Caleb Moore and the Law Firm of Caleb Moore, PLLC v. Anson Financial, Inc.

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-19-00201-CV
___________________________

CALEB MOORE AND THE LAW FIRM OF CALEB MOORE, PLLC, Appellant

V.

ANSON FINANCIAL, INC.

On Appeal from County Court at Law No. 3
Tarrant County, Texas
Trial Court No. 2019-001471-3

Before Birdwell, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Birdwell
 MEMORANDUM OPINION

A lawyer and his law firm have appealed the denial of their motion to dismiss

under the Texas Citizens Participation Act (“TCPA”). We hold that they have

established both requisites for dismissal: that this suit is based on their exercise of the

protected right to petition and that they are entitled to the defense of attorney

immunity. We therefore reverse and remand for dismissal and a determination of

attorneys’ fees, costs, and any other appropriate relief.

I. BACKGROUND

While this case has a complicated procedural history involving suits,

countersuits, and appeals that stretch across at least five different courts, there are

only a few central players, all of whom are attorneys and their businesses. The first is

Michael Ferguson and his lending firm, appellee Anson Financial, Inc. (collectively,

“Anson”). The second is an attorney who worked for Anson, Ian Ghrist. According

to Ghrist’s affidavit, he helped Anson with multiple suits during the two years he

worked there, and in one suit, Anson obtained a judgment for a sizeable portfolio of

assets. Ghrist and Anson reached an agreement about how to split the assets, but

Ghrist insisted that Anson never gave him his share. Ghrist left the firm in 2015 and

looked for representation to sue Anson.

2
 Enter the third player, Caleb Moore and his law firm, who are the appellants

here (collectively, “Moore”). 1 Moore represented Ghrist in his suit against Anson in

the 17th District Court. Anson moved to disqualify Moore, but the motion was

denied. Ultimately, Moore won Ghrist a judgment for over $300,000, which is on

appeal before this court in another case.2

The conflict touched off other proceedings involving Anson, Ghrist, and

Moore which form the backdrop for this litigation. In one suit, Anson brought a

variety of claims against Ghrist and related entities in the 141st District Court, though

Ghrist obtained a partial summary judgment on all but one of these claims. In

another proceeding, Anson filed a grievance against Ghrist, which was denied. In still

another suit, this time before the 342nd District Court, Moore represented certain

third parties against Anson. Anson again moved to disqualify Moore, and as before,

the motion was denied, and the suit apparently remains ongoing.

In early 2019, Anson resorted to filing this suit against Moore in County Court

at Law Number 3. Anson’s theory was that Moore was in a civil conspiracy to help

Ghrist breach his fiduciary duty as Anson’s former attorney. Anson alleged that

through the conspiracy, Moore was helping Ghrist harm Anson in multiple ways.

First, Ghrist had allegedly given Moore confidential information about Anson’s inner

1
For ease of reference, we use neuter pronouns to refer to Anson and
masculine pronouns to refer to Moore.
2
The appeal is pending in cause number 02-18-00332-CV.

3
workings, and Moore was exploiting that information when he represented third

parties against Anson. Second, Anson claimed that even though it was Moore who

purportedly represented the third parties, there was evidence showing that Ghrist, not

Moore, had drafted the third party’s petition and briefs, in violation of conflict rules.

Third, Anson produced emails showing that Moore was consulting with still other

third parties about suing Anson, and in those emails, Moore reported that Ghrist was

excited about the prospect of bringing in more parties to attack Anson. Anson argued

that by helping Ghrist cause more litigation for and harm to Anson, in breach of

Ghrist’s fiduciary duty, Moore was liable for the breach as a conspirator.

Shortly after Anson filed its petition, Moore filed a motion to dismiss the cause

under the TCPA. Moore maintained that Anson’s suit trenched on Moore’s protected

rights, including the right to petition. Among other things, Moore also argued that he

had carried his burden to establish a defense to Anson’s suit—attorney immunity—

and that Anson’s suit should therefore be dismissed with prejudice. The trial court

denied the motion. This appeal followed.3

3
Before the TCPA motion was decided, Anson nonsuited all its claims.
However, the nonsuit does not prevent us from considering the merits of the motion.
Though a plaintiff decides which of its own claims to pursue or to abandon, that
decision does not control the fate of a nonmoving party’s independent claims for
affirmative relief. Rauhauser v. McGibney, 508 S.W.3d 377, 381 (Tex. App.—Fort
Worth 2014, no pet.) (per curiam), disapproved of on other grounds by Hersh v. Tatum, 526
S.W.3d 462 (Tex. 2017). We have held that when a defendant’s TCPA motion seeks
more relief than a simple nonsuit, that motion states independent claims for
affirmative relief which survive a nonsuit. Id. Beyond a nonsuit, Moore seeks

4
 II. DISCUSSION

In his sole issue, Moore challenges the denial of his TCPA motion to dismiss.

Moore asserts that he established all things necessary to prevail on the motion,

including the applicability of the TCPA and a defense—attorney immunity—to

Anson’s action.

The TCPA protects citizens who associate, petition, or speak on matters of

public concern from retaliatory lawsuits that seek to intimidate or silence them. In re

Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). That protection comes in

the form of a special motion to dismiss, subject to expedited review, for any suit that

appears to stifle the defendant’s exercise of those rights. Youngkin v. Hines, 546

S.W.3d 675, 679 (Tex. 2018).

Reviewing a TCPA motion to dismiss requires a three-step analysis. Id. Under

the version of the statute that governs this case,4 the moving party must show, as a

threshold matter and by a preponderance of the evidence, that the TCPA applies to

the suit against it. Id. If the moving party meets that burden, the nonmoving party

dismissal with prejudice, attorneys’ fees, sanctions, and costs. His TCPA motion
therefore survives Anson’s nonsuit.
4
In 2019, the Texas Legislature amended the TCPA but stated that the
amendments applied only to an action filed on or after the effective date of the Act,
September 1, 2019, and that any action filed before that date is governed by the law in
effect before that date. Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex.
Gen. Laws 684, 687. The amendments therefore do not apply to this suit, which was
filed in early 2019, and any discussion of the TCPA herein refers to the former
version of the statute.

5
must establish by clear and specific evidence a prima facie case for each essential

element of its claim. Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c)). If the

nonmovant satisfies that requirement, the burden shifts back to the moving party to

prove each essential element of any valid defenses by a preponderance of the

evidence. Id. at 679–80.

We review a trial court’s ruling on a TCPA motion to dismiss de novo. Beving v.

Beadles, 563 S.W.3d 399, 404 (Tex. App.—Fort Worth 2018, pet. denied). In our

review, we consider the pleadings and any supporting and opposing affidavits. Id.

To begin, we consider the threshold question of whether the TCPA applies to

Anson’s suit. See Youngkin, 546 S.W.3d at 680. A party may invoke the TCPA

dismissal procedure if that party shows by a preponderance of the evidence that the

legal action against it is based on or is in response to a party’s exercise of the right of

free speech, right to petition, or right of association. Id. The exercise of the right to

petition has an “expansive statutory definition” that includes any “communication in

or pertaining to a judicial proceeding.” Id. (cleaned up). “Communication” is also

broadly defined, and it includes the making or submitting of a statement or document

in any form or medium. Id.

The thrust of the suit was that Moore conspired with Ghrist to sue Anson, that

Moore and Ghrist were orchestrating third-party litigation against Anson, and that

Moore was communicating with still other third parties about bringing more litigation

against Anson. Each of these alleged forms of misconduct is a communication in or

6
pertaining to a judicial proceeding. Because Anson’s suit is based on Moore’s exercise

of the right to petition, Moore satisfied his initial burden to show that the TCPA

applies. See id. at 679.

The burden therefore shifted to Anson to establish, by clear and specific

evidence, a prima facie case for its conspiracy claim. See id. We will assume without

deciding that Anson met this burden and that the burden of proof then shifted to

Moore to prove each essential element of a valid defense by a preponderance of the

evidence. See id. at 681 (same approach). Even operating under this assumption, we

nevertheless hold that Moore is entitled to dismissal because he established the

defense of attorney immunity. See id.

As a general rule, attorneys are immune from civil liability to nonclients for

actions taken in connection with representing a client in litigation. Bethel v. Quilling,

Selander, Lownds, Winslett & Moser, PC, No. 18-0595, 2020 WL 938618, at *4 (Tex. Feb.

21, 2020); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). Put

differently, an attorney may be liable to nonclients only for conduct outside the scope

of his representation of his client or for conduct foreign to the duties of a lawyer.

Youngkin, 546 S.W.3d at 681. “An attorney is given latitude to pursue legal rights that

he deems necessary and proper precisely to avoid the inevitable conflict that would

arise if he were forced constantly to balance his own potential exposure against his

7
client’s best interest.”5 Cantey Hanger, 467 S.W.3d at 483 (internal quotation marks

omitted).

The immunity inquiry focuses on the kind of conduct at issue rather than the

alleged wrongfulness of the conduct. Youngkin, 546 S.W.3d at 681. Under this

analysis, a lawyer is no more susceptible to liability for a given action merely because it

is labeled as fraudulent or criminal. Id. Even conduct that is wrongful in the context

of the underlying suit is not actionable if it is part of the discharge of the lawyer’s

duties in representing a client. Cantey Hanger, 467 S.W.3d at 481. Rather, “other

mechanisms are in place to discourage and remedy such conduct, such as sanctions,

contempt, and attorney disciplinary proceedings.” Id. at 482.

The only facts required to support an attorney-immunity defense are the type

of conduct at issue and the existence of an attorney–client relationship at the time.

Youngkin, 546 S.W.3d at 683. A court would then decide the legal question of whether

the conduct was within the scope of representation. Id. The plaintiff’s pleadings are

usually the “best and all-sufficient evidence of the nature of the action.” Hersh v.

Tatum, 526 S.W.3d 462, 467 (Tex. 2017).

5
“Though attorney immunity is broad, it is not limitless.” Youngkin v. Hines, 546
S.W.3d 675, 682 (Tex. 2018). Attorneys are not protected from liability to nonclients
for their actions that do not qualify as the kind of conduct in which an attorney
engages when discharging his duties to his client. Cantey Hanger, LLP v. Byrd, 467
S.W.3d 477, 482 (Tex. 2015). For example, immunity does not apply when an
attorney participates in a fraudulent business scheme with his client, knowingly
facilitates a fraudulent transfer to help his clients avoid paying a judgment, steals
goods or services on a client’s behalf, or assaults opposing counsel during trial.
Youngkin, 546 S.W.3d at 682–83.

8
 In its petition, Anson alleges that Moore engaged in multiple forms of

misconduct while representing Ghrist and various third parties, and this misconduct

demonstrates a civil conspiracy to harm Anson and to breach Ghrist’s fiduciary duty

to Anson as the firm’s former attorney. But looking beyond the labels of misconduct

and conspiracy, each of the complained-of actions is the kind of thing that an attorney

would do in the course of representing a client.

First, Anson refers to a series of emails in which Moore consults with a third

party about the possibility of hiring Moore to sue Anson. In the emails, Moore

explains that his “client” (allegedly Ghrist) is excited about the possibility of third-

party litigation against Anson, stating that “[h]e thinks it would be beneficial to all . . .

the more litigation [Anson] has to deal with.” Anson alleges that these emails firmly

establish a civil conspiracy between Moore and Ghrist. However, at root, these emails

demonstrate two kinds of conduct: (1) conferring with a client before taking on

additional representations, which serves the lawyer’s duty to communicate with the

client, see generally Tex. Disciplinary Rules Prof’l Conduct 1.03, reprinted in Tex. Gov’t

Code Ann., tit. 2, subtit. G app. A; and (2) enlisting a third party to join in the

litigation against an opponent, which would advance the representation by forcing the

opponent to defend on multiple fronts. See Clayton v. Oldcastle Materials Tex., Inc.,

No. 09-18-00063-CV, 2019 WL 6884773, at *6 (Tex. App.—Beaumont Feb. 14, 2019,

no pet.) (mem. op.) (applying attorney immunity to a lawyer’s efforts to drum up

third-party litigation against a defendant); Landry’s, Inc. v. Animal Legal Def. Fund, 566

9
S.W.3d 41, 60 (Tex. App.—Houston [14th Dist.] 2018, pet. filed) (applying attorney

immunity to the waging of a publicity war against defendant at the same time as a

battle in court). Moore did not do these things for his own health; he did them to

advance his clients’ interests. See Johnson v. Ashmore, 681 Fed. App’x 345, 347 (5th Cir.

2017) (per curiam). Both forms of conduct are consistent and connected with the

discharge of Moore’s duties in representing his clients. See Cantey Hanger, 467 S.W.3d

at 481.

Next, Anson says that its former employee Ghrist wrongfully gave Moore

confidential information that Moore is exploiting in multiple suits against Anson.

Again, looking past the label that Anson assigns it, this kind of conduct could fairly be

characterized in a much more neutral light, as is demonstrated by Highland Capital

Management, LP v. Looper Reed & McGraw, PC, No. 05-15-00055-CV, 2016 WL 164528

(Tex. App.—Dallas Jan. 14, 2016, pet. denied) (mem. op.). There, the plaintiff

Highland sued its former employee, and the employee hired a law firm to defend him.

Id. at *1. Highland then brought suit against the law firm itself, alleging that the

former employee had given Highland’s confidential information to the law firm, and

that the law firm was exploiting that information in suits against Highland—much like

Anson alleges here. Id. Highland alleged the law firm reviewed, copied, and analyzed

the “stolen” confidential information in furtherance of its scheme to extort, slander,

and disparage Highland; refused to return and cease use of Highland’s stolen

information; knowingly facilitated the employee’s wrongful disclosure of that

10
information; threatened to disclose the information if its demands were not met; and

engaged in other misdeeds. Id. The reviewing court, however, described the law

firm’s actions in less provocative terms: “acquiring documents from a client that are

the subject of litigation against the client”; “reviewing,” “copying,” and “analyzing the

documents”; “advising a client on a course of action”; and making “demands” on the

client’s behalf. Id. at *6. The Highland court concluded that these were the “kinds of

actions” that were part of an attorney’s duties in representing a client in “hard-fought

litigation.” Id. In the same way, here, the contested actions—which Anson labels as

the wrongful exploitation of its confidential information—could fairly be stated in

much more neutral terms: reviewing critical case information and utilizing that

information to pursue a resolution in favor of a client. Such actions would fall within

the legitimate scope of the representation. See id.

Finally, Anson complains that Ghrist drafted and filed certain documents for

Moore. But the kind of conduct at issue—arranging for an attorney to draft legal

documents for a client—is among the things a lawyer would do for a client, regardless

of its alleged wrongfulness. See Youngkin, 546 S.W.3d at 681. We express no opinion

on whether such a ghostwriting relationship might be fertile ground for another

grievance. It is enough to say that any remedy for this alleged impropriety is a public

one, not a private one. See Cantey Hanger, 467 S.W.3d at 482 (“If an attorney’s conduct

violates his professional responsibility, the remedy is public, not private.”); cf. Russo v.

Adame, No. 02-15-00219-CV, 2016 WL 5957017, at *4 (Tex. App.—Fort Worth

11
Oct. 13, 2016, no pet.) (mem. op.) (quoting Blankinship v. Brown, 399 S.W.3d 303, 311

(Tex. App.—Dallas 2013, pet. denied)) (“The Texas Disciplinary Rules of Professional

Conduct expressly state that a violation of the Code of Professional Responsibility

does not give rise to a private cause of action.”).

Because Moore established (1) that Anson’s action is based on Moore’s exercise

of the right to petition and (2) that the subject of Anson’s suit is conduct that falls

within the scope of Moore’s legal representation of clients, Moore was entitled to

dismissal of Anson’s suit. Moore was also entitled to reasonable attorneys’ fees, costs,

and, under the version of the statute that governs this suit, any appropriate sanctions.

See Rauhauser, 508 S.W.3d at 389 (explaining that these things were “mandatory” under

the former version of the TCPA). We therefore sustain Moore’s sole issue.

III. CONCLUSION

We reverse and remand the matter to the trial court to grant the motion to

dismiss and to determine and award attorneys’ fees, costs, and any appropriate

sanctions.

/s/ Wade Birdwell

Wade Birdwell
Justice

Delivered: March 19, 2020

12