By Michelle Casady 
Law360 (December 6, 2019, 6:29 PM EST) -- A Texas attorney cannot bring an early end to a malpractice suit alleging he flubbed a deadline to bring an auto crash case, a state appellate court has held, finding the dismissal grounds he cited don't apply to the ex-client's claims.
In an opinion issued Thursday, a three-judge panel of the Second Court of Appeals in Fort Worth affirmed a trial court decision and sided with Veronica Fikes, allowing her to proceed with the legal malpractice claims against her former attorney, Ryan Eugene Ray.
Ray attempted to use a state free speech law, the Texas Citizens Participation Act, to end the lawsuit. The act allows for the early dismissal of lawsuits that are brought with the intent to chill free speech or public participation.
Ray said Fikes filed the lawsuit in response to his actions in a judicial proceeding, which would be protected conduct under the act. Fikes countered by saying her claims are based on his failure to file suit, which isn't protected under the TCPA.
The appellate court said that in order for the TCPA to apply here, Ray's actions needed not only to be based on his exercise of the right to petition and bring suit, but also "must allege a communication." The definition of communication in the TCPA "does not include a failure to communicate, which is the basis of Fikes's failure-to-act claims."
"We conclude that Fikes's claims based on Ray's failure to timely file a petition, resulting in the loss of her right to seek redress for her personal injuries, did not implicate a communication ... that was based on, related to or was in response to the exercise of the right to petition," the panel held. "We resolve the issue of the TCPA's applicability based on the statutory definition of a communication."
According to the opinion, Fikes was injured when another driver rear-ended her vehicle in August 2015. Four months later, she hired Ray to represent her in a suit against the other motorist. But Ray didn't file suit until August 2017 — two years and two days after Fikes was involved in the crash, missing the two-year deadline to bring the injury suit.
In October 2017, Ray was notified by the state bar's Office of the Chief Disciplinary Counsel that Fikes filed a grievance based on his late filing. In February 2018, though, a panel decided to dismiss Fikes' grievance without taking disciplinary action.
A year later, Fikes brought the malpractice suit against Ray, alleging negligence, gross negligence, breach of fiduciary duty, breach of contract and fraud. Ray also said in court filings that Fikes was barred from bringing the claims against him in court based "on the full and fair litigation of Fikes’ claims during the grievance process" before the Office of the Chief Disciplinary Counsel.
A trial court denied Ray's motion to dismiss under the TCPA in June, and he filed this appeal in August.
Justices Lee Gabriel, J. Wade Birdwell and Dana Womack sat on the panel for the Second Court of Appeals.
Counsel for Ray declined to comment Friday, citing the pending nature of the case. Counsel for Fikes did not immediately respond to a request for comment.
Ray is represented by Bruce A. Campbell and Jerry R. Hall of Campbell & Associates Law Firm PC.
Fikes is represented by Steven R. Samples and James R. Ames III of Samples Ames PLLC.
The case is Ryan Eugene Ray v. Veronica Fikes, case number 02-19-00232-cv, in the Second Court of Appeals of Texas.
--Editing by Stephen Berg.
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