Bennett v. Smith

1

TOM BENNETT, JAMES B. BONHAM CORPORATION, AND THE UNITED STATES INVENTION CORPORATION, Appellants v. D. TODD SMITH AND SMITH LAW GROUP, Appellees

No. 14-22-00305-CV

Court of Appeals of Texas, Fourteenth District

August 1, 2023

On Appeal from the 98^th District Court Travis County Texas Trial Court Cause No. D-1-GN-21-000562

Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.

MEMORANDUM OPINION

Frances Bourliot Justice

Appellants Tom Bennett, James B. Bonham Corporation, and the United States Invention Corporation (collectively "Bennett") appeal a final order dismissing their legal action against appellees D. Todd Smith and Smith Law Group (collectively "Smith") under the Texas Citizens Participation Act (TCPA).^[1] Bennett contends that Smith failed in his initial burden to show by a preponderance of the evidence that the act applies. Smith asserts that Bennett's negligence and breach of professional responsibility claims are legal actions filed in response to his exercise of the right to petition. Concluding the conduct Bennett complains of falls within the scope of the TCPA, we affirm.^[2]

Background

On January 29, 2021, Bennett sued Smith. In his petition Bennett alleged that he retained Smith for appellate representation after receiving two unfavorable judgments in the trial court. Smith represented Bennett in two prior appellate proceedings-one in the Third Court of Appeals and the second in the Texas Supreme Court. See Bennett v. Grant, 460 S.W.3d 220, 228 (Tex. App.-Austin 2015), rev'd & remanded in part, 525 S.W.3d 642, 645 (Tex. 2017). These suits arose from an infamous feud between Bennett and Randy Reynolds, neighboring cattle ranchers in San Saba. See Bennett v. Reynolds, 242 S.W.3d 866 (Tex. App.- Austin 2007), rev'd & remanded in part, 315 S.W.3d 867, 869 (Tex. 2010). The gist of the dispute and subject of prior appeals involved allegations that thirteen head of cattle belonging to Reynolds wandered onto Bennett's ranch, and that instead of returning them in a neighborly fashion, Bennett ordered his ranch hand, Larry Grant, to round up the cattle and sell them at auction. Bennett, 460 S.W.3d at 228.

According to Bennett, the judgments entered against him were "erroneous." Bennett asserted that he specifically instructed Smith to emphasize certain evidence excluded by the trial court that would be included in the appellate record. The excluded evidence consisted of an audio recording of Larry Grant and a transcription of the recording. Bennett suggested that this evidence demonstrated that Grant committed perjury in the trial court proceedings and was not a credible witness. Bennett believed that exclusion of this evidence constituted reversible error. Bennett avowed that Smith failed to challenge the trial court's evidentiary ruling on appeal, constituting professional negligence and misconduct.

On June 17, 2021, Smith answered with a general denial and raised several affirmative defenses. Smith asserted that Bennett's claims represented an improperly "fractured" legal malpractice claim. About a month later, on July 26, 2021, Smith filed his motion to dismiss under the TCPA, alleging that Bennett's claims should be dismissed because they were based on and in response to the "exercise of the right to petition" as defined in the TCPA. The TCPA motion to dismiss was set for a hearing on September 8, 2021.

One day prior to the scheduled hearing, Bennett emailed a request for a continuance and an untimely response to the motion to dismiss to Smith's attorney.^[3]Bennett, however, did not file these documents with the trial court.^[4] The trial court held a hearing on Smith's motion to dismiss, but Bennett failed to appear. The trial court took the TCPA motion and Bennett's response under advisement. Ultimately, the trial court granted Smith's motion to dismiss, dismissed Bennett's lawsuit, and ordered Bennett to pay Smith's counsel $10,880 in attorney's fees. Bennett timely appealed and raised a single issue.

Discussion

In his sole issue on appeal, Bennett contends the trial court improperly concluded that Smith met his initial burden to show by a preponderance of the evidence that the TCPA applies.

I. Texas Citizens Participation Act

The TCPA has a dual purpose: "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." Tex. Civ. Prac. & Rem. Code § 27.002. We construe the TCPA liberally to effectuate its intent of safeguarding and encouraging citizens' constitutional rights to free speech, petition, and association while protecting the right to file a meritorious lawsuit. Id. §§ 27.002, 27.011(b); see also ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam).

The TCPA "protects citizens who 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. Id. Reviewing a TCPA motion to dismiss requires a three-step analysis. Id.; see also Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). As a threshold matter, the moving party must show by a preponderance of the evidence that the TCPA properly applies to the legal action against it. See Tex. Civ. Prac. & Rem. Code § 27.005(b). If the moving party meets that burden, the nonmoving party must establish by clear and specific evidence a prima facie case for each essential element of its claim. Id. § 27.005(c). If the nonmoving party satisfies that requirement, the burden finally shifts back to the moving party to prove each essential element of any valid defenses by a preponderance of the evidence. Id. § 27.005(d).

When determining whether a "legal action" should be dismissed, the trial court must consider the pleadings, the evidence that a court could consider under Texas Civil Procedure Rule 166a, and the "supporting and opposing affidavits stating the facts on which the liability or defense is based." Tex. Civ. Prac. & Rem. Code § 27.006(a). We view the pleadings in the light most favorable to the nonmovant, not blindly accepting a movant's attempts to characterize a nonmovant's claims as implicating protected expression but favoring the conclusion that the claims are not predicated on protected expression. Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.-Austin 2015, pet. dism'd). As a matter of statutory construction, we review de novo a trial court's ruling on a TCPA motion to dismiss. Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 132 (Tex. 2019); Youngkin, 546 S.W.3d at 680; City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003).

II. Does the TCPA Apply to Bennett's Legal Action?

The parties dispute whether the TCPA applies in this case. Bennett argues that the trial court erred by granting Smith's motion to dismiss because (1) this suit is not based on, related to, or in response to Smith's exercise of the right to petition; (2) "communications" and "judicial" proceedings are present in "every instance of the lawyer-client relationship" but such conversations do not prohibit claims of negligence or breach of professional conduct; and (3) he is not suing Smith for any communication; rather, he is suing Smith for what he did not do, i.e., failing to emphasize certain evidence which had been excluded by the trial court. Conversely, Smith contends that he has met his burden under the first step of the TCPA analysis in showing that the TCPA applies to Bennett's suit because the claims against him are based on and in response to Smith's exercise of the right to petition. Relying on the expansive statutory definition of the "exercise of right to petition," Smith argues that Bennett's claims emanate from Smith's representation of Bennett in two prior appellate proceedings. Smith points to two "communications" that form the basis of Bennett's claims: (1) Bennett's instructions to Smith to "emphasize certain evidence which had been excluded by the trial court but included in the record for appellate review," and (2) the multiple briefs prepared by Smith on Bennett's behalf in a judicial proceeding. Smith suggests that these communications pertain to a judicial proceeding and bring this case within the scope of the TCPA.

We begin our inquiry with the threshold question of whether the act applies to the case before us. Under the plain language of the TCPA, "[i]f a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action." Tex. Civ. Prac. & Rem. Code § 27.003(a). Thus, for the TCPA to apply to this case, the claim brought against Smith need only relate to his exercise of the right to petition. See id. Pertinent here, the "exercise of the right to petition" includes "a communication in or pertaining to . . . a judicial proceeding." Id. § 27.001(4)(A)(i). A "communication" is broadly defined as "the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." Id. § 27.001(1).

Bennett's claims are related to Smith's right to petition the courts. Though Bennett alleged claims for negligence and breach of professional responsibility, these claims are essentially a dressed-up legal malpractice claim, and there is...