                              Fourth Court of Appeals
                                     San Antonio, Texas
                                               OPINION

                                        No. 04-18-00596-CV

                            BROWN SIMS, P.C. and Nelson D. Skyler,
                                       Appellants

                                                  v.

   L.W. MATTESON, INC., AGCS Marine Insurance Company, and New York Marine and
                          General Insurance Company,
                                   Appellees

                     From the 381st Judicial District Court, Starr County, Texas
                                     Trial Court No. DC-18-55
                            Honorable Jose Luis Garza, Judge Presiding

Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Irene Rios, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: September 30, 2019

AFFIRMED IN PART; REVERSED IN PART

           At issue in this appeal is whether the TCPA, Texas’s anti-SLAPP statute, applies to a

malpractice suit brought by a former client against its attorneys. In considering the plain language

of the TCPA and precedent by the Texas Supreme Court, we conclude (1) the TCPA does apply

to the malpractice suit at issue in this case and (2) the former client established a prima facie case

for its malpractice claim. Thus, we affirm in part the trial court’s order denying the motion to

dismiss pursuant to the TCPA. However, because the former client nonsuited other claims before

the hearing on the motion to dismiss, we agree the trial court should have awarded reasonable
                                                                                       04-18-00596-CV


attorney’s fees and sanctions with respect to those nonsuited claims. Accordingly, we reverse the

trial court’s order in part.

                                           BACKGROUND

        When L.W. Matteson, Inc. (“Matteson”), a dredging contractor, was sued in March 2012

by its former employee Jose Flores, it hired attorney Nelson D. Skyler and the law firm Brown

Sims, P.C. (“Brown Sims”) to represent it. Flores had filed a maritime personal injury suit in Starr

County, Texas, pursuant to the Jones Act, as codified in 46 U.S.C. § 30104. Flores alleged that

Matteson was negligent by failing to furnish him with a reasonably safe place to work and by

failing to provide a seaworthy vessel. Flores alleged that in late July 2010, he was working on a

dredging vessel owned by Matteson when he believed he was bitten by a spider. Flores received

medical treatment for his swollen hand and returned to work in mid-August. He continued working

for Matteson until the dredging vessel completed its contract in November. On March 8, 2013,

after being diagnosed with liver cancer, Flores passed away. His estate substituted in as plaintiff.

In December 2015, the case proceeded to trial, and a jury found Flores’s estate was entitled to

$41.104 million in damages. Flores’s son then filed his own lawsuit against Matteson. Matteson

settled both lawsuits for $10 million.

        On January 25, 2018, Matteson, along with AGCS Marine Insurance Co. (“AGCS

Marine”) and New York Marine and General Insurance Co. (“NY Marine”), the insurance

companies that provided Matteson with excess coverage, filed the underlying legal malpractice

suit against Skyler and the law firm Brown Sims. On appeal, Matteson, AGCS Marine and NY

Marine point to two specific alleged breaches of the standard of care by Skyler and Brown Sims:

(1) the failure to raise the federal limitation-of-liability statute by either pleading it as an

affirmative defense or by filing a limitation-of-liability action in federal court; and (2) the failure

to file a special appearance based on lack of personal jurisdiction. Two-and-a-half months later,


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                                                                                               04-18-00596-CV


Skyler and Brown Sims filed a motion to dismiss pursuant to the TCPA, arguing that the claims

brought against them implicated their right to petition and their right to free speech. Matteson,

AGCS Marine, and NY Marine responded by arguing that the TCPA did not apply; in the

alternative, they produced evidence to support their prima facie case of legal malpractice. After

the trial court denied the motion to dismiss, Skyler and Brown Sims filed this interlocutory appeal.

             MOTION TO DISMISS UNDER THE TEXAS CITIZENS PARTICIPATION ACT

        The TCPA’s stated purpose is 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 ANN. § 27.002. 1 In

an aim to fulfill this purpose, the TCPA provides for dismissal of a “legal action” that “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” unless the plaintiff establishes “by clear and specific evidence a prima facie

case for each essential element of the claim in question.” Id. §§ 27.003(a), 27.005(c).

        A party moving for dismissal under the TCPA has the initial burden of showing by a

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

party’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of

association.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b); see S & S Emergency Training

Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018). If the movant makes this showing, the

burden shifts to the respondent. See S & S, 564 S.W.3d at 847. The respondent’s claims against

the movant will be dismissed unless the respondent can “establish[] by clear and specific evidence


1
  The Legislature amended the TCPA in June 2019. However, the amendments to the TCPA apply only to an action
filed on or after September 1, 2019. An action filed before September 1, 2019 is governed by the law in effect
immediately before September 1, 2019. This case was filed before September 1, 2019. Thus, the 2019 amendments to
the TCPA do not apply here, and the TCPA as it existed prior to September 1, 2019 is quoted in this opinion.


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                                                                                           04-18-00596-CV


a prima facie case for each essential element of the claim in question.” TEX. CIV. PRAC. & REM.

CODE ANN. § 27.005(c); see S & S, 564 S.W.3d at 847. The supreme court has explained that “a

prima facie case is the ‘minimum quantum of evidence necessary to support a rational inference

that the allegation of fact is true.’” S & S, 564 S.W.3d at 847 (quoting In re Lipsky, 460 S.W.3d

579, 590 (Tex. 2015)). “A finding that [the respondent] has met his TCPA burden does not

establish that his allegations are true.” West v. Quintanilla, 573 S.W.3d 237, 243 n.9 (Tex. 2019).

        If the respondent satisfies his burden, then the burden shifts back to the movant to establish

“by a preponderance of the evidence each essential element of a valid defense” to the respondent’s

claim. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d). If, on the other hand, the respondent does

not satisfy his TCPA burden, then the trial court must dismiss the legal action. Id.

        In determining whether the respondent has met its burden, the trial court does not hear live

testimony; the TCPA directs courts to “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). The supreme court has “recently observed that the pleadings are ‘the best

and all-sufficient evidence of the nature of the action.’” West, 573 S.W.3d at 242 n.8 (quoting

Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017)).

        An appellate court reviews issues regarding interpretation of the TCPA de novo. S & S,

564 S.W.3d at 847.

        A. Does the TCPA apply?

        The parties dispute whether the TCPA applies in this case. Matteson, AGCS Marine, and

NY Marine argue the TCPA does not apply to their claims because (1) no court has ever held it

applies to legal malpractice claims; and (2) they are not suing Skyler and Brown Sims for any

“communication” made; instead they argue that they are suing Skyler and Brown Sims “for what

[they] did not do,” i.e. failing to raise the federal limitation-of-liability statute in the answer or file


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a motion challenging personal jurisdiction. In contrast, Skyler and Brown Sims contend that “when

an attorney is sued for choices made when speaking and petitioning on behalf of a client in court,

the TCPA applies.”

        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 ANN.

§ 27.003(a). Thus, for the TCPA to apply to this case, the claim brought against Skyler and Brown

Sims need only relate to their exercise of the right to petition or the right of free speech. See id.

“[E]xercise of the right to petition” is defined as “a communication in or pertaining to . . . a judicial

proceeding.” Id. § 27.001(4)(A)(i) (emphasis added). “[E]xercise of the right of free speech” is

defined as “a communication made in connection with a matter of public concern.” Id. § 27.001(3)

(emphasis added). “Communication” is defined broadly as including “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). Applying these definitions, in connection with the exercise of the right

to petition, the TCPA applies to the malpractice claim brought against Skyler and Brown Sims if

it merely relates to a communication by Skyler and Brown Sims in or pertaining to a judicial

proceeding. Regarding the exercise of the right of free speech, the TCPA applies to the malpractice

claim brought against Skyler and Brown Sims if it merely relates to a communication made by

Skyler and Brown Sims in connection with a matter of public concern.

        Matteson, AGCS Marine, and NY Marine have alleged that Skyler and Brown Sims

committed legal malpractice by failing to include an affirmative defense in the answer they filed

on behalf of Matteson in the Flores case. The answer filed by Skyler and Brown Sims on behalf

of Matteson is most certainly a communication in a judicial proceeding. See id. § 27.001(4)(A)(i).

While Matteson, AGCS Marine, and NY Marine argue their malpractice suit is based on a failure


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                                                                                                 04-18-00596-CV


to make a communication (i.e. failing to include the federal limitation-of-liability affirmative

defense in the answer) and not based on an actual communication, we conclude they are parsing

hairs. Matteson, AGCS Marine, and NY Marine have alleged that Skyler and Brown Sims filed a

defective communication—the answer—by failing to include a specific affirmative defense. That

the answer did not include this specific affirmative defense does not mean that Skyler and Brown

Sims have not been sued for making a communication in a judicial proceeding. The basis of the

allegations against them relate to their alleged defective communication. See id. We therefore

conclude the TCPA applies to the malpractice claim brought against Skyler and Brown Sims

because the claim relates to the exercise of the right to petition. 2

        B. Is there an exemption for legal malpractice cases?

        Matteson, AGCS Marine, and NY Marine argue that the TCPA does not apply to legal

malpractice actions, emphasizing that no court has made such a holding. Last year, however, the

Texas Supreme Court in Youngkin v. Hines, 546 S.W.3d 675, 678 (Tex. 2018), did discuss the

applicability of the TCPA in the context of a nonclient suing an attorney based, in part, on

statements made in open court by the attorney on behalf of his clients. In considering whether the

attorney was entitled to dismissal of the claims under the TCPA, the supreme court emphasized

that in determining the applicability of the TCPA, a court’s objective “is to determine and give

effect to the Legislature’s intent” by considering the “statute’s words according to their plain and

common meaning, unless a contrary intention is apparent from the context, or unless such a

construction leads to absurd results.” Id. at 680 (citations omitted).




2
  Having held the TCPA applies because the claim relates to Skyler’s and Brown Sims’s exercise of the right to
petition, we need not determine whether it also relates to Skyler’s and Brown Sims’s exercise of the right of free
speech.


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                                                                                      04-18-00596-CV


       The lawyer in Youngkin argued the TCPA applied to the tort claims brought by the

nonclient because those claims stemmed from the lawyer’s recitation of a Rule 11 agreement in

open court—that is, he argued the claims related to his exercise of the right to petition. See id. In

response, the nonclient argued the TCPA did not apply because “an attorney speaking for a client

in a courtroom is not exercising any personal First Amendment rights at all.” Id. In analyzing

whether the TCPA applied to the nonclient’s claims, the supreme court “substitute[ed] the statutory

definitions for the defined terms” and concluded “the TCPA applies to a legal action against a

party that is based on, related to, or in response to the party’s making or submitting of a statement

or document in or pertaining to a judicial proceeding.” Id. According to the supreme court, “[b]y

any common understanding of the words, [the lawyer] made a statement in a judicial proceeding.”

Id.

       The court, however, did not end its analysis there, explaining that a court should not look

at isolated provisions without considering the context of a statute as a whole. See id. at 680-81. In

considering the entire statute, the court noted that the “text of the TCPA itself explicitly

acknowledges that the Act is intended to safeguard the constitutional rights of speech, petition,

and association (without foreclosing the ability to bring meritorious lawsuits).” Id. at 681 (citing

TEX. CIV. PRAC. & REM. CODE ANN. § 27.002). The court “s[aw] no conflict between the plain

meaning of the definition of the exercise of the right to petition and the statute’s express purpose.”

Id. Further, the court emphasized that the nonclient’s “argument that [the lawyer] cannot invoke

the TCPA because the First Amendment right to petition does not encompass [the lawyer]’s in-

court statements attempts to add a requirement to the statute that does not exist in its text.” Id.

According to the court, “[i]t does not follow from the fact that the TCPA professes to safeguard

the exercise of certain First Amendment rights that it should only apply to constitutionally

guaranteed activities.” Id. (emphasis in original). “Because the Legislature explicitly defined the


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term ‘exercise of the right to petition,’ injecting such a requirement into the TCPA would be

disloyal to its enacted text.” Id. The supreme court explained that “[w]hether that definition maps

perfectly onto the external constitutional rights it aims to protect is irrelevant; we are bound by the

statutory definition for the purposes of the TCPA.” Id. Therefore, the supreme court held the TCPA

applied to the claims brought by the nonclient against the lawyer, even though the lawyer had

made the statement on behalf of his client and not on his own behalf. See id.

       Given this holding by the supreme court in Youngkin and the plain language of the TCPA,

we also must conclude the TCPA applies to the malpractice claim brought in this case. While the

TCPA specifically states that it does not apply to certain actions, it does not include a legal

malpractice action as one of those exemptions. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.010.

We therefore conclude that Skyler and Brown Sims have met their initial burden of showing the

TCPA applies in this case.

       C. Did Matteson, AGCS Marine, and NY Marine establish by clear and specific evidence
          a prima facie case for each essential element of their malpractice claim against Skyler
          and Brown Sims?

       We must now consider whether Matteson, AGCS Marine, and NY Marine established by

clear and specific evidence a prima facie case for each essential element of their malpractice claim.

See S & S, 564 S.W.3d at 847. To recover on a claim for legal malpractice, a plaintiff must

establish: (1) the attorney owed a duty of care to the plaintiff; (2) the attorney breached that duty;

and (3) the attorney’s breach proximately caused damage to the plaintiff. Rogers v. Zanetti, 518

S.W.3d 394, 400 (Tex. 2017). “When a legal-malpractice case arises from prior litigation,” the

plaintiff must also prove that he “would have obtained a more favorable result in the underlying

litigation had the attorney conformed to the proper standard of care.” Id. at 401.

       Given Skyler and Brown Sims represented Matteson in the prior litigation, the parties do

not dispute Skyler and Brown Sims owed Matteson a duty. See Barcelo v. Elliot, 923 S.W.2d 575,


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                                                                                                        04-18-00596-CV


577 (Tex. 1996). 3 The parties do dispute whether Skyler and Brown Sims breached that duty and

whether any such breach proximately caused damage to Matteson. In response to the motion to

dismiss pursuant to the TCPA, Matteson, AGCS Marine, and NY Marine attached evidence to

prove a prima facie case of malpractice, including (1) the affidavit of Christopher J. Leavitt, the

lawyer who represented Flores in the suit against Matteson, and (2) the affidavit of Jeffrey Bale, a

maritime lawyer with over thirty-five years of experience “who regularly defends maritime

personal injury actions in Texas, including actions litigated in the context of limitation of liability

proceedings.” The affidavits of both Leavitt and Bale establish that they are, respectively, experts

in the field of maritime law and that they reviewed the pleadings, affidavits, depositions, reports,

and other documents related to the underlying Flores case. Additionally, because Leavitt

represented Flores in the prior litigation, Leavitt’s affidavit affirms that he was “actively involved

in case strategy, discovery, motion practice, case evaluation, settlement discussions, [the] trial, and

[the] ultimate resolution of the case.” Thus, Leavitt affirms the facts stated in the affidavit “are

based on [his] personal knowledge as counsel in the Flores case, and the opinions given are based

upon [his] personal knowledge, as well as [his] skill, experience, training, and education as a

lawyer who regularly handles personal injury actions, Jones Act cases, and lawsuits against

dredging contractors, both in Starr County and in Harris County, and throughout Texas.”

         Both affidavits criticize Skyler and Brown Sims for failing (1) to file a special appearance

based on Matteson’s lack of minimum contacts with Texas, (2) to raise as an affirmative defense

the Shipowners’ Limitation of Liability Act, 46 U.S.C. §§ 30501-30512, or (3) to file a Petition


3
  AGCS Marine and NY Marine, as excess insurers, have “the right to assert a legal malpractice claim against the
insured’s [i.e., Matteson’s] defense attorney through equitable subrogation.” Keck, Mahin & Cate v. Nat’l Union Fire
Ins. Co., 20 S.W.3d 692, 700 (Tex. 2000). According to the supreme court, although an excess insurance carrier is not
itself a client, “permitting an excess carrier to stand in the shoes of its insured and assert the insured’s claims [does]
not burden the existing attorney-client relationship with additional duties or create potential conflicts of interest for
the attorney.” Id. “Subrogation permits the insurer only to enforce existing duties of defense counsel to the insured.”
Id. (quoting Am. Centennial Ins. Co. v. Canal Ins. Co., 843 S.W.2d 480, 484 (Tex. 1992)).


                                                          -9-
                                                                                      04-18-00596-CV


for Exoneration or Limitation of Liability in federal court pursuant to the Act. According to

Leavitt’s affidavit, Starr County was chosen as the venue to bring Flores’s suit against Matteson

because (1) Flores had been “a life-long resident of Starr County” and was “a resident of Starr

County at the time his cause of action arose,” and (2) “Starr County is known as producing

plaintiff-favorable results in Jones Act cases” and “in particular, dredge cases.” In Leavitt’s expert

opinion and based on his experience in having filed cases in and outside of Starr County, “the

value of personal injury cases in Starr County is higher than in other jurisdictions where [he had]

also filed cases and settled them or tried them to verdict.”

       Leavitt explained that a “Jones Act cause of action permits a seaman to sue his employer

for personal injuries caused by negligence and also for unseaworthy conditions of the vessel

pursuant to the general maritime law of the United States.” Leavitt stated that a reasonably diligent

defense counsel representing a company like Matteson would “use all procedural mechanisms” at

his “disposal to move the case out of Starr County in order to guard against an unfavorable result

from the defense perspective.” Leavitt noted that at the time Skyler and Brown Sims filed an

answer on behalf of Matteson in the Flores case, Matteson’s home office was in Iowa, it did not

have an office in Texas, and the cause of action arose in Louisiana where Flores was injured. Thus,

in Leavitt’s expert opinion, a reasonable attorney would have filed a special appearance, which if

upheld, would have moved the lawsuit to Louisiana, the location of the incident, or Iowa,

Matteson’s principal place of business. Based on Leavitt’s experience, a successful special

appearance would “have resulted in a lower settlement value being applied to” the Flores case,

and “would have also resulted in a lower judgment, or a defense verdict.” Further, regardless of

the ruling on the special appearance, the mere filing of the special appearance “would have allowed

an interlocutory appeal which would have suppressed the value of the Flores case by virtue of the

delay it caused.” According to Leavitt, “[s]peed and velocity are a Plaintiff’s best friend” while


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                                                                                          04-18-00596-CV


“any delays are an enemy to the value of a case.” Thus, in his expert opinion, the delay involved

in an interlocutory appeal would “have resulted in a lower case evaluation from Plaintiff’s

perspective, and eventually a lower settlement value being applied” in the Flores case.

        In addition to Skyler and Brown Sims’s failure to file a special appearance, Leavitt

criticized them for failing to raise the limitation of liability to the value of the vessel under maritime

law as an affirmative defense in state court or by filing a limitation action in federal court. “The

Limited Liability Act allows a vessel owner to limit its liability for any loss or injury caused by

the vessel to the value of the vessel and its freight.” In re Hellenic, Inc., 252 F.3d 391, 394 (5th

Cir. 2001); see 46 U.S.C. §§ 30505-06. However, under the Act, “a party is entitled to limitation

only if it is ‘without privity or knowledge’ of the cause of the loss.” Id. (quoting Brunet v. United

Gas Pipeline Co., 15 F.3d 500, 504 (5th Cir. 1994)). “If the shipowner is a corporation, ‘knowledge

is judged by what the corporation’s managing agents knew or should have known with respect to

the conditions or actions likely to cause the loss.’” Id. (quoting Brunet, 15 F.3d at 504). “Once the

claimant establishes negligence or unseaworthiness, the burden shifts to the owner of the vessel to

prove that negligence was not within the owner’s privity or knowledge.” Id.

        Further, under the Act, the “owner of a vessel may bring a civil action in a district court of

the United States for limitation of liability . . . within 6 months after a claimant gives the owner

written notice of a claim.” 46 U.S.C. § 30511(a). When such an action is brought, the owner of the

vessel shall

                (1)     deposit with the court, for the benefit of claimants–
                        (A)    an amount equal to the value of the owner’s interest
                               in the vessel and pending freight, or approved
                               security; and
                        (B)    an amount, or approved security, that the court may
                               fix from time to time as necessary to carry out this
                               chapter; or




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                                                                                                  04-18-00596-CV


                 (2)      transfer to a trustee appointed by the court, for the benefit of
                          claimants–
                          (A)     the owner’s interest in the vessel and pending freight;
                                  and
                          (B)     an amount, or approved security, that the court may
                                  fix from time to time as necessary to carry out this
                                  chapter.

46 U.S.C. § 30511(b). Once an owner has created a fund as described, “all claims and proceedings

against the owner related to the matter in question . . . cease.” Id. § 30511(c). “[W]here a single

claimant sues a shipowner in state court and the owner files a petition for limitation of liability in

federal court, the federal court must allow the claimant’s action to proceed in state court while

retaining jurisdiction over the limitation of liability action.” In re Tetra Applied Tech. L.P., 362

F.3d 338, 340 (5th Cir. 2004) (citing Langnes v. Green, 282 U.S. 531, 541-43 (1931)). However,

“the federal court may enjoin the state court proceeding unless the claimant agrees to withdraw

any state submissions relating to the limitation of liability.” Id. at 340-41. This approach may

extend “to allow the state action to proceed in cases with multiple claimants where the total value

of the claims does not exceed the value of the limitation fund, so long as the claimants stipulate to

exclusive federal jurisdiction over the limitation of liability issues.” Id. at 341. Thus, “claims may

proceed outside the limitation action (1) if they total less than the value of the vessel, or (2) if the

claimants stipulate that the federal court has exclusive jurisdiction over the limitation of liability

proceeding and that they will not seek to enforce a greater damage award until the limitation action

has been heard by the federal court.” Id. (citation omitted).

        According to Leavitt’s affidavit, if limitation of liability had been raised as an affirmative

defense in the answer filed by Skyler and Brown Sims on Matteson’s behalf in state court, Flores

“would have stipulated to a limitation fund of the value of the Iowa, or $1,960,000.” 4 This


4
 In their response to the TCPA motion, Matteson, AGCS Marine, and NY Marine also filed an affidavit by Larry
Matteson, Matteson’s vice-president. In his affidavit, Larry Matteson affirmed that Matteson is an Iowa corporation


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                                                                                                       04-18-00596-CV


stipulation “would have limited Matteson’s exposure to $1,960,000,” which was “substantially

less than the eventual $41,104,000 verdict” or the $10,000,000 post-verdict settlement. 5 According

to Leavitt, from the plaintiff’s perspective, “[t]his limitation fund would have resulted in a lower

case evaluation” and “eventually a lower settlement value being applied” to the Flores case.

Leavitt affirmed that Flores’s written demand in his original petition was $2,500,000, which was

much less than the jury’s verdict or the post-verdict settlement.

         Leavitt further explained that with “respect to filing a Petition for Exoneration of

Limitation of Liability in federal court, if this defense had been pursued, it would have resulted in

a different result on retrial of this case, as well as a lower case evaluation from Plaintiff’s

perspective, and eventually a lower settlement value in” the Flores case. According to Leavitt, a

“limitation action in this matter would have been rightfully filed in the United States District Court,

Southern District of Texas, McAllen Division.” “Filing a limitation action in this case would have

stayed the state court Flores case.” “Even if the stay was ultimately lifted and the Flores case was

returned to Starr County for trial, Matteson would have had an absolute right to try the limitation



with its principal place of business in Iowa. According to the affidavit, Matteson is a dredging contractor, has
“conducted operations around the country,” but does not have any office in Texas. The affidavit states that Flores at
the time of his injury was assigned to work aboard the Melissa K. as a deckhand. The Melissa K. was a tender to the
dredge Iowa. The affidavit states that deckhands “were not typically assigned to work aboard a dredge, but aboard
another vessel, and for Flores, this was the Melissa K.” According to the affidavit, on the date Flores was injured, “the
dredge Iowa, which is not self-propelled, was operating on the Mississippi River in Louisiana, under an Army Corps
of Engineers dredging contract.” The affidavit states that on the date of injury, the “Melissa K. had a value of $75,000,”
which was based on the “‘hull agreed valuation’ on the ‘renewal schedule of vessels’ made part” of Matteson’s primary
insurance policy. “The dredge Iowa that the Melissa K. tended had a hull agreed valuation of $1,960,000 at the end of
the” date of injury. According to the affidavit, under the dredging contract, Matteson “was paid a daily rate for work
performed under the contract,” and on the date of injury, “the amount paid under contract for dredging operation was
$15,447.” We note that in their brief, Skyler and Brown Sims argue that there is no evidence that Flores would have
accepted a lower settlement amount than the eventual $10 million settlement amount. We disagree. Flores’s original
petition demanded $2,500,000. In his affidavit, Leavitt, who represented Flores at trial, explains in detail why Flores
would have stipulated to a limitation fund of $1,960,000.
5
  Larry Matteson in his affidavit affirms that after the jury’s verdict, Matteson hired separate counsel to represent it,
and after reviewing the case, its new counsel, a former Chief Justice of the Texas Supreme Court, recommended
Matteson settle for $10 million. While Skyler and Brown Sims argue AGCS Marine and NY Marine have not presented
any evidence that the $10 million settlement they paid was reasonable under the circumstances, we conclude that the
affidavit is sufficient to show Matteson’s decision to settle for that amount was reasonable.


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                                                                                                   04-18-00596-CV


action in federal court, i.e., to reduce the damages awarded in the Flores case to the value of the

vessel and pending freight.” Leavitt explained while the Flores case was tried to a jury, a limitation

action would be tried “to the court without a jury,” which in his opinion would “have resulted in

much lower damages on trial of the limitation action, or a defense judgment.” In his expert opinion

and based on his knowledge of the background of the Flores case and the discovery that had

occurred, Leavitt also thought Matteson “could have proven lack of privity and knowledge.” 6

        Leavitt recognized in his affidavit that “claimants in a limitation proceeding” attempt to

use the “flotilla doctrine” “to increase the value of a limitation fund.” According to Leavitt, the

flotilla doctrine “aggregates the value of vessels working at a common purpose, and in the case of

dredging activities, as in the Flores case, considers the value of the contract depending upon the

activities at the time of the incident.” Leavitt explained a court “does not consider the value of the

entire contract but looks at the discrete activity which gives rise to the incident or personal injury

being claimed by the claimant, depending, of course, on the nature of the activity and the nature

of the contract.” In Leavitt’s expert opinion, the “mere filing of a limitation action has a depressing

effect on the value of Jones Act cases, first because of the disruptive effect of the stay and transfer,

and second because of the right given to a defendant to essentially re-try a damages award, and

reduce such an award.” “Stated another way, in [Leavitt’s] opinion, limitation actions can reduce

the true value of a case, and would have done so in this case, had one been filed.” “The issue of

the valuation of the vessel and the pending freight would have been raised to the federal court

sitting in the limitation proceeding.” Leavitt affirmed that at the time of his injury, “Flores was a




6
  Larry Matteson affirmed in his affidavit that on the date of Flores’s injury, Matteson “supplied to the dredge Iowa
means and equipment to kill spiders and remove them from the vessel, and these means and equipment were being
used.” The affidavit further stated that “[b]efore Flores alleged he was bitten by a spider while employed by
[Matteson], [Matteson] had no knowledge of any prior allegations of employees being bitten by spiders, and
[Matteson] never received any such allegations by others afterwards.”


                                                       - 14 -
                                                                                      04-18-00596-CV


deckhand assigned to a tender, Melissa K., which “had a value of $75,000.” In Leavitt’s opinion,

“given the value of the vessel and the pending freight, the court would have limited the value of

the Melissa K to $75,000, and with pending freight to $90,447.00, or theoretically if the flotilla

doctrine applied” to the case, “the value of the Iowa and Melissa K together, including pending

freight,” would “yield[] a limitation fund of $2,050,447.00.”

       Like Leavitt, Bale in his affidavit criticized Skyler and Brown Sims for failing to file a

special appearance, for failing to plead, as an affirmative defense, limitation of liability under

maritime law, and for failing to file a Petition for Exoneration From, and Limitation of Liability

Action in federal court pursuant to the Limitation of Liability Act. Like Leavitt, Bale stated that in

his experience Starr County “is known for producing plaintiff-favorable results in Jones Act cases,

in particular dredge cases.” Bale stated that he reviewed Matteson’s “initial status report where

Nelson Skyler and Brown Sims report on this issue,” and Bale would have expected “in the

exercise of reasonable diligence a defendant such as Matteson through competent defense counsel

in such a case” to “use all procedural mechanisms at their disposal to move the case out of Starr

County in order to guard against an unfavorable result from the defense perspective.” According

to Bale, “having defended other cases in South Texas, and settling those before trial, the value of

personal injury cases in South Texas is higher than in other jurisdictions.” For the same reasons as

Leavitt, Bale stated that a reasonable defense attorney would have filed a special appearance,

which if upheld, would have resulted in the case being tried or settled outside of Starr County, thus

resulting in a lower settlement value or a lower jury verdict. Bale stated that “[r]egardless of the

ruling on a special appearance,” the filing of one “would have allowed an interlocutory appeal

which would have potentially suppressed the value of the Flores case by virtue of the delay it

caused.”




                                                - 15 -
                                                                                       04-18-00596-CV


       Bale also affirmed like Leavitt that if Skyler and Brown Sims had filed a Petition for

Exoneration and/or Limitation of Liability in federal court, the filing would have stayed the Flores

case in Starr County. According to Bale, Flores, in response, “would have had to file a claim in

the federal court limitation proceeding and then move to lift the stay based on a single claim

exception on appropriate stipulation or motion, which would have required Flores to file a

stipulation stating in part that he would not seek to enforce any excess judgment or recovery insofar

as it would exceed the appraised amount of the subject vessel.” “Even if the stay was ultimately

lifted” and the cause “returned to Starr County for trial, Matteson would have had an absolute right

to try the limitation action in federal court,” thereby reducing “the damages awarded in the Flores

case to the value of the vessel and pending freight.” Bale explained that Flores filed his original

petition on March 30, 2012, pleading damages in the amount of $2,500,000. Matteson filed an

answer on April 23, 2012. Bale stated that pursuant to the Limitation of Liability Act, Matteson

“would have had to file his petition for exoneration or limitation of liability action in federal court

in McAllen within six months of written notice of claim in excess of value of vessel.” From his

review of the case, Bale stated the “first notice of demand in excess of the value of vessel” was in

Flores’s original petition. Bale noted that the injury report showed Flores “was a deckhand

assigned to a tender, Melissa K.,” which “had a value of $75,000.” “The Dredge Iowa had a value

of $1,960,000.” According to Bale, if “pending freight were even implicated,” its value on the date

of Flores’s injury “was $15,447 for both vessels.” Bale also criticized Skyler and Brown Sims for

not pleading limitation of liability under maritime law as an affirmative defense in the answer filed

on behalf of Matteson. Bale explained that “[b]oth of these opportunities to defend and seek

limitation of liability or even exoneration from liability in federal court did not take place and the

affirmative defense in state court was omitted.”




                                                 - 16 -
                                                                                                      04-18-00596-CV


         In Bale’s expert opinion, “the mere filing of a Petition for Exoneration or Limitation of

Liability in federal court has a depressing effect on the value of Jones Act cases: first because of

the disruptive effect of the stay and transfer to federal court, and second because of the right given

to a defendant to essentially re-try a damages award, and reduce such an award to the value of the

vessel.” Bale believed Matteson’s liability could have been limited to the value of the Melissa K.

($75,000), or $90,447 if the pending freight was included. Bale affirmed that if a limitation action

had “been instituted, Matteson would have provided the appropriate security in order to obtain the

benefits of the defense.” 7

         Further, in Bale’s opinion, Matteson could have proven lack of privity and knowledge in

the underlying case. Bale explained that “[p]rivity and knowledge, if proven by a claimant such as

Flores in a Petition for Exoneration or Limitation of Liability action would have prevented

Matteson from taking advantage of the right to limit liability.” Based on his review of the evidence,

and “in particular the deposition testimony of Chris Leavitt, and the Matteson Affidavit, both of

which reflect there was no knowledge of shoreside personnel or management of brown recluse

spiders which allegedly caused the spider bite to Flores.” Bale also noted in his review of the case,

“the management had no previous reports of injuries by spider bite.” Bale explained that the “issue

of privity and knowledge would have been considered by a federal judge without a jury.”

         Bale also noted that Flores could raise “issues related to the value of pending freight, and

the application of the flotilla doctrine,” which are “claimant-specific defense to the limitation fund

amounts to be raised in a limitation trial.” Bale explained that the flotilla doctrine “aggregates the

value of vessels working at a common purpose, and in the case of dredging activities, as in the



7
 Indeed, Larry Matteson in his affidavit affirmed that had a limitation action been filed or asserted as a defense, “and
a limitation fund was required to be deposited or otherwise assured,” Matteson “would have deposited the fund, or
ensured the fund was otherwise secured by bond or otherwise.”


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                                                                                       04-18-00596-CV


Flores case, considers the value of the contract depending upon the activities at the time of the

incident.” Bale stated that the court “does not consider the value of the entire contract but looks at

the discrete activity which gives rise to the incident or personal injury being claimed by the

Claimant.” In Bale’s expert opinion, “[g]iven the discrete nature of Flores’s incident, being a spider

bite” that was “limited to the vessel Melissa K., on which Plaintiff Flores was assigned,” “no

additional money would be added to the” value of the Melissa K. at $75,000 plus the value of the

pending freight. Even if the flotilla doctrine applied and the Dredge Iowa “was considered part of

a flotilla with the Melissa K.,” Bale affirmed in his opinion “the total amount of the limitation fund

would have been limited to $2,050,447.00,” or the amount of the values of the Melissa K. and Iowa

plus the pending freight. Bale noted that even if the value of the Iowa was considered, “the

difference between the limitation amount and the settlement would be $8,040,000.”

       We note that Skyler and Brown Sims argue the above evidence is conclusory and claim

that the affidavits do not sufficiently explain why a limitation fund would have applied or whether

Matteson would have proven a lack of privity and knowledge of the company’s negligence. We

disagree. In reviewing the evidence, we conclude they are more than sufficient in detailing exactly

why the limitation fund would apply, why the flotilla doctrine even if applicable would still result

in a lower liability determination than the eventual $10 million settlement, and why Matteson had

evidence that it lacked privity and knowledge of the company’s negligence. We further note that

Skyler and Brown Sims argue the above evidence does not meet the standard “for showing reduced

settlement value” in a legal malpractice case enunciated by the Texas Supreme Court in Elizondo

v. Krist, 415 S.W.3d 259 (Tex. 2013). The court in Elizondo considered inadequate settlement

amounts obtained by the attorneys who had been sued by their former clients for legal malpractice.

Id. at 259. The supreme court held the affidavit purporting to show the damage suffered by the

plaintiff as a result of the legal malpractice was conclusory. Id. at 263. According to the court,


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                                                                                        04-18-00596-CV


“legal-malpractice damages are the difference between the result obtained for the client and the

result that would have been obtained with competent counsel.” Id. In applying the facts presented

in the record, the court explained that it was “undisputed that BP, a large, solvent corporation,

made the decision to settle every case arising from the plant explosion.” Id. According to the court,

       Here, where the same defendant settled thousands of cases, and indeed made
       the business decision to settle all cases and not try any to a verdict, we see
       no reason why an expert cannot base his opinion of malpractice damages on
       a comparison of what similarly situated plaintiffs obtained from the same
       defendant.

Id. While the affidavit at issue did list specific criteria BP focused on when determining settlement

values, the affidavit did not offer “analysis to explain how these factors would be applied to the

Elizondos’ situation.” Id. at 266 (citation omitted). The affidavit also failed “to link settlement

amounts to specific injuries and circumstances, and provide[d] no comparison of settlement

amounts of similar claims.” Id. (citation omitted). Thus, the court concluded the affidavit offered

“only conclusory and speculative opinions.” Id. (citation omitted).

       Since Elizondo, the supreme court has rejected the argument that the holding in Elizondo

requires expert affidavits to provide a factual analysis of the comparators on which the expert relies

in every legal malpractice case. Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 680 (Tex. 2017).

The supreme court emphasized that “different cases involve different injuries and different causal

links.” Id. (quoting Rogers v. Zanetti, 518 S.W.3d 394, 404 (Tex. 2017)). “Thus, in each suit-

within-a-suit inquiry, the comparison is dictated by the context of the alleged misfeasance.” Id.

“[T]he case-within-a-case analysis requires a comparison of scenarios: the actual result and the

hypothetical result advanced by the plaintiff.” Id. at 681. The Bale and Leavitt affidavits in this

case compare the actual result, the $10 million settlement, with the maximum judgment that could

have been obtained by Flores (and anyone else who brought claims based on Flores’s injury) had

Skyler and Brown Sims raised the federal limitation-of-liability statute. Both affidavits explain


                                                - 19 -
                                                                                                   04-18-00596-CV


why Matteson was damaged as a result. We therefore hold the affidavits are not conclusory. In

reviewing the evidence submitted by Matteson, AGCS Marine, and NY Marine, including the

evidence described above, we conclude that they established a prima facie case of legal malpractice

against Skyler and Brown Sims.8

         D. Motion for Limited Discovery

         Skyler and Brown Sims argue the trial court erred when it extended the hearing date and

permitted Matteson, AGCS Marine, and NY Marine to conduct discovery related to the TCPA

motion to dismiss. The TCPA requires a hearing on the motion to dismiss to be set not later than

the 60th day after the date of service of the motion “unless the docket conditions of the court

require a later hearing, upon a showing of good cause, or by agreement of the parties, but in no

event shall the hearing occur more than 90 days after service of the motion” except as provided by

Section 27.004(c). TEX. CIV. PRAC. & REM. CODE ANN. § 27.004(a). Section 27.004(c) permits a

court to extend the hearing date to allow discovery under Section 27.006(b), “but in no event shall

the hearing occur more than 120 days after the service of the motion.” Id. § 27.004(c). While all

discovery is generally suspended upon the filing of a motion to dismiss under the TCPA, id.

§ 27.003(c), Section 27.006(b) gives the trial court discretion, on a showing of good cause, to

“allow specified and limited discovery relevant to the motion,” id. § 27.006(b).




8
  Having concluded Matteson, AGCS Marine, and NY Marine presented a prima facie evidence of legal malpractice
against Skyler and Brown Sims based on the allegation that they failed to raise a federal limitation defense, we need
not consider whether Matteson, AGCS Marine, and NY Marine also presented prima facie evidence of a legal
malpractice claim based on the allegation that they failed to file a special appearance. We have concluded they have
a nonfrivolous legal malpractice claim. The policy behind the TCPA is to identify and summarily dispose of frivolous
lawsuits designed only to chill First Amendment rights. See In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015). Skyler
and Brown Sims in their briefing have urged a methodical, summary-judgment like approach to these cases. We cannot
conclude the Legislature had the intent of bogging down appellate courts in this kind of detailed and time-consuming
analysis, especially when the motion was filed at the very beginning of the case and only limited discovery has
occurred.


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                                                                                      04-18-00596-CV


        In their response to the motion to dismiss, Matteson, AGCS Marine, and NY Marine

requested limited discovery, explaining this was a legal malpractice case that had just been filed,

no discovery had occurred, and the prior litigation involved complicated issues of maritime law

and resulted in a multi-million-dollar verdict. They requested limited depositions focusing on

Skyler’s and Brown Sim’s “decision-making processes, internal analysis, and failures to act” in

the Flores case. At a hearing on June 13, 2018, the trial court granted the request for limited

discovery, overruled Skyler and Brown Sim’s objection that there had been no showing of good

cause, and continued the hearing until August 1, 2018. The trial court ordered that Matteson,

AGCS Marine, and NY Marine could take the depositions of (1) Skyler, (2) a corporate

representative for the law firm that represented Flores in the underlying litigation, and (3) a

corporate representative for Matteson. The trial court further limited the scope of all three

depositions, tailoring the topics so that they were relevant to the motion to dismiss. It ordered that

the depositions had to be conducted no later than July 25, 2018. We find no abuse of discretion by

the trial court.

        Skyler and Brown Sims also complain that the trial court abused its discretion in denying

their motion to strike the evidence that was filed by Matteson, AGCS Marine, and NY Marine the

day before the August 1, 2018 hearing, arguing that the evidence was untimely filed. The TCPA,

however, does not contain a deadline for filing a response to a motion to dismiss. In the absence

of a rule, a trial court has discretion to determine the timeliness of a response. Mission Wrecker

Serv., S.A., Inc. v. Assured Towing, Inc., No. 04-17-00006-CV, 2017 WL 3270358, at *3 (Tex.

App.—San Antonio 2017, pet. denied). Skyler and Brown Sims complain that Matteson, AGCS

Marine, and NY Marine filed new affidavits the day before the hearing on the motion to dismiss.

At the hearing, Matteson, AGCS Marine, and NY Marine told the trial court that according to the

TCPA, the trial court, in determining whether to grant the motion, “shall consider the pleadings


                                                - 21 -
                                                                                                      04-18-00596-CV


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). They explained they had taken the information

they had learned in the depositions and included them in the affidavits for the witnesses to sign.

Skyler and Brown Sims emphasize in their brief that the TCPA provides for expedited dismissal

of retaliatory lawsuits and argue Matteson, AGCS Marine, and NY Marine wrongfully

manipulated TCPA procedures. Skyler and Brown Sims, however, fail to recognize that the

purpose of the TCPA is to “encourage and safeguard the constitutional rights of persons to petition,

speak freely, and associate freely . . . and, at the same time, protect the rights of a person to file

meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002

(emphasis added). The trial court used its discretion to permit affidavits relating to limited

discovery it had concluded was necessary in determining whether the lawsuit was meritorious or

frivolous. We find no abuse of discretion on the part of the trial court. 9

         E. Nonsuited Claims

         Finally, Skyler and Brown Sims argue they are entitled to attorneys’ fees and sanctions

requested in their motion to dismiss under the TCPA relating to four causes of action that were

nonsuited by Matteson, AGCS Marine, and NY Marine before the hearing. Skyler and Brown Sims

emphasize that their request for attorneys’ fees and sanctions survived the nonsuit, and thus the

trial court should have awarded them attorneys’ fees and sanctions under the TCPA.

         Under Texas law, parties have an absolute right to nonsuit their own claims for relief at

any time during the litigation until they have introduced all evidence, other than rebuttal evidence,



9
  We note that Skyler and Brown Sims have cited Mission Wrecker, 2017 WL 3270358, at *3, for the proposition that
this court “approved the striking” of evidence filed fifteen minutes before the hearing on the TCPA motion to dismiss,
even though we recognized the TCPA contained no deadline for filing evidence. That we held the trial court in Mission
Wrecker did not abuse its discretion in striking the evidence under those circumstances, however, does not mean that
the trial court in the present case did abuse its discretion in denying the motion to strike. In both cases, we find the
courts had discretion to make their respective rulings.


                                                         - 22 -
                                                                                      04-18-00596-CV


at trial. See TEX. R. CIV. P. 162; Villafani v. Trejo, 251 S.W.3d 466, 468-69 (Tex. 2008). Although

a plaintiff decides which of its own claims to pursue or to abandon, that decision does not control

the fate of a nonmoving party’s independent claims for affirmative relief. See TEX. R. CIV. P. 162;

CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, 390 S.W.3d 299, 300-01 (Tex. 2013);

Villafani, 251 S.W.3d at 468-69. Thus, Skyler and Brown Sims’s requests for attorneys’ fees and

sanctions under the TCPA are claims for affirmative relief that survived Matteson, AGCS Marine,

and NY Marine’s nonsuit. See Souza v. Tessmer, No. 04-15-00153-CV, 2015 WL 4932567, at *2

n.2 (Tex. App.—San Antonio 2015, no pet.).

       Under the TCPA, if a court determines a claim should be dismissed, it “shall award to the

moving party” reasonable attorney’s fees “incurred in defending against the legal action as justice

and equity may require,” along with sanctions in an amount “the court determines sufficient to

deter the party who brought the legal action from bringing similar actions described in” the TCPA.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a). Because we have determined that the TCPA

applies in this case and because Matteson, AGCS Marine, and NY Marine nonsuited the claims at

issue and did not respond with evidence supporting those claims, we conclude the trial court erred

in failing to award any attorneys’ fees related to those nonsuited causes of action and in failing to

sanction Matteson, AGCS Marine, and NY Marine in any amount it determines sufficient to deter

them from bringing similar causes of action. See Serafine v. Blunt, No. 03-16-00131-CV, 2017

WL 2224528, at *7 (Tex. App.—Austin May 19, 2017, pet. denied) (observing that Act’s “plain

language presumes that some sanctions award—i.e., an amount greater than zero—is required”)

(emphasis in original).

                                           CONCLUSION

       Having determined that Matteson, AGCS Marine, and NY Marine established a prima facie

legal malpractice claim, we affirm in part the trial court’s order denying Skyler and Brown Sims’s


                                                - 23 -
                                                                                       04-18-00596-CV


motion to dismiss. However, because we agree the trial court erred in failing to award any amount

in attorneys’ fees and sanctions related to the nonsuited claims as authorized by Section 27.009(a),

we reverse the trial court’s order in part and order the trial court to award the reasonable attorneys’

fees and sanctions related to the nonsuited claims as authorized by section 27.009(a).

                                                    Liza A. Rodriguez, Justice




                                                 - 24 -
