COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ROBERTS MARKEL WEINBERG BUTLER

HAILEY PC

,

Appellant

,

v.

LYNN MADISON

,

Appellee

. §

§

§

§

§

§ No. 08

- 23

- 00 323

- C V

Appeal from the

224 th Judicial D istrict Court

o f Bexar County, Texas

(TC# 2023CI09527 )

MEMORANDUM OPINION 1

A ppellant, Roberts Markel Weinberg Butler Hailey PC (RMWBH)

, a Texas law firm,

appeal s from the trial court ’ s order denying its m otion to d ismiss under the Texas Citizens

Participation Act (TCPA)

. S ee 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. 41.3.2 

### F ACTUAL 

### B ACKGROUND

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, t he HOA filed suit against Madison (the F irst

L awsuit). In that suit, RMWBH provided legal representation to the HOA. Second, Madison in

turn filed suit against both RMWBH and the HOA (the C urrent L awsuit). Relevant to this appeal,

RMWBH filed a motion to dismiss the Current Lawsuit against it under the TCPA

.

A. The f

irst l awsuit

On March 29, 2021, the HOA sued Madison alleging she had breached restrictive

covenants by fail ing 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, o n 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 c urrent l awsuit

On May 1 2

, 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 responsible3

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 the ir motion to dismiss. After Madison

filed a response

, RMWBH and the HOA replied

. The HOA later gave notice that it withdr e w 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 di s mi ss 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).



### I SSUES ON 

### A PPEAL

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 wa s

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.



### T HE 

### TCPA ’ S 

### T HREE



### - S TEP 

### F RAMEWORK

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. We4

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 a ffirmative defense or other

ground on which the movant is entitled to judgment as a matter of law

. Id. § 27.005(d).



### S TANDARD OF 

### R EVIEW

We review de novo whether the parties have met their respective TCPA burdens. See

Dall as 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); Whataburger5

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 th e Current Lawsuit involving allegations of whether the notice of lis pendens

here was wrongfully filed

.



### T HE 

### TCPA ’ S 

### A PPLICABILITY

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 ” w as based on or

in response to an exercise of its right to petition.6

A. The l egal a ction

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 L awsuit 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). Focusing7

on these terms, the parties ’ dispute is more narrowly focuse d on whether the notice of lis pendens

filed of record qualifie d as a “ communication ” within the scope of the TCPA.

B. Anal ysis

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, “ w hen 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 awar d

and judgment confirming arbitration award ).

Turning to her pleading, Madison brough t 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 e ncumbered by litigation relat ing to her property ’ s title;

and

, by filing that notice

, that RMWBH engaged in false and misleading representation s of the

character, amount, or legal status of a debt

, which falsely represented the nature of its suit

. In short,

Madison ’ s complaints center ed 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.8

B ased on our review of Madison ’ s pleadings, however, we conclude the notice of lis

pendens filed by RMWBH did qualif y as “ communication ” within the scope of the TCPA. See

Ireland Fam. Ltd. P ’ ship v. Solow ay, 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 fi ling of its lawsuit and l is p endens) ; 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 wa s based on or in response to

RMWBH ’ s exercise of its right to petition.



### RMWBH ’ S 

### E NTITLEMENT TO 

### D ISMISSAL

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 the9

second step, the burden shift s 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 shif t 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 a ssum e, but not decid e 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 type10

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 if11

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 attorney s

. For two reasons,

h owever, 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 deb t 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, w e conclude t his 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, the12

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.



### A TTORNEY 

### ’ S 

### F EES AND 

### S ANCTIONS

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 C ourt “ 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. ”13

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.



### C ONCLUSION

P ursuant 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, w e reverse the trial court ’ s order denying RMWBH ’ s motion to

dismiss

, render judgment granting RMWBH ’ s motion to dis miss those claims

, and remand the

c ause to the trial court for further proceedings consistent with this opinion.

GINA M. PALAFOX

, Justice

May 3 0

, 2024

Before Palafox and Soto

, JJ., and Salas Mendoza, J udge

S alas Mendoza, Judge (sitting by assignment)