Appeal from the County Civil Court at Law No. 3 Harris
County, Texas Trial Court Case No. 1107951
consists of Justices Keyes, Goodman, and Countiss.
V. Keyes Justice
Robins appeals the denial of his motion, filed pursuant to
the Texas Citizen's Participation Act (TCPA),
dismiss Austen Perry Clinkenbeard and Jonathon G.
Clinkenbeard's professional malpractice case against
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.
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.
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.
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
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
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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."
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
• 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
• 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
• 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 ...