Last September we reported that SCOTX had denied review of an appeal from the El Paso Court of Appeals in which the court rejected an attempt by the Buzbee Law Firm to dismiss an El Paso physician’s defamation lawsuit under the Texas Citizen Participation Act (Ch. 27, CPRC). Earlier this month the Houston Court of Appeals [1st] affirmed a trial court’s denial of Buzbee’s TCPA motion to dismiss a claim filed by another law firm for tortious interference with contract and exemplary damages.
Anthony G. Buzbee and Anthony G. Buzbee, LP d/b/a The Buzbee Law Firm vs. Terry & Thweatt, P.C. (No. 01-20-00659-CV) arose from a dispute between the two firms over attorney’s fees in the settlement of a wrongful death lawsuit. The parents of the deceased approached Terry & Thweatt (T&T) regarding representation in the matter, and one parent ended signing a representation agreement. The following day, that parent notified T&T that she was terminating the agreement without stating a cause. T&T informed her that she should notify her new counsel that T&T would not relinquish its fee interest in her case because she terminated without cause, as permitted by Texas law. She then signed an agreement with Buzbee, who settled the case and offered to pay T&T substantially less than the 40% to which it was legally entitled. T&T rejected the offer and informed Buzbee of its intention to recover its fee interest and seek damages for tortious interference with contract. Buzbee then initiated an arbitration proceeding against T&T under the representation agreement, in which he asserted the agreement with T&T was unconscionable, and sued T&T on behalf of the husband, who had never signed a representation agreement with T&T in the first place. The arbitrator ended up awarding $5,000 to T&T. T&T subsequently sued Buzbee for tortious interference with its representation agreement with the parent seeking actual and exemplary damages. The suit alleged that Buzbee convinced the parent to terminate the agreement without cause and hire Buzbee based on Buzbee’s assurance that he would pay any attorney’s fees owed to T&T as a result of the termination. Buzbee moved to dismiss the lawsuit under the TCPA. The trial court denied the motion. Buzbee appealed.
The First Court of Appeals affirmed. It court first determined that T&T’s tortious interference claim arose from Buzbee’s alleged promise to pay any attorney’s fees owed to T&T as a result of the termination of the representation agreement. Applying the TCPA commercial speech exemption, the court of appeals found: (1) the TCPA movant, Buzbeen was primarily engaged in selling legal services; (2) Buzbee’s alleged promise to pay attorney’s fees arose in the context of Buzbee’s capacity as a seller of legal services; (3) the alleged promise arose out of a commercial transaction involving the kinds of service Buzbee provides; and (4) the intended audience of the alleged promise was actual or potential customers for those services. The court of appeals thus concluded that T&T had established that Buzbee’s promise met the criteria for the commercial speech exemption.
We applaud the First Court of Appeals for properly construing the TCPA and restraining its reach into ordinary business dealings between commercial sellers.