Court of Appeals of Texas, Fourth District, San Antonio
BROWN SIMS, P.C. and Nelson D. Skyler, Appellants
L.W. MATTESON, INC., AGCS Marine Insurance Company, and New York Marine and General Insurance Company, Appellees
the 381st Judicial District Court, Starr County, Texas Trial
Court No. DC-18-55 Honorable Jose Luis Garza, Judge Presiding
Sitting: Rebeca C. Martinez, Justice Irene Rios, Justice Liza
A. Rodriguez, Justice
A. Rodriguez, Justice.
issue in this appeal is whether the TCPA, Texas's
anti-SLAPP statute, applies to a malpractice suit brought by
a former client against its attorneys. In considering the
plain language of the TCPA and precedent by the Texas Supreme
Court, we conclude (1) the TCPA does apply to the malpractice
suit at issue in this case and (2) the former client
established a prima facie case for its malpractice claim.
Thus, we affirm in part the trial court's order denying
the motion to dismiss pursuant to the TCPA. However, because
the former client nonsuited other claims before the hearing
on the motion to dismiss, we agree the trial court should
have awarded reasonable attorney's fees and sanctions
with respect to those nonsuited claims. Accordingly, we
reverse the trial court's order in part.
L.W. Matteson, Inc. ("Matteson"), a dredging
contractor, was sued in March 2012 by its former employee
Jose Flores, it hired attorney Nelson D. Skyler and the law
firm Brown Sims, P.C. ("Brown Sims") to represent
it. Flores had filed a maritime personal injury suit in Starr
County, Texas, pursuant to the Jones Act, as codified in 46
U.S.C. § 30104. Flores alleged that Matteson was
negligent by failing to furnish him with a reasonably safe
place to work and by failing to provide a seaworthy vessel.
Flores alleged that in late July 2010, he was working on a
dredging vessel owned by Matteson when he believed he was
bitten by a spider. Flores received medical treatment for his
swollen hand and returned to work in mid-August. He continued
working for Matteson until the dredging vessel completed its
contract in November. On March 8, 2013, after being diagnosed
with liver cancer, Flores passed away. His estate substituted
in as plaintiff. In December 2015, the case proceeded to
trial, and a jury found Flores's estate was entitled to
$41.104 million in damages. Flores's son then filed his
own lawsuit against Matteson. Matteson settled both lawsuits
for $10 million.
January 25, 2018, Matteson, along with AGCS Marine Insurance
Co. ("AGCS Marine") and New York Marine and General
Insurance Co. ("NY Marine"), the insurance
companies that provided Matteson with excess coverage, filed
the underlying legal malpractice suit against Skyler and the
law firm Brown Sims. On appeal, Matteson, AGCS Marine and NY
Marine point to two specific alleged breaches of the standard
of care by Skyler and Brown Sims: (1) the failure to raise
the federal limitation-of-liability statute by either
pleading it as an affirmative defense or by filing a
limitation-of-liability action in federal court; and (2) the
failure to file a special appearance based on lack of
personal jurisdiction. Two-and-a-half months later, Skyler
and Brown Sims filed a motion to dismiss pursuant to the
TCPA, arguing that the claims brought against them implicated
their right to petition and their right to free speech.
Matteson, AGCS Marine, and NY Marine responded by arguing
that the TCPA did not apply; in the alternative, they
produced evidence to support their prima facie case of legal
malpractice. After the trial court denied the motion to
dismiss, Skyler and Brown Sims filed this interlocutory
to Dismiss Under the Texas Citizens Participation
TCPA's stated purpose is to "encourage and safeguard
the constitutional rights of persons to petition, speak
freely, associate freely, and otherwise participate in
government to the maximum extent permitted by law and, at the
same time, protect the rights of a person to file meritorious
lawsuits for demonstrable injury." Tex. Civ. Prac. &
Rem. Code Ann. § 27.002. In an aim to fulfill this purpose, the
TCPA provides for dismissal of a "legal action"
that "is based on, relates to, or is in response to a
party's exercise of the right of free speech, right to
petition, or right of association" unless the plaintiff
establishes "by clear and specific evidence a prima
facie case for each essential element of the claim in
question." Id. §§ 27.003(a),
moving for dismissal under the TCPA has the initial burden of
showing by a preponderance of the evidence that the legal
action "is based on, relates to, or is in response to
the party's exercise of: (1) the right of free speech;
(2) the right to petition; or (3) the right of
association." Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(b); see S & S Emergency Training Sols.,
Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018). If the
movant makes this showing, the burden shifts to the
respondent. See S & S, 564 S.W.3d at 847. The
respondent's claims against the movant will be dismissed
unless the respondent can "establish by clear and
specific evidence a prima facie case for each essential
element of the claim in question." Tex. Civ. Prac. &
Rem. Code Ann. § 27.005(c); see S & S, 564
S.W.3d at 847. The supreme court has explained that "a
prima facie case is the 'minimum quantum of evidence
necessary to support a rational inference that the allegation
of fact is true.'" S & S, 564 S.W.3d at
847 (quoting In re Lipsky, 460 S.W.3d 579, 590 (Tex.
2015)). "A finding that [the respondent] has met his
TCPA burden does not establish that his allegations are
true." West v. Quintanilla, 573 S.W.3d 237, 243
n.9 (Tex. 2019).
respondent satisfies his burden, then the burden shifts back
to the movant to establish "by a preponderance of the
evidence each essential element of a valid defense" to
the respondent's claim. Tex. Civ. Prac. & Rem. Code
Ann. § 27.005(d). If, on the other hand, the respondent
does not satisfy his TCPA burden, then the trial court must
dismiss the legal action. Id.
determining whether the respondent has met its burden, the
trial court does not hear live testimony; the TCPA directs
courts to "consider the pleadings and supporting and
opposing affidavits stating the facts on which the liability
or defense is based." Tex. Civ. Prac. & Rem. Code
Ann. § 27.006(a). The supreme court has "recently
observed that the pleadings are 'the best and
all-sufficient evidence of the nature of the
action.'" West, 573 S.W.3d at 242 n.8
(quoting Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex.
appellate court reviews issues regarding interpretation of
the TCPA de novo. S & S, 564 S.W.3d at 847.
Does the TCPA apply?
parties dispute whether the TCPA applies in this case.
Matteson, AGCS Marine, and NY Marine argue the TCPA does not
apply to their claims because (1) no court has ever held it
applies to legal malpractice claims; and (2) they are not
suing Skyler and Brown Sims for any "communication"
made; instead they argue that they are suing Skyler and Brown
Sims "for what [they] did not do, " i.e. failing to
raise the federal limitation-of-liability statute in the
answer or file a motion challenging personal jurisdiction. In
contrast, Skyler and Brown Sims contend that "when an
attorney is sued for choices made when speaking and
petitioning on behalf of a client in court, the TCPA
the plain language of the TCPA, "[i]f a legal action is
based on, relates to, or is in response to a
party's exercise of the right of free speech, right to
petition, or right of association, that party may file a
motion to dismiss the legal action." Tex. Civ. Prac.
& Rem. Code Ann. § 27.003(a). Thus, for the TCPA to
apply to this case, the claim brought against Skyler and
Brown Sims need only relate to their exercise of the
right to petition or the right of free speech. See
id. "[E]xercise of the right to petition" is
defined as "a communication in or
pertaining to . . . a judicial proceeding."
Id. § 27.001(4)(A)(i) (emphasis added).
"[E]xercise of the right of free speech" is defined
as "a communication made in connection with a
matter of public concern." Id. § 27.001(3)
(emphasis added). "Communication" is defined
broadly as including "the making or submitting of a
statement or document in any form or medium, including oral,
visual, written, audiovisual or electronic."
Id. § 27.001(1). Applying these definitions, in
connection with the exercise of the right to petition, the
TCPA applies to the malpractice claim brought against Skyler
and Brown Sims if it merely relates to a
communication by Skyler and Brown Sims in or pertaining
to a judicial proceeding. Regarding the exercise of the
right of free speech, the TCPA applies to the malpractice
claim brought against Skyler and Brown Sims if it merely
relates to a communication made by Skyler and Brown
Sims in connection with a matter of public concern.
AGCS Marine, and NY Marine have alleged that Skyler and Brown
Sims committed legal malpractice by failing to include an
affirmative defense in the answer they filed on behalf of
Matteson in the Flores case. The answer filed by
Skyler and Brown Sims on behalf of Matteson is most certainly
a communication in a judicial proceeding. See id.
§ 27.001(4)(A)(i). While Matteson, AGCS Marine, and NY
Marine argue their malpractice suit is based on a failure to
make a communication (i.e. failing to include the federal
limitation-of-liability affirmative defense in the answer)
and not based on an actual communication, we conclude they
are parsing hairs. Matteson, AGCS Marine, and NY Marine have
alleged that Skyler and Brown Sims filed a defective
communication-the answer-by failing to include a specific
affirmative defense. That the answer did not include this
specific affirmative defense does not mean that Skyler and
Brown Sims have not been sued for making a communication in a
judicial proceeding. The basis of the allegations against
them relate to their alleged defective communication. See
id. We therefore conclude the TCPA applies to the
malpractice claim brought against Skyler and Brown Sims
because the claim relates to the exercise of the
right to petition.
Is there an exemption for legal malpractice cases?
AGCS Marine, and NY Marine argue that the TCPA does not apply
to legal malpractice actions, emphasizing that no court has
made such a holding. Last year, however, the Texas Supreme
Court in Youngkin v. Hines, 546 S.W.3d 675, 678
(Tex. 2018), did discuss the applicability of the TCPA in the
context of a nonclient suing an attorney based, in part, on
statements made in open court by the attorney on behalf of
his clients. In considering whether the attorney was entitled
to dismissal of the claims under the TCPA, the supreme court
emphasized that in determining the applicability of the TCPA,
a court's objective "is to determine and give effect
to the Legislature's intent" by considering the
"statute's words according to their plain and common
meaning, unless a contrary intention is apparent from the
context, or unless such a construction leads to absurd
results." Id. at 680 (citations omitted).
lawyer in Youngkin argued the TCPA applied to the
tort claims brought by the nonclient because those claims
stemmed from the lawyer's recitation of a Rule 11
agreement in open court-that is, he argued the claims related
to his exercise of the right to petition. See id. In
response, the nonclient argued the TCPA did not apply because
"an attorney speaking for a client in a courtroom is not
exercising any personal First Amendment rights at all."
Id. In analyzing whether the TCPA applied to the
nonclient's claims, the supreme court
"substitute[ed] the statutory definitions for the
defined terms" and concluded "the TCPA applies to a
legal action against a party that is based on, related to, or
in response to the party's making or submitting of a
statement or document in or ...