Jason Murray Davis and Davis & Santos, P.C. v. Graham Weston; Carowest Land Ltd.; Graham Weston as Trustee of Countyline Land Trust; and Kuehler Road, LLC f/k/a Kuehler Road, Ltd.

Summary

On rehearing, the Texas Court of Appeals, Third District, withdrew its prior opinion and substituted this memorandum opinion. The court affirmed the denial of attorney Jason Murray Davis’s motion to dismiss under the Texas Citizens Participation Act in claims alleging breach of fiduciary duty and fraud by nondisclosure arising from his representation of Elizabeth Weston while previously representing Graham Weston and related entities. The court concluded that the claims were based on alleged conflicts of interest, failures to disclose, and misuse of confidential information, rather than communications protected by the TCPA right to petition.

Holdings

1. The Graham Parties' claims were not based on or in response to Davis's exercise of the right to petition because the claims were based on Davis's alleged conduct in representing Elizabeth adversely to Graham and his alleged failure to disclose the conflict or obtain consent, rather than on communications made in an actual, existing judicial proceeding.
2. The claims were not based on or in response to Davis's exercise of the right of free speech because the Graham Parties complained of Davis's acts, omissions, and failures to act in representing Elizabeth while representing or owing duties to Graham, not of Davis's communications concerning alleged abuse or the divorce petition.
3. Because Davis failed to carry the initial burden to show that the TCPA applied, the burden never shifted to the Graham Parties to establish a prima facie case, and the court did not need to address the attorney-immunity defense.

Questions Presented

1. Whether the Graham Parties' breach-of-fiduciary-duty and fraud-by-nondisclosure claims were based on or in response to Davis's exercise of the right to petition under the TCPA.
2. Whether the Graham Parties' claims were based on or in response to Davis's exercise of the right of free speech under the TCPA.
3. Whether the trial court properly denied the TCPA motion without reaching the claimants' prima facie showing or Davis's attorney-immunity defense.

Disposition

affirmed