Affirmed in Part, Reversed and Re manded in Part, and Memorandum

Opinion filed August 20 , 2020

In The



## Fourteenth Court of Appeals

NO. 14

- 18

- 00986

- CV

TEXAS LAW SHIELD, LLP, WALKER & RICE, P.C., T. EDWIN WALKER , AND DARREN R. RICE , Appellant s

V.
BRAD CRO WLEY AND TERRILYN CROWLEY , Appellee s

On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2013

- 65980

MEMORANDUM OPINION Appellants Texas Law Shield LLP, Darren Rice, Edwin Walker, and Walker & Rice, P.C., appeal from th e fi nal judgment in favor of appellees Brad Crowley and Terrilyn Crowley on their barratry claims against appellants. B ecause we conclude that appellants ’ summary judgment eviden ce created a genuine issue of material fact on Mr. Crowley ’ s claims against t hem, we r everse in part, affirm in2

part, and remand to the t rial court for further proceedings.
B ACKGROUND This is not the first time this dispute has appeared in this court. In 20 16 , this court reversed the trial court’s class

- certification order and re mand e d the case to the trial court. Tex. Law Shield, LLP v. Crowley , 513 S.W.3d 582, 584 (Tex. App.

— Houston [14th Dist.] 2016, pet. denied). The opinion includes a thorough

re counting of the facts of the case up to that point in time and we do not repeat the m here

. Id. at 584

– 87. Once the case was remanded to the trial court, the Crowleys filed a motion asking the trial court to reconsider its prior order granting appellants’ motion for summary judgment on th e Crowleys’ barratry claims based on alleged viol a tions of the Texas Penal Code and alleged violations of the Texas Disciplinary Rules except for Rules 7.03(b) and (d). Appellants filed a response opposing th e Crowleys’ motion and the Crowleys , in turn , filed a reply. The Crowleys attach ed

e x cerpt s from Brad Crowley’s deposition to that reply. During Mr. Crowley’s deposition, appellants questioned him about the timing of his joining the Texas Law Shield program. Mr. Crowley conc eded that his credit card receipt was time

stamp ed 8 : 37 a. m. Mr. Crow ley even admitted that he did not recall the exact time that he paid for the Texas Law Shield program, but he did testify that he signed up and paid after the Texas Law Shield salesman made his presentation. In a d ditio n, appellants asked Mr. Crowley if he signed up early in the morning after he saw the Texas Law Shield materials and posters on display at Spring Gun s and Ammo, which had signed a facilities agreeme nt with Texas Law Shield, where he and his wife took the c oncealed handgun certification class. See id. at 585 (“Texas Law Shield was allowed to market the Texas Law Shield program in conjunction with CHL classes and to post advertising and other material s at the facilities in3

exchange for a $30 paymen t fo r each person submitting a Texas Law Shield contract at the facility.”). Mr. Crowley responded that he did not “remember it that way, no.” Instead, Mr. Crowley testified that he belie ved that he signed up i n the middle of the day that he an d hi s wife took the concealed handgun ce rtification class

. Ms. Crowley testified that she thought the sales presentat ion occurred later in the class, when there was “ still a little more ” class time. The trial court granted the Crowley s’ m otion for reconsideration and it w ithdrew its order granting
appe l lants ’ motion for partial summary judgment. The Crowleys also mov ed for partial summary judgment on “their individual claims on the grounds that [appellants] violated Texas D isci plinary Rule of Professional Condu ct Rule 7.03(b) and 7.03(d), an d are therefore l iable for the statutory penalties and other damages provided under § 82.0651 [of the Texas Government Code].” The Crowleys argued there were no genuine issues of material fact on the amount of the statutory penalties or their d a mages , and they asked the t rial court to award Ms. Crowley the statutory pena lty of $10,000 from Rice, Walker, Texas Law Shield, and Walker & Rice, P.C. They also asked the trial court to a ward Mr. Crowley $151.35 , the amou nt he had paid for his Texas La w Shie ld membership

. Appell ants filed a response and a cross

- motio n for summary judgment on the Crowleys’ claims. The trial court granted the Crowleys’ motion and deni ed appellants’ cross

- motion

. The Crowleys’ request for attor neys’ fees was then tried to a jury. The jury awarde d the C rowleys $96, 233.75 in attorneys’ fees through trial along with additional fees if there was an appeal

. The t rial court subsequently signed a final judgment based on the partial s ummar y judgment and the jury’s award of attorneys’ fees. This appeal followed.
A NALYSIS4

Appellants raise a single issue on appeal making multiple arguments that the trial cou rt erred when it granted the Crowl eys’ motion for summary judgmen t

. We construe each argument as a separate issue and a ddress them in order.
I. Stand ard of review and applicable law We review a trial court’s order granting a traditional summary judgme nt d e

novo. Mid

- Century Ins. Co. v. A demaj , 243 S.W.3d 618, 621 (Tex

. 2007). When a plaintiff moves for summary judgment on its cause of action, it must conclusively prove all essential elements of its claim as a matter of law. Cullins v. Foster , 171 S. W.3d 521, 530 (Tex. App.

— Houst on [14th Dist.] 2005, pet. denied). Wh e n a defen dant moves for summary judgment , it must disprove at least one essential el ement of the plaintiff’s cause of action in order to prevail. Doggett v. Robinson , 345 S.W.3d 94, 98 (Tex . App.

— Houston [14th Dist. ] 2011, no pet.). When both parties mo v e for summary judgment, each party bears the burden of establishing that it is entit led to judgment as a matter of la w. City o f Garland v. Dallas Morning News , 22 S.W.3d 351, 356 (Tex. 2000 ). When the trial court g rants on e motion and denies the other, t he appellate court reviews both motions and determines all questions presented. Id. The reviewing court s h ould then render the judgment that the trial court should have rendered , or re vers e and remand if neither
pa rty has met its summary judgment burden

. Id. This appeal also requires us to review the trial court’s interpretation and

a pplication of the Texas civil ba rratry statute. Statutory int erpretation presents a question of law s ubje ct to de novo review. Tex. Law Sh ield, LLP , 513 S.W.3d at 588. We look to the statute’ s plain meaning because we presume that the Legislature intend s the plain meaning of its words

. Id. We view statutory term s in context, giving them full effect. Id

. We presume that every word of a s tatute was used for a purpose, and every omitted word was purposefully not chosen. Id

. I n5

determining the plain me aning of a statute, we construe the language according to the rules of grammar and common usage. Id. “As a general principle, we eschew

co nstructions of a statute that r ender a ny statutory language meaningless or superfluous.” Id. ( quoting City of Dalla s v. TCI West End, Inc. , 463 S.W.3d 53, 57 (Tex. 2015)).

In t he present case, the Crowleys sued appel lant s for violating the Texas civil ba rratry statute. See Tex. Gov’t Code § 82.0651. 1 To show a violation of the barratry statute, a plaintiff must demo nstrate that the defen dant attorney procured a contract or sol icited a person in violation of either s ecti on 38.12 of the Texas Penal Code o r R ule 7.03 of the Texas Discip linary Rules of Professional Conduct. 2 Id.

1 The conduct at issue here occurred in 2012. At that time, section 82.0651 provided, in relevant part , that : (a) A client may bring an action to void a contract for legal ser vices that was pro cured as a re sult of conduct violat ing the law s of this state or the Texas Disciplin ary Rules of Professional Conduct of the State Bar of Texas regarding barratry by attorneys or other persons , and to recover [certain specified amounts]

. . . .

. . . (c) A person who w as solicited by conduc t violating the laws of this state or the Texas D isciplinary Rules of Professional Conduct of th e State Bar of Texas regarding barratry by attorneys or other persons, but who did not enter into a contrac t as a result of t hat conduct, may file a civil actio n against a ny p erson who committed barratry. Act of May 5, 2011, 82d Leg., R.S., ch. 94, § 2, se c. 82.0651, 2011 Tex. Gen. Laws 534, 535 (current version at Tex. Gov’t Code § 82.0651 )

. Both the 2012 version and the am ended statute
cover the alleged conduct . We will the refore cite the current version of the statute

. See Tex. Law Shield , 513 S.W.3d at 5 86, n.4.

2 Rule 7.03 provi des, in pertinent part : (a) A lawyer shall not by in

- person contact, .

. . seek professional employment concerning a matter arising out of a part icular occurrence or event, or series of occurrences or events, from a prospecti v e cl ient or nonclient who has not sought the lawyer’ s advice regarding employment or with whom the la wyer has no family or past or present attorney

- client relationshi p whe n a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.

. . . ( b ) A lawyer shall not pay, give, or offer to pay or give anything of value to a6

Only Rule 7.03 of the Texas Disciplinary Rules of Professiona l Conduct is relevant to this appeal beca use , after the trial court denied the Cr owle ys ’ second motion for partial summ ary judgment based on appellant s’ alleged violations of the Texas Penal Code , the Crowleys abandoned those claims wh en they went to trial only on their claim for attorneys’ fees. See Gomez Acosta v. Falvey , 594 S.W.3d 386 , 396 (Tex. App.

—

El Paso 2019, no pet.) (addressing abandonment o f sanctions motion) ; Lederer v. Lederer , 561 S.W.3d 683, 703 (Tex. App.

— Houston [14th Dist.] 2018, no pet.) (“Because the Lederer Parties voluntari ly dismissed or abandoned all of their a ffir mative claims after prevailing on the 15% override, they could on ly recover attorney’s fees for their defense of Howard’s declaratory judgment action on the 15% overri de .”); Anani v. Abuzaid , No. 05

- 16

- 01364

- CV, 2018 WL 2926660, at *10 (Tex. App.

— Dalla s Ju ne 7, 2018, no pet.) (mem. op.) (c oncluding party abandoned claim because he “did not seek to obtain a jury verdict” on that claim)

. II. The law

- of

- th e - case doctrine d oes not dictate a reversal in favor of appell ants. Appellants argue in their first is sue that the trial court erred when it granted the Crowleys ’ motion f

or summary judgment and denied their motion because the law

- of

- the

- case doctrine cont rols the outcome of this ap peal . In appellants ’ view, the law

- of

- the

- case doctrine controls because ( 1) t his court decided in the first
app eal that , to establish a violat ion of Rule 7.03(b) , a barratry plaintiff must prove

person not license d to practice law for s oliciting prospective clients for , or refe rring cli ents or prospective clients to, any lawyer or firm

. . . .

. . . (d) A lawyer sh a ll n ot enter into an agreement for, charge for, or c ollect a fee for professional employment obtained in violation of Rule 7.03(a), (b), or (c). Tex. Disciplinary Rul es Pr of’l Conduct R. 7.03 , reprinted in Tex. Gov’t Code tit. 2, subtit. G, app. A (Tex. S t ate Bar R. art. X, § 9).7

an improper solicitation was con nected to a particular occurrence or event which created a need for legal services ; and (2) the Crowle ys d id not prove the existence of such a particular occurrence or eve nt as a matter of law

. We disagree.
The law

- of

- the

- c ase doctrine provides that quest ions of law decided on appeal to a court of last resort will govern the case throughout its sub sequent stages. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)

. Interm ediate courts of appeal have con sistently treated their own prior decisions as binding under the law

- of

- the

- c ase doctrine. Vir

ani v. Cunningham , No. 14

- 11

- 00331

- CV , 2012 WL 355653, at *7 (Tex . App.

— Houston [14th Dist.] Feb. 2, 2012, pet. denied) (mem. op. ). The decision , however, to re visit a previous holding is left to the discretion of the court under the par ticular circum stan ces of each case. Id. at *6 (citing City of Houston v. Jackson, 192 S.W.3d 764, 76 9 (Tex

. 2006) )

. The law

- of

- the

- case doctrine only applies to questions of law , and does not necessarily
app ly when e ither the issues or the facts presented at successive appeals are not subs tantially the same as those involved in the first trial and appe al. Id. (citing Hudson , 7 11 S.W.2d at 6 30 )

. We conclude that the law

- of

- the

- case doctrine does not control t he outcom e her e be cause the original appeal addresse d only the trial court’s class

- certification order and did not reach any issues on the merits o f the Crowleys’ claims aga inst appellants. See Tex. Law Shield, LLP , 513 S.W.3d at 587 (“[W]e agree with the trial co urt t hat the issue at this stage of the cas e is not whether appellants’ co nduct constituted barratry under sections 7.03(b) or (d) of the Texas Disciplinary Rules

o f Professional Conduct. Instead, the issue before us is whether the trial court ab used its discr etio n when it certified the class acti on. ”). While we did state in o ur prior opinion that “the scope of the prohibition against a la wyer hiring a non

lawyer f or soliciting prospective clients in subsection (b) should be informed by8

the scope of the prohib itio n against lawyers directly seeking profession al employment from a prospective client in subsection (a),” this determination was l imited to the requirement found in subsection (a) that the prospective client di d not initiate contact with t he a ttorney. See id. at 591

– 92 (internal quotation marks omitted). W e did not add ress the question whether, much less hold that, a barratry plain tiff must prove an imprope r solicitation was connected to a particular occurrence or event which created a ne ed f or legal s ervi ces to establish a violation of Ru le 7.03(b). See id. at 589

– 92 (concluding class claims did not meet predominance requirement b ecause there would be a ne ed for individualized inquiry into whether, among other things, the barratry plaintiff h ad initiated t he

c ontact with the attorney). T heref ore, it is not the law of the c ase that , to establish a violation of Rule 7.03(b), barratry pla intiff s such as the C rowley s must prove that a solicitation for the provision of legal services was connected t o a particul ar

o ccurrence or event that has create d a need for legal services. 3

E ven if that was the law of the case , we conclude that the Crowleys ’
summary

- judgment evidence establish ed as a matter of law that the solicitation was connected to a p a rticular occurrence or event that created a need for lega l services: attendance at a con cealed handgun certification class. When examining the

ex istence of a perceived need for legal services, we conclude the determination must be made from the perspecti v e of the barratry p lain tiff

. See Tex. Gov’t Code § 82.06 51(e) ( “This section shall be l iberally construed and applied to promote its underlying p urposes, which are to prote ct those in need of legal services against unethical, unlawful solicitation and to provide efficient a nd e conomical procedures

3 To the extent appellants argue independent ly of the law

- of

- the

- case doctrine that we should infer such a requirement into Rule 7.03(b), we de cli ne t hat invitation because the plain language of the Rule does not impose a particula r occu rrence or event requiremen t. See Tex. Law Shiel d, LLP , 513 S.W.3d at 588 (stating we presume tha t every word of a statute was used for a purpose, and every omitted word was purposefully not chosen )

.9

to secure tha t protection.”). In their repl y brief appellants argue attendance at such a class is ins ufficient. Appellants furt her assert that the barratry statute is focused on vulnerable p otential clients wh o have a particular i zed legal need , such as “someone alrea dy in the hospital or a loved o ne at a funeral home.” Neither the barratr y statute nor Rule 7.03(b) contain languag e limiting barratry claims to potential clients who have be en physically injured. See Tex. Gov’t Code § 82.0651 (e)

. If the Legislature wished to r estrict barratry claims to such limited situations, it cou ld have included language accomplishing that goal. It did not. Even if we accept appella nts’ initial premis e, that the barratry statute is focused on protecting vuln erable potential clients, we co nclude concealed handgun class attendees such as the Crowl eys meet that requirement. For example, Ms. Crowl ey testified that she “ was very worried that if my husband ever shot someone that was b reak ing in, we were going to l ose every dime we had. ” Indeed, Texas Law Shield’s entire business plan exploits a bel ief t hat concealed handgu n certification class atten dees need legal services. This is demonstrated on Texas Law Shield’s

own we bsit e where they stated: “This is peac e of mind every gun owner can afford. Get protected

. Get Texas Law Shield. It just makes sense!” See Tex. Law Shield , 513 S.W.3d at 584. W e overrule appellants’ first issue.
III. There i s a fa ct issue on whether Mr. Crowley bought into the Te xas L aw Shield program after he was solicited in violation of Rule 7.03(b).
In their second issue appellants a rgue that the trial court erred when it granted summary judgment in favor of Mr. Crowley on his barratry claims beca use the credit card receip t rai sed a genuine issue of material fact on whether Mr. Crowley signed the Texas Law Shi eld contract before he wa s solicited by Tom Blalock, Texas La w Shield ’s paid sales representative at Spring Guns and Ammo the day of the Crow leys’ class. See Tex. Dis cipli nary Rules Prof’l Conduct R. 7.03(b) (providing that a “lawyer shall not pay, give o r offer to pay or give10

an ything of value to a person not lice nsed to practice law for soliciting prospective clients” ). We agree.
Whil e th e Crowleys could not recal l the exact time when the class instructor introduced Mr. Blalock and Mr. Blalock made his Texas Law Shield sal es presentation, they both agreed that Mr. Crowley signed up for the Texas Law Shield program a fter Mr. Blalock mad e hi s presentation. According to Mr. Crowley, he believed that he signed up in the middle of th e concealed han dgu n certific ation class. Ms. Crowley on the other hand tes tified th at Mr. Cr owley si gned up toward the end of the class. Mr. Blalock doe s not dispute the Crowleys ’ testimony in either his affidavit or his deposition testimony. Mr. Blalock instead discussed only general informatio n ab out the way his sales pres entations n ormally

occur and he offered no testimony on the spec ific time he made his sale s presentation on November 17, 2012

. Appellants offer only the credit card receip t , which was time

- stamped 8:37 a.m., in opposition to Mr. Crowley’s motion for

summa ry judgment . We conclude that , under the summary judgment standard of review, this receipt is sufficient to raise a genuine issue o f material fact on whether Mr. Crowley purchased a me mbership in the Texas Law Shield program befo r e Mr. Blalock’s sales pre sentation

. See Adiuku v. Ikemenefuna , No. 14

- 13

- 00722

- CV , 2 01 5 WL 778487, at * 6 (Tex. App.

— Houston [14th Dist.] Feb. 24, 2015, no pet.) (holding trial court erred w hen it granted plain tiff ’ s motion fo r summ ary ju dgment becaus e th ere was a fact issue on pl aint iff ’ s c ause of action). We sustain

a ppellants’ second issue on appeal. 4

4 We sustain appellant s ’ issue only with respect to Mr. Cr owley ’ s barratry claim . There is no fact i s sue regarding Ms. Cr owle y sitting through the Tex as Law Shield sales prese ntat ion

. Appellants’ only challenge to the tri al court’s summ ary judgment on the Crowleys’ Rule 7.03(d) claims is that they a re derivative of their Rule 7.03(b ) claims. Because we r e v erse the summary ju d gme nt in fav or of Mr. Crow ley on his Rule 7.03(b) claim , we also reverse on his Rule 7.03(d)
c laim

. B ecause we have affirmed the summary judgment in favor of Ms. Crowley on her R ule11

IV. Appellants’ solicitation of Ms. Crowley is not excused by Mr. Crowley’s agreement to retain appellants. Ap pellants argue in their third issue t hat “because Texas Law Sh ield was already in a relationship with Mr. Cro wley, it had the absolute right to solicit business from Mrs. Crowley.” Appellants assert that Rule 7.03(a) supports this contention. See Tex. Disciplinary Rules Prof’l Condu ct R

. 7.03(a) (prohibitin g a l awyer from directly soliciting a person “w ho has not sought the lawyer’s advice regarding employment or with whom the lawyer has no family or past or present attorney

- client relationshi p”). We conclude that the reference to f amil y i n Rule 7.03(a) ref

ers t o a member of the l awyer’s family, not a m ember of a client’s family. See Bennett v. Comm’n for Lawyer Discipline , 489 S.W.3d 58, 67

– 68 (Tex. App.

— Houston [14th Dist.] 2016, no pet.) ( appl ying plain languag e of Disciplinary R ule 3.02 to attorney’s co nduct ). We overrule app ellants’ third i s sue.
V
. The Crowleys remaining in the room for the Texas Law Shield sales presentation did not excuse appellants’ barratry
. In their fourth issue ap pell ants argue that th e barratry laws do not apply to their conduct dur ing the Crowleys’ c oncealed ha nd gun certif ication class because the Crowleys “sought the solicitation by voluntarily remaining in the room to hear ” the Texas Law Shield sales presentati on. In suppor t of this argument appe llants once agai n cite Dis ciplinary Rule 7.03(a), whi ch pro hibits a lawyer from directly soliciting “a prospective client or nonclient who has not sought the lawyer’s advice regarding employment

. . . .” See Te x. D isciplinary Rules Prof’l Conduct R. 7 .03( a). We disagree with appe llants’ interpretation of R ule 7.03(a). T he rule does not create an exception to the barratry laws when a prospective client seeks a solicitation by a paid sales representative . The e xcep tion is instead li mited to those

7.03(b) claim , we need not f urther address appella nts’ c halle nge to the summary judgment on Ms. Cro wley ’ s Rule 7.03(d) claim

.12

situ atio ns where the pro spective c lient seeks “the lawyer’s a dvice regarding employment.” Id. ; s ee Tex. Law Shield, LLP , 513 S.W.3d at 588 (stating that a reviewing court must presume that every word of a statute was u sed for a purpose, and every omitted word was purposefully no t chosen )

. There is no evidence in t he summary judg ment record that the Crowleys sought the lawyer appellants’ advice regarding employment by simply remaining in the same room where the Texas La w Sh ield sales present ation was taking pl ace. We overrule ap pellants’ fourth issue.
VI. Non

- attor neys can be lia ble for barratry.

I n their fifth issue, appellants argue in the alternative that the prohibitions against barratry do not apply to law firms a nd l egal

- service

- contr act companies. We disa gree. At the time the Tex as Law Shield sales present ation attended by the Crowleys took place, section 82.0651 provided that “a client may bring an action to void a contract for legal services that was procured as a result of conduc t violating the law s of this state or the Texas D isciplinary Rules of Profes sional Conduct of the State Bar of Texas regarding barratry by attorneys or other
persons

. . . .” See Act of May 5, 2011, 82d Leg., R.S., ch. 94, § 2, sec. 82.0 651, 2011 Tex. Gen . Laws 534, 535. I t fu rther provided that a pers on who was solicited by con duct violating the laws and rules against barratry , and did not sign a

co ntract , could “file a civil action aga i nst any person who committed barratry.” Id. We t herefore conclude that the barratry s tatu te appl ies to Texas Law Sh ield and Walker & Rice, P.C ., the non

- lawy er appellants. Finally, appellants argue there is no evid ence that “the lawyers paid the person who solicited the Crowleys.” The evid ence was undisputed th at Mr. Blalock was the person who solicited the C rowleys at the Spring gun range whe re they took their concealed handgun certification class. In his affidavit Mr. Blalock13

averred that he was “employed as a sales representati ve for Texas Law Shield LLP (TLS).” Mr. Bla lock further averred in his affida v it that he had “ made hundreds of in

- perso n presentations about the legal service contract program o ffered by TLS, including at gun stores and gun facilities and spoken with thousands o f in dividuals in doing so.” We conclude that the Crowleys es tablished as a matter of law that they wer e sol icited by an employee of Texas Law Shield in violatio n of the barratry laws. We overrule appellants’ fifth issue on appeal.
C ONCLUS ION
H aving sustained appell ants ’ secon d is sue , we reverse the su mmary judgme nt w ith respect to Mr. Crowley ’ s barratry claim s based on Rules 7.03(b) and 7.03(d) and r emand t hose claims to the trial court f or further pr oceedings

. Hav ing ov erruled appellant s ’ cha llenges to the summary judg ment i n fa vor of Ms. Crowley on her barratry claims, we affirm that part of the trial court ’ s summary judgment. B ecause the award of attorneys ’ fees is not segregated between Mr. Crowley and Ms. Cr owley and we have reverse d the summary judgment in fa vor of Mr. Crow ley, we reverse the final judgment ’ s aw ard of att orneys ’ fees and remand that c la im to the trial court for further proce e dings.

/s/ Jerry Zimmerer Ju stice

Panel consi sts of Justices Christ opher, Wise , an d Zimmerer.