GAIA Environmental, Inc. and AXL Industries, L.L.C. v. James B. Galbraith and McLeod, Alexander, Powel & Apffel, P.C.

Affirmed and Opinion filed September 9, 2014.
In the
Fourteenth Court of Appeals
NO. 14-13-00571-CV
GAIA ENVIRONMENTAL, INC. AND AXL INDUSTRIES, L.L.C.,
Appellants
V.
JAMES B. GALBRAITH AND MCLEOD, ALEXANDER, POWEL &
APFFEL, P.C., Appellees
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 2011-26454A
OPINION
Appellants Gaia Environmental, Inc. and AXL Industries, L.L.C. brought
claims against appellees James B. Galbraith and McLeod, Alexander, Powel &
Apffel, P.C. (“MAPA”) for tortious interference with a prospective business
relationship, tortious interference with an existing contract, civil conspiracy, and
aiding and abetting. Gaia and AXL alleged that attorney Galbraith and his firm
MAPA, which had represented BP North America, Inc. in an underlying wrongful
death lawsuit brought against both Gaia and BP, had threatened not to renew and to
cancel Gaia’s contracts with BP if a Gaia corporate deponent did not change his
testimony related to whether the work performed by the deceased Gaia employee
was covered by a particular Gaia-BP contract.
Galbraith and MAPA moved for summary judgment on multiple grounds.
Among the theories for summary judgment, Galbraith and MAPA asserted the
attorney immunity doctrine. Gaia and AXL responded that attorney immunity
does not protect the criminal act of tampering with a witness. The trial court
granted summary judgment.
On appeal, Gaia and AXL argue that the trial court erred in granting
summary judgment. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying lawsuit: In April 2003, Gaia Environmental, Inc. and BP
North America, Inc. entered into a Master Site Services Agreement for Gaia to
perform environmental consulting services. 1 This agreement is also known as the
Land Farm contract, and contains an indemnity provision whereby Gaia agreed to
defend and indemnify BP against negligence claims. In October 2008, a Gaia
employee was killed in an accident involving a backhoe on BP property.
On the day of the accident, BP retained Galbraith and MAPA to represent it.
The deceased employee’s family brought a wrongful death lawsuit against Gaia
and BP. Gaia also retained counsel, which included Phillip D. Sharp, who at the
time was with Bracewell & Giuliani. Galbraith contacted Sharp to tender the
defense and indemnity of BP pursuant to the Land Farm contract, but Gaia had not
1
Gaia entered into two additional contracts with BP Products North America in May
2008.
2
obtained any liability insurance. BP defended itself in the lawsuit.
During discovery, a BP corporate deponent testified that the Gaia employee
was working pursuant to the Land Farm contract at the time of his accident and
that Gaia was in control of the operation. One of Gaia’s owners, William
Householder, testified at his deposition that the work being performed by the
employee was not covered under the Land Farm contract and that BP directed the
Gaia employee’s work.
The alleged witness tampering incident: On August 14, 2009, Galbraith
called Sharp to discuss Householder’s deposition, which had been taken in May
2009. When asked, Sharp informed Galbraith that Householder had already signed
the transcript and it had been returned to the court reporter. Galbraith told Sharp
that “people at BP” were very upset with Householder regarding what he had said
about certain tasks falling within the scope of the Gaia-BP contracts. Galbraith
requested that Sharp read Householder’s deposition transcript again and discuss it
with Householder. Galbraith stated that if Householder was not willing to change
what he had said at his deposition, BP was not going to renew its contracts.
Sharp reviewed Householder’s transcript, then called him. Sharp and
Householder agreed they would try to “sit down and talk through this” with
Galbraith. Although Householder and Sharp discussed the two sides’ disagreement
over the applicability of the Land Farm contract with a MAPA associate who also
represented BP, Sharp never had any other follow-up with Galbraith about
Householder’s deposition. Householder did not change his testimony. Ultimately,
the Gaia-BP contracts were not renewed.
The current lawsuit: In May 2011, Gaia and AXL Industries, L.L.C., an
environmental consulting company which had been in negotiations to purchase
3
Gaia, filed suit against BP North America, Inc., BP, p.l.c., Galbraith, and MAPA. 2
Gaia and AXL brought breach of contract and fraud claims against the BP
defendants; tortious interference with a prospective business relationship claims
against all the defendants; tortious interference with an existing contract claims
against Galbraith and MAPA; civil conspiracy claims against all the defendants
related to the alleged tortious interference with a prospective business relationship;
and aiding and abetting claims against Galbraith and MAPA for allegedly assisting
the BP defendants with the alleged tortious interference with a prospective
business relationship. Gaia and AXL alleged that BP and “its lawyer,” Galbraith
of MAPA, threatened Householder that, unless he changed his testimony that the
work performed by the deceased Gaia employee was not covered under the Land
Farm contract and that BP directed the Gaia employee’s work, BP would not
renew and would cancel its contracts with Gaia.
Galbraith and MAPA filed a motion for traditional summary judgment,
arguing that: (1) Gaia’s and AXL’s claims were barred by attorney immunity as the
alleged actions occurred while Galbraith and MAPA represented BP in the
underlying lawsuit; (2) Gaia’s and AXL’s claims were barred by a lack of privity;
and (3) Galbraith and MAPA never engaged in the alleged conduct. Galbraith and
MAPA included an affidavit by Galbraith with their motion.
Gaia and AXL responded that summary judgment based on attorney
immunity is not appropriate where an attorney has operated outside the bounds of
the law, arguing that Galbraith and MAPA committed a violation of Texas Penal
Code, section 36.05, Tampering with a Witness. Gaia and AXL specifically
contended that Galbraith “intended to coerce Householder to testify falsely.” Gaia
2
Gaia and AXL also initially brought claims against RB Environmental, alleging that RB
Environmental purchased Gaia and BP transferred the Gaia-BP contracts to RB Environmental.
The claims against RB Environmental were nonsuited.
4
and AXL also argued that their claims were not barred by a lack of privity and that
they raised a fact issue as to whether Galbraith and MAPA engaged in the alleged
conduct. Gaia and AXL included an affidavit by Sharp with their response, as well
as the transcript from Householder’s deposition.
Galbraith and MAPA filed a supplement to their summary judgment motion,
arguing that they did not engage in any criminal conduct, and attaching the
transcript from Sharp’s deposition as an exhibit. Gaia and AXL filed a
supplemental response, arguing that based on reasonable inferences drawn in their
favor, the trial court must deny summary judgment. Gaia and AXL attached
excerpts from Sharp’s deposition to their supplemental response.
The trial court granted Galbraith’s and MAPA’s motion for summary
judgment without specifying the basis for its ruling. Subsequently, Gaia’s and
AXL’s claims against Galbraith and MAPA were severed from the litigation,
making the summary judgment final. Gaia and AXL timely appealed.
On appeal, Gaia and AXL argue that the trial court erred because none of the
grounds asserted by Galbraith and MAPA can support summary judgment in their
favor. Specifically, they contend that: (1) Gaia’s and AXL’s claims are not barred
by attorney immunity, (2) their claims are not barred by a lack of privity, and (3) a
genuine fact issue exists as to whether Galbraith and MAPA engaged in criminal
conduct.
II. ANALYSIS
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
5
nonmovant, and we indulge every reasonable inference and resolve any doubts in
the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005). To be entitled to traditional summary judgment, a movant must
establish 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. A defendant can establish that he is entitled to summary judgment as to a
cause of action asserted against him by conclusively negating at least one essential
element of the cause of action or conclusively establishing each element of an
affirmative defense. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425
(Tex. 1997). Here, Galbraith and MAPA sought to establish that they were entitled
to summary judgment based on the affirmative defense of attorney immunity.
“[O]nce a defendant has filed a motion for summary judgment asserting
[attorney] immunity and proving as a matter of law that the allegedly actionable
conduct was undertaken in the legal representation of a third-party client, this court
has required the plaintiff to either raise a fact issue as to whether that conduct was
undertaken in the representation of a third-party client or plead sufficient facts to
show that the plaintiff asserts one or more claims that fall within an exception to
attorney immunity.” 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.) (citing Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429,
441–42 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)); see also Chapman,
32 S.W.3d at 442 (reviewing plaintiff’s allegations as to exception and concluding
no fact issue raised); cf. Reagan Nat’l Adver. of Austin, Inc. v. Hazen, No. 03-05-
00699-CV, 2008 WL 2938823, at *1, *9 (Tex. App.—Austin July 29, 2008, no
pet.) (mem. op.) (burden shifts to plaintiff to plead and offer proof raising a fact
issue that his suit falls within an exception to attorney immunity to avoid summary
6
judgment); but see Toles v. Toles, 113 S.W.3d 899, 911–12 (Tex. App.—Dallas
2003, no pet.) (defendant also must attack merits of claims purporting to be based
on exception); Mendoza v. Fleming, 41 S.W.3d 781, 787 (Tex. App.—Corpus
Christi 2001, no pet.) (defendant also has burden to conclusively negate alleged
exception to immunity).
We must determine: (1) whether the summary judgment evidence
conclusively proves that Galbraith’s and MAPA’s allegedly actionable conduct
occurred during their legal representation of BP; and (2) if so, whether Gaia and
AXL either raised a fact issue as to whether Galbraith and MAPA undertook the
alleged conduct in their representation of BP or whether Gaia and AXL alleged
sufficient facts in their petition to show that Galbraith’s and MAPA’s actions fall
within the criminal offense of witness tampering—the exception so asserted. See
Lackshin, 2004 WL 1965636, at *3.
The trial court’s order does not specify the grounds for its summary
judgment. Therefore, we must affirm the summary judgment if any of the theories
presented to the trial court are meritorious. Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 216 (Tex. 2003).
B. Attorney immunity
Generally, an attorney in Texas owes common-law duties in regard to his
provision of legal services solely to his clients and others in privity with the
attorney. See McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991
S.W.2d 787, 792 (Tex. 1999); Alpert v. Crain, Caton & James, P.C., 178 S.W.3d
398, 405 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Texas courts have
long held that attorneys cannot be held civilly liable for damages to nonclients,
under any theory of recovery, for actions taken in connection with representing a
client. Sacks v. Zimmerman, 401 S.W.3d 336, 340 (Tex. App.—Houston [14th
7
Dist.] 2013, pet. denied) (citing James v. Easton, 368 S.W.3d 799, 802 (Tex.
App.—Houston [14th Dist.] 2012, pet. denied)); Alpert, 178 S.W.3d at 405; Bradt
v. West, 892 S.W.2d 56, 71–72 (Tex. App.—Houston [1st Dist.] 1994, writ
denied).
The attorney immunity doctrine derives from a policy goal of protecting the
public’s interest in loyal, faithful, and aggressive representation by those in the
legal profession, ensuring that attorneys may be free to fulfill their given duty to
zealously represent their clients within the bounds of the law. Chapman, 32
S.W.3d at 440 (citing Bradt, 892 S.W.2d at 71). This rule recognizes that “[i]f an
attorney could be held liable to an opposing party for statements made or actions
taken in the course of representing his client, he would be forced constantly to
balance his own potential exposure against his client’s best interest.” Alpert, 178
S.W.3d at 405.
Were an attorney to enter proceedings knowing that she may be sued by the
other side’s attorney for something she does in the course of representing her
client, “such a policy would favor tentative representation, not the zealous
representation that our profession rightly regards as an ideal and that the public has
a right to expect.” Bradt, 892 S.W.2d at 72. Likewise, any other rule would act as
a “severe and crippling deterrent to the ends of justice” because litigants might be
denied a full development of their case if their attorneys were subject to the threat
of liability for defending their clients’ position to the best and fullest extent
allowed by law, and availing their clients of all rights to which they are entitled.
Chapman, 32 S.W.3d at 440 (citing Bradt, 892 S.W.2d at 71).
This immunity applies even if the attorney’s conduct is wrongful, frivolous,
or lacks merit in the context of the underlying litigation. Alpert, 178 S.W.3d at405–06; Bradt, 892 S.W.2d at 72; see Chapman, 32 S.W.3d at 441–42 (“Because
8
under Texas law it is the kind of conduct that is controlling, and not whether that
conduct is meritorious or sanctionable, the trial court’s decision to grant summary
judgment on the Trusts’ fraud and conspiracy claims against Porter & Hedges was
proper.”). To determine whether immunity attaches, courts focus on the type or
kind of conduct in which the attorney is engaged to determine whether the conduct
is actionable or merely conduct undertaken in the representation of the client.
Chapman, 32 S.W.3d at 440–41; see Alpert, 178 S.W.3d at 406; Bradt, 892
S.W.2d at 72.
However, courts recognize that an attorney’s protection from liability arising
out of the representation of a client is not “without limits” or “boundless.” See
Byrd v. Vick, Carney & Smith LLP, 409 S.W.3d 772, 780 (Tex. App.—Fort Worth
2013, pet. filed); Toles, 113 S.W.3d at 911. For example, if a lawyer knowingly
participates in fraudulent activities independent of the lawyer’s representation of
the client, the lawyer’s actions are “foreign to the duties of an attorney.” Alpert,
178 S.W.3d at 406–07; see Poole v. Houston & T.C. Ry. Co., 58 Tex. 134, 137
(1882) (fraudulent assignment of bill of lading); JJJJ Walker, LLC v. Yollick, —
S.W.3d—, No. 14-13-00161-CV, 2014 WL 2535272, at *9 (Tex. App.—Houston
[14th Dist.] June 5, 2014, no. pet. h.) (“[I]t is well established that an attorney can
be held liable for his own fraudulent conduct even though it was performed on a
client’s behalf.”); Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex.
App.—Houston [1st Dist.] 1985, no writ) (conspiracy to defraud purchaser of
apartment complex); see also Essex Crane Rental Corp. v. Carter, 371 S.W.3d
366, 382 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (drafting fraudulent
documents to evade lawful seizure of property by judgment creditor); Querner v.
Rindfuss, 966 S.W.2d 661, 666, 670 (Tex. App.—San Antonio 1998, pet. denied)
(fraud in connection with probate administration). Likewise, “[a]n attorney who
9
personally steals goods or tells lies on a client’s behalf may be liable for
conversion or fraud in some cases.” Chu v. Hong, 249 S.W.3d 441, 446 (Tex.
2008). An attorney also could be held liable for an assault during a trial
proceeding. See Bradt, 892 S.W.2d at 72. Attorneys also may be liable to
nonclients for negligent misrepresentation, under certain circumstances, despite the
absence of a general negligence duty to nonclients. See McCamish, 991 S.W.2d at
793–94.
At issue here is alleged criminal conduct. 3 Criminal conduct can negate
attorney immunity. See Rawhide Mesa-Partners, Ltd. v. Brown McCarroll, L.L.P.,
344 S.W.3d 56, 60 (Tex. App.—Eastland 2011, no pet.) (immunity does not extend
to criminal activity); Reagan, 2008 WL 2938823, at *3, *9 (plaintiff alleged
billboards’ removal was criminal offense piercing attorney immunity); IBP, Inc. v.
Klumpe, 101 S.W.3d 461, 475–76 (Tex. App.—Amarillo 2001, pet. denied) (same
where plaintiff alleged criminal conspiracy to commit crime of theft of trade
secrets contained in confidential employment guides).
C. Galbraith and MAPA met their initial summary judgment burden.
Attorney immunity is considered an affirmative defense. Therefore,
Galbraith and MAPA had the initial summary judgment burden of establishing as a
matter of law that their allegedly actionable conduct was undertaken in the course
of their representation of and discharge of their duties to their client, BP. See
Lackshin, 2004 WL 1965636, at *3; Bradt, 892 S.W.2d at 65–66, 71–72.
3
In their petition, Gaia and AXL did not allege that Galbraith and MAPA committed
fraud or negligent misrepresentation. Although Gaia and AXL stated in their summary judgment
response that Galbraith and MAPA “committed criminal and fraudulent acts,” they solely argued
in their response that Galbraith and MAPA violated the witness tampering criminal statute. On
appeal, although they additionally characterize Galbraith’s and MAPA’s conduct as “suborning
perjury,” Gaia’s and AXL’s counsel confirmed during oral argument that they only are arguing
the criminal exception of witness tampering.
10
In support of their summary judgment motion, Galbraith and MAPA argued
that attorney immunity applied where Gaia and AXL are attempting to sue them
for alleged conduct that occurred while they were serving in their capacities as
attorneys of BP in the underlying wrongful death suit. Galbraith and MAPA
submitted an affidavit from Galbraith, wherein he stated that:
MAPA and I were retained to represent BP Products North America,
Inc. (“BP”) in litigation brought against BP and Plaintiff [Gaia]
arising from the death of . . . a G[aia] employee who was killed while
working on a Land Farm operated by G[aia] and owned by BP (the
“Underlying Lawsuit”).
Within a few days of the underlying incident, I spoke with G[aia]’s
attorney tendering the defense and indemnity of BP in this claim,
pursuant to the Service Agreement between BP and G[aia]. I sought
the identity and contact information of G[aia]’s insurance carrier to
contact them directly, as well. We learned that G[aia] never
purchased the required insurance. As a result, BP was required to
defend itself in the Underlying Lawsuit, and ultimately settled the
case for a confidential amount.
Neither MAPA nor I represented G[aia] and/or any of its agents,
representatives, and/or employees in the Underlying Lawsuit or in any
other capacity. G[aia] was at all times represented by its own counsel
throughout the entirety of the Underlying Lawsuit, and all
communications by me to G[aia] in that lawsuit were through G[aia]’s
duly-appointed counsel.
I never instructed or attempted to instruct G[aia]’s president, Bill
Householder, to change his testimony in the Underlying Lawsuit in
any way. I never threatened anyone that BP would terminate its
contract with G[aia] if Mr. Householder did not change his testimony
in the Underlying Lawsuit.
(Paragraph numbers omitted).
Our immunity analysis focuses on the conduct in which Galbraith and
MAPA allegedly engaged. See Chapman, 32 S.W.3d at 440 (citing Bradt, 892
S.W.2d at 72). Here, Galbraith’s and MAPA’s summary judgment evidence
11
indicates that BP and Gaia mounted entirely separate defenses in the underlying
lawsuit. The evidence indicates that this is because the Land Farm contract
contained an indemnification provision whereby Gaia was required to defend and
indemnify BP, but Gaia had not obtained such liability insurance. Galbraith’s and
MAPA’s evidence also indicates that any alleged threatening communication
occurred between one defense attorney and another defense attorney. There is
nothing in the record to suggest that Householder was contacted directly by
Galbraith or MAPA. This alleged conduct occurred in the course of discovery
during the underlying lawsuit. Indeed, the topic of the alleged threat concerned the
substance of Householder’s deposition testimony and possible cancellation of the
Land Farm contract. Householder had testified that the work being performed at
the time of the accident forming the basis of the underlying lawsuit was covered
under the Land Farm contract and that BP directed the work of the deceased Gaia
employee. Although he denied it, Galbraith allegedly communicated that this
testimony should be “changed” or BP would cancel its contracts with Gaia.
We must assume for summary judgment purposes that the alleged conduct
took place. See id. at 442. The testimony, as alleged by Gaia and AXL, that
Galbraith and MAPA allegedly wanted to be “changed” concerned Householder’s
understanding of whether the deceased Gaia employee’s activities fell within the
scope of the contract and whether BP exercised control. In other words, the tenor
of Galbraith’s alleged discussion with Gaia’s counsel related to their respective
clients’ disagreement over questions at the very heart of BP’s possible legal
defenses4 in the wrongful death lawsuit—defenses that Galbraith as BP’s attorney
4
The scope of work under a particular agreement is a matter of contract interpretation
and thus a question of law for the court. Gulf Liquids New River Project, LLC v. Gulsby Eng’g,
Inc., 356 S.W.3d 54, 70 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing MCI Telecomm.,
Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650–51 (Tex. 1999)). Likewise, determining
whether a contract provides for a right of control generally is a question of law. Dow Chem. Co.
12
had the right to interpose. See Bradt, 892 S.W.2d at 71; see also Kruegel v.
Murphy, 126 S.W. 343, 345 (Tex. Civ. App.—Dallas 1910, writ ref’d) (attorneys
have the right “to practice their profession, to advise their clients and interpose any
defense or supposed defense, without making themselves liable for damages”).
However, “an attorney does not owe a duty to the attorney on the other side to
ultimately be correct in his legal arguments.” Bradt, 892 S.W.2d at 73.
Further, as this court held in Chapman, an allegation of threatening to take
legal action against a nonclient in the course of an underlying dispute falls within
the realm of protected conduct as an act undertaken as part of the discharge of an
attorney’s duties to its own client. 32 S.W.3d at 441–42. Here, Galbraith’s and
MAPA’s summary judgment evidence regarding the lack of insurance coverage
indicates that BP and its counsel might harbor legitimate concerns about the
continuing status of the Land Farm contract based on Gaia’s potential breach of the
indemnity provision, as discovered during the underlying lawsuit. Moreover, even
if the assertion (or threatened assertion) of a client’s legal rights, such as to
terminate a contract, proves to be without merit or incorrect, the attorney immunity
doctrine applies. See Alpert, 178 S.W.3d at 405–06.
We also must note that courts are hesitant to override the protection afforded
by attorney immunity when the attorney’s conduct concerns alleged improprieties
occurring during discovery in the underlying lawsuit. For example, in Mitchell v.
Chapman, the Dallas court of appeals upheld summary judgment based on attorney
immunity where the plaintiff alleged that the opposing attorney withheld a key
underwriting file essential to the plaintiff’s recovery in two prior suits. 10 S.W.3d
810, 811–12 (Tex. App.—Dallas 2000, pet. denied). The Mitchell court concluded
v. Bright, 89 S.W.3d 602, 606 (Tex. 2002). And, while there may be underlying factual disputes
regarding the various factors of control, ultimately the exercise of actual control also is a
question of law. See Tex. A&M Univ. v. Bishop, 156 S.W.3d 580, 584–85 (Tex. 2005).
13
that the plaintiff had no cause of action against the attorney “because of the nature
of their relationship in the earlier two suits” and because the plaintiff’s “interests
are outweighed by the public’s interest in loyal, faithful, and aggressive
representation by attorneys employed as advocates.” Id. at 812 (citing Bradt, 892
S.W.2d at 71). Likewise, in Sacks v. Zimmerman, we upheld summary judgment
in favor of the attorneys who had represented the defendants throughout the
pendency of the plaintiff’s lawsuit. 401 S.W.3d at 343. The plaintiff had amended
her petition to add the defense attorneys as defendants, alleging they committed
invasion of privacy by discussing her medical records and exchanging them with
defense counsel in another lawsuit filed by the plaintiff. Id. at 340–41. However,
this court concluded that the plaintiff had not identified any conduct that was
fraudulent or entirely foreign to an attorney’s duties and instead complained about
“the type of [discovery] conduct in which attorneys routinely engage when
zealously defending their clients.” Id. at 342.
Under the circumstances presented in this case, Galbraith’s and MAPA’s
alleged conduct falls within the realm of zealous and aggressive representation in
discharging their duties to their client in the context of the underlying lawsuit.
Based on the evidence submitted with Galbraith’s and MAPA’s motion for
summary judgment, we conclude they have met their initial burden of establishing
that their allegedly actionable conduct was undertaken in the course of their legal
representation of their client BP in the underlying lawsuit. See Lackshin, 2004 WL
1965636, at *4; Chapman, 32 S.W.3d at 441–42; Bradt, 892 S.W.2d at 72.
D. Gaia and AXL did not raise a genuine issue of material fact as to
whether the alleged conduct was undertaken by Galbraith and MAPA
in their representation of BP.5
5
Gaia and AXL do not expressly argue that they raised a fact issue regarding whether the
alleged conduct was undertaken during Galbraith’s and MAPA’s legal representation of BP in
14
In support of their summary judgment response, Galbraith and MAPA
presented Sharp’s affidavit and portions of Sharp’s deposition, wherein Sharp
discussed the particular phone conversation between Galbraith and himself about
Householder’s deposition testimony in the underlying lawsuit. They also presented
Householder’s deposition transcript.
However, their evidence fails to raise a fact issue that Galbraith and MAPA
did not take the alleged actions as part of their legal representation of BP in the
underlying lawsuit. Sharp’s affidavit confirms that at the time of the phone call,
Galbraith and MAPA represented BP in the underlying lawsuit whereas Sharp
represented Gaia. Sharp confirms that the substance of the conversation concerned
Householder’s deposition transcript and its contents. According to Sharp,
Galbraith, who had not attended Householder’s deposition for BP, asked Sharp
whether he had reviewed the transcript, and whether Householder had signed and
returned it to the court reporter. Sharp also stated that Galbraith told him about
BP’s very negative reaction to Householder’s testimony “regarding whether certain
tasks, such as removal of pumps and hoses or dealing with water pumps generally,
did or did not fall within the scope of Gaia’s contracts with BP.” 6 Galbraith then
told Sharp to read the transcript again and discuss it with Householder. According
to Sharp, “Galbraith mentioned that Gaia’s contracts with BP were coming up for
renewal at year end and said that if Householder was not willing to change what he
had said in his deposition, BP was not going to renew those contracts.”
the underlying lawsuit. Instead, they continue to focus their attack on the alleged criminal nature
of Galbraith’s and MAPA’s actions. However, because Gaia and AXL submitted summary
judgment evidence with their response, we review that evidence for a fact issue.
6
In the course of being questioned about the Gaia-BP contracts, when asked whether it
was his “view based on the contract that [he] signed that putting a temporary pump in place to
accomplish what the permanent pump does would be a BP issue?” Householder replied, “It was
certainly out of scope.”
15
The excerpts from Sharp’s deposition testimony provided by Gaia and AXL
essentially track his affidavit. Again, Sharp disagreed with Galbraith’s affidavit
testimony that he had not requested that Householder change his testimony in the
underlying lawsuit. Sharp remembered Galbraith requesting that Sharp “get
together with Householder and you-all talk about this” and telling Sharp that
“Householder needed to go back and look at his testimony, and that if he did not
change it, BP would not renew those contracts.” In other words, if Householder
was “going to embrace that, or if he [was] not going to change that, with respect to
whether or not the contract did or did not cover the work being done, that BP was
going to nonrenew those contracts.” Sharp testified that Galbraith “causally
linked” Householder’s reconsideration of “the applicability of the contracts” to the
nonrenewal of those contracts.
Taking as true all evidence favorable to Gaia and AXL and indulging
inferences and resolving doubts in their favor, we conclude that the evidence fails
to raise a fact issue that Galbraith and MAPA did not make these statements as part
of their legal representation of BP in the context of the underlying lawsuit and
pursuant to their right to interpose their client BP’s supposed defenses and rights.
See Lackshin, 2004 WL 1965636, at *3; Bradt, 892 S.W.2d at 71.
E. Gaia and AXL did not allege sufficient facts in their petition to show
that Galbraith and MAPA committed witness tampering.
Taking all of the factual allegations in Gaia’s and AXL’s petition as true, we
must next decide if they alleged sufficient facts to show that Galbraith and MAPA
committed a violation of the witness tampering criminal statute. See Lackshin,
2004 WL 1965636, at *4 (citing Chapman, 32 S.W.3d at 441–42). We conclude
that Gaia and AXL have not alleged such facts to show that they are under the
criminal exception to attorney immunity. See id.16
The pertinent elements of the criminal offense of witness tampering are: (a)
a person (b) with intent to influence a witness (c) coerces a witness (d) in an
official proceeding (e) to testify falsely. Tex. Penal Code Ann. § 36.05(a)(1) (West
2011 & Supp. 2014). The element in dispute is (e) to testify falsely, and the
question we must answer is whether an allegation that Galbraith sought to threaten
or coerce Householder to “change his testimony” rises to the level of alleging that
essential criminal element.
The Penal Code7 does not define the term “to testify falsely.” We have not
located, nor have the parties directed us to, any prior judicial construction of the
term “to testify falsely” in the context of the witness tampering statute. 8 So we
turn to the common, ordinary meaning of that term. See Olivas v. State, 203
S.W.3d 341, 345 (Tex. Crim. App. 2006); see also Clinton v. State, 354 S.W.3d
795, 800 (Tex. Crim. App. 2011) (noting court’s ability to consult standard
dictionaries to determine “fair, objective meaning of an undefined statutory term”).
To “testify” means “to give evidence as a witness.” Black’s Law Dictionary 1704
(10th ed. 2014); see Merriam Webster’s Collegiate Dictionary 1291 (11th ed.
2003) (“to make a solemn declaration under oath for the purpose of establishing a
fact (as in a court)”). “False” means “intentionally untrue.” Merriam Webster’s
Collegiate Dictionary 451 (11th ed. 2003). To “lie” is “to tell an untruth; to speak .
7
We have located other instances where statutes contain the term “testify falsely,”
“testifies falsely,” or “testifying falsely.” See Tex. Code Crim. Proc. art. 23.03(d) (West 2014)
(Capias or summons in felony); Tex. Gov’t Code Ann. § 508.048(d) (West 2012) (Subpoenas);
16 Tex. Admin. Code § 94.71(c) (2014) (Tex. Dep’t of Licensing & Registration,
Responsibilities of a Registrant: Equal and Fair Treatment); 19 Tex. Admin. Code
§ 157.1046(b)(1)(C) (2014) (Tex. Educ. Agency, Conduct and Decorum); 37 Tex. Admin. Code
§ 380.9551(c)(21) (2014) (Tex. Juvenile Justice Dep’t, Level I Hearing Procedure). However,
the respective codes do not define such term nor have we located any cases construing such
statutory term.
8
The one criminal case cited by Gaia and AXL concerned hypothetical conduct in the
context of a claim of ineffectiveness and did not provide any analysis of the “to testify falsely”
element of section 36.05. See Kober v. State, 988 S.W.2d 230, 233–34 (Tex. Crim. App. 1999).
17
. . falsely.” Black’s Law Dictionary 1062 (10th ed. 2014); see Merriam Webster’s
Collegiate Dictionary 717 (11th ed. 2003) (“to make an untrue statement with
intent to deceive”). Thus, the plain language of the statute—“to testify falsely”—
indicates that to commit witness tampering one must intend to and coerce a witness
to provide intentionally untrue evidence, or to lie.
Here, the petition does not contain an allegation that Galbraith and MAPA
threatened Householder that unless he provided intentionally untrue evidence or
lied, BP would cancel its contracts with Gaia. Rather, Galbraith and MAPA
allegedly threatened Householder that he should “change” his given testimony—
that the work performed by the deceased Gaia employee was not covered under the
Land Farm contract and that BP did not direct the work of such employee. To
“change” means “to make different,” “alter, modify,” “transform, convert,” or “to
give a different position, course, or direction to.” Webster’s Third New
International Dictionary 373 (1993). Liberally construing the petition, we presume
that Galbraith and MAPA intended to coerce Householder to alter or convert his
testimony or position to state that the work at issue was covered under the contract
and BP did not direct the deceased Gaia employee’s work.
However, while we acknowledge that Gaia and AXL did not necessarily
have to use the magic word “lie” in their petition, even this liberal construction
does not equate to an accusation that Galbraith and MAPA intended to coerce
Householder into testifying falsely or lying. We take note that rule 3.04 of the
Texas Disciplinary Rules of Professional Conduct, Fairness in Adjudicatory
Proceedings, contains the same phrase “to testify falsely” as the witness tampering
statute. Under rule 3.04, “a lawyer shall not . . . counsel or assist a witness to
testify falsely . . . .” Tex. Disciplinary Rules Prof’l Conduct R. 3.04(b), reprinted
in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2008) (Tex. State Bar R.
18
art. X, § 9). In the quasi-criminal context of disbarment proceedings, the Fifth
Circuit has explained under what circumstances rule 3.04(b) applies:
It is one thing to ask a witness to swear to facts which are knowingly
false. It is another thing, in an arms-length interview with a witness,
for an attorney to attempt to persuade her, even aggressively, that her
initial version of a certain fact situation is not complete or accurate.
Resolution Trust Corp. v. Bright, 6 F.3d 336, 341 (5th Cir. 1993). There, despite
the allegation that the disbarred attorneys aggressively attempted to persuade a key
witness “to adopt certain statements which she had not expressly made and which
she refused to adopt,” the Fifth Circuit concluded the trial court abused its
discretion in ordering disbarment because it disagreed that the attorneys “were
either making or urging the making of ‘false’ statements in violation of [rule]
3.04(b).” Id. at 341. 9
We conclude that this situation falls more in line with the latter scenario
from Bright. Here, Galbraith and MAPA did not ask Sharp to ask Householder to
swear to knowingly false facts. Instead, Galbraith and MAPA attempted to
aggressively persuade Sharp, allegedly via threat of legal action, that Householder
should change his initial version of the fact situation at hand to align with their
client BP’s version. See id. at 341. Gaia’s and AXL’s allegation simply does not
amount to pleading the requisite criminal element that Householder “testify
falsely.”
Therefore, we conclude that Gaia and AXL have not pleaded sufficient facts
to place their claims within a criminal exception to the attorney immunity doctrine
9
Although Bright concerned a witness interview that resulted in an affidavit, the Fifth
Circuit noted were the witness “giving testimony at a deposition or at trial,” the attorneys “would
not be required to accept [the witness’s] initial testimony at face value but would be able to . . .
challenge her testimony or attempt to persuade her to change it.” 6 F.3d at 342.
19
on which Galbraith and MAPA sought summary judgment. See Lackshin, 2004
WL 1965636, at *5 (citing Chapman, 32 S.W.3d at 441–42). Because Gaia and
AXL did not raise a fact issue as to whether the alleged conduct was undertaken
during the representation of BP and did not allege sufficient facts in their petition
to fall within the exception by showing that Galbraith and MAPA committed the
criminal offense of witness tampering, we overrule the first issue and affirm the
trial court’s granting of traditional summary judgment. See Knott, 128 S.W.3d at
215; Lackshin, 2004 WL 1965636, at *3.
III. CONCLUSION
Because the trial court properly could grant summary judgment on attorney
immunity, we need not address Gaia’s and AXL’s other two issues regarding
whether their claims are barred by privity and whether a fact issue exists as to
Galbraith’s and MAPA’s allegedly criminal conduct. 10 See Tex. R. App. P. 47.1.
Accordingly, we affirm the trial court’s judgment.
/s/ Marc W. Brown
Justice
Panel consists of Chief Justice Frost, and Justices Donovan and Brown.
10
In particular, because we conclude that Gaia and AXL have not sufficiently alleged
facts supporting the “testify falsely” element to place their claims within the witness tampering
exception to attorney immunity, we need not reach the parties’ arguments as to whether the
evidence raises a fact issue on such element.
20