Jason Murray Davis and Davis & Santos, P.C. v. Graham Weston, Carowest Land Ltd.; Graham Weston as Trustee of Countyline Land Trust; And Kuehler Road, LLC F/K/A Kuehler Road, Ltd.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                              ON MOTION FOR REHEARING



                                     NO. 03-22-00378-CV


                 Jason Murray Davis and Davis & Santos, P.C., Appellants

                                               v.

  Graham Weston; Carowest Land Ltd.; Graham Weston as Trustee of Countyline Land
         Trust; and Kuehler Road, LLC f/k/a Kuehler Road, Ltd., Appellees


               FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
      NO. C2021-1179B, THE HONORABLE STEPHANIE BASCON, JUDGE PRESIDING



                           MEMORANDUM OPINION


              We withdraw our opinion and judgment issued on December 6, 2024, on our own

motion and substitute the following opinion and judgment in their place. Appellants’ motions

for rehearing and for reconsideration en banc are dismissed as moot.

              This case arises out of a suit brought by Graham Weston; Carowest Land Ltd.;

Graham Weston as Trustee of Countyline Land Trust; and Kuehler Road, L.L.C. f/k/a Kuehler

Road, Ltd. (collectively, the Graham Parties) against their former attorney and law firm Jason

Murray Davis and Davis & Santos, P.C. (collectively, Davis) for claims of breach of fiduciary

duty and fraud by nondisclosure. Davis appeals from the district court’s denial of his motion to
dismiss pursuant to the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem.

Code §§ 27.001–.011. We will affirm the order denying the motion to dismiss.


                                      BACKGROUND 1

                The underlying suit arises from a contentious divorce proceeding between

Graham Weston and Elizabeth Weston. Graham and Elizabeth were married in 1994. During

the marriage, Graham amassed a net worth of at least $1 billion as a co-founder of Rackspace

Technology, Inc. Elizabeth supported the family by remaining at home and homeschooling their

three sons. Throughout their marriage, Graham and Elizabeth managed three of the family’s

companies: Carowest Land Ltd.; Kuehler Road, Ltd.; and Countyline Land Trust (collectively,

the Real Estate Entities). Graham and Elizabeth hired Davis to represent the Real Estate Entities

in various lawsuits throughout the years, starting around 2009. Davis also represented Graham

in litigation involving Rackspace and advised him on other non-litigation matters related

to Rackspace.


Davis’s involvement in representing the Real Estate Entities

                In 2009, the Westons hired Davis to represent Carowest Land Ltd. (Carowest) in

litigation with the City of New Braunfels for several claims, including alleged violations of the

Texas Open Meetings Act. 2 At least one piece of correspondence from that litigation reflects



       1  The background facts arise from the pleadings and affidavits, which we view in the
light most favorable to the nonmovant. See O’Rourke v. Warren, 673 S.W.3d 671, 680 (Tex.
App.—Austin 2023, pet. denied).
       2 See City of New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501 (Tex. App.—
Austin 2014, no pet.); City of New Braunfels v. Carowest Land, Ltd., 549 S.W.3d 163 (Tex.
App.—Austin 2017), order withdrawn (June 19, 2020), review granted, judgment vacated,
615 S.W.3d 156 (Tex. 2020).
                                               2
Davis’s statement that he represented “Carowest Land Company Ltd. and the Weston Family in

matters related to the City of New Braunfels’ South Tributary Project (the Project).” The

petition in the Carowest litigation described Carowest as being “a limited partnership affiliated

with the Weston family.” In addition, in 2013, Davis represented Countyline and Kuehler Road

in litigation relating to alleged property damage and encumbrances.        Both Carowest’s and

Kuehler’s general partner is an entity called Chupacabra, of which Graham is the manager. As

part of this role, Graham selected the attorney to represent those entities and was in charge of

paying legal fees for those entities out of those entities’ funds. Graham let Elizabeth be the

day-to-day contact with Davis regarding the litigation but he was also heavily involved in the

decision-making process. As Graham was the sole member of the entities, he had the authority

to terminate Davis’s representation at any time.


Davis’s history representing Graham and Elizabeth individually

               In addition to representing the Real Estate Entities, Davis represented each of the

Westons individually in separate matters throughout the years. In 2012, Graham hired Davis to

represent him individually in a suit brought against Graham and Rackspace. The litigation

concerned an executive-level employee who sought equity in the company. Davis successfully

obtained summary judgment on Graham’s behalf. Following the matter, either in 2013 or 2014,

Graham and Davis had a brief conversation about the Rackspace litigation, but neither party has

been able to recall the substance of that conversation.

               In 2015, Davis represented Elizabeth in federal bankruptcy court in a dispute

involving her and her company Equis Equine, LLC, related to a fraudulent horse auction.

Graham was not a party to the action or otherwise involved. However, during that suit Davis


                                                   3
contemplated adding a DTPA (Deceptive Trade Practices Act) claim; in order for Elizabeth to

qualify as a “consumer” under the statute, her net worth could not exceed $25 million. To

determine her net worth, Davis was required to access Graham and Elizabeth’s personal

information regarding family trusts. Davis met with the Weston family accountant and tax

lawyer to gather information regarding the Weston family’s finances. The end of the suit

resulted in a $1.5 million judgment in favor of Equis Equine, LLC.


Representation of the Westons’ son
              In 2020, Elizabeth and Graham’s adult son had a mental-health crisis that led to

criminal charges and involuntary commitment to a mental-health facility. Davis, Elizabeth, and

Graham communicated closely regarding the son’s treatment options. Davis dealt directly with

the mental-health facility and even recommended his brother-in-law be the son’s treating

psychiatrist. In a series of texts, Graham enlisted Davis to convince Elizabeth that their son

needed mental-health treatment, stating: “[I’m] not asking for you to be loyal to me over

[Elizabeth]. I just need your help—using your own judgment.” In the same text exchange,

Graham thanked Davis for his “commitment to service [the Weston family] for so many years.”

At the hearing in the divorce suit on Graham’s motion to disqualify Davis, Graham testified that

disagreements over the son’s care were part of his motivation for the divorce. In addition, after

the underlying suit was filed in 2021, Graham disclosed that he had designated Davis as a

potential co-guardian of the Westons’ children in a handwritten codicil to Graham’s will in 2009.


Divorce proceedings

              In mid-2019, Elizabeth began confiding in Davis regarding issues in her marriage.

She told Davis that Graham was unfaithful and that he had been sexually, physically, and


                                                4
emotionally abusive towards her. Elizabeth, at Davis’s direction, began recording documentary

evidence of the abuse, including text messages from Graham and photos of her injuries from the

alleged physical abuse. Elizabeth also shared the allegations with a former FBI agent. Despite

preserving evidence, Elizabeth decided against reporting Graham for fear of retaliation.

               In October 2020, Graham retained attorney Richard Orsinger and filed divorce

proceedings against Elizabeth. Two days later, Graham nonsuited the petition. Elizabeth then

retained Davis and filed her divorce petition on October 26, 2020, in Comal County. Graham

and his lawyers immediately moved to disqualify Davis and his firm from representing Elizabeth

in the divorce, contending that Davis had breached his fiduciary duty to Graham and the Real

Estate Entities because Davis had represented Graham and the Real Estate Entities in the past,

including representing the Westons’ adult son in a criminal matter, representing the Real Estate

Entities in various suits, and representing Graham individually. After a hearing where both

parties and Davis testified, the trial court granted the motion to disqualify.       Among other

findings, the trial court found:


       • Davis had a fiduciary duty and relationship of trust and loyalty with Graham, and that
       Graham was a former and current client of Davis;

       • Davis qualifies as a “family attorney” for the Westons from his ongoing representation
       of the family members and their closely held companies; and

       • Davis had an informal fiduciary relationship with Graham arising before the divorce
       proceedings.


As Elizabeth was represented in the divorce by a series of attorneys in addition to Davis, the trial

court’s order disqualifying Davis did not leave Elizabeth without counsel.            Nevertheless,

Elizabeth petitioned for a writ of mandamus from this Court, seeking to set aside the


                                                 5
disqualification order. This Court denied the petition. 3 After losing Davis as her counsel in the

divorce proceedings, Elizabeth terminated the remaining attorneys and represented herself pro se

at trial where she presented no evidence.         Graham filed a motion for directed verdict on

Elizabeth’s affirmative claims regarding Graham’s alleged abuse, which the trial court granted,

and the remainder of the suit was tried to a jury verdict. 4


The Graham Parties file the underlying suit

               After the trial court disqualified Davis but before the divorce proceedings were

final, Graham and the Real Estate Entities filed the underlying suit in July 2021, claiming that

Davis and his firm breached their fiduciary duties of loyalty and confidentiality to Graham by

secretly investigating, developing, and pursuing civil, criminal, and divorce claims against

Graham on behalf of Graham’s wife while simultaneously representing Graham and the Real

Estate Entities. Graham and the Real Estate Entities (collectively, the Graham Parties) also

allege causes of action for fraud by nondisclosure. The Graham Parties seek damages in the

form of attorneys’ fees in connection with moving to disqualify Davis from the act of

representing Elizabeth in the divorce proceeding. They also seek disgorgement of attorneys’ fees

in the amount of $2.9 million that they paid to Davis for legal services dating back to 2009.

               Davis filed a TCPA motion, seeking dismissal of the Graham Parties’ claims and

recovery of attorneys’ fees. The trial court granted the parties limited discovery before the

TCPA hearing, discovery that included two depositions of Davis and production of several years’

       3   See In re Weston, No. 03-21-00121-CV, 2021 WL 3026963 (Tex. App.—Austin
July 16, 2021, orig. proceeding).
       4  Elizabeth appealed the final divorce decree to this Court, which we affirmed in its
entirety. See Weston v. Weston, No. 03-23-00039-CV, 2024 WL 3995391, at *1 (Tex. App.—
Austin Aug. 30, 2024, pet. denied) (mem. op.).
                                                   6
worth of Davis’s and Elizabeth’s confidential and privileged communications. The trial court

denied Davis’s TCPA motion in a broad-form order. Davis timely filed this interlocutory appeal.


                                   STANDARD OF REVIEW

               “The [TCPA] protects citizens who petition or speak on matters of public concern

from retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky, 460 S.W.3d 579,

584 (Tex. 2015) (orig. proceeding). The protection comes in the form of a motion to dismiss a

suit that would stifle the defendant’s exercise of those rights. Id.; see also Lilith Fund for

Reprod. Equity v. Dickson, 662 S.W.3d 355, 363 (Tex. 2023) (providing that TCPA “protects

speech on matters of public concern by authorizing courts to conduct an early and expedited

review of the legal merit of claims that seek to stifle speech through the imposition of civil

liability and damages”). The legislature has instructed that the act shall be “construed liberally to

effectuate its purpose and intent fully.” Tex. Civ. Prac. & Rem. Code § 27.011(b).

               Courts review a motion to dismiss under the TCPA using a three-step process.

See Montelongo v. Abrea, 622 S.W.3d 290, 296 (Tex. 2021). First, the movant bears the initial

burden to show the TCPA applies because the “legal action” against the movant is “based on or

is in response to” its “exercise of the right of free speech, right to petition, or right of

association.” Tex. Civ. Prac. & Rem. Code § 27.003(a). A “legal action” includes “a lawsuit,

cause of action, [or] petition . . . that requests legal, declaratory, or equitable relief.” Id.

§ 27.001(6). If the movant meets its burden to show that the TCPA applies, the burden then

shifts to the claimant to establish “by clear and specific evidence a prima facie case for each

essential element of the claim in question.” Id. § 27.005(c). If the claimant meets that burden,

the court must still grant the motion if the movant “establishes an affirmative defense or other


                                                 7
grounds on which the moving party is entitled to judgment as a matter of law.” Id. § 27.005(d).

Whether each party met its respective burdens under the TCPA is reviewed de novo. O’Rourke

v. Warren, 673 S.W.3d 671, 679–80 (Tex. App.—Austin 2023, pet. denied). In determining

“whether a legal action is subject to or should be dismissed under this chapter,” we “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 § 27.006(a). We review the pleadings and

evidence in the light most favorable to the nonmovant. O’Rourke, 673 S.W.3d at 680. 5


                                        DISCUSSION
              In three issues, Davis claims that the trial court erred by denying Davis’s TCPA

motion because (1) the Graham Parties’ fraud and breach-of-fiduciary-duty claims are based on

or in response to Davis’s rights to petition and of free speech, (2) the Graham Parties failed to

establish a prima facie case in support of their claims, and (3) Davis established the attorney-

immunity defense.


       1. The Graham Parties’ claims are not based on or in response to Davis’s right
          to petition.

              Davis argues that the Graham Parties’ claims against him for breach of fiduciary

duty and fraud implicate his right to petition. The Graham Parties’ petition alleges that Davis

(1) failed to disclose facts (and made affirmative misrepresentations) about Davis’s

representation of Elizabeth in the divorce and (2) investigated, developed, and pursued civil,

       5   This appeal arises under the 2019 version of the Texas Citizens Participation Act
(TCPA). See Tex. Civ. Prac. & Rem. Code § 27.001 et seq. The TCPA was amended in 2023
while this appeal was pending. See Act of May 19, 2023, 88th Leg., R.S., ch. 804, § 1 (codified
as an amendment to Tex. Civ. Prac. & Rem. Code § 27.010(a)). However, all references to the
TCPA in this memorandum opinion are to the prior, 2019 version that applies to this dispute.
                                               8
criminal, and family-law claims in his capacity as counsel to Elizabeth and in a manner adverse

to Graham. Davis contends that the bases of the Graham Parties’ claims are “communications”

and “statements made or submitted by Davis in oral, written, and electronic form in the scope of

Davis’s representation of Elizabeth to investigate, develop, and pursue claims against Graham.”

He argues that “his legal representation of Elizabeth involved communications with Elizabeth

and others about the claims and activity in the divorce and other legal proceedings, and

communications relating to preparing and filing the divorce petition and other documents in

ongoing legal proceedings.” Because these “communications” pertain to a judicial proceeding,

Davis argues, they implicate his right to petition and thus invoke the TCPA.

               In order for a movant to invoke the TCPA, there must be a communication. A

“communication” is broadly defined as “the making or submitting of a statement or document in

any form or medium.” See Tex. Civ. Prac. & Rem. Code § 27.001(1). “The phrase ‘based on . . .

or is in response to’ dictates the nexus that must exist between the ‘legal action’ and the

protected conduct under the TCPA.” Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 879 (Tex.

App.—Austin 2018, pet. denied). The phrase encompasses a “legal action” that is factually

predicated on the alleged conduct that falls within the scope of the TCPA’s definition of the

exercise of the right of free speech, petition, or association. Id. Relevant here, the “exercise of

the right to petition” includes “a communication in or pertaining to . . . a judicial proceeding.”

Tex. Civ. Prac. & Rem. Code § 27.001(4)(A). A “judicial proceeding” means an actual, existing

judicial proceeding. See Levatino v. Apple Tree Cafe Touring, Inc., 486 S.W.3d 724, 728 (Tex.

App.—Dallas 2016, pet. denied). When, as is the case here, the defendant invokes free speech or

the right to petition, the defendant must show that the communications at issue “provide the basis

for the legal claims or the impetus for the dispute.” Welsh v. River Hollow Ass’n, 654 S.W.3d

                                                9
505, 510 (Tex. App.—Houston [14th Dist.] 2022, pet. denied) (quoting ML Dev, LP v. Ross

Dress for Less, Inc., 649 S.W.3d 623, 628–29 (Tex. App.—Houston [1st Dist.] 2022,

pet. denied)).

                 Although Davis asserts that the portion of the Graham Parties’ claims relating to

Davis’s failure to disclose his representation of Elizabeth to Graham is “based on or in response

to” a communication pertaining to a judicial proceeding, that portion of the Graham Parties’

claims alleges a failure to communicate in his failure to advise Graham of a conflict of interest

which does not implicate TCPA protections. In Hanna v. Williams, we analyzed whether a law

firm’s failure to file a motion for summary judgment despite the client’s instructions implicated

the TCPA in the context of a legal malpractice case. 681 S.W.3d 416, 423 (Tex. App.—Austin

2023, pet. denied). We held that, to the extent claims are based on or in response to failures to

communicate or act, “such failures do not implicate the TCPA.” Id.; see also Krasnicki v.

Tactical Ent., LLC, 583 S.W.3d 279, 284 (Tex. App.—Dallas 2019, pet. denied) (“The definition

of ‘communication’ makes no reference to the withholding of a statement or document.”). While

Hanna analyzed this issue within the context of a legal malpractice suit, our sister courts have

applied the same reasoning in breach-of-fiduciary-duty cases. 6 See Rivas v. Lake Shore Harbour


       6   We recognize that after this appeal was filed, in recent amendments to the TCPA, the
legislature has expressly excluded from the TCPA “a legal malpractice claim brought by a client
or former client.” See Act of May 19, 2023, 88th Leg., R.S., ch. 804, § 1 (codified as an
amendment to Tex. Civ. Prac. & Rem. Code § 27.010(a)). Davis argues in post-submission
briefing that this amendment demonstrates that under the 2019 version of the statute applicable
in this case, claims based on communications by a lawyer in his representative capacity are
included within the scope of the TCPA’s protection. As we do not consider this case to be a
legal malpractice case, we do not find this argument relevant to our analysis. See Aiken
v. Hancock, 115 S.W.3d 26, 28 (Tex. App.—San Antonio 2003, pet. denied) (providing that
focus of breach-of-fiduciary-duty claim is whether attorney obtained improper benefit from
representing client, while focus of legal malpractice claim is whether attorney adequately
represented client).
                                                10
Cmty. Ass’n, No. 01-22-00121-CV, 2023 WL 3063409, at *8 (Tex. App.—Houston [1st Dist.]

Apr. 25, 2023, pet. denied) (mem. op.) (holding that breach-of-fiduciary-duty claim was not

“based on or in response to” protected communications but rather defendant’s alleged conduct in

failing to disclose known information). In particular, we find the facts in this case similar to

those outlined in Cweren v. Eureka Multifamily Grp., L.P., No. 01-21-00470-CV, 2023 WL

2977755, at *5–8 (Tex. App.—Houston [1st Dist.] April 18, 2023, pet. denied) (mem. op.), and

Dernick v. Foley & Lardner LLP, No. 01-22-00251-CV, 2024 WL 3941011, at *8 (Tex. App.—

Houston [1st Dist.] Aug. 27, 2024, no pet.) (mem. op.).

               In Cweren, the trial court denied a TCPA motion to dismiss filed by an attorney

and his law firm in response to claims brought against them by former clients. 2023 WL

2977755, at *5–8. Initially, the law firm had filed suit against the former clients for outstanding

legal fees relating to previous litigation. Id. at *2. Viewing the suit for attorney’s fees as

retaliatory for the former clients’ rejection of the law firm’s payment demands, the former clients

filed their own suit against the firm for claims including negligence, gross negligence, breach of

fiduciary duty, and abuse of process. Id. at *2–3. The former clients argued that the law firm

had also retaliated against them by representing clients against one or more of the former clients’

managed properties even though the law firm had previously represented those managed

properties, which created a conflict of interest. Id. at *2. Similar to the allegations here, the

former clients alleged that the representation of the new clients constituted a conflict of interest

and that the law firm “improperly and unlawfully us[ed] confidential client information provided

by [the former clients] adversely to them, without their knowledge or consent[.]” Id. at *3, *6.

The law firm filed a motion to dismiss under the TCPA, alleging that the former clients’ claims

were based on and in response to the law firm’s exercise of its right to petition. Id. at *4. In

                                                11
affirming the trial court’s denial of the motion to dismiss, the First Court of Appeals explained

that the former clients’ suit was not based on the law firm’s conduct in a judicial proceeding (the

initial suit by the law firm against the former clients for recovery of fees) but instead was based

on the law firm’s “failures to act, breaches of the standard of care, conduct, and

misrepresentations, virtually all of which allegedly occurred before the [law firm’s suit for

recovery of attorney’s fees] was filed.” Id. at *14 (internal citations omitted). Accordingly, the

court held that the former clients’ breach-of-fiduciary-duty claims were not “predicated on [the

law firm’s] communications in a judicial proceeding,” and thus the TCPA was not invoked. Id.

at *15.

                 One year later, relying on its holding in Cweren, the First Court of Appeals issued

a similar holding in Dernick, 2024 WL 3941011, at *8. In that case, the Dernicks brought suit

for breach of fiduciary duty against their former law firm, Foley & Lardner, alleging that the firm

owed them a fiduciary duty in connection with their previous attorney-client relationship and that

the law firm breached this duty by representing the Dernicks’ former company, Encore, in a

manner adverse to the Dernicks’ interests (the “adversary proceeding”). Id. at *4. The Dernicks

alleged that Foley & Lardner breached its fiduciary duty through “engaging in conflicts, placing

personal interests and the interests of Encore and other clients over the interests of the Dernicks,

improperly using the Dernicks’ confidences and confidential information, taking advantage of

the Dernicks’ trust, engaging in self-dealing, and making misrepresentations.”            Id.   The

Dernicks’ petition more specifically alleged:


          [Foley] represented Encore and other clients in claims that were substantially
          related to [Foley’s] representation of the Dernicks. [Foley] did so without
          adequately disclosing the conflict of interest to the Dernicks or obtaining their
          consent to engage in the joint representation. What is worse, [Foley] asserted

                                                 12
       claims against the Dernicks for fraud and other purported malfeasance, based on
       allegations that [Foley] knew were false because it had represented the Dernicks
       in related transactions and disputes. [Foley] owed the Dernicks fiduciary duties to
       decline representation of Encore in the adversary proceeding and should have
       informed Encore that the allegations had no basis in fact. Instead, [Foley]
       conspired with Encore to manufacture bogus claims against its own former clients
       (the Dernicks) to advance the interests of other clients (like Encore) and itself by
       accumulating attorney’s fees.


Id. The Dernicks sought attorneys’ fees incurred in defending against the adversary proceeding,

consequential damages for lost deals, management fees, salaries, ownership interests, and

equitable fee forfeiture requesting disgorgement of improper benefits and fees. Id. Foley filed a

motion to dismiss under the TCPA, arguing that the Dernicks’ suit was based on and in response

to Foley’s exercise of the right to petition. Id. The trial court agreed and granted Foley’s motion

to dismiss. Id. On interlocutory appeal, the Dernicks argued that Foley could not identify a

communication that would invoke the TCPA because the Dernicks’ claims, including the breach-

of-fiduciary-duty claim, were based not on or in response to communications made in a judicial

proceeding but instead on failures to communicate or act. Id. at *5. Therefore, the Dernicks

argued, their claims were not “factually predicated on protected communications.” Id. The court

sided with the Dernicks and reversed the judgment of the trial court, reasoning that the Dernicks’

claims stemmed from Foley’s conduct in representing Encore adverse to the Dernicks—

specifically Foley’s alleged failure to disclose the representation or obtain consent, and its

alleged misuse of confidential information—rather than from communications made during the

adversary proceeding itself. Id. at *8. The court held:


       We agree with the Dernicks that the TCPA is not implicated because their legal
       action is not based on or in response to [Foley’s] communications in the adverse
       proceedings, but rather their alleged actions and conduct in representing Encore
       adverse to the Dernicks—Foley’s alleged former clients—without disclosing such

                                                13
        representation or seeking their prior consent, and also based on [Foley’s] alleged
        improper use of the Dernicks’ confidential information.


Id.

                Although the adversary proceeding was part of the sequence of events, the court

determined the core issue was the alleged breach of fiduciary duty, which predated the

proceeding. Id. The court emphasized that the Dernicks’ claims were based on Foley’s conduct

pre-litigation, and thus it did not pertain to an actual, existing judicial proceeding. Id. at *12; see

Brenner v. Centurion Logistics LLC on Behalf of Centurion Pecos Terminal LLC, No. 05-20-

00308-CV, 2020 WL 7332847, at *7 (Tex. App.—Dallas Dec. 14, 2020, pet. denied) (mem. op.)

(“To be an exercise of the right to petition under § 27.001(4)(A)(i), a communication must be in

or pertain to an actual, existing judicial proceeding . . . [a] pre-litigation communication doesn’t

fit that definition, even if it provokes the subsequent litigation.”).

                Applying the reasoning in Cweren and Foley & Lardner here, and viewing the

evidence in the light most favorable to the Graham Parties, O’Rourke, 673 S.W.3d at 680, we

conclude that the basis for the Graham Parties’ breach-of-fiduciary-duty claim is not the filing of

the divorce petition or communications Davis made during the divorce proceedings but rather

Davis’s conduct in representing Elizabeth as a client allegedly adverse to Graham (who was

either a current client or former client of Davis) and Davis’s failure to advise Graham of this

conflict of interest or obtain consent for such adverse representation. 7 These facts also form the


        7  To the extent Davis argues that some of the Graham Parties’ claims are based on
alleged “affirmative misrepresentations,” we reject this argument, noting that “[s]imply alleging
conduct that has a communication embedded within it does not create the relationship between
the claim and the communication necessary to invoke the TCPA.” Kawcak v. Antero Res. Corp.,
582 S.W.3d 566, 587 (Tex. App.—Fort Worth 2019, pet. denied); see also ML Dev, LP v. Ross
Dress for Less, Inc., 649 S.W.3d 623, 628 (Tex. App.—Houston [1st Dist.] 2022, pet. denied)
                                                   14
basis for the Graham Parties’ claim of fraud by non-disclosure.          And both the breach-of-

fiduciary-duty and fraud-related claims are based on the allegation that Davis acquired

confidential information about the Graham Parties through his years as the Westons’ and Real

Estate Entities’ counsel and that he used that confidential information against Graham to his

detriment in the divorce proceedings. Thus, because this portion of the Graham Parties’ claims

are based on Davis’s conduct in representing Elizabeth in the divorce, we conclude that it does

not meet the definition of “a communication in or pertaining to . . . a judicial proceeding.” See

Tex. Civ. Prac. & Rem. Code § 27.001(4)(A)(i). Accordingly, we conclude that this portion of

the Graham Parties’ claims in the underlying suit are not based on or in response to Davis’s right

to petition.

               The nature of the allegations of failures to disclose in this case distinguish it from

Clouthier v. Brown, No. 03-23-00777-CV, 2024 WL 3995384 (Tex. App.—Austin Aug. 30,

2024, no pet.) (mem. op.). In that case, this Court held that the TCPA applied to the plaintiff’s

claims that, in filing a motion, his attorney did not properly argue or adequately address his

preferred grounds and failed to hire a private investigator to obtain affidavits that could have

been included in the motion. Id. at *5. We concluded that the attorney’s omissions to take

actions or communicate in representing the client implicated the right to petition on behalf of that

same client. Id. Here, the failures to communicate were subtly but significantly different. The

Graham Parties do not complain about the contents of a petition, absence of content from a

petition, or acts related to it but instead allege harm from Davis’s continuing to represent them




(although alleged statements “may have accompanied” complained-of conduct, communications
themselves did not “provide the basis for the legal claims or the impetus for suit” as required
by TCPA).
                                                15
while failing to disclose an adverse representation of Elizabeth against Graham. As the Graham

Parties explain in their response to the motion to dismiss, “the claims asserted by Plaintiffs relate

to Defendants’ conduct and omissions as they concern Plaintiffs, not what Defendants

communicated to Elizabeth.”

               This cause is similarly distinct from the Texas Supreme Court’s opinion in

Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018). In that case, Hines sued Youngkin, attorney for

Hines’s opponent in litigation, for entering into a Rule 11 agreement on behalf of Youngkin’s

clients while knowing they did not intend to comply, preparing a document that allowed them

not to comply, and helping his clients wrongfully assert ownership of a property by filing a

lawsuit. Id. at 679. The court held that the TCPA applied to Hines’s claims against Youngkin

because they implicated his rights to speak and petition. Id. at 680-81. While Hines’s focus was

on Youngkin’s acts in speaking and petitioning for Youngkin’s clients, the Graham Parties’

claims focus on Davis’s breach of duties owed to the Graham Parties based on their

existing relationship.

               We do not address the merits of the Graham Parties’ allegations or how the

exclusion of Davis’s exercises of the right to petition might shape their proof of damages from

the dual representation. We conclude only that Davis did not show that the Graham Parties’

lawsuit complaining of his breach of fiduciary duty and fraud implicates the right to petition.


   2. The Graham Parties’ claims are not based on or in response to Davis’s right of
      free speech.

               The TCPA defines the exercise of the right of free speech as “a communication

made in connection with a matter of public concern,” and a “matter of public concern” is a

statement or activity regarding a public official, a public figure, or another person “who has

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drawn substantial public attention due to the person’s official acts, fame, notoriety, or celebrity”;

“a matter of political, social, or other interest to the community”; or “a subject of concern to the

public.” Tex. Civ. Prac. & Rem. Code § 27.001(3), (7). “To be a matter of public concern, a

claim must have public relevance beyond the interests of the parties.”           Morris v. Daniel,

615 S.W.3d 571, 576 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (quoting Creative Oil &

Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 136 (Tex. 2019)).

               Davis argues that his communications made while counseling Elizabeth and while

investigating, developing, and pursuing claims against Graham relate to matters of public

concern—i.e., Graham’s criminal, physical, and sexual abuse of Elizabeth. Davis claims that

this would involve Elizabeth potentially going to the police to seek protection and possible

prosecution. Davis further argues that Graham’s alleged criminal, physical, and sexual abuse of

Elizabeth, given Graham’s “notorious” status as a “Forbes-listed billionaire,” is an “issue[] of

concern to the public.” Statements to any third party, whether public or private, concerning

sexual assault or the reporting thereof to the police can constitute a matter of public concern

sufficient to constitute exercise of right of free speech under TCPA. See Yu v. Koo, 633 S.W.3d

712, 722 (Tex. App.—El Paso 2021, no pet.); see also Brady v. Klentzman, 515 S.W.3d 878, 884

(Tex. 2017) (definition of “matter of public concern” includes “commission of crime,

prosecutions resulting from it, and judicial proceedings arising from the prosecutions.”). It is

undisputed that Elizabeth communicated with Davis before the divorce regarding various claims

of abuse at the hands of Graham, including sexual abuse. While Elizabeth did not report the

claims of abuse to law enforcement, she communicated these claims to Davis. Thus, Elizabeth’s

communications about Graham’s alleged abuse may include a matter of public concern sufficient

to implicate her right of free speech.      However, the communications at issue belonged to

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Elizabeth, not Davis. The Graham Parties’ petition complained that Davis secretly—without

disclosure to the Graham Parties—developed, pursued, and investigated Elizabeth’s claims

against Graham while at the same time representing the Graham Parties. The Graham Parties

complain of the act of representing Elizabeth, period. Davis’s TCPA motion to dismiss relies on

Davis’s communications made in the divorce petition he filed on behalf of Elizabeth. The

Graham Parties complain of Davis’s acts, omissions, and failures to act that he engaged in before

he filed the divorce petition. The Graham Parties’ claims are not based on or in response to

Davis’s exercise of his right of free speech and therefore do not invoke the TCPA.

               Davis did not demonstrate that the TCPA applies to the Graham Parties’ claims,

and we overrule Davis’s first issue on appeal.        Because we conclude that Davis did not

successfully invoke the TCPA, the trial court did not err in denying Davis’s motion to dismiss.

Because Davis did not carry the initial burden under the TCPA, the burden never shifted to the

Graham Parties to present a prima facie case for the elements of their claims. We therefore need

not consider Davis’s remaining issues concerning establishment of a prima facie case or the

attorney-immunity defense. See Tex. R. App. P. 47.1 (directing courts to write opinions as brief

as practicable while addressing every issue raised and necessary to final disposition of appeal).


                                         CONCLUSION

               Having concluded that the TCPA does not apply to the Graham Parties’ claims,

we affirm the trial court’s order denying Davis’s motion to dismiss. We dismiss any pending

motions as moot.




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                                           __________________________________________

                                           Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Triana and Crump

Affirmed on Motion for Rehearing

Filed: April 30, 2026




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