New Tech Global Ventures, LLC v. Kerry E. Notestine, Conor H. Kelly, Brian Hentosz, and Terrence Murphy ( 2023 )

Affirmed and Memorandum Opinion filed February 9, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00121-CV
NEW TECH GLOBAL VENTURES, LLC, Appellant
V.
KERRY E. NOTESTINE, CONOR H. KELLY, BRIAN HENTOSZ, AND
TERRENCE MURPHY, Appellees
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2020-31696
MEMORANDUM OPINION
Appellant New Tech Global Ventures, LLC (New Tech) appeals the trial
court’s order dismissing its claims against appellees, four Littler Mendelson
lawyers (the Littler Lawyers), for legal malpractice. The Littler Lawyers moved to
dismiss the case under the Texas Citizens Participation Act. New Tech complains
that the trial court erred in granting the motion, contending that (1) the TCPA’s
commercial-speech exemption prevents application of the TCPA to its claims, (2)
its claims against each of the four lawyers fall outside the scope of the TCPA, and
(3) New Tech established by clear and specific evidence a prima facie case for
each essential element of its legal malpractice claims. In connection with the latter
issue, New Tech also challenges the trial court’s order sustaining the Littler
Lawyers’ objections to statements and opinions of New Tech’s experts. New Tech
also addresses the movants’ statute of limitations affirmative defense. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
As this case involves legal malpractice and related claims based on alleged
negligent lawyering during a prior litigation, we begin by discussing the prior
litigation.
The Bercier Lawsuit
New Tech is a staffing company providing project management and
consulting services to independent oil and gas companies operating drilling rigs.
Dale Bercier, a drilling supervisor who worked for New Tech, sued New Tech in
federal district court in Houston under the Federal Labor Standards Act (“FLSA”)
in 2017, alleging that New Tech had failed to pay him proper wages for overtime
work. Bercier filed the lawsuit not only on his own behalf, but also purportedly on
behalf of a class of other similarly situated employees. (The Bercier Lawsuit).
New Tech and its general counsel, David O’Neil, had previously retained
Littler Mendelson to represent New Tech in other FLSA lawsuits. Appellee Kerry
Notestine, a partner in the Houston office of Littler, was the originating attorney
and main point of contact for New Tech in the FLSA lawsuits.
As it had done since 2014, New Tech retained Littler to represent it in the
Bercier lawsuit. Appellee Terrence Murphy, a partner in the Pittsburgh office with
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extensive experience handling FLSA actions, served as lead counsel for New Tech
in the lawsuit. Appellee Brian Hentosz, an associate in the Pittsburgh office,
assisted Murphy. Murphy, as lead counsel, supervised Hentosz’s work.1
Under the FLSA, a class member who wishes to participate in a class action
must affirmatively “opt into” the class. Early in an FLSA case, the attorneys for
both sides will often negotiate the terms of a class definition for a federal district
court to include in a conditional class certification order under which potential
class members may consent to participate in — or, in other words, “opt into” —
the class action.
Murphy and Hentosz negotiated with Bercier’s counsel at Kennedy Hodges
over the terms of an agreed joint stipulation on conditional class certification.
After Bercier’s lawyers proposed that the class include all of New Tech’s “current
and former consultants and/or supervisors,” Murphy and Hentosz countered,
seeking to limit the class to include just New Tech’s drilling supervisors.
Importantly, Bercier was a drilling supervisor and not a completion supervisor.2
Bercier’s counsel agreed to Hentosz’s proposed class definition, and the district
court signed a conditional class certification order that defined the class to include
all “drilling supervisors paid a day rate and classified as independent contractors
who performed services through Defendant at any time from the date of mailing to
the Present.”
1
Conor Kelley worked on the case from the Houston office. His principal involvement
was to attend hearings. Though New Tech asserts no unique allegations with respect to his
conduct, he is grouped with the other appellees for acts of alleged legal malpractice that New
Tech asserted collectively against all appellees.
2
In its opening brief New Tech explains drilling supervisors supervise the drilling stage
of an oil and gas operation — i.e., the initial stage in which the operator spuds a well and drills a
hole into the earth, and completions supervisors supervise the completions stage of an oil and gas
operation — i.e., the stage in which the operator pushes steel pipe into the hole and then cements
and perforates the casing for production.
3
After the order was signed, Bercier’s attorney asked Murphy and Hentosz to
produce documents identifying the names of all potential class members. Instead of
producing a list limited to New Tech’s drilling supervisors, Hentosz gave Kennedy
Hodges a list that he had received from David O’Neil’s paralegal at New Tech
before negotiating the class definition with Bercier’s counsel— a list that included
New Tech’s completions supervisors in addition to New Tech’s drilling
supervisors.
When confronted by O’Neil about sending the expanded list of class
members, including drilling supervisors, Hentosz told O’Neil that the strategy from
the beginning was for the class to include both drilling and completions
supervisors. The Littler Lawyers maintain that the disclosure was intentional.
Notestine sent an email to O’Neil summarizing Murphy’s reasons in greater detail.
Unsatisfied with the explanation, New Tech fired the Littler Lawyers and
hired another lawyer, Annette Idalski, to represent them in the Bercier lawsuit.
Idalski asked the district court to strike or sever the claims of the completions
supervisors who had opted to participate in Bercier’s FLSA collective action, and
filed a motion to compel each of the plaintiffs to pursue individual arbitrations of
their respective FLSA claims.
New Tech’s Malpractice Action
New Tech filed its state court action for legal malpractice action against
appellees on May 26, 2020. The principal if not exclusive factual basis for the
lawsuit is Hentosz’s disclosure to Bercier’s lawyers of the names of New Tech’s
completions supervisors.
The Littler Lawyers filed their TCPA Motion to Dismiss on July 1, 2020.
The Parties engaged in discovery, including multiple depositions, and New Tech
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filed a response to the TCPA motion, amended its pleadings and supplemented its
arguments and evidence in response to the TCPA several times. New Tech
attached several declarations of various witnesses to support its response to the
TCPA motion, including the declaration of Annette Idalski, who provided expert
testimony to support elements of its legal malpractice claim. The Littler Lawyers
objected to many statements in Idalski’s declaration, and after the trial court heard
the parties’ arguments on the objections, signed an order sustaining many of New
Tech’s objections.
After a hearing, the trial court granted the TCPA motion and dismissed New
Tech’s claim for legal malpractice on October 5, 2020. After New Tech nonsuited
its remaining claims against the Littler Lawyers and the trial court entered an order
granting attorneys’ fees, the trial court entered a final judgment on February 24,
2021.
II. ISSUES AND ANALYSIS
On appeal, New Tech raises four issues: whether the commercial speech
exception applies, whether its legal malpractice claims fall within the scope of the
TCPA, whether New Tech established by clear and specific evidence a prima facie
case for each of the essential elements of its legal malpractice claim, and whether
the Littler Lawyers established entitlement to judgment as a matter of law on their
statute of limitation defense. We only address the first three.3
1. Would the commercial-speech exemption operate to preclude application of
the TCPA with respect to New Tech’s malpractice claims?
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Appellees request that we not affirm on the basis of its statute of limitations defense;
their reasoning, in part, is based on an acknowledgement that “the trial court is unlikely to have
based its dismissal on the statute of limitations defense.” We agree with the parties; the case
lends itself to a straightforward application of the tolling rule applicable to malpractice cases,
such that the statute of limitations would not bar New Tech’s legal malpractice claims. See
Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 156 (Tex. 1991).
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New Tech challenges the trial court’s implicit rejection of its argument that
the commercial speech exemption operates to preclude the application of the
TCPA to its malpractice claims. The Supreme Court has interpreted the statute to
provide for the exemption when
(1) the defendant was primarily engaged in the business of selling or
leasing goods or services,
(2) the defendant made the statement or engaged in the conduct on
which the claim is based in the defendant's capacity as a seller or
lessor of those goods or services,
(3) the statement or conduct at issue arose out of a commercial
transaction involving the kind of goods or services the defendant
provides, and
(4) the intended audience of the statement or conduct were actual or
potential customers of the defendant for the kind of goods or services
the defendant provides.
Id. at 688; Tex. Civ. Prac. & Rem. Code Ann. § 27.010(a)(2); Round Table
Physicians Group, PLLC v. Kilgore, 607 S.W.3d 878, 884 (Tex. App.—Houston
[14th Dist.] 2020, pet. denied).
Presuming that the Littler Lawyers were primarily engaged in the business
of selling legal services and made the challenged statements or engaged in the
conduct on which the claim is based as a seller of legal services, we veer straight to
the latter requirements, which stand out as particularly inapplicable. With respect
to the third element, we have explained that “[t]he exemption is not established
unless the challenged statement was ‘about’ the speaker’s particular goods or
services, or the speaker’s business of selling them.” Toth v. Sears Home
Improvement Prods., Inc., 557 S.W.3d 142, 154 (Tex. App.—Houston [14th Dist.]
2018, no pet.). The disclosure here did not occur in the course of the Littler
Lawyers selling legal services. The disclosure was not about Littler’s legal
services; rather, the disclosure made was part of the act of providing legal services
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for New Tech. Winstead PC v. USA Lending Group, Inc., No. 12-20-00172-CV,
2021 WL 1047208, at *4 (Tex. App.—Tyler Mar. 18, 2021, pet. filed) (finding that
the filing of a motion for entry of default judgment in the context of legal
malpractice claim did not satisfy the third prong).
New Tech contends that with respect to the fourth–intended audience–
element of the exemption, the test permits for multiple intended audiences and
allows consideration of the intended audience of conduct, not merely those of
statements and communications. Be that as it may, it does not change our analysis.
The conduct or communication at issue in the case is no mixed bag of various and
diverse occurrences. It is best summarized in one sentence of New Tech’s petition:
[The Littler Lawyers] mistakenly forwarded hundreds of names and
contact information to the underlying Plaintiffs’ counsel which should
never been included in the underlying lawsuit.
New Tech was not the intended audience of this disclosure; the disclosure was
addressed to Bercier’s attorneys. Bercier’s attorneys were neither actual or
potential customers of Littler’s legal services.
In arguing in favor of the application of the commercial speech exemption,
New Tech shifts the focus from the Littler Lawyers’ disclosure of drilling
supervisors’ names to Bercier’s counsel to communications Hentosz and Murphy
had with New Tech’s general counsel before and after the disclosure. In the
context of legal representation, there are viable examples where the commercial
exemption serves a purpose. See, e.g., Diogu Law Firm PLLC v. Experience
Infusion Centers LLC 01-19-00494-CV, 2020 WL 1681182, at *2 (Tex. App.—
Houston [1st Dist.] Apr. 7, 2020, no pet.). New Tech makes no claim for unpaid
fees, nor are the communications alleged to have been made to an actual or
potential customer of Appellees in furtherance of a commercial transaction or
business deal.
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We conclude the trial court’s implicit rejection of the commercial speech
exception was proper. We overrule New Tech’s first issue.
2. Do New Tech’s claims fall within the scope of the TCPA? (Did the Littler
Lawyers establish that New Tech’s legal action is based on or in response to
their exercise of the right to free speech, the right to petition, or the right of
association?)
New Tech challenges the trial court’s implicit finding that its legal
malpractice claims are based on or in response to the Littler Lawyers’ exercise of
the right to free speech, the right to petition, or the right of association.
To invoke application of the TCPA, each of the Littler Lawyers, as the
movants, had the initial burden of showing that New Tech’s claims against them
were based on or in response to their respective exercise of the right of free speech,
the right to petition, or the right of association. Tex. Civ. Prac. & Rem. Code Ann.
§ 27.003(a) (Vernon Supp. 2021).
Only the “exercise of the right to petition” is implicated in this case, and its
statutory definition includes “a communication in or pertaining to ... a judicial
proceeding.” Id. § 27.001(4)(A). A “communication” is broadly defined as “the
making or submitting of a statement or document in any form or medium.” Id. §
27.001(1); Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018); Statements made
by a lawyer on behalf of his client are covered by the TCPA. Youngkin, 546
S.W.3d at 681. Barring any dispute of the occurrence, an attorney’s
communications with counsel of record made in the course of representing a party
in an actual pending lawsuit about the lawsuit is a communication pertaining to a
judicial proceeding. See Jetall Companies, Inc. v. Hoover Slovacek LLP, No. 14-
20-00691-CV, 2022 WL 906218, at *3 (Tex. App.—Houston [14th Dist.] Mar. 29,
2022, pet. denied). And New Tech’s essential allegation that “Defendants”
collectively acted in a professionally negligent manner by disclosing an overly
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expansive list of New Tech employee names to Bercier’s lawyers in the course of
the FLSA lawsuit articulates precisely such claim based on this type of
communication.
New Tech insists that we must conduct a scope-analysis as to each appellee
separately and asks that delineate separate claims per appellee based on facts
provided in discovery. New Tech is correct in pointing out that each of the Littler
Lawyers has the burden of showing that New Tech’s claims against each of them
respectively fall within the scope of the TCPA, but our analysis remains
uncomplicated by virtue of New Tech’s pleadings. There is no art to interpreting
the gravamen of New Tech’s allegations, which set out generally a complaint
based on all “Defendants” disclosure to opposing counsel during discovery.
New Tech’s live pleading states: “Defendants’ negligence includes, but is
not limited to, the following: . . . (d) producing documentation and/or information
that was harmful to Plaintiff and which was not necessary to perform Defendants’
duties in the underlying case; and (e) providing a list that included ‘completion’
supervisors to the underling Plaintiffs’ attorney in the FLSA matter.” Diving into
the evidence in the record does not change our analysis. New Tech’s expert
affidavit includes blanket assertions against the Littler Lawyers, stating:
“Defendants not only sent the ‘drilling supervisor’ names and contact information,
but negligently included and disclosed hundreds of ‘completions supervisors’
names and contact information to opposing counsel for circulation of the notice.”
In response to this contention, New Tech suggests that by context (where
elsewhere Hentosz and Murphy alone) were alleged responsible for the disclosure,
the use of the word “Defendants” implicitly refers to that duo. But this rationale
does not account for its expert’s affidavit statement: “Each Defendant breached
their duty of care to only produce contact information for drilling supervisors and
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not well completions supervisors unnecessarily expanded the potential class size as
evidenced by the opt-in consent forms in the litigation.” (emphasis added).
The Littler Lawyers carried their initial burden of demonstrating that New
Tech’s malpractice claims against each of them were based on the exercise of their
right to petition and thus fell within the scope of the TCPA. See Jetall Companies,
Inc., 2022 WL 906218, at *3.
We therefore overrule New Tech’s second issue.
3. Did New Tech establish by clear and specific evidence a prima facie case
for each essential element of its legal malpractice claim against each of the
Littler Lawyers?
New Tech challenges the trial court’s implicit finding that New Tech failed
to show by clear and specific evidence a prima facie case for each essential
element of its legal malpractice claim against each of the Littler Lawyers.
“The court may not dismiss a legal action under [the TCPA] if the party
bringing the legal action establishes by clear and specific evidence a prima facie
case for each essential element of the claim in question.” Tex. Civ. Prac. & Rem.
Code Ann. § 27.005(c). A prima facie case refers to evidence “sufficient as a
matter of law to establish a given fact if it is not rebutted or contradicted.” In re
Lipsky, 460 S.W.3d 579, 590 (Tex. 2015)). This “requires only the minimum
quantum of evidence necessary to support a rational inference that the allegation of
fact is true.” Id. The non-movant “is charged with providing enough detail to show
the factual basis for its claim and to base opinions on demonstrable facts.”
Quintanilla v. West, No. 04-16-00533-CV, 2020 WL 214757, at *3-4 (Tex. App.—
San Antonio Jan. 15, 2020, no pet.). “Clear and specific” requires evidence that is
“unambiguous, sure, or free from doubt” and is “explicit or relating to a particular
named thing.” Lipsky, 460 S.W.3d at 590-91. The evidence should establish the
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facts of when, where, and what occurred, the nature of the conduct, and any
damages. Id. Pleadings are considered evidence for purposes of satisfying the
TCPA burden. CPRC § 27.006(a); Langley v. Insgroup, Inc., No. 14-19-00127-
CV, 2020 WL 1679625, at *4 (Tex. App.—Houston [14th Dist.] Apr. 7, 2020, no
pet.). But “[b]are, baseless opinions,” “general averments,” and “conclusory”
statements do not satisfy this burden. Lipsky, 460 S.W.3d at 592-93.4
To prove a legal-malpractice claim, the client must establish that: (1) the
lawyer owed a duty of care to the client; (2) the lawyer breached that duty; and (3)
the lawyer's breach proximately caused damage to the client. Stanfield v. Neubaum,
494 S.W.3d 90, 96 (Tex. 2016). A lawyer can be negligent and yet cause no harm.
And, if the breach of a duty of care does not cause harm, no valid claim for legal-
malpractice exists. See, e.g., Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113,
119 (Tex. 2004) (noting that “an abundance of evidence as to [breach] cannot
substitute for a deficiency of evidence as to [causation]”).
Duty
Though contested, the first two elements are uncontroversial. The pleadings
and undisputed facts plainly establish that Notestine, Kelly, Murphy, and Hentosz
were New Tech’s lawyers and that each had an attorney-client relationship with
New Tech and owed New Tech a duty of care in the course of representing it in the
Bercier lawsuit. We can also presume for the sake of argument that a prudent
4
New Tech asks us to consider the record in light of various statements and opinions offered in
witness affidavits that the trial court excluded on the Littler Lawyers’ objection. Walker v.
Schion, 420 S.W.3d 454, 457 (Tex. App.—Houston [14th Dist.] 2014, no pet.)(noting in the
context of the appellate court’s de novo-summary judgment it will not consider evidence that
was excluded by the trial court unless that evidentiary ruling is timely and successfully
challenged on appeal). It properly challenged and preserved its issue. For efficiency purposes,
we first presume error and consider all statements and opinions in the affidavit as not excluded
unless otherwise addressed herein.
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attorney has a duty to limit client financial loss and expenses.
Breach of the Standard of Care
As to the second element, we presume for the sake of argument that each of
the Littler Lawyers breached the duty of professional care owed to New Tech by
producing documentation and/or information that was allegedly harmful to New
Tech that they were not obligated to provide, or for (as specifically alleged)
providing a list that included completion supervisors to the underlying Plaintiff’s
attorney in the FLSA matter.
Causation
The causation element of a legal malpractice claim has two components:
cause-in-fact and foreseeability. The cause-in-fact component is essentially “but
for” causation; it means that the defendants’ act or omission must have been a
substantial factor in bringing about an injury that, but for the defendants’ act or
omission, would not have occurred. Rogers v. Zanetti, 518 S.W.3d 394, 403 (Tex.
2017). The cause-in-fact component of causation requires “a comparison of
scenarios: the actual result and the hypothetical result advanced by the plaintiff.”
Starwood Mgmt., 530 S.W.3d at 681. Where the plaintiff alleges that the
defendants’ malpractice caused an injury other than the loss of a lawsuit, the
causation standard compares “the difference between the result obtained for the
client and the result that would have been obtained with competent counsel.”
Elizondo v. Krist, 415 S.W.3d 259, 263 (Tex. 2013); see also Starwood Mgmt., 530
S.W.3d at 678-79 (describing the cause-in-fact component as the “suit-within-a-
suit inquiry”— where the actual result with the alleged misconduct or omission is
compared to a hypothetical result the plaintiff claims would have occurred absent
the misconduct or omission). Evidence of causation must show that the
hypothetical result would, more likely than not, have been different from the actual
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result. Id. The foreseeability component means that the defendants reasonably
should have anticipated the dangers that could result from their negligent conduct.
Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016).
Thus, in considering whether New Tech presented clear and specific
evidence to provide the trial court with a basis to conclude that providing a list that
included completion supervisors (rather than only drilling supervisors) caused New
Tech to incur litigation costs (totaling approximately $400,000) associated with
defending FLSA claims against completion supervisors that it would not otherwise
incur. We conclude New Tech failed to do this.
In reviewing the record, we consider New Tech’s pleadings, the evidence
supplied in response to the TCPA motion, including the declarations of Annette
Idalski, David O’Neal, and Lisa Goins. The allegations and evidence available to
evaluate New Tech’s prima facie case for causation consisted of the following:
• The allegation and witness statements that the Littler Lawyers
included completions supervisors in a class list of over 1400 people
for conditional certification.
• The allegation that Hentosz sent to Bercier’s attorneys a list that
Goins had sent him which contained names of both drilling and
completion supervisors.
• A redacted copy of the list that Goins had sent Hentosz containing the
names of completion supervisors, including those who opted-in, and
who filed arbitration demands.
• Pleadings and papers from the underlying proceeding, including
o Order on Joint Stipulation for Conditional Certification and
Notice, addressed to Drilling Supervisors defined as “All
13
drilling supervisors paid a day rate and classified as
independent contractors who performed services through
Defendant at any time from three years from the date of mailing
to the Present.”
o Opt-in Consent forms. Evidence that twenty-nine (29) well
completions supervisors opted into the litigation, permitting the
Bercier lawyers to represent them in the case.
o Three arbitration demands filed by completions consultants:
Chad Robinson, Kendall Parker, and Robert Gibbs.
o Motion to Strike or Sever completion supervisors filed by New
Tech’s new counsel. Neither party reports if the court ever
ruled on the motion, and if it did, the court’s disposition.
• Letters from Hentosz to New Tech’s general counsel explaining that
Plaintiff’s counsel threatened a second FSLA action for completion
supervisors without producing the names, and discussing ongoing
FSLA action in the Southern District of Texas.
The only evidence that appears to address the crucial “case-within-a-case”
causation testimony is found in Idalski’s expert affidavit which provides the
hypothetical alternative result that had there been no disclosure then New Tech’s
completion supervisors would not have received notice of the lawsuit and become
involved in the Bercier lawsuit. (“Had these individuals not received notice due to
the actions of each Defendant, there is no evidence that they would have been on
notice and would have filed arbitration demands against New Tech.”). The result
in the hypothetical “case-within-a-case” is zero liability to completion supervisors
in the Bercier lawsuit.
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Although New Tech points to characteristics of the “completion supervisor”
that make the job distinct from a “drilling supervisor”, New Tech points to no
material differences that implicated the relative merits of a “completion
supervisor’s FLSA overtime claim versus a drilling supervisor’s FLSA claim
against New Tech, or that any of the completion supervisors’ claims were
meritless. Moreover, New Tech has not alleged or provided evidence showing that
the result of the negligence— incurring litigation costs associated with 29 well
completions supervisors opting into the class— cease to exist outside the Bercier
lawsuit. See Sheetz v. Slaughter, 503 S.W.3d 495, 505 (Tex. App.—Dallas 2016,
no pet.)(finding that in light of facts demonstrating a legal basis for the claim being
defended there was no evidence damages resulting from any alleged legal
malpractice).
Nothing in the record demonstrates that by negligently providing notice to
completions supervisors that the Littler Lawyers generated an FLSA claim for
completion supervisors that any of the completion supervisors could not otherwise
pursue individually or collectively, or that the completion supervisors’ claims were
inherently frivolous FLSA claims such that the only costs associated with
defending such claims were the litigation cost in the Bercier suit. New Tech has
not alleged or shown how the costs it incurred in defending the claims exceeded
what it would cost had the FLSA claims been filed separately in any other context.
And neither party seems to acknowledge by falling short in this regard, that New
Tech’s lawsuit seeks a type of windfall recovery, for cost-free representation in
defense of FLSA claims brought by completion supervisors.
New Tech alleged that it had been involved defending FLSA claims against
its employees well before Bercier filed his lawsuit. This would be a positive
indicator that the company could incur litigation costs for employee claims not
15
similarly situated to Bercier. Yet, New Tech and its legal malpractice causation
expert makes various assumptions to avoid consideration of any alternative
hypothetical FLSA claims by completion supervisors. Specifically, New Tech and
its expert assumes:
o that the names of New Tech’s completions supervisors would not
have been discovered outside of the Littler Lawyer’s negligent
disclosure. This is contrary to the fact that Bercier’s attorneys
obtained hundreds of names of drilling supervisors after filing a claim
for one drilling supervisor. New Tech does not address the likelihood
that Bercier’s attorney or another FLSA plaintiffs’ attorney could file
a similar lawsuit for a New Tech completions supervisor and obtain
the same discovery.
o that Mr. Bercier’s lawyer was bluffing when it told the Littler
Lawyers he would file another lawsuit like Bercier’s for a
representative class of completion supervisors.
o the completion supervisors either could not or would not ever raise an
FLSA claim that would require it to incur litigation costs.
The trial court did not abuse its discretion in finding such opinions are
conclusory, speculative and not evidence. See e.g., Rogers v. Zanetti, 518 S.W.3d
394, 408 (Tex. 2017). New Tech has not shown that Bercier’s counsel (and the
entire the FLSA Plaintiffs’ bar) had no other means of obtaining the names of the
completions supervisors beyond the Littler Lawyers’ disclosure. New Tech has
not shown that the names of one or more completions supervisors would be
undiscoverable in another action brought by a class representative who held such
title.
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In summary, the causation alleged of the litigation is flawed, as New Tech is
seeking recovery of litigation costs of claims based solely on the manner in which
claimants were notified, without reference to the viability of the claim. The
substance of New Tech’s argument is that they incurred damages defending claims
in a particular lawsuit. Even if New Tech sufficiently alleged that it would not
have incurred hypothetical damages in the Bercier lawsuit, it provided no
allegation as to why New Tech would never incur litigation costs for an FLSA
claim against those same completion supervisors. See Wakefield v. Underwood,
No. 14-19-01004-CV, 2021 WL 3087514, at *3 (Tex. App.—Houston [14th Dist.]
July 22, 2021, no pet.)(must provide evidence a fact finder must be able to
reasonably conclude that the result of the underlying lawsuit or a settlement in that
lawsuit would have been more favorable to Wakefield compared to what ultimately
occurred).
Upon this record, we overrule appellant’s third issue.
III. CONCLUSION
Because New Tech’s malpractice claims were not exempt by the commercial
speech exception, fell within the scope of the TCPA, and yet New Tech failed to
demonstrate a prima facie element of causation or damages, we affirm.
/s/ Randy Wilson
Justice
Panel consists of Justices Wise, Hassan, and Wilson.
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