CROSSOVER: Texas 14th Court: TCPA Can Knock Out Breach‑of‑Fiduciary‑Duty Claims Against Former Counsel Based on Litigation Communications (Fee‑Shift Applies)

Murray Lobb, PLLC v. Brandy Liss, Executor for the Estate of Mary James, 14-24-00694-CV, March 31, 2026.

On appeal from Probate Court, Galveston County, Texas

Synopsis

The Fourteenth Court held the TCPA applied to breach-of-fiduciary-duty claims asserted against former counsel when the pleaded “wrongful conduct” had, as a fundamental part, the firm’s litigation communications and filings in related proceedings (i.e., petitioning activity). The court reversed the denial of the TCPA motion (except as to sanctions), rendered dismissal with prejudice, and remanded for a mandatory fee-and-cost award under TCPA § 27.009(a)(1).

Relevance to Family Law

Texas family-law cases increasingly generate collateral civil claims against counsel (conflict allegations, “switching sides,” misuse of confidences, tactical discovery conduct) that are pleaded as fiduciary-duty or similar tort theories—but functionally attack what lawyers filed, argued, served, or said in court-connected communications. This opinion reinforces a powerful framing: when the petitioning activity is a “main ingredient” of the claim, the TCPA can force early dismissal and mandatory fee shifting, creating meaningful deterrence against retaliatory “sue-the-lawyer” claims that arise out of high-conflict divorces, custody fights, SAPCR modifications, and enforcement proceedings.

Case Summary

Fact Summary

Murray Lobb, PLLC represented Gary Spangler and Mary James in 2017–2018 in business-related matters, including acquisition-related work and drafting governing documents for a hospice entity. Years later, after Spangler was indicted, an assignment was drafted transferring Spangler’s interest to James. After James’s death, Brandy Liss—executor of James’s estate—sued Murray Lobb for breach of fiduciary duty.

The estate’s core theory was not merely that the firm had once jointly represented two clients with potentially diverging interests; it was that the firm later “switched” and filed litigation on Spangler’s behalf against James’s estate, taking positions that undermined the assignment the firm had drafted and advancing litigation positions allegedly adverse to the former joint client. The live pleading also complained that the firm continued to “use its attorney-client relationship” with Spangler to withhold information the estate claimed it was entitled to receive as successor to a former joint client, and sought disgorgement of fees.

Murray Lobb moved to dismiss under the TCPA, arguing the claims were “based on or in response to” its exercise of the right to petition (and association), and also raised defenses including judicial-proceedings privilege. The probate court denied the motion. The firm pursued an interlocutory appeal.

Issues Decided

• Whether the estate’s breach-of-fiduciary-duty claims against the law firm were “based on or in response to” TCPA-protected petitioning activity—specifically, the firm’s litigation communications/filings in related judicial proceedings—triggering dismissal under the TCPA.
• Whether, upon dismissal, the firm was entitled to mandatory attorney’s fees and costs under TCPA § 27.009(a)(1).
• Whether the trial court properly denied the firm’s request for sanctions (the court of appeals affirmed that portion).

Rules Applied

• TCPA applicability / burden-shifting
  • Tex. Civ. Prac. & Rem. Code § 27.003(a) (motion to dismiss).
  • Tex. Civ. Prac. & Rem. Code § 27.005(b)–(d) (movant’s burden; nonmovant’s prima facie burden; dismissal if a valid defense is established).
  • Tex. Civ. Prac. & Rem. Code § 27.006(a) (court considers pleadings and evidence).
• Right to petition definition
  • Tex. Civ. Prac. & Rem. Code § 27.001(4)(A)(i), (E) (communications pertaining to a judicial proceeding and other protected petitioning).
  • Tex. Civ. Prac. & Rem. Code § 27.001(1) (broad definition of “communication,” including statements/documents in any medium).
• Key interpretive gloss
  • Youngkin (TCPA applies when suit is based on making/submitting a statement/document pertaining to a judicial proceeding).
  • “Based on” includes petitioning activity as a “main ingredient” or “fundamental part” of the claims (as discussed via intermediate-court authority cited in the opinion).
• Agency principles in the attorney-client relationship (context for analyzing attorney conduct in litigation as petitioning on behalf of a principal)
  • Attorney-client relationship as agency; acts within scope generally bind the principal (cases cited in the opinion include Gavenda, Hansen, Holloway).

Application

The Fourteenth Court focused on what the estate actually complained about—not the label “breach of fiduciary duty,” but the pleaded conduct and the causal story. The petition emphasized that the firm allegedly breached duties by later filing and prosecuting litigation for Spangler against the estate and by advancing litigation positions that attacked the validity/effect of the assignment the firm had drafted.

That matters under the TCPA because the statute defines protected petitioning broadly: “communications” that “pertain to” a judicial proceeding include pleadings, motions, filings, and other litigation communications. The court treated the complained-of litigation conduct as more than background; it was a fundamental part of the alleged wrongdoing and damages theory. In other words, the estate’s claim was not merely “about” a historical conflict; it was built around the firm’s later petitioning activity in court.

Once the court concluded TCPA coverage was triggered, the statute’s consequences followed. The opinion reflects a straightforward TCPA trajectory: reversal of the denial, dismissal of the covered claims with prejudice, and remand for calculation of reasonable attorney’s fees and court costs under § 27.009(a)(1). The court separately affirmed the portion of the trial court’s order denying sanctions, signaling that fee-shifting is mandatory upon dismissal, while sanctions remain discretionary and fact-dependent.

Holding

The court held the TCPA applied because the estate’s breach-of-fiduciary-duty claims had, as a fundamental part, Murray Lobb’s exercise of the right to petition through litigation communications and filings in related judicial proceedings. The court reversed the trial court’s order denying dismissal under the TCPA and rendered judgment dismissing the estate’s claims with prejudice.

The court further held that, because dismissal was required, the firm was entitled to recover reasonable attorney’s fees and court costs under TCPA § 27.009(a)(1). The court remanded for the trial court to determine the amount of fees and costs, while affirming the denial of sanctions.

Practical Application

For Texas family-law litigators, the strategic value is not academic: family cases are litigation-communication heavy—temporary-orders hearings, ex parte TROs, protective orders, enforcement, expert disputes, and aggressive motion practice. When a party later recasts displeasure with litigation tactics or positions into a tort claim against opposing counsel (or prior counsel)—“they breached fiduciary duty by suing me,” “they used confidential information,” “they hid documents,” “they filed X motion to gain leverage”—this case is a clean template for arguing TCPA applicability where the alleged wrong is anchored in court filings and litigation communications.

Common family-law scenarios where this opinion supplies immediate leverage:

• “Sue-the-lawyer” collateral suits after a divorce: A disgruntled ex-spouse brings a separate civil action claiming damages because counsel filed pleadings alleging adultery, fraud on the community, family violence, or dissipation. If the pleaded misconduct is the filing/serving/arguing itself, the petitioning hook is front-and-center.
• Attacks on counsel for representing “the other side” later: Disqualification fights often morph into tort claims (breach of fiduciary duty, aiding-and-abetting, civil conspiracy). When the damages theory is tied to the lawyer’s later prosecution of claims in court, TCPA arguments become harder to dodge.
• Discovery disputes repackaged as torts: Allegations that counsel “withheld information” or “used privilege as a shield” can be pleaded as fiduciary or fraudulent concealment theories. Where the conduct is tied to positions taken in court proceedings (responses, objections, motions for protection), the TCPA petitioning definition may attach.
• Fee-for-disgorgement claims tied to litigation conduct: Disgorgement requests are often bundled with fiduciary theories. If the asserted breach is litigation-based (taking positions in court adverse to a former client), TCPA can convert the case into an early-dismissal + fee-shift posture.

Checklists

Plaintiff-Side (Family Law) Pleading Hygiene: Avoid Triggering a TCPA Petitioning Theory

• Plead the alleged fiduciary breach as transactional conduct (if true) rather than litigation communications (pleadings/motions/positions) where possible.
• Separate pre-suit conduct from in-suit conduct; avoid making filings/arguments the “but for” cause of damages unless you are prepared for TCPA risk.
• Identify non-communicative acts (e.g., mishandling of funds, self-dealing, improper retention of property) with dates, actors, and specifics.
• If you must reference litigation conduct, plead why the claim is not based on the communication itself (and be prepared to prove it with evidence, not conclusions).
• Build an evidentiary record early to meet the “clear and specific evidence” prima facie burden if TCPA is triggered.

Defense-Side (Family Law) TCPA Triage: Spot the Petitioning “Main Ingredient”

• Highlight allegations that expressly complain about:
• Filing suit, pleadings, motions, discovery requests/responses, subpoenas, or court appearances.
• Positions taken “in the litigation” (invalidity, fraud, enforcement posture, contempt allegations).
• Communications “to the court,” “in hearings,” or “in filings.”
• Tie each element of the plaintiff’s claim to the petitioning conduct (causation/damages especially).
• Frame the communications as “pertaining to a judicial proceeding” under § 27.001(4)(A)(i).
• Use the “fundamental part/main ingredient” language to show the claim is based on petitioning, not merely tangentially related.

Fee-Shifting & Remedy Preservation (Defense Counsel)

• Plead and prove up reasonable fees with billing records and a clean lodestar narrative tailored to TCPA work and the interlocutory appeal.
• Request fees and costs explicitly under § 27.009(a)(1) and preserve appellate fees.
• Treat sanctions separately: support with evidence and argument, but do not conflate with the mandatory fee award.
• Ask for dismissal with prejudice and a clear judgment format to avoid later relitigation attempts.

Family-Law Practice Management: Reduce “Future Suit Against Counsel” Exposure

• Tighten conflict checks for serial family matters (related entities, grandparents, fiduciaries, and estate-adjacent players).
• Document joint-representation scope and conflict disclosures where aligned spouses/family members appear “temporarily aligned.”
• In high-conflict cases, assume filings may be repurposed later—keep communications precise, supported, and tethered to the record.
• When switching roles (e.g., from transactional to contested litigation), paper the file: engagement boundaries, termination letters, and privilege/confidentiality protocols.

Citation

Murray Lobb, PLLC v. Liss, Executor for the Estate of Mary James, No. 14-24-00694-CV (Tex. App.—Houston [14th Dist.] Mar. 31, 2026) (mem. op.).

Full Opinion

Read the full opinion on Texas Courts

Family Law Crossover

In a divorce or custody case, this ruling can be weaponized as a procedural counterpunch when a party tries to punish opposing counsel (or former counsel) through a separate civil action grounded in “fiduciary duty,” “conspiracy,” or “aiding and abetting,” but whose factual nucleus is litigation conduct—pleadings alleging fault, motions for contempt, discovery positions, subpoenas, or court filings that drove temporary orders or final judgment leverage. The play is to reframe the claim as a direct attack on petitioning activity “pertaining to a judicial proceeding,” force the TCPA’s expedited dismissal track, and—most importantly in family-law economics—convert the plaintiff’s retaliation attempt into a fee-shifting event under § 27.009(a)(1), changing settlement dynamics and deterring copycat suits in post-decree warfare.

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