Texas Supreme Court- 2018 Year in Review (Part 4 of 5): Youngkin - Affirmative Defenses can be Deadly

Youngkin v. Hines, 546 S.W.3d 675 (2018) is a case study on the impact of how an affirmative defense can kill a claim before it gets out the gate.  In Youngkin the plaintiff sued opposing counsel for allegedly defrauding him into a settlement agreement that was read into the record before the trial court.  Plaintiff’s fraud claim was met head on with a Texas Anti-Slapp motion under the “right of petition” that both the trial court and Waco COA denied.  The TSC reversed, determining the defendant attorney established the attorney immunity defense, defeating plaintiff’s claim.

Two things stand out from the Youngkin.  First, the Court noted that it is not limited only to constitutional safeguards. “It does not follow from the fact that the TCPA professes to safeguard the exercise of certain First Amendment rights that it should only apply to constitutionally guaranteed activities.” This is because the Texas legislature defined the terms of the statute broader than the commonly understood concepts of (in this instance) “right of petition.”  This language will assuredly come into play as challenges to the Texas Anti-Slapp, in particular when the TSC finally weighs in on the breadth of “right of association.”

Second, the TSC applied the attorney immunity defense without any submission of evidence by the defendant attorney.  While the TSC noted the better practice is to submit evidence on the affirmative defense, it did not prevent application of the attorney immunity defense relying solely on plaintiff’s pleadings.

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