in Re: Rosa Maria Trujillo ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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IN RE No. 08-15-00199-CV
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ROSA MARIA TRUJILLO, An Original Proceeding
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RELATOR. on Petition for
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Writ of Mandamus
§
OPINION
Rosa Maria Trujillo has filed a petition for writ of mandamus against the Honorable
Linda Y. Chew, Judge of the 327th District Court of El Paso County, Texas, to challenge an
order disqualifying Miller Weisbrod LLP from representing Relator in her suit against her ex-
husband, Dr. Jorge Fabio Llamas-Soforo. We conditionally grant mandamus relief.
FACTUAL AND PROCEDURAL SUMMARY
Trujillo and Llamas-Soforo began living together in 2000, were married in 2005, and
divorced in 2010. Trujillo, represented by Miller Weisbrod, filed suit against Llamas-Soforo in
May of 2011 alleging causes of action for sexual assault, assault by offensive physical contact,
and intentional infliction of emotional distress.1 Prior to filing this suit on behalf of Trujillo,
Miller Weisbrod represented plaintiff in multiple medical malpractice suits. Trujillo was still
married to Llamas-Soforo when the malpractice suits were filed and she was employed by his
1
The case is styled Rosa Maria Trujillo v. Jorge Fabio Llamas-Soforo (cause number 2011-1601).
medical practice. The trial court found in the order granting the motion to disqualify that Trujillo
was present during meetings with Llamas-Soforo’s attorneys both before and during the trial of
one of the medical malpractice cases.
At the time of the divorce in 2010, six of the medical malpractice cases were still
pending. After Trujillo filed the suit against Llamas-Soforo in May of 2011, Llamas-Soforo
moved to disqualify Miller Weisbrod in a malpractice case pending in Dallas County, styled
Bustamante v. Llamas-Soforo. Miller Weisbrod voluntarily withdrew from the Bustamante case
and the other then-pending malpractice cases. A jury rendered a verdict in favor of the plaintiffs
in the Bustamante case, but the Dallas Court of Appeals reversed it. Ponte v. Bustamante, ---
S.W.3d ---, 2015 WL 3485422 (Tex.App.--Dallas May 28, 2015, pet. filed). The trial court made
an express finding that Miller Weisbrod not only retained an interest in the medical malpractice
cases, it also participates in the funding of those cases. There is evidence that Miller Weisbrod
paid an expert witness fee in one case, Elizabeth Quiroz, Individually and as Next Friend of
Joseph Cardona a/k/a Joseph Quiroz v. Jorge Llamas-Soforo, cause number 2008-2694.
In July 2013, Trujillo filed a mandamus petition in this Court asserting that Respondent
abused her discretion by denying discovery requests for medical and counseling records. In re
Rosa Maria Trujillo, No. 08-13-00185-CV, 2015 WL 799439 (Tex.App.--El Paso February 25,
2015, orig. proceeding). Trujillo filed a motion in the trial court asking for the documents the
court had reviewed in camera to be transmitted to the appellate court, but the trial court did not
rule on the motion or transmit the documents. Consequently, we denied mandamus relief
because Trujillo had failed to provide the records in question. In re Rosa Maria Trujillo, No. 08-
13-00185-CV, 2015 WL 799439 (Tex.App.--El Paso February 25, 2015, orig. proceeding).
Trujillo filed a motion for rehearing in this Court and set her motion to transmit the documents
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for hearing in the trial court on April 2, 2015, but Llamas-Soforo filed a motion to disqualify
Miller Weisbrod a few days before the hearing. The trial court heard both the motion to
disqualify and the motion to transmit documents on April 2, 2015. The court granted the motion
to disqualify and denied the motion to transmit the documents as moot. We subsequently denied
the motion for rehearing in cause number 08-13-00185-CV. Trujillo filed her petition for writ of
mandamus challenging the disqualification of Miller Weisbrod.
WAIVER OF THE DISQUALIFICATION CLAIM
In her first issue, Trujillo asserts that Llamas-Soforo waived his disqualification claim by
waiting sixteen months to file his motion to disqualify her counsel. Trujillo raised this argument
in her response to the motion to disqualify and during the hearing.
Standard of Review and Applicable Law
To be entitled to mandamus relief, a relator must meet two requirements. First, the
relator must show that the trial court clearly abused its discretion. In re Prudential Insurance
Company of America, 148 S.W.3d 124, 135 (Tex. 2004). Second, the relator must demonstrate
that there is no adequate remedy by appeal. Id. at 135-36. An order granting or denying a
motion to disqualify counsel is reviewable by mandamus because a party generally lacks an
adequate appellate remedy if counsel is disqualified. See In re Nitla S.A. de C.V., 92 S.W.3d
419, 422 (Tex. 2002). Disqualification is a severe remedy which can result in immediate and
palpable harm, disrupt trial court proceedings, and deprive a party of the right to have counsel of
choice. In re Columbia Valley Healthcare System, 320 S.W.3d 819, 825 (Tex. 2010); In re Nitla,
92 S.W.3d at 422.
A party who fails to file its motion to disqualify opposing counsel in a timely manner
generally waives the complaint. In re George, 28 S.W.3d 511, 513 (Tex. 2000). When
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determining whether waiver exists, the reviewing court should consider the time period between
when the conflict became apparent to the aggrieved party and when he moved to disqualify.
Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466, 468 (Tex. 1994). Courts have found
waiver where a party waited as little as four to eight months to file the motion to disqualify. See
e.g., Buck v. Palmer, 381 S.W.3d 525, 528 (Tex. 2012)(unexplained delay of seven months
amounted to waiver); Vaughan v. Walther, 875 S.W.2d 690, 691 (Tex. 1994)(delay of six and a
half months constituted waiver); Enstar Petroleum Company v. Mancias, 773 S.W.2d 662, 664
(Tex.App.--San Antonio 1989, orig. proceeding)(finding waiver where party waited four months
to file motion to disqualify).
The parties disagree regarding when the conflict became apparent. Trujillo argues that
the conflict has been apparent since the day Miller Wesbrod filed suit on behalf of Trujillo in
May 2011. Llamas-Soforo immediately moved to disqualify Miller Weisbrod in the malpractice
cases in May 2011 and the firm voluntarily withdrew from representing the plaintiffs. The trial
court did not make a specific finding of fact regarding when Llamas-Soforo knew or should have
known that Miller Weisbrod retained an active interest in the medical malpractice cases. The
court did, however, make findings which are relevant to the waiver issue.
First, the court found that Miller Weisbrod previously represented to the court in a
hearing on a discovery matter that it was not sure whether the firm retained an interest in the
malpractice cases, and Miller Weisbrod did not subsequently inform the court that it actually
retained an interest in those cases.2 Based on the trial court’s comments at the motion to
disqualify hearing, the discovery matter at issue led to Trujillo filing the mandamus petition on
July 12, 2013 in cause number 08-13-00185-CV. This is some evidence that the issue of Miller
2
The mandamus record does not contain a transcription of any hearing related to that matter, and we have not
considered the record from cause number 08-13-00185-CV in ruling on the issues presented in this original
proceeding.
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Weibrod’s interest in the malpractice cases had been raised prior to July 12, 2013, but Miller
Weisbrod had not made the nature of that interest clear to the trial court.
Second, the court found that Miller Weisbrod had paid the fee for one of the plaintiff’s
designated expert witness, William V. Good, M.D. Dr. Good’s deposition was taken on June 14,
2013 in the Cardona malpractice case.3 During the deposition, Dr. Good produced a check for
his services in the amount of $10,000 which appears to have been signed by Clay Miller of
Miller Weisbrod even though it was drawn on the account of the Law Offices of Domingo
Garcia LLP.
Third, the court found that Trujillo attended one day of the Cardona trial and listened to
all of Dr. Llamas-Soforo’s testimony when he was called adversely by the plaintiffs. The court
found it significant that Trujillo did not attend any other portion of the Cardona trial, she had no
interest in the medical malpractice suits, there had been no publicity about the Cardona trial, and
Trujillo had no independent way of knowing when Llamas-Soforo would testify. That trial
began on September 30, 2013 and the jury reached its verdict on October 9, 2013.
Accepting the trial court’s fact findings as true, Llamas-Soforo knew or should have
known that Miller Weisbrod continued to have an active interest in the malpractice cases no later
than when Trujillo appeared at the Cardona trial in late September or early October 2013. This
event occurred approximately sixteen months before Llamas-Soforo filed the motion to
disqualify on March 26, 2015. The only remaining question is whether waiting sixteen months
to file the motion to disqualify is reasonable.
3
The case, referred to by the parties as the Cardona case, is styled Elizabeth Quiroz, Individually and as Next
Friend of Joseph Cardona a/k/a Joseph Quiroz v. Jorge Llamas-Soforo, MD., Individually, Jorge Llamas-Soforo,
MD., P.A. d/b/a El Paso Eye Center, Luis Alberto Ayo, M.D., Pediatrix Medical Group of Texas, P.A., Pediatrix
Medical Group, Inc., Roy John Caviglia MD., Fortunato Perez-Benavides, MD, and Jose Berdardo Arellano, M.D.,
and Vibha Honkan, M.D. (cause number 2008-2694). The Cardona case was tried in the 205th District Court in
El Paso County, Texas and the jury returned a verdict in favor of Dr. Llamas-Soforo on October 9, 2013.
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Llamas-Soforo asserts that he did not file a motion to disqualify immediately because
Trujillo’s suit was not moving forward. The status of Trujillo’s suit is irrelevant because the
basis of the motion to disqualify is Miller Weisbrod’s alleged access to and use of the
confidential information obtained by Trujillo. Llamas-Soforo also seeks to shift blame to
Trujillo by arguing that she waited almost two years to set a hearing date on her motion to
transmit the in camera documents to the Eighth Court of Appeals. This argument actually
supports a finding of waiver because filing the motion to disqualify in response to Trujillo’s
action of getting a hearing date for her motion to transmit the in camera documents indicate that
the motion to disqualify was used as a tactical weapon. Given the lack of a reasonable
explanation for the sixteen-month-delay in filing the motion to disqualify, we conclude that
Llamas-Soforo waived his complaint. Finding that the trial court abused its discretion by
granting the motion to disqualify, we sustain Issue One4 and conditionally grant the petition for
writ of mandamus. The writ will issue only if the trial court fails to set aside the order granting
the motion to disqualify Miller Weisbrod.
November 4, 2015
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
4
It is unnecessary to address Trujillo’s remaining issues.
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