If You Give Us Lip, We’ll SLAPP Y’all With Attorney Immunity in Texas State Appellate Courts Too

A Texas lawyer may ask a trial court to award fees and sanctions after using the state’s anti-SLAPP law to win dismissal of a suit filed against him by a client’s ex-husband.

The 1st District Texas Court of Appeals ruled for Houston lawyer Eric Lipper of Hirsch & Westheimer in an Aug. 6 opinion.

Anti-SLAPP laws are intended to discourage lawsuits against people for speaking out on matters of public concern. Texas’ version of the law, the Texas Citizens Participation Act, provides for quick dismissal of suits filed in response to a person’s rights of free speech, petition or association.

The appeals court said the TCPA applied in Lipper’s case because the suit filed against him by Justin Haynes was based on Lipper’s courtroom statements, implicating the right to petition. The appeals court noted a previous decision by the Texas Supreme Court that specifically found that a lawyer’s in-court statements are communications that are protected by the law.

People who win dismissals under the TCPA are entitled to seek attorney fees and sanctions “as justice and equity may require.” That means Lipper may ask a trial judge on remand to consider those remedies, the appeals court said.

Haynes had sued Lipper for breach of contract, tortious interference and conspiracy. The suit was based on Lipper’s alleged acknowledgement in court that he had made a mistake in his request for attorney fees on behalf of Haynes’ wife in divorce proceedings.

Besides representing Haynes’ wife in the divorce, Lipper also represented the wife’s father in a suit against Haynes for alleged failure to repay a loan. Lipper acknowledged in court that he mistakenly included one billing entry based on his representation of the wife’s father in the divorce attorney fee request, Haynes had claimed.

Haynes alleged that neither Lipper nor the judge made an adjustment for the billing error. Rather than challenge the fee award on appeal, Haynes filed his lawsuit.

The court said Lipper had satisfied the first prong of the TCPA when he showed that the statute applied to his in-court statements. He satisfied a second prong when he was able to show that he would have a successful defense to Haynes’ claims.

That defense is available under the attorney-immunity doctrine, the appeals court said. In Texas, that doctrine holds that lawyers are immune from civil liability to nonclients for actions taken in connection with representing a client in litigation.

“Requesting that the trial court order an opposing party to pay attorney’s fees incurred by a client in the proceeding is quintessential conduct within the scope of legal representation,” the appeals court said. “Lipper thus met his burden to prove that he is entitled to the protection of attorney immunity.”

THE START OF LENGTHY LITIGATION FOR THIS COUPLE

Alicia Bryan and Justin Haynes were united in marriage on March 21 in a ceremony officiated by Mr. Rick Godwin at the Chapel at La Villita in San Antonio.

The bride is the daughter of Mr. and Mrs. J.P. Bryan of Houston. Her grandparents are the late Mr. and Mrs. A.Y. Lewis of Tyler, and the late J.P. Bryan of Freeport and Gretchen Bryan Josey of Houston.

The groom is the son of Mr. and Mrs. Jefferson Van Aken Haynes of Alpine. His grandparents are Mrs. Neville Haynes and the late Neville Haynes of Alpine, and Mrs. F. Poche Waguespack and the late F. Poche Waguespack of New Orleans. The groom is the president of Big Bend Telephone Co. in Alpine.

The bride wore a handmade dress of India sari organdy with gold embroidery by Lorna from Nolita of San Antonio and she carried violet hyacinths. The flower girls were Eloise, Adeline and Josephine James. Bryan James served as ring bearer.

The reception was held at Biga on the Banks International Room. The bride and groom spent their honeymoon in Anguilla in the British West Indies.

The couple will reside in Alpine.

Credit: Alpine Avalanche

COURT OF APPEALS BACKGROUND OF THE CASE

During the marriage between Haynes and J.P. Bryan’s daughter, Alicia Bryan, Haynes asked J.P. for a loan to assist him in purchasing a condominium. J.P. loaned the money to Haynes under a promissory note.

The parties eventually came to dispute when Haynes was required to satisfy the debt. After Alicia filed for divorce from Haynes, J.P. sued Haynes in a separate proceeding on the unpaid note.

Lipper represented Alicia in the divorce proceeding and J.P. in the suit on the note. J.P. and Haynes reached a settlement in the suit on the note, under which each party agreed to bear its own attorney’s fees and costs.

In the divorce proceeding, the court held a bench trial. Lipper presented a request for attorney’s fees during the trial, supported by redacted billing records. In cross-examining Lipper on the billing entries, Haynes’s attorney identified a billing entry that pertained to Lipper’s representation of J.P. in the suit on the note. In response, Lipper acknowledged the error.

Haynes alleges that despite Lipper’s acknowledgment that the entry pertained to his work for J.P. in the suit on the note, Lipper never corrected the billing statements on file. The divorce court’s judgment awarded Alicia her reasonable and necessary attorney’s fees based on the fees requested without adjusting for the billing error.

Haynes did not challenge the attorney’s fee award on this ground in his appeal of the divorce judgment. Instead, he brought this suit against Lipper, J.P., and Alicia, claiming breach of contract, tortious interference, and conspiracy.

Justice Gordon Goodman Authored the Opinion for the Panel. Goodman was elected to the First Court of Appeals in 2018 and has a history of  Oil, Gas and Banking Industry Advocacy.

Justice Goodman is a member of the Texas State Bar, Pennsylvania Bar, and Energy Bar Associations. Before serving on the bench, he started his career with the Whittenburg Law Firm in Amarillo, TX, where he focused on civil trials, appellate work, oil & gas law, banking law, and general practice.

He subsequently served in senior positions for the Howell Corporation; E.I. DuPont de Nemours & Co.; Conoco, Inc.; Occidental Petroleum Corporation; and most recently with NRG Energy.

He has worked on professional advisory committees for the Financial Accounting Standards Board, the American Petroleum Institute, and the Energy Oversight Committee. In connection with his advisory work, he has published many articles on finance, contracts, risk analysis, ethics, and governance.

He earned his BA degree Magna Cum Laude from the University of Pennsylvania and his JD degree from the University of Pennsylvania Law School both in Philadelphia.  He received his high school degree from the Horace Mann School in the Bronx, NY.

Within the community, Justice Goodman served on the Board of Directors for the Houston Area Urban League and on Advisory Boards for the Blaffer Gallery (as Chairman), the University of Houston’s College of Arts & Sciences (as Chairman), and the Jesse H. Jones School of Business at Texas Southern University.

Justice Goodman is married to Gastonia Teresa Pumarejo Goodman. They have four grown children, and they celebrated their 40^thwedding anniversary in 2018. They have resided in Houston since 1985 and before that lived in Tyler, TX, and Amarillo, TX.