             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________
          No. 02-19-00232-CV
     ___________________________

     RYAN EUGENE RAY, Appellant

                     V.

       VERONICA FIKES, Appellee



 On Appeal from County Court at Law No. 2
          Tarrant County, Texas
      Trial Court No. 2019-001057-2


  Before Gabriel, Birdwell, and Womack, JJ.
  Memorandum Opinion by Justice Gabriel
                          MEMORANDUM OPINION

      Appellant Ryan Eugene Ray asks us to apply the Texas Citizens Participation

Act (the TCPA) to appellee Veronica Fikes’s legal-malpractice suit against him.

Because we conclude that the TCPA does not apply to Fikes’s claims as pleaded, we

decline Ray’s invitation and affirm the trial court’s order denying Ray’s motion to

dismiss under the TCPA.

                                I. BACKGROUND

      On August 1, 2015, Fikes was injured in a car collision after Sutton Dean

Fambro hit her from behind while she was stopped at a stop light. Approximately

four months later, Fikes signed a contract with Ray, retaining him to represent her in a

suit against Fambro. On August 3, 2017, Ray filed suit on Fikes’s behalf, raising a

negligence claim against Fambro.1

      On October 11, 2017, Ray received notice from the State Bar of Texas’s Office

of the Chief Disciplinary Counsel that Fikes had filed a grievance against him based

on the fact that Ray had never filed suit before the two-year limitations period

expired, that the grievance alleged professional misconduct, and that the grievance

would be classified as a complaint. See Tex. Gov’t Code Ann. § 81.073(a)(1); Tex.

Rules Disciplinary P. R. 2.10(B), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G,

app. B.    On February 28, 2018, Ray’s counsel was notified that a Summary


      1
       Ray also named two of Fambro’s apparent family members as defendants.

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Disposition Panel had dismissed Fikes’s grievance. See Tex. Rules Disciplinary P. R.

1.06(II), 2.13.

       On February 7, 2019, Fikes filed a legal-malpractice suit against Ray, raising

claims for negligence, breach of fiduciary duty, fraud, breach of the retainer contract,

and gross negligence.2 Each claim was based on Ray’s failures to file suit and to serve

Fambro within the limitations period. Fikes also alleged a negligent-misrepresentation

claim based on Ray’s “advertising and stating that he and his firm [were] competent

and experienced in handling personal injury matters.” Ray answered by filing a

general denial in which he specifically pleaded the affirmative defense of collateral

estoppel.

       Ray also filed a motion to dismiss Fikes’s legal-malpractice “lawsuit in all

respects” under the TCPA, arguing that the TCPA applied because Fikes’s suit related

to the exercise of Ray’s right to petition. Ray asserted that Fikes failed to establish a

prima facie case for each element of her claims relating to Ray’s alleged legal

malpractice and that even if she had, Ray had established the affirmative defense of


       2
        Ray argues that Fikes alleged only a “fractured negligence claim” and that her
other alleged claims were “not truly separated”; thus, he contends that Fikes is
“estopped” from alleging any claim other than “fractured negligence.” Although
Fikes alleged most of her claims under the heading “NEGLIGENCE OF
DEFENDANT RYAN EUGENE RAY,” she pleaded her claims other than
negligence and gross negligence as “addition[al]” claims. See generally Tex. R. Civ. P. 48
(allowing parties to allege claims in the alternative “either in one count . . . or in
separate counts”). Ray did not specially except to the form or substance of Fikes’s
petition. See Tex. R. Civ. P. 90–91.

                                            3
collateral estoppel based on the full and fair litigation of Fikes’s claims during the

grievance process. Fikes responded and argued that the TCPA did not apply to her

legal-malpractice claims because they were based on Ray’s failure to file, which is not a

protected communication under the TCPA. She also raised the commercial-speech

exemption to the TCPA’s application. Ray objected to an affidavit Fikes submitted

with her response in which the affiant—J. Patrick Gallagher, Fikes’s legal-malpractice

attorney—opined that Ray breached his duty to Fikes by his failure to timely file the

personal-injury suit and explained the attorney’s fees incurred by his representation of

Fikes in the legal-malpractice case.

       On May 24, 2019, the trial court held a hearing on Ray’s motion and

objections. The trial court sustained some of Ray’s objections to Gallagher’s affidavit

but denied the motion to dismiss in a separate order on June 12, 2019. Ray appeals

and argues in three issues that the trial court erred (1) by denying his motion because

Fikes failed to establish a prima facie case, (2) by failing to sustain all of his objections

to Gallagher’s affidavit, and (3) by failing to grant the motion based on his affirmative

defense of collateral estoppel. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(12).

Our interlocutory, appellate jurisdiction allows review of only the trial court’s order

denying Ray’s TCPA motion to dismiss, not the trial court’s separate order sustaining

and overruling Ray’s evidentiary objections to Gallagher’s affidavit. See Morrison v.

Profanchik, 578 S.W.3d 676, 681 n.2 (Tex. App.—Austin 2019, pet. dism’d by agr.).


                                             4
                           II. TCPA CONSIDERATIONS

       The TCPA has two purposes: protecting specifically defined constitutional

rights to the full extent of the law while, “at the same time,” protecting the right to file

meritorious lawsuits. Tex. Civ. Prac. & Rem. Code Ann. § 27.002; see In re Lipsky,

460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding); Smith v. Crestview NuV, LLC,

565 S.W.3d 793, 797 (Tex. App.—Fort Worth 2018, pet. denied). Even though we

must construe the TCPA liberally, our construction must “effectuate” these purposes.

Tex. Civ. Prac. & Rem. Code Ann. § 27.011(b).

       A defendant seeking the protection of the TCPA must initially produce a

preponderance of the evidence that the legal action is based on, relates to, or is in

response to the exercise of the rights to free speech, to petition, or of association. See

Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Sess. Law Serv. 960, 962

(amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)).3

If the movant does so, the burden shifts to the nonmovant to produce clear and

specific evidence of a prima facie case for each element of each asserted claim. See

Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). If the nonmovant meets her burden,

the movant may still be entitled to dismissal if he shows by a preponderance of the

       3
        Several portions of the TCPA were amended in 2019. Our initial citations to a
section of the TCPA that was amended and effective after the date Fikes filed her
legal-malpractice suit will include the session-law information for the enacted version
in effect at that time. Subsequent citations will simply cite to the current section
number with the parenthetical “(amended 2019),” but we will rely on the specific
language in effect at the time of Fikes’s petition.

                                             5
evidence each element of a valid defense to the claims. See Act of May 22, 2013, 83rd

Leg., R.S., ch. 1042, § 2, 2013 Tex. Sess. Law Serv. 2501, 2501 (amended 2019)

(current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d)).

       We review the trial court’s interpretation of this statutory framework de novo,

focusing on the enacted language of the applicable provisions. See S&S Emergency

Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018); Youngkin v. Hines,

546 S.W.3d 675, 680 (Tex. 2018).        In our review, the pleadings, especially the

plaintiff’s allegations, are the best evidence to determine the nature of a legal action

and the applicability of the TCPA. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017);

see also Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Sess. Law Serv.

960, 962 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann.

§ 27.006(a)).

     III. FIKES’S CLAIMS AND THE APPLICABILTY OF THE TCPA

       Our first inquiry is whether Ray established by a preponderance of the evidence

that the TCPA applies to Fikes’s claims as pleaded. We will parse her claims into two

categories: (1) claims based on a failure to act and (2) negligent misrepresentation.

                      A. CLAIMS BASED ON A FAILURE TO ACT

       As pleaded, Fikes’s claims for negligence, breach of fiduciary duty, fraud,

breach of contract, and gross negligence were based on Ray’s failures to timely file

and serve a personal injury lawsuit on Fikes’s behalf before limitations expired and on

his failure to advise Fikes that he did not file timely. Ray argues that the TCPA
                                            6
applies to bar Fikes’s legal-malpractice suit because his alleged failures to timely act

occurred in or were pertaining to a judicial proceeding—the personal-injury suit. See

Tex. Civ. Prac. & Rem. Code Ann. § 27.001(4)(A)(i).

      But to be subject to the TCPA, a claim must not only be based on or relate to

the exercise of the right to petition but must also allege a communication. See id.

§ 27.001(4)(A); Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Sess.

Law Serv. 960, 962 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code

Ann. § 27.003(a)); Perlman v. EKLS Firestopping & Constr., LLC, No. 05-18-00971-CV,

2019 WL 2710752, at *3 (Tex. App.—Dallas June 28, 2019, no pet.) (mem. op.);

Smith, 565 S.W.3d at 797–98. A communication is statutorily defined as “the making

or submitting of a statement or document in any form or medium, including oral,

visual, written, audiovisual, or electronic.”    Tex. Civ. Prac. & Rem. Code Ann.

§ 27.001(1) (emphasis added).        This definition does not include a failure to

communicate, which is the basis of Fikes’s failure-to-act claims. See Krasnicki v. Tactical

Entm’t, LLC, 583 S.W.3d 279, 283–84 (Tex. App.—Dallas 2019, pet. denied); cf.

Mustafa v. Pennington, No. 03-18-00081-CV, 2019 WL 1782993, at *3 (Tex. App.—

Austin Apr. 24, 2019, no pet.) (mem. op.) (holding plaintiff’s breach-of-contract suit

against amicus attorney in custody dispute alleged a communication because claim

revolved around plaintiff’s critiques of information attorney conveyed in court filings

and arguments); Smith, 565 S.W.3d at 798–99 (holding aider-liability claims based

solely on conduct did not allege a communication as defined by TCPA).
                                            7
       Here, Fikes alleges that Ray wholly failed to act before limitations expired,

leading to the loss of her right to pursue a personal-injury claim. See Galbraith Eng’g

Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 866 (Tex. 2009) (“[S]tatutes of limitations

operate procedurally to bar the enforcement of a right . . . .”); Gale v. Lucio,

445 S.W.3d 849, 858 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (recognizing

claims brought outside limitations period are “extinguished”). Even though Ray

eventually filed a petition on Fikes’s behalf, Fikes’s claims do not attack any

statements made in the time-barred petition. She only attacks the absence of a

petition on or before August 1, 2017—before her right to pursue personal-injury

claims was extinguished. We conclude that Fikes’s claims based on Ray’s failure to

timely file a petition, resulting in the loss of her right to seek redress for her personal

injuries, did not implicate a communication, as that term is defined in the TCPA, that

was based on, related to, or was in response to the exercise of the right to petition.

See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(4), § 27.003(a) (amended 2019),

§ 27.005(b) (amended 2019). Accordingly, Ray did not meet his burden to show by a

preponderance of the evidence that Fikes alleged a communication governed by the

TCPA. See id. § 27.005(b) (amended 2019).

       Both Ray and Fikes cite Youngkin in support of their TCPA-applicability

arguments.    But that case involved whether an attorney’s reading a settlement

agreement into the record implicated the right to petition protected by the TCPA.

546 S.W.3d at 680–81; see also Brown Sims, P.C. v. L.W. Matteson, Inc., No. 04-18-00596-
                                            8
CV, 2019 WL 4739439, at *3 (Tex. App.—San Antonio Sept. 30, 2019, no pet.)

(holding TCPA applied to bar client’s legal-malpractice claim that substance of

attorney’s timely filings was defective). Whether a communication was alleged was

not at issue in Youngkin. We do not address in this case whether Fikes’s failure-to-act

claims were based on, related to, or in response to the right to petition as defined in

the TCPA.

      In any event, we resolve the issue of the TCPA’s applicability based on the

statutory definition of a communication. Fikes’s failure-to-act claims did not allege a

communication. They arose from Ray’s alleged complete failure to act. Thus, the trial

court did not err by denying Ray’s motion to dismiss these claims.

                   B. NEGLIGENT-MISREPRESENTATION CLAIM

      Fikes’s negligent-misrepresentation claim was based on Ray’s alleged

advertisements and statements that he was “competent and experienced in handling

personal injury matters.”    This claim clearly alleged a communication under the

TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1). But the TCPA is

inapplicable because the alleged communications fell within the commercial-speech

exemption.

      Under this exemption, which Fikes raised and bore the burden to prove by a

preponderance of the evidence, the TCPA does not apply to “a legal action brought

against a person primarily engaged in the business of selling . . . services, if the

statement or conduct arises out of the sale . . . of . . . services . . . or a commercial
                                           9
transaction in which the intended audience is an actual or potential buyer or

customer.” Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Sess. Law

Serv. 960, 962 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann.

§ 27.010(a)(2)); see Forget About It, Inc. v. BioTE Med., LLC, 585 S.W.3d 59, 68 (Tex.

App.—Dallas 2019, pet. filed). Statements or conduct related to a service in the

marketplace are exempt from the TCPA’s application if the statement or conduct did

no more than propose a commercial transaction. See Castleman v. Internet Money Ltd.,

546 S.W.3d 684, 690 (Tex. 2018) (per curiam). In other words, if a defendant, by

statement or conduct, proposes a commercial transaction regarding the services he

provides in the marketplace, the statement or conduct is not made as a protected

exercise of the right to petition; thus, the commercial-speech exemption applies to

cause any claim based on the alleged statement or conduct to fall outside the

protections of the TCPA. See id. at 690 & n.4; Lesley-McNiel v. CP Restoration Inc.,

584 S.W.3d 579, 583–84 (Tex. App.—Houston [1st Dist.] 2019, no pet.).

      Fikes’s negligent-misrepresentation claim was against Ray—a person primarily

engaged in the business of selling legal services—and Ray’s advertisements and

statements of competence in personal-injury matters proposed a commercial

transaction in which the intended audience was potential and actual customer-clients.

See Tex. Civ. Prac. & Rem. Code Ann. § 27.010(a)(2) (amended 2019); Castleman,

546 S.W.3d at 689–90; Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181, 188–91

(Tex. App.—El Paso 2014, no pet.). Accordingly, Fikes’s claims arising from Ray’s
                                         10
commercial assertions that he could and would provide competent and experienced

personal-injury representation to his potential and actual clients, including Fikes, are

exempted from the TCPA’s application.             See NCDR, L.L.C. v. Mauze & Bagby,

P.L.L.C., 745 F.3d 742, 753–55 (5th Cir. 2014); Miller Weisbrod, 511 S.W.3d at 188–91;

see also, e.g., Bejarano v. Dorgan, No. 03-19-00182-CV, 2019 WL 4458798, at *2–3 (Tex.

App.—Austin Sept. 18, 2019, no pet.) (mem. op.); Lesley-McNiel, 584 S.W.3d at 583–

84; Forget About It, 585 S.W.3d at 69–70; Woodhull Ventures 2015, L.P. v. Megatel Homes

III, LLC, No. 03-18-00504-CV, 2019 WL 3310509, at *3 (Tex. App.—Austin July 24,

2019, no pet.) (mem. op.). See generally Castleman, 546 S.W.3d at 689–91 (concluding

commercial-speech exemption applies “only to certain communications,” i.e., those

that propose a commercial transaction to a defendant’s actual or potential customers,

including the plaintiff).

       Fikes met her burden to show the applicability of the commercial-speech

exemption by a preponderance of the evidence. Thus, the TCPA does not apply to

Fikes’s negligent-misrepresentation claim.

                                IV. CONCLUSION

       The TCPA does not apply to Fikes’s claims either because the claim did not

arise from a communication as defined by the TCPA or because the claim fell within

the commercial-speech exemption. Accordingly, the trial court did not err by denying

Ray’s motion to dismiss Fikes’s claims under the TCPA. We need not address Ray’s

issues directed to Fikes’s prima facie case or to Ray’s affirmative defense of collateral
                                             11
estoppel. See Tex. R. App. P. 47.1. We may not address Ray’s arguments directed to

the trial court’s separate order regarding Ray’s affidavit objections. Morrison,

578 S.W.3d at 681 n.2. Thus, we affirm the trial court’s order denying Ray’s motion

to dismiss. See Tex. R. App. P. 43.2(a).


                                                   /s/ Lee Gabriel

                                                   Lee Gabriel
                                                   Justice

Delivered: December 5, 2019




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