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

----------

FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

----------

OPINION

----------

This is an appeal from the trial court‟s final judgment incorporating a partial

summary judgment and an order of dismissal. We reverse and remand in part

and affirm in part.
 Background

Appellant Philip Gregory Byrd and appellee Nancy Ann Simenstad were

divorced in Parker County, Texas, in August 2008; the judge of the 415th District

Court signed an agreed decree on August 11, 2008 and a decree nunc pro tunc

on November 17, 2008. At different times during the divorce proceedings,

appellees Vick, Carney & Smith LLP and Cantey Hanger LLP represented

Nancy. In August 2010, Philip, Lucy Leasing Co., LLC, and PGB Air, Inc. sued

appellees, bringing claims arising from appellees‟ alleged actions during and

after the divorce proceedings. Lucy Leasing and PGB Air were companies

formed by Philip before the divorce; a majority of the “right, title, and interest” in

both companies was awarded to Philip in the agreed decree.1 Appellants

brought claims for aiding and abetting under family code section 42.003 (child

custody interference), conspiracy, fraud, conversion, defamation, unfair debt

collection practices, intentional infliction of emotional distress (IIED), unjust

enrichment, and violations of the temporary orders and final decree.

On January 27, 2011, Cantey Hanger filed a motion to dismiss and motion

for summary judgment on all of appellants‟ claims. Vick Carney filed a motion for

summary judgment, or in the alternative a motion to dismiss, in March 2011.

Nancy filed a pro se motion to dismiss and for summary judgment.

1
The interest in the companies was not confirmed as Philip‟s separate
property; instead, all “right, title, and interest” in both companies was divided
between the parties in the agreed decree. Nothing in the record shows the
ownership structure of these companies.

2
 Appellants filed a second amended petition in May 2011, in which they

removed their section 42.003 child custody interference allegation from their

aiding and abetting claim and removed their claims regarding violation of the

decree and temporary orders. On June 3, the trial court heard the summary

judgment motions and granted the motions of Cantey Hanger and Vick Carney

on all of appellants‟ claims. The trial court denied Nancy‟s motion, however.

Nancy filed a second motion to dismiss and for summary judgment, which

the trial court ultimately granted, dismissing all of appellants‟ claims against

Nancy and making all of the orders final and appealable. See Lehmann v. Har-

con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

Points on Appeal

Appellants bring nine points. In their first five points, they contend the trial

court erred by concluding it had no jurisdiction over their claims against Nancy for

fraud, conspiracy, conversion, defamation, and IIED. In their sixth through ninth

points, they contend that the trial court erred by granting summary judgment for

Cantey Hanger on their claims for fraud, conspiracy, aiding and abetting, and

IIED. Although appellants‟ notice of appeal indicates the intent to appeal the

summary judgment for Vick Carney, appellants‟ prayer asks this court to reverse

only the summary judgment for Cantey Hanger and the order dismissing the

claims against Nancy. Therefore, we will review only the orders for Cantey

Hanger and Nancy. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121

3
(Tex. 1970); Murphy v. Gruber, 241 S.W.3d 689, 700 (Tex. App.––Dallas 2007,

pet. denied).

Motion to Dismiss

Appellants did not challenge the trial court‟s dismissal of their unjust

enrichment claim; thus, we will review the propriety of the dismissal order as to

their claims for fraud, conspiracy, conversion, defamation, and IIED only.

Nancy‟s motion contends that because appellants‟ claims are based on the

final decree––and thus are more properly brought in an enforcement action––

they must be brought in the divorce court. According to Nancy, all of the claims

against her are based on appellants‟ allegations that she failed to comply with the

property division in the decree and that she failed to comply with the decree‟s

provisions regarding possession of and access to the couple‟s children.

Although Nancy characterizes the suit as an enforcement action,2

appellants, by their claims, do not seek to enforce the provisions of the decree;

rather, they seek damages based on alleged wrongful conduct by Nancy during

and after the divorce proceedings. See James v. Easton, 368 S.W.3d 799, 802–

04 (Tex. App.––Houston [14th Dist.] 2012, pet. denied) (holding that claims

against opposing litigant for wrongful conduct in lawsuit need not be brought in

2
See Tex. Const. art. V, § 8; Tex. Gov‟t Code Ann. § 24.008 (West 2004);
see also Tex. Fam. Code Ann. § 9.001 (West 2006) (“A party affected by a
divorce decree . . . may request enforcement of that decree by filing a suit to
enforce as provided by this chapter in the court that rendered the
decree.”), § 9.002 (“The court that rendered the decree of divorce or annulment
retains the power to enforce the property division as provided in Chapter 7.”).

4
the suit in which the conduct occurs and can be the basis of an independent tort).

Appellants‟ fraud and conspiracy claims are based on their allegations that

Nancy conspired with Cantey Hanger to falsify an airplane bill of sale after the

divorce and that she withdrew large amounts of money from a PGB bank account

knowing she did not have the authority to do so. The conversion claims are

likewise based on Nancy‟s alleged withdrawal of money from Lucy Leasing and

PGB‟s bank account. The defamation and IIED claims are based on alleged

actions occurring after the decree. These are not claims attempting to enforce

the terms of the decree. See Fernander v. Fernander, No. 03-08-00222-CV,

2010 WL 1814672, at *3 (Tex. App.––Austin May 7, 2010, no pet.) (mem. op.);

Solares v. Solares, 232 S.W.3d 873, 878 (Tex. App.––Dallas 2007, no pet.).

We conclude and hold that Nancy‟s claims are not enforcement claims for

which the divorce court has exclusive, continuing jurisdiction3 and, thus, that the

trial court erred by granting the motion to dismiss on that ground.4 We sustain

appellants‟ first through fifth issues.

3
See Chavez v. McNeely, 287 S.W.3d 840, 844–45 (Tex. App.––Houston
[1st Dist.] 2009, no pet.) (holding that sections 9.001 and 9.002 do not provide
divorce court with exclusive jurisdiction even over enforcement actions).
4
We do not address the summary judgment part of Nancy‟s motion
because the trial court, by dismissing her claims based on her jurisdictional
arguments, did not rule on the motion.

5
 Summary Judgment for Cantey Hanger

Appellants challenge the trial court‟s summary judgment for Cantey

Hanger on their fraud, conspiracy, aiding and abetting, and IIED claims only.

Therefore, we will review the propriety of the summary judgment on those claims

only.

Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant‟s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively

negates at least one essential element of a cause of action is entitled to

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). The defendant is required

to meet the plaintiff‟s case as pleaded to demonstrate that the plaintiff cannot

prevail. Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759

(Tex. 1976).

6
Applicable Facts

Appellants alleged in their second amended petition that Cantey Hanger

and Nancy falsified a bill of sale for a Piper Seminole No. N21113 owned by Lucy

Leasing to show that Nancy was a manager of Lucy Leasing and had authority to

transfer ownership of the airplane. According to appellants, Cantey Hanger and

Nancy did so to shift tax liability for the airplane sale to Lucy Leasing. Appellants

also alleged that Cantey Hanger “purposefully failed to notify [Philip] and the

[trial] Court of their changes to the Final Decree to Divorce so that the Court

would grant the Motion for Judgment Nunc Pro Tunc and effectively change the

division of debts past the date allowed for modification of the Decree.”

Appellants do not challenge summary judgment on the second allegation, only

the first relating to alleged falsification of the airplane bill of sale, which is the

basis of their fraud, conspiracy, and aiding and abetting claims.

Specifically, appellants alleged as their aiding and abetting claim that

Defendant CANTEY HANGER assisted Defendant
SIMENSTAD to commit fraud in the sale of aircraft belonging to
Plaintiff LUCY. Defendant CANTEY HANGER aided Defendant
SIMENSTAD by falsifying the bill of sale for the aircraft listing
Defendant SIMENSTAD as a manager of Plaintiff LUCY and having
Defendant SIMENSTAD sign as a manager of LUCY. Defendant
CANTEY HANGER further assisted Defendant SIMENSTAD to
evade tax liability for her sale of the aircraft and to shift the tax
liability to Plaintiff LUCY.

Their conspiracy claim is that

Defendant CANTEY HANGER conspired with Defendant
SIMENSTAD to complete a fraudulent bill of sale (a federal
document) for an airplane awarded to her in the Decree by signing

7
 as “Nancy Byrd” and listing her title as “Manager” of Plaintiff LUCY,
even though Defendant CANTEY HANGER and SIMENSTAD were
aware that Defendant SIMENSTAD was never an officer, owner or
manager of Plaintiff LUCY and that she changed her last name back
to “Simenstad.” Defendants CANTEY HANGER and SIMENSTAD
did so to fraudulently avoid tax liability, shifting it to Plaintiff LUCY.

Finally, under their fraud cause of action, they claimed that

Defendants CANTEY HANGER and SIMENSTAD, with the intent to
avoid paying taxes and with the intent to shift tax liability to Plaintiff
LUCY, falsified an aircraft bill of sale (a federal document) and
refused to properly change the registration of the aircraft. Defendant
SIMENSTAD was not allowed by law to sell the aircraft directly to a
purchaser on behalf of Plaintiff LUCY.

Cantey Hanger moved for summary judgment on the fraud, aiding and

abetting, and conspiracy claims on the ground that it had no duty to Philip as it

was not in privity with him in the divorce, that it was immune from liability for

actions taken in its representation of Nancy in the divorce, and that for those

reasons its alleged actions were not fraudulent as a matter of law. 5 According to

Cantey Hanger, all of the alleged actions it took were in the course of

5
In its “Reply In Support Of Motion . . . For Summary Judgment,” Cantey
Hanger contended that as a matter of law it could not have committed fraud in
the sale of the aircraft because it was awarded to Nancy in the divorce.
Additionally, Cantey Hanger contended that appellants “did not take any action in
reliance on the alleged „false bill of sale.‟” But Cantey Hanger did not specifically
amend its motion for summary judgment to raise additional grounds in its reply.
Therefore, we do not consider its additional arguments in that document as
additional grounds for summary judgment. See, e.g., Reliance Ins. Co. v.
Hibdon, 333 S.W.3d 364, 378 (Tex. App.––Houston [14th Dist.] 2011, pet.
denied) (op. on reh‟g) (“A movant is not entitled to use its reply to amend its
motion for summary judgment or to raise new and independent summary-
judgment grounds.”); Garcia v. Garza, 311 S.W.3d 28, 36 (Tex. App.––San
Antonio 2010, pet. denied).

8
representing Nancy in the divorce suit.6 As evidence, Cantey Hanger attached

the decree, the decree nunc pro tunc, and affidavits of two of its attorneys.

Importantly, Cantey Hanger did not allege no-evidence grounds in its motion for

summary judgment.

In the part of the agreed decree entitled, “Division of Marital Estate,” Philip

was awarded “[a]ll right, title, and interest in PGB Air, Inc. and Lucy Leasing Co.,

LLC, except as specifically set forth in Section IX(B)(4)” of the decree. That

section awards Nancy as her separate property three airplanes: the Piper

Seminole No. N21113, a Piper Seminole number N2950A, and an aircraft

numbered N2816R.7 That section also states that Philip “shall not remove any

part of said planes or otherwise alter their condition.”

The decree ordered each party to execute––and the attorneys for the

nonsignatory parties to draft––documents to transfer ownership of the airplanes

to Nancy within ten days of the date of the decree. The decree states that Nancy

is not liable for any encumbrance on the airplanes, but it further provides that

Nancy is responsible for any ad valorem taxes, “liens, assessments, or other

charges due or to become due on the personal property awarded to” her. The

6
Cantey Hanger raised other grounds for summary judgment directed
specifically at the enforcement claims, which appellants dropped from their
second amended petition; therefore, we do not address those grounds.
7
Two other planes were awarded to Philip in the “Division of Marital Estate”
section of the agreed decree: a Cessna No. 7295E and a Cessna No. 3340S;
nothing in the record indicates in whose name those planes were registered or
titled.

9
decree also ordered that each party should file 2007 and 2008 income taxes

individually and would be entitled to 100 percent of any refund received. Philip

admitted that he agreed to the terms of the August 2008 decree.

The November 17, 2008 decree nunc pro tunc contains most of the same

provisions as the August 2008 decree.8

In one of the affidavits, an attorney averred that he represented Nancy in

the divorce, post-judgment enforcement proceedings, and Byrd‟s personal

bankruptcy proceeding. He also stated that “[a]ll actions taken by Cantey Hanger

with respect to Plaintiffs were made in the course and scope of representing”

Nancy. He further averred that “Plaintiff Byrd and his two defunct business

entities, Lucy Leasing Co., LLC and PGB Air, Inc., have never had an attorney-

client relationship with Cantey Hanger but have always been adverse to Cantey

Hanger‟s former client,” Nancy. The other attorney averred that she represented

Nancy in the divorce and that all actions taken by the firm were in the course and

scope of representing Nancy.

Appellants attached to their summary judgment response an affidavit from

Philip in which he stated that Nancy had never been an “owner, officer, manager

or director of Lucy Leasing or PGB Air.” He further averred as follows:

8
Philip disputes that the decree nunc pro tunc merely corrected a clerical
error; however, because he did not challenge the summary judgment as to his
allegations related to the entry of the decree nunc pro tunc, we will not address
the dispute. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970);
Murphy v. Gruber, 241 S.W.3d 689, 700 (Tex. App.––Dallas 2007, pet. denied).

10
 Nancy . . . sold one of the airplanes that was awarded to her in
the Divorce Decree. Cantey Hanger was to draft the documents to
effectuate the transfer of the airplane for me to sign on behalf of
Lucy Leasing. I never received the transfer documents for me to
sign. Later, I found out that Nancy . . . had sold the plane directly to
another purchaser. She signed the bill of sale as “manager” of Lucy
Leasing when she was never a manager of Lucy Leasing and I was
the sole manager of Lucy Leasing. By doing this, she made Lucy
Leasing the seller of the aircraft to the purchaser and responsible for
sales tax. Neither she nor Cantey Hanger ever transferred the
airplane to Nancy . . . . And they did not complete the registration for
the airplane when they sold it. The aircraft is still improperly
registered to Lucy Leasing to date [May 26, 2011].

Nothing in the record indicates in whose name the other two planes were

registered or titled at the time of the divorce or summary judgment proceeding.

Appellants also produced a bill of sale for the Piper Seminole No. N21113

dated November 11, 2009. The trial court struck the bill of sale on Cantey

Hanger‟s hearsay objection. Because appellants do not challenge the trial

court‟s ruling on Cantey Hanger‟s objections, we may not consider the bill of sale.

See Kaufman v. Islamic Soc’y of Arlington, 291 S.W.3d 130, 137 n.15 (Tex.

App.––Fort Worth 2009, pet. denied).

Applicable Law

Texas law authorizes attorneys to “practice their profession, to advise their

clients, and to interpose any defense or supposed defense, without making

themselves liable for damages.” Kruegel v. Murphy, 126 S.W. 343, 345 (Tex.

Civ. App.––Dallas 1910, writ ref‟d); see Renfroe v. Jones & Assocs., 947 S.W.2d

285, 287 (Tex. App.––Fort Worth 1997, writ denied). The purpose behind this

well-established rule is to allow an attorney to fulfill his duty and zealously

11
represent his clients without subjecting himself to the threat of liability. Dixon Fin.

Servs., Ltd. v. Greenberg, Peden, Siegmyer & Oshman, P.C., No. 01-06-00696-

CV, 2008 WL 746548, at *7 (Tex. App.––Houston [1st Dist.] Mar. 20, 2008, pet.

denied) (mem. op. on reh‟g). An attorney who could be held liable for statements

made or actions taken in the course of representing his client would be forced

constantly to balance his own potential exposure against his client‟s best interest.

Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex. App.––Houston

[1st Dist.] 2005, pet. denied). Such a result would act as a severe and crippling

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

development of his rights. Dixon Fin. Servs., Ltd., 2008 WL 746548, at *7.

To promote zealous representation, courts have held that an attorney has

“qualified immunity” from civil liability, with respect to nonclients, for actions taken

in connection with representing a client in litigation. Alpert, 178 S.W.3d at 405.

This qualified immunity generally applies even if conduct is wrongful in the

context of the underlying lawsuit. Id.; Renfroe, 947 S.W.2d at 287–88. For

example, a third party has no independent right of recovery against an attorney

for filing motions in a lawsuit, even if frivolous or without merit, although such

conduct is sanctionable or contemptible as enforced by the statutory or inherent

powers of the court. Alpert, 178 S.W.3d at 405. Courts have refused to

acknowledge an independent cause of action in such instances “because making

motions is conduct an attorney engages in as part of the discharge of his duties

in representing a party in a lawsuit.” Id. Under the same reasoning, an attorney

12
for an opposing party may not be held liable for fraud merely for making

representations to the opposing party in litigation that further the best interests of

his own clients. E.g., Chu v. Hong, 249 S.W.3d 441, 446 & n.19 (Tex. 2008);

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

794 (Tex. 1999). If an attorney‟s conduct violates his professional responsibility,

the remedy is public, not private. Renfroe, 947 S.W.2d at 287.

This rule of qualified immunity focuses on the type of conduct in which the

attorney engages rather than on whether the conduct was meritorious in the

context of the underlying lawsuit. Id. at 288. “[I]t is the kind––not the nature––of

conduct that is controlling.” Dixon Fin. Servs., Ltd., 2008 WL 746548, at *7; see

Taco Bell Corp. v. Cracken, 939 F. Supp. 528, 532–33 (N.D. Tex. 1996) (mem.

op. and order). Thus, an attorney cannot be held liable to a third party for

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

attorney.” Dixon Fin. Servs., Ltd., 2008 WL 746548, at *7 (quoting Miller v.

Stonehenge/Fasa-Texas, JDC, L.P., 993 F. Supp. 461, 464 (N.D. Tex. 1998)

(order)). Incorrect, meritless, and even frivolous conduct is not actionable if it

satisfies this standard. Id.

An attorney‟s protection from liability is not boundless, however. Id. at *8.

An attorney can be held liable by a third-party for actions that are not part of the

discharge of his duties to his client. See Alpert, 178 S.W.3d at 406; Bradt v.

West, 892 S.W.2d 56, 71 (Tex. App.––Houston [1st Dist.] 1994, writ denied). If a

lawyer participates independently in fraudulent activities, his action is “foreign to

13
the duties of an attorney.” Alpert, 178 S.W.3d at 406; see Poole v. Houston &

T.C. Ry. Co., 58 Tex. 134, 137 (1882). In other words, the law does not provide

absolute immunity for every tort committed by a lawyer that may be tangentially

related to his professional role or which may occur during litigation. See Bradt,

892 S.W.2d at 71–72; see also Miller, 993 F. Supp. at 464. By way of extreme

example, an attorney who assaults the opposing party or lawyer during trial could

be held liable for that act. See Bradt, 892 S.W.2d at 72.

“An attorney who personally steals goods or tells lies on a client‟s behalf

may be liable for . . . fraud in some cases.” Chu, 249 S.W.3d at 446 (emphasis

added); see McCamish, Martin, Brown & Loeffler, 991 S.W.2d at 793–94 (noting

that the privity requirement prohibits a third party from suing an attorney for legal

malpractice but not other torts, such as negligent misrepresentation); Likover v.

Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex. App.––Houston [1st Dist.]

1985, no writ) (holding that “[a]n attorney is liable if he knowingly commits a

fraudulent act that injures a third person, or if he knowingly enters into a

conspiracy to defraud a third person” in the course of representing his client). To

be held so liable for conspiracy, the attorney must have agreed to the injury to be

accomplished, not merely the conduct ultimately resulting in injury. Chu, 249

S.W.3d at 446.

Analysis

Here, Cantey Hanger‟s preparation of a bill of sale to facilitate transfer of

an airplane awarded to its client in an agreed divorce decree was conduct in

14
which an attorney engages to discharge his duties to his client. See Dixon Fin.

Servs., Ltd., 2008 WL 746548, at *8. But as pled by appellants, the conduct

complained of is the intentional misrepresentation of Nancy‟s status in the bill of

sale to a third party as a “Manager” of Lucy Leasing for the purpose of unlawfully

relieving Nancy of tax liability for the sale and shifting that tax liability to Lucy

Leasing. The focus of our analysis is on the kind––not the nature––of the

attorney‟s alleged conduct. Id. at *8; Renfroe, 947 S.W.2d at 288. Although the

preparation of a bill of sale to transfer an airplane is not conduct “foreign to the

duties of an attorney,” the intentional and knowing inclusion of false information

in a bill of sale to assist a client in avoiding tax liability is. Cf. Estate of

Stonecipher v. Estate of Butts, 686 S.W.2d 101, 103 (Tex. 1985); Likover, 696

S.W.2d at 472. But cf. Dixon Fin. Servs., Ltd., 2008 WL 746548, at *9 (“Even

when taken as true and construed broadly, Dixon Financial‟s petition alleges that

the underlying purpose of the communications was for the attorneys to secure

satisfaction of their clients‟ arbitration award.”)

The alleged conduct here did not occur in an adversarial context vis a vis

Nancy and Lucy Leasing. The subsequent sale of the airplane to a third party

after it had already been awarded to Nancy in the agreed decree was not

required by, and had nothing to do with, the divorce decree.9 Because of the

9
For the same reason, Cantey Hanger‟s alternative claim that only the
divorce court had jurisdiction over appellants‟ claims fails. See, supra, at 4–5.
We note that Cantey Hanger represented Nancy in a post-divorce suit against
one of Philip‟s divorce attorneys and his law firm for the attorney‟s alleged

15
summary judgment standard of review, we are not concerned with whether

appellants proved or even provided evidence of their allegations regarding the bill

of sale because Cantey Hanger did not raise that issue in its motion for summary

judgment. See, e.g., Delgado v. Combs, No. 07-11-00273-CV, 2012 WL

4867600, at *2 (Tex. App.––Amarillo Oct. 15, 2012, no pet.) (mem. op.). Instead,

we must address the narrow issue of whether Cantey Hanger is immune as a

matter of law for its actions as alleged by appellants. Nat’l City Bank of Ind. v.

Ortiz, Nos. 14-10-01125-CV, 14-10-01262-CV, 2013 WL 2120812, at *9 n.4 (Tex.

App.––Houston [14th Dist.] May 16, 2013, no pet.) (op. on reh‟g); Brocail v.

Detroit Tigers, Inc., 268 S.W.3d 90, 109 (Tex. App.––Houston [14th Dist.] 2008,

pet. denied), cert. denied, 558 U.S. 877 (2009). Under the reasoning of the

above cases, such alleged actions, if true, would not shield an attorney from

liability simply because he or she undertook those actions in the course of

representation of a client. Cf. Toles v. Toles, 113 S.W.3d 899, 912 (Tex. App.––

Dallas 2003, no pet.) (holding that similar argument by defendants––that they

could not be liable because their actions were taken during representation of

client––was not sufficient to support summary judgment on claim for aiding and

abetting, breach of fiduciary duty, and conspiracy).

negligence during the divorce. In the suit, which was filed in the 96th District
Court of Tarrant County, Nancy alleged that the attorney and Southside
Bancshares negligently allowed Philip to obtain and cash a check consisting of
community funds, knowing that Philip had no intention of giving Nancy her share
of the money.

16
 Accordingly, whether the allegations are true or not––and we must

consider them true for purposes of reviewing the summary judgment10––the

alleged actions are outside the scope of representation of a client and, thus, the

trial court should not have granted summary judgment on the fraud, conspiracy,

and aiding and abetting claims for that reason. We conclude and hold that the

trial court erred by granting summary judgment for Cantey Hanger on the specific

grounds raised in its motion as to appellants‟ fraud, conspiracy, and aiding and

abetting claims.11 We sustain appellants‟ sixth through eighth points.

Also in appellants‟ second amended petition, Philip alleged as facts

supporting his IIED claim (1) that Cantey Hanger and Nancy used the couple‟s

children as “bait” by making Philip wait to pick them up at Nancy‟s house while a

process server was on the way, (2) that Cantey Hanger and Nancy contacted his

family, friends, and business contacts for the purpose of defaming Philip by

telling them he had a sexually transmitted disease to cause him emotional

distress and collect money from him, and (3) that they both lied to the couple‟s

children by telling them that he did not pay child support and did not care about

them. Cantey Hanger moved for summary judgment on this claim on the

following ground in addition to the immunity ground: “Plaintiff‟s [IIED] cause of

10
Our discussion of these issues is dictated by the standard of review, and
should not be considered a commentary on the viability of appellants‟ claims on
other grounds, especially considering that appellants, in their briefing in this
court, accuse Cantey Hanger and Nancy of “[t]he commission of a crime.”
11
Our holding is limited to these very narrow grounds.

17
action is precluded by the laundry list of other alleged causes of action brought

by Plaintiffs and, therefore, should be disposed of by summary judgment.” 12

As a matter of law, the first allegation––that Cantey Hanger assisted

Nancy in using the children as “bait” by advising her to make Philip wait while a

process server was on the way––is not actionable because Cantey Hanger‟s

advice was made during the course of representing Nancy in the divorce, and

attempting to obtain service of process is conduct in which an attorney must

necessarily engage. See Dixon Fin. Servs., Ltd., 2008 WL 746548, at *8.

Philip‟s second and third allegations are related to conduct occurring both

during and after the divorce. Cantey Hanger contends that other causes of

action alleged in the second amended petition preclude an IIED action. IIED is a

gap-filler tort, “judicially created for the limited purpose of allowing recovery in

those rare instances in which a defendant intentionally inflicts severe emotional

distress in a manner so unusual that the victim has no other recognized theory of

redress.” Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex.

12
In its reply to appellants‟ summary judgment response, Cantey Hanger
also states that (1) a cause of action for IIED is barred because an attorney is
supposed to attempt to obtain service at times when a party is known to be or
suspected to be likely to appear; therefore, such actions were not extreme and
outrageous, (2) because the petition itself does not allege that Cantey Hanger
told anyone about the sexually transmitted disease and if it did, it was not done
so maliciously and with knowing falsity, the allegation cannot support an
allegation of IIED, and (3) and because the allegations regarding the children are
not extreme and outrageous and unsupported by admissible evidence, they are
barred. Cantey Hanger did not move for a summary judgment on these grounds,
however, so the trial court could not––and we cannot––consider them. See, e.g.,
Reliance Ins. Co., 333 S.W.3d at 378; Garcia, 311 S.W.3d at 36.

18
2004). When the gravamen of a complaint is covered by another common-law or

statutory tort, IIED is not available. Id.

Philip included the second and third allegations as grounds supporting his

defamation claims, and the gravamen of those allegations is that Philip was

defamed as a result. Thus, IIED is not available to Philip as a cause of action

against Cantey Hanger, and the trial court did not err by granting summary

judgment for Cantey Hanger on that cause of action. See id. at 448; Draker v.

Schreiber, 271 S.W.3d 318, 323 (Tex. App.––San Antonio 2008, no pet.). We

therefore overrule appellants‟ ninth point.

19
 Conclusion

Having sustained all of appellants‟ first through eighth points, we reverse

the trial court‟s order dismissing the fraud, conspiracy, conversion, defamation,

and IIED claims against Nancy, and we reverse the trial court‟s summary

judgment for Cantey Hanger on the fraud, conspiracy, and aiding and abetting

claims only. We remand this case to the trial court for further proceedings on

those claims only. We affirm the remainder of the summary judgment for Cantey

Hanger, the remainder of the dismissal order for Nancy, and the summary

judgment for Vick Carney.13

TERRIE LIVINGSTON
CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

GARDNER, J., filed a concurring and dissenting opinion.

DELIVERED: August 1, 2013

13
See Jacobs v. Satterwhite, 65 S.W.3d 653, 665–66 (Tex. 2001).

20