Opinion issued January 16, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00059-CV
———————————
RICH ROBINS, Appellant
V.
AUSTEN PERRY CLINKENBEARD AND JONATHON G.
CLINKENBEARD A/K/A JON CLINKENBEARD, Appellees
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Case No. 1107951
MEMORANDUM OPINION
Rich Robins appeals the denial of his motion, filed pursuant to the Texas
Citizen’s Participation Act (TCPA),1 to dismiss Austen Perry Clinkenbeard and
1
We note that, in its most recent session, the Texas Legislature amended the TCPA.
The amendments became effective September 1, 2019. Because this suit was filed
Jonathon G. Clinkenbeard’s professional malpractice case against him.2 In three
issues, Robins argues that the trial court erred in denying his motion because
(1) the Clinkenbeards’ claims are based on, related to, or in response to TCPA-
protected communications; (2) the Clinkenbeards failed to come forward with
sufficient evidence to establish a prima facie case to support their claims; and (3)
Robins established defenses to the Clinkenbeards’ claims.
We affirm.
Background
We recently affirmed the order of the 61st Harris County District Court
denying Robins’s TCPA motion to dismiss the Commission for Lawyer
Discipline’s professional misconduct case against him. See Robins v. Commission
for Lawyer Discipline, No. 01-19-00011-CV, 2020 WL 101921 (Tex. App.—
Houston [1st Dist.] Jan. 9, 2020, no pet. h.). Because the factual allegations in that
case are the same as in this case, we will provide an abridged background here.
before the effective date of the amendments, it is governed by the statute as it
existed before the amendments, and all of our citations and analysis are to the
TCPA as it existed prior to September 1, 2019. See Act of May 17, 2019, 86th
Leg., R.S., ch. 378, §§ 1–12, 2019 Tex. Sess. Law Serv. 684, 684–87(codified at
TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011).
2
See TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(b) (authorizing interlocutory
appeal of order denying motion to dismiss filed under TCPA section 27.003).
2
The Crisp Lawsuit
In July 2012, Cindy Crisp, who suffered from multiple sclerosis, sold certain
items of personal property to estate liquidator John Sauls for a total price of
$6,893.21. Sauls sent Crisp payment in the form of two checks, both of which
bounced.
By handwritten letter dated October 3, 2013, Crisp asked attorney Robins to
help her recover “the value of checks plus interest and attorney/court costs” from
Sauls, and she stated that she “understands the attorney fees will not be of normal
value and that Rich Robins is doing this to help her to honor the checks that were
written NSF and fees and costs.”
Over the course of the following year and a half, Crisp’s health further
declined and Robins fell out of contact with her. Nevertheless, Robins filed suit on
behalf of Crisp to collect payment from Sauls for the bounced checks, “thinking
that [Crisp was] hopefully still alive somewhere, albeit in a potentially very
compromised state of health.” The petition, filed on November 17, 2016, stated
that Crisp “would diplomatically settle this case through her legal counsel for
$14,338 if no further wrangling is necessary to finally conclude this unfortunate
matter.”
In early 2017, Sauls’s attorney, Kurt Noell, offered to settle the case for the
amount of the debt. Robins rejected the offer, sticking to the demand stated in the
3
petition. Noell then made a second offer, for the amount of the debt plus $2,500 for
loss of use and attorney’s fees, but Robins rejected that offer also.
In March 2017, Crisp’s two sons, Austen and Jon Clinkenbeard, informed
Robins that their mother had died in 2015. Around the same time, Noell served
discovery on Robins. According to Noell, he had a conversation with Robins
during which Robins discussed potential dates for Crisp’s deposition—all the
while knowing that Crisp had been deceased for over two years but failing to
disclose this information to Noell. When Robins failed to respond to Noell’s
written discovery requests, Noell filed a motion for sanctions and set it for hearing.
Trial of the case was set for April 3, 2017, but Robins failed to appear, and
the trial court dismissed the case for want of prosecution. Robins filed “Plaintiff
Cindy Crisp’s Verified Motion to Reinstate,” claiming he was unaware of the
setting, and the trial court granted the motion, which, notably, did not mention that
Crisp had died over two years earlier.
Two days before the June 29, 2017 sanctions hearing was to occur, Robins
emailed the court administrator to inform her that Crisp “is reportedly no longer
with us . . . . whether opposing counsel knows it or not” and that “her son wants to
fill in for her.” The email did not indicate that Crisp had been dead for years.
It appears from the record that, in response to the suggestion of Crisp’s
death, the trial court cancelled the June 29 hearing and instead held a telephonic
4
hearing, during which Robins “represented that Cindy Crisp was probably dead.”
The trial court directed Robins to produce proof of Crisp’s death.
Several things happened as a result of the telephonic hearing. On July 4,
2017, Robins obtained from Austen Clinkenbeard a signed retainer agreement,
purporting to authorize Robins to represent Crisp through Austen and providing
that Robins’s fees would be paid by Sauls. Noell demanded that Robins produce, in
addition to Crisp’s death certificate, any evidence showing whether her estate had
been probated.
Robins subsequently obtained Crisp’s death certificate and emailed it to
Noell on July 28, but he did not provide evidence regarding probate. As a result,
Noell filed a motion to show authority pursuant to Texas Rule of Civil Procedure
12. See TEX. R. CIV. P. 12 (stating that party may file motion to require challenged
attorney to appear before trial court to show authority to act on behalf of client).
The trial court granted the motion and ordered Robins to appear and show that
Crisp had authorized him to file the suit in her name and that “a probate proceeding
of some type has been filed so that any interest in her estate could be pursued by an
heir.” Robins responded, stating that “a probate court has never been involved with
Cindy Crisp’s passing or with her estate, and one need not be.”
On September 18, the trial court held a hearing, at which Robins stated that
he had not filed a probate proceeding because he had no experience in probate
5
court and he was trying to save his clients’ money. The trial court expressed
concern that Robins had filed the lawsuit “with a client that was deceased” and
without the authority of her heirs. When the trial court commented that it was
“strange” that Robins had only recently informed Noell that Crisp had died two
years earlier, Robins stated, “Well, we were trying to keep this within the
settlement range because he was almost there.” The trial court stated, “It sounds
like you were being dishonest with the opposing party,” to which Robins
responded, “Dishonest as opposed to saying, ‘Hey, I think my client is dead.’”
Before calling an end to the hearing, the trial court stated to Robins, “[y]ou were
dishonest.” The trial court then ordered Robins to submit additional briefing
regarding his authority to represent Crisp through Austen Clinkenbeard and stated
that it would strike Crisp’s pleadings if he failed to do so within ten days.
Robins drafted affidavits for both Clinkenbeard brothers stating that probate
was not necessary. But the Clinkenbeards refused to sign because the affidavits
stated that Crisp had no debt. Robins then filed the supplemental briefing ordered
by the trial court. In it, he stated that the case could proceed with Austen
Clinkenbeard as plaintiff and—even though the Clinkenbeard brothers had told
him that they believed Crisp did have outstanding debt—that no probate
proceedings were necessary for Crisp’s estate. Robins also amended Crisp’s
6
petition to add the allegation that no probate proceedings were necessary for
Crisp’s estate.
On October 23, 2017, the trial court signed an order striking Crisp’s
pleadings and awarding Sauls $250 as sanctions, and on February 12, 2018, it
dismissed the case entirely.
The Aftermath
Austen filed a grievance against Robins. The State Bar classified the
grievance as a “Complaint,” and the Commission for Lawyer Discipline filed a
petition in district court asking that Robins be reprimanded, suspended, or
disbarred.
On January 22, 2018, the Clinkenbeards filed suit against Robins for legal
malpractice in Smith County, Texas. Robins was served on or about May 1, 2018.
On March 26, 2018, Robins filed suit against the Clinkenbeards in Harris
County, Texas, alleging violations of the Texas Uniform Fraudulent Transfer Act.
See TEX. BUS. & COM. CODE ANN. §§ 24.001–.013. Specifically, he alleged that
Crisp’s transfer of her lake house to her sons caused her to become insolvent,
“which was done to the detriment of the legal endeavor that [Crisp] initiated with
Plaintiff Robins in which she ultimately ceased participation.” He further alleged
that Crisp “arranged the asset transfer” in a way that made the Clinkenbeards
“want to abandon [her] cause of action” that she “very much wanted to have
7
pursued, as did the [Clinkenbeards] until they surprisingly changed their minds,
post-transfer.”
The Clinkenbeards dismissed the Smith County case, and on September 21,
2018, asserted “the exact same” legal malpractice claim as a counterclaim in
Robins’s Harris County suit against them. They alleged that Robins engaged in
malpractice by:
• providing unreasonable advice, including by stating that he “would
not be surprised if the jury awards . . . in excess of $63K” on a
$6,893.21 check insufficiency claim;
• putting his own interests ahead of those of his clients, including by
creating a situation in which the Clinkenbeards’ action “was not in
[Robins’s] best interest to try to resolve unless and until he was
offered attorneys’ fees” by Sauls, the defendant in that case;
• asking them to sign a retainer agreement so he could respond to
discovery to avoid having to attend a sanctions hearing because he did
not “want to have to drive to Tyler” from Houston;
• failing to keep them fully informed “about settlement discussions and
the case proceedings”;
• attempting to collect and threatening to sue them for his attorney’s
fees, contrary to the retainer agreement;
• failing to reasonably pursue the case and causing sanctions to be
assessed;
• causing the case to be dismissed; and
• refusing to turn over the client file.
The Clinkenbeards further alleged that the case could have been resolved
based on Noell’s settlement offer that Robins never communicated to them and
that the trial court could have been properly notified of Crisp’s death and the
8
standing situation could have been resolved, but was not, because of Robins’s
actions.
Robins’s TCPA Motion to Dismiss
On November 12, 2018, Robins filed a TCPA motion to dismiss the
Clinkenbeards’ counterclaim. He argued that the TCPA applies to the malpractice
claim because it is based on, related to, or in response to his exercise of the rights
of free speech, petition, and association. TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(b) (requiring dismissal of legal action if movant shows by preponderance
of evidence that action is based on, relates to, or is in response to movant’s
exercise of right of free speech, petition, or association). He contended that the
malpractice action “impinges on” his “constitutional and other rights under the
TCPA” and “is an intentional drain on Plaintiff Robins’ time and resources, as well
as a bullying maneuver intended to hinder Plaintiff Robins’ rights and abilities to
otherwise cultivate potentially rewarding associations with the general public.”
Robins also argued that the Clinkenbeards could not make a prima facie case for
legal malpractice and, even if they could do so, that he had established valid
defenses to their claim.
The Clinkenbeards’ Prima Facie Case
In their response, the Clinkenbeards argued that Robins did not file his
TCPA motion to dismiss within the 60-day statutory deadline, when counted from
9
the day he was served in the Smith County case. See id. § 27.003(b) (stating that
TCPA motion to dismiss “must be filed not later than the 60th day after the date of
service of the legal action”). The Clinkenbeards also argued that Robins failed to
meet his burden to show by a preponderance of the evidence that the TCPA applies
because their malpractice cause of action complains about Robins’s
misrepresentations to them, not his exercise of First Amendment rights, and the
misrepresentations Robins made to them are exempt from the TCPA under the
commercial speech exemption. See id. § 27.005(b) (stating that court shall dismiss
legal action if movant shows by preponderance of evidence that legal action is
based on, relates to, or is in response to movant’s exercise of right of free speech,
petition, or association); id. § 27.010(b) (exempting from TCPA legal actions
brought against person primarily engaged in business of selling or leasing goods or
services if statement or conduct arises out of sale or lease of goods, services, or
insurance product, insurance services, or commercial transaction in which intended
audience is actual or potential buyer or customer). Finally, they attached evidence
which they argued established a prima facie case for each element of their
malpractice claim, including Austen’s and Jon’s affidivits, which themselves
attached exhibits including several email conversations they had had with Robins,
Noell’s affidavit, a transcript of the September 18, 2017 hearing before the trial
10
court in the Crisp case, and the Commission’s disciplinary petition filed against
Robins.
The Clinkenbeards’ Affidavits
The Clinkenbeards stated in their affidavits that, after they informed Robins
of their mother’s death, he began urging them to continue with the litigation. In
one email, which they attached as an exhibit, Robins remarked, “I want to get you
guys the biggest award realistically obtainable, but I need to balance that with how
law school’s painfully expensive,” and he stated that he “still owes considerably
more because the greedy feds charge such a high premium for student loans . . . .”
And in another email, also attached as an exhibit, Robins stated, “billing Sauls for
my several dozen (and growing) hours of attorney time . . . naturally remains a
priority for me . . . . The . . . cost of law school helps make that understandable.”
A few days before the June 29, 2017 sanctions hearing was to occur, Robins
sent an email to the Clinkenbeard brothers asking them to execute retainer
agreements so that he could continue the Crisp litigation as their lawyer and stating
that he “would not be surprised if the jury awards [them] in excess of $63k” on
Crisp’s claim against Sauls. In the email, he acknowledged that neither the court
nor opposing counsel was aware of Crisp’s death, and he stated that if the
Clinkenbeards signed the retainer agreements, he might be able to avoid monetary
sanctions at the upcoming hearing.
11
When the Clinkenbeard brothers told Robins that they could not afford to
pay “any expenses or fees up-front,” Robins assured them that “Mr. Sauls would
eventually pay all of that.” He continued to advise them not to settle the case and
“would press [them] to continue litigation in court.” Only after they signed the
retainer agreement did Robins tell them that he had received a settlement offer for
the full amount of the bounced checks, and only recently—in the course of
discovery in the underlying malpractice suit against Robins—did they learn that
Noell had made another offer to settle “for the amount of the check plus $2,500,”
which was “also apparently declined by Mr. Robins without consulting” the
Clinkenbeards.
Austen attended the September 18 hearing in the Crisp litigation. That
morning, Robins “began panicking because he had not brought the necessary
documents and he pleaded that [Austen] print out over a hundred pages of
documents at [his] hotel.” Robins “appeared to be completely unprepared,” and
Austen was “bothered” by what he observed at the hearing.” Robins “ranted and
raved and the judge admonished his behavior several times,” and “the judge
seemed to be mad at [Robins] about not promptly telling the court that [Crisp] had
died in 2015.” Austen further observed Robins “say on the record at a hearing in
court that he had no probate experience and had only filed the suit in county court
12
to save money.” After the hearing, Austen “realized there might be more going on
in the case” than Robins had disclosed.
Robins pressured Austen and Jon to sign the affidavits of heirship stating
that no probate proceedings were necessary. They sent an email to Robins
declining to sign the affidavits and explaining that Crisp did “have debt to the
nursing home she was in at the time of her passing and . . . to medicaid/care.” They
closed the email by asking Robins for a copy of their client file. But Robins did not
comply.
The Clinkenbeard brothers sent Robins another email, stating that they were
“not comfortable swearing to such a bold claim” that Crisp had no pending claims
against her or any assets. They also expressed concern that the exact date Robins
had learned of Crisp’s death “was clearly such a sensitive issue with the judge last
week,” and they stated that they “no longer wish to pursue this matter” on their
mother’s behalf because, while their “motivations have not
changed . . . circumstances and feelings about this case certainly have.” The email
concluded with another request to see the client file.
Shortly thereafter, Austen and Jon spoke with Robins over the phone about
the case generally and the affidavits Robins wanted them to sign. They averred that
Robins was “very rude and insulting to us and to our late mother, who he said had
been a burden to him and the state.” They emailed Robins later that day, stating
13
I’m very upset with how that call went. Neither Austen or I have ever
done anything to impede this trial nor have we claimed we wouldn’t
help. We simply can’t sign the affidavits as-is . . . . I don’t think that’s
any reason for threats and insinuating that our mother was and is a
burden to you and the state.
The email also reiterated the brothers’ request to see their file.
Robins responded with a scathing email accusing the Clinkenbeard brothers
of defrauding and betraying him and threatening to sue them for breach of the
retainer agreement. He wrote, “I cannot recall when I last witnessed such a display
of solipsistic callousness by two privileged young men such as yourselves.” As to
their requests to see their file, which he described as harassment, Robins stated that
although the brothers were in no position to “further mistreat” him or to “demand
repeated compliance,” their “questions and requests have been adequately
addressed in prior correspondence.”
On October 20, 2017, the Clinkenbeard brothers sent Robins an email
terminating their relationship and, once again, demanding their file. In it, Austen
stated,
After my assistance and travels to the court in Tyler, and witness of
your courtroom performance, after repeated dismissals of
conversations for potential settlement options, after repeated disregard
for written requests for our case file, and after the deterioration of
your communications with us, this matter has become one that we no
longer wish to pursue with you.
14
Robins never sent the file. Instead, he began to demand attorney’s fees from
the Clinkenbeards, which surprised them “because [Robins] had always said he
would get paid his fees from Mr. Sauls.”
Other Evidence of Malpractice
The Clinkenbeards included Noell’s affidavit with their response to Robins’s
TCPA motion to dismiss. In it, Noell recounted his experiences with Robins over
the course of the litigation and stated that he incurred fees in representing Sauls for
“engaging in futile settlement negotiations (since Mr. Robins had no client to
consult about the settlement); appearing at a futile trial setting in April 2017 (since
Mr. Robins had no client); drafting and sending futile discovery requests (that
could never be answered or sworn-to by Ms. Crisp); trying to arrange for a futile
deposition; and preparing my client’s case for trial.”
The Clinkenbeards also attached the transcript from the September 18
hearing at which the trial court stated that Robins was “dishonest” for having
withheld the fact of Crisp’s death from opposing counsel.
Finally, the Clinkenbeards attached the Commission’s disciplinary petition,
which alleged that Robins “took no immediate action to notify the court or Sauls’
counsel of Crisp’s death,” “never advised [the Clinkenbeards] that there could be a
problem with the case because there was no probate case or estate representative,”
“did not have authority to bring the suit on Crisp’s behalf,” “did not give the
15
Clinkenbeards’ their file,” and “demanded that they pay his attorney’s fees and
expenses, which was contrary to the retainer agreement.” The petition alleged that
this conduct violated the Texas Disciplinary Rules of Professional Conduct. See
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.15(d), reprinted in TEX. GOV’T
CODE ANN., tit. 2, subtit. G, app. A (TEX. STATE BAR R. art. X, § 9) (requiring
lawyer to surrender client’s “papers and property” to client upon termination of
representation); id. 3.01 (prohibiting lawyer from filing frivolous case); id. 3.02
(prohibiting lawyer from taking position that causes unreasonable increase in costs
or delay); id. 3.03(a)(2) (stating that lawyer may not “fail to disclose a fact to a
tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent
act”); id. 8.04(a)(3) (prohibiting lawyer from engaging in dishonest, fraudulent, or
deceitful conduct or misrepresentations).
In his reply, Robins argued that his TCPA motion to dismiss was timely
filed because the 60-day deadline to file began to run on the date the Clinkenbeards
filed their counterclaim in the underlying suit, not when they filed their suit against
him in Smith County, because the retainer agreement contained a forum selection
clause that required them to bring suit in Harris County. He also argued that the
Clinkenbeards failed to carry their burden to present clear and specific evidence of
a prima facie case for each element of their malpractice claim for several reasons.
First, their affidavit evidence was defective because it contained hearsay, was
16
“unsworn under penalty of perjury,” and did not “detail [affiants’] criminal
records.” Second, they failed to provide expert testimony. And third, Robins
argued, and included twenty-seven exhibits to show, that (1) he had Crisp’s
permission to file the suit against Sauls; (2) his “tentative opining” to the
Clinkenbeards about “possible financial recoveries from a jury was not
malpractice”; (3) he did tell the Clinkenbeards that Crisp’s case would be harmed
by their “refusal to provide an affidavit of heirship”; (4) he “coped with difficult
circumstances” when he appeared at the September 18, 2017 hearing; and (5) the
Clinkenbeards were aware of Noell’s settlement offers.
On January 14, 2019, after two hearings, the trial court denied Robins’s
motion to dismiss without stating the grounds upon which it relied. Robins appeals
this order.
Texas Citizen’s Participation Act
A. Standard of Review
We review de novo the denial of a TCPA motion to dismiss. Dolcefino v.
Cypress Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.] 2017,
no pet.). In determining whether to grant or deny a TCPA motion to dismiss, the
court must consider “the pleadings 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). We view the evidence in the light most favorable to the
17
nonmovant. Dolcefino, 540 S.W.3d at 199; see Cheniere Energy, Inc. v. Lotfi, 449
S.W.3d 210, 214 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
B. TCPA Statutory Scheme
The TCPA was enacted to safeguard the constitutional rights to petition,
speak freely, associate freely, “and otherwise participate in government” from
infringement by meritless lawsuits. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.002. To achieve this purpose, the TCPA provides for dismissal if the movant
shows by a preponderance of the evidence that a legal action filed against it is
based on, relates to, or is in response to the moving party’s exercise of the right of
free speech, the right to petition, or the right of association. Id. § 27.005(b).
If the movant meets this burden, the trial court must dismiss the action
unless the nonmovant establishes by “clear and specific evidence a prima facie
case for each essential element of the claim in question.” Id. § 27.005(c); In re
Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding) (“In reviewing [a
TCPA motion to dismiss], the trial court is directed to dismiss the suit unless ‘clear
and specific evidence’ establishes the plaintiffs’ ‘prima facie case.’”) (citing TEX.
CIV. PRAC. & REM. CODE ANN. § 27.005(c)).
Once a TCPA nonmovant establishes a prima facie case for its claim, the
movant may still obtain a dismissal of the legal action if it “establishes by a
18
preponderance of the evidence each essential element of a valid defense to the
nonmovant’s claim.”3 TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d).
C. Timeliness of Motion
We begin by addressing the Clinkenbeards’ contention that the trial court did
not err in denying Robins’s TCPA motion to dismiss because it was untimely filed.
Absent leave of court for good cause, a TCPA motion to dismiss “must be
filed not later than the 60th day after the date of service of the legal action.” Id.
§ 27.003(b). The clock for the 60-day filing deadline begins to run “on the date on
which [movant] was served with the first pleading alleging a cause of action
against [it].” Bacharach v. Garcia, 485 S.W.3d 600, 602 (Tex. App.—Houston
[14th Dist.] 2016, no pet.); accord Jordan v. Hall, 510 S.W.3d 194, 197–98 (Tex.
App.—Houston [1st Dist.] 2016, no pet.).
The Clinkenbeards argue that the first pleading in which they asserted their
legal malpractice claim against Robins was the petition they filed in their original
suit in Smith County, which they later dismissed. They contend that because
Robins was served on or about May 1, 2018, in the Smith County suit, he had only
until June 30, 2018, to file his TCPA motion to dismiss in this Harris County suit,
3
The amended TCPA requires dismissal of the underlying suit if the moving party
“establishes an affirmative defense or other grounds on which the moving party is
entitled to judgment as a matter of law.” See Act of May 17, 2019, 86th Leg., R.S.,
ch. 378, §§ 1–12, 2019 Tex. Sess. Law Serv. 684, 684–87(codified at TEX. CIV.
PRAC. & REM. CODE ANN. § 27.005(d)).
19
and his November 12, 2018 filing was therefore untimely. The Clinkenbeards rely
on the rule that subsequent filings asserting the same claim do not extend the
TCPA deadline. See Jordan, 510 S.W.3d at 198 (“[T]he deadline for a TCPA
motion is not reset when a plaintiff files an amended petition that adds no new
claims and relies upon the same factual allegations underlying an original
petition.”). They argue that this rule reaches beyond the confines of the case in
which the TCPA motion to dismiss is filed, such that the 60-day deadline begins to
run on the date a defendant is served in a separate proceeding, including in another
case, in another court, in a different county, as long as the claims are the same. We
disagree and hold that the deadline for Robins to file his TCPA motion to dismiss
was 60 days after he was served in this case, in Harris County. See Walker v.
Hartman, 516 S.W.3d 71, 79 (Tex. App.—Beaumont 2017, pet. denied) (holding
that 60-day deadline for filing TCPA motion to dismiss began to run when movant
was served with legal action in state court, not when he was served with earlier-
filed case in federal court; “a common nucleus of operative facts” does not make
subsequent lawsuit filed in different court “tantamount to the lawsuit previously
filed”). Because the Clinkenbeards have not shown that Robins’s TCPA motion to
dismiss was filed outside the 60-day deadline, we cannot affirm the trial court’s
denial of the motion on that basis.
20
D. Prima Facie Case
In his second issue, Robins argues that the Clinkenbeards failed to carry
their burden to establish a prima facie case for legal malpractice by clear and
specific evidence because the affidavits they provided are conclusory, contain
hearsay, and are otherwise defective; the Commission’s petition should not be
considered because is not probative of Robins’s alleged malpractice; and the
Clinkenbeards failed to provide expert testimony.4
Under TCPA section 27.005(c), the trial court may not dismiss if the
plaintiff 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). In this context, the Texas Supreme Court has clarified that “clear”
means “‘unambiguous,’ ‘sure,’ or ‘free from doubt’” and “specific” means
“‘explicit’ or ‘relating to a particular named thing.’” See In re Lipsky, 460 S.W.3d
at 590 (quoting KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied)). “[P]rima facie case” means
“evidence sufficient as a matter of law to establish a given fact if it is not rebutted
or contradicted.” Id. In other words, a prima facie case is the “minimum quantum
of evidence necessary to support a rational inference that the allegation of fact is
4
Due to our disposition of Robins’s second issue, we need not address his first
issue, in which he challenges the applicability of the TCPA to the Clinkenbeards’
claims. See TEX. R. APP. P. 47.1 (stating that appellate court opinions should be as
brief as practicable in addressing only issues necessary to final disposition).
21
true.” Id. (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223
(Tex. 2004) (per curiam)); see also Universal Plant Servs., Inc. v. Dresser-Rand
Grp., Inc., 571 S.W.3d 346, 359 (Tex. App.—Houston [1st Dist.] 2018, no pet.)
(“The TCPA requires only that evidence be ‘clear,’ ‘specific,’ and ‘sufficient as a
matter of law to establish a given fact if it is not rebutted or contradicted.’”)
(quoting In re Lipsky, 460 S.W.3d at 590).
The Clinkenbeards’ petition alleges that Robins committed legal
malpractice. To recover on a claim for malpractice, a client must establish: (1) the
attorney owed a duty of care to the client; (2) the attorney breached that duty; and
(3) the attorney’s breach proximately caused damage to the client. Rogers v.
Zanetti, 518 S.W.3d 394, 400 (Tex. 2017).
The first element of malpractice is not at issue, as Robins concedes that he
was the Clinkenbeards’ attorney. Robins therefore owed the Clinkenbeards a duty
to act with ordinary care, i.e., in a manner consistent with the standard of care
expected to be exercised by a reasonably prudent attorney. See Cosgrove v.
Grimes, 774 S.W.2d 662, 664 (Tex. 1989).
As to the second element, breach of the duty of care, the Clinkenbeards’
counterclaim alleged with detail that Robins engaged in malpractice by providing
unreasonable advice, for instance, in encouraging them to continue litigating a
$6,893.21 bounced check claim with the reasonable expectation of a jury award “in
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excess of $63K”; putting his own interests ahead of his clients’ by, for example,
creating a situation in which it was not in his best interest to resolve his clients’
action unless he was offered attorneys’ fees; failing to keep his clients fully
informed about settlement discussions and the case proceedings, such as by
neglecting to tell them about Noell’s settlement offers and failing to inform them
about the issues regarding his authority to bring the suit; attempting to collect and
threatening to sue his clients for fees they were not responsible for paying under
their retainer agreement; causing sanctions and dismissal of his clients’ case; and
refusing to turn over the client file.
Additionally, the Clinkenbeards provided three affidavits—one from each of
the two Clinkenbeard brothers and one from attorney Noell. The affidavits, which
are supported by exhibits including emails between Robins and the Clinkenbeards,
identify numerous specific instances of Robins’s alleged misconduct.
The record also contains a transcript of the “botched” September 18, 2017
hearing on the motion to show authority in the Crisp litigation, in which the trial
court “concluded that Robins acted without authority and was dishonest with the
Court and opposing counsel,” and the Commission’s disciplinary petition alleging
professional misconduct, which the Clinkenbeards argue is evidence that the State
Bar of Texas found Robins’s conduct to have been “so extreme and outrageous that
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it is seeking to disbar him for multiple violations of the rules of professional
conduct.”
The legal malpractice counterclaim, affidavits, emails, hearing transcript,
and disciplinary petition together provide clear and specific evidence of Robins’s
negligent conduct, including evidence of Robins’s failure to:
• confirm that Crisp was still alive before filing suit in her name;
• consult with the Clinkenbeards regarding authority before filing
Crisp’s suit;
• obtain authority prior to rejecting multiple settlement offers;
• advise the Clinkenbeards regarding the necessity of probating
Crisp’s estate in order to advance her claim against Sauls;
• inform the Clinkenbeards realistically regarding the amount of
money they could recover;
• prepare for a hearing on a dispositive motion to dismiss for lack
of authority;
• take the necessary steps and to advise the Clinkenbeards
regarding those steps to correct the lack of authority, despite
repeated warnings from the trial court; and
• turn over the Clinkenbeards’ client file despite their repeated
requests.
See In re Lipsky, STANDARD FOR PFC
With regard to the third element of a malpractice claim combining proximate
cause and damages, the Clinkenbeards’ petition states that the litigation against
Sauls “could have been resolved based on Mr. Sauls’ settlement offer” for the full
amount of the bounced checks. See Rogers, 518 S.W.3d at 400 (listing proximate
cause and damages as third element of legal malpractice claim). And the evidence
shows that Robins unilaterally rejected two settlement offers, including one for the
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full amount plus $2,500 for attorney’s fees and loss of use. As a result of Robins’s
failure to show his authority, the Clinkenbeards’ pleadings were stricken, their case
was dismissed, and they ultimately recovered nothing.
Having reviewed the evidence, we conclude that the Clinkenbeards met their
burden to establish by clear and specific evidence a prima facie case for each
element of their legal malpractice claim. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(c).
Robins responds by challenging the Clinkenbeards’ evidence. First, he
argues that the Clinkenbeards’ and Noell’s affidavits are “[p]lagued with mere
conclusory accusations and other statements.” See Better Bus. Bureau of Metro.
Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 355 (Tex. App.—Houston
[1st Dist.] 2013, pet. denied) (“Conclusory statements are not probative and
accordingly will not suffice to establish a prima facie case.”); see also TEX. CIV.
PRAC. & REM. CODE ANN. § 27.006(a) (stating that in ruling on TCPA motion to
dismiss, courts must consider affidavits that “stat[e] the facts on which the liability
or defense is based”); In re Lipsky, 460 S.W.3d at 592 (explaining that “[b]are,
baseless opinions” are not “a sufficient substitute for the clear and specific
evidence required to establish a prima facie case” under TCPA). But Robins does
not identify which statements in the affidavits he contends are conclusory. See
TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for
25
the contentions made, with appropriate citations to authorities and to the record.”).
He therefore presents nothing for review under this argument. See Churchill v.
Mayo, 224 S.W.3d 340, 347 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)
(holding that brief that “fails to identify which statements in the affidavit are
defective” is inadequate under Rules of Appellate Procedure); see also Pouncy-
Pittman v. Pappadeaux Seafood Kitchen, No. 01-07-00575-CV, 2008 WL
2930183, at *8 (Tex. App.—Houston [1st Dist.] July 31, 2008, no pet.) (mem. op.)
(holding that appellant waived issue challenging affidavit as conclusory by failing
to specify which statements were conclusory or without support).
Robins next argues that the affidavits contain “completely undetailed
hearsay about what Appellant Robins supposedly said (but in fact never said…),”
are “unsworn under penalty of perjury,” and fail to “detail the affiants’ criminal
records.” Here again, Robins does not identify which statements he contends are
hearsay or provide any analysis or authority to show why they are inadmissible,
nor does he identify any authority for his assertion that the affiants were required
to detail their criminal records or that they were improperly notarized.
Accordingly, he has waived these arguments on appeal. See TEX. R. APP. P. 38.1(i)
(“The brief must contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record.”); see also Thomann v.
Lakes Reg’l MHMR Ctr., 162 S.W.3d 788, 794 (Tex. App.—Dallas 2005, no pet.)
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(“A general directive to review affidavits for hearsay and impermissible
conclusions is not sufficient to direct our attention to the error about which
[appellant] complains.”).
Additionally, because these objections are to form, not substance, Robins
was required to preserve them in the trial court. See Seim v. Allstate Tex. Lloyds,
551 S.W.3d 161, 166 (Tex. 2018) (holding that objections to affidavit that it (1)
stated that facts in affidavit were true instead of stating that facts in expert’s reports
were true, (2) lacked notary’s signature, and (3) did not attach reports, were
objections to affidavit’s form, rather than substance, and therefore subject to error
preservation rule that required trial court’s ruling on objections); see also TEX. R.
APP. P. 33.1(a)(2)(A) (stating that to preserve error, record must show that trial
court ruled on objection or, if it refused to rule, that complaining party objected to
refusal to rule). Although Robins did broadly raise his hearsay, “unsworn under
penalty of perjury,” and failure to “detail the affiants’ criminal records” objections
in his reply in support of his TCPA motion to dismiss, the record does not reflect
that the trial court ruled on the objections. Therefore, Robins failed to preserve
them for our review. See Deuell v. Tex. Right to Life Comm., Inc., 508 S.W.3d 679,
688 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (holding, in affirming
denial of TCPA motion to dismiss, that appellant failed to preserve complaint that
appellee’s evidence of prima facie case constituted hearsay because appellant
27
failed to obtain ruling on objection); Schmitz v. Cox, No. 01-15-00199-CV, 2015
WL 6755427, at *3 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015, no pet.) (mem.
op.) (holding that TCPA movant’s failure to object and obtain ruling waived
complaint that nonmovant’s affidavit evidence of prima facie case was deficient
for lack of personal knowledge).
Robins next objects to the Clinkenbeards’ use of the Commission’s
professional misconduct petition as evidence of malpractice. He argues that the
petition, which the Commission filed after having determined that the
Clinkenbeards’ grievance merited pursuing, “is entitled to no weight in resolving a
related civil case as the Bar still has the burden to prove its case by a
preponderance of the evidence.” See TEX. RULES DISCIPLINARY P. R. 3.08(C),
reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A-1 (TEX. STATE BAR R.
art. X, § 9) (“Disciplinary Actions must be proved by a preponderance of the
evidence.”). Again, Robins fails to provide any authority for this argument, and so
we do not consider it. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear
and concise argument for the contentions made, with appropriate citations to
authorities and to the record.”). In any event, the Commission’s petition was based
on the Clinkenbeards’ grievance over the same conduct by Robins, and their
factual allegations are nearly identical. Consequently, any evidence gleaned from
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the Commission’s petition is largely duplicative of that contained in the
Clinkenbeards’ petition.
Finally, Robins argues that the Clinkenbeards “lack any expert witness
testimonial affidavits to purportedly back their allegations of legal malpractice.”5
Although Robins made this objection to the trial court in his reply brief supporting
his TCPA motion to dismiss, the record does not reflect that he obtained a ruling
on it. See In re A.J.H., No. 14-03-01016-CV, 2004 WL 414093, at *5 n.3 (Tex.
App.—Houston [14th Dist.] Mar. 2, 2004, no pet.) (mem. op.) (holding that, in
challenge to sufficiency of evidence based on lack of expert testimony, failure to
object to testimony of witnesses on basis that they were not qualified as experts to
render their opinions waived complaint on appeal) (citing TEX. R. APP. P. 33.1(a)).
Further, Robins fails to cite any authority indicating that expert testimony
was required under these circumstances. See TEX. R. APP. P. 38.1(i) (“The brief
must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.”); see also, e.g., In re A.L.B.,
No. 01-17-00547-CV, 2017 WL 6519969, at *6 n.4 (Tex. App.—Houston [1st
5
Robins also states, “It is worth noting that in order to prove an action for legal
malpractice, the [Clinkenbeards] must establish that they suffered damages,” and
he avers that he has “successfully managed to recover a replacement of the
previously bounced check . . . which had previously necessitated the underlying
lawsuit.” There is no evidence of this replacement check in the record. We
therefore do not consider Robins’s apparent argument based upon the check, i.e.,
that the Clinkenbeards have failed to carry their TCPA burden to show a prima
facie case of damages, an element of their malpractice claim against him.
29
Dist.] Dec. 21, 2017, no pet.) (mem. op.) (holding that complaint that drug test
evidence could not be considered without expert witness testimony was waived for
failure to raise objection in trial court and for inadequate briefing where appellant
did not provide “authority indicating that expert testimony was required under
these circumstances”). Robins does not provide any authority for his assertion that
establishing clear and specific evidence of a prima facie case requires expert
testimony. Cf. Moldovan v. Polito, No. 05-15-01052-CV, 2016 WL 4131890, at
*15 (Tex. App.—Dallas Aug. 2, 2016, no pet.) (mem. op.) (holding that because
“clear and specific evidence” means “enough detail to show the factual basis for
[plaintiff’s] claim,” lack of expert testimony on damages “is not fatal to
[nonmovant]’s prima facie case”) (quoting In re Lipsky, 460 S.W.3d at 590). And
the text of the TCPA states no such requirement. Cf. TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351 (requiring plaintiff asserting health care liability claim to serve
statutorily sufficient expert report to avoid dismissal). And requiring a party to
present expert testimony to avoid dismissal so early in the life of a lawsuit, in most
cases before discovery has even begun, would be inconsistent with the Texas Rules
of Civil Procedure, which generally do not require disclosure of experts until 90
days before the end of the discovery period. Compare TEX. CIV. PRAC. & REM.
CODE ANN. § 27.003(b) (stating that deadline to file TCPA motion to dismiss is 60
days after service of legal action), with TEX. R. CIV. P. 195.2(a) (requiring parties
30
seeking affirmative relief to designate experts 90 days before end of discovery
period or 30 days after served with request, “[u]nless otherwise ordered by the
court”).
Finally, requiring a nonmovant to provide expert testimony to defeat
dismissal of his claims at the TCPA stage asks more of him than the Texas
Supreme Court has held his burden to be: to provide a “minimum quantum” of
clear and specific evidence to support a rational inference that his allegations of
fact are true on each element of each claim. See In re Lipsky, 460 S.W.3d at 590. In
any event, expert testimony is not always necessary for a plaintiff to prevail on a
legal malpractice claim. See Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113,
119 (Tex. 2004) (holding that although expert witness testimony is required in
legal malpractice cases when causal link is “beyond the jury’s common
understanding,” “[i]n some cases the client’s testimony may provide this link”).
Because all of Robins’s challenges to the Clinkenbeards’ prima facie case
are unpreserved or inadequately briefed, we conclude that he has not presented
grounds for reversal of the trial court’s implied finding that the Clinkenbeards
carried their TCPA burden to establish a prima facie case for legal malpractice by
clear and specific evidence. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c)
(stating that court may not grant TCPA motion to dismiss if nonmovant establishes
31
by clear and specific evidence prima facie case for each essential element of
claim).
We overrule Robins’s second issue.
E. Defenses
In his third issue, Robins argues that he is entitled to dismissal under the
TCPA because he established by a preponderance of the evidence each essential
element of valid defenses to the Clinkenbeards’ malpractice claim. See id.
§ 27.005(d) (stating that once TCPA nonmovant establishes prima facie case for its
claim, movant may still obtain dismissal by establishing by preponderance of
evidence each essential element of valid defense to nonmovant’s claim).
Specifically, he asserts that (1) he did have Crisp’s permission to file the suit
against Sauls; (2) his “expressly tentative opining” to the Clinkenbeards about the
recovery they could expect from Crisp’s case “was candor, not malpractice”; (3) he
did tell the Clinkenbeards that Crisp’s case would be harmed if they did not sign
the proposed affidavits of heirship; (4) he “coped with difficult circumstances”
when he appeared at the September 18, 2017 hearing; and (5) the Clinkenbeards
were aware of Noell’s settlement offers.
This catalogue of assertions fails to identify a “valid defense” to the
Clinkenbeards’ legal malpractice claim. See id. These assertions are more in the
nature of rebuttal to the Clinkenbeard’s prima facia case, and four of the five
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assertions merely dispute the Clinkenbeards’ facts. Because we only consider the
Clinkenbeards’ evidence in determining whether they met their burden of
establishing a prima facie case under the TCPA, we do not consider these factual
assertions or the evidence Robins claims support them. See West v. Quintanilla,
573 S.W.3d 237, 243 n.9 (Tex. 2019) (“[Movant] vigorously disputes many of
[nonmovant]’s factual allegations, but at this point we must decide only whether
[nonmovant] has established a prima facie case by clear and specific evidence.
Prima facie evidence is merely the minimum quantum of evidence necessary to
support a rational inference that the allegation of fact is true. A finding that
[nonmovant] has met his TCPA burden does not establish that his allegations are
true.” (quotations omitted)); D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d
429, 440 n.9 (Tex. 2017) (refusing to consider TCPA movant’s rebuttal evidence in
determining whether nonmovant established prima facie case, stating that although
movant “disputes [nonmovant’s factual assertion] . . . at this stage of the
proceedings we assume its truth”).
The only item on Robins’s list of “defenses” that is not a factual assertion
challenging the Clinkenbeards’ prima facie case is the second, concerning his
comment to the Clinkenbeards regarding the amount of money they could recover
on Crisp’s bounced-check claim. Robins argues that this comment does not
constitute malpractice because the retainer agreement “makes it sufficiently clear”
33
that he “does not guarantee the outcome of the trial” and his comment “by no
means states as a fact what the jury outcome would be.” Even construing this as an
argument that the Clinkenbeards’ allegations, taken as true, are insufficient as a
matter of law to support a malpractice claim, we do not consider it because Robins
has not provided any analysis or authority to support it. See TEX. R. APP. P. 38.1(i)
(“The brief must contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record.”).
We overrule Robins’s third issue.
Conclusion
We affirm the trial court’s order denying Robins’s TCPA motion to dismiss.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Goodman, and Countiss.
34