Deana Pollard Sacks v. Brian Weil Zimmerman and Andrew Todd McKinney, IV , 401 S.W.3d 336 ( 2013 )

Affirmed and Opinion filed April 4, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00115-CV
DEANA POLLARD SACKS, Appellant
V.
BRIAN WEIL ZIMMERMAN AND ANDREW TODD MCKINNEY, IV,
Appellees
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2009-06612A
OPINION
Appellant Deana Pollard Sacks challenges the trial court‘s summary
judgments in favor of appellees Brian Weil Zimmerman and Andrew Todd
McKinney, IV. Zimmerman and McKinney have served as counsel for the
defendants in underlying litigation in which Sacks is suing numerous parties. The
trial court entered a take-nothing judgment as to Sacks‘ invasion of privacy claims
against Zimmerman and McKinney and severed those claims from the remainder
of the case. In five issues, Sacks asserts that the trial court erred by preventing her
from conducting discovery, denying her motion for continuance of the summary-
judgment hearing, hearing the summary-judgment motions instead of the special
exceptions filed by Zimmerman and McKinney, granting summary judgment to
Zimmerman and McKinney, and holding that Zimmerman and McKinney were
immune from civil liability for intentional torts. We affirm.
BACKGROUND
In October 2008, Sacks‘ membership from a local fitness club, Houstonian
Campus, LLC (the ―Houstonian‖), was terminated. Thereafter, in early 2009, she
sued the Houstonian, two named employees—Colleen Kennedy and Angelica
Ximenez, and several unnamed employees, alleging they had been involved in
perpetrating a scheme to terminate her membership (the ―Houstonian suit‖).
McKinney was retained by the Houstonian and Kennedy to represent them and
answered on their behalf in March 2009. Ximenez retained Zimmerman, who
answered on her behalf in March 2009. Over the next two years, Sacks‘ claims in
the Houstonian suit expanded to include other members of the Houstonian as
defendants and additional allegations of invasion of privacy, defamation,
conversion, violations of the deceptive trade practices act, assault by threat, and
false imprisonment. Zimmerman and McKinney continued to represent the
Houstonian, Kennedy, and Ximenez throughout the permutations of the lawsuit. In
August 2011, Sacks filed a fifth amended petition in the Houstonian suit, adding
invasion of privacy claims against Zimmerman and McKinney, alleging that they
had obtained or used her medical records in violation of her privacy rights.
Specifically, Sacks asserted that
the conduct attributed to . . . Zimmerman and McKinney is limited to
invasion of privacy related to their improper acquisition and/or use of
2
confidential medical records and medical information . . . which was
an independent tort and which was independent of the action an
attorney would ordinary undertake on behalf of a client.
She alleged that Zimmerman and McKinney were engaging in ―improper
[litigation] conduct‖ by attempting to obtain her confidential medical records. She
asserted that they had violated her privacy rights and that their behavior
―implicate[d] the criminal provisions of the Health Insurance Portability and
Accountability Act of 1996 (‗HIPAA‘) and/or The Health Information Technology
for Economic and Clinical Health Act (‗HITECH‘) and/or other federal criminal
provisions.‖ She further alleged that, although their ―legal‖ efforts to obtain a copy
of her medical records had failed, they had already obtained an ―illegal‖ copy of
her these records from Greg Travis, an attorney representing a defendant in a
different case brought by Sacks.
Both Zimmerman and McKinney answered, asserting the affirmative
defense of the ―litigation privilege‖ or qualified immunity. They each filed special
exceptions and summary-judgment motions, asserting, as is relevant here, that they
were qualifiedly immune from Sacks‘ suit against them because she was seeking to
hold them liable for their litigation conduct in a pending suit. Sacks responded,
arguing that ―Texas law is clear that a plaintiff can sue opposing counsel for
common law invasion of privacy arising from their misconduct in circumventing
proper judicial processes to obtain her privileged medical documents because they
knew that they were not properly discoverable in the underlying invasion of
privacy and defamation lawsuit.‖
The trial court heard Zimmerman‘s and McKinney‘s special exceptions and
summary-judgment motions on October 24, 2011. After hearing the argument of
counsel, the trial court granted summary judgment in favor of Zimmerman and
McKinney, ordering that Sacks take nothing and dismissing her claims against
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them with prejudice.1 The summary judgment order was signed on November 14,
2011; that same day, the trial court signed an order severing the claims and causes
of action by Sacks against Zimmerman and McKinney from the Houstonian suit,
rendering the summary judgment order final and appealable. Sacks filed a motion
to reconsider combined with a motion to correct or reform the trial court‘s
judgment, which was overruled by operation of law. She timely appealed.
ANALYSIS
Sacks presents five issues for review. However, the dispositive issue before
this court is whether, under the circumstances presented in this case, Zimmerman
and McKinney were qualifiedly immune from suit. Thus, we first address Sacks‘
1
The summary judgment order states,
On this the 24th day of October, 2011 came on to be heard the following
Motions:
1. Defendant Brian Zimmerman‘s First Amended Motion for Summary
Judgment; Defendant Brian Zimmerman‘s Special Exceptions, Motion to
Dismiss, and Motion for Sanctions; and
2. Defendant Andrew McKinne‘'s Plea to the Jurisdiction, Special
Exceptions, Alternative Motion for Summary Judgment and Motion to
Sever[.]
The Court, having considered the motions, all responses thereto, evidence
presented by the parties, and arguments and authorities presented by all parties,
finds as follows:
Defendant Brian Zimmerman‘s First Amended Motion for Summary
Judgment is GRANTED.
Defendant Andrew McKinney‘s Motion for Summary Judgment is
GRANTED.
Plaintiff‘s objections to the affidavits of Messrs. Travis, Zimmerman and
McKinney are overruled. Defendant McKinney‘s objections to the affidavit of
Mr. Sacks are likewise overruled.
The other motions filed on behalf of Mr. Zimmerman and Mr. McKinney and
presently before the Court are deemed moot based on the Court‘s ruling on the
summary judgment motions.
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fourth issue: whether the trial court erred in granting summary judgment in
Zimmerman‘s and McKinney‘s favor.
A. Standard of Review and Governing Law
Summary judgment is proper when all elements of an affirmative defense
are established as a matter of law. See Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d
910, 911 (Tex. 1997); Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32
S.W.3d 429, 435 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). In
reviewing the trial court‘s summary judgment, we take all evidence favorable to
Sacks as true and indulge every reasonable inference in her favor. Id. Where, as
here, the trial court does not specify the grounds for its judgment, we may affirm if
any of the grounds advanced within motion are meritorious. See Chapman
Children’s Trust, 32 S.W.3d at 435.2
Generally, an attorney has immunity from claims by an opposing party
based upon conduct the attorney undertook in the representation of a client. James
2
In Sacks‘ third issue, she asserts that the trial court erred in hearing Zimmerman‘s and
McKinney‘s summary judgment motions rather than special exceptions. As noted above, the
trial court actually heard the parties‘ special exceptions at the same hearing as it heard their
summary-judgment motion. Sacks further claims that Zimmerman and McKinney evaded the
protective features of special exceptions procedures. A party should not circumvent the
protective features of the special exception procedure by urging a motion for summary judgment
on the pleadings or by other means when a plaintiff‘s pleadings fail to state a claim. Centennial
Ins. Co. v. Commercial Union Ins. Cos., 803 S.W.2d 479, 482 (Tex. App.—Houston [14th Dist.]
1991, no writ). When, however, a defendant argues and presents summary-judgment proof
establishing that the plaintiff has no viable claim, summary judgment is not on the pleadings, and
the law requires neither special exceptions nor a remand so that the appellant may replead. See
Huffine v. Tomball Hosp. Auth., 979 S.W.2d 795, 802 (Tex. App.—Houston [14th Dist.] 1998,
no pet.). With regard to Sacks‘ invasion-of-privacy claim, Zimmerman and McKinney asserted
their affirmative defense of qualified immunity, i.e., the litigation privilege. As in Huffine,
summary judgment was not on the pleadings; it was based on an affirmative defense that
established that Sacks had no viable claim. Cf. id. (holding, affirming summary judgment, that
when a hospital established that appellant had no viable claims in its summary-judgment motion,
neither special exceptions nor a remand for repleading were required). Thus, the trial court
correctly granted their summary-judgment motions without providing Sacks with the opportunity
to replead. Accordingly, we overrule her third issue.
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v. Easton, 368 S.W.3d 799, 802 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
However, this ―litigation immunity‖ does not apply to alleged torts based on the
attorney‘s fraudulent or malicious conduct. Id.; see also Poole v. Houston & T.C.
Ry., 58 Tex. 134, 137 (1882) (holding that attorneys acting on behalf of their
clients are not shielded from liability for their fraudulent conduct because
fraudulent acts are ―entirely foreign to the duties of an attorney‖); Toles v. Toles,
113 S.W.3d 899, 911–12 (Tex. App.—Dallas 2003, no pet.) (holding that attorney
who represented former husband in divorce action was not immune from claim of
former wife alleging attorney aided and abetted a breach of fiduciary duty by the
receiver in the underlying litigation); Querner v. Rindfuss, 966 S.W.2d 661, 666–
70 (Tex. App.—San Antonio 1998, pet. denied) (determining attorney in probate
litigation was not immune from liability for alleged conspiracy to engage in fraud);
Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex. App.—Houston
[1st Dist.] 1985, no writ) (holding that attorney may be liable to opposing party in
a transaction for conspiracy to defraud the opposing party because attorney
immunity does not apply to attorney‘s allegedly fraudulent or malicious conduct);
Lackshin v. Spofford, No. 14–03–00977–CV, 2004 WL 1965636, at *3 (Tex.
App.—Houston [14th Dist.] Sept. 7, 2004, pet. denied) (mem. op.). (noting that,
though attorneys owe no general negligence duty to opposing parties, they may be
subject to liability to nonclients, including opposing parties, based on their
fraudulent or malicious conduct, even if the attorneys‘ conduct was in the course of
representing their client).
B. Application
Sacks alleged that Zimmerman and McKinney committed the intentional tort
of invasion of privacy. We thus consider whether Sacks‘ allegations of invasion of
privacy fall into the class of torts recognized by Texas involving fraudulent or
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malicious conduct so as to preclude Zimmerman and McKinney from litigation
immunity. We conclude that that her claims do not.3
According to Sacks‘ summary-judgment response, the behavior about which
Sacks complains is the following. Zimmerman and McKinney were friends with
an attorney, Greg Travis, who represented a dentist against whom Sacks had filed a
medical malpractice suit before the suit Sacks filed against the Houstonian. The
attorneys who represented Sacks in that lawsuit, David Sacks and Chris
DiFerrante,4 had lunch with Travis in mid-July 2009. At this lunch meeting, Travis
stated to Sacks‘ attorneys that he was friends with Zimmerman and McKinney and
that he had discussed the cases with them, i.e., the Houstonian case and the dental
malpractice case. Sacks alleges that Zimmerman and McKinney traded litigation
documents with Travis. Sacks asserts in her summary-judgment response that, in
August 2009, Zimmerman and McKinney began to seek access to Sacks‘ medical
records, and, later, her dental records. She asserts that the only inference that can
be drawn from this behavior is that Travis, who had access to her medical records,
provided them to Zimmerman and McKinney.
According to David Sacks, who filed an affidavit with Sacks‘ summary-
judgment response, Travis produced documents in discovery in the dental
malpractice case that included documents from the case against the Houstonian. In
this affidavit, he states that these documents ―appear‖ to be from Zimmerman‘s
litigation files, although all of them were available from other sources, including
either the Harris County District Clerk‘s office or Mr. Sacks himself. He further
3
In her summary-judgment response, Sacks also alleged that Zimmerman and McKinney
―conspired‖ to invade her privacy. However, conspiracy is a derivative claim. If summary
judgment was appropriate on her invasion of privacy claim, then it was likewise appropriate on
this derivative claim. See Trinh v. Lang Van Bui, No. 14-11-00442-CV, 2012 WL 5378112, at
*9 (Tex. App.—Houston [14th Dist.] Nov. 1, 2012, pet. filed) (mem. op.).
4
David Sacks is Sacks‘ husband.
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states that Travis produced an affidavit from Colleen Kennedy, which was part of
the Houstonian‘s response in a Rule 202 proceeding that was initially publicly
filed, but then ordered sealed by the trial court. David Sacks asserts in his affidavit
that ―it is likely that the Kennedy affidavit came from Mr. McKinney but it could
have come from Mr. Zimmerman through Mr. McKinney.‖ (emphasis added). Mr.
Sacks concludes his affidavit as follows: ―It appears that Messrs. Travis,
Zimmerman, and McKinney had been sharing information back and forth among
the three cases, including the Rule 202 proceeding [between the Sacks family and
the Houstonian] that was sealed by order of the 129th Judicial District Court.‖
(emphasis added).
Much of Sacks‘ support for her invasion of privacy complaint arises from
statements made by Zimmerman in motions to compel and hearings on these
motions to compel in which he sought to have Sacks completely respond to the
following interrogatories:5
INTERROGATORY NO. 11:
Please state whether you were taking any medication, whether over
the counter or prescription, within the year preceding the incident
made that [sic] of this lawsuit. If so, please describe with particularity
the medication, the dosage, who prescribed the medication, where
such prescription was filled and the dates on which the medication
was consumed and the dates of purchase.
RESPONSE:
Plaintiff objects that this request is neither relevant nor
reasonably calculated to lead to the discovery of admissible evidence.
5
McKinney did not file these motions or propound these interrogatories. However, at an
October 19, 2009 hearing on a motion in which Zimmerman stated that he was seeking Sacks‘
dental records on behalf of his client, McKinney proposed that the trial court review the records
under a ―protective order‖ to determine if there is something that may be relevant to the
Houstonian case. Thus, Sacks asserts that McKinney ―joined‖ in Zimmerman‘s attempt to
illegally obtain her medical records and ―invade her privacy.‖
8
Plaintiff further objects that this request is over broad, burdensome,
harassing and is merely a fishing expedition.
INTERROGATORY NO. 12:
Please identify by name and address all physicians, psychiatrists,
and/[o]r psychologists whom you have seen in the preceding ten (10)
[years] and . . . the reason for your having seen that provider.
RESPONSE:
Plaintiff objects that this request is neither relevant nor
reasonably calculated to lead to the discovery of admissible evidence.
Plaintiff further objects that this request is over broad, burdensome,
harassing and is merely a fishing expedition.
As is clear from David Sacks‘ affidavit and Sacks‘ summary-judgment response,
all of the conduct about which she complains is behavior that Zimmerman and
McKinney allegedly undertook as part of their discovery in the Houstonian case.
Courts have consistently held that attorneys should not be liable for
statements made or actions taken in the course of representing their clients,
because they would then be forced to balance their own potential exposure against
their clients‘ best interests. See, e.g., Toles, 113 S.W.3d at 910; see also Chapman
Children’s Trust, 32 S.W.3d at 440, 442 (―The conduct complained of here, unlike
the role played by the lawyer in Likeover [in which an attorney had assisted his
client in perpetrating a fraud], involves acts or omissions undertaken as part of the
discharge of Porter & Hedges‘s duties as counsel to an opposing party.‖); White v.
Bayless, 32 S.W.3d 271, 275–76 (Tex. App.—San Antonio 2000, pet. denied)
(stating that, under Texas law, attorneys are not liable for wrongful litigation
conduct because doing so would ―dilute the vigor‖ with which they represent their
clients and would not ―be in the best interests of justice‖); Bradt v. West, 892
S.W.2d 56, 71–72 (holding that because an attorney is charged with the duty of
zealously representing clients within the bounds of the law, in fulfilling that duty
the attorney may ―interpose any defense or supposed defense and make use of any
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right in behalf of such client or clients as [the attorney] deem[s] proper and
necessary, without making himself subject to liability in damages‖). This rule is
vital to our adversarial system of justice. See Toles, 113 S.W.3d at 910; Chapman
Children’s Trust, 32 S.W.3d at 440; Bradt, 892 S.W.2d at 71.
Sacks has not identified any conduct that is fraudulent or ―entirely foreign to
the duties of an attorney.‖ See Poole, 48 Tex. at 137–38. Rather, she relies on
statements made in motions and hearings on these motions. She admits in her
summary-judgment response that an attorney cannot be liable to an opposing party
―for filing motions, even if that filing is frivolous or without merit, because making
motions is conduct an attorney engages in as part of the discharge of his
duties. . . .‖ (citation and internal quotations omitted). Moreover, an invasion-of-
privacy claim is not one of the recognized types of behavior that falls into the
category of fraudulent or malicious conduct identified by courts of this state. Cf.
Toles, 113 S.W.3d at 912 (expressly holding that an invasion of privacy claim is
not a legally cognizable claim as against opposing counsel); see also Alpert v.
Crain, Caton & James, P.C., 178 S.W.3d 398, 405–06 (Tex. App.—Houston [1st
Dist.] 2005, pet. denied) (discussing qualified immunity and noting that it
generally applies even if conduct is ―wrongful in the context of the underlying
lawsuit‖). Indeed, the conduct about which Sacks complains is the type of conduct
in which attorneys routinely engage when zealously defending their clients: they
conduct discovery to assist in representing their clients in pending litigation, often
hiring investigators to inquire into many aspects of an adversary‘s life. Cf. Alpert,
178 S.W.3d at 406 (noting that an attorney‘s actions, even if ―frivolous or without
merit,‖ are not independently actionable if the conduct is part of the discharge of
the lawyer‘s duties in representing his client).
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We in no way condone the acquiring of any person‘s private medical records
through illegitimate means. But there is simply no evidence of such an
acquisition‘s having occurred here—rather there is mere speculation on Sacks‘ part
based largely on statements made by Zimmerman and McKinney. These
statements were made in discovery motions and hearings in which Zimmerman
sought to compel Sacks to answer previously filed discovery requests. These
discovery requests concerned Sacks‘ state of mind at the time of the incident that
led to the termination of her membership at the Houstonian—the incident that
initiated the Houstonian suit. All of the statements Zimmerman and McKinney
made upon which Sacks relies to support her invasion of privacy claim were made
as part of the discovery process.6 In other words, Zimmerman and McKinney
made these statements and filed these motions while they were discharging their
6
Texas Rule of Civil Procedure 166a expressly forbids the taking of oral testimony at a
summary-judgment proceeding. Tex. R. Civ. P. 166a(c) (―No oral testimony shall be received at
the hearing.‖). Accordingly, there is no need to create a record of any hearing. See City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979). However, here, we have
a record from the summary-judgment hearing. As there are many issues in the underlying
Houstonian suit about which we are unfamiliar, it was instructive to review the record from this
hearing. The trial court is necessarily more familiar with the proceedings in the underlying
Houstonian suit than are we.
At this hearing, the trial judge recalled that one of the numerous complaints filed by a
member against Sacks that led to the termination of her Houstonian membership—and the
initiation of her suit against the Houston and the various other defendants—arguably could have
triggered Zimmerman‘s interest in Sacks‘ medical records. During the hearing, the trial judge
further expressed the following concern regarding a lawyer‘s investigation of a legitimate
defensive issue:
But we‘re talking about whether or not you have a cognizable cause of action in
the State of Texas, where someone is doing an investigation on behalf of what is a
relevant defense in this case, and asked questions and they get answers, but they
may or may not have supposed to have been given that information, and whether
or not you can file suit on that, on those, on that kind of fact scenario and say that
they invaded my client‘s privacy.
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duties in representing their clients.7 Sacks was not ordered to produce her medical
records in this case. If she had any evidence that opposing counsel were abusing
the discovery process, discovery sanctions would be available to her. See Tex. R.
Civ. P. 215.3; see also Bradt, 892 S.W.2d at 72 (noting that the law provides the
court the authority to punish an attorney‘s wrongful conduct in the discharge of his
duties, citing Tex. R. Civ. P. 13 (power to punish attorneys for filing improper
pleadings, motions, and ―other papers‖), Tex. R. Civ. P. 215 (power to punish
attorney for abusing discovery), and Tex. Gov‘t Code § 21.002 (power to punish
attorney for contempt of court)).
We conclude that the trial court properly granted summary judgment to
Zimmerman and McKinney based on qualified immunity. Because summary
judgment was appropriate, we overrule Sacks‘ fourth issue.
CONCLUSION
Zimmerman and McKinney established their affirmative defense of qualified
immunity to Sacks‘ claims. Accordingly, the trial court did not err in granting
summary judgment in their favor, and we have overruled her third and fourth
issues. Moreover, our determination of these issues makes it unnecessary to
7
Sacks asserts that Zimmerman and McKinney engaged in unlawful conduct,
―Zimmerman and McKinney ask the court to . . . immunize their illegal procurement of Professor
Sacks‘s medical records outside of legitimate judicial processes.‖ But, as noted above, the
record establishes that Zimmerman attempted to obtain Sacks‘ medical records through the
discovery process. And Sacks notes in a footnote in her brief (and in a similar footnote in her
summary-judgment response) that ―the Texas litigation privilege and other states‘ similar
privileges are consistent with HIPAA insofar as only formal discovery requests satisfy the
requirements for disclosing personal medi[c]al information.‖
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address her other issues.8 Therefore, without addressing her remaining issues, we
affirm the trial court‘s judgment.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
8
See Tex. R. App. P. 44.1 (stating that no judgment may be reversed on the ground that
the trial court made an error of law unless the court of appeals concludes that the error properly
caused the rendition of an improper judgment or probably prevented the appellant from properly
presenting her case to the court of appeals); Tex. R. App. P. 47.1 (―The court of appeals must
hand down a written opinion that is as brief as practicable but that addresses every issue raised
and necessary to final disposition of the appeal.‖).
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