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Robins v. Clinkenbeard

Court of Appeals of Texas, First District

January 16, 2020

RICH ROBINS, Appellant
v.
AUSTEN PERRY CLINKENBEARD AND JONATHON G. CLINKENBEARD A/K/A JON CLINKENBEARD, Appellees

          On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Case No. 1107951

          Panel consists of Justices Keyes, Goodman, and Countiss.

          MEMORANDUM OPINION

          Evelyn V. Keyes Justice

         Rich Robins appeals the denial of his motion, filed pursuant to the Texas Citizen's Participation Act (TCPA), [1] to dismiss Austen Perry Clinkenbeard and Jonathon G. Clinkenbeard's professional malpractice case against him.[2] In three issues, Robins argues that the trial court erred in denying his motion because (1) the Clinkenbeards' claims are based on, related to, or in response to TCPA-protected communications; (2) the Clinkenbeards failed to come forward with sufficient evidence to establish a prima facie case to support their claims; and (3) Robins established defenses to the Clinkenbeards' claims.

         We affirm.

         Background

         We recently affirmed the order of the 61st Harris County District Court denying Robins's TCPA motion to dismiss the Commission for Lawyer Discipline's professional misconduct case against him. See Robins v. Commission for Lawyer Discipline, No. 01-19-00011-CV, 2020 WL 101921 (Tex. App.- Houston [1st Dist.] Jan. 9, 2020, no pet. h.). Because the factual allegations in that case are the same as in this case, we will provide an abridged background here.

         The Crisp Lawsuit

         In July 2012, Cindy Crisp, who suffered from multiple sclerosis, sold certain items of personal property to estate liquidator John Sauls for a total price of $6, 893.21. Sauls sent Crisp payment in the form of two checks, both of which bounced.

         By handwritten letter dated October 3, 2013, Crisp asked attorney Robins to help her recover "the value of checks plus interest and attorney/court costs" from Sauls, and she stated that she "understands the attorney fees will not be of normal value and that Rich Robins is doing this to help her to honor the checks that were written NSF and fees and costs."

         Over the course of the following year and a half, Crisp's health further declined and Robins fell out of contact with her. Nevertheless, Robins filed suit on behalf of Crisp to collect payment from Sauls for the bounced checks, "thinking that [Crisp was] hopefully still alive somewhere, albeit in a potentially very compromised state of health." The petition, filed on November 17, 2016, stated that Crisp "would diplomatically settle this case through her legal counsel for $14, 338 if no further wrangling is necessary to finally conclude this unfortunate matter."

         In early 2017, Sauls's attorney, Kurt Noell, offered to settle the case for the amount of the debt. Robins rejected the offer, sticking to the demand stated in the petition. Noell then made a second offer, for the amount of the debt plus $2, 500 for loss of use and attorney's fees, but Robins rejected that offer also.

         In March 2017, Crisp's two sons, Austen and Jon Clinkenbeard, informed Robins that their mother had died in 2015. Around the same time, Noell served discovery on Robins. According to Noell, he had a conversation with Robins during which Robins discussed potential dates for Crisp's deposition-all the while knowing that Crisp had been deceased for over two years but failing to disclose this information to Noell. When Robins failed to respond to Noell's written discovery requests, Noell filed a motion for sanctions and set it for hearing.

         Trial of the case was set for April 3, 2017, but Robins failed to appear, and the trial court dismissed the case for want of prosecution. Robins filed "Plaintiff Cindy Crisp's Verified Motion to Reinstate," claiming he was unaware of the setting, and the trial court granted the motion, which, notably, did not mention that Crisp had died over two years earlier.

         Two days before the June 29, 2017 sanctions hearing was to occur, Robins emailed the court administrator to inform her that Crisp "is reportedly no longer with us . . . . whether opposing counsel knows it or not" and that "her son wants to fill in for her." The email did not indicate that Crisp had been dead for years.

         It appears from the record that, in response to the suggestion of Crisp's death, the trial court cancelled the June 29 hearing and instead held a telephonic hearing, during which Robins "represented that Cindy Crisp was probably dead." The trial court directed Robins to produce proof of Crisp's death.

         Several things happened as a result of the telephonic hearing. On July 4, 2017, Robins obtained from Austen Clinkenbeard a signed retainer agreement, purporting to authorize Robins to represent Crisp through Austen and providing that Robins's fees would be paid by Sauls. Noell demanded that Robins produce, in addition to Crisp's death certificate, any evidence showing whether her estate had been probated.

         Robins subsequently obtained Crisp's death certificate and emailed it to Noell on July 28, but he did not provide evidence regarding probate. As a result, Noell filed a motion to show authority pursuant to Texas Rule of Civil Procedure 12. See Tex. R. Civ. P. 12 (stating that party may file motion to require challenged attorney to appear before trial court to show authority to act on behalf of client). The trial court granted the motion and ordered Robins to appear and show that Crisp had authorized him to file the suit in her name and that "a probate proceeding of some type has been filed so that any interest in her estate could be pursued by an heir." Robins responded, stating that "a probate court has never been involved with Cindy Crisp's passing or with her estate, and one need not be."

         On September 18, the trial court held a hearing, at which Robins stated that he had not filed a probate proceeding because he had no experience in probate court and he was trying to save his clients' money. The trial court expressed concern that Robins had filed the lawsuit "with a client that was deceased" and without the authority of her heirs. When the trial court commented that it was "strange" that Robins had only recently informed Noell that Crisp had died two years earlier, Robins stated, "Well, we were trying to keep this within the settlement range because he was almost there." The trial court stated, "It sounds like you were being dishonest with the opposing party," to which Robins responded, "Dishonest as opposed to saying, 'Hey, I think my client is dead.'" Before calling an end to the hearing, the trial court stated to Robins, "[y]ou were dishonest." The trial court then ordered Robins to submit additional briefing regarding his authority to represent Crisp through Austen Clinkenbeard and stated that it would strike Crisp's pleadings if he failed to do so within ten days.

         Robins drafted affidavits for both Clinkenbeard brothers stating that probate was not necessary. But the Clinkenbeards refused to sign because the affidavits stated that Crisp had no debt. Robins then filed the supplemental briefing ordered by the trial court. In it, he stated that the case could proceed with Austen Clinkenbeard as plaintiff and-even though the Clinkenbeard brothers had told him that they believed Crisp did have outstanding debt-that no probate proceedings were necessary for Crisp's estate. Robins also amended Crisp's petition to add the allegation that no probate proceedings were necessary for Crisp's estate.

         On October 23, 2017, the trial court signed an order striking Crisp's pleadings and awarding Sauls $250 as sanctions, and on February 12, 2018, it dismissed the case entirely.

         The Aftermath

         Austen filed a grievance against Robins. The State Bar classified the grievance as a "Complaint," and the Commission for Lawyer Discipline filed a petition in district court asking that Robins be reprimanded, suspended, or disbarred.

         On January 22, 2018, the Clinkenbeards filed suit against Robins for legal malpractice in Smith County, Texas. Robins was served on or about May 1, 2018.

         On March 26, 2018, Robins filed suit against the Clinkenbeards in Harris County, Texas, alleging violations of the Texas Uniform Fraudulent Transfer Act. See Tex. Bus. & Com. Code Ann. §§ 24.001-.013. Specifically, he alleged that Crisp's transfer of her lake house to her sons caused her to become insolvent, "which was done to the detriment of the legal endeavor that [Crisp] initiated with Plaintiff Robins in which she ultimately ceased participation." He further alleged that Crisp "arranged the asset transfer" in a way that made the Clinkenbeards "want to abandon [her] cause of action" that she "very much wanted to have pursued, as did the [Clinkenbeards] until they surprisingly changed their minds, post-transfer."

         The Clinkenbeards dismissed the Smith County case, and on September 21, 2018, asserted "the exact same" legal malpractice claim as a counterclaim in Robins's Harris County suit against them. They alleged that Robins engaged in malpractice by:

• providing unreasonable advice, including by stating that he "would not be surprised if the jury awards . . . in excess of $63K" on a $6, 893.21 check insufficiency claim;
• putting his own interests ahead of those of his clients, including by creating a situation in which the Clinkenbeards' action "was not in [Robins's] best interest to try to resolve unless and until he was offered attorneys' fees" by Sauls, the defendant in that case;
• asking them to sign a retainer agreement so he could respond to discovery to avoid having to attend a sanctions hearing because he did not "want to have to drive to Tyler" from Houston;
• failing to keep them fully informed "about settlement discussions and the case proceedings";
• attempting to collect and threatening to sue them for his attorney's fees, contrary to the retainer agreement;
• failing to reasonably pursue the case and causing sanctions to be assessed;
• causing the case to be dismissed; and
• refusing to turn over the ...

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