Court of Appeals of Texas, Third District, Austin
Thomas A. Dyke, Appellant
David Reed Hall, Individually and in his capacity as Trustee of the David Reed Hall Trust No. 1, Appellee
THE 345TH DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-18-000830, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING
Justices Goodwin, Baker, and Triana
J. Baker, Justice.
an appeal from the denial of relief under the Texas Citizens
Participation Act (the "TCPA"). See Tex.
Civ. Prac. & Rem. Code §§
27.001-.011. David Reed Hall sought declaratory relief
regarding an agreement that he entered into with Thomas A.
Dyke. In response, Dyke filed various counterclaims against
Hall. Hall then filed an amended petition adding new requests
for declaratory relief and a claim for breach of fiduciary
duty. Dyke filed a motion to dismiss Hall's new claims
under the TCPA. The district court denied the motion to
dismiss. Dyke appeals the district court's ruling.
See id. § 51.014(a)(12). We will affirm the
district court's order denying Dyke's motion to
and Hall have had a business relationship for years. When
Hall's mother died, oil and gas interests that she owned
were transferred into the David Reed Hall Trust No. 1 (the
"Trust") per the terms of her will, and Hall was
named as the sole beneficiary and trustee. After Hall became
the beneficiary of the Trust, Dyke drafted an agreement
entitled Management Agreement (the "Agreement")
pertaining to the property in the Trust, and Hall signed the
Agreement. Under the terms of the Agreement, Dyke would
"manage all of the Trust's and Hall's Mineral
Interests and Property" for fifteen years "unless
[the Agreement was] extended or terminated by written
agreement executed by all of the Parties," and Dyke
would be paid eight percent "of all income and payments
of any kind received by the Trust and/or Hall for the leasing
of Mineral Interests and all other Property including, but
not limited to, lease bonus payments, royalties, proceeds of
sale, [and] dispute resolutions." Further, the Agreement
stated that Dyke's duties included "the screening
and selection of appropriate legal counsel whenever needed as
well as the management of said legal counsel," that some
of Hall's family members were contesting royalty payments
being made to Hall, and that Dyke had "arranged for
appropriate legal counsel for Hall and the Trust to use in
potential litigation with the Family Members."
years after the parties entered into the Agreement, Hall
settled a property dispute with members of his family. Under
the terms of the settlement agreement, the Trust was given,
among other things, a payment of $1, 175, 000. After the
settlement agreement was reached, Hall offered to pay Dyke
$51, 832.53. When deciding what amount was owed to Dyke under
the Agreement, Hall reasoned that Dyke was entitled to eight
percent of the net settlement amount. Dyke disagreed and
contended that he was entitled to eight percent of the gross
settlement amount. While the parties were disagreeing over
the amount owed, Hall communicated to Dyke that he wanted to
terminate the Agreement, but Dyke indicated that he wanted
the Agreement to continue.
this exchange, Hall filed a declaratory-judgment action
seeking clarification as to what payments Dyke is entitled
under the Agreement, what types of payments "require a
remittance of eight percent," and whether the eight
percent is "calculated against the gross amount received
by the Trust or the net amount." Further, Hall sought
declarations that Dyke is not entitled to any payment under
the Agreement unless Dyke is actively managing and leasing
the property, that the Agreement is "terminable by any
party," that Hall is entitled to "a return" of
royalty payments made to Dyke because Dyke "did nothing
to manage" the property interests, and that Hall is not
in breach of the Agreement.
response, Dyke brought several counterclaims against Hall for
breach of contract and fraud. In addition, Dyke filed a
motion for summary judgment arguing that the Agreement
unambiguously specifies that he is entitled to any and all
income received by the Trust or Hall. Dyke attached to his
motion a sworn "declaration" setting out his
recollection of the events and negotiations that led up to
the execution of the Agreement; discussing actions that he
took for the Trust, including his involvement in legal
matters; specifying that he met with Hall and several
attorneys regarding the Trust and pending legal matters; and
stating that he provided advice to Hall. More specifically,
Dyke stated as follows:
4. . . . [Hall] began discussions with me about a contract to
have me manage [Hall's] mineral interests as well as
legal issues that Hall and the trust were facing.
. . .
5.[The scope of my role under the Agreement included]
screening, selecting and managing legal counsel employed to
protect Hall's ownership and inheritance interests, . . .
reviewing all documents produced by all sides, be[ing]
notified and/or copied on all information exchanges, be[ing]
consulted on all tactical considerations, contribut[ing] to
all decisions and consult[ing] with Hall on demand.
8.. . . I helped manage Hall's litigation and other
legal issues and managed the mineral interests for the trust.
In return, Hall paid me 8% of all income and payments made to
the trust for several years.
9. In addition, I remained heavily involved in the
development of the legal matters, including exchanging drafts
of agreements, researching legal causes of action and
possible recovery as well as mineral interests, and
counseling on the interpretation of documents and agreements.
. . . I also frequently met with Hall and exchanged emails
and text messages to discuss the legal issues.
10. During this period, Hall and I continued to meet two,
three, and often many more time[s] per month, sometimes with
attorneys, to discuss Hall's legal issues and/or the
trusts mineral interests. Throughout this time, I continued
to counsel and advise Hall related to these actions and
perform other actions in accordance with the Contract.
incorporated similar statements into his motion for summary
judgment and original answer.
Dyke filed his motion for summary judgment, Hall filed an
amended petition in which he described his relationship with
Dyke as an attorney-client relationship that existed before
they entered into the Agreement and further characterized the
Agreement as "a fee agreement between an attorney, Dyke,
and his client," Hall. As support for this
characterization, Hall referred to portions of Dyke's
declaration discussing his involvement in and management of
legal issues pertaining to the Trust. Further, Hall argued
that the amount of money paid to Dyke for the work that Dyke
performed "is unconscionable" and "is not fair
and reasonable to the client." Additionally, Hall
contended that he has the right to terminate the Agreement at
any time because the Agreement is "an attorney-client
agreement." Moreover, Hall requested declarations
similar to the ones listed in his first petition and sought
the following additional declarations: c.The termination
provision of the Management Agreement is
d. The Management Agreement is an agreement between an
attorney, Dyke, and his client and the client may terminate
the agreement at any time with or without cause;
e. The Management Agreement is a contingent fee agreement
between an attorney and his client;
f. The Management Agreement is a contingent fee agreement
that fails to meet the requirements for a contingent fee
. . .
j. The Management Agreement is a prohibited transaction under
the Disciplinary Rules and is therefore voidable; [and]
k. Attorney Dyke should be disgorged of any fee deemed to be
unconscionable, or otherwise not fair and equitable to the
Hall added new claims for breach of fiduciary duty based on
Dyke's status as an attorney. In particular, Hall
asserted as follows:
50. Attorney Dyke breached his fiduciary duty by creating a
one-sided unconscionable contract, by creating a contract
with his client that purportedly could not be terminated, by
creating a contract that compensated him for no services, and
by failing to disclose that the contract was not fair and
equitable to Plaintiff.
51. Attorney Dyke also failed to advise his client that the
agreement between Plaintiff and attorney Dyke could be
terminated by Plaintiff at any time with or without cause.
52. Attorney Dyke failed to advise Plaintiff that the
interest being acquired by attorney Dyke was not fair and
reasonable and fully disclosed in a manner that could ...