NUMBER 13-07-665-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

MADHAVAN PISHARODI, Appellant,

v. 

WATTS LAW FIRM, L.L.P., WATTS &

HEARD, L.L.P., RAY R. MARCHAN; CARMEN

D. ROCCO, AND JAMES R. GOZA, Appellees.

 

On appeal from the 357th District Court 

of Cameron County, Texas

 

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Vela
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This is an appeal from a summary judgment granted in favor of appellees, Carmen

D. Rocco, M.D., James R. Goza, Watts Law Firm, L.L.P., Watts & Heard, L.L.P., Harris &

Watts, P.C., and Ray R. Marchan, and against appellant, Madhaven Pisharodi, M.D. in a

case alleging abuse of process and conspiracy to commit abuse of process. We affirm.

I. BACKGROUND

Dr. Pisharodi, is a physician in Brownsville. Appellees Watts Law Firm, L.L.P.,

Watts & Heard, L.L.P., Harris & Watts P.C., Ray R. Marchan, and Goza are Texas

attorneys and law firms. Dr. Rocco is a physician practicing in Brownsville. Dr. Rocco and

Goza were married at the time the events surrounding this matter took place. 

In 2000, Dr. Pisharodi was named as a defendant in a medical malpractice lawsuit

brought by the Cabello family following the death of their child, Julio Cabello. Marchan,

working with the Watts law firm, was the attorney representing the Cabello family. Dr.

Rocco was one of Julio Cabello’s treating physicians. Dr. Pisharodi’s claim in the

underlying case is based primarily on a January 2001 referral fee agreement between

Goza and Marchan that netted Goza a $140,000 fee for referring the Cabello case. Dr.

Pisharodi asserts that Dr. Rocco “referred” the Cabello matter to Goza, her husband, for

legal representation; Goza, in turn, referred the case to Marchan.

Goza first met with the Cabellos in Dr. Rocco’s office after Julio’s death, at Dr.

Rocco’s request. The family had legal questions that Dr. Rocco could not answer. During

that meeting, issues arose that Goza thought could lead to a malpractice action. Goza told

the Cabellos that he could recommend several attorneys to assist them, including attorney

Marchan. 
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Dr. Pisharodi claims that because Dr. Rocco was a treating physician in the

underlying case, she was an important fact and expert witness. He urges that the Cabello

case would have been worthless and would probably not have been filed had the

defendants known early-on that Dr. Rocco’s husband had received a large referral fee in

the case. Dr. Pisharodi asserts that the referral fee was concealed from the defendants

and him. He argues that Dr. Rocco actually received the fee because she and Goza were

married at the time. 

The case eventually settled. The Cabellos’ case against Dr. Pisharodi was

dismissed after he allegedly incurred $80,000 in attorney’s fees. He then filed suit against

appellees claiming abuse of process and conspiracy to abuse process. In response,

appellees filed and the trial court granted their motions for summary judgment. 

II. STANDARD OF REVIEW

We review the trial court's summary judgment de novo. Provident Life and Accident

Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The standards of review for traditional

and no-evidence summary judgments are well established. A movant for traditional

summary judgment has the burden to establish that there are no material issues of fact.

TEX. R. CIV. P. 166a(c); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999);

Mercier v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d 770, 773 (Tex. App.–Corpus Christi

2007, no pet.). Evidence favorable to the non-movant will be taken as true, every

reasonable inference will be indulged in the non-movant's favor, and doubts must be

resolved in the non-movant's favor. Knott, 128 S.W.3d at 215. 

In contrast, a no-evidence summary judgment is the same as a pretrial directed
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verdict, and we apply the same legal sufficiency standard on review. Mack Trucks, Inc. v.

Tamez, 206 S.W.3d 572, 581-2 (Tex. 2006); Ortega v. City Nat'l Bank, 97 S.W.3d 765, 772

(Tex. App.–Corpus Christi 2003, no pet.) (op. on reh'g). We review the evidence in the

light most favorable to the non-movant. City of Keller v. Wilson, 168 S.W.3d 802, 825

(Tex. 2005). The non-movant must produce evidence to raise a genuine issue of material

fact in order to defeat a no-evidence summary judgment. TEX. R. CIV. P. 166a(i). To

determine whether the non-movant has met its burden, we review the evidence in the light

most favorable to the non-movant, crediting such evidence that reasonable jurors could

credit and disregarding contrary evidence unless reasonable jurors could not. Tamez, 206

S.W.3d at 582; City of Keller, 168 S.W.3d at 827.

Because appellees presented both no-evidence and traditional grounds for

summary judgment, we first address appellants’ challenges to the no-evidence motions.

See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

III. ANALYSIs 

A. Abuse of Process

We first turn to Dr. Pisharodi’s abuse of process claim. The term “process” is

defined as “[a] summons or writ, esp. to appear or respond in court.” BLACK’S LAW

DICTIONARY 1010 (8th ed. 2005); See Martin v. Trevino, 578 S.W.2d 763, 769 (Tex. Civ.

App.–Corpus Christi 1978, writ ref’d n.r.e.). The elements of an abuse of process claim

include (1) an illegal, improper, or perverted use of process, neither warranted nor

authorized by the process, (2) an ulterior motive or purpose in exercising such use, and (3)

damages as a result of the illegal act. Preston Gate, L.P. v. Bukaty, 248 S.W.3d 892, 897
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(Tex. App.–Dallas 2008, no pet.). In order to be an abuse, the process must have been

used to accomplish an end which is beyond the purview of the process and compels a

party to do collateral things that he could not be compelled to do. Id. The crucial aspect

of this tort is the improper use of process after it has been issued. Id.; Bossin v. Towber,

894 S.W.2d 25, 33 (Tex. App.–Houston [14th Dist.] 2000, pet. denied). In other words, the

original issuance of process is justified, but the process is later used for an unintended

purpose. Id. When the process is used for the purpose for which it was intended, even

if accomplished through ulterior motive, no abuse of process has occurred. Id.; Baubles

& Beads v. Louis Vuitton, S.A. 766 S.W.2d 377, 379 (Tex. App.–Texarkana 1989, no writ).

The “gist” of abuse of process as a tort does not involve commencing an action or

causing process to issue without justification. Blackstock v. Tatum, 396 S.W.2d 463, 468

(Tex. App.–Houston [1st Dist.] 1965, no writ). Rather, it involves misusing or misapplying

process justified in itself for an end other than it was intended to accomplish. Id. The

purpose for which the process is used is the only thing of importance. Id. If wrongful

intent or malice caused the process to be issued initially, the claim is instead one for

malicious prosecution. Montemayor v. Ortiz, 208 S.W.3d 627, 650 (Tex. App.–Corpus

Christi 2006, pet. denied). 

Mere procurement or issuance of process with a malicious intent or without probable

cause is not actionable; there must be an improper use of the process after its issuance.

Detenbeck v. Koester, 886 S.W2d 477, 481 (Tex. App.–Houston [1st Dist.] 1994, no writ).

Where the only process issued in a case is a citation and no allegations are made with

regard to any abuse in the execution of service of that process, there is no cause of action
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for abuse of process. Id.

In their no-evidence motions for summary judgment, appellees claim that there was

no evidence adduced of the elements required to maintain an abuse of process claim. As

the rule itself recognizes, appellees had no burden to produce evidence. City of Keller, 168

S.W.3d at 825. Rather, the rule places the burden upon Pisharodi to produce evidence.

Ford Motor Co., 135 S.W.3d at 600.

As summary judgment evidence, Pisharodi submitted an affidavit executed by

attorney Horacio Barrera. Barrera averred that information regarding a referral fee paid to

Goza was not revealed in the case. Had the information been disclosed, the discovery

process and the strategy employed by the defendants would have been altered. Dr.

Pisharodi stated in his affidavit that he did not know until September 2003 that a referral

fee had been paid to Goza. He claims that he spent approximately $80,000 in attorney’s

fees, that he committed no act of negligence, and that there was no legitimate basis for the

suit that the plaintiff brought against him. Attorney Ed Stapleton also submitted an affidavit

in response to the no-evidence motion for summary judgment that outlined the

circumstances surrounding the referral fee to Goza. He opined that the claim against Dr.

Pisharodi would have had no value if it had been known "that Carmen Rocco was a fact

witness, expert witness and in a position to receive a contingent fee based on the same

claim." Dr. Pisharodi also attached various discovery responses to his response that

outlined the referral fee agreement, as well as excerpts from his deposition. 

All of the evidence offered involved the existence of and the alleged secrecy

surrounding the referral fee arrangement. There was, however, no evidence offered by Dr.
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Pisharodi that appellees made an illegal, improper, or perverted use of the process, that

there was an ulterior motive for exercising the use of process or that damages resulted

from an illegal act involving the process. The only process involved here was the citation

that was issued. There was no allegation or evidence that there was abuse in the

execution or service of process. The mere maintenance of a civil action, even if done with

malicious intent, will not support a cause of action for abuse of process. Detenbeck, 886

S.W.2d at 481. Accordingly, we hold that Pisharodi failed to introduce any evidence on

any element of an abuse of process claim and the no-evidence motions for summary

judgment were properly granted. 

B. Conspiracy to Commit Abuse of Process

A civil conspiracy involves a combination of two or more persons with an unlawful

purpose or a lawful purpose to be accomplished by unlawful means. Ernst & Young v.

Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 583 (Tex. 2001). Because the conspiracy itself

requires intent, the underlying tort for a conspiracy must be an intentional tort. Firestone

Steel Prods. v. Barajas, 927 S.W.2d 608, 617 (Tex. 1996). The elements of conspiracy

require some participation in an underlying tort; if no intentional tort was committed, there

is no claim for conspiracy. Id. 

The trial court correctly determined that appellees were entitled to summary

judgment as a matter of law on their abuse of process claim. Because there was no

evidence offered that the abuse of process tort had been committed by any of the

appellees, the conspiracy to commit abuse of process claim also fails. Dr. Pisharodi’s

issue, which encompasses both the abuse of process and conspiracy to commit abuse of
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discretion claims, is overruled.

IV. CONCLUSION

We affirm the judgment of the trial court.

ROSE VELA

Justice

Memorandum Opinion delivered and 

filed this 14th day of August, 2008.