Brian Cweren and the Cweren Law Firm, PLLC v. Eureka Multifamily Group, L.P., Rene Campos, Jimmy Arnold and Chris Robertson ( 2023 )

Opinion issued April 18, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00470-CV
———————————
BRIAN P. CWEREN AND THE CWEREN LAW FIRM PLLC, Appellants
V.
EUREKA MULTIFAMILY GROUP, L.P., RENE CAMPOS, JIMMY
ARNOLD, AND CHRIS ROBERTSON, Appellees
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Case No. 2021-18448
MEMORANDUM OPINION
In this interlocutory appeal,1 appellants, Brian P. Cweren and the Cweren Law
Firm PLLC (the “Cweren Law Firm”) (collectively, “appellants”), challenge the trial
1
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.008, 51.014(a)(12).
court’s denial of their motion to dismiss2 the claims of appellees, Eureka Multifamily
Group, L.P. (“Eureka”), Rene Campos, Jimmy Arnold, and Chris Robertson
(collectively, “appellees”), pursuant to the Texas Citizens Participation Act
(“TCPA”).3 In three issues, appellants contend that the trial court did not deny their
motion to dismiss,4 and if the trial court did actually deny their motion to dismiss, it
erred in doing so.
We affirm.
Background5
In their original petition, appellees alleged that Cweren was the founding and
managing member of the Cweren Law Firm and appellants “h[eld] themselves out
as experts in the apartment industry.” Appellants offered “entity formation[]”
services to their clients as well as “defense of entities” services when their clients
were being sued. However, appellants “misrepresent[ed] their credentials and
2
See id. § 27.003(a); see also id. § 27.005.
3
See id. §§ 27.001–.011.
4
See id. § 27.008(a) (“If a court does not rule on a [TCPA] motion to dismiss . . . in
the time prescribed by [Texas Civil Practice and Remedies Code] [s]ection 27.005,
the motion is considered to have been denied by operation of law . . . .”).
5
To the extent that any of the parties have directed this Court to documents attached
to their appellate filings that were not otherwise contained in the appellate record,
we note that the attachment of documents as exhibits or appendices to an appellate
brief does not constitute formal inclusion of such documents in the record for
appeal, and we have not considered matters outside of the record in our review. See
McCann v. Spencer Plantation Invs., Ltd., No. 01-16-00098-CV, 2017 WL 769895,
at *4 n.5 (Tex. App.—Houston [1st Dist.] Feb. 28, 2017, pet. denied) (mem. op.).
2
affiliations within the Texas apartment industry to induce members of the apartment
industry to retain them,” and then appellants “routinely abuse[d] th[eir]
[apartment-industry] clients” once the clients become dissatisfied. Appellants often
filed lawsuits against their former clients and their principals. Appellants did this to
“extract sums of monies beyond any amount [that appellants] allege[d] to be due and
owing at the end of the[ir] relationship [with a client].” Appellants would accuse
their clients of committing fraud “when[ever] they [would] get into disagreements
with [their] clients and [appellants would] use [such] allegations to shake down
payments from the [clients that] they [had] represented, or any individuals who
[were] associated with the[] [client’s] ownership[] or management.”
Related to appellees, specifically, appellees alleged that on November 1,
2013, appellants and Eureka signed a representation agreement “pertaining to a
particular matter involving a [specific] property in . . . Eureka[’s] manage[d]
portfolio.” Arnold, the president of Eureka, signed the agreement with appellants
on behalf of Eureka. “Managers at other properties within the Eureka managed
portfolio retained [appellants] thereafter, from time to time, to provide property
specific representation, on a matter-by-matter basis, where the designated property
was [appellants’] sole client in the matter.” Because appellants marketed and
advertised their alleged expertise and experience in the apartment industry, appellees
alleged that Eureka was induced to retain appellants to represent Eureka and Eureka
3
managed properties and to continue to allow representation over the course of
several years.
When Eureka initially retained appellants, it agreed to allow Eureka property
managers to also retain appellants thereafter on behalf of Eureka managed
properties, in reliance upon appellants’ ongoing representations to Eureka about
appellants’ “depth of attorney talent, [their] vast experience and supposed expertise
as lawyers for apartments and owners and managers, and the tacit or implicit
endorsement by the Texas Apartment Association of [Cweren] as a go-to attorney
for apartment owners and operators in Texas that [was] implied by Cweren’s
published representations about his significant high-level roles in the [Texas
Apartment] Association.”
Appellees further alleged that in the course of representing Eureka managed
properties, appellants received confidential information about the ownership
entities, their key principals, including Campos, Arnold, and Robertson, and the
operational services of Eureka and its managed properties. Because appellants
viewed appellees as clients, they assumed duties to appellees that were owed by
attorneys to clients. “Loyalty [was] an essential element in [appellants’] relationship
[with appellees], as [was] preservation of [appellees’] confidential information.”
According to appellees, appellants “work product in cases for various
properties in the [Eureka] managed portfolio became increasingly shoddy and more
4
expensive, over time,” and by April 2020, “ [Eureka] property managers who [had]
retained [appellants] to represent the properties they managed” had grown
concerned “about the quality of [appellants’] work and their slow and questionable
billing practices and failures to submit bills in the manner requested and instructed
by the [Eureka managed properties that] were [being] represented.” Appellants also
began groundlessly and “aggressively demanding” payment from individuals who
were not responsible for the payment of invoices, including through the threat of
lawsuits if appellees refused appellants’ payment demands.
In April and May 2020, appellants, while still representing the Eureka
managed portfolio in pending matters, and as appellants claimed, while representing
each appellee, appellants “began an abusive campaign to collect” payment from
appellees for “invoices [appellants] claimed were due and outstanding.” The
invoices were addressed to various Eureka managed properties, and not to Eureka or
Campos, Arnold, or Robertson, and appellants knew so. But appellants nevertheless
harassed appellees, demanded payment from them, and threatened appellees with
lawsuits if appellees did not pay.
For instance, Cweren first approached Arnold and demanded that he pay the
allegedly due invoices, “telling Arnold that he was going to f*** up a bunch of
people if he wasn’t immediately paid, including . . . Campos, and that if [Cweren
was] not paid immediately, his goal was to put Eureka out of business.” Cweren
5
also “boasted about allegedly causing another former client who failed to pay his
bills, to file a bankruptcy case.”
After failing to extract any payment from Arnold, Cweren “reached out . . . to
Robertson[,] . . . threatening a collection lawsuit.” Cweren’s payment demand was
then sent to an operations executive at Eureka, and when the executive attempted to
resolve Cweren’s complaints as to lack of payment, Cweren escalated his abusive
behavior. In an email sent to the operations executive, Cweren called the executive
“arrogant and an idiot” and told him that he was “not going to f[*]ck around” and
that any unpaid invoice older than sixty days would result in a lawsuit being filed.
(Internal quotations omitted.)
Appellees alleged that appellants eventually retaliated against appellees’
rejection of appellants’ payment demands by filing suit, in county court, against
appellees to collect the allegedly outstanding amounts owed (the “county court
suit”). In the county court suit, appellants also alleged that appellees had engaged
in fraud. The Cweren Law Firm was the plaintiff and appellees were the defendants
in the county court suit. Cweren was not a party to the county court suit.
According to appellees, appellants further retaliated against appellees,
beginning in August 2020, by “appearing in lawsuits [to represent] clients against
one or more of the [Eureka] managed properties” even though appellants had
6
previously represented those Eureka managed properties, which created a conflict of
interest.
Appellees brought claims against appellants for negligence, gross negligence,
breach of fiduciary duty, and abuse of process. As to their negligence and gross
negligence claims, appellees alleged that to the extent that appellants represented
Eureka in an attorney-client relationship, appellants were negligent in failing to
protect Eureka’s interests by not giving legal advice about any allegedly wrongful,
unlawful, or fraudulent actions, imputable or otherwise harmful to Eureka, and that
were committed by any officer, employee or other person associated with Eureka.
Such negligence included appellants’ “failure to first attempt to resolve an alleged
legal violation by taking measures within [Eureka] and [appellants] disclos[ure] [of]
the alleged violation publicly, when there was no legal duty on the part of
[appellants] to do so.” To the extent that appellants had attorney-client relationships
with Campos, Arnold, and Robertson, individually, appellees alleged that appellants
were negligent in failing to give legal advice about any allegedly wrongful, unlawful,
or fraudulent actions, imputable or otherwise harmful to Eureka, that were
committed by Campos, Arnold, and Robertson, as officers, employees, or other
persons associated with Eureka. Such negligence included appellants’ “failure to
advise [Campos, Arnold, and Robertson] that their alleged conduct that [appellants]
7
perceived to be unlawful, wrongful[,] or fraudulent while occurring, needed to be
remediated.”
As to their breach-of-fiduciary-duty claim, appellees alleged that appellants
owed appellees a fiduciary duty based on the attorney-client relationship between
appellees and appellants that appellants had asserted. Appellants owed appellees the
duty of loyalty and utmost good faith, the duty of candor, the duty to refrain from
self-dealing, the duty to act with integrity of the strictest kind, the duty of fair and
honest dealing, the duty of full disclosure of all material facts, the duty to represent
appellees with undivided loyalty, and the duty to act with absolute candor, openness,
honesty, and without any concealment or deception. Appellants breached their
fiduciary duty to appellees by: (1) acting to promote their own financial interests
ahead of the interests of appellees at a time when an alleged attorney-client
relationship between appellants and appellees, or members of the Eureka
organization, was ongoing and had not been terminated; (2) harassing appellees and
“acting in a hostile and adversarial posture” toward appellees who appellants were
claiming to be clients, on a basis that constituted a conflict of interest, without
disclosing the existence of such conflicts, obtaining a waiver of the same, and
without withdrawing from the ongoing representation; (3) improperly and
unlawfully using confidential client information provided by appellees adversely to
them, without their knowledge or consent; and (4) misrepresenting appellants’
8
background, experience, depth of personnel, and industry affiliations to induce
Eureka to authorize appellants’ retention by properties within the Eureka managed
portfolio.
As to the abuse-of-process claim, Campos alleged that appellants served him
with process in the county court suit. But appellants “made an illegal, improper or
perverted use of the process after [process], via the substituted service order[,] was
issued.” Appellants “had an ulterior motive or purpose in using the form of process
they used, and in serving process upon . . . Campos” in the county court suit.
Appellees sought actual damages, exemplary damages, and disgorgement of
the fees they had paid to appellants.
Appellants answered, generally denying the allegations in appellees’ petition
and asserting various affirmative defenses. Appellants then moved to dismiss
appellees’ claims against them under the TCPA, arguing that the trial court should
dismiss appellees’ claims because they were “based on, related to, and [were] in
response to [appellants’] exercise of their right to petition” and appellees could not
“meet their burden to present clear and specific evidence of each . . . element of
their” claims against appellants. According to appellants, Eureka owned and
operated apartment communities in the United States, and Campos, Arnold, and
Robertson were employees, owners, and agents of Eureka. For many years,
appellants provided legal services for many properties owned or managed by Eureka
9
or a “Eureka related entity.” But over time, the properties failed to pay appellants
for their work. On June 26, 2020, the Cweren Law Firm sued a Eureka property in
the county court suit. In December 2020, the Cweren Law Firm sued additional
entities, i.e., Eureka and Campos, in the county court suit. On January 5, 2021, the
Cweren Law Firm sued Arnold and Robertson in the county court suit, and the
relationship between appellants and appellees then became “extremely contentious.”
Appellees “immediately made it abundantly clear through their counsel [in the
county court suit] that they intended to respond to the [c]ounty [c]ourt [s]uit by trying
to enact revenge on [appellants] and would do so by trying to injure [appellants] and
create as many problems as possible.” And appellees, through their counsel in the
county court suit, specifically stated that they would file suit against appellants “as
a direct response to [the] serving [of] Campos in the [c]ounty [c]ourt [s]uit.” On
March 29, 2021, appellees filed suit against appellants in the instant case, which
appellants asserted was a “direct retaliation for” the Cweren Law Firm filing suit
against appellees in the county court suit.
Appellants also asserted that after the Cweren Law Firm filed an emergency
motion for sanctions against appellees’ counsel in the county court suit, appellees’
counsel in the county court suit, in response to the sanctions motion, “made claims
that [were] nearly identical to the claims made by [appellees] against [appellants] in
the” instant case. Appellants believed that appellees filed suit against appellants in
10
this case to retaliate for the Cweren Law Firm “filing and prosecuting the [c]ounty
[c]ourt [suit] so [that appellees] c[ould] continue the same harassing behavior for
which they were . . . sanctioned in the [c]ounty [c]ourt [s]uit.”
According to appellants, appellees “judicially admit[ted]” in their original
petition that “th[e] [instant] case [was] related to the [c]ounty [c]ourt [s]uit.” And
related to his claim for abuse of process, Campos “specifically state[d] that the cause
of action [was] based upon the service on Campos by substituted service in the
[c]ounty [c]ourt [s]uit.” In emails, appellees’ counsel in the county court suit
threatened appellants that they had “earned the claims coming their way” by serving
Campos in the county court suit and stated that appellants would “face the
consequences” of serving Campos in the county court suit. (Internal quotations
omitted.) Further, appellants believed that the timing of appellees’ suit against them
established that it was done in response to the Cweren Law Firm filing suit against
appellees in the county court suit. Specifically, Campos was served in the county
court suit only ten days before appellees filed suit in this case. And two weeks after
the county court entered a sanctions order in the county court suit against appellees,
appellees “aggressively pursued service on [appellants]” in the instant case.
Appellants asserted that “[t]he actions taken by [appellees] in th[e] [instant] case
[were] a direct result of the happenings in the [c]ounty [c]ourt [s]uit.”
11
Appellants requested attorney’s fees, costs, and sanctions in their motion to
dismiss.
In response to appellants’ motion to dismiss, appellees filed their first
amended petition, alleging that Cweren was the founding and managing member of
the Cweren Law Firm and appellants “h[eld] themselves out [to be] experts in the
apartment industry, sometimes [stating] that no lawyer or law firm ha[d] greater
expertise in the industry than [appellants] d[id].” Appellants were engaged in the
selling of legal services, and appellees were consumers.
According to appellees, appellants habitually engaged in false and deceptive
advertising practices to induce prospective clients to retain them and to induce
existing clients to expand the scope of their relationship with appellants. As to
appellees, specifically, on November 1, 2013, the Cweren Law Firm and Eureka
signed a representation agreement pertaining to a particular matter involving a
property in the Eureka managed portfolio. Arnold signed that agreement on
Eureka’s behalf, solely in his capacity as the president of Eureka. Managers of other
properties within Eureka’s managed portfolio retained appellants thereafter, from
time to time, to provide property specific representation, on a matter-by-matter basis,
where the designated property was appellants’ sole client in the matter.
Despite this, the Cweren Law Firm alleged in the county court suit a “more
global attorney-client relationship,” with Eureka affiliated properties and entities. In
12
the county court suit, appellants alleged the existence of an attorney-client
relationship with each appellee, and appellants alleged that appellees had benefitted
from the attorney-client relationship. Cweren was alleged to have been the primary
attorney who was responsible for providing services to appellees. According to
appellees, having alleged an attorney-client relationship with appellees, appellants
voluntarily undertook all duties owed by lawyers to clients in an attorney-client
relationship.
Over time, appellants’ work product in cases involving properties in the
Eureka managed portfolio “became increasingly shoddy and more expensive,” and
by April 2020, “[Eureka] property managers who [had] retain[ed] [appellants] to
represent the properties they managed” had grown concerned “about the quality of
[appellants’] work and their slow or questionable billing practices and failures to
submit bills in the manner requested and instructed by the parties who were [being]
represented.” At the same time, appellants “aggressively demand[ed]” payment
“from a host of individuals who were not responsible for the payment of the
invoices” that appellants asserted needed to be paid. Appellants knew who was
responsible for the payment of the invoices and ignored that information. Instead,
appellants opted to engage in an abusive campaign to collect invoices that appellants
claimed were due and outstanding, particularly from appellees. Appellants retaliated
against appellees for rejecting appellants’ payment demands by filing suit in the
13
county court suit over the debts purportedly owed and alleging that appellees had
engaged in fraud. Appellants used the county court suit to disparage appellees,
accusing them of engaging in criminal misconduct.
In addition to suing appellees, appellants “brazenly . . . appeared in cases
adversely to Eureka or its managed properties, or threatened to become involved in
such cases, confirming an expressed intention to bankrupt Eureka” and the other
appellees or to “tortiously interfere with [appellees’] relationships with third
parties.”
In their first amended petition, appellees brought claims against appellants for
negligence, gross negligence, breach of fiduciary duty, negligent misrepresentation,
violations of the Texas Deceptive Trade Practices Act (“DTPA”), and abuse of
process.6 As to their negligence and gross negligence claims, appellees alleged that
by virtue of the attorney-client relationship that appellants alleged existed between
appellants and appellees, appellants owed appellees a duty of care, a duty to protect
6
Because appellees added their claims for negligent misrepresentation and violations
of the DTPA after appellants filed their TCPA motion to dismiss, appellants did not
seek dismissal of appellees’ claims for negligent misrepresentation and violations
of the DTPA in their motion to dismiss. Appellants also did not amend their TCPA
motion to dismiss to include appellees’ claims for negligent misrepresentation and
violations of the DTPA, and appellants did not file a separate TCPA motion seeking
to dismiss appellees’ claims for negligent misrepresentation and violations of the
DTPA. Thus, we do not discuss these claims in detail and need not consider whether
appellants’ TCPA motion to dismiss was properly denied by operation of law related
to appellees’ negligent-misrepresentation and DTPA-violations claims.
14
appellees’ interests, and a duty to avoid harming appellees’ interests. Appellants
were negligent in “failing to protect Eureka’s interests by [not] giv[ing] it legal
advice about any allegedly wrongful, unlawful or fraudulent actions, imputable to or
that would harm Eureka, allegedly committed by any . . . officer, employee, or other
person associated” with Eureka. The negligence included appellants’ “failure to first
attempt to resolve an alleged legal violation by taking measures within [Eureka] and
[appellants’] disclos[ure] [of] the alleged violation publicly, when there was no legal
duty on the part of [appellants] to do so.” As to Campos, Arnold, and Robertson,
appellants were negligent in “failing to protect [the] interests [of Campos, Arnold,
and Robertson] by [not] giv[ing] them legal advice about any allegedly wrongful,
unlawful[,] or fraudulent actions, imputable to or that would harm them or entities
with whom they were affiliated, allegedly committed by any of them as officers,
employees, or other persons associated with [Eureka].” And by “fail[ing] to advise
[Campos, Arnold, and Robertson] that their alleged conduct that [appellants]
perceived to be unlawful, wrongful, or fraudulent while occurring, needed to be
remediated.”
As to their breach-of-fiduciary-duty claim, appellees alleged that appellants
owed them the duty of loyalty and utmost good faith, the duty of candor, the duty to
refrain from self-dealing, the duty to act with integrity of the strictest kind, the duty
of fair and honest dealing, the duty of full disclosure of all material facts, the duty to
15
represent appellees with undivided loyalty, and the duty to act with absolute candor,
openness, honesty, and without any concealment or deception. Appellants breached
their fiduciary duties by: (1) acting to promote their own financial interests ahead of
the interests of appellees at a time when any alleged attorney-client relationship
between appellants and appellees, or members of the Eureka organization, was
ongoing and had not been terminated; (2) harassing appellees and acting in a hostile
and adversarial posture toward appellees who appellants claimed were their clients,
on a basis that constituted a conflict of interest, without disclosing the existence of
such conflicts, obtaining a waiver of the same, and without withdrawing from the
ongoing representation; (3) improperly and unlawfully using confidential client
information provided by appellees adversely to them, without their knowledge or
consent; and (4) misrepresenting appellants’ background, experience, depth of
personnel, and industry affiliations to induce Eureka to authorize appellants’
retention by properties within the Eureka managed portfolio.
As to the abuse-of-process claim, Campos alleged that he was served with
process in the county court suit and appellants made an illegal, improper, or
perverted use of the process after it was issued. The process was used to accomplish
some end other than its lawfully intended purpose, i.e., to embarrass and harass
Campos. Process was also used to conceal from Campos that he had actually been
16
served in the county court suit and to collect from him sums of money that he did
not owe and damages arising from conduct that he did not engage in.
Appellees sought actual damages, exemplary damages, treble damages, and
disgorgement of fees as well as attorney’s fees.
In their response to appellants’ motion to dismiss, appellees asserted that their
suit against appellants arose from appellants’ “provision of legal services,
misrepresentations and deceptive acts and practices related to those services, and a
subsequent commercial dispute [over legal] fees.” According to appellees, Eureka
initially retained appellants to provided limited legal services for properties owned
and managed by Eureka. A dispute then arose, and the Cweren Law Firm,
represented by Cweren, sued Eureka, its principal, Campos, and its former and
current officers, Arnold and Robertson, in the county court suit. In the county court
suit, appellants revealed that their understanding of the scope of the attorney-client
relationship between Eureka and appellants was broader than Eureka had understood
it to be because the Cweren Law Firm identified Campos, Arnold, and Robertson as
persons who had hired appellants to perform legal services in various matters. In
the county court suit, the Cweren Law Firm alleged that it had performed its
obligations, but appellees had “breached their contracts with [appellants] when
[they] failed to pay the fees associated with the legal and professional services
provided by” appellants. (Internal quotations omitted.) Because the Cweren Law
17
Firm, in the county court suit, alleged that appellees were intended beneficiaries of
the legal services that appellants had provided, appellants admitted that they had
assumed and owed appellees all the duties an attorney and a law firm owed to a
client.
In the instant suit, appellees alleged that appellants’ actions and omissions fell
below the standard of care and appellants committed negligence and gross
negligence when they, without appellees’ prior written consent, publicly disclosed
confidential information, beyond what was necessary for appellants to pursue their
claims against appellees. Appellees also alleged that appellants breached their
fiduciary duties by: (1) improperly and unlawfully using confidential client
information provided by appellees adversely to them, without appellees’ knowledge
or consent; (2) engaging in conflicts of interest by representing clients adverse to
appellees without disclosure or consent; and (3) misrepresenting appellants’
background, experience, depth of personnel, and industry affiliations to induce
appellees to retain appellants to provide legal services for them. And appellees
alleged that appellants engaged in abuse of process because appellants’ service of
process on Campos in the county court suit “was used to accomplish some end other
18
than its lawfully intended purpose,” i.e., to embarrass and harass Campos.7 (Internal
quotations omitted.)
According to appellees, appellants’ TCPA motion to dismiss should be denied
because the commercial-speech exemption applied to appellees’ claims for
negligence, gross negligence, breach of fiduciary duty, and abuse of process.
After appellants replied, asserting that the commercial-speech exemption did
not apply to appellees’ claims for negligence, gross negligence, breach of fiduciary
duty, and abuse of process, the trial court held an oral hearing on July 29, 2021. On
August 30, 2021, appellants’ TCPA motion to dismiss was denied by operation of
law.8 On September 3, 2021, the trial court signed an order granting, in part,
appellants’ motion to dismiss under the TCPA.9 In its September 3, 2021 order, the
trial court dismissed the negligence, gross-negligence, and breach-of-fiduciary-duty
7
Appellees also noted that they had amended their original petition after appellants
filed their TCPA motion to dismiss to add their claims for negligent
misrepresentation and violations of the DTPA against appellants, and those
additional claims were not subject to appellants’ motion.
8
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.005(a) (“The court must rule on a
[TCPA] motion [to dismiss] not later than the 30th day following the date the
hearing on the motion concludes.”), 27.008(a) (“If a court does not rule on a [TCPA]
motion to dismiss . . . in the time prescribed by [Texas Civil Practice and Remedies
Code] [s]ection 27.005, the motion is considered to have been denied by operation
of law . . . .”); TEX. R. CIV. P. 4 (“Computation of Time”).
9
But see TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.005(a). 27.008(a); see also
Direct Com. Funding, Inc. v. Beacon Hill Estates, LLC, 407 S.W.3d 398, 402 (Tex.
App.—Houston [14th Dist.] 2013, no pet.) (“Because a trial court is not authorized
to grant a motion to dismiss under the [TCPA] more than 30 days after the hearing
on the motion, the trial court erred in signing such an order . . . .”).
19
claims of Campos, Arnold, and Robertson against appellants, Campos’s
abuse-of-process claim against appellants, and Eureka’s claims for negligence, gross
negligence, and breach of fiduciary duty against Cweren.10
Denial by Operation of Law
In their first issue, appellants argue that their TCPA motion to dismiss was not
denied by operation of law on August 30, 2021 because the trial court “invoked the
authority granted by the Texas Supreme Court’s emergency orders and [extended]
the deadline for it to rule on [appellants’] TCPA [m]otion [to] September 3, 2021.”
(Internal quotations omitted.)
The Texas Legislature enacted the TCPA “to encourage and safeguard the
constitutional rights of persons to petition, speak freely, associate freely, and
otherwise participate in government to the maximum extent permitted by law and,
at the same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002. To that end,
the TCPA provides for early dismissal of a legal action that is “based on or is in
10
The September 3, 2021 order did not dismiss Eureka’s negligence,
gross-negligence, and breach-of-fiduciary-duty-claims against the Cweren Law
Firm. We also note that the trial court, on September 2, 2021, dismissed the
negligence, gross-negligence, and breach-of-fiduciary duty claims of Campos,
Arnold, and Roberson against appellants under Texas Rule of Civil Procedure 91a.
See TEX. R. CIV. P. 91a. This opinion does not address the propriety of the trial
court’s dismissal in its September 2, 2021 order.
20
response to a party’s exercise of the right of free speech, right to petition, or right of
association.” Id. § 27.003(a).
The Texas Legislature has included specific deadlines in the TCPA. In re
Neely, No.14-19-01018-CV, 2020 WL 1434569, at *2 (Tex. App.—Houston [14th
Dist.] Mar. 24, 2020, orig. proceeding) (mem. op.); Direct Com. Funding, Inc. v.
Beacon Hill Estates, LLC, 407 S.W.3d 398, 401 (Tex. App.—Houston [14th Dist.]
2013, no pet.). A motion to dismiss under the TCPA “must be filed not later than
the 60th day after the date of service of the legal action,” but upon a showing of good
cause, the trial court may extend the time to file a motion. TEX. CIV. PRAC. & REM.
CODE ANN. § 27.003(b). A hearing on a TCPA motion to dismiss “must be set not
later than the 60th day after the date of service of the motion unless the docket
conditions of the court require a later hearing, upon a showing of good cause, or by
agreement of the parties, but in no event shall the hearing occur more than 90 days
after service of the motion,” except when the trial court allows discovery as
authorized by the statute. See id. § 27.004(a), (c). The trial court must rule on a
TCPA motion to dismiss by “the 30th day following the date of the hearing on the
motion.” Id. § 27.005(a). This last deadline is mandatory. In re Neely, 2020 WL
1434569, at *2; Direct Com. Funding, 407 S.W.3d at 401. The Legislature did not
give the trial court discretion to extend its deadline to rule, and instead provided that
if the trial court does not rule on the TCPA motion to dismiss within thirty days after
21
the hearing, then the motion is denied by operation of law. See In re Neely, 2020
WL 1434569, at *2; Direct Com. Funding, 407 S.W.3d at 401; see also TEX. CIV.
PRAC. & REM. CODE ANN. § 27.008(a). If the trial court signs an order purportedly
granting a TCPA motion to dismiss more than thirty days after the hearing on the
motion, that order is void, and the controlling ruling is the denial of the motion by
operation of law. In re Neely, 2020 WL 1434569, at *4; Dallas Morning News, Inc.
v. Mapp, No. 05-14-00848-CV, 2015 WL 3932868, at *3 (Tex. App.—Dallas June
26, 2015, no pet.) (mem. op.); see also Montiel v. Lechin, No. 01-18-00781-CV,
2019 WL 1186695, at *2 (Tex. App.—Houston [1st Dist.] Mar. 14, 2019, no pet.)
(mem. op.) (“[T]rial courts lack authority to grant a motion to dismiss under the
TCPA more than 30 days after the hearing on the motion.”).
Here, appellants filed their motion to dismiss under the TCPA on June 14,
2021. The trial court held a hearing on appellants’ motion on July 29, 2021. At the
hearing, the trial court did not express any intent to continue or reset the hearing.
There is nothing in the record to establish that the trial court extended the hearing
after July 29, 2021 or that it recessed or reconvened the hearing at a later date. At
the conclusion of the July 29, 2021 hearing, the trial court told the parties that it
would “take the motion[] under advisement and issue a ruling.” Because the trial
court held its hearing on appellants’ TCPA motion to dismiss on July 29, 2021, it
had until August 30, 2021 to rule on appellants’ TCPA motion to dismiss. See TEX.
22
CIV. PRAC. & REM. CODE ANN. § 27.005(a) (“The court must rule on a [TCPA]
motion [to dismiss] not later than the 30th day following the date the hearing on the
motion concludes.”); TEX. R. CIV. P. 4 (“Computation of Time”). Here, the trial
court did not rule on appellants’ TCPA motion to dismiss by August 30, 2021; thus,
appellants’ motion was denied by operation of law on that date.11 See In re Neely,
2020 WL 1434569, at *2; Direct Com. Funding, 407 S.W.3d at 401; see also TEX.
CIV. PRAC. & REM. CODE ANN. §§ 27.005(a), 27.008(a).
Appellants argue that their TCPA motion to dismiss was not denied by
operation of law on August 30, 2021 because the trial court, in its September 3, 2021
order, granted, in part, appellants’ motion to dismiss and “invoked the authority
granted by the Texas Supreme Court’s emergency orders,” extending “the deadline
for it to rule on the TCPA [m]otion [to dismiss] until September 3, 2021.” (Internal
quotations omitted.)
Because of the onset of the COVID-19 pandemic, on March 13, 2020, Texas
Governor Greg Abbott issued a proclamation under the Texas Disaster Act of 1975,12
certifying that “COVID-19 pose[d] an imminent threat of disaster” in all 254 Texas
11Apparently believing their TCPA motion to dismiss was denied by operation of law
on August 30, 2021, appellants filed their notice of appeal on August 31, 2021,
stating that they gave “notice of their desire to appeal the denial of [their] [m]otion
to [d]ismiss [u]nder the [TCPA], which occurred by operation of law on or about
August 30, 2021.”
12
See TEX. GOV’T CODE ANN. § 418.001–.261.
23
counties.13 See The Governor of the State of Tex., Proclamation No. 41-3720, 45
Tex. Reg. 2087, 2094–95 (2020); In re Hotze, 627 S.W.3d 642, 643–44 (Tex. 2020);
In re Landstar Ranger, Inc., No. 06-20-00047-CV, 2020 WL 5521136, at *4 (Tex.
App.—Texarkana Sept. 15, 2020, orig. proceeding) (mem. op.); see also TEX. GOV’T
CODE ANN. § 418.014 (“Declaration of State of Disaster”); State v. El Paso Cnty.,
618 S.W.3d 812, 815 (Tex. App.—El Paso 2020, orig. proceeding [mand. dism’d])
(noting Governor Abbott renewed his disaster proclamation each month). On March
13, 2020, the Texas Supreme Court issued its First Emergency Order Regarding the
COVID-19 State of Disaster under Texas Government Code section 22.0035(b).14
See Supreme Court of Texas, First Emergency Order Regarding the COVID-19 State
of Disaster, Misc. Docket No. 20-9042, 596 S.W.3d 265, 265–66 (Tex. 2020); see
also Kim v. Ramos, 632 S.W.3d 258, 266 (Tex. App.—Houston [1st Dist.] 2021, no
pet.). The Texas Supreme Court’s First Emergency Order provided:
13
See Kim v. Ramos, 632 S.W.3d 258, 261 n.5, 266 & n.13 (Tex. App.—Houston [1st
Dist.] 2021, no pet.) (explaining “COVID-19 [was] a disease caused by a novel
coronavirus” and noting “the country [was] in the middle of a pandemic due to the
virus known as COVID-19” (internal quotations omitted)); see also Abbott v. La
Joya Indep. Sch. Dist., No. 03-21-00428-CV, 2022 WL 802751, at *1 (Tex. App.—
Austin Mar. 17, 2022, pet. filed) (mem. op.) (“On March 13, 2020, Governor
Abbott, in his official capacity, issued a statewide disaster declaration, certifying
that the novel coronavirus (COVID-19) pose[d] an imminent threat of disaster for
all Texas Counties, and he ha[d] renewed that proclamation every month since.”
(internal quotations omitted)).
14
See TEX. GOV’T CODE ANN. § 22.0035(b) (permitting Texas Supreme Court to
modify or suspend procedures for conduct of any court proceeding “affected by a
disaster during the pendency of a disaster declared by the governor”).
24
Subject only to constitutional limitations, all courts in Texas may in any
case, civil or criminal—and must to avoid risk to court staff, parties,
attorneys, jurors, and the public—without a participant’s
consent: . . . [m]odify or suspend any and all deadlines and procedures,
whether prescribed by statute, rule, or order, for a stated period ending
no later than 30 days after the Governor’s state of disaster has been
lifted.
See Supreme Court of Texas, First Emergency Order Regarding the COVID-19 State
of Disaster, 596 S.W.3d at 265.
Throughout the COVID-19 pandemic, the Texas Supreme Court, until
recently,15 issued regular emergency orders providing guidance to courts,
practitioners, and litigants regarding case administration during the pandemic. In re
Orsak, No. 01-21-00481-CV, --- S.W.3d ---, 2022 WL 3649365, at *7 (Tex. App.—
Houston [1st Dist.] Aug. 25, 2022, orig. proceeding); see also A. N. v. Tex. Dep’t of
Family & Protective Servs., No. 03-22-00099-CV, 2022 WL 3638211, at *1 (Tex.
App.—Austin Aug. 23, 2022, no pet.) (mem. op.) (noting supreme court issued “a
series of emergency orders in response to the COVID-19 pandemic that permit[ted]
trial courts to suspend the deadlines and procedures” (internal quotations omitted));
Kim, 632 S.W.3d at 266 (recounting Texas governor’s disaster declaration on March
13, 2020 certifying that “COVID-19 pose[d] an imminent threat of disaster” in Texas
and series of emergency orders issued by Texas Supreme Court pursuant to
15
See Supreme Court of Texas, Final General Emergency Order Regarding the
COVID-19 State of Disaster, Misc. Docket No. 23-9005 (Tex. Jan. 27, 2023).
25
declaration allowing state courts to modify or suspend deadlines and procedures in
order to “avoid risk to court staff, parties, attorneys, jurors, and the public” while
disaster declaration was in effect (alteration in original) (internal quotations
omitted)).
Relevant here, on July 19, 2021, the Texas Supreme Court issued its Fortieth
Emergency Order Regarding the COVID-19 State of Disaster (the “Fortieth
Emergency Order”), recognizing that “Governor Abbott ha[d] declared a state of
disaster in all 254 counties in the State of Texas in response to the imminent threat
of the COVID-19 pandemic,” and providing:
Subject only to constitutional limitations, all courts in Texas may in any
case, civil or criminal, without a participant’s consent: . . . modify or
suspend any and all deadlines and procedures, whether prescribed by
statute, rule, or order for a stated period ending no later than October 1,
2021.
See Supreme Court of Texas, Fortieth Emergency Order Regarding the COVID-19
State of Disaster, Misc. Docket No. 21-9079, 629 S.W.3d 911, 912 (Tex. 2021)
(emphasis added). Appellants assert, based on the Texas Supreme Court’s Fortieth
Emergency Order, that the trial court was allowed to extend the thirty-day deadline
it had to rule on appellants’ TCPA motion to dismiss, and the trial court, in its
September 3, 2021 order, actually did extend its deadline to rule on appellants’
motion until September 3, 2021. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(a) (“The court must rule on a [TCPA] motion [to dismiss] not later than the
26
30th day following the date the hearing on the motion concludes.”). And because
the trial court extended its deadline to rule on appellants’ TCPA motion to dismiss
to September 3, 2021, appellants’ motion was not denied by operation of law on
August 30, 2021.
The trial court, in its September 3, 2021 order, stated that “[p]ursuant to its
authority granted by the Texas Supreme Court’s emergency orders, [it] suspend[ed]
the deadline to rule on the [TCPA] motion to dismiss heard on July 29, 2021 until
September 3, 2021.” However, we note that the trial court’s September 3, 2021
order, in which it attempted to extend its deadline to rule on appellants’ TCPA
motion to dismiss, was signed after the trial court’s deadline to rule had passed and
after appellants’ motion was denied by operation of law on August 30, 2021.
Appellants have not provided this Court with any authority, and we have
found none, indicating that the Texas Supreme Court’s Emergency Orders
Regarding the COVID-19 State of Disaster may be used after the deadline to rule
has passed and after the TCPA motion has been denied by operation of law to revive
or extend the mandatory deadline for the trial court to rule on a TCPA motion to
dismiss. Cf. Broadway v. Lean on 8, Inc., No. 03-21-00663-CV, 2022 WL 3691678,
at *4 (Tex. App.—Austin Aug. 26, 2022, no pet.) (mem. op.) (noting party sought
to have statute of limitations period extended by trial court, pursuant to Texas
Supreme Court’s emergency orders, after it had expired, and stating court “ha[d]
27
found no authority” supporting assertion that “the emergency orders would permit
the retroactive extension of the statute of limitations”); Prescod v. Tkach, No.
02-21-00162-CV, 2022 WL 246858, at *5 (Tex. App.—Fort Worth Jan. 27, 2022,
no pet.) (mem. op.) (explaining “[t]he emergency orders do not give courts authority
to revive jurisdiction once a jurisdictional deadline has passed” and noting court had
found “no authority” supporting assertion that “the emergency orders permit[ted] the
retroactive extension of the statute of limitations” (emphasis omitted)); see also
Harris Cnty. v. Davidson, 653 S.W.3d 318, 322–23 (Tex. App.—Houston [14th
Dist.] 2022, no pet.); Floeck v. Crescent Continuing Care Ctr. Co., No.
14-21-00101-CV, 2022 WL 1463767, at *4 (Tex. App.—Houston [14th Dist.] May
10, 2022, no pet.) (mem. op.) (although trial court could have exercised its discretion
to grant party extension of time to file expert report based on Texas Supreme Court’s
emergency orders, party not entitled to extension when he did not invoke emergency
orders in trial court and did not seek extension to file expert report until after
deadline had passed). Although appellants direct us to our sister appellate court’s
opinion in CBS Stations Group of Texas, LLC v. Burns, No. 05-20-00700-CV, 2020
WL 7065827 (Tex. App.—Dallas Dec. 3, 2020, no pet.) (mem. op.), to support their
position that the trial court extended its deadline to rule on appellants’ TCPA motion
to dismiss, we note that the circumstances presented in Burns differ from the
circumstances in the instant case.
28
In Burns, Cedric Burns filed suit against CBS Stations Group of Texas, LLC
(“CBS”) for defamation and intentional infliction of emotional distress over CBS’s
broadcast of a false report that he was part of a gang that had committed several bank
robberies. 2020 WL 7065827, at *1. In response, CBS filed a motion to dismiss
Burns’s claims against it under the TCPA. Id. The day before the trial court’s
hearing on the TCPA motion to dismiss, Burns filed a motion for continuance. Id.At the hearing, held on June 18, 2020, the trial court heard both the motion for
continuance and CBS’s TCPA motion to dismiss. Id. Burns asserted that he needed
a continuance to obtain a doctor’s affidavit to support his claim for intentional
infliction of emotional district and because of the COVID-19 pandemic, the doctor
could not get into her office to obtain what she needed to prepare the affidavit. Id.Thus, according to Burns, the COVID-19 pandemic had affected his ability to argue
against CBS’s TCPA motion to dismiss. Id. And Burns asserted that the Texas
Supreme Court’s Seventeenth Emergency Order Regarding the COVID-19 State of
Disaster allowed the trial court to extend all civil deadlines in the case. Id. At the
end of the hearing on Burns’s motion for continuance and CBS’s TCPA motion to
dismiss, the trial court stated that it was “going to have to research th[e] whole
Supreme Court issue” and that if it granted Burns’s motion for continuance, then it
would hold “an updated hearing.” Id. When CBS informed the trial court that if it
were to grant Burns’s motion for continuance there would be “a pretty sticky
29
situation because [the trial court had] started the hearing” on CBS’s TCPA motion
to dismiss and it only had thirty days to rule after the hearing, the trial court
responded that it could “continue the hearing.” Id. Subsequently, on June 26, 2020,
the trial court signed an order granting Burns’s motion for continuance and stating
that “the record on the [m]otion to [d]ismiss remain[ed] open, and pursuant to the
Texas Supreme Court’s Seventeenth Emergency Order, the deadline [was] extended
to September 30, 2020.” Id. at *1–2. On July 27, 2020, CBS filed a notice of appeal,
stating that its TCPA motion to dismiss had been denied by operation of law on July
20, 2020. Id. at *2; see also TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.005(a),
27.008(a), TEX. R. CIV. P. 4 (“Computation of Time”).
On appeal, the appellate court sought to determine whether it had jurisdiction
over CBS’s appeal, and in doing so, it considered whether CBS’s TCPA motion to
dismiss had been denied by operation of law on July 20, 2020. Burns, 2020 WL
7065827, at *1–3. The court noted that under the TCPA a trial court may extend the
hearing date on a TCPA motion to dismiss to allow limited discovery relevant to the
motion to dismiss. See id. at *2; see also TEX. CIV. PRAC. & REM. CODE ANN.
§§ 27.004(c), 27.006(b). The TCPA also permitted a trial court to recess a hearing
on the TCPA motion to dismiss for the purpose of allowing discovery and to resume
the hearing at any point within 120 days from the service of the motion to dismiss.
Burns, 2020 WL 7065827, at *2; see also TEX. CIV. PRAC. & REM. CODE ANN.
30
§ 27.004(c); Jones v. Heslin, 587 S.W.3d 134, 136 (Tex. App.—Austin 2019, no
pet.). An extension under such circumstances would reset the trial court’s thirty-day
deadline for ruling on the TCPA motion to dismiss in accordance with the extended
hearing date. Burns, 2020 WL 7065827, at *2; see also Jones, 587 S.W.3d at 136–
37. And the TCPA motion to dismiss would not be denied by operation of law within
thirty days of the date of the TCPA-motion-to-dismiss hearing that had since been
extended. Burns, 2020 WL 7065827, at *2. The appellate court also noted that the
Texas Supreme Court’s Seventeenth Emergency Order Regarding the COVID-19
State of Disaster granted the trial court discretion to suspend any and all deadlines,
including those prescribed by statute. Id. Thus, because the trial court, in Burns,
had continued its hearing on CBS’s TCPA motion to dismiss, the appellate court
concluded that CBS’s motion was not denied by operation of law on July 20, 2020,
but instead remained pending when CBS filed its notice of appeal. Id. at *3.
Accordingly, the court held that because the TCPA motion to dismiss remained
pending in the trial court, there was no order supporting an interlocutory appeal, and
the court had to dismiss CBS’s appeal for lack of jurisdiction. Id.
Although appellants assert that Burns stands for the proposition that the Texas
Supreme Court’s Emergency Orders Regarding the COVID-19 State of Disaster
31
“appl[y] to the deadlines under the TCPA,”16 Burns does not support appellants’
assertion that appellants’ TCPA motion to dismiss was not denied by operation of
law in this case. We note that, in Burns, to the extent that the trial court extended
the applicable TCPA deadlines for hearing the TCPA motion to dismiss and ruling
on the TCPA motion to dismiss based on the Texas Supreme Court’s Seventeenth
Emergency Order Regarding the COVID-19 State of Disaster, it did so before any
of the TCPA deadlines had passed. Burns does not stand for the proposition that the
Texas Supreme Court’s Emergency Orders Regarding the COVID-19 State of
Disaster may be used to revive or extend the mandatory deadline for the trial court
to rule on a TCPA motion to dismiss after that deadline has passed and after the
TCPA motion to dismiss has been denied by operation of law.
Here, appellants’ TCPA motion to dismiss was denied by operation of law on
August 30, 2021. Thus, we hold that the trial court’s September 3, 2021 order
purportedly granting appellants’ TCPA motion to dismiss that was signed more than
thirty days after the hearing on the motion is void, and the controlling ruling for
purposes of this appeal is the August 30, 2021 denial of appellants’ motion by
operation of law. See In re Neely, 2020 WL 1434569, at *4; Mapp, 2015 WL
3932868, at *3; see also Montiel, 2019 WL 1186695, at *2 (“[T]rial courts lack
16
We need not express consider whether appellants’ assertion is correct as a general
proposition.
32
authority to grant a motion to dismiss under the TCPA more than 30 days after the
hearing on the motion.”).
We overrule appellants’ first issue.
Dismissal under TCPA
In their second and third issues, appellants argue that the trial court erred in
denying their motion to dismiss appellees’ suit against them because appellees’ suit
was “based on or in response to events in the [c]ounty [c]ourt [s]uit” and appellees
did not “prove that either an exemption exist[ed]” or “provide clear and specific
evidence of each element of their causes of action.”
We review de novo the denial of a TCPA motion to dismiss. Dallas Morning
News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019); Better Bus. Bureau of Metro.
Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 352–53 (Tex. App.—
Houston [1st Dist.] 2013, pet. denied). In deciding if a legal action should be
dismissed under the TCPA, we consider “the pleadings, evidence a court could
consider under [Texas] Rule [of Civil Procedure] 166a, . . . and supporting and
opposing affidavits stating the facts on which the liability or defense is based.” TEX.
CIV. PRAC. & REM. CODE ANN. § 27.006(a). The plaintiffs’ allegations, and not the
defendants’ admissions or denials, constitute the basis of a legal action. Hersh v.
Tatum, 526 S.W.3d 462, 467 (Tex. 2017). We review the pleadings and evidence in
the light most favorable to the non-movants. Schimmel v. McGregor, 438 S.W.3d
33847, 855–56 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). Whether the
TCPA applies is an issue of statutory interpretation that we also review de novo.
Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018).
The TCPA provides a procedure for the expedited dismissal of retaliatory
lawsuits that seek to intimidate or silence citizens on matters of public concern. In
re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015); Better Bus. Bureau of Metro. Houston,
Inc. v. John Moore Servs., Inc., 500 S.W.3d 26, 37 (Tex. App.—Houston [1st Dist.]
2016, pet. denied). “The TCPA’s purpose is to identify and summarily dispose of
lawsuits designed only to chill First Amendment rights, not to dismiss meritorious
lawsuits.” In re Lipsky, 460 S.W.3d at 589; see also TEX. CIV. PRAC. & REM. CODE
ANN. § 27.002 (“The purpose of [the TCPA] is to encourage and safeguard the
constitutional rights of persons to petition, speak freely, associate freely, and
otherwise participate in government to the maximum extent permitted by law and,
at the same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.”); KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 688
(Tex. App.—Houston [1st Dist.] 2013, pet. denied). Under the TCPA, a party may
move to dismiss a “legal action” that is “based on or is in response to” the party’s
“exercise of the right of free speech, right to petition, or right of association.” TEX.
CIV. PRAC. & REM. CODE ANN. § 27.003(a); see also Creative Oil & Gas, LLC v.
Lona Hills Ranch, LLC, 591 S.W.3d 127, 131 (Tex. 2019); Rodriguez v. Universal
34
Surgical Assistants, Inc., No. 01-19-00236-CV, 2020 WL 4758426, at *2 (Tex.
App.—Houston [1st Dist.] Aug. 18, 2020, pet. denied). A “[l]egal action” is “a
lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any
other judicial pleading or filing that requests legal, declaratory, or equitable relief.”
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(6) (internal quotations omitted).
To be entitled to dismissal under the TCPA, a movant has the initial burden
to “demonstrate[] that [a] legal action is based on or is in response to” the movant’s
exercise of the right to petition, association, or free speech. TEX. CIV. PRAC. & REM.
CODE ANN. § 27.005(b); see also Lowry v. Fox Television Stations, LLC, No.
01-20-00627-CV, 2022 WL 2720509, at *4 (Tex. App.—Houston [1st Dist.] July
14, 2022, no pet.) (mem. op.). If the movant meets its initial burden, then the burden
shifts to the non-movant. Diogu Law Firm PLLC v. Experience Infusion Ctrs. LLC,
No. 01-19-00494-CV, 2020 WL 1681182, at *2 (Tex. App.—Houston [1st Dist.]
Apr. 7, 2020, no pet.) (mem. op.). Whether the movant has met its initial burden to
show by a preponderance of the evidence that the non-movant has asserted a legal
action based on or in response to the movant’s right to petition, association, or free
speech is reviewed de novo. See Hall, 579 S.W.3d at 377.
Appellants argue that appellees’ suit against them “is based on or is in
response to [appellants’] right to petition” because appellees’ suit “is in direct
retaliation to the [Cweren Law Firm] bringing the [c]ounty [c]ourt [s]uit, serving the
35
[appellees] therein, and filing [a] . . . [m]otion for [s]anctions” in the county court
suit. Further, appellants argue that appellees’ suit is “based on or in response to
Cweren’s exercise of his right to petition as the attorney for the [Cweren Law Firm]
in the [c]ounty [c]ourt [s]uit” because appellees sued Cweren for filing suit against
them in the county court suit and for winning a motion for sanctions in the county
court suit. Thus, appellants assert that “[t]he actions taken by [a]ppellees” in the
instant case “were a direct result of the happenings in the [c]ounty [c]ourt [s]uit.”
The “[e]xercise of the right to petition” includes any “communication in or
pertaining to . . . a judicial proceeding.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.001(4)(A)(i) (internal quotations omitted). And a “[c]ommunication includes
the making or submitting of a statement or document in any form or medium,
including oral, visual, written, audiovisual, or electronic.” Id. at § 27.001(1)
(internal quotations omitted). Here, appellees’ suit is not based on or in response to
appellants’ asserted communications in the county court suit, i.e., the filing of the
county court suit, the serving of the county court suit on appellees, and the “winning”
of a motion for sanctions in the county court suit. See DOJO Bayhouse, LLC v.
Pickford, No. 14-20-00237-CV, 2021 WL 6050677, at *5 n.9 (Tex. App.—Houston
[14th Dist.] Dec. 21, 2021, no pet.) (mem. op.) (“[C]ourts cannot blindly accept
attempts by a TCPA movant to characterize the plaintiff’s claims as implicating
protected expression.”). Instead, appellees’ suit is based on appellants’ failures to
36
act, breaches of the standard of care, conduct, and misrepresentations, virtually all
of which allegedly occurred before the county court suit was filed. Cf. ML Dev, LP
v. Ross Dress for Less, Inc., 649 S.W.3d 623, 629 (Tex. App.—Houston [1st Dist.]
2022, pet. denied) (“TCPA movants [are required] to establish a closer nexus
between the claims against them and the communications they point to as their
exercise of protected rights.”); see also Pacheco v. Rodriguez, 600 S.W.3d 401, 410
(Tex. App.—El Paso 2020, no pet.) (“[W]hen a claim does not allege a
communication, and is instead based on a defendant’s conduct, the TCPA is not
implicated.”); Smith v. Crestview NuV, LLC, 565 S.W.3d 793, 798–99 (Tex. App.—
Fort Worth 2018, pet. denied) (recognizing claim must “allege a communication” in
order to invoke TCPA).
Appellees have brought four claims against appellants which were subject to
appellants’ TCPA motion to dismiss: (1) negligence, (2) gross negligence,
(3) breach of fiduciary duty, and (4) abuse of process. See Hersh, 526 S.W.3d at
467 (allegations in non-movant’s pleading were “best and all-sufficient evidence of
the nature” of non-movant’s claims). As to their negligence and gross negligence
claims, appellees alleged that to the extent that appellants represented Eureka in an
attorney-client relationship, appellants were negligent in failing to protect Eureka’s
interests by not giving legal advice about any allegedly wrongful, unlawful, or
fraudulent actions, imputable or otherwise harmful to Eureka, and that were
37
committed by any officer, employee or other person associated with Eureka. Such
negligence included appellants’ “failure to first attempt to resolve an alleged legal
violation by taking measures within [Eureka] and [appellants’] disclos[ure] [of] the
alleged violation publicly, when there was no legal duty on the part of [appellants]
to do so.” To the extent that appellants represented Campos, Arnold, and Robertson,
individually, in an attorney-client relationship, appellees alleged that appellants were
negligent in failing to give legal advice about any allegedly wrongful, unlawful, or
fraudulent actions, imputable or otherwise harmful to Eureka, that were committed
by Campos, Arnold, and Robertson, as officers, employees, or other persons
associated with Eureka. Such negligence included appellants’ “failure to advise
[Campos, Arnold, and Robertson] that their alleged conduct that [appellants]
perceived to be unlawful, wrongful, or fraudulent while occurring, needed to be
remediated.” These claims are not predicated on appellants’ communications in a
judicial proceeding.
As to their breach-of-fiduciary-duty claims, appellees alleged that appellants
owed appellees a fiduciary duty based on the purported attorney-client relationship
between appellees and appellants. Appellants owed appellees the duty of loyalty
and utmost good faith, the duty of candor, the duty to refrain from self-dealing, the
duty to act with integrity of the strictest kind, the duty of fair and honest dealing, the
duty of full disclosure of all material facts, the duty to represent appellees with
38
undivided loyalty, and the duty to act with absolute candor, openness, honesty, and
without any concealment or deception. Appellants breached their fiduciary duty to
appellees by: (1) acting to promote their own financial interests ahead of the interests
of appellees at a time when the alleged attorney-client relationship between
appellants and appellees, or members of the Eureka organization, was ongoing and
had not been terminated; (2) harassing appellees and acting in a hostile and
adversarial posture toward appellees who appellants were claiming to be clients, on
a basis that constituted a conflict of interest, without disclosing the existence of such
conflicts, obtaining a waiver of the same, and without withdrawing from the ongoing
representation; (3) improperly and unlawfully using confidential client information
provided by appellees adversely to them, without their knowledge or consent; and
(4) misrepresenting appellants’ background, experience, depth of personnel, and
industry affiliations to induce Eureka to authorize appellants’ retention by properties
within the Eureka managed portfolio. These claims likewise are not predicated on
appellants’ communications in a judicial proceeding.
As to the abuse-of-process claim, Campos alleged that he was served with
process in the county court suit, and appellants made an illegal, improper, or
perverted use of the process after it was issued. The process was used by appellants
to accomplish some end other than its lawfully intended purpose, i.e., to embarrass
and harass Campos. Process was also used to conceal from Campos that he had
39
actually been served in the county court suit and to collect from him sums of money
that he did not owe and damages arising from conduct that he did not engage in.
Although Campos’s abuse-of-process claim may relate to the county court suit,17 it
does not attack the substance of the Cweren Law Firm’s claims in the county court
suit nor is it based on or in response to any of the substantive allegations in the
county court suit. Cf. Sorkin v. P.T. Atlas Mfg., L.L.C., No. 05-21-00657-CV, 2022
WL 780444, at *1–4 (Tex. App.—Dallas Mar. 15, 2022, pet. denied) (mem. op.)
(disagreeing non-movants’ claims for breach of contract, misrepresentation, fraud,
17
We note that when the Texas Legislature, in 2019, amended the TCPA, it narrowed
the categories of connections a claim could have to the exercise of a protected right
to enable a movant to obtain a dismissal. See Union Pac. R.R. v. Dorsey, 651
S.W.3d 692, 699 n.6 (Tex. App.—Houston [14th Dist.] 2022, no pet.); ML Dev, LP
v. Ross Dress for Less, Inc., 649 S.W.3d 623, 626–27 (Tex. App.—Houston [1st
Dist.] 2022, pet. denied); see also Hill v. Keliher, No. 01-20-00419-CV, 2022 WL
3031620, at *1 n.1 (Tex. App.—Houston [1st Dist.] Aug. 2, 2022, no pet.) (mem.
op.) (noting Legislature’s 2019 amendments to TCPA narrowed its application);
Newstream Hotels & Resorts, LLC v. Abdou, No. 02-21-00343-CV, 2022 WL
1496537, at *2 n.1 (Tex. App.—Fort Worth May 12, 2022, pet. denied) (mem. op.)
(“The Legislature recently narrowed the applicability of the TCPA, which informs
[an appellate court’s] decision . . . .”). Although previously a movant, to obtain
dismissal under the TCPA, had to establish that a claim against it was either “based
on, relate[d] to, or . . . in response to” the movant’s exercise of a protected right,
that is no longer the case. See ML Dev, LP, 649 S.W.3d at 626–27 (internal
quotations omitted). The Legislature’s 2019 amendment deleted “relate[d] to” from
the list; thus, the TCPA now requires a movant to establish that the claim it seeks to
dismiss is “based on” or “in response to” its exercise of a protected right. Id. at
626–27 (internal quotations omitted). We must presume that the Legislature
intended its deletion of the phrase “relate[d] to” to have an effect, and a movant
seeking to dismiss a claim against it under the TCPA must now establish “a closer
nexus between the claim[] against [it] and the communication[] [it] point[s] to as
[its] exercise of protected rights.” Id. at 629 (internal quotations omitted).
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and abuse of process in newly filed Dallas County suit challenged movants’ right to
petition in Harris County suit); see also Blue Gold Energy Barstow, LLC v. Precision
Frac, LLC, No. 11-19-00238-CV, 2020 WL 1809193, at *5 (Tex. App.—Eastland
Apr. 9, 2020, no pet.) (mem. op.) (“[T]o establish that the nonmovant’s claim is
based on[] . . . or in response to the movant’s filing of previous litigation, the movant
must show that the claim is ‘premised on’ the prior lawsuit.”). And Campos’s
abuse-of-process claim is based on conduct, not a communication within the
meaning of the TCPA. See, e.g., Clinical Pathology Labs., Inc. v. Polo, 632 S.W.3d
35, 46–47 (Tex. App.—El Paso 2020, pet. denied); Riggs & Ray, P.C. v. State Fair
of Tex., No. 05-17-00973-CV, 2019 WL 4200009, at *4 (Tex. App.—Dallas Sept.
5, 2019, pet. denied) (mem. op.); see also Newstream Hotels & Resorts, LLC v.
Abdou, No. 02-21-00343-CV, 2022 WL 1496537, at *2 (Tex. App.—Fort Worth
May 12, 2022, pet. denied) (mem. op.) (“[M]erely alleging conduct that has a
communication embedded within it does not create the relationship between the
claim and the communication necessary to invoke the TCPA.”); ML Dev, LP, 649
S.W.3d at 628 (although alleged statements “may have accompanied”
complained-of conduct, communications themselves did not “provide the basis for
the legal claims or the impetus for suit”); Pacheco, 600 S.W.3d at 410 (“[W]hen a
claim does not allege a communication, and is instead based on a defendant’s
conduct, the TCPA is not implicated.”).
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Here, we remain mindful of our obligation to consider appellees’ pleadings in
the light most favorable to appellees and in favor of the conclusion that appellees’
claims are not reliant on protected expression. Abundant Life Therapeutic Servs.,
Tex., LLC v. Headen, No. 05-20-00145-CV, 2020 WL 7296801, at *3 (Tex. App.—
Dallas Dec. 11, 2020, pet. denied); see also Abdou, 2022 WL 1496537, at *2;
Damonte v. Hallmark Fin. Servs., Inc., No. 05-18-00874-CV, 2019 WL 3059884, at
*5 (Tex. App.—Dallas July 12, 2019, no pet.) (mem. op.) (“We cannot blindly
accept attempts by the movant to characterize the [non-movant’s] claims as
implicating protected expression.” (internal quotations omitted)). We must read
appellees’ pleadings “in [a] manner most sympathetic to the TCPA’s
non-applicability.” White Nile Software, Inc. v. Carrington, Coleman, Sloman &
Blumenthal, LLP, No. 05-19-00780-CV, 2020 WL 5104966, at *4 (Tex. App.—
Dallas 2020, pet. denied). Notably, although appellants and appellees were involved
in the county court suit before appellees filed suit in the instant case, this does not
mean that every subsequent action after the county court suit results in litigation that
is based on or in response to the county court suit. See Chandni, Inc. v. Patel, 623
S.W.3d 425, 435–36 (Tex. App.—El Paso 2019, pet. denied); see also Beving v.
Beadles, 563 S.W.3d 399, 408 (Tex. App.—Fort Worth 2018, pet. denied) (“There
are myriad reasons for deciding if and when to bring a legal action against a
person.”). “The TCPA’s purpose is to identify and summarily dispose of lawsuits
42
designed only to chill First Amendment rights, not to dismiss of meritorious
lawsuits.” In re Lipsky, 460 S.W.3d at 589.
Based on the foregoing, we conclude that appellants have not shown by a
preponderance of the evidence that appellees’ claims are based on or in response to
appellants’ exercise of their right to petition. Thus, we hold that appellants’ TCPA
motion to dismiss was properly denied by operation of law.
We overrule appellants’ second and third issues.
Conclusion
We affirm the trial court’s denial by operation of law of appellants’ TCPA
motion to dismiss. We dismiss any pending motions as moot.
Julie Countiss
Justice
Panel consists of Justices Goodman, Countiss, and Farris.
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