in Re: Carrie Beth Bennett

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed August 22, 2006 Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed August 22, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-06-00537-CV ____________ IN RE CARRIE BETH BENNETT, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS M E M O R A N D U M   O P I N I O N This is an original proceeding stemming from a divorce action. Relator Carrie Beth Bennett seeks a writ of mandamus ordering the respondent, the Honorable K. Randall Hufstetler, presiding judge of the 300th District Court, Brazoria County, Texas, to vacate his order dated May 31, 2006, granting a motion to disqualify relator=s attorney. We conditionally grant the writ. Facts Relator=s attorney in the divorce suit, Marion Allen, is also her father. Real party in interest Jeremy Bennett, relator=s spouse, filed a motion to disqualify Allen, claiming he is a party to Abusiness relationships@ with Jeremy and was identified in relator=s discovery responses as a person with knowledge of relevant facts. Jeremy also claimed that Allen has a conflict of interest because he represented the parties concerning a lease agreement on property which is at issue in the divorce. After conducting a hearing, the trial court granted Jeremy=s motion to disqualify Allen, and relator filed this original proceeding. Standard of Review Mandamus is an extraordinary remedy that will issue to correct a clear abuse of discretion and, generally, only when the relator lacks an adequate appellate remedy. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002). A party lacks an adequate appellate remedy if his counsel is disqualified. Id. Because disqualification is considered a severe remedy that results in Aimmediate and palpable harm,@ courts hold that mandamus relief is available. See Schwartz v. Jefferson, 930 S.W.2d 957, 959 (Tex. App.CHouston [14th Dist.] 1996, orig. proceeding). When alleging a trial court abused its discretion in resolving factual issues, a relator must show that the trial court could reasonably have reached only one decision. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). As to the determination of legal principles, an abuse of discretion occurs if the trial court clearly fails to analyze or apply the law correctly. Id. A trial court does not abuse its discretion if it bases its decision on conflicting evidence and some evidence supports its decision; however, an abuse of discretion occurs when the trial court=s decision is contrary to the only permissible view of the evidence. See In re Barber, 982 S.W.2d 364, 366 (Tex. 1998); Walker, 827 S.W.2d at 840. Discussion In her petition, relator argues that the trial court abused its discretion in disqualifying Allen because Jeremy failed to present any evidence to support disqualification. Relator asserts that the only actual ground for disqualification alleged by JeremyBBAllen=s co-ownership interest in a power washer that has disappearedBBis not supported by any evidence. Further, she contends that even if Allen were called to testify, the power washer is not an essential issue in the divorce suit. In a disqualification case, our analysis begins with the premise that disqualification is a severe measure which can result in immediate harm because it deprives a party of his chosen counsel and disrupts court proceedings. In re Nitla, 92 S.W.3d at 423. Because of its severity, courts must adhere to Aan exacting standard so as to discourage the use of a motion to disqualify as a dilatory trial tactic.@ In re Butler, 987 S.W.2d 221, 224 (Tex. App.CHouston [14th Dist.] 1999, orig. proceeding). The burden is on the movant to establish with specificity the grounds for disqualification. See In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004). Mere allegations of unethical conduct or evidence showing a Aremote possibility of a violation of the disciplinary rules will not suffice under this standard.@ Id. The Disciplinary Rules, although not controlling in disqualification decisions, provide guidelines relevant to a disqualification determination. See id. In their briefs, both parties discuss Disciplinary Rule of Professional Conduct 3.08. See Tex. Disciplinary R. Prof=l Conduct 3.08, reprinted in Tex. Gov=t Code, tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, ' 9). Under that rule, a lawyer is prohibited from acting as both an advocate and a witness in an adjudicatory proceeding when the lawyer is or may be a witness necessary to establish an essential fact.[1] See id.; In re Sanders, 153 S.W.3d at 56. But, the fact that a lawyer serves as both an advocate and a witness does not in itself compel disqualification. In re Sanders, 153 S.W.3d at 57. ADisqualification is only appropriate if the lawyer=s testimony is >necessary to establish an essential fact.=@ Id. (quoting Tex. Disciplinary R. Prof=l Conduct 3.08). For this reason, the party seeking disqualification must demonstrate that the opposing lawyer=s dual roles as attorney and witness will cause that party actual prejudice. Id. At the hearing on the motion to disqualify,[2] two grounds for disqualification were presented: (1) Allen represented relator and Jeremy regarding a lease agreement on Jeremy=s separate property and relator asserts an economic contribution claim on that property in the divorce; and (2) there is joint ownership of the missing power washer, and Jeremy believes it is in Allen=s possession. The only witness to testify at the hearing was Allen. He stated he owned the power washer at one time, along with relator and Jeremy, but it has since disappeared. He also stated that the power washer was purchased years ago, its whereabouts are unknown, and he does not have it in his possession. Further, he denied that the power washer was an essential issue in the divorce, noting that neither party had listed it in their inventory. At the conclusion of the hearing, the trial judge stated he was granting the disqualification motion, noting: there exists a relationship between the parties and [Allen] with regard to matters that will be presented to the Court, . . . with regard to property, in that that (sic) relationship is a substantial relationship that would go beyond mere presenting a blank lease, because of the issues that would be involved . . . but there are genuine issues that are before this Court regarding the division of property that could create and will create a potential threat for genuine revelation of prior confidences. When Allen questioned the court as to his alleged representation of Jeremy regarding the lease on the separate property, the court stated AI=m not finding that there was representation by you of [Jeremy or relator] in the lease,@ based on Allen=s testimony. The court then stated that Allen=s joint ownership of the power washer is a sufficient basis for disqualification because there is a Avalid dispute@ concerning that property. When asked if the pressure washer was the only issue, the trial court responded as follows: THE COURT: No. The other issue is the communications that you have had throughout the years since 1997 to today=s date. You also have a claim for economic contribution on behalf of your client with regard to [Jeremy=s] separate property. That=s an issue. ALLEN: But this Court does not find that there has BB is or has ever been an attorney-client relationship between me and [Jeremy]. THE COURT: No. With regard to the BB the only issue that was presented BB I=m not going to say Aever@ because the only issue that was presented was with regard to that lease. **** THE COURT: I=m not finding that there=s an attorney-client privilege, an attorney-client relationship there because you didn=t have any communication with him at all. As relator argues, there is no indication in the record how Allen=s testimony concerning the power washer is necessary in the case or that it goes to an Aessential element@ of the case. Allen testified that he did not have the power washer in his possession, he does not know when it disappeared or where it is, and neither party has listed it as property in the divorce proceedings.[3] Conclusion Because Jeremy did not show that Allen=s testimony was necessary to establish an essential element in the divorce action and the trial court found there was no attorney-client relationship regarding the lease on Jeremy=s separate property, recognizing the severity of disqualification, we conditionally grant relator=s petition for writ of mandamus directing the trial court to vacate its order disqualifying Allen as counsel for relator. The writ will issue only if the trial court fails to vacate its order. Finally, trial in the divorce case is scheduled to begin on August 28, 2006. Relator filed a motion to stay the trial court proceedings, claiming she would suffer an undue hardship if forced to go to trial without the benefit of an attorney of her choice. In light of our disposition of relator=s mandamus petition, her motion to stay is rendered moot. We are confident the trial court will comply with this opinion. PER CURIAM Petition Conditionally Granted and Memorandum Opinion filed August 22, 2006. Panel consists of Justices Hudson, Fowler and Seymore [1]Rule 3.08(a) provides as follows: A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding 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, unless: (1) the testimony relates to an uncontested issue; (2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) the testimony relates to the nature and value of legal services rendered in the case; (4) the lawyer is a party to the action and is appearing pro se; or (5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client. Tex. Disciplinary R. Prof=l Conduct 3.08. [2]Jeremy filed a response to the petition and a motion to strike several of relator=s attached exhibits, claiming the documents were not before the trial court at the time of the hearing on the motion to disqualify. See In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998) (stating mandamus review requires a Afocus on the record that was before the court@). We deny Jeremy=s motion to strike, but note that, in our consideration of the petition for writ of mandamus, we have considered only the evidence and affidavits that were properly part of the record in this case. [3]Relator also argues that there is no evidence that Allen represented the parties when they leased Jeremy=s separate property. Although the trial court=s comments concerning its ruling may suggest disqualification was based in some part on a perceived relationship between Jeremy=s separate property and relator=s economic contribution claim, see Tex. Disciplinary R. Prof=l Conduct 1.09(a) (AWithout prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client . . . (3) if it is the same or a substantially related matter@), the trial court expressly stated it did not find that Allen had represented either of the parties regarding that matter, and thus, it is not a basis for the court=s disqualification ruling.