COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00468-CV

PHILIP GREGORY BYRD, LUCY 

LEASING CO., LLC, AND PGB AIR, 

INC.

APPELLANTS

V.

VICK, CARNEY & SMITH LLP, 

CANTEY HANGER LLP, AND 

NANCY ANN SIMENSTAD

APPELLEES

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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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OPINION

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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.
2

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.
3

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. Harcon 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 
4

(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 

 

2See 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.”).
5

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 jurisdiction3and, thus, that the 

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

appellants‟ first through fifth issues.

 

3See 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).

4We 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.
6

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).
7

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 
8

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 summaryjudgment grounds.”); Garcia v. Garza, 311 S.W.3d 28, 36 (Tex. App.––San 

Antonio 2010, pet. denied).
9

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 

 

6Cantey 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.
10

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 attorneyclient 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:

 

8Philip 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).
11

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 
12

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 
13

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 
14

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 
15

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 
16

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.
17

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 

 

10Our 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.”

11Our holding is limited to these very narrow grounds.
18

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.

 

12In 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.
19

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.
20

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

 

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