presented no evidence of the necessity of the
paralegal’s testimony, could not reasonably have concluded that the paralegal’s
testimony was essential to establish an essential fact of Wife’s case.
Wife’s first issue is sustained. Our resolution of this issue obviates the need
to consider Wife’s remaining issues. See TEX. R. APP. P. 47.1.
III. CONCLUSION
We reverse the trial court’s judgment and remand the case for further
proceedings consistent with this opinion.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
200452F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DANIELLE ARMSTRONG- On Appeal from the 255th Judicial
BRILEY, Appellant District Court, Dallas County, Texas
Trial Court Cause No. DF-18-05997.
No. 05-20-00452-CV V. Opinion delivered by Justice Garcia.
Justices Schenck and Smith
RONALD CHRISTOPHER participating.
BRILEY, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and this cause is REMANDED to the trial court for further
proceedings consistent with this opinion.
It is ORDERED that appellant DANIELLE ARMSTRONG-BRILEY
recover her costs of this appeal from appellee RONALD CHRISTOPHER
BRILEY.
Judgment entered September 21, 2021.
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