In a case with a fact pattern that could easily have been ripped from streaming television programming, the Austin Court of Appeals has affirmed a Hays County district court’s denial of a TCPA motion to dismiss. In Ashley Syzmonek and Paul Syzmonek v. Arturo Guzman and the Law Office of Art Guzman (No. 03-20-00569-CV), Guzman alleged that Ashley, his paralegal and sole employee for ten years, “committed ‘multiple deceptive, fraudulent, and illegal acts,’ including stealing from his law practice and failing to respond to a client complaint—leading to his disbarment. He farther alleged that Ashley then told people that Guzman was depressed and not taking care of his law practice in an attempt to lay the groundwork for people to believe he had committed suicide when she attempted to poison him with antifreeze in April 2020.” Guzman sued Ashley for assault and battery, invasion of privacy, libel and slander, common law fraud and conversion, and breach of contract. The Syzmoneks countered by moving to dismiss Guzman’s claims under the TCPA and that Guzman could not present a prima facie case as to each element of his claim. The trial court denied the motion, and the Syzmoneks appealed.

In an opinion by Chief Justice Byrne, the court of appeals affirmed. The opinion contains a lengthy recitation of Guzman’s allegations and evidence attached to his response to the TCPA motion to dismiss. If you are interested in reading that part of the opinion, it begins on page 3 and runs through page 15. Suffice it to say that the court of appeals did not appear amused by the appellants’ attempt to use the TCPA in this manner and wanted everyone to know about the truly shocking allegations underlying the litigation.

In any event, by the time the appellants filed their reply brief, they had figured out that the TCPA doesn’t apply to claims for bodily injury or common law fraud, so they dropped their argument about the assault and battery, fraud, and breach of contract claims. With respect to Guzman’s assertion of libel and slander, the Syzmoneks argued that Ashley’s communications about Guzman’s disbarment, his abandonment of his law practice, and other client-related matters related to “a matter of public concern” because “they arise from ‘statements, communications, and representations pertaining to improper conduct towards members of the public or the government in relation to legal services to clients, misuse of IOLTA funds, misconduct of attorneys and law offices, payments related to legal services, and the integrity of an attorney who serves the public.” The court of appeals rejected this argument on the basis that none of the alleged communications rose to the level of a “matter of public concern.” Indeed, there was no evidence in the record that Ashley had ever communicated with the State Bar or anyone else about Guzman other than that he was depressed, abandoning his practice, and potentially suicidal. Guzman’s allegations that Ashley lied about his malpractice insurance, which she allowed to lapse so that he was not covered in his grievance proceeding, that Guzman’s accountant had never done his taxes as Ashley represented, and that she was handling refinancing an office building owned by Guzman and his former wife, when in fact she did nothing and let the bank foreclose. None of these communications related to Guzman’s competence to practice law, were not relevant to the public, and concerned only Guzman and his family.

The Syzmoneks argued further that Guzman’s lawsuit was based on or in response to their exercise of their right to petition because they centered on communications Ashley had with various courts and tribunals. First, the court of appeals found that the “acts or omissions occurred as she acted as Guzman’s proxy in her role as his paralegal and office manager, not on her own behalf.” Moreover, the alleged communications involved Guzman’s right to petition, not hers. Finally, the Syzmoneks pulled out the right of association card, which didn’t fly, either. Guzman’s claims all concerned Ashley’s misrepresentations to him, her misuse of client trust funds, her participation in stealing Guzman’s identity in order to embezzle funds, and her attempt to poison him “to cover up her misdeeds.” Because the Syzmoneks did not carry their initial burden of showing that the TCPA applied to any of Guzman’s claims, it was unnecessary to analyze whether Guzman provided clear and specific evidence for each element of his claims.

This is the first case we’ve seen so far that applies the TCPA as amended in 2019. Though the amendments are not really a focus of the court’s analysis, the court of appeals took great care to substantiate its analysis of the terms “matter of public concern” and “based on or in response to.” This kind of rigorous analysis and awareness of how broadly the TCPA had been deployed in all manner of litigation prior to the 2019 amendments are exactly what the proponents of tightening the law had in mind in 2019. We applaud the Austin Court of Appeals for a careful and closely reasoned opinion.

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