definition of “matter of public concern” includes “commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions.”
How later courts described this case
- definition of “matter of public concern” includes “commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions.”
Written by the judges who cited it.
The opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00378-CV
Jason Murray Davis and Davis & Santos, P.C., Appellants
v.
Graham Weston, Carowest Land Ltd.; Graham Weston as Trustee of Countyline Land
Trust; and Kuehler Road, LLC f/k/a Kuehler Road, Ltd., Appellees
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. C2021-1179B, THE HONORABLE STEPHANIE BASCON, JUDGE PRESIDING
MEMORANDUM OPINION
This case arises out of a suit brought by Graham Weston; Carowest Land Ltd.;
Graham Weston as Trustee of Countyline Land Trust; and Kuehler Road, L.L.C. (collectively, the
Graham Parties) against their former attorney and law firm Jason Murray Davis and Davis
& Santos, P.C. (collectively, Davis) for claims of breach-of-fiduciary-duty and fraud by
non-disclosure. Davis appeals from the district court’s denial of his motion to dismiss pursuant to
the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code §§ 27.001–.011.
We affirm.
1
BACKGROUND 1
The underlying suit arises from a contentious divorce proceeding between Graham
Weston and Elizabeth Weston. Graham and Elizabeth were married in 1994. During the marriage,
Graham amassed a net worth of at least $1 billion as a co-founder of Rackspace Technology, Inc.
Elizabeth supported the family by remaining at home and homeschooling their three sons.
Throughout their marriage, Graham and Elizabeth managed three of the family’s companies:
Carowest Land Ltd.; Kuehler Road, Ltd.; and Countyline Land Trust (collectively, Real Estate
Entities). Graham and Elizabeth hired Davis to represent the Real Estate Entities in various
lawsuits throughout the years, starting around 2009. Davis also represented Graham in litigation
involving Rackspace and advised him on other non-litigation matters related to Rackspace.
Davis’s involvement in representing the Real Estate Entities
In 2009, the Westons hired Davis to represent Carowest Land Ltd. (Carowest) in
litigation with the City of New Braunfels for several claims including alleged violations of the
Texas Open Meetings Act. 2 At least one piece of correspondence from that litigation reflects
Davis’s statement that he represented “Carowest Land Company Ltd. and the Weston Family in
matters related to the City of New Braunfels’ South Tributary Project (the “Project”).” The petition
in the Carowest litigation described Carowest as being “a limited partnership affiliated with the
Weston family.” In addition, in 2013, Davis represented Countyline and Kuehler Road in litigation
1 The background facts arise from the pleadings and affidavits, which we view in the light
most favorable to the nonmovant. See O’Rourke v. Warren, 673 S.W.3d 671, 680 (Tex. App.—
Austin 2023, pet. denied).
2 See City of New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501 (Tex. App.—Austin
2014, no pet.); City of New Braunfels v. Carowest Land, Ltd., 549 S.W.3d 163 (Tex. App.—Austin
2017), order withdrawn (June 19, 2020), review granted, judgment vacated, 615 S.W.3d 156
(Tex. 2020).
2
relating to alleged property damage and encumbrances. Both Carowest’s and Kuehler’s general
partner is an entity called Chupacabra, of which Graham is the manager. As part of this role,
Graham selected the attorney to represent those entities and was in charge of paying legal fees for
those entities out of those entities’ funds. Graham let Elizabeth be the day-to-day contact with
Davis regarding the litigation but he was also heavily involved in the decision-making process.
As Graham was the sole member of the entities, he had the authority to terminate Davis’s
representation at any time.
Davis’s history representing Graham and Elizabeth individually
In addition to representing the Real Estate Entities, Graham represented each of the
Westons individually in separate matters throughout the years. In 2012, Graham hired Davis to
represent him individually in a suit brought against Graham and Rackspace. The litigation
concerned an executive-level employee who sought equity in the company. Davis successfully
obtained summary judgment on behalf of Graham. In the years following the matter, either in
2013 or 2014, Graham and Davis had a brief conversation about the Rackspace litigation, but
neither party has been able to recall the substance of such conversation.
In 2015, Davis represented Elizabeth in federal bankruptcy court in a dispute
involving her and her company Equis Equine, LLC related to a fraudulent horse auction. Graham
was not a party to the action or otherwise involved. However, during that suit Davis contemplated
adding a DTPA (Deceptive Trade Practice Act) claim; in order for Elizabeth to qualify as a
“consumer” under the statute, her net worth could not exceed $25 million. To determine her net
worth, Davis was required to access Graham and Elizabeth’s personal information regarding
family trusts. Davis met with the Weston family accountant and tax lawyer to gather information
3
regarding the Weston family finances. The end of the suit resulted in a $1.5 million judgment in
favor of Equis Equine, LLC.
Representation of the Westons’ son
In 2020, Elizabeth and Graham’s adult son had a mental health crisis that led to
criminal charges and involuntary commitment to a mental health facility. Davis, Elizabeth, and
Graham communicated closely regarding the son’s treatment options. Davis dealt directly with
the mental health facility and even recommended his brother-in-law be the son’s treating
psychiatrist. In a series of texts, Graham enlisted Davis to convince Elizabeth that their son needed
mental health treatment, stating: “[I’m] not asking for you to be loyal to me over [Elizabeth]. I
just need your help—using your own judgment.” In the same text exchange, Graham thanked
Davis for his “commitment to service [the Weston family] for so many years.” At the hearing on
Graham’s motion to disqualify Davis that Graham filed during the divorce proceedings, Graham
testified that disagreements over the son’s care were part of his motivation for the divorce. In
addition, after the underlying suit was filed in 2021, Graham disclosed that he had designated
Davis as potential co-guardian of the Westons’ children in a handwritten codicil to Graham’s will
in 2009.
Divorce proceedings
In mid-2019, Elizabeth began confiding in Davis regarding issues in her marriage.
She told Davis that Graham was unfaithful and that he had been sexually, physically, and
emotionally abusive towards her. Elizabeth, at Davis’s direction, began recording documentary
evidence of the abuse including text messages from Graham and photos of her injuries from the
alleged physical abuse. Elizabeth also shared the allegations with a former FBI agent. Despite
preserving evidence, Elizabeth decided against reporting Graham for fear of potential retaliation.
4
In October 2020, Graham retained attorney Richard Orsinger and filed divorce proceedings against
Elizabeth. Two days later, Graham non-suited the petition. Elizabeth then filed her divorce
petition on October 26, 2020, in Comal County. Graham and his lawyers immediately moved to
disqualify Davis and his firm from representing Elizabeth in the divorce, contending that Davis
had breached his fiduciary duty to Graham and the Real Estate Entities because Davis had
represented Graham and the Real Estate Entities in the past, including representing the Westons’
adult son in a criminal matter, representing the Real Estate Entities in various suits, and
representing Graham individually. After a hearing where both parties and Davis testified, the trial
court granted the motion to disqualify. Among other findings, the trial court found:
• Davis had a fiduciary duty and relationship of trust and loyalty
with Graham, and that Graham was a former and current client
of Davis;
• Davis qualifies as a “family attorney” for the Westons from his
ongoing representation of the family members and their closely
held companies;
• Davis had an informal fiduciary relationship with Graham
arising before the divorce proceedings.
As Elizabeth was represented by several different attorneys in addition to Davis in
the divorce, the trial court’s order disqualifying Davis did not leave Elizabeth without counsel.
Nevertheless, Elizabeth petitioned for writ of mandamus from this Court seeking to set aside the
disqualification order. This Court denied the petition. 3 After losing Davis as her counsel in the
divorce proceedings, Elizabeth terminated the remaining attorneys and represented herself pro se
at trial where she presented no evidence. Graham filed a motion for directed verdict on Elizabeth’s
3 See In re Weston, No. 03-21-00121-CV, 2021 WL 3026963 (Tex. App.—Austin
July 16, 2021) (orig. proceeding).
5
affirmative claims regarding Graham’s alleged abuse, which the trial court granted, and the
remainder of the suit was tried to a jury verdict. 4
The Graham Parties file the underlying suit
After the trial court disqualified Davis but before the divorce proceedings were
final, Graham and the Real Estate Entities filed the underlying suit in July 2021, claiming that
Davis and his firm breached their fiduciary duties of loyalty and confidentiality to Graham by
appearing as counsel of record for Elizabeth in the divorce proceedings. Graham and the Real
Estate Entities (collectively, the Graham Parties) also allege causes of action for fraud by
non-disclosure. The Graham Parties seek damages in the form of (1) attorneys’ fees in connection
with moving to disqualify Davis from representing Elizabeth in the divorce proceeding, and
(2) reputational damages as a “direct and proximate result of [Davis’s] efforts to assist Elizabeth
in disparaging Graham publicly.” They also seek disgorgement of attorneys’ fees in the amount
of $2.9 million that they paid to Davis for legal services dating back to 2009.
Davis filed a TCPA motion seeking dismissal of the Graham Parties’ claims and
recovery of attorneys’ fees. The trial court granted the parties limited discovery before the TCPA
hearing which included two depositions of Davis and several years’ worth of Davis’s and
Elizabeth’s confidential and privileged communications. The trial court denied Davis’s TCPA
motion in a broad-form order. Davis timely filed this interlocutory appeal.
4 Elizabeth appealed the final divorce decree to this Court, which we affirmed in its
entirety. See Weston v. Weston, No. 03-23-00039-CV, 2024 WL 3995391, at *1 (Tex. App.—
Austin Aug. 30, 2024, no pet. h.) (mem. op.).
6
STANDARD OF REVIEW
“The [TCPA] protects citizens who petition or speak on matters of public concern
from retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky, 460 S.W.3d 579,
584 (Tex. 2015). The protection comes in the form of a motion to dismiss a suit that would stifle
the defendant’s exercise of those rights. Id.; see also Lilith Fund for Reprod. Equity v. Dickson,
662 S.W.3d 355, 363 (Tex. 2023) (providing that TCPA “protects speech on matters of public
concern by authorizing courts to conduct an early and expedited review of the legal merit of claims
that seek to stifle speech through the imposition of civil liability and damages”). The legislature
has instructed that the act shall be “construed liberally to effectuate its purpose and intent fully.”
Tex. Civ. Prac. & Rem. Code § 27.011(b).
Courts review a motion to dismiss under the TCPA using a three-step process.
See Montelongo v. Abrea, 622 S.W.3d 290, 296 (Tex. 2021). First, the movant bears the initial
burden to show the TCPA applies because the “legal action” against the movant is “based on or is
in response to” its “exercise of the right of free speech, right to petition, or right of association.”
Tex. Civ. Prac. & Rem. Code § 27.003(a). A “legal action” is “a lawsuit, cause of action, [or]
petition . . . that requests legal, declaratory, or equitable relief.” Id. § 27.001(6). If the movant
meets its burden to show that the TCPA applies, the burden then shifts to the claimant to establish
“by clear and specific evidence a prima facie case for each essential element of the claim in
question.” Id. § 27.005(c). If the claimant meets that burden, the court must still grant the motion
if the movant “establishes an affirmative defense or other grounds on which the moving party is
entitled to judgment as a matter of law.” Id. § 27.005(d). Whether each party met its respective
burdens under the TCPA is reviewed de novo. O’Rourke v. Warren, 673 S.W.3d 671, 679–80
(Tex. App.—Austin 2023, pet. denied). In determining “whether a legal action is subject to or
7
should be dismissed under this chapter,” we “shall consider the pleadings, evidence a court could
consider under Rule 166a, Texas Rules of Civil Procedure, and supporting and opposing affidavits
stating the facts on which the liability or defense is based.” Tex. Civ. Prac. & Rem. Code
§ 27.006(a). We review the pleadings and evidence in the light most favorable to the nonmovant.
O’Rourke, 673 S.W.3d at 680. 5
DISCUSSION
In three issues, Davis claims that the trial court erred by denying Davis’s
TCPA motion because (1) the Graham Parties’ fraud and breach-of-fiduciary-duty claims are
based on or in response to Davis’s right to petition and free speech, (2) the Graham Parties failed
to establish a prima facie case in support of their claims, and (3) Davis established the
attorney-immunity defense.
1. Are the Graham Parties’ claims based on or in response to Davis’s right to petition?
In his first issue, Davis argues that the Graham Parties’ claims are “based on and in
response to” Davis’s right to free speech and right to petition. We begin with the right to petition.
Davis argues that the bases for the Graham Parties’ claims against him for breach of fiduciary duty
and fraud are “communications” because the claims are “statements made or submitted by Davis
in oral, written, and electronic form in the scope of Davis’s representation of Elizabeth to
investigate, develop, and pursue claims against Graham.” He argues that “his legal representation
of Elizabeth involved communications with Elizabeth and others about the claims and activity in
5 This appeal arises under the 2019-version of the Texas Citizens Participation Act
(TCPA). See Tex. Civ. Prac. & Rem. Code § 27.001 et seq. The TCPA was amended in 2023
while this appeal was pending. See Act of May 19, 2023, 88th Leg., R.S., H.B. 527 § 1 (codified
as an amendment to Tex. Civ. Prac. & Rem. Code § 27.010(a)). However, all references to the
TCPA in this memorandum opinion are to the prior, 2019-version that applies to this dispute.
8
the divorce and other legal proceedings, and communications relating to preparing and filing the
divorce petition and other documents in ongoing legal proceedings.” Because these
“communications” pertain to a judicial proceeding, Davis argues, they implicate his right to
petition and thus invoke the TCPA.
In order for a movant to invoke the TCPA, there must first be a communication. A
“communication” is broadly defined as “the making or submitting of a statement or document in
any form or medium.” See Tex. Civ. Prac. & Rem. Code § 27.001(1). “The phrase ‘based on . . .
or is in response to’ dictates the nexus that must exist between the ‘legal action’ and the protected
conduct under the TCPA.” Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 879 (Tex. App.—
Austin 2018, pet. denied). The phrase encompasses a “legal action” that is factually predicated on
the alleged conduct that falls within the scope of the TCPA’s definition of the exercise of the right
of free speech, petition, or association. Id. Relevant here, the “exercise of the right to petition”
includes “a communication in or pertaining to ... a judicial proceeding.” Tex. Civ. Prac. & Rem.
Code § 27.001(4)(A). A “judicial proceeding” means an actual, existing judicial proceeding.
See Levatino v. Apple Tree Cafe Touring, Inc., 486 S.W.3d 724, 728 (Tex. App.—Dallas 2016,
pet. denied). When, as is the case here, the defendant invokes a communication-based right, such
as free speech or right to petition, the defendant must show that the communications at issue
“provide the basis for the legal claims or the impetus for the dispute.” Welsh v. River Hollow
Ass’n, 654 S.W.3d 505, 510 (Tex. App.—Houston [14th Dist.] 2022, pet. denied) (quoting
ML Dev, LP v. Ross Dress for Less, Inc., 649 S.W.3d 623, 628–29 (Tex. App.—Houston [1st Dist.]
2022, pet. denied)).
The Graham Parties’ petition alleges that Davis (1) failed to disclose facts (and
made affirmative misrepresentations) about Davis’s representation of Elizabeth in this capacity,
9
and (2) investigated, developed, and pursued civil, criminal, and family-law claims in his capacity
as counsel to Elizabeth and in a manner adverse to Graham.
Failure to disclose representation of Elizabeth
Although Davis asserts that the portion of the Graham Parties’ claims relating to
Davis’s failure to disclose his representation of Elizabeth to Graham are “based on or in response
to” a communication pertaining to a judicial proceeding, in our view, that portion of the Graham
Parties’ claims alleges a failure to communicate—failure to advise Graham of a conflict of interest,
failure to maintain a duty of loyalty and trust, and failure to maintain client confidences, all of
which do not implicate TCPA protections. Recently, in Hanna v. Williams, we analyzed whether
a law firm’s failure to file a motion for summary judgment despite the client’s instructions
implicated the TCPA in the context of a legal malpractice case. 681 S.W.3d 416, 423 (Tex. App.—
Austin 2023, pet. denied). We held that, to the extent claims are based on or in response to failures
to communicate or act, “such failures do not implicate the TCPA.” 681 S.W.3d 416, 423 (Tex.
App.—Austin 2023, pet. denied); Krasnicki v. Tactical Ent., LLC, 583 S.W.3d 279, 284 (Tex.
App.—Dallas 2019, pet. denied) (“The definition of ‘communication’ makes no reference to the
withholding of a statement or document.”). While Hanna analyzed this issue within the context
of a legal malpractice suit, our sister courts have recently applied the same reasoning in
breach-of-fiduciary cases. 6 See Rivas v. Lake Shore Harbour Cmty. Ass’n, No. 01-22-00121-CV,
6 We recognize that after this appeal was filed, in recent amendments to the TCPA, the
legislature has expressly excluded from the TCPA “a legal malpractice claim brought by a client
or former client.” See Act of May 19, 2023, 88th Leg., R.S., H.B. 527 § 1 (codified as an
amendment to Tex. Civ. Prac. & Rem. Code § 27.010(a)). Davis argues in post-submission
briefing that this amendment demonstrates that, under the 2019 version of the statute applicable in
this case, claims based on communications by a lawyer in his representative capacity are included
within the scope of the TCPA’s protection. As we do not consider this case to be a legal
malpractice case, we do not find this argument relevant to our analysis. See Aiken v. Hancock,
115 S.W.3d 26, 28 (Tex. App.—San Antonio 2003, pet. denied) (providing that focus of
10
2023 WL 3063409, at *8 (Tex. App.—Houston [1st Dist.] Apr. 25, 2023, pet. denied) (mem.
op.) (holding that breach-of-fiduciary-duty claim was not “based on or in response to” protected
communications, but rather defendant’s alleged conduct in failing to disclose known information).
In particular, we find the facts in this case similar to those outlined in Cweren v. Eureka
Multifamily Group, L.P. and Dernick v. Foley & Lardner LLP.
In Cweren, the trial court denied a TCPA motion to dismiss filed by an attorney and
his law firm in response to claims brought against them by former clients. No. 01-21-00470-CV,
2023 WL 2977755, at *5–8 (Tex. App.—Houston [1st Dist.] April 18, 2023, pet. denied) (mem.
op.). Initially, the law firm had filed suit against the former clients for outstanding legal fees
relating to previous litigation. Id. at *2. Viewing the suit for attorney’s fees as retaliatory for the
former clients’ rejection of the law firm’s payment demands, the former clients filed their own suit
against the firm for claims including negligence, gross negligence, breach of fiduciary duty, and
abuse of process. Id. at *2–3. The former clients argued that the law firm had also retaliated
against them by representing clients against one or more of the former clients’ managed properties
even though the law firm had previously represented those managed properties, which created a
conflict of interest. Id. at *2. Similar to the allegations here, the former clients alleged that the
representation of the new clients constituted a conflict of interest and that the law firm “improperly
and unlawfully us[ed] confidential client information provided by [the former clients] adversely
to them, without their knowledge or consent[.]” Id. at *3, *6. The law firm filed a motion to
dismiss under the TCPA, alleging that the former clients’ claims were based on and in response to
the law firm’s exercise of its right to petition. Id. at *4. In affirming the trial court’s denial of the
breach-of-fiduciary-duty claim is whether attorney obtained improper benefit from representing
client, while focus of legal malpractice claim is whether attorney adequately represented client).
11
motion to dismiss, the First Court of Appeals explained that the former clients’ suit was not based
on the law firm’s conduct in a judicial proceeding (the initial suit by the law firm against the former
clients for recovery of fees) but instead was based on the law firm’s “failures to act, breaches of
the standard of care, conduct, and misrepresentations, virtually all of which allegedly occurred
before the [law firm’s suit for recovery of attorney’s fees] was filed.” Id. at *14 (internal citations
omitted). Accordingly, the court held that the former clients’ breach-of-fiduciary-duty claims were
not “predicated on [the law firm’s] communications in a judicial proceeding,” and thus the TCPA
was not invoked. Id. at *15.
One year later, relying on its holding in Cweren, the First Court of Appeals issued
a similar holding in Dernick v. Foley & Lardner LLP. No. 01-22-00251-CV, 2024 WL 3941011,
at *8 (Tex. App.—Houston [1st Dist.] Aug. 27, 2024, no pet. h.) (mem. op.). In that case, the
Dernicks brought suit for breach of fiduciary duty against their former law firm, Foley & Lardner,
alleging that the firm owed them a fiduciary duty in connection with their previous attorney-client
relationship and that the law firm breached this duty by representing the Dernicks’ former
company, Encore, in a manner adverse to the Dernicks’ interests (the “adversary proceeding”). Id.
at *4. The Dernicks alleged that Foley & Lardner breached its fiduciary duty through “engaging
in conflicts, placing personal interests and the interests of Encore and other clients over the
interests of the Dernicks, improperly using the Dernicks’ confidences and confidential
information, taking advantage of the Dernicks’ trust, engaging in self-dealing, and making
misrepresentations.” Id. The Dernicks’ petition more specifically alleged:
[Foley] represented Encore and other clients in claims that were
substantially related to [Foley’s] representation of the Dernicks.
[Foley] did so without adequately disclosing the conflict of interest
to the Dernicks or obtaining their consent to engage in the joint
representation. What is worse, [Foley] asserted claims against the
Dernicks for fraud and other purported malfeasance, based on
12
allegations that [Foley] knew were false because it had represented
the Dernicks in related transactions and disputes. [Foley] owed the
Dernicks fiduciary duties to decline representation of Encore in the
adversary proceeding and should have informed Encore that the
allegations had no basis in fact. Instead, [Foley] conspired with
Encore to manufacture bogus claims against its own former clients
(the Dernicks) to advance the interests of other clients (like Encore)
and itself by accumulating attorney’s fees.
Id. The Dernicks sought attorneys’ fees incurred in defending against the adversary proceeding,
consequential damages for lost deals, management fees, salaries, ownership interests, and
equitable fee forfeiture requesting disgorgement of improper benefits and fees. Id. Foley filed a
motion to dismiss under the TCPA, arguing that the Dernicks’ suit was based on and in response
to Foley’s exercise of the right to petition. Id. The trial court agreed and granted Foley’s motion
to dismiss. Id. On interlocutory appeal, the Dernicks argued that Foley could not identify a
communication that would invoke the TCPA because the Dernicks’ claims, including the
breach-of-fiduciary-duty claim, were based not on or in response to communications made in a
judicial proceeding but instead on failures to communicate or act. Id. at *5. Therefore, the
Dernicks argued, their claims were not “factually predicated on protected communications.” Id.
The court sided with the Dernicks and reversed the judgment of the trial court, reasoning that the
Dernicks’ claims stemmed from Foley’s conduct in representing Encore adverse to the Dernicks—
specifically Foley’s alleged failure to disclose the representation or obtain consent, and its alleged
misuse of confidential information—rather than from communications made during the adversary
proceeding itself. Id. at *8. The court held:
We agree with the Dernicks that the TCPA is not implicated because
their legal action is not based on or in response to [Foley’s]
communications in the adverse proceedings, but rather their alleged
actions and conduct in representing Encore adverse to the
Dernicks—Foley’s alleged former clients—without disclosing
such representation or seeking their prior consent, and also based
13
on [Foley’s] alleged improper use of the Dernicks’
confidential information.
Id.
Although the adversary proceeding was part of the sequence of events, the court
determined the core issue was the alleged breach of fiduciary duty, which predated the proceeding.
Id. The court emphasized that the Dernicks’ claims were based on Foley’s conduct pre-litigation,
and thus it did not pertain to an actual, existing judicial proceeding. Id. at *12; see Brenner
v. Centurion Logistics LLC on Behalf of Centurion Pecos Terminal LLC, No. 05-20-00308-CV,
2020 WL 7332847, at *7 (Tex. App.—Dallas Dec. 14, 2020, pet. denied) (mem. op.) (“To be an
exercise of the right to petition under § 27.001(4)(A)(i), a communication must be in or pertain to
an actual, existing judicial proceeding . . . [a] pre-litigation communication doesn’t fit that
definition, even if it provokes the subsequent litigation.”).
Applying the reasoning in Cweren and Foley & Lardner here, and viewing the
evidence in the light most favorable to the Graham Parties, O’Rourke, 673 S.W.3d at 680, we
conclude that part of the basis for the Graham Parties’ breach-of-fiduciary-duty claim is not the
filing of the divorce itself or communications Davis made during the divorce proceedings, but
rather Davis’s conduct in representing Elizabeth as a client allegedly adverse to Graham (who was
either a current client or former client of Davis) and Davis’s failure to advise Graham of this
conflict of interest or obtain consent for such adverse representation. 7 These facts also form the
7 To the extent Davis argues that some of the Graham Parties’ claims are based on
alleged “affirmative misrepresentations,” we reject this argument, noting that “[s]imply alleging
conduct that has a communication embedded within it does not create the relationship between the
claim and the communication necessary to invoke the TCPA.” Kawcak v. Antero Res. Corp.,
582 S.W.3d 566, 587 (Tex. App.—Fort Worth 2019, pet. denied); see also ML Dev, LP,
649 S.W.3d at 628 (although alleged statements “may have accompanied” complained-of conduct,
communications themselves did not “provide the basis for the legal claims or the impetus for suit”
as required by TCPA).
14
basis for the Graham Parties’ fraud by non-disclosure claim. And both the breach-of-fiduciary
duty and fraud-related claims are based on the allegation that Davis acquired confidential
information about the Graham Parties through his years as the Westons’ and Real Estate Entities’
counsel, and that he used that confidential information against Graham to his detriment in the
divorce proceedings. Thus, because this portion of the Graham Parties’ claims are based on
Davis’s conduct in representing Elizabeth in the divorce, we conclude that it does not meet the
definition of “a communication in or pertaining to . . . a judicial proceeding.” See Tex. Civ. Prac.
& Rem. Code § 27.001(4)(A)(i). Accordingly, we conclude that this portion of the Graham
Parties’ claims in the underlying suit are not based on or in response to Davis’s right to petition.
Davis’s investigation, development, and filing of various claims against Graham
We must next determine whether the Graham Parties’ claims that Davis
“investigated, developed, and pursued civil, criminal, and family law claims in his capacity as
counsel to Elizabeth and in a manner adverse to Graham” invoke Davis’s right to petition. A party
seeking dismissal under the TCPA must show by a preponderance of the evidence that the
plaintiff’s claim is based on or in response to the movant’s exercise of (1) the right of free speech,
(2) the right to petition, or (3) the right of association. See Tex. Civ. Prac. Rem. Code § 27.005(b)
(emphasis added). This Court has held that communications cannot be attributed to the TCPA
movant if the movant makes them on behalf of a principal. Szymonek v. Guzman 641 S.W.3d 553,
567 (Tex. App.—Austin 2022, pet. denied); Snell v. Ellis, No. 05-20-00642-CV,
2021 WL 1248276, at *7, n. 18 (Tex. App.—Dallas Apr. 5, 2021, no pet.) (mem. op.) (“[W]hatever
communications [the attorney] made while purportedly representing [the client’s] interests
arguably are not [the attorney’s] communications, but [the client’s], in the factual context here.
They implicate [the client’s] right to petition, not [the attorney’s].”). Here, the basis for Davis’s
15
TCPA motion to dismiss relies exclusively on communications Davis made in his capacity as
Elizabeth’s attorney and on her behalf. Accordingly, any communications Davis made while
“investigating, developing, and pursuing” claims against Graham—including any communications
made during the divorce proceedings—are attributable to Elizabeth, not Davis and therefore do
not implicate Davis’s right to petition.
2. Are the Graham Parties’ claims based on or in response to Davis’s right of free speech?
The TCPA defines the exercise of the right of free speech as “a communication
made in connection with a matter of public concern,” and a “matter of public concern” is a
statement or activity regarding a public official, a public figure, or another person “who has drawn
substantial public attention due to the person’s official acts, fame, notoriety, or celebrity”; “a
matter of political, social, or other interest to the community”; or “a subject of concern to the
public.” Id. § 27.001(3), (7). “To be a matter of public concern, a claim must have public relevance
beyond the interests of the parties.” Morris v. Daniel, 615 S.W.3d 571, 576 (Tex. App.—
Houston [1st Dist.] 2020, no pet.) (quoting Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC,
591 S.W.3d 127, 136 (Tex. 2019)).
Davis argues that his communications made while counseling Elizabeth and while
investigating, developing, and pursuing claims against Graham relate to matters of public
concern—i.e., Graham’s criminal, physical, and sexual abuse of Elizabeth. Davis claims that this
would involve Elizabeth potentially going to the police to seek protection and possible prosecution.
Davis further argues that Graham’s alleged criminal, physical, and sexual abuse against Elizabeth,
given Graham’s “notorious” status of a “Forbes-listed billionaire,” are “issues of concern to
the public.”
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Statements to any third party, whether public or private, concerning sexual assault
or the reporting thereof to the police can constitute a matter of public concern sufficient to
constitute exercise of right of free speech under TCPA. See Yu v. Koo, 633 S.W.3d 712, 722 (Tex.
App.—El Paso 2021, no pet.); see also Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017)
(definition of “matter of public concern” includes “commission of crime, prosecutions resulting
from it, and judicial proceedings arising from the prosecutions.”). It is undisputed that Elizabeth
communicated with Davis before the divorce regarding various claims of abuse at the hands of
Graham, including sexual abuse. While Elizabeth did not report the claims of abuse to law
enforcement, she included them as claims in the divorce proceedings. Thus, Elizabeth’s
communications about Graham’s alleged abuse may include a matter of public concern sufficient
to implicate her right of free speech. However, we need not address this question, because we
conclude that the communications at issue belonged to Elizabeth, not Davis.
As stated previously, Davis’s TCPA motion to dismiss relies on communications
Davis made in his capacity as Elizabeth’s attorney and on her behalf. Thus, in line with our
analysis of Davis’s right to petition, supra, we cannot conclude that Davis’s communications
relating to pursuing Elizabeth’s abuse claims implicate his right of free speech. See Szymonek,
641 S.W.3d at 567. It therefore follows that the Graham Parties’ claims are not based on or in
response to Davis’s exercise of his right of free speech and therefore do not invoke the TCPA.
Davis did not demonstrate that the TCPA applies to the Graham Parties’ claims,
and we overrule Davis’s first issue on appeal. Because we conclude that Davis did not successfully
invoke the TCPA, the trial court did not err in denying Davis’s motion to dismiss. Because Davis
did not carry the initial burden under the TCPA, the burden never shifted to the Graham Parties to
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present a prima facie case for the elements of their claims. We therefore need not consider Davis’s
remaining issues. See Tex. R. App. P. 47.1.
CONCLUSION
Having concluded that the TCPA does not apply to the Graham Parties’ claims, we
affirm the trial court’s order denying Davis’s motion to dismiss. We dismiss any pending motions
as moot.
__________________________________________
Edward Smith, Justice
Before Chief Justice Byrne, Justices Triana and Smith
Affirmed
Filed: December 6, 2024
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