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Ray v. Fikes

Court of Appeals of Texas, Second District, Fort Worth

December 5, 2019

Ryan Eugene Ray, Appellant
v.
Veronica Fikes, Appellee

          On Appeal from County Court at Law No. 2 Tarrant County, Texas Trial Court No. 2019-001057-2

          Before Gabriel, Birdwell, and Womack, JJ.

          MEMORANDUM OPINION

          Lee Gabriel Justice

         Appellant Ryan Eugene Ray asks us to apply the Texas Citizens Participation Act (the TCPA) to appellee Veronica Fikes's legal-malpractice suit against him. Because we conclude that the TCPA does not apply to Fikes's claims as pleaded, we decline Ray's invitation and affirm the trial court's order denying Ray's motion to dismiss under the TCPA.

         I. BACKGROUND

         On August 1, 2015, Fikes was injured in a car collision after Sutton Dean Fambro hit her from behind while she was stopped at a stop light. Approximately four months later, Fikes signed a contract with Ray, retaining him to represent her in a suit against Fambro. On August 3, 2017, Ray filed suit on Fikes's behalf, raising a negligence claim against Fambro.[1]

         On October 11, 2017, Ray received notice from the State Bar of Texas's Office of the Chief Disciplinary Counsel that Fikes had filed a grievance against him based on the fact that Ray had never filed suit before the two-year limitations period expired, that the grievance alleged professional misconduct, and that the grievance would be classified as a complaint. See Tex. Gov't Code Ann. § 81.073(a)(1); Tex. Rules Disciplinary P. R. 2.10(B), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. B. On February 28, 2018, Ray's counsel was notified that a Summary Disposition Panel had dismissed Fikes's grievance. See Tex. Rules Disciplinary P. R. 1.06(II), 2.13.

         On February 7, 2019, Fikes filed a legal-malpractice suit against Ray, raising claims for negligence, breach of fiduciary duty, fraud, breach of the retainer contract, and gross negligence.[2] Each claim was based on Ray's failures to file suit and to serve Fambro within the limitations period. Fikes also alleged a negligent-misrepresentation claim based on Ray's "advertising and stating that he and his firm [were] competent and experienced in handling personal injury matters." Ray answered by filing a general denial in which he specifically pleaded the affirmative defense of collateral estoppel.

         Ray also filed a motion to dismiss Fikes's legal-malpractice "lawsuit in all respects" under the TCPA, arguing that the TCPA applied because Fikes's suit related to the exercise of Ray's right to petition. Ray asserted that Fikes failed to establish a prima facie case for each element of her claims relating to Ray's alleged legal malpractice and that even if she had, Ray had established the affirmative defense of collateral estoppel based on the full and fair litigation of Fikes's claims during the grievance process. Fikes responded and argued that the TCPA did not apply to her legal-malpractice claims because they were based on Ray's failure to file, which is not a protected communication under the TCPA. She also raised the commercial-speech exemption to the TCPA's application. Ray objected to an affidavit Fikes submitted with her response in which the affiant-J. Patrick Gallagher, Fikes's legal-malpractice attorney-opined that Ray breached his duty to Fikes by his failure to timely file the personal-injury suit and explained the attorney's fees incurred by his representation of Fikes in the legal-malpractice case.

         On May 24, 2019, the trial court held a hearing on Ray's motion and objections. The trial court sustained some of Ray's objections to Gallagher's affidavit but denied the motion to dismiss in a separate order on June 12, 2019. Ray appeals and argues in three issues that the trial court erred (1) by denying his motion because Fikes failed to establish a prima facie case, (2) by failing to sustain all of his objections to Gallagher's affidavit, and (3) by failing to grant the motion based on his affirmative defense of collateral estoppel. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(12). Our interlocutory, appellate jurisdiction allows review of only the trial court's order denying Ray's TCPA motion to dismiss, not the trial court's separate order sustaining and overruling Ray's evidentiary objections to Gallagher's affidavit. See Morrison v. Profanchik, 578 S.W.3d 676, 681 n.2 (Tex. App.-Austin 2019, pet. dism'd by agr.).

          II. TCPA CONSIDERATIONS

         The TCPA has two purposes: protecting specifically defined constitutional rights to the full extent of the law while, "at the same time," protecting the right to file meritorious lawsuits. Tex. Civ. Prac. & Rem. Code Ann. § 27.002; see In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding); Smith v. Crestview NuV, LLC, 565 S.W.3d 793, 797 (Tex. App.-Fort Worth 2018, pet. denied). Even though we must construe the TCPA liberally, our construction must "effectuate" these purposes. Tex. Civ. Prac. & Rem. Code Ann. § 27.011(b).

         A defendant seeking the protection of the TCPA must initially produce a preponderance of the evidence that the legal action is based on, relates to, or is in response to the exercise of the rights to free speech, to petition, or of association. See Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Sess. Law Serv. 960, 962 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)).[3]If the movant does so, the burden shifts to the nonmovant to produce clear and specific evidence of a prima facie case for each element of each asserted claim. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). If the nonmovant meets her burden, the movant may still be entitled to dismissal if he shows by a preponderance of the evidence each element of a valid defense to the claims. See Act of May 22, 2013, 83rd Leg., R.S., ch. 1042, § 2, 2013 Tex. Sess. Law Serv. 2501, 2501 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d)).

         We review the trial court's interpretation of this statutory framework de novo, focusing on the enacted language of the applicable provisions. See S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018); Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). In our review, the pleadings, especially the plaintiff's allegations, are the best evidence to determine the nature of a legal action and the applicability of the TCPA. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017); see also Act of May 21, 2011, 82nd Leg., R.S., ...


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