Lane A. Haygood v. Yverica Serrano

Opinion filed September 25, 2025

In The

Eleventh Court of Appeals
__________

No. 11-24-00101-CV
__________

LANE A. HAYGOOD, Appellant/Cross-Appellee
V.
YVERICA SERRANO, Appellee/Cross-Appellant

On Appeal from the 358th District Court
Ector County, Texas
Trial Court Cause No. D-23-10-1115-CV

MEMORANDUM OPINION
This is an interlocutory appeal from the trial court’s denials of the parties’
competing motions to dismiss under the Texas Citizens Participation Act (TCPA)
and Rule 91a of the Texas Rules of Civil Procedure. See TEX. CIV. PRAC. & REM.
CODE ANN. § 27.001–.011 (West 2020 & Supp. 2024); TEX. R. CIV. P. 91a.
Appellee/Cross-Appellant Yverica Serrano sued her former counsel,
Appellant/Cross-Appellee Lane A. Haygood, alleging breach of contract, breach of
fiduciary duty, unjust enrichment, conversion, fraud, and negligence. Haygood then
filed a counterclaim for malicious prosecution and later amended his counterclaim
to include a claim for quantum meruit. Thereafter, the parties filed competing
motions to dismiss under the TCPA and Rule 91a.
On appeal, each party challenges the trial court’s denial of their respective
motions to dismiss. We affirm in part, reverse and render in part, and dismiss in part
for want of jurisdiction.
I. Factual and Procedural History
Serrano filed her original petition on October 18, 2023, alleging that she had
entered into an attorney-client relationship with Haygood, paid a $30,000
“nonrefundable retainer” and a $30,000 “refundable retainer,” and after her legal
matters were settled, Haygood refused to refund the balance of her refundable
retainer.
Haygood answered, asserting a general denial and several affirmative
defenses. Haygood argued that Serrano’s suit was barred under the doctrine of
substantial compliance, doctrine of laches, and by the statute of limitations, and that
Serrano had failed to mitigate her damages. Thereafter, Haygood filed
counterclaims for malicious prosecution and quantum meruit.
On January 16, 2024, Haygood filed a motion to dismiss Serrano’s suit
pursuant to the TCPA and, alternatively, pursuant to Rule 91a. Serrano moved to
strike Haygood’s motion to dismiss, arguing that Haygood’s TCPA motion to
dismiss was untimely. Serrano then filed a competing TCPA motion to dismiss
Haygood’s counterclaims, asserting that Haygood’s counterclaims were based on
her exercise of her right of free speech and right to petition. Although it appears that
the trial court held a hearing on the parties’ competing motions, it did not sign an

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order granting or denying either motion. 1 As a result, the TCPA motions were
denied by operation of law. See CIV. PRAC. & REM. §§ 27.005(a), .008(a). Both
parties appealed. See id. § 27.008(a) (A party is authorized to appeal when the
party’s TCPA motion to dismiss “is considered to have been denied by operation of
law.”).
II. TCPA: Competing Motion to Dismiss
We first address the parties’ challenges to the trial court’s denial of their
respective TCPA motions to dismiss.
A. Standard of Review and Applicable Law
“We review de novo a trial court’s ruling on a TCPA motion to dismiss.”
Horizontal Dev. Partners, LLC v. Endeavor Energy Res., LP, 715 S.W.3d 439, 446
(Tex. App.—Eastland May 8, 2025, no pet. h.) (quoting Rossa v. Mahaffey,
594 S.W.3d 618, 624 (Tex. App.—Eastland 2019, no pet.)). “We view the pleadings
and evidence in the light most favorable to the nonmovant.” Robert B. James, DDS,
Inc. v. Elkins, 553 S.W.3d 596, 603 (Tex. App.—San Antonio 2018, pet. denied).
The TCPA’s “purpose is ‘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 and, at the same time, protect
the rights of a person to file meritorious lawsuits for demonstrable injury.’”
Walgreens v. McKenzie, 713 S.W.3d 394, 398 (Tex. 2025) (quoting CIV. PRAC. &
REM. § 27.002). Under the TCPA, a party may move to dismiss a “legal action” if
it “is based on or is in response to a party’s exercise of the right of free speech, right

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In this regard, although the parties agree on appeal that the trial court orally denied the motions at
a hearing on March 22, 2024, no written order appears in the record, and the reporter’s record was not
included in the appellate record. We abated the appeal to request supplementation of the appellate record
and clarification from the trial court as to whether or not hearings had been held and what, if any, rulings
were made. Only a supplemental clerk’s record was filed with documents already on file in this court.

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to petition, or right of association.” CIV. PRAC. & REM. § 27.003(a); Ferchichi v.
Whataburger Rests. LLC, 713 S.W.3d 330, 336 (Tex. 2025).
“Courts conduct a multi-step analysis in determining whether to grant or deny
a TCPA motion to dismiss.” Ferchichi, 713 S.W.3d at 336. “First, the movant must
establish that the TCPA applies by demonstrating that a ‘legal action’ is ‘based on
or is in response to’ the movant’s exercise of a TCPA-protected right.” Id. (quoting
CIV. PRAC. & REM. § 27.005(b)). Relevant here, TCPA defines “[e]xercise of the
right of free speech” as “a communication made in connection with a matter of
public concern.” CIV. PRAC. & REM. § 27.001(3). “Exercise of the right to petition”
includes: “a communication in or pertaining to . . . a judicial proceeding;” “an official
proceeding, other than a judicial proceeding, to administer the law”; and “a
proceeding before an entity that requires by rule that public notice be given before
proceedings of that entity.” Id. § 27.001(4)(A)(i), (ii), (v). Whether a legal action
is based on or in response to the exercise of a protected right or that “arises from”
protected communications or conduct, such that the legal action “is subject to or
should be dismissed” under the TCPA is determined by consideration of the
pleadings, evidence a court could consider under Rule 166a of the Texas Rules of
Civil Procedure, and “supporting and opposing affidavits stating the facts on which
the liability or defense is based.” CIV. PRAC. & REM. § 27.006(a).
Second, if the movant meets this initial burden, the burden shifts to the
nonmovant to establish “by clear and specific evidence a prima facie case for each
essential element of the claim in question.” CIV. PRAC. & REM. § 27.005(c);
Ferchichi, 713 S.W.3d at 336. “[P]rima facie case has a traditional legal meaning
[and] refers to evidence sufficient as a matter of law to establish a given fact if it is
not rebutted or contradicted.” In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) (orig.
proceeding) (internal quotation marks omitted). When neither the pleadings nor the

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evidence can show the requisite details, the nonmovant fails to carry his burden, and
the movant is entitled to a dismissal. NexPoint Advisors, L.P. v. United Dev.
Funding IV, 674 S.W.3d 437, 446–47 (Tex. App.—Fort Worth 2023, pet. denied).
When, despite the nonmovant meeting their burdens, the movant “establishes an
affirmative defense or other grounds on which the moving party is entitled to
judgment as a matter of law,” dismissal is required. CIV. PRAC. & REM. § 27.005(c),
(d); Ferchichi, 713 S.W.3d at 336; Horizontal Dev. Partners, 715 S.W.3d at 445.
If a trial court does not rule on a TCPA motion to dismiss on or before “the
30th day following the date the hearing on the motion concludes,” the motion is
considered to have been denied by operation of law and the moving party may
appeal. See CIV. PRAC. & REM. §§ 27.005(a), .008(a) (authorizing a party to appeal
when the party’s TCPA motion to dismiss “is considered to have been denied by
operation of law”); David H. Arrington Oil & Gas Operating, LLC v. Wilshusen,
630 S.W.3d 184, 188–89 (Tex. App.—Eastland 2020, pet. denied). Accordingly,
we treat the absence of timely orders following the March 22 hearing as denials
of the parties’ motions by operation of law. See, e.g., Hale v. Rising S Co. LLC,
No. 05-19-00932-CV, 2020 WL 104626, at *1 (Tex. App.—Dallas Jan. 9, 2020, no
pet.) (mem. op.) (“When no order had been signed on or before [the 30th day after
the hearing], the TCPA motion was denied by operation of law.”).
B. Haygood’s TCPA Motion to Dismiss was Untimely
Haygood first argues that the trial court erred in denying his TCPA motion
because Serrano’s suit was filed against him based on his right to petition and right
of free association. See CIV. PRAC. & REM. § 27.003(a). Serrano counters that
Haygood’s TCPA motion was properly denied because it was untimely. See id.
§ 27.003(b). On appeal, Haygood does not address the timeliness of his TCPA
motion to dismiss. For reasons expounded below, we agree with Serrano.

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“[T]he TCPA dictates compliance with the time periods in mandatory terms at
each step.” Morin v. Law Office of Kleinhans Gruber, PLLC, No. 03-15-00174-CV,
2015 WL 4999045, at *3 (Tex. App.—Austin Aug. 21, 2015, no pet.) (mem. op.);
see Venero v. Lozada, No. 07-23-00022-CV, 2023 WL 4831611, at *2 (Tex. App.—
Amarillo July 27, 2023, pet. denied) (mem. op.) (“The deadlines for filing and setting
a hearing on a motion to dismiss under the TCPA are mandatory.”). Unless the
parties agree to extend the filing deadline or the trial court extends the deadline on a
showing of good cause, a TCPA movant must file their motion to dismiss
within sixty days after service of the complained-of legal action. CIV. PRAC. & REM.
§ 27.003(b); First Sabrepoint Cap. Mgmt., L.P. v. Farmland Partners Inc., 712
S.W.3d 75, 82 (Tex. 2025).
The record reflects that Haygood was served with Serrano’s petition on
November 13, 2023. Serrano’s petition set forth the essential factual allegations and
provided notice of her claims and the relief sought. See Kinder Morgan SACROC,
LP v. Scurry Cnty., 622 S.W.3d 835, 849 (Tex. 2021) (“Our notice-pleading rules
require pleadings to not only give notice of the claim and the relief sought but also
of the essential factual allegations.”) (internal quotation marks omitted); see also
Borderline Mgmt., LLC v. Ruff, No. 11-19-00152-CV, 2020 WL 1061485, at *5
(Tex. App.—Eastland Mar. 5, 2020, pet. denied) (mem. op.) (“A petition that gives
fair notice of a claim starts the time period in which to file a TCPA motion to
dismiss.”). Haygood filed his TCPA motion to dismiss on January 16, 2024—sixty-
four days after the service of Serrano’s petition. Neither a request for an extension
of the filing deadline nor an agreement to extend the deadline appear in the record.
See CIV. PRAC. & REM. § 27.003(b) (setting forth deadline extension requirements).
Thus, Haygood’s TCPA motion to dismiss was untimely, and he forfeited any
protections of the TCPA that may have applied. See Borderline Mgmt., 2020

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WL 1061485, at *4 (“A party who fails to timely file a motion to dismiss forfeits the
protections of the statute.”); see also, e.g., Soler v. Sukerman, No. 03-24-00783-CV,
2025 WL 1634088, at *2 (Tex. App.—Austin June 10, 2025, pet. filed) (mem. op.)
(The appellant “surpassed the sixty-day statutory deadline to file her TCPA motion
to dismiss and thus forfeited any protections of the TCPA that may have applied.”).
Accordingly, we hold that the trial court did not err in denying Haygood’s
TCPA motion to dismiss. See Patriot Contracting, LLC v. Mid-Main Props., LP,
650 S.W.3d 819, 824 (Tex. App.—Houston [14th Dist.] 2022, pet. denied) (“[A]
trial court does not err in denying an untimely filed TCPA motion, even a meritorious
one.”). We overrule Haygood’s first issue.
C. Serrano’s Motion to Dismiss
In Serrano’s first issue, she argues that the trial court erred in denying her
motion to dismiss Haygood’s counterclaims. Serrano contends that the TCPA
applies because Haygood’s counterclaims, which constitute “legal actions,” are
“based on or [are] in response to” her exercise of the right to petition and right of
free speech. See CIV. PRAC. & REM. §§ 27.001(6), .003(a), .005(b)(1)(B).
We first address whether Haygood’s suit is based on or is in response to
Serrano exercising her right to petition. See CIV. PRAC. & REM. § 27.005(b);
Ferchichi, 713 S.W.3d at 336. Under the section of Haygood’s petition titled “Facts
in Support of Counterclaims,” Haygood states:
6. On or about October 18, 2023, [Serrano] instituted the present
proceeding.

7. On or about the same date, [Serrano], with the advice and counsel of
her attorney, also filed a grievance through the State Bar of Texas
against [Haygood].

8. Prior to the institution of suit, the parties engaged in confidential
attempts to settle this matter without a lawsuit.

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9. On information and belief, [Haygood] states that [Serrano’s] refusal
to enter into a settlement agreement is not based on a claim brought in
good faith, but in an attempt to extort value from [Haygood] that
[Serrano] erroneously believes [Haygood] possesses.

10. [Serrano] spoke to others in the community regarding [Haygood’s]
representation of her, and made materially false representations to these
persons about [Haygood] and [Haygood’s] law practice.

11. As a result of the institution of this proceeding, [Haygood] has
incurred financial loss, loss of business goodwill, and mental and
emotional damages stemming from [Serrano’s] malicious prosecution.

Haygood goes on to state, “Upon termination of this proceeding or the administrative
grievance proceeding in [Haygood’s] favor, a judgment should be granted for
[Haygood] against [Serrano] for the damages incurred.”
As to his quantum meruit counterclaim where he alleges performance of the
services for which he was hired and therefore entitlement to compensation, Haygood
states, in relevant part, that “[t]his cause of action includes by reference all numbered
paragraphs 1-18.” Haygood then states that although he had informed Serrano that
he would not be charging for additional legal services provided, he “now seeks to
require additional damages from [Serrano] for that work.”
Haygood’s counterclaims are, by his own words, factually predicated upon
Serrano’s petition and grievance to the State Bar of Texas. See Hanna v. Williams,
681 S.W.3d 416, 424 (Tex. App.—Austin 2023, pet. denied) (noting that court
filings are TCPA “communications” and if court filings’ content or communicative
nature constitute a “main ingredient” or “fundamental part” of non-movant’s claims,
such claims are “based on or in response to” those filings); Szymonek v. Guzman,
641 S.W.3d 553, 567 (Tex. App.—Austin 2022, pet. denied) (recognizing that a

8
movant’s complaints about an attorney to the State Bar can implicate TCPA right to
petition should the attorney allege the communications in a suit against the movant).
Thus, we hold that the TCPA applies to Haygood’s counterclaims in that they
were based on or related to Serrano’s exercise of constitutional rights protected
under the TCPA. See, e.g., Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC,
591 S.W.3d 127, 137 (Tex. 2019) (“The filings by the [appellee] in this lawsuit and
in the administrative proceeding before the Railroad Commission were an exercise
of the right to petition as defined by the TCPA. The [appellant’s] counterclaim
premised on those filings is therefore based on, related to, or in response to the
[appellee’s] exercise of the right to petition.”); Judwin Props. Inc. v. Lewis, 615
S.W.3d 338, 347 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (“Paragraph 16
of the [appellee’s] counterclaim alleging [that the appellant] breached the contract
by ‘bringing suit on misrepresentations regarding restrictions of public record’ is
based on, related to, or in response to [the appellant’s] exercise of the right to
petition. Therefore, we hold the TCPA applies.”); cf. Darnell v. Rogers, 588 S.W.3d
295, 302 (Tex. App.—El Paso 2019, no pet.) (concluding that the appellee did not
establish, by a preponderance of the evidence, that the appellant’s claims against him
are related to, or made in response to, the appellee’s exercise of the right to petition
where there was no mention of a grievance or any other communication with the
State Bar of Texas in the appellant’s petition against the appellee).
Having determined that the TCPA applies, the burden then shifted to Haygood
to establish a prima facie case to support his counterclaims of malicious prosecution
and quantum meruit. See CIV. PRAC. & REM. § 27.005(c); Ferchichi, 713 S.W.3d at
336.

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1. Malicious Prosecution
The elements of a claim for malicious prosecution are: (1) a civil judicial
proceeding was previously filed; (2) the defendant caused the original suit to be filed;
(3) the commencement of the suit was malicious; (4) no probable cause existed for
the filing of the suit; (5) termination of the original suit in favor of the party
prosecuting the later malicious-prosecution action; and (6) damages conforming to
the legal standards under Texas law. Finlan v. Dall. Indep. Sch. Dist., 90 S.W.3d
395, 406 (Tex. App.—Eastland 2002, pet. denied); see Tex. Beef Cattle Co. v. Green,
921 S.W.2d 203, 207 (Tex. 1996).
We address the fifth element of this cause of action, whether at the time
Haygood brought his malicious prosecution counterclaim, the original suit—
Serrano’s suit against Haygood—had terminated in his favor, because it is
dispositive. See Tex. Beef Cattle Co., 921 S.W.2d at 207 (addressing only the
dispositive elements); Saks & Co., LLC v. Li, 653 S.W.3d 306, 312 (Tex. App.—
Houston [14th Dist.] 2022, no pet.) (same). It is undisputed that Serrano’s suit
against Haygood was ongoing at the time Haygood filed his counterclaim.
Haygood’s pleading acknowledges this, stating under the section titled “Cause of
Action for Malicious Prosecution”: “[u]pon termination of this proceeding . . . a
judgment should be granted for [Haygood] against [Serrano] for the damages
incurred.”
Because Haygood did not establish by clear and specific evidence that the
original suit was terminated in his favor, Haygood cannot meet his burden to make
a prima facie case for his malicious-prosecution claim. See Tex. Beef Cattle Co.,
921 S.W.2d at 207; Human Power of N Co. v. Turturro, No. 03-24-00305-CV, 2024
WL 4643931, at *4 (Tex. App.—Austin Nov. 1, 2024, no pet.) (mem. op.) (“We
conclude that [the appellee] did not meet his burden to make a prima facie case for

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his malicious-prosecution claim because he did not allege clear and specific
evidence supporting at least the fifth and sixth elements.”). Here, the trial court erred
in denying Serrano’s TCPA motion to dismiss Haygood’s malicious prosecution
claim. See Horizontal Dev. Partners, 715 S.W.3d at 445.
2. Quantum Meruit
“Quantum meruit is an equitable theory ‘founded in the principle of unjust
enrichment.’” Tex. Med. Res., LLP v. Molina Healthcare of Tex., Inc., 659 S.W.3d
424, 436 (Tex. 2023) (quoting Bashara v. Baptist Mem’l Hosp. Sys., 685 S.W.2d
307, 310 (Tex. 1985)). Generally, the existence of an express contract covering
the subject matter of the dispute precludes recovery in quantum meruit. Hill v.
Shamoun & Norman, LLP, 544 S.W.3d 724, 737 (Tex. 2018) (citing In re Kellogg
Brown & Root, Inc., 166 S.W.3d 732, 740 (Tex. 2005) (orig. proceeding)).
“However, the existence of an express contract does not preclude recovery in
quantum meruit for the reasonable value of work performed and accepted which is
not covered by an express contract.” Id.
To recover under quantum meruit, a claimant must prove that:
1. valuable services were rendered or materials furnished;
2. for the defendant;
3. the services or materials were accepted by the defendant; and
4. the defendant was reasonably notified that the plaintiff performing the
services or providing the materials was expecting to be paid.
Id.; Davis v. Crawford, 700 S.W.3d 438, 451 (Tex. App.—Eastland 2024, no pet.).
A review of the fourth element is dispositive here.
Haygood’s pleadings acknowledge that he entered into a contract to provide
legal services to Serrano and was paid accordingly. Haygood states that Serrano
then requested additional legal services, and he notified Serrano that he would not
charge her for those services. Haygood concluded that he “now seeks to require

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additional damages from [Serrano] for that work.” By Haygood’s own admissions,
he communicated to Serrano that he did not expect to be paid for additional services
that he thereafter would perform. Therefore, Haygood is unable to meet his burden
to make a prima facie case for his quantum meruit claim as he did not establish by
clear and specific evidence that there was an agreement for Serrano to pay for the
additional benefits she received. See CIV. PRAC. & REM. § 27.005(c) (requiring that
each element be proven by clear and specific evidence); see also Key Energy Servs.,
Inc. v. TBS Intern., Inc., No. 11-05-00153-CV, 2006 WL 2507616, at *3 (Tex.
App.—Eastland Aug. 31, 2006, no pet.) (mem. op.) (concluding the evidence was
legally insufficient to support the jury’s finding on the elements of quantum meruit
where there was no implied agreement to pay for the benefits received).
Consequently, the trial court erred in denying Serrano’s TCPA motion to dismiss
Haygood’s quantum meruit claim. See Horizontal Dev. Partners, 715 S.W.3d at
445. We sustain Serrano’s first issue.
With respect to Serrano’s first issue, we remand this case to the trial court for
determination of any applicable attorney’s fees, costs, and sanctions that it finds
should be awarded to Serrano under Section 27.009. 2 See CIV. PRAC. & REM.
§ 27.009(a)(1), (2); see, e.g., Davis, 700 S.W.3d at 444.
III. No Interlocutory Appeal for the Denial of a Rule 91a Motion
The parties additionally challenge the trial court’s “denial” 3 of their respective
Rule 91a motions to dismiss. As an initial matter, “unlike under the TCPA, the trial
court’s failure to rule [on a Rule 91a motion] within the 45-day deadline does not

A movant who prevails on a TCPA motion to dismiss is entitled to an award of court costs and
2

reasonable attorney’s fees. CIV. PRAC. & REM. § 27.009(a)(1). Under appropriate circumstances, a trial
court may also award sanctions against the party who brought the legal action. Id. § 27.009(a)(2); Davis,
700 S.W.3d at 444 n.4.
3
The clerk’s record similarly does not contain a written order denying the parties’ Rule 91a motions.

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convert the ‘non-ruling’ into a denial by operation of law.” San Jacinto River
Auth. v. Lewis, 572 S.W.3d 838, 840 (Tex. App.—Houston [14th Dist.] 2019, no
pet.); see TEX. R. CIV. P. 91a.3 (The trial court must grant or deny a Rule 91a motion
to dismiss within forty-five days after the motion is filed.). However, the trial court’s
“denial” of the parties’ Rule 91a motions is not subject to interlocutory appeal. See
CIV. PRAC. & REM. § 51.014 (setting forth appealable interlocutory orders); see also
Harris Cnty. v. Deary, 695 S.W.3d 566, 577 (Tex. App.—Houston [1st Dist.] 2024,
no pet.) (noting that generally denials to Rule 91a motions are not subject to
interlocutory review); Krause v. Mayes, 652 S.W.3d 880, 885 (Tex. App.—Houston
[14th Dist.] 2022, no pet.) (same); In re Shire PLC, 633 S.W.3d 1, 11 n.3 (Tex.
App.—Texarkana 2021, orig. proceeding) (same); Koenig v. Blaylock, 497 S.W.3d
595, 598 n.4 (Tex. App.—Austin 2016, pet. denied) (same).
Because we have jurisdiction to consider interlocutory appeals only as
authorized by statute, and because no statute authorizes an interlocutory appeal of
the trial court’s “denial” of the parties’ Rule 91a motions to dismiss, we do not have
jurisdiction to review the trial court’s “orders” that relate to the parties’ Rule 91a
motions. See generally Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 788
(Tex. 2019) (“While Texas appellate courts generally only have jurisdiction over
appeals from final judgments, they do have jurisdiction over appeals from
interlocutory orders when authorized by statute.”). The parties’ respective second
issues are dismissed for want of jurisdiction.
IV. This Court’s Ruling
We affirm the trial court’s denial of Haygood’s motion to dismiss pursuant to
the TCPA. We reverse the trial court’s denial of Serrano’s motion to dismiss
pursuant to the TCPA, render judgment dismissing with prejudice Haygood’s
counterclaims for malicious prosecution and quantum meruit, and remand this cause

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to the trial court for a determination of the amount of attorney’s fees, costs, and, if
applicable, sanctions to be awarded to Serrano. To the extent the parties’ have
appealed the trial court’s “denial” of their respective Rule 91a motions, we dismiss
that portion of the appeal for want of jurisdiction.

W. BRUCE WILLIAMS
JUSTICE

September 25, 2025
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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