Affirmed in Part, Reversed in Part, and Remanded in Part and Opinion filed May 

15, 2012.

In The

Fourteenth Court of Appeals 

NO. 14-11-00053-CV

CAROLYN C. JAMES, Appellant,

V.

MICHAEL EASTON AND PETER J. RIGA, Appellees.

On Appeal from the 61st District Court

Harris County

Trial Court Cause No. 2010-12915

O P I N I O N

This is an appeal from a denial of a temporary injunction and a dismissal on 

special exceptions. Appellant Carolyn C. James sued appellees Michael Easton and Peter 

J. Riga for intentional infliction of emotional distress and tortious interference with a 

contract. At the core of this case are inappropriate messages Easton sent to James and the 

medical expert she retained in three unrelated cases. We affirm the trial court’s denial of 
2

the application for temporary injunction, reverse the trial court’s dismissal of James’s 

claims based on special exceptions, and remand for further proceedings.

I

This suit arose out of several different ongoing proceedings concerning James’s 

mother, who suffers from dementia. Two cases are pending in probate court, and one case 

is pending in the 61st District Court of Harris County. Easton has intervened in all three 

cases. James brought this suit separately in response to Easton’s out-of-court behavior in 

these other cases. The Honorable Al Bennett was the presiding judge in this case and also 

presides over the other pending case in the 61st District Court.

Following his interventions into the other cases, Easton began to directly contact 

James and her medical expert, even though James was represented by counsel. Easton 

represented himself in these proceedings, and though he is not an attorney, he often sent 

written correspondence to James and her expert on Riga’s letterhead. Riga is an attorney, 

as his letterhead makes clear. Riga personally appeared at a hearing for one of the 

underlying cases but is neither a party nor a party’s attorney in any of those cases.1

Dr. George Glass is James’s medical expert in all three of the underlying cases, 

and Easton first approached him after a deposition in one of those cases. Easton grabbed 

Glass’s necktie and put his hand on Glass’s shoulder before asking the doctor to talk with 

him privately. When Glass refused, Easton took out his cell phone and snapped a picture 

of Glass. Shortly thereafter, Glass received a letter from Easton—on Riga’s letterhead—

asserting that Glass could be imprisoned for up to six months. Later communications to 

Glass from Easton threatened $100,000 in sanctions and repeatedly referred to the doctor 

as a “quack” and an “ass.” Glass testified that he felt harassed and threatened by Easton 

as a result of these communications.

 

1 Riga does, however, share a fax number with Susan Norman, who is representing a party 

adverse to James in at least one of the underlying cases.
3

Easton’s interactions with James were even more inappropriate. He sent an e-mail 

message to James with the subject line “Coin Toss.” In its entirety, the body of the e-mail 

read 

............whats the most you’ve ever lost in a coin toss? 

.......................................................................................Call it-- Friendo!

Attached to the e-mail was a picture of Javier Bardem’s character from the movie No 

Country for Old Men. James had seen the movie and knew that Bardem’s character, 

Anton Chigurh, was a murderer. In the movie, Chigurh would sometimes ask another 

character, “What’s the most you’ve ever lost in a coin toss?” The other character’s 

violent death, at Chigurh’s hand, usually followed the question. James testified she felt 

threatened by the e-mail and “that [her] life would be on the line” if she continued to 

pursue the three underlying cases. 

Less than a week later, Easton sent James another e-mail that included the 

following:

Attention, Probate Shoppers, the “blue light” special in Aisle 2 will end at 

midnight tomorrow, tick, tock, tick, tock. In the words of “Dirty Harry” 

Well, being that this is a Chapter 74 (Objection) Magnum, the world’s most 

powerful “hand gun” (assignment) It can “blow your head clean off”--

you’ve got to ask yourself this question: “ do I feel lucky?”---- well, do ya 

punk?.. tick tock, tick tock.

James again felt threatened. She sued Easton and Riga, seeking an injunction. The case 

was transferred to the 61st District Court, where one of the underlying cases was pending. 

Easton and Riga filed special exceptions and moved to dismiss.

The trial court heard James’s application for temporary injunction. James and 

Glass testified about the communications they received from Easton and their reactions to 

them. A second expert testified that Easton’s e-mails “raise[d] the specter of an offense in 

Texas known as a ‘terroristic threat.’” At the close of James’s case in chief at the 

injunction hearing, the trial court granted Riga’s “motion for directed verdict” and denied 

James’s application for injunctive relief. James appealed this ruling. James subsequently 
4

filed an amended petition alleging intentional infliction of emotional distress and tortious 

interference with the Glass-James contract. Easton and Riga both filed special exceptions, 

asserting that James’s petition fails to state any claim under Texas law because 

complaints by one litigant about an opposing litigant’s conduct in a lawsuit must be 

remedied in the lawsuit in which the conduct occurred and may not be the basis for 

independent tort claims. The trial court granted the special exceptions and dismissed all 

of James’s claims. This appeal followed.2

II

James raises five issues on appeal: (1) it was error to grant the appellees’ special 

exceptions; (2) the directed verdict in favor of Riga was impermissibly based solely on 

special-exceptions evidence; (3) dismissal on special exceptions does not prevent a 

plaintiff from re-filing, but the trial court’s order implies it was made with prejudice; (4) 

in light of the outrageous nature of Easton’s behavior, the trial court erred in denying the 

motion for temporary injunction; and (5) the trial court erred by failing to enforce the 

anti-contact rule and the Texas Rules of Civil Procedure against the appellees.

A

In her first issue, James attacks the dismissal on special exceptions. When, as in 

the case under review, a trial court dismisses a case upon special exceptions for failure to 

state a cause of action, we review that issue of law using a de novo standard of review. 

Filipp v. Till, 230 S.W.3d 197, 203 (Tex. App.—Houston [14th Dist.] 2006, no pet.). 

When reviewing a dismissal based upon special exceptions, we also must accept as true 

all material factual allegations and all factual statements reasonably inferred from the 

allegations set forth in the plaintiff’s pleadings. Id. If a pleading states a cause of action, 

the trial court errs in dismissing based upon special exceptions. Id.

 

2 Upon final judgment below, this court dismissed as moot the separate appeal on the temporary 

injunction. See James v. Riga, No. 14-10-00471, 2011 WL 303804 (Tex. App.—Houston [14th Dist.] Jan. 

27, 2011, no pet.) (mem. op.).
5

An attorney generally has immunity from claims by an opposing party based upon 

conduct the attorney undertook in the representation of a client, but this immunity does 

not apply to alleged torts based upon the attorney’s fraudulent or malicious conduct. See 

Lackshin v. Spofford, No. 14-03-00977-CV, 2004 WL 1965636, at *3 (Tex. App.—

Houston [14th Dist.] Sept. 7, 2004, pet. denied) (mem. op.). The appellees did not assert 

this attorney immunity in their special exceptions, nor did they argue that this immunity 

should be expanded to apply to the claims involving pro se litigants or attorneys not 

representing a party. The appellees did not assert immunity at all. Instead, the sole basis 

for appellees’ special exceptions is their assertion that James’s petition fails to state any 

claim under Texas law because complaints by one litigant about an opposing litigant’s 

conduct in a lawsuit must be remedied in the lawsuit in which the conduct occurred and 

may not be the basis for independent tort claims. If this assertion is incorrect, then the 

trial court erred in granting the special exceptions.3

The appellees have not cited, and research has not revealed, any case in which a 

court held that all complaints by one litigant about an opposing litigant’s conduct in a 

lawsuit must be remedied in the lawsuit in which the conduct occurred and may not be 

the basis for independent tort claims. It cannot be said that, as a matter of law, one 

litigant can never assert a tort claim against an opposing litigant based upon the opposing 

litigant’s conduct in the litigation. See Hunt v. Baldwin, 68 S.W.3d 117, 130–33 (Tex. 

App.—Houston [14th Dist.] 2001, no pet.) (analyzing the merits of wrongful-execution 

and fraud claims asserted by judgment debtor against judgment creditors in lawsuit 

separate from the underlying litigation). Nor do we believe that the ability of the trial

court in the underlying lawsuit to impose sanctions on litigants is a sufficient basis to 

 

3

Appellees argue that this court should summarily affirm the trial court’s special-exceptions ruling 

because James has not attacked this assertion but has argued only that the appellees are not entitled to 

immunity from suit, an argument that the appellees did not assert in their special exceptions. James has 

assigned error as to the trial court’s granting of the special exceptions. Though in parts of her briefing 

James incorrectly characterizes the appellees’ argument as being based upon immunity, liberally 

construing her brief, we conclude that she has sufficiently argued that the ground asserted in the special 

exceptions lacks merit. 
6

support a rule disallowing all such claims. Indeed, if an attorney engages in fraudulent or 

malicious conduct in the course of representing his client, an opposing party may assert 

intentional tort claims against the attorney based upon this conduct. See Poole v. 

Houston & T.C. Ry., 58 Tex. 134, 137 (1882) (holding that attorneys acting on behalf of 

their clients are not shielded from liability for their fraudulent conduct because fraudulent 

acts are “entirely foreign to the duties of an attorney”); Lackshin, 2004 WL 1965636, at 

*3 (noting that, though attorneys owe no general negligence duty to opposing parties, 

they are still subject to liability to nonclients, including opposing parties, based on their 

fraudulent or malicious conduct, even if the attorneys’ conduct was in the course of 

representing their client); Toles v. Toles, 113 S.W.3d 899, 911B12 (Tex. App.CDallas 

2003, no pet.) (holding that attorney who represented former husband in divorce action 

was not immune from claim of former wife alleging attorney aided and abetted a breach 

of fiduciary duty by the receiver in the underlying litigation); Querner v. Rindfuss, 966 

S.W.2d 661, 666–70 (Tex. App.CSan Antonio 1998, pet. denied) (finding attorney in 

probate litigation was not immune from liability for alleged conspiracy to engage in 

fraud); Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex. App.CHouston 

[1st Dist.] 1985, no writ) (holding that attorney may be liable to opposing party in a 

transaction for conspiracy to defraud the opposing party because attorney immunity does 

not apply to attorney’s allegedly fraudulent or malicious conduct). Likewise, if Easton 

engaged in fraudulent or malicious conduct in the underlying litigation that would 

support liability for an intentional tort, James should not be barred from asserting this 

claim because Easton’s conduct happened to occur in a litigation context. See Hunt, 68 

S.W.3d at 130–33. If Riga, neither a party nor an attorney representing a party in the 

underlying litigation, engaged in fraudulent or malicious conduct in the underlying 

litigation that would support liability for an intentional tort, James should be allowed to 

assert intentional tort claims against Riga based upon this conduct. James has asserted 

claims for tortious interference with contract and intentional infliction of emotional 

distress, which are intentional torts. 
7

The appellees rely upon Toles v. Toles to support their contention that they were 

entitled to dismissal as a matter of law. See 113 S.W.3d at 909–11, 918. Toles arose out 

of a bitter divorce, and involved a suit by a former wife against her former husband and 

the lawyers who represented him throughout the divorce. Id. at 905. The Toles court 

discussed the general rule of attorney immunity from claims by an opposing party based 

upon conduct the attorney undertook in the representation of a client. See id. at 909–11. 

In the course of this discussion, the court noted that an attorney who commits misconduct 

in litigation is subject to sanction by the trial court in that litigation. See id. at 911. The 

Toles court never held that the availability of sanctions means that attorney misconduct 

during litigation can never be the basis of independent tort claims. See id. at 909–13. On 

the contrary, the Toles court held that the ex-husband’s attorneys were potentially liable 

for aiding and abetting a breach of fiduciary duty, even though their allegedly actionable 

conduct was undertaken during the representation of an opposing party in the underlying 

litigation. See id. at 912. 

In another part of the Toles opinion, the court held that the ex-husband, as an 

opposing litigant, did not owe a negligence duty to his ex-wife.4 See id. at 917–18. In 

discussing the reasons for this ruling, the Toles discussed the ability of the trial court in 

the underlying litigation to sanction parties for improper litigation conduct. See id. The 

appellees in Toles did not advance the legal theory advanced by the appellees in the case 

under review. See id. at 909–11, 918. The Toles court neither held nor stated that all 

complaints by one litigant about an opposing litigant’s conduct in a lawsuit must be 

remedied in the lawsuit in which the conduct occurred and may not be the basis for 

independent tort claims. See id. Indeed, the Toles court addressed the merits of the exwife’s claim against her ex-husband for intentional infliction of emotional distress based 

upon conduct in the underlying litigation. See id. at 920–21. 

 

4

James is not asserting negligence claims.
8

We conclude that the sole basis for the appellees’ special exceptions lacks merit, 

and therefore, the trial court erred in granting these special exceptions.5 Accordingly we 

sustain the first issue and reverse the trial court’s dismissal of James’s claims on special 

exceptions.6

B

In her second issue, James complains that the trial court erred by directing a 

verdict in favor of Riga. Though the trial court stated that it granted Riga’s “motion for 

directed verdict” at the close of James’s case-in-chief at the temporary injunction hearing, 

we conclude that the substance of this ruling was that the trial court denied the 

application for temporary injunction after James presented her evidence and without 

hearing any evidence from Riga. The trial court was not required to hear evidence from 

Riga before denying James’s application for injunctive relief. Accordingly, we overrule 

the second issue.

C

In her fourth and fifth issues, James complains that it was error for the trial court 

to deny her application for a temporary injunction against Easton. Here, we disagree. 

To obtain injunctive relief, a party must show (1) a harmful act, (2) imminent, 

irreparable harm, and (3) no adequate remedy at law. Kaufmann v. Morales, 93 S.W.3d 

650, 653 (Tex. App.—Houston [14th Dist.] 2002, no pet.) A trial judge has broad 

discretion in deciding whether to grant or deny temporary injunctions, and 

the standard of review is a clear abuse of discretion. Id. The trial court abuses its 

discretion when the law is misapplied to established facts, or when the evidence does not 

reasonably support the conclusion that the applicant has a probable right of recovery. Id. 

In reviewing the trial court’s exercise of discretion, the appellate court must draw all 

legitimate inferences from the evidence in the light most favorable to the trial court’s 

 

5

In so ruling, we do not address the merits of James’s claims or any argument that the appellees may 

assert against James’s claims other than the ground in the special exceptions.

6 Because we sustain the first issue, were need not address the third issue.
9

decision. EMS USA, Inc. v. Shary, 309 S.W.3d 653, 657 (Tex. App.—Houston [14th 

Dist.] 2010, no pet.). When no findings of fact or conclusions of law are filed, the trial 

court’s determination of whether to grant or deny a temporary injunction must be upheld 

on any legal theory supported by the record. Id.

Based on the evidence presented in this case, James established that Easton had 

previously harassed her and Dr. Glass, but she did no more than establish a theoretical 

possibility Easton would continue those antics in the future. Viewing the evidence in the 

light most favorable to the trial court’s order, we hold that the trial court reasonably could 

have concluded that James failed to establish that she faced probable, imminent, and 

irreparable injury in the absence of a temporary injunction. See EMSL Analytical, Inc. v. 

Younker, 154 S.W.3d 693, 697–98 (Tex. App.—Houston [14th Dist.] 2004, no pet.). 

Consequently, the trial court did not abuse its discretion in denying the application for 

temporary injunction. We overrule James’s fourth and fifth issues.

* * *

For the foregoing reasons, we affirm the trial court’s denial of the application for 

temporary injunction, reverse the trial court’s dismissing James’s claims on special 

exceptions, and remand for further proceedings consistent with this opinion.7

/s/ Jeffrey V. Brown

Justice

Panel consists of Justices Frost, Brown, and Jamison.

 

7

Appellees have filed a motion to strike James’s reply brief insofar as it pertains to matters outside the 

record. While we do not base our analysis or decision on James’s references to such matters, we need not 

and do not strike these portions of the reply brief. The motion is denied.