Opinion issued January 16, 2020




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-19-00059-CV
                           ———————————
                           RICH ROBINS, Appellant
                                        V.
        AUSTEN PERRY CLINKENBEARD AND JONATHON G.
        CLINKENBEARD A/K/A JON CLINKENBEARD, Appellees


            On Appeal from the County Civil Court at Law No. 3
                          Harris County, Texas
                      Trial Court Case No. 1107951


                         MEMORANDUM OPINION

     Rich Robins appeals the denial of his motion, filed pursuant to the Texas

Citizen’s Participation Act (TCPA),1 to dismiss Austen Perry Clinkenbeard and


1
     We note that, in its most recent session, the Texas Legislature amended the TCPA.
     The amendments became effective September 1, 2019. Because this suit was filed
Jonathon G. Clinkenbeard’s professional malpractice case against him.2 In three

issues, Robins argues that the trial court erred in denying his motion because

(1) the Clinkenbeards’ claims are based on, related to, or in response to TCPA-

protected communications; (2) the Clinkenbeards failed to come forward with

sufficient evidence to establish a prima facie case to support their claims; and (3)

Robins established defenses to the Clinkenbeards’ claims.

      We affirm.

                                    Background

      We recently affirmed the order of the 61st Harris County District Court

denying Robins’s TCPA motion to dismiss the Commission for Lawyer

Discipline’s professional misconduct case against him. See Robins v. Commission

for Lawyer Discipline, No. 01-19-00011-CV, 2020 WL 101921 (Tex. App.—

Houston [1st Dist.] Jan. 9, 2020, no pet. h.). Because the factual allegations in that

case are the same as in this case, we will provide an abridged background here.




      before the effective date of the amendments, it is governed by the statute as it
      existed before the amendments, and all of our citations and analysis are to the
      TCPA as it existed prior to September 1, 2019. See Act of May 17, 2019, 86th
      Leg., R.S., ch. 378, §§ 1–12, 2019 Tex. Sess. Law Serv. 684, 684–87(codified at
      TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011).
2
      See TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(b) (authorizing interlocutory
      appeal of order denying motion to dismiss filed under TCPA section 27.003).

                                          2
The Crisp Lawsuit

      In July 2012, Cindy Crisp, who suffered from multiple sclerosis, sold certain

items of personal property to estate liquidator John Sauls for a total price of

$6,893.21. Sauls sent Crisp payment in the form of two checks, both of which

bounced.

      By handwritten letter dated October 3, 2013, Crisp asked attorney Robins to

help her recover “the value of checks plus interest and attorney/court costs” from

Sauls, and she stated that she “understands the attorney fees will not be of normal

value and that Rich Robins is doing this to help her to honor the checks that were

written NSF and fees and costs.”

      Over the course of the following year and a half, Crisp’s health further

declined and Robins fell out of contact with her. Nevertheless, Robins filed suit on

behalf of Crisp to collect payment from Sauls for the bounced checks, “thinking

that [Crisp was] hopefully still alive somewhere, albeit in a potentially very

compromised state of health.” The petition, filed on November 17, 2016, stated

that Crisp “would diplomatically settle this case through her legal counsel for

$14,338 if no further wrangling is necessary to finally conclude this unfortunate

matter.”

      In early 2017, Sauls’s attorney, Kurt Noell, offered to settle the case for the

amount of the debt. Robins rejected the offer, sticking to the demand stated in the


                                         3
petition. Noell then made a second offer, for the amount of the debt plus $2,500 for

loss of use and attorney’s fees, but Robins rejected that offer also.

      In March 2017, Crisp’s two sons, Austen and Jon Clinkenbeard, informed

Robins that their mother had died in 2015. Around the same time, Noell served

discovery on Robins. According to Noell, he had a conversation with Robins

during which Robins discussed potential dates for Crisp’s deposition—all the

while knowing that Crisp had been deceased for over two years but failing to

disclose this information to Noell. When Robins failed to respond to Noell’s

written discovery requests, Noell filed a motion for sanctions and set it for hearing.

      Trial of the case was set for April 3, 2017, but Robins failed to appear, and

the trial court dismissed the case for want of prosecution. Robins filed “Plaintiff

Cindy Crisp’s Verified Motion to Reinstate,” claiming he was unaware of the

setting, and the trial court granted the motion, which, notably, did not mention that

Crisp had died over two years earlier.

      Two days before the June 29, 2017 sanctions hearing was to occur, Robins

emailed the court administrator to inform her that Crisp “is reportedly no longer

with us . . . . whether opposing counsel knows it or not” and that “her son wants to

fill in for her.” The email did not indicate that Crisp had been dead for years.

      It appears from the record that, in response to the suggestion of Crisp’s

death, the trial court cancelled the June 29 hearing and instead held a telephonic


                                           4
hearing, during which Robins “represented that Cindy Crisp was probably dead.”

The trial court directed Robins to produce proof of Crisp’s death.

      Several things happened as a result of the telephonic hearing. On July 4,

2017, Robins obtained from Austen Clinkenbeard a signed retainer agreement,

purporting to authorize Robins to represent Crisp through Austen and providing

that Robins’s fees would be paid by Sauls. Noell demanded that Robins produce, in

addition to Crisp’s death certificate, any evidence showing whether her estate had

been probated.

      Robins subsequently obtained Crisp’s death certificate and emailed it to

Noell on July 28, but he did not provide evidence regarding probate. As a result,

Noell filed a motion to show authority pursuant to Texas Rule of Civil Procedure

12. See TEX. R. CIV. P. 12 (stating that party may file motion to require challenged

attorney to appear before trial court to show authority to act on behalf of client).

The trial court granted the motion and ordered Robins to appear and show that

Crisp had authorized him to file the suit in her name and that “a probate proceeding

of some type has been filed so that any interest in her estate could be pursued by an

heir.” Robins responded, stating that “a probate court has never been involved with

Cindy Crisp’s passing or with her estate, and one need not be.”

      On September 18, the trial court held a hearing, at which Robins stated that

he had not filed a probate proceeding because he had no experience in probate


                                         5
court and he was trying to save his clients’ money. The trial court expressed

concern that Robins had filed the lawsuit “with a client that was deceased” and

without the authority of her heirs. When the trial court commented that it was

“strange” that Robins had only recently informed Noell that Crisp had died two

years earlier, Robins stated, “Well, we were trying to keep this within the

settlement range because he was almost there.” The trial court stated, “It sounds

like you were being dishonest with the opposing party,” to which Robins

responded, “Dishonest as opposed to saying, ‘Hey, I think my client is dead.’”

Before calling an end to the hearing, the trial court stated to Robins, “[y]ou were

dishonest.” The trial court then ordered Robins to submit additional briefing

regarding his authority to represent Crisp through Austen Clinkenbeard and stated

that it would strike Crisp’s pleadings if he failed to do so within ten days.

      Robins drafted affidavits for both Clinkenbeard brothers stating that probate

was not necessary. But the Clinkenbeards refused to sign because the affidavits

stated that Crisp had no debt. Robins then filed the supplemental briefing ordered

by the trial court. In it, he stated that the case could proceed with Austen

Clinkenbeard as plaintiff and—even though the Clinkenbeard brothers had told

him that they believed Crisp did have outstanding debt—that no probate

proceedings were necessary for Crisp’s estate. Robins also amended Crisp’s




                                           6
petition to add the allegation that no probate proceedings were necessary for

Crisp’s estate.

      On October 23, 2017, the trial court signed an order striking Crisp’s

pleadings and awarding Sauls $250 as sanctions, and on February 12, 2018, it

dismissed the case entirely.

The Aftermath

      Austen filed a grievance against Robins. The State Bar classified the

grievance as a “Complaint,” and the Commission for Lawyer Discipline filed a

petition in district court asking that Robins be reprimanded, suspended, or

disbarred.

      On January 22, 2018, the Clinkenbeards filed suit against Robins for legal

malpractice in Smith County, Texas. Robins was served on or about May 1, 2018.

      On March 26, 2018, Robins filed suit against the Clinkenbeards in Harris

County, Texas, alleging violations of the Texas Uniform Fraudulent Transfer Act.

See TEX. BUS. & COM. CODE ANN. §§ 24.001–.013. Specifically, he alleged that

Crisp’s transfer of her lake house to her sons caused her to become insolvent,

“which was done to the detriment of the legal endeavor that [Crisp] initiated with

Plaintiff Robins in which she ultimately ceased participation.” He further alleged

that Crisp “arranged the asset transfer” in a way that made the Clinkenbeards

“want to abandon [her] cause of action” that she “very much wanted to have


                                        7
pursued, as did the [Clinkenbeards] until they surprisingly changed their minds,

post-transfer.”

      The Clinkenbeards dismissed the Smith County case, and on September 21,

2018, asserted “the exact same” legal malpractice claim as a counterclaim in

Robins’s Harris County suit against them. They alleged that Robins engaged in

malpractice by:

   • providing unreasonable advice, including by stating that he “would
     not be surprised if the jury awards . . . in excess of $63K” on a
     $6,893.21 check insufficiency claim;
   • putting his own interests ahead of those of his clients, including by
     creating a situation in which the Clinkenbeards’ action “was not in
     [Robins’s] best interest to try to resolve unless and until he was
     offered attorneys’ fees” by Sauls, the defendant in that case;
   • asking them to sign a retainer agreement so he could respond to
     discovery to avoid having to attend a sanctions hearing because he did
     not “want to have to drive to Tyler” from Houston;
   • failing to keep them fully informed “about settlement discussions and
     the case proceedings”;
   • attempting to collect and threatening to sue them for his attorney’s
     fees, contrary to the retainer agreement;
   • failing to reasonably pursue the case and causing sanctions to be
     assessed;
   • causing the case to be dismissed; and
   • refusing to turn over the client file.

      The Clinkenbeards further alleged that the case could have been resolved

based on Noell’s settlement offer that Robins never communicated to them and

that the trial court could have been properly notified of Crisp’s death and the




                                        8
standing situation could have been resolved, but was not, because of Robins’s

actions.

Robins’s TCPA Motion to Dismiss

      On November 12, 2018, Robins filed a TCPA motion to dismiss the

Clinkenbeards’ counterclaim. He argued that the TCPA applies to the malpractice

claim because it is based on, related to, or in response to his exercise of the rights

of free speech, petition, and association. TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.005(b) (requiring dismissal of legal action if movant shows by preponderance

of evidence that action is based on, relates to, or is in response to movant’s

exercise of right of free speech, petition, or association). He contended that the

malpractice action “impinges on” his “constitutional and other rights under the

TCPA” and “is an intentional drain on Plaintiff Robins’ time and resources, as well

as a bullying maneuver intended to hinder Plaintiff Robins’ rights and abilities to

otherwise cultivate potentially rewarding associations with the general public.”

Robins also argued that the Clinkenbeards could not make a prima facie case for

legal malpractice and, even if they could do so, that he had established valid

defenses to their claim.

The Clinkenbeards’ Prima Facie Case

      In their response, the Clinkenbeards argued that Robins did not file his

TCPA motion to dismiss within the 60-day statutory deadline, when counted from


                                          9
the day he was served in the Smith County case. See id. § 27.003(b) (stating that

TCPA motion to dismiss “must be filed not later than the 60th day after the date of

service of the legal action”). The Clinkenbeards also argued that Robins failed to

meet his burden to show by a preponderance of the evidence that the TCPA applies

because   their   malpractice   cause   of    action   complains   about   Robins’s

misrepresentations to them, not his exercise of First Amendment rights, and the

misrepresentations Robins made to them are exempt from the TCPA under the

commercial speech exemption. See id. § 27.005(b) (stating that court shall dismiss

legal action if movant shows by preponderance of evidence that legal action is

based on, relates to, or is in response to movant’s exercise of right of free speech,

petition, or association); id. § 27.010(b) (exempting from TCPA legal actions

brought against person primarily engaged in business of selling or leasing goods or

services if statement or conduct arises out of sale or lease of goods, services, or

insurance product, insurance services, or commercial transaction in which intended

audience is actual or potential buyer or customer). Finally, they attached evidence

which they argued established a prima facie case for each element of their

malpractice claim, including Austen’s and Jon’s affidivits, which themselves

attached exhibits including several email conversations they had had with Robins,

Noell’s affidavit, a transcript of the September 18, 2017 hearing before the trial




                                         10
court in the Crisp case, and the Commission’s disciplinary petition filed against

Robins.

      The Clinkenbeards’ Affidavits

      The Clinkenbeards stated in their affidavits that, after they informed Robins

of their mother’s death, he began urging them to continue with the litigation. In

one email, which they attached as an exhibit, Robins remarked, “I want to get you

guys the biggest award realistically obtainable, but I need to balance that with how

law school’s painfully expensive,” and he stated that he “still owes considerably

more because the greedy feds charge such a high premium for student loans . . . .”

And in another email, also attached as an exhibit, Robins stated, “billing Sauls for

my several dozen (and growing) hours of attorney time . . . naturally remains a

priority for me . . . . The . . . cost of law school helps make that understandable.”

      A few days before the June 29, 2017 sanctions hearing was to occur, Robins

sent an email to the Clinkenbeard brothers asking them to execute retainer

agreements so that he could continue the Crisp litigation as their lawyer and stating

that he “would not be surprised if the jury awards [them] in excess of $63k” on

Crisp’s claim against Sauls. In the email, he acknowledged that neither the court

nor opposing counsel was aware of Crisp’s death, and he stated that if the

Clinkenbeards signed the retainer agreements, he might be able to avoid monetary

sanctions at the upcoming hearing.


                                          11
      When the Clinkenbeard brothers told Robins that they could not afford to

pay “any expenses or fees up-front,” Robins assured them that “Mr. Sauls would

eventually pay all of that.” He continued to advise them not to settle the case and

“would press [them] to continue litigation in court.” Only after they signed the

retainer agreement did Robins tell them that he had received a settlement offer for

the full amount of the bounced checks, and only recently—in the course of

discovery in the underlying malpractice suit against Robins—did they learn that

Noell had made another offer to settle “for the amount of the check plus $2,500,”

which was “also apparently declined by Mr. Robins without consulting” the

Clinkenbeards.

      Austen attended the September 18 hearing in the Crisp litigation. That

morning, Robins “began panicking because he had not brought the necessary

documents and he pleaded that [Austen] print out over a hundred pages of

documents at [his] hotel.” Robins “appeared to be completely unprepared,” and

Austen was “bothered” by what he observed at the hearing.” Robins “ranted and

raved and the judge admonished his behavior several times,” and “the judge

seemed to be mad at [Robins] about not promptly telling the court that [Crisp] had

died in 2015.” Austen further observed Robins “say on the record at a hearing in

court that he had no probate experience and had only filed the suit in county court




                                        12
to save money.” After the hearing, Austen “realized there might be more going on

in the case” than Robins had disclosed.

      Robins pressured Austen and Jon to sign the affidavits of heirship stating

that no probate proceedings were necessary. They sent an email to Robins

declining to sign the affidavits and explaining that Crisp did “have debt to the

nursing home she was in at the time of her passing and . . . to medicaid/care.” They

closed the email by asking Robins for a copy of their client file. But Robins did not

comply.

      The Clinkenbeard brothers sent Robins another email, stating that they were

“not comfortable swearing to such a bold claim” that Crisp had no pending claims

against her or any assets. They also expressed concern that the exact date Robins

had learned of Crisp’s death “was clearly such a sensitive issue with the judge last

week,” and they stated that they “no longer wish to pursue this matter” on their

mother’s     behalf     because,     while     their     “motivations   have       not

changed . . . circumstances and feelings about this case certainly have.” The email

concluded with another request to see the client file.

      Shortly thereafter, Austen and Jon spoke with Robins over the phone about

the case generally and the affidavits Robins wanted them to sign. They averred that

Robins was “very rude and insulting to us and to our late mother, who he said had

been a burden to him and the state.” They emailed Robins later that day, stating


                                          13
      I’m very upset with how that call went. Neither Austen or I have ever
      done anything to impede this trial nor have we claimed we wouldn’t
      help. We simply can’t sign the affidavits as-is . . . . I don’t think that’s
      any reason for threats and insinuating that our mother was and is a
      burden to you and the state.

The email also reiterated the brothers’ request to see their file.

      Robins responded with a scathing email accusing the Clinkenbeard brothers

of defrauding and betraying him and threatening to sue them for breach of the

retainer agreement. He wrote, “I cannot recall when I last witnessed such a display

of solipsistic callousness by two privileged young men such as yourselves.” As to

their requests to see their file, which he described as harassment, Robins stated that

although the brothers were in no position to “further mistreat” him or to “demand

repeated compliance,” their “questions and requests have been adequately

addressed in prior correspondence.”

      On October 20, 2017, the Clinkenbeard brothers sent Robins an email

terminating their relationship and, once again, demanding their file. In it, Austen

stated,

      After my assistance and travels to the court in Tyler, and witness of
      your courtroom performance, after repeated dismissals of
      conversations for potential settlement options, after repeated disregard
      for written requests for our case file, and after the deterioration of
      your communications with us, this matter has become one that we no
      longer wish to pursue with you.




                                           14
      Robins never sent the file. Instead, he began to demand attorney’s fees from

the Clinkenbeards, which surprised them “because [Robins] had always said he

would get paid his fees from Mr. Sauls.”

      Other Evidence of Malpractice

      The Clinkenbeards included Noell’s affidavit with their response to Robins’s

TCPA motion to dismiss. In it, Noell recounted his experiences with Robins over

the course of the litigation and stated that he incurred fees in representing Sauls for

“engaging in futile settlement negotiations (since Mr. Robins had no client to

consult about the settlement); appearing at a futile trial setting in April 2017 (since

Mr. Robins had no client); drafting and sending futile discovery requests (that

could never be answered or sworn-to by Ms. Crisp); trying to arrange for a futile

deposition; and preparing my client’s case for trial.”

      The Clinkenbeards also attached the transcript from the September 18

hearing at which the trial court stated that Robins was “dishonest” for having

withheld the fact of Crisp’s death from opposing counsel.

      Finally, the Clinkenbeards attached the Commission’s disciplinary petition,

which alleged that Robins “took no immediate action to notify the court or Sauls’

counsel of Crisp’s death,” “never advised [the Clinkenbeards] that there could be a

problem with the case because there was no probate case or estate representative,”

“did not have authority to bring the suit on Crisp’s behalf,” “did not give the


                                           15
Clinkenbeards’ their file,” and “demanded that they pay his attorney’s fees and

expenses, which was contrary to the retainer agreement.” The petition alleged that

this conduct violated the Texas Disciplinary Rules of Professional Conduct. See

TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.15(d), reprinted in TEX. GOV’T

CODE ANN., tit. 2, subtit. G, app. A (TEX. STATE BAR R. art. X, § 9) (requiring

lawyer to surrender client’s “papers and property” to client upon termination of

representation); id. 3.01 (prohibiting lawyer from filing frivolous case); id. 3.02

(prohibiting lawyer from taking position that causes unreasonable increase in costs

or delay); id. 3.03(a)(2) (stating that lawyer may not “fail to disclose a fact to a

tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent

act”); id. 8.04(a)(3) (prohibiting lawyer from engaging in dishonest, fraudulent, or

deceitful conduct or misrepresentations).

      In his reply, Robins argued that his TCPA motion to dismiss was timely

filed because the 60-day deadline to file began to run on the date the Clinkenbeards

filed their counterclaim in the underlying suit, not when they filed their suit against

him in Smith County, because the retainer agreement contained a forum selection

clause that required them to bring suit in Harris County. He also argued that the

Clinkenbeards failed to carry their burden to present clear and specific evidence of

a prima facie case for each element of their malpractice claim for several reasons.

First, their affidavit evidence was defective because it contained hearsay, was


                                          16
“unsworn under penalty of perjury,” and did not “detail [affiants’] criminal

records.” Second, they failed to provide expert testimony. And third, Robins

argued, and included twenty-seven exhibits to show, that (1) he had Crisp’s

permission to file the suit against Sauls; (2) his “tentative opining” to the

Clinkenbeards about “possible financial recoveries from a jury was not

malpractice”; (3) he did tell the Clinkenbeards that Crisp’s case would be harmed

by their “refusal to provide an affidavit of heirship”; (4) he “coped with difficult

circumstances” when he appeared at the September 18, 2017 hearing; and (5) the

Clinkenbeards were aware of Noell’s settlement offers.

      On January 14, 2019, after two hearings, the trial court denied Robins’s

motion to dismiss without stating the grounds upon which it relied. Robins appeals

this order.

                        Texas Citizen’s Participation Act

A.    Standard of Review

      We review de novo the denial of a TCPA motion to dismiss. Dolcefino v.

Cypress Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.] 2017,

no pet.). In determining whether to grant or deny a TCPA motion to dismiss, the

court must consider “the pleadings and supporting and opposing affidavits stating

the facts on which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE

ANN. § 27.006(a). We view the evidence in the light most favorable to the


                                        17
nonmovant. Dolcefino, 540 S.W.3d at 199; see Cheniere Energy, Inc. v. Lotfi, 449

S.W.3d 210, 214 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

B.    TCPA Statutory Scheme

      The TCPA was enacted to safeguard the constitutional rights to petition,

speak freely, associate freely, “and otherwise participate in government” from

infringement by meritless lawsuits. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.002. To achieve this purpose, the TCPA provides for dismissal if the movant

shows by a preponderance of the evidence that a legal action filed against it is

based on, relates to, or is in response to the moving party’s exercise of the right of

free speech, the right to petition, or the right of association. Id. § 27.005(b).

      If the movant meets this burden, the trial court must dismiss the action

unless the nonmovant establishes by “clear and specific evidence a prima facie

case for each essential element of the claim in question.” Id. § 27.005(c); In re

Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding) (“In reviewing [a

TCPA motion to dismiss], the trial court is directed to dismiss the suit unless ‘clear

and specific evidence’ establishes the plaintiffs’ ‘prima facie case.’”) (citing TEX.

CIV. PRAC. & REM. CODE ANN. § 27.005(c)).

      Once a TCPA nonmovant establishes a prima facie case for its claim, the

movant may still obtain a dismissal of the legal action if it “establishes by a




                                           18
preponderance of the evidence each essential element of a valid defense to the

nonmovant’s claim.”3 TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d).

C.    Timeliness of Motion

      We begin by addressing the Clinkenbeards’ contention that the trial court did

not err in denying Robins’s TCPA motion to dismiss because it was untimely filed.

      Absent leave of court for good cause, a TCPA motion to dismiss “must be

filed not later than the 60th day after the date of service of the legal action.” Id.

§ 27.003(b). The clock for the 60-day filing deadline begins to run “on the date on

which [movant] was served with the first pleading alleging a cause of action

against [it].” Bacharach v. Garcia, 485 S.W.3d 600, 602 (Tex. App.—Houston

[14th Dist.] 2016, no pet.); accord Jordan v. Hall, 510 S.W.3d 194, 197–98 (Tex.

App.—Houston [1st Dist.] 2016, no pet.).

      The Clinkenbeards argue that the first pleading in which they asserted their

legal malpractice claim against Robins was the petition they filed in their original

suit in Smith County, which they later dismissed. They contend that because

Robins was served on or about May 1, 2018, in the Smith County suit, he had only

until June 30, 2018, to file his TCPA motion to dismiss in this Harris County suit,


3
      The amended TCPA requires dismissal of the underlying suit if the moving party
      “establishes an affirmative defense or other grounds on which the moving party is
      entitled to judgment as a matter of law.” See Act of May 17, 2019, 86th Leg., R.S.,
      ch. 378, §§ 1–12, 2019 Tex. Sess. Law Serv. 684, 684–87(codified at TEX. CIV.
      PRAC. & REM. CODE ANN. § 27.005(d)).

                                          19
and his November 12, 2018 filing was therefore untimely. The Clinkenbeards rely

on the rule that subsequent filings asserting the same claim do not extend the

TCPA deadline. See Jordan, 510 S.W.3d at 198 (“[T]he deadline for a TCPA

motion is not reset when a plaintiff files an amended petition that adds no new

claims and relies upon the same factual allegations underlying an original

petition.”). They argue that this rule reaches beyond the confines of the case in

which the TCPA motion to dismiss is filed, such that the 60-day deadline begins to

run on the date a defendant is served in a separate proceeding, including in another

case, in another court, in a different county, as long as the claims are the same. We

disagree and hold that the deadline for Robins to file his TCPA motion to dismiss

was 60 days after he was served in this case, in Harris County. See Walker v.

Hartman, 516 S.W.3d 71, 79 (Tex. App.—Beaumont 2017, pet. denied) (holding

that 60-day deadline for filing TCPA motion to dismiss began to run when movant

was served with legal action in state court, not when he was served with earlier-

filed case in federal court; “a common nucleus of operative facts” does not make

subsequent lawsuit filed in different court “tantamount to the lawsuit previously

filed”). Because the Clinkenbeards have not shown that Robins’s TCPA motion to

dismiss was filed outside the 60-day deadline, we cannot affirm the trial court’s

denial of the motion on that basis.




                                         20
D.    Prima Facie Case

      In his second issue, Robins argues that the Clinkenbeards failed to carry

their burden to establish a prima facie case for legal malpractice by clear and

specific evidence because the affidavits they provided are conclusory, contain

hearsay, and are otherwise defective; the Commission’s petition should not be

considered because is not probative of Robins’s alleged malpractice; and the

Clinkenbeards failed to provide expert testimony.4

      Under TCPA section 27.005(c), the trial court may not dismiss if the

plaintiff establishes “by clear and specific evidence a prima facie case for each

essential element of the claim in question.” TEX. CIV. PRAC. & REM. CODE ANN. §

27.005(c). In this context, the Texas Supreme Court has clarified that “clear”

means “‘unambiguous,’ ‘sure,’ or ‘free from doubt’” and “specific” means

“‘explicit’ or ‘relating to a particular named thing.’” See In re Lipsky, 460 S.W.3d

at 590 (quoting KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex.

App.—Houston [1st Dist.] 2013, pet. denied)). “[P]rima facie case” means

“evidence sufficient as a matter of law to establish a given fact if it is not rebutted

or contradicted.” Id. In other words, a prima facie case is the “minimum quantum

of evidence necessary to support a rational inference that the allegation of fact is

4
      Due to our disposition of Robins’s second issue, we need not address his first
      issue, in which he challenges the applicability of the TCPA to the Clinkenbeards’
      claims. See TEX. R. APP. P. 47.1 (stating that appellate court opinions should be as
      brief as practicable in addressing only issues necessary to final disposition).

                                           21
true.” Id. (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223

(Tex. 2004) (per curiam)); see also Universal Plant Servs., Inc. v. Dresser-Rand

Grp., Inc., 571 S.W.3d 346, 359 (Tex. App.—Houston [1st Dist.] 2018, no pet.)

(“The TCPA requires only that evidence be ‘clear,’ ‘specific,’ and ‘sufficient as a

matter of law to establish a given fact if it is not rebutted or contradicted.’”)

(quoting In re Lipsky, 460 S.W.3d at 590).

      The Clinkenbeards’ petition alleges that Robins committed legal

malpractice. To recover on a claim for malpractice, a client must establish: (1) the

attorney owed a duty of care to the client; (2) the attorney breached that duty; and

(3) the attorney’s breach proximately caused damage to the client. Rogers v.

Zanetti, 518 S.W.3d 394, 400 (Tex. 2017).

      The first element of malpractice is not at issue, as Robins concedes that he

was the Clinkenbeards’ attorney. Robins therefore owed the Clinkenbeards a duty

to act with ordinary care, i.e., in a manner consistent with the standard of care

expected to be exercised by a reasonably prudent attorney. See Cosgrove v.

Grimes, 774 S.W.2d 662, 664 (Tex. 1989).

      As to the second element, breach of the duty of care, the Clinkenbeards’

counterclaim alleged with detail that Robins engaged in malpractice by providing

unreasonable advice, for instance, in encouraging them to continue litigating a

$6,893.21 bounced check claim with the reasonable expectation of a jury award “in


                                        22
excess of $63K”; putting his own interests ahead of his clients’ by, for example,

creating a situation in which it was not in his best interest to resolve his clients’

action unless he was offered attorneys’ fees; failing to keep his clients fully

informed about settlement discussions and the case proceedings, such as by

neglecting to tell them about Noell’s settlement offers and failing to inform them

about the issues regarding his authority to bring the suit; attempting to collect and

threatening to sue his clients for fees they were not responsible for paying under

their retainer agreement; causing sanctions and dismissal of his clients’ case; and

refusing to turn over the client file.

      Additionally, the Clinkenbeards provided three affidavits—one from each of

the two Clinkenbeard brothers and one from attorney Noell. The affidavits, which

are supported by exhibits including emails between Robins and the Clinkenbeards,

identify numerous specific instances of Robins’s alleged misconduct.

      The record also contains a transcript of the “botched” September 18, 2017

hearing on the motion to show authority in the Crisp litigation, in which the trial

court “concluded that Robins acted without authority and was dishonest with the

Court and opposing counsel,” and the Commission’s disciplinary petition alleging

professional misconduct, which the Clinkenbeards argue is evidence that the State

Bar of Texas found Robins’s conduct to have been “so extreme and outrageous that




                                         23
it is seeking to disbar him for multiple violations of the rules of professional

conduct.”

      The legal malpractice counterclaim, affidavits, emails, hearing transcript,

and disciplinary petition together provide clear and specific evidence of Robins’s

negligent conduct, including evidence of Robins’s failure to:

         • confirm that Crisp was still alive before filing suit in her name;
         • consult with the Clinkenbeards regarding authority before filing
           Crisp’s suit;
         • obtain authority prior to rejecting multiple settlement offers;
         • advise the Clinkenbeards regarding the necessity of probating
           Crisp’s estate in order to advance her claim against Sauls;
         • inform the Clinkenbeards realistically regarding the amount of
           money they could recover;
         • prepare for a hearing on a dispositive motion to dismiss for lack
           of authority;
         • take the necessary steps and to advise the Clinkenbeards
           regarding those steps to correct the lack of authority, despite
           repeated warnings from the trial court; and
         • turn over the Clinkenbeards’ client file despite their repeated
           requests.

See In re Lipsky, STANDARD FOR PFC

      With regard to the third element of a malpractice claim combining proximate

cause and damages, the Clinkenbeards’ petition states that the litigation against

Sauls “could have been resolved based on Mr. Sauls’ settlement offer” for the full

amount of the bounced checks. See Rogers, 518 S.W.3d at 400 (listing proximate

cause and damages as third element of legal malpractice claim). And the evidence

shows that Robins unilaterally rejected two settlement offers, including one for the

                                        24
full amount plus $2,500 for attorney’s fees and loss of use. As a result of Robins’s

failure to show his authority, the Clinkenbeards’ pleadings were stricken, their case

was dismissed, and they ultimately recovered nothing.

      Having reviewed the evidence, we conclude that the Clinkenbeards met their

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

element of their legal malpractice claim. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.005(c).

      Robins responds by challenging the Clinkenbeards’ evidence. First, he

argues that the Clinkenbeards’ and Noell’s affidavits are “[p]lagued with mere

conclusory accusations and other statements.” See Better Bus. Bureau of Metro.

Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 355 (Tex. App.—Houston

[1st Dist.] 2013, pet. denied) (“Conclusory statements are not probative and

accordingly will not suffice to establish a prima facie case.”); see also TEX. CIV.

PRAC. & REM. CODE ANN. § 27.006(a) (stating that in ruling on TCPA motion to

dismiss, courts must consider affidavits that “stat[e] the facts on which the liability

or defense is based”); In re Lipsky, 460 S.W.3d at 592 (explaining that “[b]are,

baseless opinions” are not “a sufficient substitute for the clear and specific

evidence required to establish a prima facie case” under TCPA). But Robins does

not identify which statements in the affidavits he contends are conclusory. See

TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for


                                          25
the contentions made, with appropriate citations to authorities and to the record.”).

He therefore presents nothing for review under this argument. See Churchill v.

Mayo, 224 S.W.3d 340, 347 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)

(holding that brief that “fails to identify which statements in the affidavit are

defective” is inadequate under Rules of Appellate Procedure); see also Pouncy-

Pittman v. Pappadeaux Seafood Kitchen, No. 01-07-00575-CV, 2008 WL

2930183, at *8 (Tex. App.—Houston [1st Dist.] July 31, 2008, no pet.) (mem. op.)

(holding that appellant waived issue challenging affidavit as conclusory by failing

to specify which statements were conclusory or without support).

      Robins next argues that the affidavits contain “completely undetailed

hearsay about what Appellant Robins supposedly said (but in fact never said…),”

are “unsworn under penalty of perjury,” and fail to “detail the affiants’ criminal

records.” Here again, Robins does not identify which statements he contends are

hearsay or provide any analysis or authority to show why they are inadmissible,

nor does he identify any authority for his assertion that the affiants were required

to detail their criminal records or that they were improperly notarized.

Accordingly, he has waived these arguments on appeal. See TEX. R. APP. P. 38.1(i)

(“The brief must contain a clear and concise argument for the contentions made,

with appropriate citations to authorities and to the record.”); see also Thomann v.

Lakes Reg’l MHMR Ctr., 162 S.W.3d 788, 794 (Tex. App.—Dallas 2005, no pet.)


                                         26
(“A general directive to review affidavits for hearsay and impermissible

conclusions is not sufficient to direct our attention to the error about which

[appellant] complains.”).

      Additionally, because these objections are to form, not substance, Robins

was required to preserve them in the trial court. See Seim v. Allstate Tex. Lloyds,

551 S.W.3d 161, 166 (Tex. 2018) (holding that objections to affidavit that it (1)

stated that facts in affidavit were true instead of stating that facts in expert’s reports

were true, (2) lacked notary’s signature, and (3) did not attach reports, were

objections to affidavit’s form, rather than substance, and therefore subject to error

preservation rule that required trial court’s ruling on objections); see also TEX. R.

APP. P. 33.1(a)(2)(A) (stating that to preserve error, record must show that trial

court ruled on objection or, if it refused to rule, that complaining party objected to

refusal to rule). Although Robins did broadly raise his hearsay, “unsworn under

penalty of perjury,” and failure to “detail the affiants’ criminal records” objections

in his reply in support of his TCPA motion to dismiss, the record does not reflect

that the trial court ruled on the objections. Therefore, Robins failed to preserve

them for our review. See Deuell v. Tex. Right to Life Comm., Inc., 508 S.W.3d 679,

688 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (holding, in affirming

denial of TCPA motion to dismiss, that appellant failed to preserve complaint that

appellee’s evidence of prima facie case constituted hearsay because appellant


                                           27
failed to obtain ruling on objection); Schmitz v. Cox, No. 01-15-00199-CV, 2015

WL 6755427, at *3 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015, no pet.) (mem.

op.) (holding that TCPA movant’s failure to object and obtain ruling waived

complaint that nonmovant’s affidavit evidence of prima facie case was deficient

for lack of personal knowledge).

      Robins next objects to the Clinkenbeards’ use of the Commission’s

professional misconduct petition as evidence of malpractice. He argues that the

petition, which the Commission filed after having determined that the

Clinkenbeards’ grievance merited pursuing, “is entitled to no weight in resolving a

related civil case as the Bar still has the burden to prove its case by a

preponderance of the evidence.” See TEX. RULES DISCIPLINARY P. R. 3.08(C),

reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A-1 (TEX. STATE BAR R.

art. X, § 9) (“Disciplinary Actions must be proved by a preponderance of the

evidence.”). Again, Robins fails to provide any authority for this argument, and so

we do not consider it. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear

and concise argument for the contentions made, with appropriate citations to

authorities and to the record.”). In any event, the Commission’s petition was based

on the Clinkenbeards’ grievance over the same conduct by Robins, and their

factual allegations are nearly identical. Consequently, any evidence gleaned from




                                        28
the Commission’s petition is largely duplicative of that contained in the

Clinkenbeards’ petition.

      Finally, Robins argues that the Clinkenbeards “lack any expert witness

testimonial affidavits to purportedly back their allegations of legal malpractice.”5

Although Robins made this objection to the trial court in his reply brief supporting

his TCPA motion to dismiss, the record does not reflect that he obtained a ruling

on it. See In re A.J.H., No. 14-03-01016-CV, 2004 WL 414093, at *5 n.3 (Tex.

App.—Houston [14th Dist.] Mar. 2, 2004, no pet.) (mem. op.) (holding that, in

challenge to sufficiency of evidence based on lack of expert testimony, failure to

object to testimony of witnesses on basis that they were not qualified as experts to

render their opinions waived complaint on appeal) (citing TEX. R. APP. P. 33.1(a)).

      Further, Robins fails to cite any authority indicating that expert testimony

was required under these circumstances. See TEX. R. APP. P. 38.1(i) (“The brief

must contain a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.”); see also, e.g., In re A.L.B.,

No. 01-17-00547-CV, 2017 WL 6519969, at *6 n.4 (Tex. App.—Houston [1st

5
      Robins also states, “It is worth noting that in order to prove an action for legal
      malpractice, the [Clinkenbeards] must establish that they suffered damages,” and
      he avers that he has “successfully managed to recover a replacement of the
      previously bounced check . . . which had previously necessitated the underlying
      lawsuit.” There is no evidence of this replacement check in the record. We
      therefore do not consider Robins’s apparent argument based upon the check, i.e.,
      that the Clinkenbeards have failed to carry their TCPA burden to show a prima
      facie case of damages, an element of their malpractice claim against him.

                                          29
Dist.] Dec. 21, 2017, no pet.) (mem. op.) (holding that complaint that drug test

evidence could not be considered without expert witness testimony was waived for

failure to raise objection in trial court and for inadequate briefing where appellant

did not provide “authority indicating that expert testimony was required under

these circumstances”). Robins does not provide any authority for his assertion that

establishing clear and specific evidence of a prima facie case requires expert

testimony. Cf. Moldovan v. Polito, No. 05-15-01052-CV, 2016 WL 4131890, at

*15 (Tex. App.—Dallas Aug. 2, 2016, no pet.) (mem. op.) (holding that because

“clear and specific evidence” means “enough detail to show the factual basis for

[plaintiff’s] claim,” lack of expert testimony on damages “is not fatal to

[nonmovant]’s prima facie case”) (quoting In re Lipsky, 460 S.W.3d at 590). And

the text of the TCPA states no such requirement. Cf. TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351 (requiring plaintiff asserting health care liability claim to serve

statutorily sufficient expert report to avoid dismissal). And requiring a party to

present expert testimony to avoid dismissal so early in the life of a lawsuit, in most

cases before discovery has even begun, would be inconsistent with the Texas Rules

of Civil Procedure, which generally do not require disclosure of experts until 90

days before the end of the discovery period. Compare TEX. CIV. PRAC. & REM.

CODE ANN. § 27.003(b) (stating that deadline to file TCPA motion to dismiss is 60

days after service of legal action), with TEX. R. CIV. P. 195.2(a) (requiring parties


                                         30
seeking affirmative relief to designate experts 90 days before end of discovery

period or 30 days after served with request, “[u]nless otherwise ordered by the

court”).

      Finally, requiring a nonmovant to provide expert testimony to defeat

dismissal of his claims at the TCPA stage asks more of him than the Texas

Supreme Court has held his burden to be: to provide a “minimum quantum” of

clear and specific evidence to support a rational inference that his allegations of

fact are true on each element of each claim. See In re Lipsky, 460 S.W.3d at 590. In

any event, expert testimony is not always necessary for a plaintiff to prevail on a

legal malpractice claim. See Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113,

119 (Tex. 2004) (holding that although expert witness testimony is required in

legal malpractice cases when causal link is “beyond the jury’s common

understanding,” “[i]n some cases the client’s testimony may provide this link”).

      Because all of Robins’s challenges to the Clinkenbeards’ prima facie case

are unpreserved or inadequately briefed, we conclude that he has not presented

grounds for reversal of the trial court’s implied finding that the Clinkenbeards

carried their TCPA burden to establish a prima facie case for legal malpractice by

clear and specific evidence. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c)

(stating that court may not grant TCPA motion to dismiss if nonmovant establishes




                                        31
by clear and specific evidence prima facie case for each essential element of

claim).

      We overrule Robins’s second issue.

E.    Defenses

      In his third issue, Robins argues that he is entitled to dismissal under the

TCPA because he established by a preponderance of the evidence each essential

element of valid defenses to the Clinkenbeards’ malpractice claim. See id.

§ 27.005(d) (stating that once TCPA nonmovant establishes prima facie case for its

claim, movant may still obtain dismissal by establishing by preponderance of

evidence each essential element of valid defense to nonmovant’s claim).

Specifically, he asserts that (1) he did have Crisp’s permission to file the suit

against Sauls; (2) his “expressly tentative opining” to the Clinkenbeards about the

recovery they could expect from Crisp’s case “was candor, not malpractice”; (3) he

did tell the Clinkenbeards that Crisp’s case would be harmed if they did not sign

the proposed affidavits of heirship; (4) he “coped with difficult circumstances”

when he appeared at the September 18, 2017 hearing; and (5) the Clinkenbeards

were aware of Noell’s settlement offers.

      This catalogue of assertions fails to identify a “valid defense” to the

Clinkenbeards’ legal malpractice claim. See id. These assertions are more in the

nature of rebuttal to the Clinkenbeard’s prima facia case, and four of the five


                                           32
assertions merely dispute the Clinkenbeards’ facts. Because we only consider the

Clinkenbeards’ evidence in determining whether they met their burden of

establishing a prima facie case under the TCPA, we do not consider these factual

assertions or the evidence Robins claims support them. See West v. Quintanilla,

573 S.W.3d 237, 243 n.9 (Tex. 2019) (“[Movant] vigorously disputes many of

[nonmovant]’s factual allegations, but at this point we must decide only whether

[nonmovant] has established a prima facie case by clear and specific evidence.

Prima facie evidence is merely the minimum quantum of evidence necessary to

support a rational inference that the allegation of fact is true. A finding that

[nonmovant] has met his TCPA burden does not establish that his allegations are

true.” (quotations omitted)); D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d

429, 440 n.9 (Tex. 2017) (refusing to consider TCPA movant’s rebuttal evidence in

determining whether nonmovant established prima facie case, stating that although

movant “disputes [nonmovant’s factual assertion] . . . at this stage of the

proceedings we assume its truth”).

      The only item on Robins’s list of “defenses” that is not a factual assertion

challenging the Clinkenbeards’ prima facie case is the second, concerning his

comment to the Clinkenbeards regarding the amount of money they could recover

on Crisp’s bounced-check claim. Robins argues that this comment does not

constitute malpractice because the retainer agreement “makes it sufficiently clear”


                                        33
that he “does not guarantee the outcome of the trial” and his comment “by no

means states as a fact what the jury outcome would be.” Even construing this as an

argument that the Clinkenbeards’ allegations, taken as true, are insufficient as a

matter of law to support a malpractice claim, we do not consider it because Robins

has not provided any analysis or authority to support it. See TEX. R. APP. P. 38.1(i)

(“The brief must contain a clear and concise argument for the contentions made,

with appropriate citations to authorities and to the record.”).

      We overrule Robins’s third issue.

                                     Conclusion

      We affirm the trial court’s order denying Robins’s TCPA motion to dismiss.




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Justices Keyes, Goodman, and Countiss.




                                          34
