Guthrie v. Buckley, et al

*Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 29, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40481
Summary Calendar
ELENE T. GUTHRIE,
Plaintiff-Appellant,
versus
MARK ROGER BUCKLEY;
DIANA L. PORTER;
DIANA L. PORTER, P.C.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:02 CV 297
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff Guthrie appeals the district court’s decision to
grant Defendants’ Motion to Dismiss pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons,
we AFFIRM.
Guthrie sued Defendants Mark Buckley and Diane Porter,
Buckley’s attorney, for malicious prosecution. Guthrie based the

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1 Bradt v. West, 892 S.W.2d 56, 72-73 (Tex. App.--Houston [1st
Dist.] 1994, writ denied).
2 Id. at 73.
3 Taco Bell Corp. v. R.W. Cracken, 939 F.Supp. 528, 532 (N.D.
Tex. 1996) (holding that Bradt’s reasoning applies “with at least
2
suit on the actions of Defendants in a previous suit. In the
previous suit, Buckley, represented by Porter, sued to enforce a
child custody order. The motion included 19 criminal contempt-of-
court counts demanding incarceration. The court granted Buckley’s
motion to enforce the child custody order, finding Guthrie in
violation of various provisions of the order, but the court did not
hold Guthrie in contempt of court.
Guthrie bases her malicious prosecution claim on the
underlying court’s refusal to find her in contempt. However, the
controlling Texas law disallows her suit. Therefore, the district
court properly granted the motion to dismiss.
Texas law holds that “an attorney does not have a right of
recovery, under any cause of action, against another attorney
arising from conduct the second attorney engaged in as part of the
discharge of his duties in representing a party in a lawsuit in
which the first attorney also represented a party.”1 To allow
otherwise would “favor tentative representation, not the zealous
representation that our profession rightly regards as an ideal and
that the public has a right to expect.”2 This principle has been
extended to suits by opposing parties against attorneys.3 An

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equal force to the liability of an attorney to the opposing
party”); Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32
S.W.3d 429, 440-42 (Tex. App.--Houston [14th Dist.] 2000, pet.
denied).
4 Bradt, 892 S.W.2d at 72.
5 Id. at 76-77.
6 Id. at 76 (citing TransAmerican Natural Gas Corp. v. Powell,
811 S.W.2d 913, 917 (Tex. 1991)).
7 Id. at 76-77.
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attorney or an opposing party may seek sanctions for the
opposition’s allegedly meritless or malicious acts, “[b]ut the law
does not provide a cause of action.”4
Based on this law, the district court properly granted
Defendants’ Motion to Dismiss in relation to Porter. Porter’s
pleadings, which attempted to hold Guthrie in contempt of court,
were acts within the discharge of her duties as an attorney.
Accordingly, Guthrie has no cause of action based on Porter’s
actions.
Similarly, Texas law does not allow one party to sue an
opposing party for an attorney’s allegedly wrongful conduct.5 To
be liable for the attorney’s conduct, a client must be “implicated
in some way other than merely having entrusted his legal
representation to the attorney.”6 This rule recognizes that most
clients are not qualified to monitor their attorney’s actions
during representation.7 Guthrie’s suit is based on Porter’s
pleadings, which sought to hold her in contempt of court. There is

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8 Contrary to Guthrie’s allegation, the district court’s
dismissal did not require it to resolve a disputed fact. Guthrie
attempted to hold Buckley liable based on the pleadings filed by
Porter. Without more, Porter’s pleadings show only that Buckley
entrusted his legal representation to her.
4
no allegation or evidence that Buckley did anything more than hire
an attorney to zealously represent him in enforcing a child custody
order.8 Accordingly, Texas law will not allow a cause of action
against Buckley arising out of Porter’s representation.
AFFIRMED.

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