Making Attorney Misconduct Pay, Texas Supreme Court Shows the Way: A Critical Comment on Bethel v. Quilling (Tex. 2020) (rejecting criminal-conduct exception to "attorney immunity" in Texas)

Texas Supreme Court continues to exempt an entire industry (the legal profession) from civil liability; lets attorneys and law firms profit from lawsuits brought to hold them accountable for wrongdoing. 

Bethel v. QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C., No. 18-0595 (Tex. Feb. 21, 2020) (Opinion by Justice John P. Devine) (holding that Rule 91a was properly applied to dismiss lawsuit on pleadings alleging that defendant attorneys and law firm committed fraud, trespass to chattel, and conversion, based on the affirmative defense of attorney immunity).

FROM LAW LICENCE TO LICENSE TO LIE AND CHEAT

The SCOTX previously blessed Texas attorneys’ invocation of the Texas Citizens Participation Act (TCPA) to quash lawsuits against them, and collect attorney’s fees from those who seek to hold them accountable for their misdeeds. See Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018); also see Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015) (holding, as a general rule, that Texas attorneys are immune from civil liability to non-clients for actions taken in connection with representing a client in litigation.).  

The Texas Supreme Court has now gone a step further in blessing wayward attorneys’ and law firms' utilization of Rule 91a to dismiss such civil suits.

TRCP 91a - THE "FRIVOLOUS SUIT" DISMISSAL RULE 

Rule 91a of the Texas Rules of Civil Procedure is a “tort reform” rule that authorizes a defendant to seek early dismissal of a lawsuit alleged to have no merit, and allows the defendant to stick the plaintiff with fees incurred in procuring the dismissal.

Traditionally, a dismissal on an affirmative defense required a motion for summary judgment by the defendant, for which the Texas Rules of Civil Procedure authorizes no fee recovery. Traditionally, the defendant had the burden to prove the affirmative defense, rather than the plaintiff, and had to do so with competent evidence under the summary judgment standard.   

All that is now history when a victim of attorney malfeasance sues the perpetrator. Thanks to the jurisprudential protectionism the Texas High Court has bestowed upon its most captive audience, Texas attorneys now have the right to terminate lawsuits against them by flashing their bar card—as it were. They can take advantage of the status-based civil immunity that the Texas Supreme Court has seen fit to grant them, and can even benefit from their crimes.  

Devine words:  

“Criminal conduct is not categorically excepted from the protections of attorney civil immunity when the conduct alleged is connected with representing a client in litigation”

RULE BY LAWYERS, FOR LAWYERS, AND TO FILL THE POCKETS OF LAWYERS 

How did the nine Republican jurists on the state court of last resort pull this off? 

They did so by engaging in a sophisticated form of legislating from the bench: Transforming the common-law doctrine of judicial proceedings privilege (no defamation liability for statements made in a judicial proceeding) into a broad-sweeping and categorical attorney immunity; - an immunity that shields Texas attorneys from civil liability to non-clients--i.e. the rest of society--and lets them lie, cheat, and engage in fraud so long as they lie, cheat, and engage in fraud to advance the interests of a client. So long as they do it while practicing their once-noble profession. The Supremes originally amended the doctrine by judicial fiat in Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015), and now cite that case -- i.e. themselves -- as legal authority. 

  

But the Supremes did not stop at creating a blanket immunity for the industry they are supposed to regulate and hold to high professional and ethical standards. As seen in Bethel v. Quilling Texas attorneys who engage in illegal and unethical conduct in their work on behalf of clients can count on being rewarded. Thanks to the Texas Supreme Court immunity grant and rule 91a approval, the worst in the bar stand to profit some more from their malfeasance if they get sued. Indeed, they can now count themselves lucky to be sued because they will get an opportunity to run up attorney's fees and shift them to the victims of the misconduct who were brazen enough to fight back and take them to court.
    

Thanks to the common-law generosity of the SCOTX, Texas attorneys can now utilize Rule 91a to stick it to their victims; -- just in case the amended TCPA doesn’t do the trick.

  

It’s tort reform plus.

Bethel v. Quilling Dismissal Order (above) 

and Attorney Fee Award Order to the Defendants (below)

IN THE SUPREME COURT OF TEXAS

444444444444

NO. 18-0595

444444444444

CHERLYN BETHEL, INDIVIDUALLY AND AS THE REPRESENTATIVE OF THE ESTATE

OF RONALD J. BETHEL, DECEASED, PETITIONER,

v.

QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C., AND JAMES H.

MOODY, III, RESPONDENTS

4444444444444444444444444444444444444444444444444444

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS

4444444444444444444444444444444444444444444444444444

Argued November 7, 2019

JUSTICE DEVINE delivered the opinion of the Court.

This case presents two issues: first, whether an affirmative defense may be the basis of a

Rule 91a motion to dismiss; and second, whether the alleged destruction of evidence is an action

“taken in connection with representing a client in litigation,” thus entitling the respondent attorneys

to attorney immunity. We join the court of appeals in concluding that Rule 91a permits dismissal

based on an affirmative defense. See 581 S.W.3d 306, 310 (Tex. App.—Dallas 2018). We also

agree with the court of appeals that, on the facts of this case, the respondent attorneys are entitled

to attorney immunity. See id. at 311-13. Accordingly, we affirm.

I

Petitioner Cherlyn Bethel’s husband, Ronald, tragically died in a car accident while towing

a trailer. Bethel sued the trailer’s manufacturer, alleging that the trailer’s faulty brakes caused the

accident. Law firm Quilling, Selander, Lownds, Winslett & Moser, as well as attorney James

“Hamp” Moody (collectively, Quilling), represented the manufacturer in the lawsuit. Bethel alleges

that Quilling intentionally destroyed key evidence in the case by disassembling and testing the

trailer’s brakes before Bethel had the opportunity to either examine them or document their original

condition.

Bethel sued Quilling for, among other things, fraud, trespass to chattel, and conversion.1

Quilling moved to dismiss the case under Texas Rule of Civil Procedure 91a, arguing that it was

entitled to attorney immunity as to all of Bethel’s claims. The trial court granted Quilling’s motion

and dismissed the case. Bethel appealed, arguing that (1) affirmative defenses, such as attorney

immunity, cannot be the basis of a Rule 91a dismissal, and (2) attorney immunity did not protect

Quilling’s conduct.

The court of appeals affirmed. 581 S.W.3d 306. First, the court of appeals concluded that

attorney immunity could be the basis of a Rule 91a motion because the allegations in Bethel’s

pleadings established Quilling’s entitlement to the defense. Id. at 309–10. Second, the court of

appeals reasoned that Quilling’s actions, while possibly wrongful, were the “kinds of actions” that

are part of an attorney’s duties in representing a client in litigation. Id. at 311–13. Thus, the court

1 Bethel also sued the experts who conducted Quilling’s examination but later nonsuited them to perfect this appeal. 581 S.W.3d 306, 309.

PAGE 2

of appeals held that attorney immunity barred all of Bethel’s claims.2

II

Texas Rule of Civil Procedure 91a provides that a party “may move to dismiss a cause of

action on the grounds that it has no basis in law or fact.” TEX. R. CIV. P. 91a.1. “A cause of action

has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from

them, do not entitle the claimant to the relief sought.” Id. “A cause of action has no basis in fact

if no reasonable person could believe the facts pleaded.” Id. In ruling on a Rule 91a motion, a court

“may not consider evidence . . . and must decide the motion based solely on the pleading of the

cause of action.” TEX. R. CIV. P. 91a.6. We review the merits of a Rule 91a motion de novo. City

of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam).

Attorney immunity is an affirmative defense. Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex.

2018). Bethel reasons that affirmative defenses are generally waived unless they are raised in the

defendant’s pleading. TEX. R. CIV. P. 94. Thus, Bethel contends, a court must look to the

defendant’s pleading to determine whether an affirmative defense is properly before the court.

However, Rule 91a.6 expressly limits the court’s consideration to “the pleading of the cause of

action,” together with a narrow class of exhibits. TEX. R. CIV. P. 91a.6. Because only a plaintiff’s

pleading is a “pleading of a cause of action,” Bethel argues that courts may not consider a

defendant’s pleading in making a Rule 91a determination. Bethel therefore concludes that an

affirmative defense can never be the basis of a Rule 91a motion.

2  The court of appeals also concluded that Bethel perhaps waived the Rule 91a argument, but the court addressed the merits of the argument anyway. 581 S.W.3d at 309. In this Court, the parties agree that Bethel did not waive the argument and urge the Court to reach the Rule 91a question on the merits.

PAGE 3

We disagree. We interpret rules of procedure according to our usual principles of statutory

interpretation. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 579 (Tex. 2012). We therefore begin

with the text of the rule and construe it according to its plain meaning. Id. However, Texas Rule

of Civil Procedure 1 provides that the rules of procedure “shall be given a liberal construction” to

further the rules’ objective of “obtain[ing] a just, fair, equitable[,] and impartial adjudication” of

parties’ rights. TEX. R. CIV. P. 1. We thus apply our general canons of statutory interpretation in

light of this specific guiding rule. See, e.g., In re Bridgestone Ams. Tire Operations, LLC, 459

S.W.3d 565, 569 (Tex. 2015).

Bethel urges us to focus on the rule’s requirement that the court “must decide the motion

based solely on the pleading of the cause of action.” TEX. R. CIV. P. 91a.6 (emphasis added). As

Bethel sees it, this provision prohibits a court deciding a Rule 91a motion from considering anything

other than the plaintiff’s pleading. Of course, it is not possible to “decide the motion” without

considering the motion itself, in addition to the plaintiff’s pleading. Additionally, the rule provides

that the court may hold a hearing on the motion. TEX.R.CIV. P. 91a.6. Thus, the rule contemplates

that a court may consider at least the substance of the Rule 91a motion and arguments at the hearing,

in addition to the plaintiff’s pleadings, in deciding the motion. Bethel’s proffered interpretation

would render these aspects of the rule meaningless, preventing a court from considering even the

substance of a Rule 91a motion or a response in deciding whether to dismiss the case. See Silguero

v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019) (noting that in interpreting a statute, we avoid

“absurd or nonsensical results” (quotations omitted)). Bethel’s overly narrow interpretation of one

piece of the rule simply does not comport with the text of the rule as a whole. See id. (“The statutory

PAGE 4

words must be determined considering the context in which they are used, not in isolation.”).

Construing the rules of procedure liberally, as Rule 1 requires us to do, we conclude that

Rule 91a limits the scope of a court’s factual, but not legal, inquiry. We begin with the text of the

rule. Ford Motor Co., 363 S.W.3d at 579. Rule 91a provides that “the court may not consider

evidence in ruling on the motion and must decide the motion based solely on the pleading of the

cause of action.” TEX.R.CIV. P. 91a.6 (emphasis added). Thus, the rule contrasts “the pleading of

the cause of action” with “evidence,” not the defendant’s pleading. This dichotomy indicates that

the limitation is factual, rather than legal, in nature. Further, the rule provides that a court may

dismiss a claim as lacking a basis in law “if the allegations, taken as true, together with inferences

reasonably drawn from them, do not entitle the claimant to the relief sought.” TEX.R.CIV.P. 91a.1.

Again, the rule limits the scope of the court’s factual inquiry—the court must take the “allegations”

as true—but does not limit the scope of the court’s legal inquiry in the same way. Rather, the rule

provides that a claim lacks a basis in law if the facts alleged “do not entitle the claimant to the relief

sought.” Id. The rule does not limit the universe of legal theories by which the movant may show

that the claimant is not entitled to relief based on the facts as alleged.

This interpretation accounts for the parts of the rule that allow courts to consider the

substance of Rule 91a motions and hearings in addition to the plaintiff’s pleadings. See TEX.R.CIV.

P. 91a.6. Both motions and hearings are avenues by which the movant may present legal theories

as to why the claimant is not entitled to relief. Thus, the legal-factual distinction avoids violence

PAGE 5

to the text of the rule as a whole while preserving the rule’s intended limitation on factual inquiries.3

See Silguero, 579 S.W.3d at 59 (“In interpreting statutes, we must look to the plain language,

construing the text in light of the statute as a whole.”).

Finally, Rule 1 directs us to consider expedition and cost to the parties and the state in

construing rules of procedure. TEX. R. CIV. P. 1 (“To the end that this objective may be attained

with as great expedition and dispatch and at the least expense both to the litigants and to the state

as may be practicable, these rules shall be given a liberal construction.”). Our interpretation of Rule

91a serves these objectives by allowing courts to dismiss meritless cases before the parties engage

in costly discovery. Forcing parties to conduct discovery when the claimant’s allegations

conclusively establish the existence of an affirmative defense would be a significant waste of state

and private resources.

In sum, Rule 91a limits a court’s factual inquiry to the plaintiff’s pleadings but does not so

limit the court’s legal inquiry. In deciding a Rule 91a motion, a court may consider the defendant’s

pleadings if doing so is necessary to make the legal determination of whether an affirmative defense

is properly before the court. We therefore conclude that Rule 91a permits motions to dismiss based

on affirmative defenses “if the allegations, taken as true, together with inferences reasonably drawn

from them, do not entitle the claimant to the relief sought.” TEX.R.CIV. P. 91a.1. Of course, some

affirmative defenses will not be conclusively established by the facts in a plaintiff’s petition.

3 Bethel also argues that we should read Rule 91a narrowly because previous versions of the rule included a mandatory fee-shifting provision. However, the fee-shifting provision is no longer mandatory and does not affect our analysis. See TEX. R. CIV. P. 91a.7 (providing that a court “may award” costs and fees to the prevailing party).

PAGE 6

Because Rule 91a does not allow consideration of evidence, such defenses are not a proper basis for

a motion to dismiss.

In this case, the allegations in Bethel’s petition show that Bethel is not entitled to relief. In

its Rule 91a motion, Quilling simply argued that the facts—as Bethel pleaded them—entitled

Quilling to attorney immunity and thus dismissal under Rule 91a. The trial court did not need to

look outside Bethel’s pleadings to determine whether attorney immunity applied to the alleged facts.

See Youngkin, 546 S.W.3d at 681–83 (holding that a defendant was “entitled to dismissal” based on

attorney immunity, despite the defendant’s failure to support his defense with evidence, because “the

necessary facts [were] not in dispute”); Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, 567

S.W.3d 725, 736–41 (Tex. 2019) (considering a federal preemption affirmative defense in the

context of a Rule 91a motion); cf. AC Interests, L.P. v. Tex. Comm’n on Envtl. Quality, 543 S.W.3d

703, 706 (Tex. 2018) (noting that a Rule 91a motion is not the proper vehicle for dismissal based

on untimely service of process because the court has to look beyond the pleadings to determine

whether process was, in fact, untimely). Taking Bethel’s allegations as true, the trial court

determined that Bethel was not entitled to the relief sought because attorney immunity barred

Bethel’s claims.4

 That is enough for dismissal under Rule 91a.

4 Bethel further argues that, even if an affirmative defense is established on the face of a plaintiff’s pleading, dismissal is improper because there may be additional facts that negate the affirmative defense. However, Bethel has yet to articulate what kind of additional facts would negate attorney immunity in this case. If a plaintiff believes that there are additional facts that would negate an affirmative defense in a Rule 91a motion, the plaintiff may amend her pleadings accordingly. See TEX. R. CIV. P. 63 (allowing amendment in most circumstances); TEX. R. CIV. P. 91a.5(b) (contemplating amendment after a Rule 91a motion is filed).

PAGE 7

III

We next turn to the question of attorney immunity. In Cantey Hanger, LLP v. Byrd, we held

that, “as a general rule, attorneys are immune from civil liability to non-clients for actions taken in

connection with representing a client in litigation.” 467 S.W.3d 477, 481 (Tex. 2015) (quotations

omitted). The immunity inquiry “focuses on the kind of conduct at issue rather than the alleged

wrongfulness of said conduct.” Youngkin, 546 S.W.3d at 681 (emphasis in original). Under this

analysis, “a lawyer is no more susceptible to liability for a given action merely because it is alleged

to be fraudulent or otherwise wrongful.” Id. In this case, however, Bethel urges us to recognize an

exception where a third party alleges that an attorney engaged in criminal conduct during the course

of litigation.5

We recently declined to recognize fraud as an exception to the attorney-immunity doctrine.

In Cantey Hanger, 467 S.W.3d at 484–86, we concluded that a law firm was shielded by attorney

immunity for preparing documents ancillary to a divorce decree, even though the firm allegedly

acted fraudulently in drafting the documents. “An attorney is given latitude to pursue legal rights

that he deems necessary and proper precisely to avoid the inevitable conflict that would arise if he

were forced constantly to balance his own potential exposure against his client’s best interest.” Id.

at 483 (citations and quotations omitted). We recognized that a general fraud exception to attorney

immunity would “significantly undercut” this purpose. Id. Thus, we concluded that “[m]erely

labeling an attorney’s conduct ‘fraudulent’ does not and should not remove it from the scope of

5  Bethel’s briefing frames the issue differently, arguing that “[c]riminal conduct is not ‘an exception to the attorney-immunity doctrine’—it is simply not the type of civil wrong to which the doctrine applies.” However the issue is framed, though, Bethel is asking us to categorically exempt allegedly criminal conduct from attorney immunity.

PAGE 8

client representation or render it ‘foreign to the duties of an attorney.’” Id. Instead, our focus

remained on whether the attorney’s complained-of conduct fell within “the scope of an attorney’s

legal representation of his client.” Id. at 484.

The same reasoning applies here. Under Bethel’s proposed exception, a plaintiff could avoid

the attorney-immunity doctrine by merely alleging that an attorney’s conduct was “criminal.” This

would “significantly undercut” the protections of attorney immunity by allowing non-client plaintiffs

to sue opposing counsel so long as the plaintiffs alleged that the attorney’s actions were criminal in

nature. Id. at 483. We therefore conclude that criminal conduct is not categorically excepted from

the protections of attorney civil immunity when the conduct alleged is connected with representing

a client in litigation. Accord Troice v. Greenberg Traurig, L.L.P., 921 F.3d 501, 507 (5th Cir. 2019)

(making an Erie guess that, under Texas law, attorney immunity “can apply even to criminal acts

so long as the attorney was acting within the scope of representation”).

We have long recognized, however, that attorney immunity is not boundless. See Poole v.

Hous. & T.C. Ry. Co., 58 Tex. 134 (1882) (holding that attorney immunity did not protect actions

taken “for the purpose and with the intention of consummating [] fraud upon [the] appellant”). An

attorney is not immune from suit for participating in criminal or “independently fraudulent

activities” that fall outside the scope of the attorney’s representation of a client. Cantey Hanger, 467

S.W.3d at 483. For example, immunity does not apply when an attorney participates in a fraudulent

business scheme with her client or knowingly facilitates a fraudulent transfer to help her clients

avoid paying a judgment. Id. at 482. Immunity also does not apply when an attorney’s actions do

not involve “the provision of legal services”—for example, when an attorney assaults opposing

counsel. Id. Certainly, there is a wide range of criminal conduct that is not within the “scope of

PAGE 9

client representation” and therefore “foreign to the duties of an attorney.” Id. at 483. Thus, while

we decline to recognize a per se criminal-conduct exception, an attorney’s allegedly criminal

conduct may fall outside the scope of attorney immunity. See Troice, 921 F.3d at 507 (“We

conclude that criminal conduct does not automatically negate immunity, but in the usual case it will

be outside the scope of representation.”). We also note that nothing in our attorney-immunity

jurisprudence affects an attorney’s potential criminal liability if the conduct constitutes a criminal

offense. And other remedies—such as sanctions, spoliation instructions, contempt, and disciplinary

proceedings—may be available even if immunity shields an attorney’s wrongful conduct. See

Cantey Hanger, 467 S.W.3d at 482.

With these principles in mind, and taking Bethel’s factual allegations as true, we conclude

that Quilling’s complained-of actions are the kind of actions that are “taken in connection with

representing a client in litigation.” Cantey Hanger, 467 S.W.3d at 481. Bethel’s petition alleges

that Quilling destroyed evidence in the underlying suit by: (1) disassembling the trailer’s brakes;

(2) failing to “establish any testing/inspection protocol at the time of the disassembly”; (3) failing

to document the disassembly on video; (4) changing the position of the brakes’ adjuster screws to

facilitate the disassembly; (5) actuating some of the brakes to test them; and (6) spilling oil on the

brakes during disassembly. Thus, at bottom, Bethel takes issue with the manner in which Quilling

examined and tested evidence during discovery in civil litigation while representing Bethel’s

opposing party. These are paradigmatic functions of an attorney representing a client in litigation.

Bethel nevertheless contends that Quilling’s conduct—criminal destruction of personal

property—is not the type of conduct that is part of client representation. This certainly could be true

in some circumstances. For instance, if an attorney destroyed a non-client’s property that was

PAGE 10

unrelated to litigation, then that conduct likely would not involve “the provision of legal services,”

and the attorney would not be entitled to immunity. See Cantey Hanger, 467 S.W.3d at 482.

Immunity also may not protect the intentional destruction of evidence—for instance, if Quilling had

simply taken a sledgehammer to the brakes. Such actions do not involve the provision of legal

services and therefore cannot fall within the scope of client representation. See id. Here, however,

Quilling acted in conjunction with its experts to examine and test key evidence in the underlying

suit. It may well be, as Bethel alleges, that Quilling’s actions resulted in the destruction of evidence.

But again, for civil-immunity purposes, our analysis looks to the type of conduct, not whether that

conduct was wrongful. Youngkin, 546 S.W.3d at 681. Because Quilling’s allegedly wrongful

conduct involved the provision of legal services—specifically, examining and testing relevant

evidence—that conduct is protected by attorney immunity.

Based on the facts alleged in Bethel’s petition, the courts below correctly concluded that

attorney immunity shields Quilling from civil suit by a third party, whom Quilling did not represent,

for conduct connected to Quilling’s representation of its client in litigation. Accordingly, the

judgment of the court of appeals is affirmed.

________________________________________

John P. Devine

Justice

OPINION DELIVERED: February 21, 2020

11

Fifth Circuit Erie Too: Civil Immunity for Criminal Conduct for Texas Attorneys 

18-0595 CHERLYN BETHEL, INDIVIDUALLY, AND AS THE REPRESENTATIVE OF THE ESTATE OF RONALD J. BETHEL, DECEASED v. QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C., AND JAMES H. MOODY, III; from Dallas County; 5th Court of Appeals District (05-17-00850-CV, 581 SW3d 306, 05-30-18).

The Court affirms the court of appeals' judgment.  

581 S.W.3d 306 (2018)

Cherlyn BETHEL, Individually and as the representative of the Estate of Ronald J. Bethel, Deceased, Appellant
v.
QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C., and James H. Moody, III, Appellees

No. 05-17-00850-CV.

Court of Appeals of Texas, Dallas.

Opinion Filed May 30, 2018.    

On Appeal from the 116th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-17-03487.

Affirmed.

Morgan McPheeters, Frederick Leighton Durham, Jessica Foster, Thad D. Spalding, Kelly, Durham & Pittard, LLP, Andrew Galen Counts, E. Todd Tracy, Stewart Donavan Matthews, The Tracy Law Firm, Dallas, TX, for Cherlyn Bethel, Individually and as the Representative of the Estate of Ronald J. Bethel, Deceased.

Marcie L. Schout, Quilling, Selander, Lownds, Winslett & Moser, P.C., Dallas, TX, for Quilling, Selander, Lownds, Winslett & Moser, P.D.

Before Justices Francis, Fillmore, and Whitehill.

308*308 MEMORANDUM OPINION

Opinion by Justice Francis. 

Cherlyn Bethel, individually and as the representative of the Estate of Ronald J. Bethel, sued opposing counsel for conduct involving an expert inspection of a trailer brake assembly that is the focus of a separate wrongful death action. Appellees Quilling, Selander, Lownds, Winslett & Moser, P.C., and James H. Moody, III, filed a motion to dismiss under Texas Rule of Civil Procedure 91a, asserting the affirmative defense of attorney immunity. The trial court granted the motion, dismissed Bethel's suit, and awarded attorney's fees to appellees. In two issues, Bethel challenges the ruling on appeal. We affirm.

Bethel's petition in this suit alleged the following: Bethel's husband, Ron, died following an accident that Bethel contends was caused by defective brakes in the trailer he was towing. Bethel sued the manufacturer of the trailer, and appellees represent the manufacturer in the wrongful death suit. According to Bethel, during the course of that litigation, appellees or their experts, with appellees' "knowledge and at their direction and supervision," disassembled the brakes and destroyed their condition. Bethel filed this lawsuit against appellees and their experts, alleging fraud, tortious interference with a contract, spoliation of evidence, "conspiracy to deny [Bethel] the pursuit of justice," trespass to chattel, conversion, negligence, and gross negligence. She sought damages for the destruction of the evidence.

Appellees filed a motion to dismiss the lawsuit, arguing there was no basis in law or fact because the claims were barred by attorney immunity. Bethel responded to the motion, arguing appellees' conduct constituted 309*309 criminal destruction of property, and Texas law is unresolved as to whether the attorney immunity doctrine applies to criminal conduct. In addition, Bethel amended her petition to add nine paragraphs addressing whether the attorney immunity doctrine applied.

The trial court granted the motion, dismissed Bethel's claims with prejudice, and awarded appellees $7,480 in attorney's fees as well as contingent appellate attorney's fees. After Bethel nonsuited her claims against the engineers and their firms, she appealed the trial court's order dismissing her claims against appellees.

Under rule 91a, a party may move to dismiss a cause of action on the grounds it has no basis in law or fact. TEX. R. CIV. P. 91a.1. "A cause of action has no basis in law if the allegations, taken as true, together with the inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Id. In ruling on a 91a motion, the trial court may not consider evidence and must decide the motion "solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59." TEX. R. CIV. P. 91a.6; Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-00055-CV, 2016 WL 164528, at *4 (Tex. App.-Dallas Jan. 14, 2016, pet. denied) (mem. op.). Whether a cause of action has any basis in law is a legal question we review de novo. See City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam). We base our review on the allegations in the live petition and any attachments, and we accept as true the factual allegations. Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.-Houston [14th] 2014, pet. denied).

In her first issue, Bethel asserts the plain language of rule 91a limits the scope of a court's review to the plaintiff's pleading. Because an affirmative defense is not part of a plaintiff's pleading, she argues, it cannot serve as a basis for dismissal. Consequently, she concludes, the trial court erred by granting appellees' motion on the basis of the affirmative defense of attorney immunity.

Initially, we note that Bethel did not present this particular issue to the trial court in her response to the motion to dismiss; rather, her response argued only that appellees' conduct constituted a crime for which attorney immunity should not apply. Preservation of error reflects important prudential considerations recognizing that the judicial process benefits greatly when trial courts have the opportunity to first consider and rule on error. Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014). Affording courts this opportunity conserves judicial resources and promotes fairness by ensuring that a party does not neglect a complaint at trial and raise it for the first time on appeal. Id. Because Bethel did not present this issue to the trial court below, we conclude it is waived.

But even assuming this issue is properly before us,^[1] Bethel acknowledges this Court, as well as others, have upheld rule 91a dismissals on the basis of affirmative defenses. See Highland Capital, 2016 WL 164528, at *4-6 (attorney immunity); Galan Family Tr. v. State, No. 03-15-00816-CV, 2017 WL 744250, at *3 (Tex. App.-Austin Feb. 24, 2017, pet. denied) (mem. op.) (statute of limitations); Guzder v. Haynes & Boone, LLP, No. 01-13-00985-CV, 2015 WL 3423731, at *7 (Tex. App.- 310*310 Houston [1st Dist.] May 28, 2015, no pet.) (mem. op.) (attorney immunity); GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754-55 (Tex. App.-Beaumont 2014, pet. denied) (immunity from suit under the Communications Decency Act). Nevertheless, she argues these cases apply a "mistaken interpretation" of the rule and urges us to follow Bedford Internet Office Space, LLC v. Texas Insurance Group, Inc., 537 S.W.3d 717 (Tex. App.-Fort Worth 2017, pet. filed). There, the Fort Worth court concluded the plain language of the rule required trial courts to "wear blinders to any pleadings except the pleading of the cause of action'" and determined the court erred by dismissing claims on the basis of the statute of limitations, which would require the court to look beyond the plaintiff's pleadings and review the defendant's pleadings. 537 S.W.3d at 720. We decline Bethel's invitation for two reasons.

First, as stated above, this Court previously applied rule 91a to the affirmative defense of attorney immunity. See Highland Capital, 2016 WL 164528, at *4-6. In Highland Capital, we considered the plaintiff's pleadings and concluded that, meritorious or not, the type of conduct alleged fell squarely within the scope of the law firm's representation of its client. 2016 WL 164528, at *4. We therefore concluded the trial court did not err in granting the law firm's rule 91a motion to dismiss the non-client's claims for theft, breach of the duty of confidentiality, conversion, tortious interference with contract, and civil conspiracy to commit theft, extortion, slander, and disparagement based on attorney immunity. Id.

Second, the rationale underpinning Bethel's argument and the Bedford Internet case is that rule 91a limits a court's consideration to the plaintiff's pleading of the cause of action. Even if we were to assume the correctness of this argument, Bethel's live pleading included nine paragraphs on why attorney immunity does not shield appellees from her suit. In particular, she alleged she owned the trailer and its component parts; appellees knew she owned them and that they were critical to her claim against the manufacturer; appellees did not obtain her consent to conduct destructive testing; she did not consent to such testing; and appellees "intentionally and knowingly directed the destructive disassembly, testing, and examination of the trailer brakes." She alleged appellees were "seasoned veterans" who were familiar with the standards governing forensic engineering and product liability litigation and were aware "with reasonable certainty" that the disassembly, testing, and examination of the trailer brakes would damage or destroy the brakes. Finally, Bethel alleged appellees' acts and omissions constituted criminal tampering with evidence, given they were aware she had filed a civil lawsuit against the trailer's manufacturer and they altered or destroyed the brakes with the intent to impair the "verity, legibility, or availability of the trailer brakes as evidence" in the suit. Because these allegations are contained in Bethel's live pleading, the trial court would not have needed to look beyond Bethel's petition to consider the issue of attorney immunity. We overrule the first issue.

In her second issue, Bethel argues appellees cannot establish attorney immunity solely from the facts alleged on the face of her petition. She contends Texas law does not shield an attorney from the consequence of "illegal conduct." More specifically, she acknowledges that appellees' investigation of the trailer brakes would ordinarily fall within an attorney's role in representing his client, but appellees' actions "went far beyond obtaining, retaining, reviewing, or analyzing evidence." She argues appellees conducted 311*311 destructive testing they knew was reasonably certain to cause this result and proceeded even though they knew they had no consent from her and destroyed property owned by her. She equates appellees' actions with conduct that is clearly "foreign to the duties of an attorney," such as assaulting opposing counsel in trial. We cannot agree.

We begin with the Supreme Court's decision in Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015), which controls our analysis of attorney immunity. See Youngkin v. Hines, 546 S.W.3d 675, 681-82 (Tex. 2018). In Cantey Hanger, the Texas Supreme Court explained the attorney immunity defense is intended to ensure "loyal, faithful, and aggressive representation by attorney's employed as advocates." Cantey Hanger, 467 S.W.3d at 481 (quoting Mitchell v. Chapman, 10 S.W.3d 810, 812 (Tex. App.-Dallas 2000, pet. denied)). An attorney is immune from liability to non-clients for conduct within the scope of his representation of his clients. Youngkin, 546 S.W.3d at 681-82; Cantey Hanger, 467 S.W.3d at 481. In other words, an attorney may be liable to non-clients only for conduct outside the scope of his representation of his client or for conduct foreign to the duties of a lawyer. Youngkin, 546 S.W.3d at 681-82; Cantey Hanger, 467 S.W.3d at 482.

In determining the immunity issue, the inquiry focuses on the kind of conduct at issue rather than the alleged wrongfulness of said conduct. Youngkin, 546 S.W.3d at 681-82; Cantey Hanger, 467 S.W.3d at 482. Even conduct that is "wrongful in the context of the underlying suit" is not actionable if it is "part of the discharge of the lawyer's duties in representing his or her client." Cantey Hanger, 467 S.W.3d at 481. Thus, a plaintiff's characterization of a firm's conduct as fraudulent or otherwise wrong is immaterial to our evaluation of the immunity defense. Youngkin, 546 S.W.3d at 681-82; If an attorney proves his conduct is "part of the discharge of the duties to his client," immunity applies. Cantey Hanger, 467 S.W.3d at 484; Highland Capital, 2016 WL 164528, at *3.

At the same time, attorneys "are not protected from liability to non-clients for their actions when they do not qualify as `the kind of conduct in which an attorney engages when discharging his duties to his client.'" Cantey Hanger, 467 S.W.3d at 482 (quoting Dixon Fin. Servs. v. Greenberg, Peden, Siegmyer & Oshman, P.C., No. 01-06-00696-CV, 2008 WL 746548, at *9 (Tex. App.-Houston [1st] Mar. 20, 2008, pet. denied)) (mem. op. on reh'g). Examples of attorney conduct that would not be protected include participating in a fraudulent business scheme with a client, knowingly assisting a client with a fraudulent transfer to avoid paying a judgment, theft of goods or services on a client's behalf, and assaulting opposing counsel during trial. Youngkin, 546 S.W.3d at 682-83; Cantey Hanger, 467 S.W.3d at 482-83.

Here, Bethel's third amended petition alleged appellees permitted or conducted the destruction of key components of the trailer's brakes by permitting, directing, or taking the following action or inaction:

a. Disassembly of the brakes, which was destructive in nature and by itself. Essentially everything about the brakes has changed because of the inspection.

b. Failed to establish any testing/inspection protocol at the time of the disassembly.

c. Failed to video document the brake disassembly being done, despite the fact that video cameras were present (videos of the brake operation were done by [engineer] Kelly Adamson).

312*312 d. Manipulation of the adjuster screw for each brake to facilitate drum removal. The original condition and position of the adjuster screws now cannot be known.

Bethel alleged appellees (1) failed to notify her or her counsel of their intent to do a destructive examination and did not have an agreed-upon protocol; (2) intended to cause the disassembly and destruction of the brakes; and (3) altered or destroyed the trailer brakes with the intent to "impair the verity, legibility, or availability" of the trailer brakes as evidence in the pending action against the manufacturer. Bethel asserted that because she was not given notice of the inspection, she did not have an agent present.

Bethel's allegations focus on how the inspection was conducted and contend appellees' actions were criminal. She asserts that "intentionally destroying property belonging to another and willfully concealing from Texas courts evidence crucial to resolving claims" fall outside the immunity doctrine. But merely labeling an attorney's conduct wrongful does not and should not remove it from the scope of representation or render it `foreign to the duties of a lawyer. Id. As the court said in Cantey Hanger, other mechanisms are in place to discourage and remedy such conduct, such as sanctions, contempt, and attorney disciplinary proceedings. Id. at 482.

Focusing on the type of conduct alleged here — and not the nature of the conduct — we conclude these alleged acts do not constitute conduct "foreign to the duties of an attorney" in representing a client. The complained-of actions involve the investigation of the trailer brakes, and more specifically the scheduling of the inspection, the planning of and participation in the expert inspection, and the testing and examination of those brakes, in a wrongful death action. These are the types of action taken to facilitate the rendition of legal services to a client in such a case. This case simply does not rise to the level of those examples of misconduct cited in Cantey Hanger that fall outside the immunity doctrine. See Cantey Hanger, 467 S.W.3d at 482.

We find support for our conclusion in this Court's previous opinion in Highland Capital. There, the plaintiff also argued the law firm's actions were criminal. Highland sued opposing counsel alleging the client-employee stole documents containing confidential and privileged information and the law firm then tried to "extort Highland" through a "series of criminal acts" with respect to the documents. Highland Capital, 2016 WL 164528, at *1. Highland alleged the law firm reviewed, copied, and analyzed information it knew to be stolen and proprietary in furtherance of its scheme to extort, slander, and disparage Highland; threatened to disclose the information and disparage Highland if a monetary sum was not paid; refused to return or stop using the information after receiving written notice of the nature of the stolen materials; lied to Highland's counsel about the scope of the theft and stolen material in the firm's possession; and knowingly and actively facilitated the employee's wrongful disclosure of the information and then lied to Highland and the court regarding the extent to counsel's involvement. Id. Highland characterized the law firm's actions as "criminal, tortious, and malicious." Id. at *6.

This Court, however, looked at the actions taken by the law firm — acquiring documents from a client that were the subject of litigation against the client; reviewing, copying, retaining and analyzing the documents; making demands on the client's behalf; advising a client on a course of action; and threatening to disclose the documents if demands were not met — and 313*313 concluded they were the "kinds of actions" that were part of an attorney's duties in representing a client in "hard-fought litigation." Id.

As in Highland Capital, we conclude the type of conduct alleged by Bethel falls within the scope of appellees' representation of the manufacturer of the trailer. Accepting Bethel's factual allegations as true, appellees' conduct "involves acts or omissions undertaken as part of the discharge of the attorney's duties as counsel to an opposing party." See id. We therefore conclude the trial court did not err by granting appellees' rule 91a motion to dismiss Bethel's claims. We overrule the second issue.

We affirm the trial court's order.

[1] Courts may not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the court. Miller v. JSC Lake Highlands Ops., LP, 536 S.W.3d 510, 513 n.5 (Tex. 2017). Thus, to the extent Bethel's assertion is an argument as opposed to an issue, we address it.

LEGAL CITATION FOR DALLAS COURT OF APPEALS ATTORNEY IMMUNITY RULING:  Bethel v. Quilling, Selander, Lownds, Winslett & Moser P.C., No. 05-17-00850-CV, 2018 WL 2434410 (Tex. App.-Dallas May 30, 2018, pet. granted) (mem. op.)

RELATED LEGAL ETHICS ARTICLE: 

Steinberg, Marc I. and Weissler, Logan, The Litigation Privilege as a Shelter for Miscreant Legal Counsel (2018). Oregon Law Review, Vol. 97, No. 1, 2018; SMU Dedman School of Law Legal Studies Research Paper No. 390. Available at SSRN: https://ssrn.com/abstract=3194765

Neese v Lyon: Civil Barratry: Dallas Court of Appeals addresses multiple complex legal issues in clients' suit against attorneys seeking to void attorney fee agreement based on illegal solicitation after pipeline explosion

     
UPDATE ON NEESE VS. LYON: On September 4, 2015, the lawfirm defendants filed motions for rehearing and for reconsideration en banc. Both focus on the issue of estoppel, pointing out that barratrous contingency-fee agreements are voidable, rather than void, and that the clients are estopped from disavowing the contract after the other party has fully performed. The lawfirm defendants argue that the Dallas Court of Appeal's decision conflicts with decisions of other courts of appeals, with its own precedent, and with a Texas Supreme Court case that stands for the proposition that the estoppel doctrine applies to all voidable contracts.

The motions can be accessed through the hotlinks on the docket sheet. No response is on file as of 9/24/2015.

   

 Fifth Court of Appeals addresses complex issues in appeal from summary judgment in suit by tort clients who sued their lawyers for barratry  

      
CARL "STACEY" NEESE, INDIVIDUALLY AND AS NEXT FRIEND OF L.N., C.N., L.N., AND C.N., JAMES NEESE, DAVID NEESE, JENNIFER HUGHES, MITZI RENFROE, AND IRL HOOPER, Appellants, v. TED B. LYON, JR., MARQUETTE W. WOLF, TED B. LYON & ASSOCIATES, P.C., AND WILLIAM HEIDELBERG, Appellees. No. 05-13-01597-CV(Tex.App. - Dallas, July 31, 2015, no pet. h.)
  
In one of the first appellate opinions involving issues surrounding the statutory cause of action for barratry, the Dallas Court of Appeals recently reversed a final summary judgment in favor of a lawfirm, its attorneys, and an "investigator" who had procured a high-stakes and high-dollar pipeline explosion tort case for the firm. 
   

The plaintiffs/clients were unaware of the barratry at the time they obtained legal representation, but later -- after settlement and disbursal of proceeds -- filed suit seeking to take away the lawfirm's substantial attorney's fees, which were based on a contingency fee agreement, as is common in tort cases. The nonattorney "investigator" had been paid $50,000 for soliciting the victims's family members as clients, and was also named as a defendant in the subsequent lawsuit over fees. 

The clients brought their complaints under a variety of different legal theories, including the civil barratry statute (before it was amended to also authorize an award of statutory damages). Under the older version, which applied at the time, the clients sought fee forfeiture because the legal services contract had resulted from conduct that violated the law. But they brought other causes of action also. 

The issues in the appeal were complicated and included questions regarding the time of accrual of the barratry claim and a disagreement over the applicable limitations period, the distinction between void and voidable contract, the interplay of the attorney disciplinary system with the civil justice system, and the ramifications of the rescission remedy for the litigant seeking it. 

The clients raised a total of thirteen issues on appeal. 

The panel opinion, which was issued in the name of only two justices (Lang and Brown) because the third one on the panel (FitzGerald) had resigned before it was handed down on July 31, 2015. It is best read in its entirety to appreciate the multiplicity of issues, and the procedural posture of the case in which they were raised. 

STATUTE OF LIMITATIONS FOR CIVIL BARRATRY CLAIM TO VOID FEE AGREEMENT 

Among other holdings, the two-member appellate panel concluded that the barratry cause of action was governed by the residual statute of limitations (4 years) because the statute itself did not contain a limitations period. Therefore, the defendants, who had argued that the limitations period was only two years, were not entitled to summary judgment based on limitations under the facts of the case. The clients also argued that the discovery rule applied because they did not learn of the improper "barratrous" conduct until some time after the fee agreement was made, but the justices did not find it necessary to reach that issue. 

NOT THE LAST WORD ON THE MATTER 

Because the appeal resulted in the reversal of a summary judgment in favor of the lawfirm defendants, the case will go back to the trial court for further litigation in light of the appellate court's resolution of the legal issues raised at the summary judgment stage. 

Most significantly, the clients' causes of action for barratry under the original version of Texas Government Code § 82.065 may proceed in the trial court, as the court of appeals held that none of the multiple bases that the defendants had urged in their summary judgment motion merited dismissal. 
  
Several alternative causes of action, but not all, were also reinstated, including breach of fiduciary duty, DTPA, and civil conspiracy. The ultimate outcome thus remains uncertain. Short of a trial on the merits, there could be additional motions for summary judgment, but there might also be a settlement.

POSSIBLE SUPREME COURT REVIEW 

Barring a prompt resolution of the dispute by settlement, however, there is a good chance that the case will first be taken to the Texas Supreme Court, and if the high court agrees to hear it, it is likely that one or more of the legal issues might get decided differently by the court that has the last word on matters of Texas state law. 
  
Grant of review is more likely in cases that present an unsettled legal issues, not to mention one that affects the practice of law in the State of Texas, which the Texas Supreme Court also oversees in its regulatory and administrative capacity. The high court has recently addressed other issues affecting the practice of law, including the enforceability of attorney-client arbitration agreements and attorney immunity to civil suits by opponents in prior litigation. 

Even if this case gets resolved without supreme court involvement, it will hardly be the last one to reach the courts of appeals. Nor will future cases alleging barratry be limited to the original version of the barratry statute. Indeed, the more recent amendments, which authorized $10,000 in statutory damages, created an additional incentive for clients to turn on their attorneys, not to mention a profit motive for other attorneys -- those who do not shy away from suing a fellow member of the bar -- to take cases of alleged unlawful solicitation on a contingency basis. 
  
Some observers even perceive the emergence of a new niche in the legal biz, though the firms jumping at this opportunity may not yet have branded themselves as "barratry boutiques".  
    
Case style: Neese v. Lyon, No. 05-13-01597 (Tex.App. - Dallas July 2015) (summary judgment for defendants in civil suit by clients over illegal barratry under the original version of Texas Government Code § 82.065 reversed) 

CARL "STACEY" NEESE, INDIVIDUALLY AND AS NEXT FRIEND OF L.N., C.N., L.N., AND C.N., JAMES NEESE, DAVID NEESE, JENNIFER HUGHES, MITZI RENFROE, AND IRL HOOPER, Appellants,
v.
TED B. LYON, JR., MARQUETTE W. WOLF, TED B. LYON & ASSOCIATES, P.C., AND WILLIAM HEIDELBERG, Appellees.

No. 05-13-01597-CV.

Court of Appeals of Texas, Fifth District, Dallas.

Opinion Filed July 31, 2015.

Before Justices Lang and Brown^[1].

OPINION

ADA BROWN, Justice. 

Appellants sued appellees on several theories of liability including barratry. The trial court granted a take-nothing summary judgment in favor of appellees. Appellants raise thirteen issues on appeal. We affirm the trial court's judgment in part, reverse it in part, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual allegations

Appellants alleged the following facts, which appellees assumed to be true solely for purposes of their summary-judgment motion. A natural-gas pipeline exploded in Johnson County, Texas, on June 7, 2010. The explosion seriously injured appellants Carl "Stacey" Neese^[2] and Irl Hooper. It also killed Neese's brother James Robert Neese. Appellant Mitzi Renfroe is James Robert Neese's mother, and the remaining appellants are James Robert Neese's children. We sometimes collectively refer to appellants as the "Clients."

Appellees Ted B. Lyon Jr. and Marquette W. Wolf are Texas lawyers. Lyon is the president and director of appellee Ted B. Lyon & Associates, P.C., and Wolf works for that law firm. Appellee William Heidelberg is a private investigator.

Although Lyon, Wolf, and the Lyon law firm had no prior relationship with the Neeses, they hired Heidelberg to solicit the Neese family to hire Lyon and his firm as their attorneys. Heidelberg traveled to Oklahoma and contacted Neese. He falsely told Neese that he was investigating the pipeline explosion for an organization called the Danielle Smalley Foundation and that he was not associated with any law firm. Heidelberg also told Neese that he should consider hiring Lyon, who had previously obtained a verdict of several hundred million dollars for a victim of a different pipeline explosion. On June 25, 2010, Lyon and Wolf flew to Tulsa and met with Neese and other Neese family members. The Neeses hired the Lyon firm to represent them in any pipeline-explosion litigation for a 40% contingency fee.

Heidelberg asked Neese if he knew anyone else who was injured in the explosion, and Neese referred him to Hooper. Heidelberg met with Hooper in the hospital and was introduced to Hooper as an investigator for the Danielle Smalley Foundation. According to Hooper's summary-judgment affidavit, Neese told Hooper that Heidelberg was not associated with any law firm. Heidelberg did not deny these statements, and he told Hooper that he should consider hiring Lyon, again because of Lyon's prior success. Another lawyer with the Lyon law firm later flew to Oklahoma and got Hooper to hire the Lyon law firm on a 40% contingency-fee basis. Hooper's affidavit indicates this meeting took place on or after July 5, 2010. Heidelberg was paid a $50,000 bonus by the other appellees for successfully soliciting the Neeses and Hooper.

Lyon, Wolf, and the Lyon law firm filed a lawsuit for the Neeses and Hooper. That lawsuit eventually settled. The Clients paid attorneys' fees and expenses to the Lyon appellees. The Clients later learned of Heidelberg's relationship with the Lyon appellees.

B. Procedural history

The Clients sued appellees, asserting the following claims and requesting the following remedies in their fifth amended petition: (1) barratry and fee forfeiture, (2) breach of fiduciary duty, (3) fraud by nondisclosure, omission, or concealment, (4) rescission, (5) unjust enrichment, (6) legal malpractice, (7) conspiracy, (8) violations of the Texas Deceptive Trade Practices Act, (9) suspension from the practice of law and revocation of license, and (10) an accounting. Appellees then filed a second amended summary-judgment motion, which was expressly a "traditional" motion under Rule 166a(c). The Clients timely responded and also timely filed a sixth amended petition in which they added a claim for "money had and received and/or quantum valebant." Appellees addressed the new claim in a "supplement" to their second amended motion for summary judgment, and the Clients filed a special exception and response to the supplement.

After a hearing, the trial judge signed a take-nothing summary judgment in favor of appellees. The Clients timely perfected this appeal.

II. STANDARD OF REVIEW

We review a traditional summary judgment under a de novo standard of review.Smith v. Deneve, 285 S.W.3d 904, 909 (Tex. App.-Dallas 2009, no pet.). When we review a traditional summary judgment for a defendant, we determine whether the defendant conclusively disproved an element of the plaintiff's claim or conclusively proved every element of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). We must take evidence favorable to the nonmovant as true, and we must indulge every reasonable inference and resolve every doubt in the nonmovant's favor. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. In re Estate of Hendler, 316 S.W.3d 703, 707 (Tex. App.-Dallas 2010, no pet.).

Although appellees attached some evidence to their summary-judgment motion, such as the fee agreements and some evidence regarding the course of the underlying pipeline-explosion litigation, they relied principally on the averments in appellants' live petition, the truth of which appellees accepted solely for purposes of summary judgment. Although pleadings generally do not constitute summary-judgment evidence, a summary-judgment movant may rely on judicial admissions in the nonmovant's live pleading. See Commercial Structures & Interiors, Inc. v. Liberty Educ. Ministries, Inc., 192 S.W.3d 827, 835 (Tex. App.-Fort Worth 2006, no pet.) ("[I]f a plaintiff's pleadings contain judicial admissions negating a cause of action, summary judgment may properly be granted on the basis of the pleadings."); see also Tex. Dep't of Corr. v. Herring, 513 S.W.2d 6, 9 (Tex. 1974) ("It is recognized that a party may plead himself out of court; e.g., the plaintiff may plead facts which affirmatively negate his cause of action."). When we review a summary judgment against a plaintiff based on the pleadings, we view the facts in the pleadings in the light most favorable to the plaintiff. Murphy v. Gruber, 241 S.W.3d 689, 691 n.2 (Tex. App.-Dallas 2007, pet. denied).

The Clients attached evidence to their summary-judgment response, principally affidavits by Neese, Hooper, and an attorney who worked for the Lyon law firm from 2007 until 2012. These affidavits largely repeat and elaborate on the facts pleaded in the Clients' sixth amended petition.

III. ANALYSIS

The Clients raise thirteen issues on appeal. The first issue is a general averrment, without substantive argument, that the trial court erroneously granted summary judgment. Issues two and three concern their barratry claims. Issues four through thirteen concern their other liability theories and requested remedies. We proceed directly to their second and third issues.

A. Barratry

1. Summary-judgment grounds and the Clients' arguments on appeal

Under the heading "Barratrous Conduct and fee forfeiture," the Clients alleged that appellees committed barratry in violation of the Texas Penal Code and the Texas Disciplinary Rules of Professional Conduct. They further asserted that appellees' barratry entitled the Clients to avoid their contingency-fee agreements and to recover all fees and expenses paid to appellees under the agreements.

Appellees raised several summary-judgment grounds regarding the Clients' barratry claims. They argued that Texas law did not recognize a private civil cause of action for barratry until the Texas Legislature statutorily recognized that cause of action effective September 1, 2011. They further argued that, under the civil barratry statute in effect in 2010, clients could invoke barratry only defensively as a basis for avoiding an obligation to pay as-yet-unpaid legal fees. Applying the law to the facts, appellees argued that the Clients had no viable barratry claim because the Clients alleged barratrous acts occurring only in 2010 and all legal fees due under the allegedly barratrous agreements had already been paid. Appellees also argued that the Clients' barratry claims were barred by a two-year statute of limitations and by ratification.

On appeal, the Clients argue that the civil barratry statute in effect before September 1, 2011, created a private cause of action for barratry and that they successfully pleaded a claim under that statute. They also argue that they alleged facts stating a claim for barratry under the version of the statute in effect from September 1, 2011, through August 31, 2013. The Clients also argue that limitations does not bar their barratry claims because the discovery rule delayed accrual of their claims and because the applicable statute of limitations is four years rather than two. Finally, they argue that they did not ratify the alleged barratry because they were not aware of it until after the underlying case had settled.

2. Applicable law

The ordinary meaning of barratry is vexatious incitement to litigation, especially by soliciting potential legal clients. See Barratry, BLACK'S LAW DICTIONARY (10th ed. 2014). It has long been a crime in Texas. See Ackerman v. State, 61 S.W.2d 116 (Tex. Crim. App. 1933) (affirming barratry conviction). The criminal prohibition of barratry is now found in Chapter 38 of the Texas Penal Code. See TEX. PENAL CODE ANN. § 38.12 (West Supp. 2014) (entitled "Barratry and Solicitation of Professional Employment"). The rules of professional conduct also address barratry.See TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 7.03 (entitled "Prohibited Solicitations and Payments"), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, app. A (West 2013).

In 1989, the legislature enacted a new statute, § 82.065 of the Texas Government Code, addressing contingent-fee contracts and barratry:

(a) A contingent fee contract for legal services must be in writing and signed by the attorney and client.

(b) A contingent fee contract for legal services is voidable by the client if it is procured as a result of conduct violating the laws of this state or the Disciplinary Rules of the State Bar of Texas regarding barratry by attorneys or other persons.

Act of May 27, 1989, 71st Leg., R.S., ch. 866, § 3, 1989 Tex. Gen. Laws 3855, 3857 (amended 2011 and 2013) (current version at TEX. GOV'T CODE ANN. § 82.065 (West Supp. 2014)).

In 2011, the legislature amended § 82.065 and enacted § 82.0651. The 2011 amendments to § 82.065 are not relevant to this appeal. New § 82.0651 contained the following provisions:

(a) A client may bring an action to void a contract for legal services that was procured as a result of conduct violating the laws of this state or the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas regarding barratry by attorneys or other persons.

(b) A client who prevails in an action under Subsection (a) shall recover from any person who committed barratry:

(1) all fees and expenses paid to that person under the contract;

(2) the balance of any fees and expenses paid to any other person under the contract, after deducting fees and expenses awarded based on a quantum meruit theory as provided by Section 82.065(c);

(3) actual damages caused by the prohibited conduct; and

(4) reasonable and necessary attorney's fees.

. . . .

(e) This section shall be liberally construed and applied to promote its underlying purposes, which are to protect those in need of legal services against unethical, unlawful solicitation and to provide efficient and economical procedures to secure that protection.

(f) The provisions of this subchapter are not exclusive. The remedies provided in this subchapter are in addition to any other procedures or remedies provided by any other law, except that a person may not recover damages and penalties under both this subchapter and another law for the same act or practice.

Act of May 5, 2011, 82d Leg., R.S., ch. 94, § 2, 2011 Tex. Sess. Law Serv. 535, 535-36 (amended 2013) (current version at TEX. GOV'T CODE ANN. § 82.0651 (West Supp. 2014)).^[3]

Section 82.0651, as adopted in 2011, and the 2011 amendments to § 82.065 do not apply to events occurring before September 1, 2011. Act of May 5, 2011, 82d Leg., R.S., ch. 94, § 3, 2011 Tex. Sess. Law Serv. 535, 536.

3. Application of original § 82.065(b) to the facts

a. Background

In their second issue, the Clients argue that original § 82.065(b) allows them to avoid their fee agreements and recover the consideration appellees received under them. Appellees respond that original § 82.065(b) does not create a cause of action allowing barratry victims to sue for legal fees and expenses paid after the legal services have been fully or substantially performed. The proper interpretation of original § 82.065(b) appears to be a question of first impression for this Court.

Our objective in construing a statute is to effectuate the legislature's intent. We look first to the statutory words' plain and common meaning. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). If the statute is unambiguous, we enforce it according to its plain meaning, unless doing so would produce an absurd result. In re Curry, 407 S.W.3d 376, 379 (Tex. App.-Dallas 2013, orig. proceeding). We read the statute as a whole and interpret it to give effect to every part. City of San Antonio,111 S.W.3d at 25.

We may also consider, among other things, the circumstances under which the statute was enacted, the common law, former statutory provisions, and laws on the same or similar subjects. TEX. GOV'T CODE ANN. § 311.023(2), (4) (West 2013). We may thus consider that barratry has long been a crime in Texas and that barratry is also proscribed by the ethical rules applicable to attorneys. See TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 7.03. We have found no authority that Texas recognized a private cause of action for barratry in favor of an improperly solicited client before the adoption of original § 82.065 in 1989. See Moiel v. Sandlin,571 S.W.2d 567, 571 (Tex. Civ. App.-Corpus Christi 1978, no writ) ("The offense of barratry as defined in the penal code is a public remedy and not a private one."); cf.Pelton v. McClaren Rubber Co., 120 S.W.2d 516, 517 (Tex. Civ. App.-Waco 1938, writ ref'd) (allowing assertion of barratry as a defense and holding that claim-collector's contract secured by illegal solicitation was "void and unenforceable"). See generally Metro. Reg'l Info. Sys., Inc. v. Am. Home Realty Network, Inc., 948 F. Supp. 2d 538, 568-69 (D. Md. 2013) ("[M]ost courts that have examined that issue . . . have concluded that a private cause of action for barratry cannot be implied from a criminal statute.").

Original § 82.065(b) states only one civil consequence for barratry—a contingent-fee contract procured by barratry "is voidable by the client." With respect to contracts, "voidable" means that a contract is valid and effective unless and until the party entitled to avoid it takes steps to disaffirm it. See Cole v. McWillie, No. 11-12-00265-CV, 2015 WL 3485269, at *2 (Tex. App.-Eastland May 29, 2015, no pet. h.) ("[A] voidable contract continues in effect until active steps are taken to disaffirm the contract. . . ."); Mason v. Abel, 215 S.W.2d 377, 381-82 (Tex. Civ. App.-Dallas 1948, writ ref'd n.r.e.) (contract voidable under statute of frauds is valid unless avoided by a party); see also RESTATEMENT (SECOND) OF CONTRACTS § 7 (AM. LAW INST. 1981) ("A voidable contract is one where one or more parties have the power, by a manifestation of election to do so, to avoid the legal relations created by the contract, or by ratification of the contract to extinguish the power of avoidance.").

Grounds that can make a contract voidable include fraudulent inducement, mistake, duress, and breach by the other party. Lee v. Rosen, Newey & Von Blon, P.C., No. 14-00-00759-CV, 2002 WL 1953791, at *3 (Tex. App.-Houston [14th Dist.] Aug. 22, 2002, pet. denied) (mem. op., not designated for publication); see also Wilhite v. Davis, 298 S.W.2d 928, 932 (Tex. Civ. App.-Dallas 1957, no writ) (deed by insane person is voidable). By enacting original § 82.065(b), the legislature added barratry as a reason that makes a contract voidable.

b. Original § 82.065(b) is not purely defensive

We agree with the Clients that original § 82.065(b) is not purely defensive but also entitles a client to sue to avoid a barratrous contingency-fee agreement. By saying that the contract is voidable "by the client," the legislature plainly meant that the client may act to have the contract voided. That is, the client may sue to have a court declare the contract voided and canceled. Nothing in the statute restricts this plain meaning. Cf. In re Myers, No. 07-06-0050-CV, 2006 WL 305033, at *2 (Tex. App.-Amarillo Feb. 9, 2006, orig. proceeding) (noting that rescission can be asserted either defensively or offensively).

By providing that barratrous contracts are voidable by the client, the legislature plainly intended that an affected client can act to cancel the agreement if necessary. We conclude that in cases brought under original § 82.065(b), the client may sue to avoid a barratrous contingency-fee agreement.

c. Original § 82.065(b) also authorizes the remedy of rescission and restitution.

The next question is whether the Clients are entitled to a monetary remedy under original § 82.065(b). Weighing against the Clients is the fact that the legislature did not expressly mention such a remedy in the statute. That fact contrasts with the legislature's approach in other contexts. For example, the Texas Deceptive Trade Practices Act (DTPA) expressly allows a prevailing consumer to obtain orders restoring consideration acquired in violation of the DTPA. See TEX. BUS. & COM. CODE ANN. § 17.50(b)(3) (West 2011). Likewise, the Texas Property Code permits certain purchasers "to cancel and rescind" executory contracts and recover a "full refund" of amounts paid under certain circumstances. E.g., TEX. PROP. CODE ANN. §§ 5.069(d)(2), 5.070(b)(2) (West 2014).

Moreover, the San Antonio Court of Appeals has opined that § 82.065(b) does not allow a plaintiff to avoid a barratrous contingency-fee agreement after the attorney has performed his legal services. See In re Estate of Arizola, 401 S.W.3d 664 (Tex. App.-San Antonio 2013, pet. denied).^[4] After a traffic accident left three people dead and one person severely injured, a probate court approved the employment of certain attorneys by the administrator for the estate of one of the decedents. Id. at 667. That decedent's father, who was not the administrator, later moved to set aside the contingent-fee agreement based on barratry. Id. at 668-69. The probate court denied that motion, and the movant appealed. The court of appeals rejected the father's argument for three reasons: (1) it was inadequately briefed, (2) the father was not the client, and (3) the attorneys had fully performed the contingent-fee agreement before the movant filed his motion to set aside. Id. at 671-72. On the last point, the court of appeals explained as follows:

The client may void a contingent fee contract that violates section 82.065 by expressing his intent to do so before the attorney has fully or substantially performed. . . . After the attorney has fully performed the contract, however, the client is estopped from voiding the contract.

Id. Although the Estate of Arizola case supports appellees' position, it does so without analyzing § 82.065(b)'s language. Moreover, that court's discussion of § 82.065(b) follows its holding that the father waived the issue by failing to brief it. Id. at 671. Accordingly, Arizola's persuasive value is limited.^[5]

On the other hand, rescission and restitution is a well-established remedy when a party sets aside a voidable contract.^[6] See Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 410 (Tex. App.-Dallas 2006, no pet.) ("Rescission is an equitable remedy that operates to extinguish a contract that is legally valid but must be set aside due to fraud, mistake, or for some other reason to avoid unjust enrichment.");Lowrey v. Univ. of Tex. Med. Branch at Galveston, 837 S.W.2d 171, 174 (Tex. App.-El Paso 1992, writ denied) (same); see also Holt v. Robertson, No. 07-06-0220-CV, 2008 WL 2130420, at *5 (Tex. App.-Amarillo May 21, 2008, pet. denied) (mem. op.) ("After performance of the contract, the transaction remains voidable, and rescission remains a viable option, so long as the status quo of the parties prior to entry of the contract can be restored."); Neill v. Pure Oil Co., 101 S.W.2d 402, 404 (Tex. Civ. App.-Dallas 1937, writ ref'd) (voidable deed is effective "until set aside in a suit for rescission or cancellation"). That is, a suit to set aside a contract is one for rescission and cancellation of the contract. See Lowrey, 837 S.W.2d at 174 (citingBullock v. Tex. Emp'rs Ins. Ass'n, 254 S.W.2d 554, 556 (Tex. Civ. App.-Dallas 1952, writ ref'd); Tex. Emp'rs Ins. Ass'n v. Kennedy, 143 S.W.2d 583, 585-86 (Tex. 1940)).

"[W]e presume that the Legislature acted with knowledge of the common law and court decisions." Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999). Moreover, we interpret a statute to abrogate common-law principles only when the statute's express terms or necessary implications clearly indicate such an intent by the legislature. Bruce v. Jim Walters Homes, Inc., 943 S.W.2d 121, 122-23 (Tex. App.-San Antonio 1997, writ denied). Because rescission and restitution is an established common-law remedy for a voidable contract, we conclude that the legislature intended for that remedy to be available when it made barratrous contingency-fee contracts voidable under original § 82.065(b).

The next question is whether appellees' full performance of the fee agreements bars the Clients' claims for rescission under original § 82.065(b), as the court held inEstate of Arizola. In answering this question, we find guidance in two recent Texas Supreme Court cases, Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817 (Tex. 2012), and Morton v. Nguyen, 412 S.W.3d 506 (Tex. 2013). In both cases, the supreme court interpreted statutes that make rescission-like remedies available, and the court relied heavily on common-law rescission and restitution as explained in theRestatement (Third) of Restitution and Unjust Enrichment. These cases help us conclude that appellees' full performance of the fee agreements does not bar the Clients' claims for rescission under original § 82.065(b).

In Cruz, a contractor sued a homeowner, Cruz, for breach of contract, and Cruz counterclaimed under the DTPA. 364 S.W.3d at 821. Although Cruz obtained a partial summary judgment on DTPA liability, the jury returned a zero damages finding. Id. The court of appeals and supreme court affirmed the resulting judgment awarding Cruz nothing on his DTPA claim. A principal question on appeal was whether Cruz was entitled to the DTPA remedy of restoration of the consideration that had been paid to the contractor. Id. at 824-27. To answer this question, the supreme court turned to the common law of rescission and restitution. See id. The supreme court observed that under the common law, a rescission claimant generally must return the parties to the status quo ante by returning whatever the claimant has received from the defendant—what the court called "counter-restitution." Id. at 825-26. However, a defendant's wrongdoing may excuse the claimant from this obligation when counter-restitution is not feasible. Id. at 826. The supreme court concluded these principles apply to the DTPA remedy of restoration of consideration, but the claimant need not make or tender counter-restitution as a prerequisite to relief as long as the award to the claimant can be reduced accordingly. Id. at 826-27. Because Cruz had not deducted the value he received from the contractor, or proved how much he rather than his insurer had paid the contractor, the court held that Cruz had failed to prove conclusively that he was entitled to the sum he claimed as restoration of consideration under the DTPA. Id. at 827.

Morton involved a property code provision giving certain real estate buyers the right to cancel the contract and receive a full refund of payments made. 412 S.W.3d at 507-08. The question presented was whether the buyer seeking such a remedy is obliged to make counter-restitution for the value of his occupation of the property.See id. at 510. Relying on Cruz and the Restatement, the supreme court held that a prevailing buyer must make such counter-restitution. Id. at 510-12.

To summarize, then, rescission is generally limited to cases in which counter-restitution by the claimant—that is, the return to the defendant of whatever the claimant received in the transaction—will restore the defendant to the status quo ante. See Cruz, 364 S.W.3d at 825-26 (relying on RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT § 54 (AM. LAW INST. 2011)). However, as stated in Cruz, "rescission is not a one-way street. It requires a mutual restoration and accounting, in which each party restores property received from the other." Id. at 825.

Cases show that counter-restitution can be effectuated in various ways, even after full performance of a contract. This is exemplified by Sudderth v. Howard, 560 S.W.2d 511 (Tex. Civ. App.-Amarillo 1977, writ ref'd n.r.e.). The Sudderths executed documents purporting to sell land to the Howards for $17,400, and they then successfully sued to rescind the deed on the ground that the transaction was in substance a forbidden home-equity loan. Id. at 513-14. The trial court's judgment rescinded the deed, but it also awarded the Howards a recovery of $17,400 plus interest. Id. at 514. The Sudderths complained on appeal that this recovery was not supported by the pleadings, but the court of civil appeals rejected the argument because the duty to return benefits was inherent in the Sudderths' claim for rescission. Id. at 516. The court wrote, "[O]ne seeking cancellation of an instrument cannot repudiate it and retain the benefits received therefrom; he should offer or tender a restoration and the court can accomplish that result by its judgment. . . . By its judgment rendered here, the court did so." Id. (citation omitted).

Thus, having reviewed the common law of rescission, we find no absolute rule that a defendant's full performance of a contract, without more, is a defense to an otherwise proper claim for avoidance and rescission of a contract. See Holt, 2008 WL 2130420, at *5; see also City of Corpus Christi v. S.S. Smith & Sons Masonry, Inc., 736 S.W.2d 247, 251 (Tex. App.-Corpus Christi 1987, writ denied) ("[Rescission] is also not a remedy for a completed contract in the absence of fraud." (emphasis added)).

Finally, nothing in § 54 of the new Restatement, relied on heavily by the supreme court in Cruz, indicates that a defendant's full performance of a voidable contract, without more, defeats a claim for rescission and restitution. See generallyRESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT § 54 (AM. LAW INST. 2011). Rather, the relevant considerations are whether the claimant can make counter-restitution of benefits received and, if not, whether the defendant's conduct is such that it is appropriate for it to bear an uncompensated loss. See generally Cruz, 364 S.W.3d at 826. Here, appellees did not undertake to prove conclusively that it is impossible for the Clients to make acceptable counter-restitution.

For the foregoing reasons, we conclude that original § 82.065(b) authorizes the Clients to sue to avoid contingency-fee agreements procured by barratry and seek the remedy of rescission and restitution. By reaching this conclusion, we disagree with the Clients to the extent they contend that original § 82.065(b) entitles them to total fee forfeiture—that is, the automatic recovery of all fees paid to appellees, with no counter-restitution at all—rather than traditional rescission and restitution. As we discuss more fully in Part III.D of this opinion, rescission is not forfeiture. We further conclude that the bare fact that the parties have fully performed an agreement that is voidable under original § 82.065(b) is not a bar to a claim for rescission and restitution.^[7] To the extent it concludes to the contrary, we disagree with In re Estate of Arizola, 401 S.W.3d 664 (Tex. App.-San Antonio 2013, pet. denied).

(1) Harmonizing original § 82.065(b) with subsequent enactments

We disagree with appellees' suggestion that construing original § 82.065(b) to authorize rescission renders the legislature's 2011 adoption of § 82.0651(a) a superfluous act. Unlike original § 82.065(b), § 82.0651(a) expressly authorizes clients to recover not only fees and expenses paid under a barratrous contract to any person who committed barratry, but also actual damages caused by the barratry and reasonable and necessary attorneys' fees incurred in prosecuting the barratry action. Act of May 5, 2011, 82d Leg., R.S., ch. 94, § 2, 2011 Tex. Sess. Law Serv. 535, 535-36 (amended 2013) (current version at TEX. GOV'T CODE ANN. § 82.0651 (West Supp. 2014)). Moreover, § 82.0651(b)(1) and amended § 82.065(b) together clarify quantum-meruit protection for innocent lawyers working on the case.

By adding new remedies such as actual damages and attorneys' fees, the legislature changed existing law when it adopted § 82.0651. Accordingly, our interpretation of original § 82.065(b) does not make the adoption of § 82.0651 a meaningless act.

(2) Legislative history

We also reject appellees' reliance on certain legislative history regarding the 2011 amendments. A bill analysis of those amendments contained the following statements under the heading "Author's/Sponsor's Statement of Intent":

Under Section 38.12, Penal Code, "barratry" is generally defined as the illegal solicitation of professional employment. The Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas prohibit these solicitations as well. Adding a civil enforcement option would help curtail this practice.

S.B. 1716 adds a cause of action for a client who has been unlawfully solicited to void the contract and recover any actual damages and any fees and expenses paid.

Sen. Comm. on State Affairs, Bill Analysis, Tex. S.B. 1716, 82d Leg., R.S. (2011). This statement does not reflect any analysis of original § 82.065, which the legislature had adopted over twenty years earlier. One session of the legislature does not have the power to construe the acts or declare the intent of a past session.Rowan Oil Co. v. Tex. Emp't Comm'n, 263 S.W.2d 140, 143 (Tex. 1953).

Moreover, the bill analysis speaks conjunctively when it says that the statute "adds a cause of action for a client who has been unlawfully solicited to void the contract and recover any actual damages and any fees and expenses paid." (Emphases added.) That is, § 82.0651 provides a cause of action with additional remedies not available under the prior law. The client's ability to void the barratrous contingent-fee contract was not new, but the remedies of actual damages and attorneys' fees were added to the already-existing cancellation action.

For these reasons, the legislative history relied on by appellees does not support construing original § 82.065(b) to exclude the remedy of rescission and restitution.

We conclude that the Clients pleaded a viable claim under original § 82.065(b) to void the fee agreements and obtain rescission and restitution.

4. Affirmative defenses

a. Limitations

Appellees argued that any barratry claim the Clients possessed accrued in the summer of 2010 and was barred by the two-year statute of limitations when the Clients sued in 2013. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp. 2014). The Clients, on the other hand, argue that a four-year statute of limitations and the discovery rule apply. We conclude that the four-year statute applies and thus do not reach the discovery-rule issue.

With some exceptions not relevant here, a two-year limitations period applies to suits "for trespass for injury to the estate or to the property of another, conversion of personal property, taking or detaining the personal property of another, personal injury, forcible entry and detainer, and forcible detainer." Id. Under the residual statute of limitations, a four-year period applies to "[e]very action for which there is no express limitations period." Id. § 16.051 (West 2015).

A statutory claim to avoid and rescind an agreement for barratry does not fall into any of the categories of claims governed by the two-year statute of limitations found in § 16.003(a). Nor is such a claim identified in another statute of limitations. We thus conclude that a claim under original Government Code § 82.065(b) is a claim not covered by another express limitations period, and thus the four-year residual statute of limitations applies to the Clients' claims under original § 82.065(b). Cf. Lowrey, 837 S.W.2d at 174 (holding that four-year residual statute of limitations applied to claim for common-law rescission).

Because the applicable limitations period is four years, we conclude that appellees did not conclusively prove that limitations bars the Clients' claims under original § 82.065(b).

b. Ratification

Appellees also argued that ratification barred any barratry claim because the Clients approved the underlying settlement. The Clients contend that ratification does not apply because they did not know of the alleged barratry when they authorized the settlement and fee payment. We agree with the Clients that appellees did not conclusively prove ratification.

Ratification is an affirmative defense. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 344 (Tex. 2011). Its elements are (1) approval by act, word, or conduct, (2) with full knowledge of the facts of the earlier act, and (3) with the intent to validate the earlier act. White v. Harrison, 390 S.W.3d 666, 672 (Tex. App.-Dallas 2012, no pet.). "A party ratifies an agreement when—after learning all of the material facts—he confirms or adopts an earlier act that did not then legally bind him and that he could have repudiated." Id.

The Clients argue there is no evidence that they had full knowledge of appellees' allegedly wrongful conduct before appellees finished their work on the underlying case, and appellees thus failed to conclusively prove the essential full-knowledge element of their ratification defense. Appellees counter that even if the Clients did not know that Heidelberg was secretly working for the other appellees when he solicited them, the Clients were still "aware of the facts they allege to constitute barratry by the Lawyers." But appellees do not explain what these "facts" were, nor do they provide any record citations showing that the Clients knew appellees had committed barratry even if they did not know about Heidelberg's deceit. At oral argument, appellees explained that the Clients knew that Heidelberg had solicited them on the other appellees' behalf and that this was sufficient knowledge. We disagree.

Ratification requires full knowledge of the facts of the earlier act allegedly ratified.See id. Although the Clients obviously knew that Heidelberg had recommended appellees, there is no conclusive proof that they knew any of the additional facts that would make his recommendation a barratrous solicitation, such as Heidelberg's financial interest in soliciting the Clients for the other appellees. Furthermore, for summary-judgment purposes appellees accepted as true the allegations in the Clients' live petition, which state that the Clients "were not aware that the Lyon Defendants had solicited their representation and paid Heidelberg to solicit their representation for the Lyon Defendants . . . until shortly before the filing of this lawsuit."

Moreover, there is no evidence that the Clients committed any conduct manifesting approval of the alleged barratry after they learned all the pertinent facts. They instead sued appellees shortly after learning of the alleged barratry.

In sum, appellees did not conclusively prove ratification's "full knowledge" element. We thus conclude that ratification does not support appellees' summary judgment.

5. Application of original § 82.0651 to the facts

In their third issue, the Clients argue that original § 82.0651 also supports their barratry claims. Appellees contend that § 82.0651 was enacted after the alleged barratry occurred and thus as a matter of law does not apply. We agree with appellees.

As stated above, § 82.0651(a) was enacted in 2011 and provided as follows from September 1, 2011, through August 31, 2013:

A client may bring an action to void a contract for legal services that was procured as a result of conduct violating the laws of this state or the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas regarding barratry by attorneys or other persons.

Act of May 5, 2011, 82d Leg., R.S., ch. 94, § 2, 2011 Tex. Sess. Law Serv. 535, 535-36 (amended 2013) (current version at TEX. GOV'T CODE ANN. § 82.0651 (West Supp. 2014)). Original § 82.0651(b) expressly authorizes a client who prevails in an action under subsection (a) to recover all fees and expenses paid under the barratrous contract to the person who committed barratry, plus other remedies such as actual damages and attorney's fees. Id.

Original § 82.0651 does not apply to conduct that occurred before September 1, 2011. Id. §§ 3-4, 2011 Tex. Sess. Law Serv. at 536. The Clients nonetheless argue that they have a claim under original § 82.0651 because (1) appellees committed conduct after August 31, 2011 that allegedly violated Texas's barratry laws, or (2) the November 2011 settlement agreements in the underlying pipeline-explosion case constituted "contracts for legal services" within the meaning of the original version of § 82.0651(a). We reject both arguments.

First, the Clients argue that they have a viable § 82.0651 claim because they alleged that appellees violated several rules of professional conduct regarding barratry after August 31, 2011:

• appellees continued their employment by the Clients, procured through barratry, in violation of Rule 7.06;

• appellees committed criminal barratry, in violation of Rule 8.04(a)(2);

• appellees committed barratry, in violation of Rule 8.04(a)(9); and

• appellees charged for and collected a fee for professional employment obtained in violation of the barratry rules, in violation of Rule 7.03(d).

But the cause of action created by original § 82.0651 requires a client to prove more than that the defendant violated the laws or disciplinary rules regarding barratry after August 31, 2011. The client must also prove that the lawyer "procured" a legal-services contract due to such conduct. Here, the Clients do not support any of the four alleged rule violations listed above with factual allegations showing that appellees procured a contract for legal services by barratry committed after August 31, 2011. Thus, the Clients' first argument fails.

The Clients argue alternatively that the November 2011 settlement agreements in the underlying case were "contracts for legal services" procured by barratry within the meaning of original § 82.0651(a). The settlement agreements themselves are not in the record. Rather, the Clients filed affidavits by Neese and Hooper stating the following facts:

• the pipeline-explosion case settled at mediation on or about September 20, 2011; and

• on or about November 1, 2011, Neese and Hooper were required to sign documents whereby Lyon, Wolf, and the law firm charged them attorneys' fees and expenses and required them to state that they were satisfied with the results of the distribution of the settlement proceeds, including the payment of attorneys' fees.

This is the only evidence the Clients provided regarding the settlement agreements.

The question is whether those documents constitute contracts for legal services "procured" by barratry as required by original § 82.0651(a). We conclude they do not. The plain meaning of the statutory term "contract for legal services" is a contract whereby an attorney agrees to provide legal services to a client for a fee or other consideration. Cf. Contract for services, BLACK'S LAW DICTIONARY (10th ed. 2014) (defining "contract for services" as "[a] contract for a job undertaken by an independent contractor, as opposed to an employee"). The November 2011 documents, as described by Neese and Hooper, involved no promises by appellees to provide legal services. Rather, they addressed the division of settlement proceeds and the payment of fees and expenses for legal services already performed. As such, the November 2011 documents were not contracts for legal services within the meaning of original § 82.0651(a).

The trial court properly granted summary judgment against the Clients on their barratry claims based on the 2011 version of § 82.0651. We thus reject the Clients' third appellate issue.

We conclude that the trial court erred by granting summary judgment on the Clients' barratry claims based on the original version of Government Code § 82.065. The trial court did not err by granting summary judgment on the Clients' barratry claims based on the original version of § 82.0651.

B. Breach of fiduciary duty