A Texas appeals court upheld the dismissal of a legal malpractice claim brought by a rancher who challenged his appellate attorney’s representation during a legal dispute over ownership of 13 head of cattle.
The state’s 14th Court of Appeals affirmed on Aug. 1 that a lower court’s dismissal of negligence and breach-of-professional-responsibility claims against attorney D. Todd Smith were valid under provisions of the Texas Citizens Participation Act (TCPA).
Smith represented Tom Bennett, one of the appellants, in two appeals that involved what the court described as “an infamous feud” between Bennett and a neighboring rancher in San Saba.
“The gist of the dispute and subject of prior appeals involved allegations that 13 head of cattle belonging to Reynolds wandered onto Bennett’s ranch, and that instead of returning them in a neighborly fashion, Bennett ordered his ranch hand, Larry Grant, to round up the cattle and sell them at auction,” the appeals court said in its opinion.
During the appeal process, Bennett instructed Smith to emphasize certain evidence excluded by the trial court that allegedly showed Grant perjured himself in his testimony. Smith didn’t advance the appeal on such grounds, and a judgment against Bennett of more than $500,000 was handed down.
The court concluded that Smith met his burden to have the claim dismissed based on the provisions of the TCPA, which protects citizens’ speech and participation-in-government rights and affirms citizens’ right to file meritorious lawsuits. Smith’s actions involved the exercising of his right to petition a court and was thus covered by the TCPA, the opinion states.
The justices also concluded that Bennett waited too long – more than two years – to file the malpractice claim. The timing of the lawsuit was governed by a two-year statute of limitations on negligence and legal malpractice claims, they said.
“Assuming without deciding that Bennett carried his burden to make a prima facie case as to the elements of his claims against Smith, Smith is nonetheless entitled to dismissal under the affirmative defense of statute of limitations,” the court said.