Panel consists of Chief Justice HEDGES, and Justices BROWN, and CHRISTOPHER.
George D. Gordon, Conroe, Eric Yollick, The Woodlands, Levin J. Benton, Houston, for Relators.R. Michael McCauley, Jr., Lubbock, Patrick Zummo, Houston, Gene Jones, Beaumont, James M. McCormack, Austin, for real party in interest.
Panel consists of Chief Justice HEDGES, and Justices BROWN, and CHRISTOPHER.
OPINION
JEFFREY V. BROWN, Justice.
On June 10, 2011, relators, Louisiana Texas Healthcare Management, L.L.C. (“LTHM”) and Merensky Reef Hospital Corporation (“MRHC”), filed a petition for writ of mandamus in this court. See Tex. Gov't Code § 22.221; see also Tex.R.App. P. 52. Relators complain that respondent, the Honorable Sylvia Matthews, presiding judge of the 281st District Court of Harris County, abused her discretion in denying their motion to disqualify counsel. A response was filed by the real parties in interest (“Plaintiffs' counsel”). Because the record supports the trial court's implied finding that relators waived their right to seek disqualification, we deny the petition.
The underlying proceeding is a lender liability lawsuit for damages by six parties (“Plaintiffs”) against LTHM, MRHC, First National Bank, and others, alleging plaintiffs are still the owners of LTHM. Relators moved to disqualify “all of Plaintiffs' current counsel and law firms” on the grounds they have utilized the services of a consulting expert, Dean Ferguson. Ferguson is “former general counsel of LTHM and was a counsel to MRHC with respect to many of the matters and issues before this Court in this lawsuit.” Relators rely upon Rule 1.09 of the Texas Disciplinary Rules of Professional Conduct and seek to extend its application to a lawyer serving as an expert witness against a former client. Relators admit Ferguson never acted as an attorney for Plaintiffs. Following a hearing, the trial court denied relators' motion.
The denial of a motion to disqualify is reviewable by mandamus. See National Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123, 133 (Tex.1996).
Waiver of a motion to disqualify is determined by the filing of the motion. A party who does not file a motion to disqualify opposing counsel in a timely manner waives the complaint. Vaughan v. Walther, 875 S.W.2d 690 (Tex.1994) (orig. proceeding). In determining whether a party has waived the complaint, the court will consider the length of time between when the conflict became apparent to the aggrieved party and when the aggrieved party filed the motion to disqualify. See
Wasserman v. Black, 910 S.W.2d 564, 568 (Tex.App.-Waco 1995, orig. proceeding). The court should also consider any other evidence which indicates the motion is being filed not due to a concern that confidences related in an attorney-client relationship may be divulged but as a dilatory trial tactic. Spears, 797 S.W.2d at 656. [