Jules S. Brenner Clark Hill PLC Also Doing Business as Clark Hill Strasburger And Strasburger & Price, LLP v. Centurion Logistics LLC Directly and Derivatively on Behalf of Centurion Pecos Terminal LLC

Affirmed in part, Reversed in part, Rendered in part, and Remanded, and
Opinion Filed December 14, 2020

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00308-CV

JULES S. BRENNER; CLARK HILL PLC ALSO DOING BUSINESS AS
CLARK HILL STRASBURGER; AND STRASBURGER & PRICE, LLP,
Appellants
V.
CENTURION LOGISTICS LLC DIRECTLY AND DERIVATIVELY ON
BEHALF OF CENTURION PECOS TERMINAL LLC, Appellee

On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-15964

MEMORANDUM OPINION

Before Justices Whitehill, Schenck, and Browning
Opinion by Justice Whitehill

Appellee Centurion Logistics LLC sued appellants, its former lawyer and his

law firm,1 for fiduciary breach, alleging that they worked against Centurion

Logistics’ interests both before and during an underlying lawsuit Centurion Logistics

filed against third parties. Appellants filed a Texas Citizens Participation Act

1
The record indicates that Clark Hill PLC and Strasburger & Price, LLP merged in 2018, and Brenner
worked for Strasburger before the merger and Clark Hill afterwards.
dismissal motion. See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011. The trial

court denied the motion, and appellants filed this interlocutory appeal. See id.

§ 51.014(a)(12).

We conclude that the trial court erred by failing to dismiss Centurion

Logistics’ claims to the extent they are based on appellants’ participation in the

underlying lawsuit. But the trial court correctly denied appellants’ TCPA motion to

the extent Centurion Logistics’ claims are based on appellants’ other conduct. So

we reverse in part and affirm in part.

I. BACKGROUND

A. Alleged Facts

Unless otherwise noted, the following facts are alleged in Centurion Logistics’

live pleading. All quotations come from that pleading.

1. Centurion Logistics’ Business Plan and the Descent into Litigation
Marc Marrocco, Tony Albanese, and John Calce had a business idea: develop

a railway terminal in the Pecos, Texas area to serve oil and gas producers in the

Permian Basin. In September 2013, they formed appellee Centurion Logistics as the

vehicle for this plan and made themselves Centurion Logistics’ managers. In

February 2014, Centurion Logistics entered into a contract to buy a tract in Reeves

County near Pecos. That spring it sought equity investors for the project.

No later than March 2014, Centurion Logistics hired appellant Jules Brenner

and his law firm, appellant Strasburger & Price, LLP, to represent Centurion

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Logistics in all of its corporate, transactional, and litigation matters. Brenner

provided legal services regarding negotiations with potential equity partners for the

project.

In June 2014, Centurion Logistics obtained a Memorandum of Understanding

(MOU) from Union Pacific Railroad regarding the rail terminal.

Calce introduced Marrocco and Albanese to a potential equity partner named

James Ballengee, and Centurion Logistics decided to go with Ballengee.

In September 2014, Centurion Logistics and a Ballengee company jointly

formed Centurion Pecos Terminal LLC (CPT). Brenner and his firm did the legal

work for Centurion Logistics on the CPT company agreement.

Brenner later represented Centurion Logistics in revising the CPT company

agreement. The revised CPT company agreement was signed in or about August

2015, and CPT’s two members and managers were Centurion Logistics and a

Ballengee company called Stampede.

By late October 2015, Marrocco and Albanese were suspicious of Calce’s and

Ballengee’s intentions regarding the project. Around that time, Calce told Marrocco

that (i) Ballengee was working on a bigger plan than Centurion Logistics had

envisioned, (ii) Centurion Logistics should “trade up” into Ballengee’s plan, and

(iii) Ballengee would strip Centurion Logistics of its interest in the project if

Centurion Logistics didn’t “play ball.”

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 In November 2015, Calce said Marrocco and Albanese needed to talk to

Ballengee about how to resolve the conflict. Marrocco and Albanese later had

conversations with Ballengee about the project and Centurion Logistics’ place in it.

In March 2016, Ballengee met with Marrocco, offered Centurion Logistics

4% of Ballengee’s new plan, and “guaranteed Centurion Logistics $15 million in

that project.” Ballengee asked Marrocco to discuss it with Albanese and then give

Ballengee a formal offer or counter-proposal.

Marrocco and Albanese decided that they were prepared to accept Ballengee’s

offer but would first make a counter-offer seeking an $18 million guarantee. But

when Marrocco went to an April 1, 2016 meeting to finalize the deal with Ballengee,

he was confronted with a purported meeting of CPT’s members and managers at

which Calce and Ballengee sought his support for a different transaction involving

CPT. Marrocco “withdrew from the meeting.”

After that meeting, Calce, Ballengee, and their entities performed “maneuvers

and transactions” designed to strip Centurion Logistics and CPT of their interests in

project assets. For example, they attempted to divest (i) Centurion Logistics of its

Union Pacific MOU and (ii) Centurion Logistics and CPT of the rail site land.

In June 2016, Centurion Logistics sued Calce, Ballengee, Stampede, and

others in Dallas County (the Underlying Lawsuit) to stop any further damage to

Centurion Logistics. Centurion Logistics’ live pleading also alludes to other

lawsuits involving the same parties, presumably pending around this same time.

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 2. Appellants’ Alleged Misconduct
Centurion Logistics alleges that appellants were involved in the events

described above and breached fiduciary duties to Centurion Logistics both before

and after the Underlying Lawsuit began.

a. Acts Before and Apart from the Underlying Lawsuit

Centurion Logistics alleges three acts whereby appellants were “fanning the

flames” of conflict between Centurion Logistics and the other parties to the project

before the Underlying Lawsuit was filed.

First, appellants aided Calce and Ballengee with their scheme against

Centurion Logistics by helping them form, organize, or reorganize numerous

business entities. Brenner helped one such entity, Centurion Terminals, LLC, in all

its deals and contractual arrangements.

Second, in spring 2016, appellants were involved in an attempt by Calce,

Ballengee, and their entities to divest Centurion Logistics of its Union Pacific MOU

and a more comprehensive rail services agreement Centurion Logistics and Union

Pacific had struck in February 2016.

Third, appellants helped a Calce entity acquire a company called Permian

Crude Transport that owned land adjacent to the tract where Centurion Logistics’

original rail terminal project was to be located. This acquisition conflicted with

appellants’ earlier work on Centurion Logistics’ and CPT’s behalf. Although the

acquisition occurred in 2017 and thus after the Underlying Lawsuit began, Centurion

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Logistics’ live pleading doesn’t suggest any connection between the acquisition and

the Underlying Lawsuit or its outcome.

b. Misconduct Relating to the Underlying Lawsuit

Centurion Logistics alleges appellants committed the following acts regarding

the Underlying Lawsuit.

In July 2016, Brenner and others at his firm began to work for opposing parties

involved in the Underlying Lawsuit without disclosing this fact to Centurion

Logistics. In February 2017, Marrocco and Albanese did not oppose the firm’s

substituting in as counsel for Stampede based on the firm’s representation that

Brenner had no involvement in the case and would not work on it. But subsequent

fee requests by the firm showed that Brenner worked on the case in January 2017

and thereafter.

Also in or before 2017, Brenner and his firm drafted a “Unanimous Written

Consent” that purported to allow (i) Stampede to remove Centurion Logistics as a

CPT member and (ii) CPT to dismiss derivative claims filed in the Underlying

Lawsuit.

Finally, during the Underlying Lawsuit defense counsel told Centurion

Logistics that Brenner had given them confidential information about a 2014

meeting of Marrocco, Albanese, Calce, and Brenner. Defense counsel also said that

Brenner would testify about those facts in the Underlying Lawsuit or another related

lawsuit. Brenner’s conduct was detrimental to Centurion Logistics.

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 3. The Underlying Lawsuit’s Conclusion
Appellants filed evidence with their TCPA dismissal motion showing that

(i) Centurion Logistics’ claims in the Underlying Lawsuit were dismissed on pretrial

motions, (ii) the counterclaims against Centurion Logistics were settled, and (iii) the

Underlying Lawsuit ended in July 2019.

B. This Case’s Procedural History

In September 2019, Centurion Logistics sued appellants for fiduciary breach

and sought damages and equitable forfeiture remedies.

Appellants answered and later filed their TCPA dismissal motion.

Centurion Logistics filed an amended petition and a response to the TCPA

motion with evidence. The amended petition added factual details but still asserted

only fiduciary breach claims against appellants. The amended petition continued to

seek both damages and equitable forfeiture.

Appellants replied, and Centurion Logistics filed a surreply.

The trial judge held a nonevidentiary hearing and signed an order denying

appellants’ dismissal motion. The order did not state the trial judge’s reasons for the

ruling. This appeal followed.

II. ISSUES PRESENTED

We quote appellants’ three issues, which correspond to the three steps a TCPA

dismissal motion typically presents:

1. The amended TCPA, effective September 1, 2019, applies to this
action in whole or in part because the action is based on and is in
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 response to the Attorneys’ exercise of the right to petition,
specifically the Attorneys’ representation of parties in litigation
adverse to Plaintiff Centurion.

2. The trial court should have dismissed Centurion’s claim because
Centurion failed to provide clear and specific evidence to support
a prima facie case of each element of its breach-of-fiduciary-duty
claim against the Attorneys, particularly with regard to the
elements of proximate cause and damages or, in the alternative,
fee disgorgement.

3. In addition or in the alternative, the trial court should have
dismissed Centurion’s claim because the Attorneys proved their
affirmative defenses of attorney immunity and waiver/quasi-
estoppel as a matter of law.

III. ANALYSIS

A. Standard of Review

This case is governed by the TCPA as amended in 2019. Under the pre-

amendment TCPA, we reviewed de novo the trial court’s determinations that the

parties met or failed to meet their respective burdens of proof under the TCPA. See,

e.g., Kirkstall Rd. Enters., Inc. v. Jones, 523 S.W.3d 251, 253 (Tex. App.—Dallas

2017, no pet.). Although the amendments adjust the parties’ burdens in some

respects, they do not change the de novo appellate standard of review. Accordingly,

we adhere to our prior case law in that regard. See MobileVision Imaging Servs.,

L.L.C. v. LifeCare Hosps. of N. Tex., L.P., 260 S.W.3d 561, 566 (Tex. App.—Dallas

2008, no pet.) (“We may not overrule a prior panel decision of this Court absent an

intervening change in the law by the legislature, a higher court, or this Court sitting

en banc.”); see also Vaughn-Riley v. Patterson, No. 05-20-00236-CV, 2020 WL

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7053651, at *2 (Tex. App.—Dallas Dec. 2, 2020, no pet. h.) (mem. op.) (applying

de novo standard to ruling on TCPA motion under the 2019 amendments).

B. Issue One: Is Centurion Logistics’ legal action based on or in response
to appellants’ exercise of the right to petition?

Yes, in part. To the extent Centurion Logistics claims that appellants breached

fiduciary duties by rendering legal services to Centurion Logistics’ adversaries in

the Underlying Lawsuit, its claims are based on appellants’ exercise of the TCPA

defined right to petition. Appellants satisfied their TCPA step one burden as to those

claims.

However, Centurion Logistics has also alleged fiduciary breaches that

appellants have not demonstrated were exercises of their right to petition. The trial

court correctly refused to dismiss those claims.

1. Applicable Law

The TCPA authorizes a civil defendant to move to dismiss an opponent’s

“legal action” under certain circumstances. See CIV. PRAC. & REM. CODE

§ 27.003(a). That motion triggers a three-step process. See id. § 27.005(b), (c), (d).

a. Step One
At step one, the movant must “demonstrate[]” that the legal action is based on

or in response to the movant’s exercise of a statutorily defined right or certain other

statutorily defined conduct. Id. § 27.005(b). This provision was amended in 2019.

Previously, the movant’s burden was to “show[] by a preponderance of the

evidence” that the legal action was “based on, relate[d] to, or [was] in response to”
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the movant’s exercise of a protected right. See Citizens Participation Act, 82d Leg.,

R.S., ch. 341, 2011 Tex. Gen. Laws 960 (amended 2019) (current version at CIV.

PRAC. & REM. CODE § 27.005(b)).

Before the 2019 amendments, the Texas Supreme Court held that the

plaintiff’s petition is the best and all-sufficient evidence of the nature of the action

for step one purposes. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017). The court

said, “When it is clear from the plaintiff’s pleadings that the action is covered by the

Act, the defendant need show no more.” Id.

We see no reason to conclude that the legislature intended to overrule Hersh

when it changed the step one test from “shows by a preponderance of the evidence”

to “demonstrates.” “Demonstrate” means to “clearly show the existence or truth of

(something) by giving proof or evidence.” Demonstrate, THE NEW OXFORD

AMERICAN DICTIONARY (2001). We conclude that Hersh is still good law. See Laura

Lee Prather & Robert T. Sherwin, The Changing Landscape of the Texas Citizens

Participation Act, 52 TEX. TECH L. REV. 163, 185 (2020) (opining that Hersh is still

good law after the 2019 amendments); see also Vaughn-Riley, 2020 WL 7053651,

at *2 (referring to Hersh test in case under the 2019 amendments).

Finally, step one requires a statement-by-statement analysis when a lawsuit

involves claims predicated on more than one communication. See Duncan v. Acius

Grp., LP, No. 05-18-01432-CV, 2019 WL 4392507, at *4 n.4 (Tex. App.—Dallas

Sept. 13, 2019, no pet.) (mem. op.) (“[W]e take a statement-by-statement approach

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at step one.”); Morales v. Barnes, No. 05-17-00316-CV, 2017 WL 6759190, at *3

(Tex. App.—Dallas Dec. 29, 2017, no pet.) (mem. op.) (separately analyzing, at step

one, the two letters on which the plaintiff based his claim). Again nothing in the

2019 amendments changes our prior holdings, so we adhere to them and reject

Centurion Logistics’ suggestion that we should treat its fiduciary breach claims as a

single, monolithic unit for TCPA purposes.

b. Steps Two and Three
If the movant carries its initial burden, the burden shifts to the claimant to

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

of the claim in question. CIV. PRAC. & REM. CODE § 27.005(c). If the claimant

doesn’t carry its burden, the trial court dismisses the claim. See id. § 27.005(b), (c).

At step two, we consider only the evidence favoring the nonmovant. D Magazine

Partners, L.P. v. Rosenthal, 475 S.W.3d 470, 480–81 & n.5 (Tex. App.—Dallas

2015), aff’d in part and rev’d in part on other grounds, 529 S.W.3d 429 (Tex. 2017).

Even if the claimant carries its step two burden, the trial court must dismiss

the legal action at step three if the movant establishes an affirmative defense as a

matter of law. CIV. PRAC. & REM. CODE § 27.005(d).

2. Applying the Law to the Facts

Appellants argue that they successfully demonstrated that Centurion

Logistics’ legal action is based on and in response to appellants’ exercise of the right

to petition. See id. § 27.001(4). They rely specifically on § 27.001(4)(A)(i), which

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provides that “a communication in or pertaining to . . . a judicial proceeding” is an

exercise of the right to petition. See id. § 27.001(4)(A)(i).

We begin by defining the relevant terms. The TCPA defines

“communication” broadly, stating that the term “includes the making or submitting

of a statement or document in any form or medium.” Id. § 27.001(1). And the

ordinary meaning of the phrase “pertaining to” is “relating directly to or concerning

or having to do with.” Jetall Cos., Inc. v. Johanson, No. 01-19-00305-CV, 2020 WL

6435778, at *3 (Tex. App.—Houston [1st Dist.] Nov. 3, 2020, no pet. h.) (mem.

op.). Finally, “a judicial proceeding is ‘any proceeding initiated to procure an order

or decree, whether in law or in equity.’” Levatino v. Apple Tree Café Touring, Inc.,

486 S.W.3d 724, 729 (Tex. App.—Dallas 2016, pet. denied) (quoting Judicial

proceeding, BLACK’S LAW DICTIONARY (10th ed. 2014)).

Next, we determine whether appellants carried their step one burden by

demonstrating that Centurion Logistics’ legal action arises from or is in response to

appellants’ communications pertaining to a judicial proceeding. See CIV. PRAC. &

REM. CODE § 27.005(b). As explained below, we conclude that appellants carried

their step one burden as to part, but not all, of Centurion Logistics’ legal action.

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 a. Appellants met step one concerning participation in the
Underlying Lawsuit.

The Underlying Lawsuit was unquestionably a TCPA “judicial proceeding.”2

Thus, to the extent Centurion Logistics asserts claims that appellants breached

fiduciary duties by making communications in or pertaining to the Underlying

Lawsuit, those claims are based on appellants’ exercise of the TCPA right to petition.

See Youngkin v. Hines, 546 S.W.3d 675, 680–81 (Tex. 2018) (lawyer exercised his

TCPA right to petition by dictating Rule 11 agreement into the record during trial;

thus, subsequent claim that lawyer thereby committed fraud satisfied TCPA step

one).

We outlined Centurion Logistics’ claims that appellants breached fiduciary

duties by their conduct pertaining to the Underlying Lawsuit in Part I.A.2.b above.

To summarize, Centurion Logistics specifically alleges the following four breaches:

• Appellants worked “in the background” on the Underlying
Lawsuit for Centurion Logistics’ opponents as early as July
2016.

• In February 2017, when Brenner’s law firm sought to substitute
into the Underlying Lawsuit for Stampede, it falsely represented
that Brenner had no involvement in the Underlying Lawsuit and
would not work on it. But fee requests by the firm showed that
Brenner worked on the case in January 2017 and thereafter.

2
The First Court of Appeals has held that a lawsuit that has gone to final judgment is no longer a
“judicial proceeding” for TCPA purposes. Russell v. Russell, No. 01-19-00516-CV, 2020 WL 894433, at
*4 (Tex. App.—Houston [1st Dist.] Feb. 25, 2020, pet. filed) (mem. op.). We disagree. Communications
made in a pending lawsuit are exercises of the right to petition, see CIV. PRAC. & REM. CODE
§ 27.001(4)(A)(i), and nothing in the TCPA suggests that they cease to be exercises of that right after the
lawsuit concludes.
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 • In or before 2017, Brenner and his firm drafted a document that
purported to allow (i) Stampede to remove Centurion Logistics
as a CPT member and (ii) CPT to dismiss derivative claims filed
in the Underlying Lawsuit.

• Finally, Brenner disclosed to Centurion Logistics’ opponents
confidential information about a 2014 meeting of Marrocco,
Albanese, Calce, and Brenner. Defense counsel said that
Brenner would testify about that meeting in the Underlying
Lawsuit or another related lawsuit. This conduct was very
detrimental to Centurion Logistics in the Underlying Lawsuit
because a major issue in the case was who had the right to act on
Centurion Logistics’ behalf.

In all four instances, Centurion Logistics bases its fiduciary breach claims on

appellants’ communications pertaining to a judicial proceeding.

The second and third items directly complain about appellants’

communications pertaining to the Underlying Lawsuit.

The first item necessarily implies that appellants made such communications

because performing legal work on a lawsuit inherently involves communications.

See CIV. PRAC. & REM. CODE § 27.001(1) (“communication” includes “making . . .

a statement or document”). For example, Centurion Logistics’ live pleading quotes

Brenner’s time records to show his allegedly tortious work on the Underlying

Lawsuit. Those records show that he participated in calls regarding a summary

judgment motion, revised a summary judgment motion, and had discussions and

meetings with various people about the case. Those are all communications under

the TCPA’s broad definition, see id.; Adams v. Starside Custom Builders, LLC, 547

S.W.3d 890, 894 (Tex. 2018) (“Almost every imaginable form of communication,

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in any medium, is covered.”), and they pertain to the Underlying Lawsuit. These

allegations of specific communications also distinguish this case from a recent case

in which we could not discern any communications from the record. See White Nile

Software, Inc. v. Carrington, Coleman, Sloman & Blumenthal, LLP, No. 05-19-

00780-CV, 2020 WL 5104966, at *8 (Tex. App.—Dallas Aug. 31, 2020, no pet.)

(mem. op.) (movant didn’t meet step one because nothing in the record showed what

communications were supposedly at issue).

Finally, appellants adequately demonstrated that the fourth item involves

Brenner’s alleged communications regarding the Underlying Lawsuit. Although

Centurion Logistics doesn’t allege the date when Brenner allegedly revealed

Centurion Logistics’ confidences to its adversaries, the context demonstrates that the

communications were made in conjunction with, and pertain to, the defendants’

defense in the Underlying Lawsuit. Accordingly, we conclude that he did so during,

and to aid their defense in, the Underlying Lawsuit.

In sum, Centurion Logistics’ claims that appellants breached fiduciary duties

by participating in the Underlying Lawsuit on behalf of Centurion Logistics’

adversaries are based on appellants’ exercise of the TCPA right to petition.

Appellants carried their step one burden as to those claims.

b. Appellants did not satisfy step one concerning conduct other
than participating in the Underlying Lawsuit.

Centurion Logistics also alleges that appellants committed three fiduciary

breaches with no obvious connection to the Underlying Lawsuit filed in June 2016:
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 • Appellants helped Calce and Ballengee form or reorganize
numerous entities. They did “the vast majority of this work” by
early April 2016, but the work continued to mid-2018.

• In spring 2016, appellants were involved in Calce and others’
attempt to divest Centurion Logistics of its Union Pacific MOU
and another agreement with Union Pacific. The last event
Centurion Logistics alleges in this regard is a May 2016 email.

• Appellants helped a Calce entity acquire a company that owned
land adjacent to the tract where the original rail terminal project
was to be located. The acquisition occurred after the Underlying
Lawsuit began.

A § 27.001(4)(A)(i) “judicial proceeding” means an actual, existing judicial

proceeding. Levatino, 486 S.W.3d at 728. Thus, appellants’ communications before

the Underlying Lawsuit existed were not exercises of the right to petition under

§ 27.001(4)(A)(i). See id. at 729 (pre-suit demand letter not a right to petition act).

Accordingly, appellants failed their step one burden as to claims based on (i) the

conduct described in the second item in the immediately foregoing list and (ii) the

“vast majority” of the conduct described in the first item.

As to the conduct described in the first item that allegedly postdated the

Underlying Lawsuit’s beginning and the conduct described in the third item, we

conclude that appellants didn’t demonstrate that this conduct involved

communications in or pertaining to the Underlying Lawsuit. These allegations don’t

mention the Underlying Lawsuit, and appellants have not otherwise shown the

necessary connection. The bare fact that the Underlying Lawsuit was pending while

appellants were allegedly committing this conduct does not demonstrate that any

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communications involved in the conduct were “in or pertaining to” the Underlying

Lawsuit or any other judicial proceeding.

Appellants nonetheless argue that their alleged conduct described above

amounted to an exercise of the right to petition because Centurion Logistics’ trial

brief argued that appellants’ conduct “propelled Centurion Logistics and the

Ballengee parties to litigation rather than keeping them at the settlement table to

resolve their differences.” We disagree. To be an exercise of the right to petition

under § 27.001(4)(A)(i), a communication must be in or pertain to an actual, existing

judicial proceeding. Id. at 728. A pre-litigation communication doesn’t fit that

definition, even if it provokes the subsequent litigation. See id.

c. Centurion Logistics’ Remaining Arguments Concerning
Claims Based on Participation in the Underlying Lawsuit
Centurion Logistics proposes certain global reasons that the TCPA should not

apply to its claims. We reject those arguments regarding claims based on appellants’

participation in the Underlying Lawsuit and do not reach them as to the others.

First, Centurion Logistics argues that the TCPA doesn’t apply to a client’s

fiduciary breach claim against its own attorney. It cites nothing in the statute or any

cases supporting that premise. And the legislature provided that the TCPA does not

apply to a laundry list of claims, and a client’s fiduciary breach claim against its

attorney is not among them. See CIV. PRAC. & REM. CODE § 27.010(a). We cannot

add to the legislature’s list of exemptions. See Johnson v. Second Injury Fund, 688

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S.W.2d 107, 108 (Tex. 1985) (“The legal maxim Expressio unius est exclusio

alterius is an accepted rule of statutory construction in this state.”).

Second, Centurion Logistics argues that applying the TCPA to its claims

violates the Texas Constitution’s Open Courts Clause. The TCPA requires a

claimant to assemble its proof quickly and limits the discovery that can be performed

once a motion is filed. See CIV. PRAC. & REM. CODE § 27.003(b), (c); id. § 27.004.

Centurion Logistics argues that the TCPA thus unconstitutionally burdens its

constitutional right to redress, particularly because claims against lawyers typically

must be supported with expert testimony.

We reject Centurion Logistics’ constitutional challenge. We presume statutes

are constitutional. Preston State Bank v. Willis, 443 S.W.3d 428, 433 (Tex. App.—

Dallas 2014, pet. denied). Texas appellate courts have upheld the TCPA’s discovery

limitations. See, e.g., Landry’s, Inc. v. Animal Legal Defense Fund, 566 S.W.3d 41,

68 (Tex. App.—Houston [14th Dist.] 2018, pet. granted). And they have upheld

statutes requiring expert reports early in medical malpractice cases. See, e.g., Sutker

v. Simmons, No. 05-18-00698-CV, 2019 WL 3001034, at *5 (Tex. App.—Dallas

July 10, 2019, pet. denied) (mem. op.); Ledesma v. Shashoua, No. 03-05-00454-CV,

2007 WL 2214650, at *9 (Tex. App.—Austin Aug. 3, 2007, pet. denied) (mem. op.).

Since Centurion Logistics adduced evidence by three expert witnesses, and

assuming the TCPA may in some cases require nonmovants to produce expert

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testimony at step two, we reject Centurion Logistics’ premise that the requirement

violates the Open Courts Clause here.

Finally, Centurion Logistics argues that the TCPA does not apply to its claims

based on appellants’ providing legal services to Centurion Logistics’ adversaries in

the run-up to the Underlying Lawsuit. We agree with that premise, as discussed

above.

3. Conclusion
We sustain appellants’ first issue in part, holding that they satisfied TCPA

step one as to Centurion Logistics’ fiduciary breach claims based on appellants’

participating in the Underlying Lawsuit for Centurion Logistics’ adversaries. We

thus proceed to the remaining TCPA analysis as to only those claims and affirm the

denial of appellants’ TCPA motion regarding Centurion Logistics’ other claims.

C. Issue Two: Did Centurion Logistics produce clear and specific evidence
sufficient to establish a prima facie case regarding its participation in the
Underlying Lawsuit claims?

No, because Centurion Logistics did not produce clear and specific evidence

that (i) appellants’ participation in the Underlying Lawsuit caused Centurion

Logistics any injury or (ii) Centurion Logistics was entitled to a fee forfeiture or

disgorgement remedy based on that conduct.

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 1. Applicable Law
Once a TCPA movant satisfies step one, the burden shifts to the nonmovant

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

element of the claim in question. CIV. PRAC. & REM. CODE § 27.005(c).

“Clear” means unambiguous, sure, or free from doubt. S&S Emergency

Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018). “Specific” means

explicit or relating to a particular named thing. Id. A prima facie case is the

minimum amount of evidence necessary to support a rational inference that a fact is

true. Id.

Bare, baseless opinions do not meet the clear and specific evidence

requirement. In re Lipsky, 460 S.W.3d 579, 592 (Tex. 2015) (orig. proceeding).

Similarly, conclusory statements are not probative and will not suffice to establish a

prima facie case. Dobrott v. Jevin, Inc., No. 05-17-01472-CV, 2018 WL 6273411,

at *6 (Tex. App.—Dallas Nov. 30, 2018, no pet.) (mem. op.).

A fiduciary breach claim’s elements are (i) a fiduciary relationship existed

between the plaintiff and defendant; (ii) the defendant breached its fiduciary duty to

the plaintiff; and (iii) the defendant’s breach injured the plaintiff or benefited the

defendant. Anderton v. Cawley, 378 S.W.3d 38, 51 (Tex. App.—Dallas 2012, no

pet.). A fiduciary breach claimant must prove proximate causation to recover

damages. See Bos v. Smith, 556 S.W.3d 293, 303 (Tex. 2018).

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 Alternatively, a disloyal fiduciary can be required to disgorge any benefit it

received by its breach. Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d

509, 514 (Tex. 1942). And an attorney who commits a clear and serious violation

of his or her duty to a client can be required to forfeit some or all of his or her fees

for the matter. Burrow v. Arce, 997 S.W.2d 229, 242 (Tex. 1999).

2. Applying the Law to the Facts
Appellants argue that Centurion Logistics produced no evidence that

appellants’ participation in the Underlying Lawsuit on behalf of Centurion Logistics’

adversaries caused Centurion Logistics any injury. We agree.

Centurion Logistics’ appellate brief doesn’t argue that it produced clear and

specific evidence that appellants’ aiding Centurion Logistics’ adversaries in the

Underlying Lawsuit caused Centurion Logistics any injury. Neither did its trial court

response.

We have reviewed Centurion Logistics’ evidence ourselves, and we conclude

that there is no clear and specific evidence that appellants’ alleged misconduct in

and regarding the Underlying Lawsuit injured Centurion Logistics. We find only a

conclusory and nonprobative statement in Marrocco’s declaration (and a similar one

in Albanese’s declaration), that says:

. . . I also contend that if it had not been for the defendant attorney’s
misconduct as described above, the various lawsuits in which we were
involved with Calce, Ballengee, and their related individuals and
entities, including the Dallas County Lawsuit, would have been
resolved in Centurion Logistics’ favor.

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These speculative and conclusory statements did not carry Centurion Logistics’ step

two burden as to the causation element.

This leaves Centurion Logistics’ claim for a disgorgement or fee forfeiture

remedy. Specifically, Centurion Logistics sought to recover (i) all fees Centurion

Logistics paid appellants, (ii) all fees appellants received from other parties for work

adverse to Centurion Logistics, and (iii) any other secret gain or benefit appellants

derived from their fiduciary breaches. For three reasons, we conclude that Centurion

Logistics did not produce clear and specific evidence to support these claimed

remedies.

First, Centurion Logistics produced no evidence that appellants committed

any fiduciary breaches while earning the fees Centurion Logistics paid them, so there

is no clear and specific evidence that Centurion Logistics is entitled to recover those

fees. Specifically, Centurion Logistics alleges that appellants’ fiduciary breaches

began in late 2015 but its evidence doesn’t show any payments to appellants after

December 2014. Next, Centurion Logistics argues it should be allowed to recover

the fees it paid appellants because their work for Centurion Logistics was

“completely undermined” by appellants’ work for Centurion Logistics’ adversaries.

We disagree. Cf. Gregory v. Porter & Hedges, LLP, 398 S.W.3d 881, 886–87 (Tex.

App.—Houston [14th Dist.] 2013, pet. denied) (client could not recover attorney’s

fees paid for first representation because client’s claims arose exclusively from a

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second representation). Thus, Centurion Logistics did not produce clear and specific

evidence of an entitlement to fee forfeiture regarding the fees it paid appellants.

Second, regarding the fees appellants received from other parties for legal

work that allegedly breached appellants’ fiduciary duties to Centurion Logistics,

courts have held that fee forfeiture does not apply to fees a lawyer received from

someone other than the aggrieved client. See, e.g., id. at 885–86; Elizondo v. Krist,

338 S.W.3d 17, 25 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 415 S.W.3d 259

(Tex. 2013); Swank v. Cunningham, 258 S.W.3d 647, 672–74 (Tex. App.—Eastland

2008, pet. denied). We agree with those courts. Thus, Centurion Logistics cannot

recover those fees under a forfeiture theory.

Finally, Centurion Logistics produced no evidence that appellants received

any benefit from their alleged fiduciary breaches other than the fees they received

for their legal work in the Underlying Lawsuit. We have held that those fees are not

subject to equitable forfeiture. Thus, Centurion Logistics cannot recover them under

a more general equitable theory. Cf. Garcia-Udall v. Udall, 141 S.W.3d 323, 331

(Tex. App.—Dallas 2004, no pet.) (“[A] more specific statute controls over a more

general one.”).

3. Conclusion

Centurion Logistics failed to carry its step two burden regarding its claims

against appellants for participating in the Underlying Lawsuit. Accordingly, the trial

court erred by failing to dismiss those claims.

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D. Issue Three: Did appellants establish affirmative defenses?
Given our prior holdings, we need not and do not address appellants’ third

issue in which they argue that they established the affirmative defenses of attorney

immunity, waiver, and quasi-estoppel.

IV. DISPOSITION

For the foregoing reasons, we (i) reverse the trial court’s order denying

appellant’s TCPA motion to the extent the trial court failed to dismiss Centurion

Logistics’ claims based on appellants’ participation in the Underlying Lawsuit on

behalf of entities other than Centurion Logistics, (ii) render judgment dismissing

those claims with prejudice, (iii) remand the case for further proceedings consistent

with this opinion, including an award of relief under TCPA § 27.009; and (iv) affirm

the remainder of the trial court’s order.

/Bill Whitehill/
BILL WHITEHILL
JUSTICE
200308F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JULES S. BRENNER; CLARK On Appeal from the 44th Judicial
HILL PLC ALSO DOING District Court, Dallas County, Texas
BUSINESS AS CLARK HILL Trial Court Cause No. DC-19-15964.
STRASBURGER; AND Opinion delivered by Justice
STRASBURGER & PRICE, LLP, Whitehill. Justices Schenck and
Appellants Browning participating.

No. 05-20-00308-CV V.

CENTURION LOGISTICS LLC
DIRECTLY AND DERIVATIVELY
ON BEHALF OF CENTURION
PECOS TERMINAL LLC, Appellee

In accordance with this Court’s opinion of this date, we AFFIRM in part
and REVERSE in part the trial court’s February 14, 2020 Order Denying
Defendants’ Motion to Dismiss Pursuant to TCPA.

We REVERSE the order to the extent it fails to dismiss appellee Centurion
Logistics LLC Directly and Derivatively on Behalf of Centurion Pecos Terminal
LLC’s claims against appellants Jules S. Brenner, Clark Hill PLC Also Doing
Business As Clark Hill Strasburger, and Strasburger & Price, LLP for appellants’
participation in an underlying lawsuit, Marrocco et al. v. Ballengee et al., Cause
No. DC-16-07706 in the 44th Judicial District Court of Dallas County, on behalf of
entities other than Centurion Logistics LLC, and we RENDER judgment that
those claims are DISMISSED WITH PREJUDICE.

In all other respects, the trial court’s order is AFFIRMED.

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 We REMAND this cause to the trial court for further proceedings consistent
with the opinion, including consideration of appellants’ request for relief under
TEX. CIV. PRAC. & REM. CODE § 27.009.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered December 14, 2020.

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