Bair Hilty, P.C. and Ronald L. Bair, Individually v. J.B. Hunt Transport, Inc.
14-20-00659-CV
| Tex. App. | May 5, 2022Background
- In July 2017 J.B. Hunt considered acquiring the “Special Logistics” companies; A&G (Special Logistics Dallas) was a target and was defending a suit for a fatal tractor-trailer crash.
- A&G’s insurer retained Bair Hilty, P.C. (Bair) to defend; Bair told A&G (and Hunt) it expected A&G’s liability would be resolved within a $5 million insurance layer.
- Hunt relied on Bair’s estimate when it bought the Special Logistics assets on July 31, 2017; the underlying suit ultimately settled for more than $5 million.
- Hunt sued Bair for legal malpractice; Bair moved to dismiss under the Texas Citizens Participation Act (TCPA), arguing the claims were based on Bair’s petition/speech and barred by limitations.
- Hunt responded that its claims were exempt from the TCPA (commercial-speech and statements regarding bodily injury/wrongful death exemptions) and also offered clear and specific evidence of malpractice.
- The trial court denied the TCPA motion without stating grounds; on appeal the court affirmed because Bair failed to challenge the exemption ground and the unchallenged ground sufficed to affirm.
Issues
| Issue | Plaintiff's Argument (Hunt) | Defendant's Argument (Bair) | Held |
|---|---|---|---|
| Whether Hunt’s malpractice claims are "based on or in response to" Bair’s exercise of free speech/right to petition under the TCPA | Claims are not protected because they fall within TCPA exemptions and are based on professional negligence, not protected petition/speech | Bair says its written/oral statements about settlement value were communications in a judicial proceeding and thus protected by the TCPA | Court declined to sustain Bair’s challenge because an independent exemption ground supported denial; appeal overruled |
| Whether Hunt proved TCPA exemptions (commercial-speech and bodily-injury/wrongful-death exemptions) by preponderance | Hunt argues its claims fall within the commercial-speech exemption and the exemption for statements about bodily injury/wrongful death actions | Bair disputed applicability of exemptions in trial court but did not challenge them on appeal | Court accepted Hunt’s exemption arguments as valid for purposes of appeal; Bair did not contest this ground, so denial affirmed |
| Whether Hunt established by clear and specific evidence a prima facie case of malpractice | Hunt says it produced clear and specific evidence of each malpractice element | Bair contends Hunt failed to meet the clear-and-specific evidentiary burden | Court did not need to resolve because the unchallenged exemption ground supports affirmance; Bair’s challenge to this ground was unnecessary to the disposition |
Key Cases Cited
- Equistar Chems., LP v. ClydeUnion DB, Ltd., 579 S.W.3d 505 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (unchallenged grounds for a trial-court ruling must be accepted on appeal)
- Oliphant Fin. L.L.C. v. Hill, 310 S.W.3d 76 (Tex. App.—El Paso 2010, pet. denied) (appellate rule that unchallenged grounds stand applies to denial of TCPA motions)
- Britton v. Tex. Dep’t of Crim. Justice, 95 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (general principle that appellate court accepts validity of unchallenged grounds)