Opinion issued January 1 6 , 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 19
- 00059
- CV

——————————— RICH RO B INS , Appella nt

V. AUSTEN PERRY CLINKEN BEARD AND JONATHON G . CLINKENBEARD A / K / A JON CLINKENBEARD , Appell e e s
On Ap peal from the Co unty Civil C our t at Law No . 3

Harris County, Texas Trial Court Ca se No. 1107951

MEMORANDUM OPINION Rich Robins appe a l s the denial of his motion, filed pursuant to the Texas Citizen’s P articipation Act (TCPA), 1 to dismiss Austen Perry Cl in ken beard and

1 We note that, i n it s mo st recen t sessi on, the Texas Legislature amended the TCPA. The amendm ent s became effective September 1, 2019. Because this suit w as file d2

Jonathon G. Clinkenbeard’s professional malpractice case against him

. 2 In three issues, Robins argue s that the trial cou rt e rred in denying his motion because (1) the Clinkenbeards’ claims are based on , related to, or in response to TCPA

prote ct ed co mmuni cations; ( 2 ) the Clinkenbeards failed to come forward with sufficient evidence to establish a prima facie case to support their claims ; and (3)
Robi ns establ ish e d defenses to the Clinkenbear ds ’ claims

. We affirm. Background W e recently affirme d the order of the 61st H arris County District Court den ying R o bins ’ s TCPA motion to dismiss the Commission for L a wyer D iscipline ’ s pro fessiona l m isconduct case against him. See Robins v. Commi ssi o n for Lawyer Discipline , No. 0 1

- 19

- 00011

- CV , 2020 WL 101921 (Tex. App.

— Houston [1st Dist.] Jan. 9, 2020 , no pet. h. )

. Because th e factual allegations in th at

cas e are the same as in this case , we will provide an abridge d background here

.

before the ef

fective date of the amendmen ts, i t is gover ned by th e s tatu te as it existed before the amendments, a nd a ll o f our ci tations and analysis are to the TCPA as it exist ed prior to Se pte mber 1, 2019. See Act of May 17, 2019, 86th Leg., R.S. , ch. 3 78, §§ 1

– 12, 2 019 Tex. Sess. La w Serv. 684, 684

– 87 ( codifi ed at T EX
. C IV
. P RAC

. & R EM
. C ODE A NN
. §§ 27.001

– . 011).
2 See T EX
. C IV
. P RAC

. & R EM
. C ODE A NN
. § 27. 008( b) ( authorizing interlocutory app eal of order denying m otion to dismiss filed under TCPA se ctio n 27.003).3

The Crisp Lawsuit
I n July 2012 , Cindy Crisp , who suffered from mult iple sc lerosis, sold certain
items o f p e rsonal property to estate liquid ator John Sauls for a total price of $6,893. 2 1. Sauls sent Crisp p ayment in the form of two checks, both of which bounced.
B y handwritten letter dated October 3, 2013 , Crisp asked att orne y R obins to help her recover “th e v a lue of checks plus interest and attorney/c ourt costs” from Sauls , and she stated that she “understands the attorney fees will not be of normal value and that R ich Robins is doing this to help her to honor the ch ecks that we r e written NSF and fees and cost s . ”
O ver the course of the f ollowing year and a half , Crisp ’ s health further decl ine d and Robins fell out of contact with her . Nevertheless, Robins filed suit on behalf of Crisp to collect payment from Sauls for th e bounced c heck s , “ thinking that [Crisp w a s] ho p efully still alive s omewhere, albei t in a pot entially very compromise d state of health.” The petition , filed on November 17, 2016 , stated that Crisp “would diplomatically settle this case through her legal co un sel for $ 14,3 38 if no further wrangling is ne c essary to finally conclude this u nf ortunate

m atter.” In early 2017, Sauls’s attorney , Kur t Noell, offered to settle the case for the amount of the debt

. R obins rejected the offer, sticking to the demand stated in the4

pe titi on . Noell then made a seco n d off e r, for the amount of the de bt plus $2,500 for loss of use and attorney’s fees , but Rob ins rejected th at offer also

. In March 2017, Crisp’s two sons, Austen and Jon Clinkenbeard , informed Robins that their mothe r had d ie d in 2015. Around the same tim e , Noe l l served d i scovery on Robins

. A ccor ding to No e ll , he had a conversation with Robins
durin g which Robins discuss ed potential dates for Crisp’s deposition

— all the while knowing that Crisp had been d eceased f or ov er two ye ars but failing to disclose th i s information to Noell

. When Robins failed to respond t o N oell ’ s written discovery requests , Noell fi led a motion for sanctions and set it for he aring.
T rial of th e case was set for April 3, 2017, but Robins failed to appea r , and the trial court dismissed the case f or want o f pr osecution. Robins filed “Plainti f f Cindy Crisp ’s Verified Motion to Reinstate, ” claiming he was unaware of the setting, an d the trial court granted the motion, which, notably, did not mention that Cri sp had died over two years earli e r. T wo day s before the June 29, 2017 sanctions hearing w as to occur , Robins
emailed the cou rt adminis trator to inform her that Crisp “ is reported ly no longer with us . . . . w hether o pposing counsel knows it or not ” and tha t “ her son wants to
f ill in for h er.” The e mail did not indicate that Crisp had been dea d for years.
I t appears from the rec ord that , in response to the suggestion of Crisp’s
dea th, the trial cou rt cancelled t he June 29 hearing and instead held a telephoni c5

hear ing, during whic h Robins “ r epresented that Cin dy C risp was probably dead .”
T he tria l court directed Robins to pro duce proof of C risp’s death. Several things happened a s a r esul t o f the telephonic hearing . On July 4,
2017 , Robins ob tained from Austen Clinkenbeard a signed retainer a g reement , p urporting to authorize Robins to represent Cri s p through Austen and pr o viding
th at Robins’ s fees would be paid by S auls

. Noel l demanded that Robins produce , in addition to Crisp’s death certificate , any evidence s howing wheth er her estate had be e n probate d. Robins sub sequently obtained Cris p ’s death certificate and emailed it to Noel l on July 28 , but he did not provide evid ence regarding probate

. As a result, Noell filed a m otion to s how a uthority pursuant to Texa s Rule of Civil Proc edure
12

. Se e T EX
. R. C IV
. P. 12 (stating that party may fi l e motion to require challenged attorney to appear bef

ore trial court to show authority t o act on behalf of client). The trial court granted the motion and ordered Robins to app ea r and show that Crisp had auth o rized him to file the suit i n her name and that “ a probate proceeding of some type has bee n fi led so that any interest in her estate co uld be pursued by an heir.” Robins res ponded , stating that “a probate court has never be e n involved with Cindy Crisp’s p a ssing or with h er estate, an d one need not be.”
O n September 1 8 , t he trial court held a h earin g , a t wh ich Robins stated that he had no t file d a probate proceeding because he had no experience in pr obate6

court and he was tr ying to save his client s ’ money . The trial co urt expressed

conce r n that Robins had filed the lawsuit “ with a client that was d eceased ” a nd without the authority of her hei rs. When the trial court commented that it was “strange” that Robins had only rece ntl y informed Noell that Crisp had d ied two
year s ea rlier, Robins s t ated, “Well, we were trying to keep this within the
settlemen t range be cause he was almost ther e.” The tri al court stated, “ It sound s like you were being dishonest with the opposing party , ” t o which Robins responded , “ Disho n est as oppos ed t o saying, ‘Hey, I think my client is dead. ’ ” Before calling an end to the hea ring, the trial court stated to Robins , “ [y] o u were dishonest. ” T he trial court then ordered Robins to s ubmit additional briefi ng regarding his authority to repre s ent Crisp th roug h Austen Clinke n beard and stated that it would strike Crisp’s pleadings if he failed to do so within ten days.
Robins dr a fted affidavits for both Clinkenbeard brothers stating that probate
was not ne cessar y . B ut the Clinkenbeards refused to sign beca use the affidavits

s tated that Crisp had no debt

. Robins then filed the supplemen tal brief i ng ordered by the trial court . I n i t, he stated that the case could proceed w ith Austen Clinkenbeard as plaintiff and

— ev en though the Clinkenbeard broth e rs had told
him that they belie v ed Crisp did have outstan ding debt

— that no probate proceeding s were nec essary for Crisp’s estate

. Robins a lso amended Crisp ’ s7

petition to add the al le gation that no probate proceedings were n ecessary for Crisp’s est ate. O n Oct ober 23, 2017 , the trial cou r t signed an o rder striking Crisp’s pleadings and awarding Sau ls $250 as sanctions , and on February 12, 2018, it dismissed the case e ntirely

. The After math
Austen filed a grievance against Ro bins

. The State Bar cla ssified t h e gri evance as a “Complaint , ” and the Commission for Lawyer Disc iplin e fi led a petitio n i n district court asking that Robins be reprimanded, suspended , or disba rred

. On January 22, 2018, t he Cli nkenbeards filed suit agains t Robins for legal malprac tice i n S m ith County , Te xas. Robins was served on or about May 1, 2 018.
On March 26, 2 018, Robins filed suit a gainst the Clinkenbeards in Harris County, Tex as , alleging violation s of the Texas Uniform F raudulent Transfer Act

. See T EX
. B US
. & C OM
. C ODE A NN
. §§ 24 .00 1

– .01 3

. Specifically, h e alleged that Crisp ’ s trans fer of her la k e house to her sons caused her to become insolvent,

“ which was done to the detriment o f the legal endeavor that [Crisp] initiate d with
P laintiff Robins in w hich she ultimately ceased parti cipation. ” He further alleged that Crisp “ arranged the asset transfer ” in a w ay that m ade the Clin kenbear d s

“ want to abandon [ her] cause of action ” that she “ very much wanted to have8

p ursued, as d id the [Clinkenbeards] unt i l they surpri singly changed their minds,
pos t

- transfer.”
T he Clinkenbeard s dismiss ed the Smith County cas e , and o n Septemb er 21 , 2018, asserted “ the exact same ” legal malpractice claim as a counterclaim in
R o bins ’s Har ris County s uit against them. The y al leged that Robins engaged in malp ractice by :

• providing unreasonable adv ice , including by stating that he “ would n ot be s urprised if th e jury awards

. . . in excess of $63K ” on a $6,893. 2 1 c heck insufficiency claim ; • putting his own in terests ahea d of those of his client s , including by cre ating a sit uation in which the Clinkenbear ds ’ action “ was not in [Robins ’ s] best interes t to try to resol ve un less and until he was off ered attorneys’ fees ” by Sauls , the defen d ant in that case ; • asking them t o sign a ret ai ner agre ement so he could respond to discove ry to avoid having to attend a sanctions hearing because he did not “ want to h ave to drive to Tyler ” from Housto n;
• failing to keep them ful ly informed “ about set tle ment discussions and the case proc eedings ” ;
• at tempting t o collect and threateni ng to sue t hem for his attorney ’ s fees, contra ry to the r etainer a greement ; • failing to reasonably pur s ue the case and causi ng sanctions to be assessed ;
• causing the case to be dismissed ; and
• refusing to turn over the clien t file. The C li nkenb eards furth er alleged that the case could have been resolved based on Noell ’ s settlement offer that Robins never co m mun icated to them and that the trial court could have been properly notified of Cris p ’ s death a nd the9

standing situati on co uld h ave bee n resolved, but was no t, be cause of Robins ’ s actions.
R obins ’ s TCPA Motion to Dismiss
On November 12, 2018 , Robins file d a TCPA moti on to dismiss the
C linkenbeards ’ counterclaim

. He argued that the TCPA applie s t o the mal practice

c laim bec ause it is based on, related to, or in re spo nse to his exercise of the rights of free speech, petition , and association

. T EX
. C IV
. P R AC
. & R EM
. C OD E A NN
. § 27.00 5(b) ( requirin g dismissal of legal action if movant shows by preponderance of e vidence that act io n is b as ed on, r elates to, or i s in respon se to movant ’s
exercise of right of free speech, petition, or association ). He contend ed that the

m alpractice action “impinges on ” his “constitutional and other rights un der the
TCPA ” and “ is an intentional drain on Pla intiff Rob ins’ time and re sources, as well as a bullying maneuver i nte nded to hinder Plaintiff Robins’ rights and abilit i es to oth erwis e cultiva te potentially rewarding associations with the general public. ” Robins al so argued that the Clinkenb eards could not make a prima facie cas e for legal malpractice and, even if they could do so , that he had established val id defenses to th eir claim

. The C linkenbeards ’ Prima Facie Case In their response , the Clinkenbeards argued that Robins did not file his
TCP A moti on to dismiss within t he 60

- day statut ory deadline , when counted from10

the da y he was served in the S m ith Cou nty case. S e e id. § 27 .003( b) ( stating that
TCPA motion to dismiss “ must be filed not later than the 60th day after the date of servi ce of the legal action ” ). The Clin ken beard s also argu ed that Robins failed to meet his burden to show by a preponderance of the evidence that the TCPA appl ies because th eir malpractice cause o f action c o mplain s about Robins’ s misrepresentations to them, not his exe rcise of First Amendment right s , and the mis rep resentations Robins made to them are exempt from th e TCPA under the commercial speech exemption

. See id. § 27.0 0 5(b) ( st ating that court shall dismiss legal action if movant shows by prepo nderance of evidence that legal action is based on, re lates to, o r i s in response to movant ’ s exercise o f right of free speech, petition, or association ) ; id. § 27.010(b) ( exemptin g from TCP A legal actions brought against person primarily engaged in bu siness of se lling or leas i ng goods or services if statemen t or condu c t a rises out of sale or lease of goods, services, or insurance product, insurance services, or commercial transaction in which intended audience is actual or potential buyer or customer ). Finally , they attached e vidence

w hich they argued establi shed a prim a f acie case fo r each element of their malpractice claim , including Au sten ’ s and Jo n ’ s affi d ivits , which themselves attached exhibits incl u ding several email conversations they had had with Rob ins , Noell ’ s affida vit , a transcript of the Septembe r 18, 201 7 hearing before the trial11

cou rt in the Cris p case , and t he Co m mis sion ’ s dis ciplinary petition filed against Robins

. The Clinkenbeards ’ Affidavits
T he Clinkenbeards s tate d in t heir aff i davits that , after they info rmed Robins of their mother’s dea th, he bega n urging them to continue with the litigatio n. In one email, which th ey attached a s an exhibit, Robins remarked, “I want to get you guys the biggest award realistica lly obtai nable , but I need to balance that with how law school’s painfully expen sive,” and he stated that he “still owes considerably

more because the greedy feds charge such a high premium for student loans . . . .”
And in another email , also attached as an exhibit , Rob ins state d, “b illin g Sauls for

m y several dozen (and growing) hou rs of attor ney time . . . naturally remains a priority for me . . . . The . . . cost of law sch ool helps make that unders tandable.” A few days before the June 29 , 2017 sanctions hearing was t o occur , Robin s

sen t an email to the C linkenbeard brothers asking them to ex ecute retainer agreements so that he could continue the Cri sp litigation as their la wyer and stating that he “ would not b e surprised if the jury awards [them] in excess of $63k ” on Crisp ’ s claim against Sauls. I n the ema il, h e ack n owledg ed that neither the court nor opposing counsel was aware of Crisp ’s death , and he stated that if the Clin kenbear ds sign ed the retainer agreement s, he m ight be able to avo id monetary sancti on s at the upcoming hearing

.12

Whe n the Clink enbeard b rothers t ol d R obins t h at they could not afford to
pay “any expenses or fees up

- front,” Robins assured them that “Mr. Sauls would

eventu ally pay all of that.” H e continued to advise them not to settle the case and

“ would press [them] to continue li tigation in court. ” O nl y after t h ey signed t he
ret ainer agreement did Robins t ell them th at he had received a settlement offer for
the full a mo unt of the bounced check s , and only recently

— in the course of discovery in th e underlying malpractice su it agains t Robins

— did they l earn that Noel l had m a de another offer to settle “ for the amount of the check plus $2,500 , ” which was “ also apparently declined by Mr. Robins without con sulting ” the Clinkenbeards.
A usten attended the September 18 hear ing in the Crisp l itigation

. T hat morning, Robins “ began p anic king becau se he h a d not brought the necessary documents and he pleaded that [Austen] print out over a hundred pa ges of documents at [his] hot el.” Robins “appeared to be c ompletely unprepared, ” and Austen was “bot he red” by what he observed at the hearing.” Robins “ ra nted and raved and th e judge admonished his behavior several times ,” and “ the judge seemed to be mad at [ Robins] about not promptly tel ling the court that [Cris p] had died in 2015. ” Aust en further obser ve d Robins “ say on the record at a hearing i n court th at he had no p robate e xperience and had only filed the suit in county court13

to save money.” After the hea ring, Austen “realized there m ight be more going on
in the case” than Robins had disclosed

. Robin s pressured Austen and Jon to sig n the affid avits of h eirship s tatin g that n o probate proceedings were necessary

. They sen t an email to Robins declining to sign the affidavits and explainin g that Crisp did “have de bt to the nursing home she was in at the t ime of her passing and . . . to m edic aid/car e.” They

c lose d t he emai l by as k ing Robins for a copy of the ir client file

. B ut Robins did not comply

. The Clinkenbeard brothers sent Robins another emai l , stating that they were “not comfortable swearing to suc h a bold cla im” that Crisp had no pending cl aims against her or any a sse ts

. T hey als o expressed concer n that the exact date Robins had learned of Crisp’s death “ was clearly such a sensitive issue wi th the judge last week ,” and they stated that they “ no l on ger wish to pursu e this matter ” o n their
mot her’s behalf because , w hile t hei r “ mo tivatio n s have not change d

. . . circumstances and feelings about this case certainly have.” The email concluded with ano ther request to see the c lient file. Sh ortly there aft er, Austen and Jon spoke with Rob ins over th e phone about the case generally and the aff i davits Robins wanted them to sign. They averred that
Robins was “ very rude and insulting to us and to our late mother, who he said had been a burden to him and the sta te.” The y email ed Robins later th at day , sta ting14

I’m very upset with how that call went. Nei ther Aust en or I have ever done anyt hing to impede th is trial nor have we claimed we wouldn’t help. We simply can’t sign the affidavits as - is . . . . I don’t th ink that’s any reason for threats an d insinuati ng that our mother was and is a burden to you and the stat e. T he emai l also reiterated th e brothers’ request to see their file. Robins responded wi th a scathing email accusing the Clinken beard brothers
of defr aud ing and betraying him and thre atening to sue them for breach of the retainer agreement. He wrote , “ I cann ot re call wh e n I last witne ss ed such a display of solipsistic callousness by two privi leged young men such as yourselves. ” As to their requests to s ee their file, which he descr ibed as harassm ent, Robins stated that although the brothers were in n o positio n to “furthe r mistreat” him o r to “demand repeated compliance,” their “questions and r equests have been adequately addressed i n prior correspondence .” On October 20, 2017, the Clin kenbear d br others sent Robins an email terminating their relations hip and, once again, demanding thei r file. In it, Austen stated , After my assistance an d travels to the court in Tyler, and witness o f your cour troom perfor ma nce, after repeated dismis sals of conversa tions for potential settlement options, after repeated disregar d for writte n requests for our case file, and after the deterioration of your co mmunications with us, this matter has become o ne that we no longer wi sh to pursue with you

.15

Robi ns ne ver sent th e file

. Instead, he began to demand attorney’s fees fr om th e Cl inken beards , which surprise d them “because [Robins] had always said he would get paid his fees from Mr. Sauls

. ” Other Evidenc e of Malpractice
The Cl in kenbear ds included Noell ’s affi davit with their res ponse to Robin s ’ s TCPA motion to dismiss. In it, Noell reco unted h i s experience s with Robins over the course of the litigation and stat ed that he incurred fees in representing Sau ls for

“ engaging in fut i l e settlement nego tiat ions (since Mr. Ro bins had no client to consult abou t the settlement); app earing at a fu tile tr i al setting in April 2017 (since Mr. Robins had no client); drafting and sending futile discovery requests (that

c ould never be answered or sworn - to by Ms. Cris p); t rying t o arrange f or a futile deposition; and pr eparing my client ’ s ca se for tr ial. ”
The Clinkenbear ds also attached the transcr ipt from the Septe mber 18 hearing at which the trial court stated th at R obins was “ dis honest ” for h av ing withhel d the fact of C ri s p ’ s death from opposing counsel. Finally, the Clin kenbeards atta ched t h e Co m mis sion ’ s disciplinary petition ,

w hich alleged that Robins “ took no immediate action to notify the court or S auls’ counsel of Crisp’s death , ” “ never a dvised [the Clinkenb ear ds] that t here could be a problem with the case because t here was no pr obate c a se or estate representative , ”

“ did not have author ity to bring the suit on Crisp’s behalf , ” “ did not give the16

Cli nkenbeards’ their file, ” and “ demanded th at they pay his attorney’s fees a nd
expenses , wh ich was contrary to the retainer agreemen t.” T he petitio n alleged that
this conduct violated the Te xas Disciplinary R ules of Profess ional Conduct

. See
T EX
. D ISCIPLINARY R ULES P ROF ’ L C ONDUCT R. 1.15(d) , reprin ted in T EX
. G OV ’ T C ODE A NN
. , tit. 2, su btit. G, app. A ( T EX
. S TATE B AR R. art. X, § 9 ) ( requiring lawyer to surrender cl ient ’s “ papers and property ” to client u pon terminatio n of representation) ; id. 3.01 (prohibiting lawy er from fil ing f rivolou s case ) ; id

. 3.02 ( pr ohibiting lawyer from t aking posit ion that causes unreasonable incre as e in costs or delay) ; id. 3.03 (a)(2) (stating that lawyer may not “fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulen t act” ) ; i d. 8. 04 (a)(3) (p rohib it ing l a wyer from engaging in dishonest, fraudulent, or deceitful conduct or misrepresentations)

. In his repl y, Robins argued that his TC PA motion to dis m i ss was ti mely
f iled b ecause the 60

- day deadline to file began to run on the date the C linkenbeards
f il ed their co unterclaim in the und erlying suit, not when the y filed their suit against
him in Smith Count y , b ecause the re tainer agreem ent contain ed a foru m selecti on cl a use th a t required them to bring suit in Harris County

. He also ar g u ed th at the Clinkenbe ards failed to carry the ir burde n to present cle ar and specific evidence of

a prima facie case for each ele ment of their malpractice clai m for several r easons. F irst, the ir a ffidavit evidence was defective because it c ontai ned hearsay , wa s17

“un s worn under p enalty of p erj ury, ” and did no t “ de tail [affiants ’] c riminal

re cor ds

. ” Second, they failed to provide exp ert testimony

. And third , R obins argued , and i ncluded twenty

- seven exh ibits t o show , that (1) he had Crisp ’ s permissio n to file the su it agai ns t Sauls ; (2) his “ t entative opining ” to the Clin kenbeard s about “possible financial recoveries from a j ury was not

ma lpract ice ” ; ( 3 ) he did tell the C linkenbeard s that C risp ’ s ca se wo uld b e h armed by their “ re fu sal to provide an af fidavit of heirship ” ; ( 4 ) he “ cop ed w ith dif ficult circumstances ” when he appeared at the September 18, 2017 hearing ; and ( 5 ) the Clinkenbea rd s were aware of Noell ’ s s ettlement offers

. On Januar y 1 4, 2019 , after two hearing s , the trial court denied Robins ’s motion to dismiss wi th out stat ing th e g ro unds upon w hich it relied

. Robins appeals this order.
T exas Citizen ’ s Participation Act A. S tandard of Revie w We review de no vo the de nial of a TC P A motion to dismiss. Dolcefino v. Cypress Creek EMS , 540 S.W.3d 19 4, 199 (Tex. App.

— Houston [1 st Di st .] 2 017,

no pet.) . In determining whether to gran t or deny a TCP A motio n to dism iss, th e

cou r t must consider “ the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based

. ” T E X
. C IV
. P RAC
. & R EM
. C ODE A N N
. § 27.006 (a). We view the evi dence in the ligh t most favorable to the18

non mo vant. Dolcefino , 540 S.W.3d at 199; see Cheniere Energy, Inc. v. Lotfi , 449
S .W.3d 2 10, 21 4 (Tex . App.

— H oust on [ 1st Dist.] 20 14, no pet. ).
B. TCPA St

atuto ry Scheme The TCPA wa s enac t ed to safe g uard the constitutional rights to petition, speak fr eely, associate freely, “ and otherwise participate in governme n t” from infringement by meritless lawsuits. See T E X
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 27.002. To ach ieve thi s purpose, the TCPA p rovi des for dis missal if the movant shows by a preponderance of the e vidence that a legal action filed against it is based o n, relates to, or is in respon se to the moving party’s exercise of the right o f free speech, the right to petition, or the right o f as so ciation. Id

. § 27.005(b)

. If the movant meets this burden , the trial court m ust dismiss the action unless the non movant establishes by “clear and specifi c evidence a prima facie

ca se for each essential element of the claim in question. ” Id. § 27.005 (c ); I n re Lip sky , 4 60 S.W.3d 579, 584 (Tex. 2015) (o rig . proceeding) (“In reviewing [ a TCPA moti on to dismi ss], the trial court is directed to dismiss the suit unless ‘clear and specific evidence’ esta blishes th e plaintiffs’ ‘pr ima facie case .’” ) (c it ing T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 27 .005( c )). Once a TCPA nonmovant establishes a prima facie ca se for its claim, the movant may still obtain a dismissal of the legal action if it “establis hes by a19

p reponderance of t he eviden ce ea ch essential element of a vali d defens e t o the

no nmova n t’s claim.” 3 T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 27.005(d ). C. Timeline ss of Motion W e b egin b y ad dressing the Clinkenbear ds ’ contention that the trial cour t did
not err in d enying Robins ’ s TC PA motion to d ismiss because it was untimel y filed

. A b se n t leav e of court for good cause , a TCPA motion to dismiss “ must be filed not later than the 60th day after the date of servi ce of the legal action.” Id. § 27.003(b). The clo ck f

or the 60

- day f

ilin g dea dline b egins to run “ on t h e date on whic h [ movan t ] was served with the first pleading alleging a cause of action against [it] .” Bach arach v. Garcia , 485 S.W.3d 600, 602 (Tex. App.

— Houston [14th Dist.] 2016, no pet.) ; accord Jorda n v. Ha ll , 510 S.W.3d 1 94, 1 9 7

– 98 (Tex. App.

— Houston [ 1st Di s t.] 20 16, no p et

. )

. The Clinkenbeards argue that the first pleading in which they asser t ed the ir legal malpractice claim against Robins was the petition they filed in their original

s uit in Smith Count y , whic h th ey la ter dismiss ed . The y cont e n d that bec ause Rob ins w as ser ved on or about May 1, 2018 , in the Smith Co unty suit, he had only until Ju ne 30 , 2018 , to fi le his TCPA motion to dismiss in th is Harris Co unty suit ,

3 The ame nd ed TCPA requires di smi ssal of th e underly ing suit if the moving party “est ablishes an affirmative d efense or o ther grounds on which the moving party is entitled to judgm ent as a matter of law.” S ee Act of May 17, 2019, 86th Leg., R.S. , ch. 3 78, §§ 1

– 12, 2019 Tex. Sess. La w Serv

. 684, 684

– 87 ( codifi ed at T EX
. C IV
. P RAC

. & R EM
. C ODE A NN
. § 27 .0 05 ( d ) )

.20

and his November 12, 2018 filin g was t herefore unti m ely

. The Clinkenbe ards re l y on the rule th at s u b s eque nt filings asserting the same claim do not exte nd the
TCPA deadline. See Jorda n , 510 S.W.3d at 198 ( “ [T] he deadline for a TCPA moti on is n ot reset when a plaintiff files an amen d e d petition that adds no n ew claim s and relies upon the same factua l allegatio ns un derlying an original petition. ” )

. The y argue that this rule rea ches beyond the confines of the case in which the TCPA motion t o dismi ss is fil ed , s uch that the 60

- day deadl i ne begins to

run on the da te a def

endant is served in a separ ate pr oceeding, i ncluding in ano th er case, in a nother court , in a different county , as long as the claims are the same. We disagree and hold that th e deadl ine for R obins to file his TCPA motion t o dismiss was 60 days af

te r he was served in this case, in Harris C ou nty. See W alker v.
Har tman , 516 S.W.3d 71, 79 (Tex. App.

— Beaumont 2017, pet. denied) ( holding that 60

- day dea dline for f iling TCPA motion to dismis s began t o run when movant was served w i th legal action in state c ourt , no t when he was served with earlier

filed c ase in federal co urt ; “ a common nucleus of operative facts ” does not m ake subsequent lawsuit f

iled in different court “ tantamount to the la wsuit p reviously file d ” ). Be cause t he Clinkenb e ards have not shown t hat Robi ns ’ s TC PA motion to dismiss was f

iled outsid e the 60

- day deadline , we cannot affirm the trial court ’ s denial of the motion on that basis.21

D. Prima Facie Ca se In his second issue, Rob i ns ar gu es that t he Cl inkenbeards failed to car r y the ir burden to e st ablish a prima facie case for legal malpr a ctice by c lear and specific evidence b ecause the affidavits they provided are conclusory , contain hearsay , and are otherwise defective ; the Commission ’ s p etiti on should not be considered because is n o t probative of Rob in s ’ s alle ged malpracti ce ; and the Cl inkenbeards failed to provide e xpert te stimony

. 4
Under TCP A section 27.005(c) , the trial court may not dismiss if the plaint iff establishes “ by clear an d speci fic evide nce a prima facie case for eac h essential element of t he cla im in questio n. ” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 27.005( c). In this context , the Texas Supreme Court has clar ified that “clea r”

m eans “ ‘ unambiguous, ’ ‘ sure, ’ or ‘ free from doubt ’ ” and “specific” means

“ ‘ ex plicit ’ or ‘ relating to a part icular name d thi ng . ’ ” S ee In re Lip sky , 460 S .W.3d
at 5 9 0 (quoting KTRK Television, Inc. v. Robinson , 409 S.W.3d 682, 689 (Tex. App.

— Houston [1st Dist.] 2013, pet. denied) ). “ [P] rima facie case” me a ns

“ evidence sufficient as a matter of law to establish a given fact i f it is not rebutted or contradic ted

. ” I

d . I n other words, a prima facie case is the “minimum quantum
of evidence necess ary to su pport a rational inference that the alle gation of fact is

4 Due to our di sposition of Robins ’ s second iss ue, we need not addr ess his f irst issue, i n wh ich he challenges the applicabili ty of the TCPA to the C linkenbeards’ claims. See T EX
. R. A PP
. P. 4 7.1 ( stating that appellate c ourt o pi nions should be as brief as practicable in addressing only issues necessar y to final disposition)

.22

true.” Id. (quoting In re E.I. DuPont de Nemours & Co. , 136 S.W.3d 21 8, 223 (Tex. 2004) (per curiam)) ; see also U nivers al Plan t Serv s ., Inc. v. Dresser

- Rand Grp., Inc. , 571 S. W.3d 346, 359 (Tex. App.

— Houston [1st Dist.] 2018, no pet .) ( “The TCPA requires only th at e vidence be ‘clea r, ’ ‘specif ic,’ and ‘sufficient as a

matter of law to establish a given fact if it is n ot rebutted or contradicted.’” ) (quoting In re Lipsky , 460 S.W.3d at 590 )

. The Clinkenbeards’ petition allege s t h at Robins committed legal malpractice. To recover on a claim f or m alpract ice, a client must establi sh: (1) the attorney owed a duty of care to the client ; (2) the attorney breached that duty; and (3) th e attorney’s breach proximately caused damage to t he client

. Rogers v.
Zanetti , 518 S.W.3d 394, 400 (Tex. 2017)

. Th e firs t e le ment of malp ractice is not at issue , as Robins concedes tha t he was th e Clinkenbeards ’ attorney

. Robins there fore owed the Cli nkenbeards a dut y to act with ordinary care , i.e

. , in a manner consi stent with the standard of care expected to be exer ci sed by a reaso nabl y pruden t attorne y . See Cosgrov e v. Grimes , 774 S. W.2d 662, 6 64 (Tex. 1989). As to the second element, breach of the duty of care, the Clinkenbeard s ’
counterclaim allege d with d etail that Robins engaged in malpractice by providing

unrea so nable a dv ice , for instance, in enco u raging them to continue litigati ng a $6,893

. 2 1 bounced check claim with the reasonable expectation of a jury award “ in23

excess of $63K ” ; p utting hi s own interests ahead of his clien ts ’ by, for exa mple, creating a situa ti on in w hi ch it was not in his best i nterest to resolve his clients ’

a ction unles s he was offered attorneys’ fees ; failing to keep his c lients fully informed about settle ment discussi ons and the case proceedings , such a s by neglecting to tell them ab out N oe ll ’ s s e tt lemen t offers and fa iling t o info rm them
about the issues r e garding his authority to bring the suit ; attempting to collect and threatening to sue his c lients for fees they w ere not responsible for paying un der their r etainer a greement ; caus ing s an ctions an d dis missal of his clients ’ ca se ; and refusing to turn over the client file. Additionally, the Clinkenbeards provi ded three af fidavits

— one from each of the two Clinkenbeard brothers and one from attorney Noell

. The affidavits , which

are sup porte d by ex h ibi t s in cluding emails betwee n Robins and the Clinkenbeards,
i d entify nume ro us specific instances of Rob in s ’ s alleged misc o nd uct

. The record also contains a transcript of the “ botched ” September 18, 2017 hearing on the motion to show authori ty in the Crisp litigation , i n which the tri a l
court “ concluded th at Robins a ct ed withou t authority and was dishonest with the Court and opposing counsel , ” and the Co m mis sion ’s disciplinary petition alleging professional misconduct , w hich the Clinkenbe ards argue is evidence that the S ta te Ba r of Tex a s found Robins’s cond uct to have b een “ so e xtreme and outr ageous that24

it is seeki ng to disbar him for multiple violations of the rules of professional conduct. ”
The legal malpractice counterclaim , affidavits, emails, hearing transcript, and disciplinary pe titio n toget h er provi d e c lear a nd spec ific evidence of Robins’s negligent conduct , including evidence of Robins ’ s failure to:

• confirm that Cri sp was still alive before filing suit in her name ;
• consult with the Clinkenbeards regarding authority before fil in g Cri sp ’ s su i t ; • ob ta in authori ty prior to rejecting multiple settlement offers ;
• advise the Clinkenbeards regarding the necess it y of probat in g Crisp ’ s estate in order to advance her cla im against Sauls ;
• inform the Clinkenbeards reali stically regarding t h e amou nt of m o ney they could rec over ; • prep are for a hearing on a dispositive motion to dismiss for lack of authority ;
• take the necessary step s and to advise the Clinkenbeards regarding t hose steps to correct the lack of authorit y, despite repeated warni ng s fro m the t r ial cour t ; and
• tur n over the Clinkenbeards’ client file despite their repeated requests

. See In re L ipsky, STANDARD FOR PFC With regard to t he third element of a malpractice claim combining proximate cause and damages , the Clinkenbeards ’ p etition states that th e litigatio n a gainst
S auls “ co uld h ave been resol ved base d on Mr. Sauls’ settleme nt offer ” for the full

a mount of the bo unced checks. See Rogers , 518 S.W.3d at 400 ( listing proximate

caus e and dam ages as third element of legal malprac tice claim )

. And the evidence sho ws that R ob ins unilaterally rej ected two settlement of fer s, i ncludi n g one f

or the25

full amount plu s $2 ,500 for attorney ’ s f ees and loss of use

. A s a result of Robins ’ s failure to show his authority , t he Clink enbeards ’ pleadi ngs were stri c ken , their case

was dismisse d , and they ultim ately recovered nothing

. Ha ving re viewed th e evi dence , w e conclude tha t t he Clinkenbeards met their burden to establish by clear and specific evidence a prima facie case for each
element of their l egal malpractice claim. S ee T EX
. C IV
. P RA C
. & R EM
. C ODE A NN
. § 27.005(c)

. R obins re spo nds by challe n gi ng th e Clinkenbear ds ’ evide nce. First, h e
argu es that the Clinkenbeards ’ and Noell ’ s a ffidavits are “ [p] lagued with mere conclusory accusations and other statements. ” See Better Bus. B ur eau of Metr o. Hous. , Inc. v. John Moore Servs. , Inc. , 441 S. W.3d 345, 355 (Tex. App.

— Houston [ 1st Dist.] 2013, pet. de nied) ( “ C onclusory stat ements are not probative and accordingly will not suffice to establish a prima fac ie case.” ) ; see also T EX
. C IV
. P R AC
. & R EM
. C ODE A NN
. § 27.006(a) ( stating that in ruling on TCPA motion to dismiss, courts must consider affida vits that “ stat[ e] the facts on which the liability

or defense is based ” ) ; In re Lipsky , 4 60 S. W.3d at 592 (expl aining that “ [ b ] are, baseless o pi nions” are not “a sufficient substitute for the clear and specific eviden ce required to establish a prima facie case” under TCP A)

. But Robins does
not identify which st atements in the aff idavit s he contends are conc lusor y. See
T EX
. R. A PP
. P. 38.1( i ) (“ T he brief must contain a clear and concise argument for26

the contentions made, with appro priate citations to auth o rities and to the record. ” )

. He th e refore present s nothing for re view under this arg ument

. S e e Churc hill v. Mayo , 224 S.W.3d 340, 347 (Tex. App.

— H ouston [1st Dist.] 2006, pet. denied) ( ho lding that brief that “fails to ident ify which statements in t he affidavit a re defective” i s inadequate under Rules of Appellate Procedure ) ; see also Pouncy

Pittman v. Pappadeaux Sea food Kit che n , No. 01

- 07

- 0 0575

- C V, 2008 WL 29 30183, at *8 (Tex. App.

— Houston [1st Dist.] July 31, 2008, no p et.) (mem. op.) ( holding that appellant waive d issue challengin g af fidavit as con cl usory by f ail ing
to specify which statements were c onclusory or wi thou t suppo rt ). Robi ns ne xt arg ue s that the af fidavits contain “ completely undetailed hearsay about what Ap pellant Robins supposedly said (but in fact never said...) , ”

are “ u nsworn under penalty of perj ury , ” and fail to “ detail the affiants ’ c riminal
records

. ” H ere a gain, Robins does no t id entify whi c h statements he contends are hearsay or pr ovide any a nalysis or authority to show why they are in a dmissible ,

nor do e s he identify any authority f o r his asserti on that the affiants were r equired
to detail their cr imin al re cords or that the y wer e improperly notarized

. Accordingly, he has waived th ese argument s on appeal. See T EX
. R. A PP
. P. 38.1( i ) (“ The brief must conta i n a clear and concise argumen t for the contentions made, with appropri ate citations to authoriti es a nd to the record. ” ) ; see al so Thomann v. Lakes Reg’l MHMR Ctr. , 162 S.W.3d 788, 794 (Tex. App.

— Dallas 2005 , no pet. )27

( “ A general di rective to review affida v its for hearsa y and impermiss ible conclusion s is not sufficient to dir ect our a ttention to the e rror abou t whi ch [appellant] co mp lains. ” ). Additionally, because these object ions are to form, not substance, Robins was required to p reserve them in the trial court

. S e e Seim v

. Allstate Te x. Lloyds , 551 S .W.3d 161, 166 (Tex. 2018) ( holding that objectio n s to affidavit that it (1)
state d that fact s in a ff

idavit were true instead of stating that facts in expert’ s reports were true, (2) lacked notary’ s signature, and (3) d id not attach reports , were

o bjections to affidavit’s form, rather tha n substan ce, and therefore sub ject to er ror
prese r vation rul e that r equired tri al court’s ruling on objections) ; see also T EX
. R.
A PP
. P. 3 3

. 1 ( a ) ( 2 ) ( A ) ( stating that to preserve e rr or, record must show that tr i al court ruled on objection or , if it refu sed to rule, that co mplain ing party object ed to
refus al to rule )

. A lth ou gh Robins did broadly raise his he ars ay, “u nsworn under
pena lty of pe rjur y ,” and fail ure to “detail the affiants’ criminal records ” objection s in his reply in support of his TCPA motion to di smis s, the re cord does not r e flect
that the tr i al court r uled on th e objection s . Therefore, Robins failed to preserve them fo r ou r rev iew

. S e e Deuell v. Tex

. Right to Life Comm

. , Inc. , 508 S.W.3d 679,
688 (Tex. App.

— Houston [1st Dist.] 2016, pet. denied) ( holding , in a ffirming denial of TCPA motion to dismiss , t hat ap pe llant failed to preserve complaint that appellee ’ s evidence of prim a faci e case constitute d hearsay because appellant28

failed to obtain ruling on objection ) ; Schmitz v. Cox , No. 01

- 15

- 00199

- CV, 2015 WL 675 5427, at *3 (Tex. App.

— Houston [1 st Dist.] N ov. 5, 2 015, no pet.) (mem.
op . ) ( holding tha t TCPA movant’s failure to object and obtain ruling waiv ed compla int that nonmovan t’s affid avit evidence of prima facie case was deficient for lack of personal knowled ge ). Robins next o bjects to the C linkenbea rd s ’ use o f the Commission ’ s
pro f essional misco nduct petition as evidence of malpractice . He argues tha t the
p e t ition, which the Comm issio n fil ed aft er having determined that the Cl inkenbeards ’ grievance merited pu rsu ing , “ is entitled to no weight in resolvi ng a

r el ated civil case as the Bar still has the burden to p rove its case by a preponderance of th e e vidence. ” See T EX
. R ULES D ISCI PLINA RY P. R. 3.08(C) , reprinted in T EX
. G OV ’ T C ODE A NN
. , tit. 2, subtit. G, app. A

- 1 ( T EX
. S TATE B AR R.
art. X, § 9) ( “ Disci plinar y Actions must be proved by a preponder ance of the evi dence

. ” ). Again, Robins fails to provide any authority fo r this a r g umen t , an d so we do not cons ider it

. See T EX
. R. A PP
. P. 38.1(i) (“ The brief must con tain a clear and concise argument for the co ntenti on s made, with appropria t e citations to authorities an d to the record. ” )

. In any event , the Com mission ’ s petition was bas ed

o n the Clin kenbeards ’ grievance o ver the same conduct by Robins , and their
factual allegations are nearly identical

. Consequen tly, a ny evidence gleaned from29

the Commission ’ s pet ition is largely dupl icativ e of that contained in the Clinkenbeard s ’ petit io n . Final ly, R obins argues t hat the Clinkenbeards “ lack any expert witness testimonia l affidavits to purportedly back their alleg a tions o f legal malpractice. ” 5 Although Robins ma de this ob jection to the trial court in h is reply brief supporting his TCPA motio n to dismiss , the record does not refl ect that he obtained a rul ing on it. See In re A.J.H. , No. 14

- 03

- 01016

- CV, 20 04 WL 414 09 3, at * 5 n.3 (Tex. App.

— Houston [14th Dist.] Mar . 2, 2004, no pet.) (mem. op.) (holding t hat, in challenge to suffi ciency of evid e nce based on lac k of expert testimony, failure to object to testimony of witnesses on basis that they were not qual i fied as ex p er ts to

re nde r their opinions waived compla int on appeal) (citing T EX
. R. A PP
. P. 33 .1(a) ). Further, Robins fails to cite a ny a uthority indi cating that exp ert testimony was required un der th ese ci rcumstances

. S ee T EX
. R. A PP
. P. 3 8.1(i) ( “ The brief
must co ntain a cle a r and concise argument for th e contentions made, with appropriate cita tions to authorities and t o the rec ord. ” ) ; s ee also , e.g. , In re A.L.B. , No. 01

- 17

- 0054 7

- CV, 2017 WL 6519969, at *6 n.4 (Tex. Ap p.

— Housto n [1st

5 Robins also states, “ It is w orth noting that in order to prov e an action f or legal malpractice, the [Clinke nbeards] m ust es ta blish that they suff ered damage s , ” and he avers that he has “ successful ly managed to recover a replacement of th e previous ly bounced check

. . . which had previousl y ne cessitated the underlying lawsuit

. ” T here is no evidence of this repla cement che ck in the r ecord

. We therefore do not cons i d er R o bin s ’ s app arent a rgument based upon the check, i.e., that the Cl i nkenbe a rds have failed to carry their TCPA bu rden to show a prima fa cie case of dama ges , an element of th eir malpra ctice claim again st him

.30

Dist.] Dec. 21, 2 017, n o pet .) (mem. op.) ( ho l ding that complaint t hat drug te st evidence could not be consid ered without exp ert witne ss te s timony was waived for
failure to raise o bjecti on in trial court and for in adequate briefing where ap pellant did not provide “ authorit y indicatin g that expert testimo ny was required under thes e circums tance s ” ). Robins does not provide any a uthority for his assertio n that
establish ing clear and specific evi dence of a prima fac ie case require s expe r t testim ony . C

f. Moldovan v. Polito , No. 05

- 15

- 01 05 2

- CV, 2016 WL 41318 90, at *15 (Tex. App.

— Dall as Aug. 2 , 201 6 , no pet. ) (mem. op.) ( holding that because “clear and specific evidence” means “enough detail to show the factual basis for [plaintiff’s] claim , ” lack o f expert testimony on damages “ i s not fat al to [nonmovant] ’s p rima facie case ” ) (quoting In re Lipsky , 460 S .W.3d at 5 90 )

. And
t he tex t of the TCPA states no such requirement. Cf. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 74. 351 (requi r ing plaintiff asserting hea lt h care liability claim to serve
statuto ri l y sufficient expert repor t to avoi d dis m issal ). And requiring a party to present expert te stimony to avoid dismissal so early in the life of a law suit , in most

cas es before d iscovery ha s e ven begun , would be in co nsist ent with the Texas Rules of Civil Pr oc edu re , which generally do not r e quire discl o sure of expert s until 90 days before the end of the discovery period

. C ompare T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 27.003( b) (stating that deadlin e to file TCPA motion to dismi ss is 60 days after service of legal a cti on ) , with T EX
. R. C IV
. P. 195.2 (a) ( requ i rin g parties31

seeking a ffirmative r elief to designate experts 90 day s before end of discovery period or 30 days a fter served with request, “ [u] nless otherwise ordered by the
court ” ). Finally , requiring a n onmov an t to p ro vide expert te stimony to defeat dismissal of his claims at the TCPA sta ge asks more of him tha n th e Texas S uprem e Court has held h is burden to be: to provide a “ minimum quantum ” of clear and specific evide nce to su pport a rational inferen ce that hi s all e gations of fa ct ar e true on e ach element of each claim

. See In re Lipsky , 46 0 S.W.3d at 59 0

. In
any e ven t, expert testimony is not always necessary for a plaintiff to prevail on a legal malpra ctice claim

. Se e Alexander v. Turtu r & Assocs., Inc. , 146 S.W.3d 1 1 3,
11 9 (Tex. 20 04) (holdin g that a lthoug h ex pert witn ess t e stimony is required in legal malpr actice cases when causal link is “ beyond the j ury’s common understanding , ” “[i ] n some cases the client ’ s testim ony may provide this l ink ” )

. B eca use all o f Robins’s challenges t o the Clinkenbeard s ’ pr ima facie case

are unpres erved or inadequate ly briefed , we conclude that he has not presente d grounds for rev e rsal of the trial court ’s i mplie d finding tha t th e Clinken beard s carried their TCPA burden to establi sh a prima facie case fo r legal malpractice by clear and speci fic evidence

. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 27.005(c) (stating that court may not grant TCPA motion to dismiss if nonmovant establishes32

by cle ar and specific evidence prima fa cie case f or each essential element of

c laim ). We overrule Robins’s second issue

. E
. Defenses
I n his third issue, Robin s a rgues that he is en t itled to dismissal under the
TCPA beca use he establishe d by a preponderance of the evidence each es sential

e leme nt of v ali d defense s to the Clinkenbea rd s ’ m alpractice claim

. S e e id. § 27.005(d) ( stating that o nce TCPA nonmovant establishes prima facie ca se for its claim, movant may still obtain dismissal by establis h ing by p repondera nce of eviden ce ea ch essential el ement of v a lid defense to no nmova n t’s claim ). Specific ally , he asserts that ( 1) he did have Crisp ’ s permission to file the su it against Sauls ; (2) his “ expressly tentative opining ” to t he Clinkenbeard s about the
recovery t h ey could expect from Crisp ’ s case “ was can d o r, not ma lpractice ” ; ( 3 ) he did tel l the C linken bear d s that Crisp ’ s case would b e harmed if they did not sign the proposed affidavit s of heirship ; ( 4 ) he “ coped w ith difficul t circumstances ” when he appeared at t he September 18, 2017 hearing ; an d ( 5 ) the C linkenbea rd s

were aware of Noell ’ s s ettlement of fers

. This catalog ue of assertions fails to id entif y a “ valid defense ” to the Clinkenbeards ’ legal malpr actice c laim

. S e e i d. T hese as sertions are more in th e
natur e of rebuttal to the Clinkenbeard ’ s prima f a cia cas e , and f

our of the five33

assertions mere ly d ispute th e Cl inkenbeard s ’ f acts

. B ecause we only consider the Cl inkenbeards ’ evidence in determining whether they met their burde n of

e sta blish ing a prima facie c ase under the TCPA , we do not con sider thes e factual

as sertions or the evidence Rob ins cla ims support t hem

. See West v. Q ui ntanilla , 573 S.W.3d 237, 243 n.9 (Tex. 2019) ( “ [Movant] vigorously disputes many of [nonmovant] ’s factu a l all egations, but at this p oint we must decide only whether [nonmovant ] has esta bl i shed a prima facie case by clear and sp ecific evidence.
Pr ima facie evidence i s merely the minimum quantum of evidence necessary to support a rational inference that the allegati o n of fact is true. A finding that [nonmovant] has met his TCPA b urden does n ot estab lish that his allegations are
true. ” ( quotati ons omitted) ) ; D Magazine Partn er s, L.P. v. Rosenthal , 529 S.W.3d 429, 44 0 n.9 (Tex. 2017) ( refusing to consider TCPA mo v ant’s rebuttal evidence in
determini ng whether nonmovant est ablished p rima fa cie c ase , stating that although
movant “ dispu tes [ nonmovan t ’ s factual assert io n]

. . . at this stage of the proceedings we assume its truth ”)

. The only item on Robins ’ s list of “ defe nses ” that is not a fact ual ass ertion challenging the Cli nkenbeards ’ pri ma fa ci e case is the s econd, c oncer n ing his

c omme nt to the Cli nkenbeards regar ding the amount of mon ey they could recover

on Cri sp ’ s boun ced

- check claim . Robins argues that this c ommen t do es not constitute ma lpracti ce because the retainer ag reement “ m akes it s uf ficiently clear ”34

that he “ does not gua rantee the ou tcom e of the trial ” and his comment “ by no

means states as a fact what the jury outcome would be

. ” E v en con st r uing this as a n argument that the Cl inken beards ’ allegations , taken as tru e, are ins ufficient a s a matter of law to suppor t a malpracti ce c laim, we do not consi der it because Robins has not provided any analysis or authority to sup port it. See T EX
. R. A PP
. P. 3 8.1 (i) ( “ The brief must contain a cl ear and concise argument for the conten tion s made,

w it h appropriate citations to aut horities and to t he record. ” )

. We overrule Robins ’ s third issue. Conclusion We affirm the trial court’s order denying Robins’s TCPA motion to dismiss.

Evelyn V

. Keyes Justice
Panel consi sts of Jus tices Key es , Goodman, and Countiss.