Philip Gregory Byrd, Lucy Leasing Co., LLC, and PGB Air, Inc. v. Vick, Carney & Smith LLP, Cantey Hanger LLP, and Nancy Ann Simenstad

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00468-CV

PHILIP GREGORY BYRD, LUCY APPELLANTS
LEASING CO., LLC, AND PGB AIR,
INC.

V.

VICK, CARNEY & SMITH LLP, APPELLEES
CANTEY HANGER LLP, AND
NANCY ANN SIMENSTAD

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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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CONCURRING AND DISSENTING OPINION

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Introduction

I respectfully dissent from the majority’s decision as to Byrd’s claims for

fraud, conspiracy, and aiding and abetting alleged by Appellant Byrd (and the two
corporations awarded to him in the divorce). 1 The majority agrees that “Cantey

Hanger’s preparation of a bill of sale to facilitate transfer of an airplane awarded

to [Nancy] in an agreed divorce decree was conduct in which an attorney

engages to discharge his duties to his client” and that such conduct was not

“foreign to the duties of an attorney.” Maj. Op. at 15. But the majority then

concludes that the same alleged conduct was “foreign to the duties of an

attorney” because Byrd alleged that Cantey Hanger intentionally included false

information in the bill of sale for Nancy’s airplane to shift sales tax liability to Byrd,

which conduct Byrd labels as “fraud,” and that the alleged conduct was thus also

outside the course of Cantey Hanger’s representation of Nancy in the underlying

divorce litigation. Id. at 13–14.

I cannot agree with either holding, both of which focus solely on Byrd’s

own conclusory labeling of Cantey Hanger’s alleged conduct as fraud, rather

than on the type of conduct, which, as stated above, the majority agrees was in

the course of Cantey Hanger’s representation of Nancy and not foreign to the

duties of an attorney. The majority correctly states the rule but seems not to

apply it: whether the litigation immunity under which an attorney generally owes

no duty to a non-client for conduct in the course of representing his own client in

litigation focuses on the “type of conduct in which the attorney engages, not on

1
As apparent from the context within this opinion, I use the name “Byrd” to
describe Philip Byrd individually or the appellants collectively.

2
whether the conduct was meritorious in the context of the underlying lawsuit.” Id.

at 13.

Under the majority’s reasoning, by mere artful pleading labeling just about

any conduct of counsel in the course of representing the opposing party in prior

litigation as “fraud,” the losing party to the litigation can invoke the exception for

fraudulent or malicious conduct to avoid the long-established litigation immunity

in Texas that protects lawyers from liability to opposing parties, and the burden is

then on the attorney to conclusively disprove the pleaded exception in order to

prevail on a summary judgment. This is not and should not be the law. I would

affirm the summary judgment in favor of Cantey Hanger because the law firm

conclusively established its immunity for the alleged conduct that occurred in the

course of its representation of Nancy in the underlying divorce litigation and hold

that the burden then shifted to Byrd to plead and offer proof raising an issue of

fact that his suit falls within the fraud exception to the litigation immunity, which

he failed to do.

No duty based on attorney immunity

Byrd first argues that the alleged fraud by Cantey Hanger in assisting

Nancy to sell her airplane to a purchaser occurred after the divorce was final, that

Cantey Hanger’s adversarial representation of Nancy in the divorce litigation

ended when the decree was finalized, and thus that Cantey Hanger is not entitled

to immunity from liability to Byrd because its conduct was not committed in the

course of its representation of Nancy “in the litigation.” The majority accepts

3
Byrd’s argument that Cantey Hanger’s adversarial representation of Nancy

ended when the divorce decree was signed. But the summary judgment record

conclusively shows otherwise.

Byrd acknowledges that Cantey Hanger continued to represent Nancy

against Byrd (who now resides in Costa Rica) after the divorce decree was

finalized by its ongoing efforts to collect $150,000 awarded to Nancy in the

decree, in assisting her in recovering a judgment for that amount in Byrd’s

bankruptcy, and in filing a lien against the house awarded to Byrd in the decree.

Moreover, both Byrd and the majority acknowledge that the divorce decree

expressly ordered the attorneys for the “non-signing” parties to draft the

documents necessary to effectuate the transfers contemplated in the decree after

the decree was finalized, including “documents necessary to transfer ownership

of airplanes” awarded to Nancy within ten days of the date of the decree.

Id. at 8. As the attorneys representing Nancy as the “non-signing” party, it was

Cantey Hanger’s responsibility, as ordered in the decree and thus in the course

of its continued representation of Nancy, to draft the documents for transfer of

ownership of the airplanes awarded to Nancy. 2 In light of the foregoing, I am

2
That conduct of opposing counsel occurred before actual filing of suit or
after rendition of judgment does not defeat the immunity of counsel for conduct in
the course of representing an adverse party in litigation. See Renfroe v. Jones &
Assocs., 947 S.W.2d 285, 288 (Tex. App.—Fort Worth 1997, writ denied) (no
cause of action against attorney for obtaining writ of garnishment against
judgment debtor based on inaccurate facts); see also FinServ Cas. Corp. v.
Settlement Funding, LLC, 724 F. Supp. 2d 662, 674–76 (S.D. Tex. 2010) (mem.
op.) (law firm held immune for claims of fraud or conspiracy for conduct in seizing

4
puzzled by the majority’s statement that drafting of documents for transfer and

sale of the airplane after it had been awarded to Nancy by the decree “was not

required by, and had nothing to do with, the decree.” Maj. Op. at 13–14. Even

Byrd’s affidavit (quoted by the majority) in support of his response to Cantey

Hanger’s motion for summary judgment acknowledges that the trial court ordered

Cantey Hanger in the divorce decree to draft the documents to effectuate the

transfer of the airplane in question for Byrd to sign.

The general rule is that persons not in privity with an attorney cannot sue

the attorney for legal malpractice. See, e.g., Barcelo v. Elliott, 923 S.W.2d 575,

577 (Tex. 1996) (holding that a lawyer owes duty of care only to his client). For

over 100 years, Texas courts have held that attorneys are authorized to “practice

their profession, to advise their clients and interpose any defense or supposed

defense, without making themselves liable for damages.” White v. Bayless, 32

S.W.3d 271, 275–76 (Tex. App.—San Antonio 2000, pet. denied) (affirming

summary judgment because attorney owed no duty to adverse party in the

context of representation of its client in litigation) (citing Kruegel v. Murphy, 126

property not owned by debtor by writ of execution after judgment); Dixon Fin.
Servs., Ltd. v. Greenberg, Peden, Siegmyer & Oshman, P.C., No. 01-06-00696-
CV, 2008 WL 746548, at *9 (Tex. App.—Houston [1st Dist.] Mar. 20, 2008, pet.
denied) (mem. op. on reh’g) (attorney held immune from liability for alleged
misrepresentation to opposing party to secure satisfaction of arbitration award);
Lackshin v. Spofford, No. 14-03-00977-CV, 2004 WL 1965636, at *3–5 (Tex.
App.—Houston [14th Dist.] Sept. 7, 2004, pet. denied) (mem. op.) (attorney held
immune from liability for making fee arrangements and charging and collecting
fees to wife on credit cards in husband’s name before filing divorce action as
action was part of attorney’s legal representation of wife in impending suit).

5
S.W. 343, 345 (Tex. Civ. App.—Dallas 1910, writ ref’d)). An attorney may assert

any of his client’s rights without being personally liable for damages to the

opposing party. See Bradt v. West, 892 S.W.2d 56, 71–72 (Tex. App.—Houston

[1st Dist.] 1994, writ denied) (attorney not subject to liability to opposing attorney

under any cause of action for conduct as part of representing client in litigation);

Morris v. Bailey, 398 S.W.2d 946, 947 (Tex. Civ. App.—Austin 1966, writ ref’d

n.r.e.).

Simply stated, under Texas law, attorneys cannot be held liable to

opposing parties for “wrongful litigation conduct.” Renfroe, 947 S.W.2d at 287–

88; Bradt, 892 S.W.2d at 71–72. Any contrary policy would act as “a severe and

crippling deterrent to the ends of justice because a litigant might be denied a full

development of his case if his attorney were subject to the threat of liability for

defending his client’s position to the best and fullest extent allowed by law, and

availing his client of all rights to which he is entitled.” White, 32 S.W.3d at 276;

see Mitchell v. Chapman, 10 S.W.3d 810, 811 (Tex. App.—Dallas 2000, pet.

denied) (op. on reh’g) (in suit by unsuccessful litigant against attorney of

opponent in prior case, affirming summary judgment in favor of attorney on

ground that relationship between lawyer and third party “was clearly adversarial”

and lawyer “owed no legal duty” to opposing litigant), cert. denied, 531 U.S. 1152

(2001).

6
 “Fraud” exception to litigation immunity

The majority recognizes that whether a cause of action for fraud exists in

favor of a non-client against an attorney representing the opposing party in

litigation focuses on the type of conduct engaged in, not on whether the conduct

was meritorious. See Dixon Fin. Servs., 2008 WL 746548, at *9; Renfroe, 947

S.W.2d at 288; see also Taco Bell Corp. v. Cracken, 939 F. Supp. 528, 532–33

(N.D. Tex. 1996) (mem. op.) (Fitzwater, J.). 3 The dispositive question in

determining the type of conduct by the attorney is whether the attorney’s conduct

was part of the discharge of his duties in representing the opposing party in the

context of litigation or was foreign to the duties of an attorney, not whether the

alleged conduct as characterized by the pleadings is fraudulent. Taco Bell, 939

F. Supp. at 532 (citing Bradt, 892 S.W.2d at 72). Instead, the majority focuses

on Byrd’s allegations of fraud, that is, intentional and knowing inclusion of false

information in a bill of sale to assist Nancy in avoiding sales tax liability. Maj. Op.

at 15. Thus, cases in which the fraud exception to an attorney’s litigation

immunity have been recognized are few.

3
See also Toles v. Toles, 113 S.W.3d 899, 911 (Tex. App.—Dallas 2003,
no pet.) (holding attorney’s conduct in representing client in divorce litigation,
even if frivolous or without merit, “is not actionable [by opposing party] as long as
the conduct was part of the discharge of the lawyer’s duties in representing his or
her client”); Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d
429, 442 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (holding under
Texas law it is the kind of conduct that is controlling in whether fraud may be
actionable against opposing attorney, not whether conduct is meritorious).

7
 As the Supreme Court in Chu v. Hong, stated, “[F]raud actions cannot be

brought against an opposing attorney in litigation as reliance in those

circumstances is unreasonable.” 249 S.W.3d 441, 446 n.19 (Tex. 2008) (citing

McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787,

794 (Tex. 1999)). A non-client generally has no claim against an opposing

lawyer in litigation for fraud in the course of litigation because a party cannot

justifiably rely on his or her opponent’s lawyer’s representations or silence as a

matter of law. McCamish, 991 S.W.2d at 794 (stating that reliance is not justified

when the representation or non-disclosure takes place in the adversarial context

of litigation); see Chapman Children’s Trust, 32 S.W.3d at 441–42 (affirming

summary judgment on fraud and conspiracy claims by opposing party because

law firm’s actions were undertaken in discharge of its duties to its client); Mitchell,

10 S.W.3d at 811–12 (same).

No issue of fact as to fraud as an exception

The attorney’s litigation immunity is not absolute. It is a “qualified”

immunity in that attorneys may be held liable for fraud but only in certain narrowly

defined instances based on independent actions taken outside the scope of the

attorney’s legal representation of a client or based on conduct foreign to the

duties of an attorney. See Elliott v. West, No. 01-09-00425-CV, 2011 WL

1233434, at *3 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem.

op.) (holding attorneys could be liable for fraudulent actions only if their conduct

was “outside the scope of [their] legal representation of the client” or “foreign to

8
the duties of an attorney”) (citing Alpert v. Crain, Caton & James, P.C., 178

S.W.3d 398, 406 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)). 4

I disagree with the majority’s conclusion that because Byrd alleged that

Cantey Hanger misrepresented Nancy’s status as manager and used her

married name in the bill of sale in order to supposedly shift sales tax liability to

Lucy Leasing, even if true, rendered Cantey Hanger’s alleged conduct “foreign to

the duties of an attorney” in the circumstances here. Assisting a client in drafting

documents for transfer of title of an airplane, assisting the client in selling an

asset awarded to the client in the divorce for needed cash, allowing the client to

use her married name, and even assisting her in avoiding tax liability are not acts

“foreign to the duties of an attorney.” Each is a type of conduct in which an

attorney typically engages in discharging duties to his client. Dixon Fin. Servs.,

2008 WL 746548, at *7–8 (noting that attorney cannot be liable to a third party for

conduct that requires “the office, professional training, skill, and authority of an

attorney”).

Nor can I agree that the alleged conduct of Cantey Hanger was of the type

that is an exception to the qualified immunity as independent commission of

4
An attorney may be subject to liability for negligent misrepresentation if
the attorney’s manifest awareness of a non-client’s justifiable reliance on false
information that was furnished by the attorney with intent that the non-client so
rely. McCamish, 991 S.W.2d at 792 (allowing cause of action for negligent
misrepresentation by non-client under Restatement (Second) of Torts § 552). No
such claim is made here that Byrd justifiably relied on any false information
communicated to him by Cantey Hanger, nor could any such reliance be justified
because of the adversarial nature of their relationship. Id. at 794.

9
fraudulent or malicious acts “outside the scope of [the law firm’s] legal

representation of the client.” Id. (citing Alpert, 178 S.W.3d at 406). Most cases

that have applied that exception involved fraudulent business schemes, not

litigation. See Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex.

App.—Houston [1st Dist.] 1985, no writ); see also Poole v. Houston & T.C. Ry.

Co., 58 Tex. 134, 137 (1882). Those cases are distinguishable because neither

involved litigation. Poole involved conduct of an attorney on behalf of an

insolvent debtor in rerouting a shipment of goods via a bogus firm by a fictitious

bill of lading contrary to the shipper’s order to stop the delivery, conduct that the

Supreme Court characterized as “foreign to the duties of an attorney.” Poole, 58

Tex. at 137. Likover involved a fraudulent scheme for renovation and sale of an

apartment complex. Likover, 696 S.W.2d at 469–72. Subsequently, the same

court that decided Likover distinguished that case from one involving conduct of

an attorney in the course of litigation, noting that Likover had “involved

allegations that an attorney assisted clients in fraudulent business schemes and

did not involve conduct taken in the context of litigation or another adversarial

proceeding.” Dixon Fin. Servs., 2008 WL 746548, at *9. 5

5
Byrd also relies on Querner v. Rindfuss, 966 S.W.2d 661, 663 (Tex.
App.—San Antonio 1998, pet. denied), which, in turn, relied on Likover and Poole
for the proposition that an attorney can be liable for fraud in the litigation context.
But neither Likover nor Poole involved conduct in the litigation context.
Moreover, the San Antonio court held that the beneficiaries presented evidence
raising fact issues as to whether the attorney engaged in fraud against the
beneficiaries by conspiring with the executor to convert assets as well as whether
the attorney was in privity with or owed the beneficiaries fiduciary duties, thereby

10
 The “type” of conduct in which the attorney was engaged, that is, whether

the attorney’s conduct at issue was not foreign to the duties of an attorney or

occurred in the scope of representation of his client in the context of litigation

against the non-client, does not change based merely on the labeling of a

conclusory pleading by the non-client that the attorney’s conduct constitutes

“fraud.” This is because characterizing an attorney’s conduct in representing “his

client’s rights as fraudulent does not change the rule that an attorney cannot be

held liable for discharging his duties to his client. A plaintiff . . . should not be

allowed to ‘salvage an otherwise untenable claim merely by characterizing it as

tortious.’” Dixon Fin. Servs., 2008 WL 746548, at *9 (citation omitted) (quoting

Miller v. Stonehenge/Fasa-Tex., JDC, L.P., 993 F. Supp. 461, 464 (N.D. Tex.

1998)). 6

placing the burden of production to establish the exception to the attorney’s
immunity on the beneficiaries. Id. at 670.
6
In Bradt, the plaintiffs alleged claims for conspiracy to maliciously
prosecute, malicious prosecution, intentional infliction of emotional distress,
tortious interference with contractual relations, and liability under the Texas Tort
Claims Act. 892 S.W.2d at 65. The court upheld summary judgment for the
opposing attorneys, disallowing recovery against opposing counsel on any cause
of action for conduct arising out of representation of his own client in litigation.
Id. at 76; see also Jurek v. Kivell, No. 01-10-00040-CV, 2011 WL 1587375, at
*4–6 (Tex. App.—Houston [1st Dist.] Apr. 21, 2011, no pet.) (mem. op.) (affirming
summary judgment for opposing counsel on fraud claim by plaintiff based on
failure to disclose existence of will during mediation); Bosch v. Armstrong, No.
01-08-00847-CV, 2009 WL 1635318, at *3–4 (Tex. App.—Houston [1st Dist.]
June 11, 2009, pet. denied) (mem. op.) (upholding summary judgment for
attorney on claims for malicious prosecution, defamation, fraud, and abuse of
process by plaintiff against opposing counsel in underlying litigation); Dixon Fin.
Servs., 2008 WL 746548, at *9 (upholding summary judgment on claims for

11
 A defendant such as Cantey Hanger that moves for a traditional summary

judgment must either negate at least one element of the plaintiff's theory of

recovery, “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936

(Tex. 1972), or plead and conclusively prove each element of an affirmative

defense. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996) (holding defendant

landlord established no “duty” as matter of law, negating element of plaintiff’s

claim); see also City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,

678 (Tex. 1979). It is well settled that once the movant has done so, the burden

shifts to the non-movant to produce evidence creating a fact issue on an element

of the movant’s affirmative defense or on its own defense. Walker, 924 S.W.2d

at 377.

Courts have varied in how they have handled an exception such as fraud

to the attorney’s litigation immunity in the traditional summary judgment context.

Some courts have held that the attorney must both establish its immunity as a

matter of law and disprove the applicability of a pleaded exception to the

immunity such as fraud as a matter of law. Compare Toles, 113 S.W.3d at 911–

12 (defendant law firm must attack merits of and conclusively negate arguable

fraud claim pleaded by plaintiff as exception to immunity); Mendoza v. Fleming,

conversion, abuse of process, fraud and conspiracy to defraud by plaintiff against
opposing counsel in underlying litigation); Alexander v. Malek, No. 01-06-01156-
CV, 2008 WL 597652, at *3 (Tex. App.—Houston [1st Dist.] Mar. 6, 2008, no
pet.) (mem. op.) (affirming summary judgment on claims based on attorney’s
representations to opposing party regarding trial date).

12
41 S.W.3d 781, 787 (Tex. App.—Corpus Christi 2001, no pet.) (same), with

Reagan Nat’l Adver. of Austin, Inc. v. Hazen, No. 03-05-00699-CV, 2008 WL

2938823, at *8–10 (Tex. App.—Austin July 29, 2008, no pet.) (mem. op.) (non-

movant had burden to raise issue of fact on exception to immunity of attorney to

defeat summary judgment based on immunity) (citing Eckman v. Centennial Sav.

Bank, 784 S.W.2d 672, 675 (Tex. 1990) (op. on reh’g) and “Moore” Burger, 492

S.W.2d at 936–37)); Lackshin, 2004 WL 1965636, at *3 (noting differing burdens

applied by some courts and holding plaintiff non-movant was required to and

failed to plead sufficient facts showing that he fell within fraud exception to

immunity); Chapman Children’s Trust, 32 S.W.3d at 442 (holding once defendant

established as matter of law that alleged actionable conduct was undertaken in

course of representation of client, burden shifted to plaintiff to raise fact issue by

sufficient facts to show conduct fell within exception to immunity).

I believe that the better view consistent with Texas’s summary judgment

practice is, as held by our sister court in Austin, that once Cantey Hanger

established as a matter of law that its conduct was within the course of its

representation of its client in the underlying divorce litigation against Byrd, it

established its affirmative defense of immunity as a matter of law and that the

burden shifted to Byrd to plead and present evidence raising a fact issue

regarding the fraud exception, that is, his counter-defense of fraud to Cantey

Hanger’s affirmative defense. Cantey Hanger did not have to file yet another

motion for summary judgment to conclusively disprove Byrd’s fraud claim. See

13
Reagan Nat’l Adver. of Austin, 2008 WL 2938823, at *8–10 (holding burden

shifted to non-movant to raise issue of fact as to exception to immunity; movant

attorney did not have to prove a negative); see also Zeifman v. Nowlin, 322

S.W.3d 804, 807–08 (Tex. App.—Austin 2010, no pet.); Palmer v. Enserch Corp.,

728 S.W.2d 431, 435 (Tex. App.—Austin 1987, writ ref’d n.r.e.) (citing “Moore”

Burger, 492 S.W.2d at 936–37).

Contrary to the majority’s characterization of Cantey Hanger’s motion for

traditional summary judgment, I do not read its motion as based on failure of

Byrd’s pleadings to state a cause of action. Cantey Hanger attached evidence to

its motion, and Byrd responded with his own summary judgment evidence

consisting of his affidavit and a copy of the bill of sale, which as the majority

points out, was struck by the trial court. Pleadings are not competent summary

judgment evidence. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904

S.W.2d 656, 660 (Tex. 1995); Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d

540, 543–44 (Tex. 1971). Thus, even assuming that Byrd pleaded fraud as an

exception to the attorney immunity, he cannot rely on his pleadings to claim that

he met his burden of producing evidence to create a fact issue. Byrd’s affidavit

averred that he never received the documents from Cantey Hanger to sign on

behalf of Lucy Leasing, transferring the airplane to Nancy as ordered by the

divorce decree (although according to him, Cantey Hanger’s position is that he

refused to sign them), and that Cantey Hanger never transferred the airplane to

Nancy or completed its registration in her name, leaving the airplane still

14
registered to Byrd’s corporation, Lucy Leasing. Maj. Op. at 10–11. At worst, any

failure to draft the documents for transfer of the plane in question to Nancy first,

and assisting Nancy in transferring the airplane directly to a purchaser by signing

the bill of sale in her married name and as “manager,” instead, could

hypothetically be malpractice, but Cantey Hanger owed no duty of care to Byrd.

I would hold that Byrd has neither alleged nor presented evidence raising

an issue of fact that he is entitled to an exception to the attorney immunity

doctrine for fraud. He has not alleged an intentional misrepresentation to him by

the alleged bill of sale or that he relied to his detriment on any falsity in the

alleged bill of sale. See Easton v. Phelan, No. 01-10-01067-CV, 2012 WL

1650024, at *9 (Tex. App.—Houston [1st Dist.] May 10, 2012, no pet.) (mem. op.)

(holding allegations in petition, if true, alleged no facts that would have supported

a finding of independent fraudulent actions such as a fraudulent transfer,

violating a direct duty to the non-client, qualifying as negligent misrepresentation,

or any other claim a non-client may assert against an attorney); see also Ortega

v. Young Again Prods., Inc., No. H-12-0001, 2012 WL 3046116, at *9 (S.D. Tex.

July 25, 2012) (mem. op. on reh’g) (plaintiff did not allege any misrepresentation

by attorney or her client upon which he relied in connection with writs of

execution); FinServ, 724 F. Supp. 2d at 675–76 (complaint merely challenged

merits of actions of attorneys in executing writs by failing to perform

investigations and proceeding after receiving notice that property did not belong

15
to plaintiffs, and it did not allege actions not within discharge of attorneys’ duties

to client).

Byrd candidly admits in his brief that the airplane in question, along with

two others, was awarded to Nancy and now belong to her, that she is free to do

with them as she wishes, and that although he “believes” that Cantey Hanger

assisted Nancy in preparation of the bill of sale, he is unable to ascertain to what

extent, if any, Cantey Hanger was even involved in the sale. The majority, as

well as Byrd, also acknowledges that the divorce decree makes Nancy

responsible for any ad valorem taxes, “liens, assessments, or other charges due

or to become due on the personal property awarded to” her. Maj. Op. at 10.

Since it appears that Nancy is thus responsible for any sales tax on the sale of

the airplane, it would appear that Byrd’s remedy is against Nancy by enforcement

of the divorce decree for recovery of any such sales tax liability, which has yet to

be charged to Lucy Leasing, or any other charge that may be incurred by Lucy

Leasing as a result of the sale of the airplane. 7

Because the fraud action against Cantey Hanger is based upon its alleged

conduct in discharge of its duties in representing Nancy against Byrd in the

underlying divorce litigation, and because Byrd has not alleged or raised an issue

7
Nor has Byrd alleged why he would not have known that the airplane had
not been transferred to Nancy when he did not receive the transfer documents to
sign within ten days after the decree, if such be true, or why he was helpless as
the owner of Lucy Leasing after the decree was signed, to transfer title to Nancy
himself.

16
of fact sufficient to establish a claim for fraud as an exception to the immunity, I

would hold that immunity bars Byrd’s claim of fraud against Cantey Hanger as

well as their claims of conspiracy and aiding and abetting regarding the same

conduct involving the transfer and bill of sale of the same airplane. 8 I concur in

the remainder of the majority’s opinion and would affirm the trial court’s summary

judgment in favor of Cantey Hanger as to all causes of action pleaded by Byrd.

ANNE GARDNER
JUSTICE

DELIVERED: August 1, 2013

8
See Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 583
(Tex. 2001) (failure of claim for fraud necessarily defeated dependent conspiracy
and aiding and abetting claim); see also Kline v. O’Quinn, 874 S.W.2d 776, 786–
87 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (absence of fiduciary duty
between plaintiff and third party defeated aiding and abetting breach of fiduciary
claim against defendant), cert. denied, 515 U.S. 1142 (1995).

17