MacLean v. Arentz Law Group, Attorneys at Law, PLLC et al

Filing 67

Memorandum Opinion and Order... The court ORDERS that movants' motion for summary judgment be, and is hereby, granted in part and (1) plaintiff's claims asserted in count one of plaintiff's complaint be, and are hereby, dismissed; an d (2) plaintiff's claim asserted in count two of plaintiff's complaint as to defendant Arentz Law Group, Attorneys at Law PLLC, be, and is hereby dismissed. The court otherwise ORDERS that the motion for summary judgment be, and is hereby, denied. (Ordered by Judge John McBryde on 7/27/2017) (wxc)

NOR~~1Ef:ICTcoURr

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IN THE UNITED STATES DISTRICT OURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

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.JUL 2 f 20/{

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:.LERI<, us. DrsTi.rcic-i

JOHN R. MACLEAN, INDIVIDUALLY
ON BEHALF OF HIMSELF AND ALL
OTHERS SIMILARLY SITUATED,

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O!JRr

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Plaintiffs,

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vs.

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ARENTZ LAW GROUP, ATTORNEYS AT
LAW, P . L. L. C . , ET AL. ,

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Defendants.

NO. 4:16-CV-797-A

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendants Arentz
Law Group, Attorneys at Law, PLLC, Arentz Law Group, PC, and the
Johnston Law Group (collectively "movants") for summary judgment.
The court, having considered the motion, the response of
plaintiff, John R. MacLean, the reply, the record, the summary
judgment evidence, and applicable authorities, finds that the
motion should be granted in part.
I.

Plaintiff's Claims
The operative pleading is plaintiff's first amended class
action 1 complaint filed November 9, 2016. Doc. 2 21. Plaintiff's
claims are based on an automated telephone call he received at

'By order signed December 9, 2016, the court denied plaintiffs request for class certification.
2

The "Doc.

TEXAS

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"reference is to the number of the item on the docket in this action.

his home that he says was designed to illegally solicit his
participation in mass tort litigation involving inferior vena
cava filters. Plaintiff asserts two causes of action: first,

for

violation of Tex. Gov't Code § 82.0651(a), and second, for
violation of Tex. Gov't Code §82.0651(c).
II.
Grounds of the Motion
Movants urge two grounds in support of their motion. First,
they are entitled to judgment as to the first cause of action
because plaintiff was never their client; hence, section
82.0651(a) does not afford him any relief. Second, movants did
not solicit or knowingly cause or finance any third party to
solicit plaintiff.
III.
Applicable Legal Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.

Fed. R. Civ.

P. 56(a); Anderson v. Liberty Lobbv, Inc., 477 U.S. 242, 247
(1986).

The movant bears the initial burden of pointing out to

the court that there is no genuine dispute as to any material
fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).

2

The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,

"since a complete failure of proof

concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."

Id. at 323.

Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.

Id. at 324; see also Fed. R. civ. P. 56(c)

asserting that a fact . .
the assertion by
the record

("A party

is genuinely disputed must support

citing to particular parts of materials in
.").

If the evidence identified could not lead

a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587, 597 (1986).

In Mississippi Prot. & Advocacy

Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
3

law. 3

Celotex Corp., 477 U.S. at 323.

If the record taken as a

whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prot. &
Advocacy Sys., 929 F.2d at 1058.
IV.
Analysis
A.

Barra try
The Texas Government Code provides, in pertinent part:
(a) A client may bring an action to void a
contract for legal services that was procured as a
result of conduct violating Section 38.12(a) or (b),
Penal Code, or Rule 7.03 of the Texas Disciplinary
Rules of Professional Conduct of the State Bar of
Texas, regarding barratry by attorneys or other
persons, and to recover any amount that may be awarded
under Subsection (b} .
(c) A person who was solicited by conduct
violating Section 38.12(a) or (b), Penal Code, or Rule
7.03 of the Texas Disciplinary Rules of Professional
Conduct of the State Bar of Texas, regarding barratry
by attorneys or other persons, but who did not enter
into a contract as a result of that conduct, may file a
civil action against any person who committed barratry.

Tex. Gov't Code Ann.

§82.0651(a)

&

(c)

The Penal Code, in turn, provides,

(West Supp. 2016).
in pertinent part:

(a) A person commits an offense if, with intent to
obtain an economic benefit the person:

3

ln Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en bane), the Fifth Circuit

explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
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(1) knowingly institutes a suit or claim that the
person has not been aut.hori zed to pursue;
(2) solicits employment, either in person or by
telephone, for himself or another;
(3) pays, gives, or advances or offers to pay, give, or
advance to a prospective client money or anything of
value to obtain employment as a professional from the
prospective client;
(4) pays or gives or offers to pay or give a person
money or anything of value to solicit employment;
(5) pays or gives or offers to pay or give a family
member of a prospective client money or anything of
value to solicit employment; or
(6) accepts or agrees to accept money or anything of
value to solicit employment.
(b) A person commits an offense if the person:
(1) knowingly finances the commission of an offense
under Subsection (a) ;
(2) invests funds the person knows or believes are
intended to further the commission of an offense under
Subsection (a) ; or
(3) is a professional who knowingly accepts employment
within the scope of the person's license, registration,
or certification that results from the solicitation of
employment in violation of Subsection (a) .
Tex. Penal Code Ann.

§

38 .12 (a)

&

(b)

(West 2016).

And, the Texas Disciplinary Rules of Professional Conduct
provide, in pertinent part:
(a) A lawyer shall not by in-person contact, or by
regulated telephone or other electronic contact as
defined in paragraph (f) seek professional employment
concerning a matter arising out of a particular
occurrence or event, or series of occurrences or
events, from a prospective client or nonclient who has
not sought the lawyer's advice regarding employment or
with whom the lawyer has no family or past or present
attorney-client relationship when a significant motive
for the lawyer's doing so is the lawyer's pecuniary
gain.
(b) A lawyer shall not pay, give, or offer to pay
or give anything of value to a person not licensed to
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practice law for soliciting prospective clients for, or
referring clients or prospective clients to, any lawyer
or firm, except that a lawyer may pay reasonable fees
for advertising and public relations services rendered
in accordance with this Rule and may pay the usual
charges of a lawyer referral service tat meets the
requirements of Occupational Code Title 5, Subtitle B,
Chapter 952.
(c) A lawyer, in order to solicit professional
employment, shall not pay, give, advance, or offer to
pay, give, or advance anything of value, other than
actual litigation expenses and other financial
assistance as permitted by Rule 1.08(d), to a
prospective client or any other person; provided,
however, this provision does not prohibit the payment
of legitimate referral fees as permitted by Rule
1.04(f) or by paragraph (b) of this Rule.
(d) A lawyer shall not enter into an agreement
for, charge for, or collect a fee for professional
employment obtained in violation of Rule 7.03(a), (b),
or (c) .
(e) A lawyer shall not participate with or accept
referrals from a lawyer referral service unless the
lawyer knows or reasonably believes that the lawyer
referral service meets the requirements of Occupational
Code Title 5, Subtitle B, Chapter 952.
(f) As used in paragraph (a), "regulated telephone
or other electronic contact" means any electronic
communication initiated by a lawyer or by any person
acting on behalf of a lawyer or law firm that will
result in the person contacted communicating in a live,
interactive manner with any other person by telephone
or other electronic means. For purposes of this Rule, a
website for a lawyer or law firm in not considered a
communication initiated by or on behalf of that lawyer
or firm.
Tex. Disciplinary Rules Prof'l Conduct R. 7.03, reprinted in Tex.
Gov't Code Ann., tit. 2, subtit. G, app. A (West 2013)
(hereinafter "Rule 7. 03") .

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B.

Tex. Gov't Code §82.0651(a)
As movants note, subsection (a) of section 82.0651 says that

a client may bring an action thereunder. As plaintiff readily
admits that he never became a client of movants, this provision
does not apply to him.

4

Smith v. Texas, No. H-12-469, 2012 WL

5868657, at *11 (S.D. Tex. Oct. 26, 2012).
C.

Tex. Gov't Code § 82.0651(c)
The second ground of the motion urges that movants did not

violate subsection (c) of the statute, because they did not
directly solicit plaintiff, knowingly cause anyone else to do so,
or knowingly finance anyone else's doing so. They contend that
their summary judgment evidence establishes that they did not
violate section 38.12 or Rule 7.03. They argue that Rule 7.03
explicitly permits automated, opt-in telephone calls like the one
at issue in this case. Rule 7.03, cmt. 1 (solicitations that do
not present opportunities for abuse,

•such as pre-recorded

telephone messages requiring a separate return call to speak to
or retain an attorney

. . are permitted") . And, Penal Code

38.12(c) excepts from prosecution under subsections (a) and (b)
conduct that is authorized by the Texas Disciplinary Rules of
Professional Conduct.

'In fact, plaintiff makes no response to this ground of the motion.
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Plaintiff wants to ignore the exception, but the cases he
relies upon,
403

~,

O'Quinn v. State Bar of Tex., 763 S.W.2d 397,

(Tex. 1988); State v. Sandoval, 842 S.W.2d 782, 791 (Tex.

App.-Corpus Christi 1992, pet. ref'd), do not discuss a fact
situation like the one alleged here. However, neither do movants
cite any cases to show that what happened here is authorized.
They have not pointed to any summary judgment evidence to show
that the pre-recorded telephone message to plaintiff required a
separate return call to speak to or retain an attorney. Rather,
the declaration of Robert Arentz says that phone calls were
transferred to Arentz Law Group, P.C. Doc. 51 at 7. And,
plaintiff's declaration reflects that he spoke with a female and
"was informed that Defendant Christopher Kyle Johnston from
Louisiana would be [his] lawyer." Doc. 65 at 2, , 7. He was given
another number to call because he asked for one. Id.

At the very

least, plaintiff has raised a fact issue as to whether barratry
actually occurred.
Movants have established that Arentz Law Group, Attorneys at
Law PLLC, handles criminal and bankruptcy cases and did not
participate in the calling practice about which plaintiff
complains. Accordingly, judgment for that defendant is being
granted.

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v.
Order
The court ORDERS that movants' motion for summary judgment
be, and is hereby, granted in part and (1) plaintiff's claims
asserted in count one of plaintiff's complaint be, and are
hereby, dismissed; and (2) plaintiff's claim asserted in count
two of plaintiff's complaint as to defendant Arentz Law Group,
Attorneys at Law PLLC, be, and is hereby dismissed. The court
otherwise ORDERS that the motion for summary judgment be, and is
hereby, denied.
SIGNED July 27, 2017.

District J

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