Opinion Field Date August 21, 2017
from the United States District Court for the Southern
District of Texas
HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
interlocutory appeal arises out of the district court's
denial of Defendant-Appellant Seth Nichamoff's motion to
dismiss based on his assertion of Texas's attorney
immunity. Plaintiff-Appellee Jodie Kelly's complaint
alleges that Nichamoff conspired with two other Defendants to
defraud her into purchasing undervalued shares of Legacy
Automation, Power & Design, Inc., a Texas company owned
by one of the Defendants, Paul Rembach. Specifically, she
alleges that Nichamoff helped to fraudulently manipulate
Legacy's shares, falsely assured Kelly that she was
purchasing shares sufficient to give her 50% ownership,
withheld and concealed information that would have revealed
the fraud, and falsely represented the value of the shares.
moved to dismiss Kelly's claims against him, invoking
attorney immunity under Texas law. He argued that he was
entitled to immunity because he was Rembach's attorney
during the transaction and the alleged conduct fell within
the scope of his representation. The district court denied
Nichamoff's motion to dismiss, concluding that
Texas's attorney immunity was inapplicable because
Nichamoff's representation of Rembach occurred during a
business transaction (a stock transfer) and was unrelated to
litigation or an otherwise adversarial context. Nichamoff
appeals, arguing that the district court adopted an unduly
narrow view of Texas's attorney immunity doctrine. We
affirm the district court's judgment, but do so on
district court's order denying [a] defendant['s]
motion to dismiss on the basis of attorney immunity under
Texas law is an appealable collateral order." Troice
v. Proskauer Rose, L.L.P., 816 F.3d 341, 348 (5th Cir.
2016). Thus, we have jurisdiction to review the district
court's denial of Nichamoff's motion to dismiss.
See id. "We review de novo a district
court's denial of a motion to dismiss based on immunity
[and] also review de novo a district court's
interpretation of state law." Id. at 345. When
considering a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, we take all factual
allegations as true and construe the facts in the light most
favorable to the plaintiff. Gines v. D.R. Horton,
Inc., 699 F.3d 812, 816 (5th Cir. 2012). "Although
dismissal under rule 12(b)(6) may be appropriate based on a
successful affirmative defense, that defense must appear on
the face of the complaint." EPCO Carbon Dioxide
Prods., Inc. v. JP Morgan Chase Bank, NA, 467 F.3d 466,
470 (5th Cir. 2006).
deciding whether to apply a state-law immunity, we are
"bound to answer the question the way the state's
highest court would resolve the issue." Troice,
816 F.3d at 345 (quoting Occidental Chem. Corp. v. Elliot
Turbomachinery Co., 84 F.3d 172, 175 (5th Cir. 1996)).
"In applying Texas law, we look first to the decisions
of the Texas Supreme Court." Hux v. S. Methodist
Univ., 819 F.3d 776, 780 (5th Cir. 2016). If the Texas
Supreme Court has not ruled on an issue, we "make an
Erie guess, predicting what [the Texas Supreme
Court] would do if faced with the [same] facts."
Id. In doing so, we typically "treat state
intermediate courts' decisions as the strongest indicator
of what a state supreme court would do, absent a compelling
reason to believe that the state supreme court would reject
the lower courts' reasoning." Id. at
Texas law, attorney immunity is a "comprehensive
affirmative defense protecting attorneys from liability to
non-clients, stemming from the broad declaration . . . that
'attorneys are authorized to practice their profession,
to advise their clients and interpose any defense or supposed
defense, without making themselves liable for
damages.'" Cantey Hanger, LLP v. Byrd, 467
S.W.3d 477, 481 (Tex. 2015) (quoting Kruegel v.
Murphy, 126 S.W. 343, 345 (Tex. Civ. App. 1910, writ
ref'd)), reh'g denied (Sept. 11, 2015). The
immunity aims "to ensure 'loyal, faithful, and
aggressive representation by attorneys employed as
advocates.'" Id. (quoting Mitchell v.
Chapman, 10 S.W.3d 810, 812 (Tex. App.-Dallas 2000, pet.
denied)). Generally, the immunity applies to "conduct .
. . involving 'the office, professional training, skill,
and authority of an attorney.'" Reagan Nat'l
Advert. of Austin, Inc. v. Hazen, No. 03-05-00699-CV,
2008 WL 2938823, at *3 (Tex. App.-Austin July 29, 2008, no
pet.) (citations omitted). If an attorney shows that the
conduct at issue was "part of the discharge of the
[attorney's] duties in representing [the] client, "
immunity is appropriate. Cantey, 467 S.W.3d at 481
(quoting Toles v. Toles, 113 S.W.3d 899, 910-11
(Tex. App.-Dallas 2003, no pet.)).
other hand, "attorneys are not protected from liability
to non- clients for their actions when they do not qualify as
'the kind of conduct in which an attorney engages when
discharging . . . duties to [a] client.'"
Id. at 482 (quoting Dixon Fin. Servs., Ltd. v.
Greenberg, Peden, Siegmyer & Oshman, P.C., No.
01-06-00696-CV, 2008 WL 746548, at *7 (Tex. App.-Houston Mar.
20, 2008, pet. denied) (mem. op. on reh'g)). For example,
an attorney cannot avoid liability "for the damages
caused by [the attorney's] participation in a fraudulent
business scheme with [the] client, as 'such acts are
entirely foreign to the duties of an attorney.'"
Id. (quoting Poole v. Hous. & T.C. Ry.
Co., 58 Tex. 134, 137 (1882)).
an attorney seeking dismissal based on attorney immunity
bears the burden of establishing entitlement to the defense.
JJJJ Walker, LLC v. Yollick, 447 S.W.3d 453, 468
(Tex. App.-Houston [14th Dist.] 2014, pet. denied); see
also Cantey, 467 S.W.3d at 484 ("An attorney who
pleads the affirmative defense of attorney immunity has the
burden to prove that [the] alleged wrongful conduct . . . is
part of the discharge of [the attorney's] duties to [the]
client."). To meet this burden, the attorney must
"conclusively establish that [the] alleged conduct was
within the scope of [the attorney's] legal representation
of [the] client." Santiago v. Mackie Wolf Zientz
& Mann, P.C., No. 05-16-00394-CV, 2017 WL 944027, at
*3 (Tex. App.-Dallas Mar. 10, 2017, no. pet. h.); accord
Cantey, 467 S.W.3d at 484. Although Texas courts
occasionally grant attorney immunity at the motion to dismiss
stage, in those cases, the scope of the attorney's
representation-and thus entitlement to the immunity-was
apparent on the face of the complaint. See, e.g.,
Highland Capital Mgmt., LP v. Looper Reed &
McGraw, P.C., No. 05-15-00055-CV, 2016 WL 164528, at *1,
*7 (Tex. App.-Dallas Jan. 14, 2016, pet. denied) (granting
immunity when the complaint specifically alleged that a law
firm's wrongful actions occurred "during [the
firm's] representation of" the employee in that suit
and concluding that "[b]ecause the facts alleged by [the
plaintiff] were sufficient to support the defense of
immunity, [the firm] did not need to present further evidence
in support of its motion").
has not conclusively established that the conduct alleged by
Kelly fell within the scope of his representation of Rembach.
Kelly acknowledges in her complaint that "Nichamoff was
Rembach's attorney" at the time Kelly acquired the
Legacy shares. But this information establishes only that
Rembach was Nichamoff's client. It does not establish the
scope of Nichamoff's representation. The mere
fact that an attorney was representing a client at the time
of alleged fraudulent activity is not enough to warrant
immunity. See id. at *5 ("A lawyer . . . cannot
shield his [or her] own willful and premeditated fraudulent
actions from liability simply on the ground that [the lawyer]
is an agent of the client.") (quoting Alpert v.
Crain, Caton & James, P.C., 178 S.W.3d 398, 406
(Tex. App.-Houston [1st Dist.] 2005, pet. ...