Opinion
No. 13-03-322-CV
Memorandum Opinion Delivered and Filed February 23, 2006.
On Appeal from the 103rd District Court of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices YAÑEZ and CASTILLO.
MEMORANDUM OPINION
Appellants, Jose M. Lopez ("Lopez") and Blanca Alvarez, individually and as next friends of their minor children, Vianca and Kassandra Lopez, and Eva Alvarez (Blanca's sister), sued appellee, Juan Pablo Sandoval, for injuries appellants allegedly sustained on March 22, 1998, when appellee's vehicle "rear-ended" the truck in which they were riding. After the close of evidence presented to a jury, the trial court granted appellants a directed verdict on liability. The only issue remaining for the jury was the amount of damages, if any, sustained by appellants. The jury returned a verdict of zero damages and the trial court issued a take-nothing judgment against appellants. By three issues, appellants contend (1) the trial court erred in denying their motion to disqualify Roerig, Oliveira Fisher ("the Roerig firm"), the law firm representing appellee, based on the firm's prior representation of Lopez; (2) the trial court erred in allowing appellee's counsel to impeach Lopez's credibility by questioning him about the prior matter; and (3) the evidence is legally and factually insufficient to support the jury's award of zero damages. We affirm.
I. DISQUALIFICATION ISSUE
In their first issue, appellants contend the trial court erred in denying their motion to disqualify appellee's law firm, the Roerig firm, based on the firm's prior representation of Lopez in a 1996 matter.
During the cross-examination of Lopez, appellee's counsel (an attorney with the Roerig firm) attempted to impeach Lopez by establishing his involvement in a 1996 accident, which he had failed to disclose in response to discovery requests.
Lopez had stated that he only recalled being involved in one prior auto accident, in 1991.
Following the cross-examination, it was revealed that the Roerig firm had represented Lopez as a defendant in a lawsuit arising out of the 1996 accident. Appellants moved for a mistrial and to disqualify the Roerig firm from representing appellee in the present matter. The trial court denied the motions.
A. Standard of Review
We review a trial court's ruling on a motion to disqualify under an abuse of discretion standard. We will reverse the trial court's decision only where the trial court acted without reference to any guiding rules or principles, or acted in an arbitrary or unreasonable manner.
See Metro. Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d 319, 321 (Tex. 1994); Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 657 n. 3 (Tex. 1990, orig. proceeding); City of Dallas v. Redbird Dev. Corp., 143 S.W.3d 375, 387 (Tex.App.-Dallas 2004, no pet.)
See Metro. Life, 881 S.W.2d at 321.
Applicable Law
"Disqualification is a severe remedy." "It can result in immediate and palpable harm, disrupt trial court proceedings, and deprive a party of the right to have counsel of choice." "In considering a motion to disqualify, the trial court must strictly adhere to an exacting standard to discourage a party from using the motion as a dilatory trial tactic."
In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding) (quoting Spears, 797 S.W.2d at 656).
Id.
Id.
When contemplating whether disqualification of counsel is proper, the court must determine whether the matters embraced within the pending suit are substantially related to the factual matters involved in the previous suit. The severity of the remedy of disqualification requires the movant to establish a preponderance of the facts indicating a substantial relation between the two representations. The moving party must prove the existence of a prior attorney-client relationship in which the factual matters involved were so related to the facts in the pending litigation that it creates a genuine threat that confidences revealed to his former counsel will be divulged to his present adversary. Sustaining this burden requires evidence of specific similarities capable of being recited in the disqualification order. If this burden can be met, the moving party is entitled to a conclusive presumption that confidences and secrets were imparted to the former attorney.
NCNB Tex. Nat'l Bank v. Coker, 765 S.W.2d 398, 399-400 (Tex. 1989) (emphasis in original); Howard v. Tex. Dep't of Human Serv., 791 S.W.2d 313, 315 (Tex.App.-Corpus Christi 1990, no writ).
Coker, 765 S.W.2d at 400.
Id.
Id.
Id. (emphasis added); Howard, 791 S.W.2d at 315.
B. Analysis
The threshold issue is whether the matters involving the prior and current representations are "substantially related." Appellants argue that pursuant to the Roerig firm's representation of Lopez in 1996, the firm would have had access to medical records reflecting injuries sustained by Lopez as a result of the 1996 accident. According to appellants, by pleading the affirmative defense of pre-existing condition in the present case, appellee "created a direct factual relationship" between injuries sustained by Lopez in the 1996 accident and injuries he sustained in the 1998 accident at issue in the present case.
Coker, 765 S.W.2d at 399-400.
Appellee responds that the information regarding Lopez's 1996 automobile accident was not obtained from the Roerig firm's prior representation of Lopez, but from the Mission Police Department. Appellee contends that appellants failed to present any evidence that Lopez discussed his physical condition, either prior to or after the 1996 accident, with the Roerig firm prior to termination of the case. Appellee contends that appellants failed to establish that the matters involved in the 1996 representation are "substantially related" to the matters involved in the present case. We agree.
The record contains a letter issued by the trial court explaining its ruling. The letter states, in relevant part:
To satisfy the substantial relationship test as a basis for disqualification, a movant must prove that the facts of the previous representation are so related to the facts in a pending litigation that a genuine threat exists that confidences revealed to former counsel will be divulged to a present adversary. Mere allegations of unethical conduct or evidence showing a remote possibility of a violation of the Disciplinary Rules will not suffice under this standard. Furthermore, the movant may not rely upon conclusory statements but must provide the trial court with sufficient information so that it can engage in a painstaking analysis of the facts. While a movant need not divulge any confidences, he must delineate with specificity the subject matter, issues, and causes of actions presented in the former representation. Sustaining this burden requires evidence of specific similarities capable of being recited in the disqualification order.
The Court must then look at the two cases in question to see if they were so related that it creates a genuine threat that confidences revealed to the former counsel will be divulged to the present adversary. The known facts of the 1996 case are that the defendant was involved in an automobile accident and, as a result thereof, he was sued by a party unrelated to this case. The Roerig firm represented plaintiff Lopez as a defendant in the 1996 accident case after being employed to do so by plaintiff Lopez' [ sic] insurance carrier at the time. Although there is no specific evidence to that effect, the Court presumes that the nature of the lawsuit was for personal injuries and/or property damage to the party filing the lawsuit. No specifics were provided to the Court regarding the nature of the issues in the case. The Court can reasonably conclude from the evidence that the opposing party filed a negligence case alleging that the plaintiff Lopez' [ sic] negligence proximately caused damages to him in the 1996 case. The Court is sufficiently familiar with the trial of automobile accident cases to know that the defense lawyer would need to inquire of the client about the nature of the 1996 accident to determine its defenses to a negligence claim and to determine if the opposing party's driving behavior gave rise to a comparative negligence claim. Additionally, depending on the nature of damages claim by the opposing party, the defense counsel would be obliged to inquire of its client about relevant factors such as the severity of the accident, the damages to the vehicle, any conversation or admissions made by the opposing party in the aftermath of the accident and factors relevant to the presumed police investigation at the scene. There is no suggestion in the evidence of this case that the Roerig firm brought any form of cross action for any damages which the plaintiff Lopez may have suffered in the 1996 accident. It would be unusual that the firm hired by the insurance company to represent a defendant would file a cross action for damages in such a case or that the law firm might have been involved in confidential representations made to a different attorney employed for the purpose of pursuing a cross action. Without such evidence, the Court must necessarily find that there is no evidence of such and presume that the attorneys only inquired into things relevant to the defense. The Court finds that the plaintiff Lopez' [ sic] physical condition, specifically, any neck injuries either pre-existing in the 1996 accident or caused by the 1996 accident would not be typically relevant information that the attorney would discuss with a defendant in such a case. While the defendant is not required to divulge the confidences discussed with the lawyer, he is required to make a general showing that some confidences which would relate to the 1998 case [the present case] were discussed. Had such discussions occurred, the plaintiff Lopez could have informed this Court generally that in preparing for trial, he discussed with his attorneys his physical condition as to either the 1991 accident or the 1996 accident or both. There is no testimony to the effect that such matters were discussed.
. . . Since the 1996 accident case was terminated in 1997, the year before the accident involved in the case herein, the only potential relevant confidential information which could have been provided to his then defense attorneys would have been any information regarding his medical history either prior to the 1996 accident or subsequent to the 1996 accident up until the case was settled in 1997. Since there has been no evidence to show that his own physical condition either prior to or after the 1996 accident was ever discussed with his lawyers prior to termination of the case in 1997 and since it is not logical to assume that his then defense attorneys would have had any reason to discuss his physical condition with him, it does not appear to the Court that there is a substantial relationship between the 1996 case and the 1998 case.
We have reviewed the entire record. Regarding the 1996 accident, Lopez testified as follows:
Q [Lopez's counsel]: The `96 accident, the one I am talking about, the one that you said you could not remember. Did they [attorneys at the Roerig firm] talk to you about the injuries that you sustained in that accident?
A [Lopez]: I mean, I can't honestly remember what all went on, I know I just went in there to talk to them, and yes, they might have. I just don't remember exactly one way or the other.
. . . .
Q: And did you tell them when they represented you about the accident that happened in `96, what happened in the accident?
A: At that time to them?
Q: Right, did you explain to the attorneys, Roerig Oliveira Fisher?
A: Yes.
Q: Did you tell them what happened in the accident?
A: Yes, I had to go in several times to talk to them.
Q: How many times?
A: I am going to say about two or three times. I mean, I don't remember.
Q: Did you sign any papers when you went over there those two or three times?
A: I know I signed paperwork in regards to that `96 accident.
Q: Okay. Like do you remember what kind of documents they were?
A: I don't recall.
Q: Okay. And you said you don't recall telling them about the injuries that you suffered as result of the 1996 accident?
A: Maybe I did, I don't know. I mean it's —
Q: Okay. And did you pay for the representation that Roerig, Oliveira Fisher — did you pay them to represent you or did the insurance company pay them to represent you?
A: No, I think the insurance company was the one that did all that.
As noted, appellants had the burden of establishing that the matters are "substantially related." We conclude that appellants failed to bring forth "evidence of specific similarities capable of being recited in the disqualification order." We hold that on the evidence presented, based on the Coker standard, the trial court did not abuse its discretion in concluding that no substantial relationship existed between the former and current representations. Accordingly, we hold the trial court did not err in denying appellants' motion to disqualify. We overrule appellants' first issue.
See id. at 400.
See id. In Coker, the trial court's disqualification order stated: "The court further finds the subject matter involved in both representations are similar enough for there to be an appearance that the attorney-client confidences which could have been disclosed by the defendant might be relevant to the law firm's representation of the plaintiff in this suit." Id. In holding that the trial court failed to apply the proper standard to the disqualification motion, the supreme court noted:
The vagueness of the court's order indicates that the substantial relation test was not used; had it been, the court should have been able to state without difficulty the precise factors establishing a substantial relationship between the two representations. To hold that the two representations were "similar enough" to give an "appearance" that confidences which could be disclosed "might be relevant" to the representations falls short of the requisites of the established substantial relation standard.
Id.
See id. at 399-400; Metro. Life, 881 S.W.2d at 321.
Dissenting Opinion
The dissent concludes that the trial court abused its discretion in denying appellants' motion because appellants established that the matters involving the prior and current representations are "substantially related." The dissent finds the matters are "substantially related" because any injuries sustained by Lopez in prior accidents, including the 1996 accident, are relevant to appellee's defense of pre-existing condition. In support, the dissent points to Lopez's testimony that he struck his head in the 1996 accident and that he recalls speaking to his prior attorneys several times to explain what happened during the 1996 accident. The dissent notes Lopez's testimony that he may have mentioned his injuries to the attorneys. The dissent finds that the "assumptions" made by the trial court that Lopez did not provide any information pertaining to his injuries are not supported by the evidence. The dissent concludes that the appellants satisfied the test set out in Coker by establishing that the two matters are substantially related.
See Coker, 765 S.W.2d at 400.
We are unpersuaded that the evidence cited by the dissent is sufficient to meet the burden outlined in Coker of establishing that the matters are "substantially related." We conclude that appellants failed to prove the existence of a prior attorney-client relationship in which the factual matters involved were so related to the facts in the pending litigation that it creates a genuine threat that confidences revealed to Lopez's former counsel will be divulged to his present adversary. We conclude appellants failed to meet their burden and that the trial court did not err in denying appellants' motion to disqualify.
See id.
See id.
II. IMPEACHMENT EVIDENCE
By their second issue, appellants contend the trial court abused its discretion by allowing appellee's counsel to impeach Lopez's credibility by questioning him about the 1996 accident. Specifically, on cross-examination, appellee's counsel questioned Lopez about the 1996 accident after noting that he testified on direct examination and in his deposition that the only other accident he was involved in occurred in 1991.
Evidentiary rulings are reviewed for an abuse of discretion. This Court must review the entire record to determine whether the whole case turned on the evidence about which appellants complain. To obtain reversal on the basis of trial error, a party must establish that the error was "harmful." A trial error requires reversal ( i.e., is "harmful") if it (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals.
E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 558-59 (Tex. 1997); Brownsville Pediatric Ass'n v. Reyes, 68 S.W.3d 184, 192 (Tex.App.-Corpus Christi 2002, no pet.).
See TEX. R. APP. P. 44.1(a); Brownsville Pediatric Ass'n, 68 S.W.3d at 192-93.
See TEX. R. APP. P. 44.1(a); Brownsville Pediatric Ass'n, 68 S.W.3d at 193 (citing Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex.App.-Houston [1st Dist.] 1996), aff'd, 972 S.W.2d 35, 41 (Tex. 1998)).
Here, appellants complain generally that allowing the jury to hear the impeachment evidence resulted in "trial by ambush." We disagree. Appellants have failed to establish that the whole case turned on the impeachment evidence about which they complain. In light of the whole case, even if we were to conclude that the trial court erred in allowing the impeachment testimony, we could not say that the decision to allow the impeachment evidence caused the rendition of an improper judgment in this case. We overrule appellants' second issue.
See id.
III. SUFFICIENCY OF THE EVIDENCE
In their third issue, appellants challenge the legal and factual sufficiency of the evidence supporting the jury's award of zero damages.
"Unlike legal sufficiency challenges, factual sufficiency issues concede that the record presents conflicting evidence on an issue." Ed Rachal Found. v. D'Unger, 117 S.W.3d 348, 354 (Tex.App.-Corpus Christi 2003, pet. filed) (en banc).
When a party attacks the legal sufficiency of an adverse finding on which it had the burden of proof (damages), it must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. "In reviewing a `matter of law' challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary." "If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary position is established as a matter of law." The issue will be sustained "only if the contrary position is conclusively established." In addition, when a party attacks the factual sufficiency of a finding on which it had the burden of proof, it must demonstrate that the jury's answer is against the great weight and preponderance of the evidence. In reviewing such a challenge, a court of appeals "must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust."
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).
Id.
Id.
Id. at 241-42.
See id. at 241.
Id.
Appellants contend that they proved their respective medical expenses as a matter of law because (1) the trial court granted their motion for directed verdict on liability; and (2) they filed medical records and medical bills, along with affidavits proving their reasonableness and necessity pursuant to chapter 18 of the civil practice and remedies code, and appellee failed to file counter-affidavits.
See TEX. CIV. PRAC. REM. CODE ANN. § 18.001 (Vernon 1997).
Section 18.001(b) touches upon three elements of proving damages for past medical expenses: (1) the amount of the charges for medical services, (2) the reasonableness of the charges, and (3) the necessity of the charges. However, evidence presented in accordance with the statute does not conclusively establish the amount of damages nor does it establish a causal nexus between the accident and the medical expenses. A plaintiff may recover only for reasonable and necessary medical expenses specifically shown to result from treatment made necessary by the negligent acts or omissions of the defendant, where such a differentiation is possible.
See id. § 18.001(b); Walker v. Ricks, 101 S.W.3d 740, 747-48 (Tex.App.-Corpus Christi 2003, no pet.); Barrajas v. VIA Metro. Transit Auth., 945 S.W.2d 207, 209 (Tex.App.-San Antonio 1997, no writ).
Walker, 101 S.W.3d at 748.
See Texarkana Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 840 (Tex. 1997).
Appellants contend "it was proven as a matter of law that [they] were entitled to recover their respective medical expenses" because the trial court granted a directed verdict "holding that Appellee was liable for causing the incident in question and Appellants' injuries and damages arising therefrom." Appellants cite Sloan v. Molandes, 32 S.W.3d 745, 752 (Tex.App.-Beaumont 2000, no pet.) ("[c]ompliance with the statute [chapter 18] does not establish that the amount of the damages shown to be reasonable and necessary was caused by the defendant's negligence and therefore does not establish the plaintiff's entitlement to those damages as a matter of law"), and attempt to distinguish it by asserting that unlike Sloan, the trial court in the present case made a finding that the "amount of the damages shown to be reasonable and necessary was caused by the defendant's negligence." (emphasis added). The record, however, does not support appellants' assertion. The record reflects that the trial court granted a directed verdict only on the issue of liability; the issue of damages was decided by the jury.
Examining the record for evidence supporting the jury's finding of zero damages, the jury heard evidence that (1) following the 1998 accident at issue here, Lopez sought treatment from Dr. Pechero, complaining of neck and shoulder pain; (2) Lopez was involved in two previous accidents, one of which (in 1991) caused him to seek treatment from Dr. Pechero for neck and shoulder injuries; (3) Lopez testified that he had not seen any doctor during the past four years; (4) Dr. Pechero testified that following the 1991 accident, Lopez sought treatment for severe pain in his neck and shoulders; and (5) at his deposition, Lopez testified that between his 1991 accident and his 1998 accident, his neck never stopped bothering him. We conclude that the evidence is legally sufficient to support the jury's finding of zero damages.
See Dow Chem., 46 S.W.3d at 241.
See id.
Appellants also contend the jury's finding of zero damages is against the great weight and preponderance of the evidence and is manifestly unjust. The jury heard the following evidence: (1) Dr. Pechero testified that Lopez sustained a herniated disc as result of the 1998 accident; (2) Pechero also testified that Lopez was experiencing neck pain; (3) Lopez testified that he suffered neck and shoulder pain as a result of the 1998 accident; (4) Lopez testified that although he was involved in four accidents over the last several years (including one following the 1998 accident), his injuries were caused only by the 1998 accident; (5) Lopez testified as to lost wages and medical expenses in the amount of $3,900 incurred as a result of the accident; (6) Blanca Alvarez (Lopez's wife) testified she sought treatment from Dr. Pechero for injuries sustained as a result of the accident and incurred medical expenses of approximately $2,400; (7) Blanca Alvarez also testified as to approximately $800 in medical expenses to Dr. Pechero for examination of her daughters; and (8) Eva Alvarez (Lopez's sister-in-law) testified that she sought treatment from Dr. Pechero for neck and back pain sustained as a result of the accident.
See id.
The jurors were charged to observe the witnesses, evaluate their demeanor and the credibility of their testimony and resolve inconsistencies in the evidence. In determining the sufficiency of the evidence to support the jury's findings, the appellate court accepts, and will not interfere with, the jury's resolution of any conflicts or inconsistencies in the evidence. Considering all the evidence, we conclude that the jury's finding of zero damages is not against the great weight and preponderance of the evidence and is not manifestly unjust.
Walker, 101 S.W.3d at 750.
Id.
See Dow Chem., 46 S.W.3d at 241; Walker, 101 S.W.3d at 750.
Accordingly, we overrule appellants' third issue and affirm the trial court's judgment.
CONCURRING MEMORANDUM OPINION
Respectfully, I concur with the decision to affirm the trial court judgment. I would hold that appellants did not preserve error as to the disqualification issue because they did not timely secure a ruling on their motion to disqualify. Respectfully, I would honor the basic tenet that requires a party to timely secure a ruling on its motion. See TEX. R. APP. P. 33.1(a)(2)(A), (B). In this case, the trial court took the matter under advisement at critical junctures in the trial without ruling on the question before it. Appellants did not object to the trial court's implied refusal to rule. The trial court's ruling after the jury returned a verdict on damages is not timely. Id. Further, even assuming that appellants preserved error, they have not shown that the complained-of error probably caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1).
DISSENTING MEMORANDUM OPINION
I respectfully dissent. I would hold that the trial court erred in denying appellants' motion to disqualify the law firm representing appellee and therefore would reverse and remand for a new trial based on that issue.
I. RELEVANT FACTS REGARDING DISQUALIFICATION
On March 22, 1998, appellants and appellee were involved in a car accident. Appellants sued appellee for personal injuries allegedly caused by the accident. Appellee was represented in the trial court by an attorney ("the Attorney"). In appellee's answer, he alleged the affirmative defense of pre-existing condition against all appellants, including Lopez.
At trial, during Lopez's direct examination, he stated he only remembered being involved in one previous car accident in 1991. During cross-examination, the Attorney attempted to impeach Lopez with a police report indicating Lopez had previously been injured in a 1996 car accident and was taken away from the scene of that accident in an ambulance. Appellants objected to this impeachment on the basis that the report was not provided during discovery. The court sustained the objection on the report but allowed the Attorney to continue questioning Lopez regarding the 1996 accident and his injuries resulting from that accident. In her subsequent questioning about the 1996 accident, the Attorney asked Lopez whether he complained of injuries at the scene, left the scene in an ambulance, was taken to the hospital, and injured his neck in that accident.
After Lopez's cross-examination, appellants' counsel learned that the Attorney's firm (the Law Firm") had represented Lopez in a lawsuit filed against him arising from the 1996 accident. Appellants moved to disqualify the Law Firm and moved for a mistrial based on the Law Firm's prior representation of Lopez. The trial court held a hearing on the motion during the trial. In the hearing, Lopez testified that the Law Firm previously represented him in a suit filed against him arising from the 1996 accident and that the suit was settled shortly after it was filed. Lopez said he did not sign a waiver or consent to the Law Firm's representation of appellee in the present case. The trial court took the matter under advisement.
At the conclusion of the evidence, the trial court directed a verdict on liability in favor of appellants, leaving the issue of damages to the jury. While the jury deliberated, the trial court held a second hearing on the disqualification issue. Lopez testified again. When asked whether he spoke to the attorneys at the Law Firm about any injuries he sustained in the 1996 accident, Lopez testified, "I can't honestly remember what all went on, I know I just went in there to talk to them, and yes, they might have. I just don't remember exactly one way or the other." Lopez did recall meeting with the attorneys from the Law Firm several times and explaining to them what happened in the accident.
The Attorney's legal assistant (the Assistant) also testified during the second hearing. She explained that, on the Thursday before trial was scheduled to begin, she received a call from State Farm informing her that it had information regarding a 1996 accident involving Lopez.
Lopez testified State Farm was his insurer in 1996 when he was involved in the accident. State Farm was appellee's insurer in 1998, when the accident in the underlying case took place.
The Attorney asked the Assistant to follow up on the call. The following day, the Assistant sent someone to the Mission Police Department to pick up a copy of a police report on the accident. At around 5:00 p.m., the name of the other driver involved in the 1996 accident rang a bell with the Assistant. After investigating, she learned the Law Firm had a closed file in storage on a lawsuit arising from the 1996 accident and that the Law Firm had represented Lopez in that case. When she told the Attorney about the file, the Attorney responded that she had not reviewed the file and did not know it existed. The Attorney did not ask the Assistant to follow up on the matter. The file was found on Monday, the day the trial started.
Although the Attorney did not testify at the hearing, she stated to the court that she did obtain the settlement agreement and the motion to dismiss with prejudice in the 1996 case. She also stated she did not take any action after she learned about the prior representation because she did not believe a conflict existed. The court again took the matter under advisement.
The jury returned a verdict of zero damages. On January 17, 2003, before entering judgment on the verdict, the trial court issued a letter opinion denying the motion for disqualification. In the opinion, the trial court said the Law Firm previously represented Lopez in purely a defensive capacity and no evidence of cross-claims was submitted. The court assumed that the attorneys inquired into matters relevant only to the defense and that such matters would not include information pertaining to any injuries Lopez sustained in the 1996 accident. The court concluded no substantial relationship existed between the 1996 and 1998 accidents and denied appellants' motions. The trial court later entered judgment on the jury's verdict. Appellants again raised the disqualification issue in a written motion to disqualify and in a motion for a new trial. The trial court also denied these motions.
II. ANALYSIS
In appellants' first issue, they contend the trial court abused its discretion in denying the motion to disqualify the Law Firm. The appellate court reviews a trial court's ruling on a motion to disqualify for abuse of discretion. Metro. Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d 319, 321 (Tex. 1994) (per curiam); see Howard v. Tex. Dep't of Hum. Servs., 791 S.W.2d 313, 315-16 (Tex.App.-Corpus Christi 1990, no writ). Under this standard, this Court will consider whether the trial court acted without reference to any guiding rules or principles or acted in an arbitrary or unreasonable manner. Metro. Life Ins. Co., 881 S.W.2d at 321.
In reviewing a ruling on a motion to disqualify, we turn to the Texas Disciplinary Rules of Professional Conduct for guidance. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding). Rule 1.09 of the disciplinary rules of professional conduct states, in pertinent part:
(a) Without 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.
TEX. DISCIPLINARY R. PROF'L CONDUCT 1.09(a), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 1998). If one member of the firm would be disqualified under this rule, other members in the disqualified attorney's firm are similarly disqualified. TEX. DISCIPLINARY R. PROF'L CONDUCT 1.09(b); In re Mitcham, 133 S.W.3d 274, 276 (Tex. 2004) (orig. proceeding).
In NCNB Texas National Bank v. Coker, the supreme court stated that, in order to show a substantial relationship between the matters, the movant must prove "the existence of a prior attorney-client relationship in which the factual matters involved were so related to the facts in the pending litigation that it creates a genuine threat that confidences revealed to his former counsel will be divulged to his present adversary." NCNB Tex. Nat'l Bank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989) (orig. proceeding); see In re Epic Holdings, Inc., 985 S.W.2d 41, 51 (Tex. 1998) (orig. proceeding) (matters are substantially related where "genuine threat exists that a lawyer may divulge in one matter confidential information obtained in the other because the facts and issues involved in both are so similar"). If the movant meets this burden, he is entitled to a conclusive presumption that confidences and secrets were imparted to the former attorney. Coker, 765 S.W.2d at 400. The supreme court added:
In this manner, the movant is not forced to reveal the very confidences he wishes to protect. By proving the substantial relationship between the two representations, the moving party establishes as a matter of law that an appearance of impropriety exists. Although the former attorney will not be presumed to have revealed the confidences to his present client, the trial court should perform its role in the internal regulation of the legal profession and disqualify counsel from further representation in the pending litigation.
Id.
The parties do not dispute that the Law Firm represented Lopez in the lawsuit against him arising from the 1996 car accident. Nor do the parties dispute that the Law Firm did not obtain Lopez's consent to represent Sandoval in the underlying suit. The parties, however, do not agree on whether the lawsuit arising from the 1996 car accident is "substantially related" to the underlying suit. The majority opinion concludes that there is no substantial relation between the suits; I disagree and would find such a relationship to exist.
In the underlying case, appellee pleaded the affirmative defense of pre-existing condition. This defense placed at issue, at a minimum, any previous injuries Lopez may have sustained that affected his neck and surrounding areas, which he testified were injured as a result of the 1998 accident. Thus, any other accidents in which Lopez was involved and may have been injured were relevant to this defense. The subject of the suit giving rise to the prior representation was the 1996 accident in which Lopez was involved.
The trial court assumed that the Law Firm confined its investigation of the 1996 accident to facts relevant to defending Lopez and surmised these facts would not include any information pertaining to Lopez's injuries. On the contrary, Lopez testified he recalled speaking with the attorneys for the Law Firm several times to explain what happened in the accident. Lopez also said he struck his head during that accident. Lopez also indicated that he may have mentioned his injuries to the attorneys: "Maybe I did, I don't know." The trial court's assumptions that, despite this ambiguous testimony from Lopez, he did not provide any information pertaining to any injuries were not founded in the evidence presented at the hearing or on any presumptions established by the law.
The Attorney's cross-examination of Lopez further emphasizes the relationship between the facts involved in the two matters. The Attorney's questioning went beyond merely impeaching Lopez on his answer regarding prior car accidents in which he was involved. The Attorney questioned Lopez about injuries he sustained and what happened immediately after the accident.
Appellee contends no conflict existed for a number of reasons: (1) the Law Firm's representation of Lopez concluded long before the Law Firm represented appellee; (2) the Attorney did not obtain any information about Lopez's previous action by virtue of the Law Firm's prior representation of Lopez; and (3) the information the Attorney did obtain about the 1996 accident was not confidential. I would disagree.
The movant does not need to prove that the attorney-client relationship is ongoing or overlapped with the representation of a party in a matter adverse to the movant. See TEX. DISCIPLINARY R. PROF'L CONDUCT 1.09(a). Moreover, actual disclosure of confidences need not be proven. In re Epic Holdings, Inc., 985 S.W.2d at 51. Rather, the key question in determining whether the matters are substantially related is whether a genuine threat of disclosure exists based on the similarity of the matters. Id. The movant need not prove he relayed relevant confidences to counsel. Nor is the movant barred from relief merely because the relevant information has been publicly disclosed. See Centerline Indus., Inc. v. Knize, 894 S.W.2d 874, 876 (Tex.App.-Waco 1995, orig. proceeding) ("[I]t should make no difference whether the lawyer gained no confidences or whether all the confidences gained have been publicly disclosed."). Instead, he need only satisfy the test set out in Coker to be entitled to the conclusive presumption that confidences and secrets were imparted to the former attorney. Coker, 765 S.W.2d at 400.
Essential to appellee's defense of pre-existing condition against Lopez was information about prior accidents Lopez was involved in and injuries he may have sustained in those accidents, including any injuries arising from the 1996 car accident. The facts of the matters are so related that a genuine threat existed that confidences Lopez revealed to the Law Firm would be divulged to appellee. Having shown that the matters are substantially related, appellants were entitled to the conclusive presumption that Lopez imparted confidences and secrets to Law Firm. Appellants established an appearance of impropriety as a matter of law. The trial court abused its discretion in denying the motion to disqualify the Law Firm.
III. CONCLUSION
Because I would conclude that the trial court erred in ruling against appellants' motion to disqualify, I would reverse and remand the cause to the trial court. See Howard, 791 S.W.2d at 315-16 (proper remedy for abuse of discretion in denying motion to disqualify is reversal of judgment and remand of case for new trial). Accordingly, I dissent from the outcome reached by the majority opinion.