Court of Appeals of Texas, Second District, Fort Worth
Appeal from County Court at Law No. 2 Tarrant County, Texas
Trial Court No. 2019-001057-2
Gabriel, Birdwell, and Womack, JJ.
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.
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
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.
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. 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.
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
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
II. TCPA CONSIDERATIONS
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. §
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)).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)).
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., ...