In re Carroll R. Hormacha, Individually and as the Independent Executor and Sole Representative of The Estate of Joe Hormachea, Deceased; and Mary Helen Rooney Hormachea, Individually--Appeal from 166th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00581-CV
IN RE Carroll R. HORMACHEA, Individually and as the Independent Executor
and Sole Representative of the Estate of Joe Hormachea, Deceased;
and Mary Helen Rooney Hormachea, Individually
Original Mandamus Proceeding (1)

Opinion by: Sarah B. Duncan, Justice

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: November 17, 2004

PETITION FOR WRIT OF MANDAMUS DENIED IN PART AND CONDITIONALLY GRANTED IN PART

Carroll and Mary Hormachea seek a writ of mandamus to compel the trial court to vacate its order disqualifying their attorney from appearing as counsel at trial and at any deposition that will be read into evidence at trial. We hold the trial court abused its discretion in disqualifying the Hormacheas' attorney and therefore conditionally grant the requested writ.

Factual and Procedural Background

In the underlying suit, the Hormacheas allege that Sister Imelda Phelan and the Order of the Congregation of St. Brigid of Texas ("The Brigidines") committed "elder fraud" against Carroll Hormachea's now-deceased father, Joe Hormachea. The suit alleges numerous causes of action against Phelan, the Brigidines, and the Roman Catholic Archdiocese of San Antonio. Phelan and the Brigidines have counterclaimed, alleging in part that they were defamed by the Hormacheas' statements to a pastor, in letters to a bishop, and in statements to the press.

In July 2004, Phelan and the Brigidines moved to disqualify the Hormacheas' attorney, J. Douglas Sutter, alleging that his participation in the press conferences in which some of the allegedly defamatory statements were made has made him a witness in the case. In response, the Hormacheas moved to disqualify Phelan's and the Brigidines' attorney, alleging their attorney made statements that belittled, shocked, and frightened the Hormacheas and violated various disciplinary rules. At the ensuing hearing, the only evidence presented was a videotape containing excerpts of news conferences and written transcripts of the excerpts. Shortly after the hearing, the trial court signed an order finding that "Sutter will be a necessary witness in this matter[] and that defendants will be prejudiced if he is allowed to appear as counsel for Plaintiffs at trial" and disqualifying Sutter from appearing at trial as the Hormacheas' counsel and at any deposition that will be read into evidence at trial. The mandamus record does not contain an oral or written order on the Hormacheas' motion to disqualify Phelan's and the Brigidines' attorney.

Requirements for Granting a Writ of Mandamus

A writ of mandamus will issue only to correct a clear abuse of discretion for which relator lacks an adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). With respect to factual issues, the trial court abuses its discretion if it could reasonably have reached only one decision and failed to do so. Id. at 840. With respect to questions of law, however, "[a] trial court has no 'discretion.'" Id. Therefore, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id. "A party generally lacks an adequate appellate remedy if its counsel is disqualified." In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002).

Applicable Law

"'Disqualification is a severe remedy' [that] can result in immediate and palpable harm, disrupt trial court proceedings, and deprive a party of the right to have counsel of choice." Id. (quoting Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990)). Therefore, in considering and deciding a motion to disqualify counsel, the trial court must "strictly adhere to an exacting standard to discourage a party from using the motion as a dilatory trial tactic." Id. The party seeking disqualification bears the burden of establishing conduct that violates the disciplinary rules or otherwise warrants disqualification and that the conduct caused actual prejudice. Id. The disciplinary rules provide guidelines for deciding disqualification issues; however, they are not controlling standards, and in "appropriate circumstances" a lawyer may be disqualified even if he has not violated a specific disciplinary rule. Id.

Disqualification of Sutter

The Hormacheas contend the trial court abused its discretion in disqualifying Sutter because there is no evidence that Sutter is a necessary witness to establish an essential fact for his clients or that his testimony is required and would be adverse to his clients. We agree and hold the trial court abused its discretion in concluding that Phelan and the Brigidines established a violation of Disciplinary Rule 3.08.

In the trial court, Phelan's and the Brigidines' sole ground for urging Sutter's disqualification is that he "has become a material fact witness in [the] counterclaim for libel and slander"; and his representation of the Hormacheas at trial would violate Disciplinary Rule 3.08. See Tex. Disciplinary R. Prof'l. Conduct 3.08, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Vernon 1998) (Tex. State Bar R. art. X, 9). In both their motion to disqualify and their response to the petition for a writ of mandamus, Phelan and the Brigidines cite only subsection (a) of Disciplinary Rule 3.08 to support disqualification. With exceptions that do not apply in this case, Disciplinary Rule 3.08(a) prohibits a lawyer from continuing to represent a client if "the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client." Tex. Disciplinary R. Prof'l. Conduct 3.08(a). To establish grounds for disqualification under Rule 3.08(a), the moving party must present evidence that the lawyer's testimony is "necessary" and goes to an "essential fact" of the nonmovant's case. In re Bahn, 13 S.W.3d 865, 872-73 (Tex. App.-Fort Worth 2000, orig. proceeding); In re A.M., 974 S.W.2d 857, 864 (Tex. App.-San Antonio 1998, no pet.).

As we noted above, Phelan and the Brigidines expressly rely only on Disciplinary Rule 3.08(a). However, their arguments are also based upon their contention that they are entitled to call Sutter as a witness, thus implicating Rule 3.08(b). Disciplinary Rule 3.08(b) prohibits a lawyer from continuing to represent a client if the lawyer believes he "will be compelled to furnish testimony that will be substantially adverse to the lawyers' client." Tex. Disciplinary R. Prof'l. Conduct 3.08(b). To establish grounds for disqualification under Rule 3.08(b), the movant must show that the testimony of the lawyer is "required" for the movant's case and that the testimony will be substantially adverse to the lawyer's client. Olguin v. Jungman, 931 S.W.2d 607, 611 (Tex. App.-San Antonio 1996, no pet.). It is not enough to simply announce an intent to call opposing counsel as a witness. See In re Slusser, 136 S.W.3d 245, 248 (Tex. App.-San Antonio 2004) (orig. proceeding). To obtain disqualification under either subsection of Disciplinary Rule 3.08, the movant must also establish that continued representation will cause it actual prejudice. Nitla, 92 S.W.3d at 422; see Tex. Disciplinary R. Prof'l Conduct 3.08 cmt. 10.

As noted above, the only evidence submitted to the trial court was a videotape and transcripts of the news conferences. Phelan and the Brigidines argue that by participating in the press conferences, Sutter made himself a witness in their defamation counterclaim. They contend that Sutter's testimony is necessary to establish: "how he orchestrated this slander, or how his clients did, if he did not;" " how they had this news conference;" "what defamatory statements were made" at the press conferences; and "that his clients acted with malice." They further contend that "Sutter must be cross-examined about the falsehoods he witnessed his clients publishing to the media."

Disciplinary Rule 3.08(a) can provide a ground for disqualification when an attorney ought to testify on behalf of his client. See Tex. Disciplinary R. Prof'l Conduct 3.08. Phelan and the Brigidines offer no explanation of how any of the matters they claim Sutter will testify about are "essential facts" the Hormacheas will need to establish to defend the defamation claim. Nor have they offered any reason why Sutter's testimony on behalf of the Hormacheas is "necessary."

With respect to Disciplinary Rule 3.08(b), Phelan and the Brigidines have done little more than announce their intent to call Sutter as a witness. They have identified facts that may be material to their claims and about which Sutter may have knowledge; but they made no effort to show that Sutter's testimony is "required" to establish those facts or that his testimony would be substantially adverse to the Hormacheas. Clearly, Sutter's testimony is not required to establish what his clients said at the press conference. With respect to how the press conferences were scheduled, there has been no showing that the information is not available from another source, such as the Hormacheas, and no showing that Sutter's testimony in that regard would be adverse to his clients. Finally, Phelan and the Brigidines have not identified any testimony that Sutter could be compelled to give on the issue of malice; nor have they shown that the evidence is unavailable from another source or that the testimony would be substantially adverse to the Hormacheas.

Because there is no evidence that Sutter's testimony is "necessary to establish an essential fact on behalf of [his] client" or that Sutter "will be compelled to furnish testimony that will be substantially adverse to" the Hormacheas, the trial court abused its discretion in disqualifying Sutter pursuant to Disciplinary Rule 3.08. See Tex. Disciplinary R. Prof'l Conduct 3.08.

Failure to Grant the Cross-Motion to Disqualify

Finally, the Hormacheas seek a writ of mandamus to compel the trial court to grant their motion seeking to disqualify Phelan's and the Brigidines' attorney from all further representation in the case. However, mandamus is available to compel the trial court to rule only if the record establishes that the trial court has refused to rule within a reasonable period of time. See Doctors Hosp. Facilities v. Fifth Court of Appeals, 750 S.W.2d 177, 178 (Tex. 1988); In re Martinez Ramirez, 994 S.W.2d 682, 683 (Tex. App.-San Antonio 1998, orig. proceeding). The mandamus record does not contain an order ruling on the Hormacheas' motion to disqualify; nor does it indicate that the trial court has refused to rule on the Hormacheas' motion to disqualify.

Conclusion

Because the mandamus record does not contain an order ruling on the Hormacheas' motion to disqualify Phelan and the Brigidines' counsel, we deny the petition insofar as it seeks to compel the trial court to grant the motion. However, because there is no evidence that Sutter's continued representation of the Hormacheas is prohibited by Disciplinary Rule 3.08, we hold the trial court abused its discretion in disqualifying him on that ground and therefore conditionally grant the petition for a writ of mandamus in part and direct the Clerk to issue the writ only if Judge Gabriel does not vacate his August 3, 2004 order disqualifying J. Douglas Sutter within ten days of the date of our order.

Sarah B. Duncan, Justice

1. The caption on the petition indicates the underlying case, Cause No. 2003-CI-04680, styled Carroll R. Hormachea, Individually and as the Independent Executor and Sole Representative of the Estate of Joe Hormachea, Deceased; and Mary Helen Rooney Hormachea, Individually v. Roman Catholic Archdiocese of San Antonio; The Order of the Congregation of St. Brigid of Texas A/K/A "The Brigidines" and Sister Imelda Phelan a/k/a Josephine T. Phelan, was assigned to the 166th Judicial District Court, Bexar County, Texas, in which the Honorable Martha B. Tanner is the presiding judge; and the caption on the challenged order indicates it is an order of that court. But the challenged order was signed by the Honorable John D. Gabriel, the presiding judge of the 131st Judicial District Court, Bexar County, Texas; and the reporter's record indicates the hearing was presided over by Judge Gabriel.