HOUSTON -The Texas First District Court of Appeals has upheld a ruling by a lower court, dismissing motions to dismiss by appellants Gregory Sullo, Brian Zimmerman, Felix Michael Kubosh, and Paul Kubosh in a barratry lawsuit.
Justice Evelyn V. Keys, writing for the three-member panel on Nov. 18, described in the 62-page ruling how the court denied all of the appellant’s motion to dismiss based on the Texas Citizens Participation Act (TCPA). The law is meant to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law.” Also, the law is intended to “protect the rights of a person to file meritorious lawsuits for demonstrable injury.”
Keys explained that the court’s reasoning for dismissing the Kuboshes' appeals made was that they had submitted their original motions to dismiss under TCPA “years after they were served with a legal action.” There is only a 60-day window to file a TCPA motion from the day that legal action has been taken.
Regarding Sullo and Zimmerman, Keys wrote they failed in their attempt to dismiss a Racketeer Influenced and Corrupt Organizations Act (RICO) suit against them by the Kuboshes by using the TCPA. Specifically, their argument was that the RICO statute of limitations had expired. However, the court disagreed, saying that a RICO claim can occur after a “plaintiff becomes aware of a fraud.”
Originally, the Kuboshes had filed a lawsuit against Sullo, alleging that he and later Zimmerman had committed barratry. In their suit, the Kuboshes said that Sullo and Zimmerman had people pose as potential clients [referred to in the ruling as the “Carter parties”] and call Kubosh Bail Bonding asking for a quote for services. This was part of a price match program run by Sullo.
The callers, reading from a script and recorded by Sullo, would be transferred to the Kubosh Law Office and talk to a representative. According to the ruling, this program “targeted the Kuboshes law firm and bail bond company.” The Kuboshes sued, alleging Sullo violated the RICO Act.