Miller Weisbrod, L.L.P., Lawrence Lassiter and Les Weisbrod v. Jorge F. Llamas-Soforo, M.D. and Jorge F. Llamas-Soforo, M.D., P. A.
511 S.W.3d 181
Tex. App.2014Background
- Plaintiff Jorge F. Llamas-Soforo (ophthalmologist) sued after a 15-second TV advertisement (English and Spanish) solicited former patients and witnesses, alleging the ad was slanderous/defamatory. Seven lawsuits followed.
- Defendants: Miller Weisbrod, L.L.P. (law firm) and two attorneys, Les Weisbrod and Lawrence Lassiter; ad was produced/authorized by counsel to solicit clients and information.
- Defendants filed a joint motion to dismiss under the Texas Citizens’ Participation Act (TCPA). The trial court denied the motion, ruling (1) the law firm’s TCPA motion was untimely and (2) the two attorneys were excluded from TCPA protection under the TCPA commercial-speech exception (§27.010(b)).
- Defendants appealed; this Court considered (a) whether it had interlocutory appellate jurisdiction over a signed order denying a TCPA motion and (b) whether attorneys’ advertising was exempt commercial speech.
- Court affirmed: (1) it has interlocutory jurisdiction to hear appeals from written orders denying TCPA motions; (2) attorneys’ TV solicitation constituted commercial speech excluded from TCPA protection; (3) the law firm’s motion was untimely because it was filed more than 60 days after service of the amended petition that first named the firm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appellate jurisdiction over signed/interlocutory TCPA orders | TCPA §27.008 only authorizes appeal when court fails to rule (denial by operation of law) | §27.008(b)-(c) permits interlocutory appeals from written orders denying or granting TCPA motions; statute should be read to avoid rendering language meaningless | Court held it has interlocutory jurisdiction to review written orders denying TCPA motions |
| Whether attorneys’ TV ad is commercial speech excluded by §27.010(b) | Attorneys: "primarily engaged" means practicing law/professional representation, not "selling services"; thus TCPA should apply | Plaintiff (Llamas): ad was client solicitation—commercial speech aimed at potential customers and fits §27.010(b) exclusion | Court held the ad was commercial speech soliciting clients and §27.010(b) exclusion applies; attorneys not protected by TCPA for this ad |
| Timeliness of law firm’s TCPA motion (60-day rule) | Law Firm: “legal action” should be read broadly so the 60-day window runs from service of the latest live pleading (Second Amended Petition) | Plaintiff: 60-day clock runs from service of the operative pleading that first names/serves that defendant (First Amended Petition as to firm); otherwise TCPA’s purpose is defeated | Court held the firm’s motion was untimely: the 60-day period ran from service of the First Amended Petition that first added the firm; no extension requested under §27.003(b) |
Key Cases Cited
- Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) (statutory construction principles and rely on text/context to ascertain legislative intent)
- Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011) (plain meaning of statutory text controls unless absurd result)
- NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742 (5th Cir. 2014) (attorney advertising held commercial speech exempt from TCPA §27.010(b))
- Neely v. Commission for Lawyer Discipline, 196 S.W.3d 174 (Tex.App.—Houston [1st Dist.] 2006) (lawyer advertising characterized as commercial speech)
- Jennings v. WallBuilder Presentations, Inc., 378 S.W.3d 519 (Tex.App.—Fort Worth 2012) (held no interlocutory jurisdiction over signed TCPA orders; contrasting authority discussed)