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Lipper v. Haynes

Court of Appeals of Texas, First District

August 6, 2019

ERIC LIPPER, Appellant
v.
JUSTIN HAYNES, Appellee and IN RE ERIC LIPPER, RELATOR

          On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2018-67225

          Panel consists of Justices Keyes, Goodman, and Kelly.

          MEMORANDUM OPINION

          Gordon Goodman, Justice

         In the underlying suit, an ex-husband, Justin Haynes, sued his ex-wife, her father, and her attorney for statements the attorney made in the divorce proceeding in connection with his client's request for attorney's fees. The attorney, Eric Lipper, filed a hybrid motion to dismiss the suit under the Texas Citizens Participation Act and Texas Rule of Civil Procedure 91a, which the trial court denied.

         Lipper challenges the denial of his motion on both grounds. In his interlocutory appeal under the TCPA, Lipper contends that (1) he demonstrated that the TCPA applies to Haynes's claims against him, (2) Haynes failed to establish a prima facie case on the elements of his claims, and (3) he satisfied his burden to show that he is immune from liability to Haynes under the doctrine of attorney immunity. Lipper's petition for writ of mandamus seeks relief from the trial court's denial of his motion under Rule 91a.[1]

         We conclude that Lipper proved his entitlement to dismissal under the TCPA and, accordingly, reverse the trial court's order and remand the case for further proceedings under that statute. See Tex. Civ. Prac. & Rem. Code § 27.009. We dismiss the petition for writ of mandamus as moot.

         BACKGROUND

         During the marriage between Haynes and J.P. Bryan's daughter, Alicia Bryan, Haynes asked J.P. for a loan to assist him in purchasing a condominium. J.P. loaned the money to Haynes under a promissory note. The parties eventually came to dispute when Haynes was required to satisfy the debt.

         After Alicia filed for divorce from Haynes, J.P. sued Haynes in a separate proceeding on the unpaid note. Lipper represented Alicia in the divorce proceeding and J.P. in the suit on the note.

         J.P. and Haynes reached a settlement in the suit on the note, under which each party agreed to bear its own attorney's fees and costs. In the divorce proceeding, the court held a bench trial. Lipper presented a request for attorney's fees during the trial, supported by redacted billing records. In cross-examining Lipper on the billing entries, Haynes's attorney identified a billing entry that pertained to Lipper's representation of J.P. in the suit on the note. In response, Lipper acknowledged the error.

         Haynes alleges that despite Lipper's acknowledgment that the entry pertained to his work for J.P. in the suit on the note, Lipper never corrected the billing statements on file. The divorce court's judgment awarded Alicia her reasonable and necessary attorney's fees based on the fees requested without adjusting for the billing error.

         Haynes did not challenge the attorney's fee award on this ground in his appeal of the divorce judgment. Instead, he brought this suit against Lipper, J.P., and Alicia, claiming breach of contract, tortious interference, and conspiracy.

         DISCUSSION

         I.TCPA ...


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