John D. Richardson v. Michael J. Darlow and Perdue, Brandon, Fielder, Collins & Mott, LLP ( 2005 )

Affirmed and Memorandum Opinion filed February 8, 2005

Affirmed and Memorandum Opinion filed February 8, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00830-CV

____________

JOHN D. RICHARDSON, Appellant

V.

MICHAEL J. DARLOW AND PERDUE, BRANDON, FIELDER, COLLINS & MOTT, L.L.P., Appellees

On Appeal from the 56th Judicial District Court

Galveston County, Texas

Trial Court Cause No. 99CV0935-A

M E M O R A N D U M  O P I N I O N

Appellant John D. Richardson appeals the trial court=s summary judgment in favor of appellees.  Appellant=s claims stem from the foreclosure judgment and sale of his real property for delinquent taxes.  We affirm.

Factual and Procedural Background

In 1992, Dickinson Independent School District (AD.I.S.D.@) filed suit against appellant for non-payment of delinquent property taxes, penalties, interest, and costs owed by appellant and sought to foreclose on its tax liens (the Atax foreclosure suit@).  Appellees, the law firm of Perdue, Brandon, Fielder, Collins & Mott, L.L.P., and Michael Darlow, a partner in the law firm, represented D.I.S.D. and two other taxing entities, the Galveston County Education District and the San Leon Municipal Utility District, that joined in the tax foreclosure suit.

          On their clients= behalf, appellees attempted to personally serve appellant with the tax foreclosure suit.  However, after several unsuccessful attempts at personal service, in July 1994, appellees requested that appellant be served with citation by publication.^[1]  Appellant was served with citation by publication but did not appear and answer the tax foreclosure suit.  The trial court appointed an attorney ad litem to represent appellant in the suit. In 1997, the trial court entered a judgment against appellant and in favor of the four taxing entities for delinquent taxes, and appellant=s real property was judicially foreclosed upon and sold to satisfy the judgment. 

Upon learning of the foreclosure judgment and sale of his property, appellant filed this lawsuit in 1999 against appellees, the taxing entities, and the individual who had purchased the property.  In his fourth amended petition, appellant essentially alleges D.I.S.D. and the appellees executed false affidavits, caused a state court to authorize citation by publication, and, on the basis of such citation, caused a judgment to be rendered against him without allowing him an opportunity to have a court hearing.  Specifically, appellant asserts common law fraud and claims alleging violations of 42 U.S.C. section 1983 against appellees and D.I.S.D.; a negligent misrepresentation claim against appellees; and a bill of review action against D.I.S.D.

Appellees filed a motion for summary judgment and no-evidence summary judgment based on the following grounds:

1.       Absolute privilege extends to judicial proceedings including any statement made by counsel;

2.       Attorneys cannot be held liable for wrongful litigation conduct; and

3.       [Appellant] failed to produce any evidence to show [appellees] Darlow and [the law firm] engaged in common law fraud, negligent misrepresentation or a civil rights violation under 42 U.S.C. section 1983.

The trial court granted a partial summary judgment in favor of appellees without stating the grounds and dismissed appellant=s claims against the appellees with prejudice.  The trial court severed the partial summary judgment into a separate cause number, 99CV0935-A.  The very same day, the trial court also granted a separate partial summary judgment in favor of D.I.S.D.  

Appellant filed a late notice of appeal Afrom the Partial Summary Judgment signed by [the trial] court on May 21, 2003, granted in favor of Michael J. Darlow and Perdue, Brandon, Fielder, Collins & Mott, L.L.P., severed from 99CV-0935 and assigned the separate cause number of 99CV-0935-A.@  We granted appellant=s motion to extend time to file a late notice of appeal. 

Discussion

On appeal, appellant complains the foreclosure judgment on his property should have been vacated because it is void due to lack of jurisdiction and extrinsic fraud.  Appellant specifically raises two issues, complaining the affidavit used as a basis for citation by publication in the tax foreclosure suit is invalid because it is (1) conclusory and (2) false.

Appellant=s appellate arguments are directed at his bill of review action alleged against D.I.S.D. in which appellant sought to have the judgment of foreclosure on his property vacated on the ground of extrinsic fraud.^[2]  Appellant=s arguments on appeal are not directed at the summary judgment granted in favor of appellees, and this is confirmed by a review of appellant=s brief and the appellate record.  This is so despite appellant explicitly having been given a second chance by this court to brief the merits of the summary judgment in favor of appellees.^[3] 

Appellees contend appellant=s refusal to brief the merits of the summary judgment granted in their favor constitutes waiver of any argument in opposition to the summary judgment on appeal.  We agree that grounds of error not asserted in the court of appeals are waived.  See Tex. R. App. P. 38.1(e), (h); Jacobs v. Satterwhite, 65 S.W.3d 653, 655B56 (Tex. 2001) (per curiam) (holding appellate court may not reverse a summary judgment on a basis not raised by the appellant on appeal). Nowhere in his brief does appellant challenge the specific grounds on which appellees sought and obtained summary judgment in the trial court.^[4]  Instead, appellant focuses his arguments on the merits of his bill of review claim alleged against D.I.S.D., who is not a party to this appeal. 

The trial court did not specify a basis for its ruling on the motion for summary judgment; thus, on appeal, appellant is required to show that each of the independent grounds asserted in support of summary judgment was insufficient to support the trial court=s ruling.  Star‑Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).  In his brief, appellant does not complain of the summary judgment rendered in favor of appellees on his negligent misrepresentation, fraud, and section 1983 claims, nor has appellant shown that any of the traditional or no-evidence grounds asserted in the appellees= motion for summary judgment are insufficient. Therefore, we conclude any objection to the summary judgment has been waived. 

Moreover, despite appellant=s failure to assign error on appeal to the summary judgment in favor of appellees, applying the familiar standards of review, we conclude summary judgment in favor of appellees was proper.  See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215B16 (Tex. 2003); Dolcefino v. Randolph, 19 S.W.3d 906, 916B 17 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  First, the conduct complained of by appellant involves acts or omissions appellees undertook as part of the discharge of their duties as counsel to an opposing party and is not actionable.^[5]  See Chapman Children=s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 441 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) (holding Aan attorney=s conduct is not actionable even if it is frivolous or without merit as long as the attorney=s alleged conduct was part of discharging his duties in representing his client@).  Second, appellees moved for a no-evidence summary judgment on each of their claims, and appellant failed to respond to the no-evidence motion with evidence raising a fact issue on the essential elements of his negligent misrepresentation, fraud, and section 1983 claims.  Therefore, we conclude the trial court did not err in granting summary judgment in favor of appellees.

The judgment of the trial court is affirmed.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed February 8, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

---

^[1]  This method of service is curious inasmuch as in 1993, appellant received tax statements mailed by Galveston County to his correct address, a P.O. Box in Corpus Christi, Texas, and he continued to receive mail from Galveston County at that address through 1997.  Similarly, in 1994, appellant received tax statements mailed by D.I.S.D. to the same P.O. Box and continued to receive mail from the school district at that address through 1998.

^[2]  In his appellate brief, appellant cites to allegations made in his fifth amended petition.  This petition was filed two days after the trial court signed the partial summary judgments in favor of appellees and D.I.S.D.

^[3]   Appellant initially filed an appellant=s brief challenging the trial court=s summary judgment in favor of D.I.S.D. and included D.I.S.D. as an appellee in this appeal. In response, D.I.S.D. filed motions to dismiss the appeal.  We denied D.I.S.D.=s motions to dismiss because there is no appeal by appellant of the summary judgment order in favor of D.I.S.D., and thus, no appeal to dismiss.  Because appellant=s brief was not in compliance with the rules, we specifically ordered appellant to file an amended brief challenging the order granting summary judgment in favor of appellees.

^[4]  For example, attached to appellant=s brief is the partial order of summary judgment granted in favor of D.I.S.D. instead of the order granted in favor of appellees.

^[5]  Darlow avers in affidavits attached to the appellees= motion for summary judgment that he and the law firm attempted to serve appellant with citation three times, at different addresses, to no avail, and that he made further inquiry using other means but was unable to obtain any other information regarding appellant=s whereabouts. Darlow states, AIt was only after a diligent inquiry as to [appellant=s] whereabouts did I execute an affidavit requesting citation of service by posting.@