The Austin Court of Appeals has concluded that the TCPA does not apply to a breach of fiduciary claim brought against a San Antonio lawyer and his firm by a former client.
Jason Murray Davis and Davis & Santos, P.C. v. Graham Weston, Carowest Land Ltd.; Graham Weston as Trustee for Countyline Land Trust; and Kuehler Road, LLC f/k/a Kuehler Road, Ltd. (No. 03-22-00378-CV; December 6, 2024) arose from a contentious divorce involving the co-founder of Rackspace Technology, Inc., a San Antonio-based international cloud computing company. The Weston’s retained Davis and his firm to represent their real estate interests beginning in 2009. Davis subsequently represented Rackspace and the Westons in separate matters. Things went swimmingly until 2019, when Elizabeth Weston began confiding her marriage troubles to Davis. Graham Weston filed for divorce in mid-2020 but nonsuited the petiton two days later. Elizabeth subsequently filed for divorce in Comal County, with Davis as her counsel. Graham moved to disqualify Davis, which the trial court did. Elizabeth sought mandamus relief from the disqualification, which the Austin Court of Appeal denied. In 2021 Graham filed suit against Davis for breach of fiduciary duty. Davis moved to dismiss under the TCPA. The trial court denied the motion. Davis appealed.
In an opinion by Justice Smith, the court of appeals affirmed. First, Davis alleged that Graham’s lawsuit infringed his right to petition. The court disagreed, stating that Davis’s failure to disclose his conflict of interest to Graham, to maintain a duty of loyalty and trust, and to maintain client confidences “do not implicate TCPA protections” because they do not involve “communications” within the meaning of the TCPA. The court held 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 Graham) and Davis’s failure to advise Graham of this conflict of interest or obtain consent for such adverse representation.”
The next issue was whether Graham’s claims that Davis investigated and pursued civil, criminal, and family law claims adverse to Graham while representing Elizabeth implicated Davis’s right to petition. The court held that because Davis represented Elizabeth as her attorney, “any communications Davis made while “‘investigating, developing, and pursuing’ against Graham—including any communications during the divorce proceedings—are attributable to Elizabeth, not Davis and therefore do not implicate Davis’s right to petition.” Davis tried again, alleging that Graham’s legal action infringed his right to free speech on a matter of public concern—“Graham’s [alleged] criminal, physical, and sexual abuse of Elizabeth.” While the court observed that “[i]it is undisputed that Elizabeth communicated with Davis before the divorce regarding various claims of abuse at the hands of Graham, including sexual abuse,” those communications likewise “belonged to Elizabeth,” not to Davis. The trial court did not err in denying Davis’s TCPA motion to dismiss.
The court decided this case under the pre-2019 version of the TCPA, so it reflects a different analysis than would occur today. Indeed, Graham’s claims sound a lot like a legal malpractice theory, and, as we know, the legislature amended the TCPA in 2023 to exclude those claims from the application of the statute. Still, the opinion remains relevant because there are undoubtedly still pre-2019 TCPA cases floating around. The upshot here is that a lawyer can’t appropriate his client’s claims to himself for purposes of getting out of a malpractice lawsuit.
