SE Texas Record

Sunday, July 21, 2019

9th District Court of Appeals reverses denial of attorney's motion to dismiss in paving contractor case


By Takesha Thomas | Feb 18, 2019

BEAUMONT – A state appellate court has ruled a lower court erred when it denied an attorney's motion to dismiss a petition against him in a suit between paving contractors.

On Feb. 14, the 9th District Court of Appeals at Beaumont affirmed in part and reversed and remanded in part the 172nd District Court's decision in an interlocutory appeal filed by appellants Daniel Clayton and Pamela and Troy Dodson. 

Justice Charles Kreger reversed the trial court's ruling regarding Clayton's appeal for attorney immunity and remanded the matter.

"Because Clayton’s immune from suit for his role as an attorney for the Dodsons and the city (of Beaumont), we conclude the trial court erred when it denied Clayton’s motion to dismiss Oldcastle’s suit based on his rights under the TCPA," Kreger wrote.

The appellants contended that trial court erred when it denied their motion to dismiss a case filed by Oldcastle Materials Texas Inc. under the Texas Citizens Protection Act (TCPA).

Kreger ruled that TCPA "does not apply to Oldcastle’s Rule 202 pre-suit petition against the Dodsons—as Oldcastle established the commercial speech exemption applied to those claims - we affirmed the trial court's order denying appellants' motion to dismiss and remand for further proceedings consistent with this opinion."

Under Rule 202, a person may petition the court for an order authorizing the taking of a deposition to investigate a potential claim or suit, according to the ruling.

Oldcastle Materials filed a petition against the Dodsons, who own L.D. Construction requesting, that the courts allow them to investigate "potential claims related to tortious interference of a business relationship, disparagement, defamation, breach of settlement agreement and conspiracy," the ruling states.

According to the ruling, Oldcastle Materials provides paving materials to paving contractors throughout Southeast Texas, including the city of Beaumont. L.D. Construction, a paving contractor for the city, had "routinely used Oldcastle’s materials and had publicly complimented the quality of Oldcastle’s materials in the past," the ruling states.

L.D. Construction became a competitor of Oldcastle Materials in 2015 after it purchased its own small local materials plant. Oldcastle alleges the Dodsons and Clayton "engaged in conduct for their own benefit by falsely disparaging Oldcastle Materials, thereby interfering with its business relations with the city and causing Oldcastle to lose some potential contracts," once they became competitors, the ruling states.

In November 2017, the ruling states the city rejected Oldcastle’s bids that involved projects to resurface streets, although Oldcastle Materials had submitted the lowest bid. The project instead was awarded to higher bidders, L.D. Construction and another contractor.

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