Caleb Moore and the Law Firm of Caleb Moore, PLLC v. Anson Financial, Inc. ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00201-CV
___________________________
CALEB MOORE AND THE LAW FIRM OF CALEB MOORE, PLLC, Appellant
V.
ANSON FINANCIAL, INC.
On Appeal from County Court at Law No. 3
Tarrant County, Texas
Trial Court No. 2019-001471-3
Before Birdwell, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
A lawyer and his law firm have appealed the denial of their motion to dismiss
under the Texas Citizens Participation Act (“TCPA”). We hold that they have
established both requisites for dismissal: that this suit is based on their exercise of the
protected right to petition and that they are entitled to the defense of attorney
immunity. We therefore reverse and remand for dismissal and a determination of
attorneys’ fees, costs, and any other appropriate relief.
I. BACKGROUND
While this case has a complicated procedural history involving suits,
countersuits, and appeals that stretch across at least five different courts, there are
only a few central players, all of whom are attorneys and their businesses. The first is
Michael Ferguson and his lending firm, appellee Anson Financial, Inc. (collectively,
“Anson”). The second is an attorney who worked for Anson, Ian Ghrist. According
to Ghrist’s affidavit, he helped Anson with multiple suits during the two years he
worked there, and in one suit, Anson obtained a judgment for a sizeable portfolio of
assets. Ghrist and Anson reached an agreement about how to split the assets, but
Ghrist insisted that Anson never gave him his share. Ghrist left the firm in 2015 and
looked for representation to sue Anson.
2
Enter the third player, Caleb Moore and his law firm, who are the appellants
here (collectively, “Moore”). 1 Moore represented Ghrist in his suit against Anson in
the 17th District Court. Anson moved to disqualify Moore, but the motion was
denied. Ultimately, Moore won Ghrist a judgment for over $300,000, which is on
appeal before this court in another case.2
The conflict touched off other proceedings involving Anson, Ghrist, and
Moore which form the backdrop for this litigation. In one suit, Anson brought a
variety of claims against Ghrist and related entities in the 141st District Court, though
Ghrist obtained a partial summary judgment on all but one of these claims. In
another proceeding, Anson filed a grievance against Ghrist, which was denied. In still
another suit, this time before the 342nd District Court, Moore represented certain
third parties against Anson. Anson again moved to disqualify Moore, and as before,
the motion was denied, and the suit apparently remains ongoing.
In early 2019, Anson resorted to filing this suit against Moore in County Court
at Law Number 3. Anson’s theory was that Moore was in a civil conspiracy to help
Ghrist breach his fiduciary duty as Anson’s former attorney. Anson alleged that
through the conspiracy, Moore was helping Ghrist harm Anson in multiple ways.
First, Ghrist had allegedly given Moore confidential information about Anson’s inner
1
For ease of reference, we use neuter pronouns to refer to Anson and
masculine pronouns to refer to Moore.
2
The appeal is pending in cause number 02-18-00332-CV.
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workings, and Moore was exploiting that information when he represented third
parties against Anson. Second, Anson claimed that even though it was Moore who
purportedly represented the third parties, there was evidence showing that Ghrist, not
Moore, had drafted the third party’s petition and briefs, in violation of conflict rules.
Third, Anson produced emails showing that Moore was consulting with still other
third parties about suing Anson, and in those emails, Moore reported that Ghrist was
excited about the prospect of bringing in more parties to attack Anson. Anson argued
that by helping Ghrist cause more litigation for and harm to Anson, in breach of
Ghrist’s fiduciary duty, Moore was liable for the breach as a conspirator.
Shortly after Anson filed its petition, Moore filed a motion to dismiss the cause
under the TCPA. Moore maintained that Anson’s suit trenched on Moore’s protected
rights, including the right to petition. Among other things, Moore also argued that he
had carried his burden to establish a defense to Anson’s suit—attorney immunity—
and that Anson’s suit should therefore be dismissed with prejudice. The trial court
denied the motion. This appeal followed.3
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Before the TCPA motion was decided, Anson nonsuited all its claims.
However, the nonsuit does not prevent us from considering the merits of the motion.
Though a plaintiff decides which of its own claims to pursue or to abandon, that
decision does not control the fate of a nonmoving party’s independent claims for
affirmative relief. Rauhauser v. McGibney, 508 S.W.3d 377, 381 (Tex. App.—Fort
Worth 2014, no pet.) (per curiam), disapproved of on other grounds by Hersh v. Tatum, 526
S.W.3d 462 (Tex. 2017). We have held that when a defendant’s TCPA motion seeks
more relief than a simple nonsuit, that motion states independent claims for
affirmative relief which survive a nonsuit. Id. Beyond a nonsuit, Moore seeks
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II. DISCUSSION
In his sole issue, Moore challenges the denial of his TCPA motion to dismiss.
Moore asserts that he established all things necessary to prevail on the motion,
including the applicability of the TCPA and a defense—attorney immunity—to
Anson’s action.
The TCPA protects citizens who associate, 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) (orig. proceeding). That protection comes in
the form of a special motion to dismiss, subject to expedited review, for any suit that
appears to stifle the defendant’s exercise of those rights. Youngkin v. Hines, 546
S.W.3d 675, 679 (Tex. 2018).
Reviewing a TCPA motion to dismiss requires a three-step analysis. Id. Under
the version of the statute that governs this case,4 the moving party must show, as a
threshold matter and by a preponderance of the evidence, that the TCPA applies to
the suit against it. Id. If the moving party meets that burden, the nonmoving party
dismissal with prejudice, attorneys’ fees, sanctions, and costs. His TCPA motion
therefore survives Anson’s nonsuit.
4
In 2019, the Texas Legislature amended the TCPA but stated that the
amendments applied only to an action filed on or after the effective date of the Act,
September 1, 2019, and that any action filed before that date is governed by the law in
effect before that date. Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex.
Gen. Laws 684, 687. The amendments therefore do not apply to this suit, which was
filed in early 2019, and any discussion of the TCPA herein refers to the former
version of the statute.
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must establish by clear and specific evidence a prima facie case for each essential
element of its claim. Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c)). If the
nonmovant satisfies that requirement, the burden shifts back to the moving party to
prove each essential element of any valid defenses by a preponderance of the
evidence. Id. at 679–80.
We review a trial court’s ruling on a TCPA motion to dismiss de novo. Beving v.
Beadles, 563 S.W.3d 399, 404 (Tex. App.—Fort Worth 2018, pet. denied). In our
review, we consider the pleadings and any supporting and opposing affidavits. Id.
To begin, we consider the threshold question of whether the TCPA applies to
Anson’s suit. See Youngkin, 546 S.W.3d at 680. A party may invoke the TCPA
dismissal procedure if that party shows by a preponderance of the evidence that the
legal action against it is based on or is in response to a party’s exercise of the right of
free speech, right to petition, or right of association. Id. The exercise of the right to
petition has an “expansive statutory definition” that includes any “communication in
or pertaining to a judicial proceeding.” Id. (cleaned up). “Communication” is also
broadly defined, and it includes the making or submitting of a statement or document
in any form or medium. Id.
The thrust of the suit was that Moore conspired with Ghrist to sue Anson, that
Moore and Ghrist were orchestrating third-party litigation against Anson, and that
Moore was communicating with still other third parties about bringing more litigation
against Anson. Each of these alleged forms of misconduct is a communication in or
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pertaining to a judicial proceeding. Because Anson’s suit is based on Moore’s exercise
of the right to petition, Moore satisfied his initial burden to show that the TCPA
applies. See id. at 679.
The burden therefore shifted to Anson to establish, by clear and specific
evidence, a prima facie case for its conspiracy claim. See id. We will assume without
deciding that Anson met this burden and that the burden of proof then shifted to
Moore to prove each essential element of a valid defense by a preponderance of the
evidence. See id. at 681 (same approach). Even operating under this assumption, we
nevertheless hold that Moore is entitled to dismissal because he established the
defense of attorney immunity. See id.
As a general rule, attorneys are immune from civil liability to nonclients for
actions taken in connection with representing a client in litigation. Bethel v. Quilling,
Selander, Lownds, Winslett & Moser, PC, No. 18-0595, 2020 WL 938618, at *4 (Tex. Feb.
21, 2020); Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). 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. “An attorney is given latitude to pursue legal rights that
he deems necessary and proper precisely to avoid the inevitable conflict that would
arise if he were forced constantly to balance his own potential exposure against his
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client’s best interest.”5 Cantey Hanger, 467 S.W.3d at 483 (internal quotation marks
omitted).
The immunity inquiry focuses on the kind of conduct at issue rather than the
alleged wrongfulness of the conduct. Youngkin, 546 S.W.3d at 681. Under this
analysis, a lawyer is no more susceptible to liability for a given action merely because it
is labeled as fraudulent or criminal. Id. 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 a client. Cantey Hanger, 467 S.W.3d at 481. Rather, “other
mechanisms are in place to discourage and remedy such conduct, such as sanctions,
contempt, and attorney disciplinary proceedings.” Id. at 482.
The only facts required to support an attorney-immunity defense are the type
of conduct at issue and the existence of an attorney–client relationship at the time.
Youngkin, 546 S.W.3d at 683. A court would then decide the legal question of whether
the conduct was within the scope of representation. Id. The 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).
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“Though attorney immunity is broad, it is not limitless.” Youngkin v. Hines, 546
S.W.3d 675, 682 (Tex. 2018). Attorneys are not protected from liability to nonclients
for their actions that do not qualify as the kind of conduct in which an attorney
engages when discharging his duties to his client. Cantey Hanger, LLP v. Byrd, 467
S.W.3d 477, 482 (Tex. 2015). For example, immunity does not apply when an
attorney participates in a fraudulent business scheme with his client, knowingly
facilitates a fraudulent transfer to help his clients avoid paying a judgment, steals
goods or services on a client’s behalf, or assaults opposing counsel during trial.
Youngkin, 546 S.W.3d at 682–83.
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In its petition, Anson alleges that Moore engaged in multiple forms of
misconduct while representing Ghrist and various third parties, and this misconduct
demonstrates a civil conspiracy to harm Anson and to breach Ghrist’s fiduciary duty
to Anson as the firm’s former attorney. But looking beyond the labels of misconduct
and conspiracy, each of the complained-of actions is the kind of thing that an attorney
would do in the course of representing a client.
First, Anson refers to a series of emails in which Moore consults with a third
party about the possibility of hiring Moore to sue Anson. In the emails, Moore
explains that his “client” (allegedly Ghrist) is excited about the possibility of third-
party litigation against Anson, stating that “[h]e thinks it would be beneficial to all . . .
the more litigation [Anson] has to deal with.” Anson alleges that these emails firmly
establish a civil conspiracy between Moore and Ghrist. However, at root, these emails
demonstrate two kinds of conduct: (1) conferring with a client before taking on
additional representations, which serves the lawyer’s duty to communicate with the
client, see generally Tex. Disciplinary Rules Prof’l Conduct 1.03, reprinted in Tex. Gov’t
Code Ann., tit. 2, subtit. G app. A; and (2) enlisting a third party to join in the
litigation against an opponent, which would advance the representation by forcing the
opponent to defend on multiple fronts. See Clayton v. Oldcastle Materials Tex., Inc.,
No. 09-18-00063-CV, 2019 WL 6884773, at *6 (Tex. App.—Beaumont Feb. 14, 2019,
no pet.) (mem. op.) (applying attorney immunity to a lawyer’s efforts to drum up
third-party litigation against a defendant); Landry’s, Inc. v. Animal Legal Def. Fund, 566
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S.W.3d 41, 60 (Tex. App.—Houston [14th Dist.] 2018, pet. filed) (applying attorney
immunity to the waging of a publicity war against defendant at the same time as a
battle in court). Moore did not do these things for his own health; he did them to
advance his clients’ interests. See Johnson v. Ashmore, 681 Fed. App’x 345, 347 (5th Cir.
2017) (per curiam). Both forms of conduct are consistent and connected with the
discharge of Moore’s duties in representing his clients. See Cantey Hanger, 467 S.W.3d
at 481.
Next, Anson says that its former employee Ghrist wrongfully gave Moore
confidential information that Moore is exploiting in multiple suits against Anson.
Again, looking past the label that Anson assigns it, this kind of conduct could fairly be
characterized in a much more neutral light, as is demonstrated by Highland Capital
Management, LP v. Looper Reed & McGraw, PC, No. 05-15-00055-CV, 2016 WL 164528
(Tex. App.—Dallas Jan. 14, 2016, pet. denied) (mem. op.). There, the plaintiff
Highland sued its former employee, and the employee hired a law firm to defend him.
Id. at *1. Highland then brought suit against the law firm itself, alleging that the
former employee had given Highland’s confidential information to the law firm, and
that the law firm was exploiting that information in suits against Highland—much like
Anson alleges here. Id. Highland alleged the law firm reviewed, copied, and analyzed
the “stolen” confidential information in furtherance of its scheme to extort, slander,
and disparage Highland; refused to return and cease use of Highland’s stolen
information; knowingly facilitated the employee’s wrongful disclosure of that
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information; threatened to disclose the information if its demands were not met; and
engaged in other misdeeds. Id. The reviewing court, however, described the law
firm’s actions in less provocative terms: “acquiring documents from a client that are
the subject of litigation against the client”; “reviewing,” “copying,” and “analyzing the
documents”; “advising a client on a course of action”; and making “demands” on the
client’s behalf. Id. at *6. The Highland court concluded that these were the “kinds of
actions” that were part of an attorney’s duties in representing a client in “hard-fought
litigation.” Id. In the same way, here, the contested actions—which Anson labels as
the wrongful exploitation of its confidential information—could fairly be stated in
much more neutral terms: reviewing critical case information and utilizing that
information to pursue a resolution in favor of a client. Such actions would fall within
the legitimate scope of the representation. See id.
Finally, Anson complains that Ghrist drafted and filed certain documents for
Moore. But the kind of conduct at issue—arranging for an attorney to draft legal
documents for a client—is among the things a lawyer would do for a client, regardless
of its alleged wrongfulness. See Youngkin, 546 S.W.3d at 681. We express no opinion
on whether such a ghostwriting relationship might be fertile ground for another
grievance. It is enough to say that any remedy for this alleged impropriety is a public
one, not a private one. See Cantey Hanger, 467 S.W.3d at 482 (“If an attorney’s conduct
violates his professional responsibility, the remedy is public, not private.”); cf. Russo v.
Adame, No. 02-15-00219-CV, 2016 WL 5957017, at *4 (Tex. App.—Fort Worth
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Oct. 13, 2016, no pet.) (mem. op.) (quoting Blankinship v. Brown, 399 S.W.3d 303, 311
(Tex. App.—Dallas 2013, pet. denied)) (“The Texas Disciplinary Rules of Professional
Conduct expressly state that a violation of the Code of Professional Responsibility
does not give rise to a private cause of action.”).
Because Moore established (1) that Anson’s action is based on Moore’s exercise
of the right to petition and (2) that the subject of Anson’s suit is conduct that falls
within the scope of Moore’s legal representation of clients, Moore was entitled to
dismissal of Anson’s suit. Moore was also entitled to reasonable attorneys’ fees, costs,
and, under the version of the statute that governs this suit, any appropriate sanctions.
See Rauhauser, 508 S.W.3d at 389 (explaining that these things were “mandatory” under
the former version of the TCPA). We therefore sustain Moore’s sole issue.
III. CONCLUSION
We reverse and remand the matter to the trial court to grant the motion to
dismiss and to determine and award attorneys’ fees, costs, and any appropriate
sanctions.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: March 19, 2020
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