COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
ROBERTS MARKEL WEINBERG BUTLER § No. 08-23-00323-CV HAILEY PC, § Appeal from the Appellant, § 224th Judicial District Court v. § of Bexar County, Texas LYNN MADISON, § (TC# 2023CI09527) Appellee. §
MEMORANDUM OPINION1
Appellant, Roberts Markel Weinberg Butler Hailey PC (RMWBH), a Texas law firm,
appeals from the trial court’s order denying its motion to dismiss under the Texas Citizens
Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code §§ 27.001–.011. RMWBH contends
the trial court erred in denying its motion to dismiss on its merits, and in doing so, it also erred in
denying its request for attorney’s fees. Because we conclude the law firm is entitled to dismissal,
we reverse the trial court’s order and remand the case for further proceedings.
1 The appeal was transferred to this Court from the Fourth Court of Appeals pursuant to a Texas Supreme Court docket equalization order. Accordingly, we apply the Fourth Court of Appeals’ precedent to the extent it conflicts with our own. See Tex. R. App. P. 41.3. FACTUAL BACKGROUND
Appellee Lynn Madison owns a home in the Talise De Culebra neighborhood of San
Antonio. Her tract of land is encumbered by a Declaration of Covenants, Conditions and
Restrictions (Covenants), which are generally enforced by the Talise De Culebra Home Owners’
Association, Inc. (the HOA).
This dispute involves two lawsuits. First, the HOA filed suit against Madison (the First
Lawsuit). In that suit, RMWBH provided legal representation to the HOA. Second, Madison in
turn filed suit against both RMWBH and the HOA (the Current Lawsuit). Relevant to this appeal,
RMWBH filed a motion to dismiss the Current Lawsuit against it under the TCPA.
A. The first lawsuit
On March 29, 2021, the HOA sued Madison alleging she had breached restrictive
covenants by failing to pay assessments and other charges. The HOA sought a judgment for all
amounts due and owing. It also contended that restrictive covenants reserved a lien on Madison’s
property. It further asserted it was entitled to foreclosure of its lien. Relatedly, on December 22,
2022, the HOA filed a Notice of Lis Pendens against Madison’s property giving notice of the
pending suit to recover delinquent assessments.
B. The current lawsuit
On May 12, 2023, Madison filed her own suit against RMWBH and the HOA. Madison
raised the following causes of action, all of which are premised on her allegation that the notice of
lis pendens was wrongfully filed: (1) violations of the federal Fair Debt Collection Practices Act
against only RMWBH, (2) violations of the Texas Debt Collection Act against RMWBH and the
HOA, (3) violations of the Texas Fraudulent Lien Statute against only RMWBH, and (4) suit to
quiet title. Under the doctrine of respondeat superior, Madison alleged the HOA was responsible
2 for the acts of its agent RMWBH. Finally, she requested a declaratory judgment that the notice of
lis pendens was wrongfully filed.
Two months later, RMWBH and the HOA filed their motion to dismiss. After Madison
filed a response, RMWBH and the HOA replied. The HOA later gave notice that it withdrew its
claims as outlined in the joint TCPA motion to dismiss, but only as to the HOA. On September 12,
2023, the trial court conducted a hearing on RMWBH’s motion to dismiss and signed an order
denying the motion a month later. This interlocutory appeal by RMWBH ensued. See Tex. Civ.
Prac. & Rem. Code § 51.014(a)(12) (allowing interlocutory appeals from the denial of such
motions to dismiss).
ISSUES ON APPEAL
RMWBH brings two issues on appeal. First, it argues the trial court erred in denying its
motion to dismiss under the TCPA because: (1) it established Madison’s Current Lawsuit was
based on, or in response to, RMWBH’s constitutionally protected right to petition; (2) that
Madison did not satisfy her burden to establish a prima facie case for each essential element of her
claims; and (3) that RMWBH established valid defenses to Madison’s claims. Second, it argues
that, because the trial court erred in denying RMWBH’s motion to dismiss under the TCPA, it also
erred in denying RMWBH’s request for attorney’s fees.
We address each issue in turn.
THE TCPA’S THREE-STEP FRAMEWORK
The purpose of the TCPA “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. We
3 construe the TCPA “liberally to effectuate its purpose and intent fully.” Id. § 27.011(b); State
ex rel. Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018).
Under the TCPA, a party may file a motion to dismiss a legal action if the “legal action is
based on or is in response to [that] party’s exercise of the right of free speech, right to petition, or
right of association[.]” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a). The filing of a TCPA
motion to dismiss triggers a three-step resolution process, with shifting burdens. In the first step,
the movant has the burden to show the TCPA applies. See id. § 27.005(b). To meet this burden,
the movant must demonstrate that the nonmovant’s legal action is based on or is in response to the
movant’s exercise of a right to associate, speak freely, or petition. Id. § 27.005(b)(1). If the movant
meets its initial burden, the second step next provides that the burden shifts to the party bringing
the legal action to establish by clear and specific evidence a prima facie case for each essential
element of its claim. Id. § 27.005(c). If the nonmovant satisfies its burden, the third and final step
provides that the burden shifts back to the movant to establish a valid affirmative defense or other
ground on which the movant is entitled to judgment as a matter of law. Id. § 27.005(d).
STANDARD OF REVIEW
We review de novo whether the parties have met their respective TCPA burdens. See
Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019); Whataburger Restaurants
LLC v. Fuentes, No. 08-23-00017-CV, 2023 WL 5808849, at *4 (Tex. App.—El Paso Sept. 7,
2023, no pet.) (mem. op.) (“Whether the TCPA applies to a legal action is an issue of statutory
interpretation that we review de novo.”). In making this determination, § 27.006(a) provides that:
“the court 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 Ann. § 27.006(a); Whataburger
4 Restaurants, 2023 WL 5808849, at *4 (holding same); Tex. R. Civ. P. 166a(c) (stating evidence
trial court may consider in summary judgment proceeding). A plaintiff’s pleadings are usually “the
best and all-sufficient evidence of the nature of the action.” Hersh v. Tatum, 526 S.W.3d 462, 467
(Tex. 2017). “When it is clear from the plaintiff’s pleadings that the action is covered by the
[TCPA], the defendant need show no more.” Id. “When a legal action is in response to both
expression protected by the TCPA and other unprotected activity, the legal action is subject to
dismissal only to the extent that it is in response to the protected conduct, as opposed to being
subject to dismissal in its entirety.” Walker v. Hartman, 516 S.W.3d 71, 81 (Tex. App.—Beaumont
2017, pet. denied).
“[A] TCPA motion to dismiss is not a trial on the merits and is not intended to replace
either a trial or the summary judgment proceeding established by the Texas Rules of Civil
Procedure.” Stallion Oilfield Servs. Ltd. v. Gravity Oilfield Servs., LLC, 592 S.W.3d 205, 215
(Tex. App.—Eastland 2019, pet. denied); see also West v. Quintanilla, 573 S.W.3d 237, 243 n.9
(Tex. 2019) (“A finding that [nonmovant] has met his TCPA burden does not establish that his
allegations are true.”). Therefore, based on the required standard of review, we do not resolve any
disputed facts in the Current Lawsuit involving allegations of whether the notice of lis pendens
here was wrongfully filed.
THE TCPA’S APPLICABILITY
We begin our analysis with the threshold question of whether the Act applies to the case
before us. RMWBH had the initial burden to show that Madison’s “legal action” was based on or
in response to an exercise of its right to petition.
5 A. The legal action
As relevant to this case, the TCPA applies “[i]f [Madison’s] legal action is based on or is
in response to [RMWBH’s] exercise of the . . . right to petition[.]” Tex. Civ. Prac. & Rem. Code
Ann. § 27.003(a). A “legal action” is defined as “a lawsuit, cause of action, petition, complaint,
cross-claim, or counterclaim or any other judicial pleading or filing that requests legal, declaratory,
or equitable relief.” Id. § 27.001(6). “A ‘legal action’ can consist of an entire lawsuit or a
subsidiary action such as a counterclaim.” Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC,
591 S.W.3d 127, 131 (Tex. 2019). Here, the parties generally agree both, that the Current Lawsuit
is a legal action, and that RMWBH’s filing of the First Lawsuit encompassed an exercise of its
“right to petition.” Thus, our focus in the first analytical step is narrowed to considering whether
RMWBH carried its burden to establish that the Current Lawsuit was filed in response to
RMWBH’s exercise of its right to petition.
As relevant,”[w]hether a claim is based on or in response to a party’s exercise of the right
to petition requires us to determine . . . whether the party makes a communication; and . . . whether
such communication is made in or pertaining to, a judicial proceeding[.]” Yu v. Koo, 633 S.W.3d
712, 724 (Tex. App.—El Paso 2021, no pet.); Tex. Civ. Prac. & Rem. Code Ann. § 27.001(4)(A)(i)
(“‘Exercise of the right to petition’ means . . . a communication in or pertaining to . . . a judicial
proceeding”). As defined by the TCPA, communication includes “the making or submitting of a
statement or document in any form or medium, including oral, visual, written, audiovisual, or
electronic.” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1). As described by the Texas Supreme
Court, the term encompasses “[a]lmost every imaginable form of communication, in any
medium[.]” Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018). Focusing
6 on these terms, the parties’ dispute is more narrowly focused on whether the notice of lis pendens
filed of record qualified as a “communication” within the scope of the TCPA.
B. Analysis
In responding to the motion to dismiss, Madison asserted RMWBH failed to carry its initial
burden because, she claimed, the TCPA does not apply to protect conduct alone. To this extent,
Madison appears to argue that the filing of the notice of lis pendens amounted to “conduct,” not
“communication.” In such case, “when a claim does not allege a communication, and is instead
based on a defendant’s conduct, the TCPA is not implicated.” Pacheco v. Rodriguez, 600 S.W.3d
401, 410 (Tex. App.—El Paso 2020, no pet.); see also Shopoff Advisors, L.P. v. Atrium Circle,
GP, No. 04-20-00310-CV, 2021 WL 2669337, at *4 (Tex. App.—San Antonio June 30, 2021,
no pet.) (mem. op.) (filing of lis pendens in litigation context did not invoke TCPA because claims
were based on conduct, i.e., failure to release lis pendens in accordance with an arbitration award
and judgment confirming arbitration award).
Turning to her pleading, Madison brought the Current Lawsuit based in part on her
contention that RMWBH wrongfully filed a notice of lis pendens. She urged the notice gave the
public the impression her property was encumbered by litigation relating to her property’s title;
and, by filing that notice, that RMWBH engaged in false and misleading representations of the
character, amount, or legal status of a debt, which falsely represented the nature of its suit. In short,
Madison’s complaints centered on the information communicated in the notice of lis pendens,
which stated as follows:
This action seeks: (a) recovery of delinquent assessments, interest and other charges authorized by the applicable restrictive covenants and/or state law; and (b) an order foreclosing plaintiff’s lien for all such delinquent charges that are secured by the plaintiff’s lien on the property per the applicable restrictive covenants.
7 Based on our review of Madison’s pleadings, however, we conclude the notice of lis
pendens filed by RMWBH did qualify as “communication” within the scope of the TCPA. See
Ireland Fam. Ltd. P’ship v. Soloway, No. 09-22-00192-CV, 2023 WL 2534062, at *7 (Tex. App.—
Beaumont Mar. 16, 2023, pet. denied) (mem. op.) (holding the allegations in plaintiff’s live
pleading showed their breach of contract and fraudulent lien claims were actually based on or in
response to defendant’s filing of its lawsuit and lis pendens); Smith v. Arrington, No. 07-19-00393-
CV, 2021 WL 476339, at *4 (Tex. App.—Amarillo Feb. 9, 2021, pet. denied) (mem. op.)
(concluding lis pendens was a “communication related to a judicial proceeding” and implicated
movant’s right to petition); Serafine v. Blunt, 466 S.W.3d 352, 360 (Tex. App.—Austin 2015,
no pet.) (concluding nonmovants’ tortious-interference counterclaim was in part based on, related
to, or in response to movant’s filing of the suit and their fraudulent-lien counterclaim was based
on, related to, or in response to movant’s filing of the lis pendens, both of which filings are
exercises of movant’s “right to petition” as the TCPA defines the term.); James v. Calkins, 446
S.W.3d 135, 147 (Tex. App.—Houston [1st Dist.] 2014, pet. denied), abrogated on other grounds,
Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021) (holding TCPA applied to suit between family
members over lis pendens clouding title to property within their mother’s estate).
When, as here, it is clear from Madison’s pleadings that the Current Lawsuit is covered by
the TCPA, RMWBH, as a defendant, “need show no more.” Hersh, 526 S.W.3d at 467. Therefore,
RMWBH satisfied its initial burden to show the Current Lawsuit was based on or in response to
RMWBH’S ENTITLEMENT TO DISMISSAL
Because we hold the TCPA applies, the analytical framework requires a second and third
step before we can determine whether RMWBH is entitled to dismissal under the Act. In the
8 second step, the burden shifts to Madison to establish—by clear and specific evidence—a prima
facie case for each essential element of her various claims. Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(c). If that burden is met, the burden would then shift back to RMWBH, as a third and
final step, to establish—by a preponderance of the evidence—the essential elements of any valid
defenses to asserted claims. Id. § 27.005(d). To this extent, RMWBH asserted a defense of attorney
immunity against all claims, arguing that, at all times relevant, it was acting in its capacity as legal
counsel for the HOA. For our purposes, we will assume, but not decide that Madison met her
second-step burden as to each of her claims. RMWBH’s entitlement to dismissal, then, hinges on
whether the firm met its third-step burden of establishing attorney immunity as a matter of law as
to all claims. See Tex. R. App. P. 47.1 (providing that courts of appeals must hand down a written
opinion that is as brief as practicable but addressing every issue raised and necessary to final
disposition of the appeal).
As a general rule, attorneys are “immune from civil liability to non-clients for actions taken
in connection with representing a client in litigation.” Cantey Hanger, LLP v. Byrd, 467 S.W.3d
477, 481 (Tex. 2015); see also Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018). Attorney
immunity applies when the challenged conduct is the “kind of conduct in which an attorney
engages when discharging his duties to his client.” Cantey Hanger, 467 S.W.3d at 482 (citation
omitted). “Put differently, an attorney may be liable to nonclients only for conduct outside the
scope of his representation of his client or for conduct foreign to the duties of a lawyer.” Youngkin,
546 S.W.3d at 681.
“In determining whether conduct is ‘the kind’ immunity protects, the inquiry focuses on
the type of conduct at issue rather than the alleged wrongfulness of that conduct.” Taylor v. Tolbert,
644 S.W.3d 637, 646 (Tex. 2022) (emphasis in original). “Because immunity focuses on the type
9 of conduct, it may apply even to unsound or unmeritorious conduct.” Turner v. Williams, No. 01-
17-00494-CV, 2019 WL 922057, at *7–8 (Tex. App.—Houston [1st Dist.] Feb. 26, 2019, no pet.)
(mem. op.). “Even conduct that is ‘wrongful in the context of the underlying suit’ is not actionable
if it is ‘part of the discharge of the lawyer’s duties in representing his or her client.’” Cantey
Hanger, 467 S.W.3d at 481 (citations omitted).
“A corollary to this principle is that attorneys will not be entitled to civil immunity for
conduct that is ‘entirely foreign to the duties of an attorney.’” Tolbert, 644 S.W.3d at 646.
“‘Foreign to the duties’ does not mean something a good attorney should not do; it means that the
attorney is acting outside his or her capacity and function as an attorney.” Id. “For that reason,
whether counsel may claim the privilege turns on the task that was being performed, not whether
the challenged conduct was meritorious.” Id. at 646–47. Although attorney immunity is broad, it
is not absolute. See Easton v. Phelan, No. 01-10-01067-CV, 2012 WL 1650024, at *8
(Tex. App.—Houston [1st Dist.] May 10, 2012, no pet.) (mem. op.). Attorney immunity will not
shield “independently fraudulent activities.” Alpert v. Crain, Caton & James, P.C., 178 S.W.3d
398, 406 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). However, merely labeling an
attorney’s conduct “fraudulent” does not and should not remove it from the scope of client
representation or render it “foreign to the duties of an attorney.” Id. “Fraud is not an exception to
attorney immunity; rather, the defense does not extend to fraudulent conduct that is outside the
scope of an attorney’s legal representation of his client, just as it does not extend to other wrongful
conduct outside the scope of representation.” Cantey Hanger, 467 S.W.3d at 484 (emphasis
added).
As stated earlier, Madison’s claims against RMWBH are premised on her allegation that
the notice of lis pendens was wrongfully filed. To an extent, courts have recognized that, even if
10 an attorney’s conduct is wrongful, that conduct may still fall within the scope of client
representation. “Under Texas law, attorneys cannot be held liable for wrongful litigation conduct.”
Renfroe v. Jones & Assocs., 947 S.W.2d 285, 288 (Tex. App.—Fort Worth 1997, writ denied)
(holding attorneys were not liable to opposing parties for filing a wrongful garnishment action).
Madison’s sole contention against RMWBH’s immunity defense is based on an assertion that her
claim is predicated on RMWBH’s role as a “debt collector,” not as attorneys. For two reasons,
however, we reject Madison’s reliance on RMWBH’s alleged status as a debt collector to defeat
attorney immunity.
First, Madison’s assertion that RMWBH is a debt collector relies on her contention that the
Texas Debt Collection Act requires anyone meeting the definition of a “third-party debt collector”
to obtain a surety bond issued by a surety company authorized to do business in Texas and file it
with the Texas Secretary of State. See Tex. Fin. Code Ann. § 392.101(a). She alleges that
RMWBH maintains a bond on file with the Texas Secretary of State. As “evidence” of this bond,
she embedded in her response to the motion to dismiss what appears to be a screenshot from the
Texas Secretary of State website that includes a bond number. Madison contends that, based on
this screenshot, RMWBH is a debt collector. However, the screenshot does not otherwise indicate
the purpose of the bond, in whose favor the bond runs, or the amount of the bond. See Tex. Fin.
Code Ann. § 392.101(b)(2), (c) (“The bond must be in favor of . . . this state for the benefit of any
person who is damaged by a violation of this chapter[, and the] bond must be in the amount of
$10,000.”). Accordingly, we conclude this circumstantial evidence is too meager to allow a fact-
finder to infer that RMWBH is a debt collector. City of Keller v. Wilson, 168 S.W.3d 802, 813
(Tex. 2005) (“In claims or defenses supported only by meager circumstantial evidence, the
11 evidence does not rise above a scintilla (and thus is legally insufficient) if jurors would have to
guess whether a vital fact exists.”).
Second, a “third-party debt collector” means:
a debt collector, as defined by 15 U.S.C. Section 1692a(6), but does not include an attorney collecting a debt as an attorney on behalf of and in the name of a client unless the attorney has nonattorney employees who: (A) are regularly engaged to solicit debts for collection; or (B) regularly make contact with debtors for the purpose of collection or adjustment of debts.
Tex. Fin. Code Ann. § 392.001(7) (emphasis added). Madison provides no evidence that RMWBH
satisfies the definition of a “third-party debt collector.”
Accordingly, meritorious or not, the type of conduct alleged by Madison falls squarely
within the scope of RMWBH’s representation of the HOA in the First Lawsuit. 2 Therefore,
RMWBH established an affirmative defense to Madison’s claims. The trial court erred in denying
RMWBH’s motion to dismiss this claim. We sustain RMWBH’s first issue.
ATTORNEY’S FEES AND SANCTIONS
Under the TCPA, a defendant who successfully moves for dismissal is entitled to “(1) court
costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action
as justice and equity may require” and “(2) sanctions against the party who brought the legal action
as the court determines sufficient to deter the party who brought the legal action from bringing
similar actions described in this chapter.” Youngkin, 546 S.W.3d at 683 (citing Tex. Civ. Prac. &
Rem. Code § 27.009(a)). In its second issue, RMWBH requests this Court “award mandatory court
costs, reasonable attorney’s fees, and other expenses incurred in defending this action.” We decline
2 During the hearing on the motion to dismiss, counsel for RMWBH stated it was the firm’s policy to file a lis pendens “in these situations.”
12 the request and remand the case to the trial court for reconsideration of an award under § 27.009(a)
in light of our conclusion that the claims against RMWBH must be dismissed. See Youngkin, 546
S.W.3d at 683.
CONCLUSION Pursuant to the TCPA, we hold that RMWBH is entitled to dismissal of Madison’s claims
against it under the Federal Fair Debt Collection Act, the Texas Debt Collection Act, and the Texas
Fraudulent Lien Act. Therefore, we reverse the trial court’s order denying RMWBH’s motion to
dismiss, render judgment granting RMWBH’s motion to dismiss those claims, and remand the
cause to the trial court for further proceedings consistent with this opinion.
GINA M. PALAFOX, Justice
May 30, 2024
Before Palafox and Soto, JJ., and Salas Mendoza, Judge Salas Mendoza, Judge (sitting by assignment)