Continuing our December theme of Right to Petition cases, the Fort Worth COA weighs in on whether an absence of communication can trigger TCPA protection in a legal malpractice claim. In Ray v. Fikes, No. 02-19-00232-CV, 2019 WL 6606170 (Ft. Worth COA Dec. 2019), Plaintiff sued her attorney for failing to timely file a negligence claim when she was rear ended in a vehicle collision. Responding to Plaintiff’s legal malpractice action, the attorney filed a Texas Anti-Slapp arguing that because he was sued for filing the underlying personal injury lawsuit the Right to Petition protections of the TCPA applied.
The Ft. Worth COA rejected this argument because Plaintiff sued her former attorney for a failure to act, which lacks the predicate communication required under the TCPA. This ruling could implicate future Texas Anti-Slapp motions where the underlying claim is based on a failure to speak.