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FILED
3/19/2024 4:56 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Jenifer Trujillo DEPUTY
CAUSE NO. DC-20-07453
FREED & FREED
§§§§§§§§§§§§§§§§
INTERNATIONAL LTD., IN THE DISTRICT COURT OF
Plaintiffi
V.
DALLAS COUNTY, TEXAS
NEXUS MEDICAL, LLC,
GEORGE BURL OUTLAW,
DAVID SCHILLER, JIM FULTZ,
TONY SERNA, NEXUS 49 RELATIONS,
LLC, AUSTIN SMITH, EPOCH
INTERNATIONAL PARTNERS, LLP,
CGE GROUP, LLC, MARK C. WEINER,
Defendants. 134TH JUDICIAL DISTRICT
DEFENDANT AUSTIN SMITH’S AMENDED MOTION
FOR TRADITIONAL SUMMARY JUDGMENT
Defendant Austin Smith (“Smith”) files this Amended Motion for Traditional Summary
Judgment pursuant to Texas Rule of Civil Procedure 166a(c) as to all claims asserted against him
by Plaintiff Freed & Freed International Ltd., (“Plaintiff”) and would respectfully show the Court
as follows:
Summary of Motion and Supporting Grounds.
This lawsuit arises out of contract dispute between Plaintiff and defendant Nexus Medical,
LLC over purchasing face masks during the Great Pandemic. Defendant Smith’s role in this
dispute, however, was minimal. An associate at the time with Thompson & Knight, his only
connection to this lawsuit was as a lawyer for Nexus. Everything Smith did that Plaintiff complains
about in this lawsuit was done in Smith’s role as counsel to Nexus.
Under Texas’s attorney immunity doctrine, “an attorney is immune from liability to
nonclients for conduct within the scope of his representation of his clients,” even if that conduct
AUSTIN SMITH’S AMENDED MOTION FOR SUMMARY JUDGMENT Page 1
was allegedly wrongful. Youngkz'n v. Hines, 546 S.W.3d 675, 681 (Tex. 2018). Because Smith is
being sued for conduct allegedly undertaken in his role as counsel to Nexus, his is immune. As a
result, summary judgment is appropriate on all claims asserted against him.
Summary Judgment Factsl
The Dispute. The actual dispute in this case is between Plaintiff and a company called
Nexus Medical (a defendant). The gravamen of the claim is that Nexus falsely claimed it could
supply face masks to Plaintiff when it actually could not do so. See Amended Petition at 1W 17-25.
In that regard, Plaintiff alleges a lengthy tale of supposed bad conduct by Nexus and people
associated with Nexus. Id. at 11 25.
The Face Mask Contract. During Smith’s representation of Nexus, on April l6, 2020,
Plaintiff and Nexus entered into a contract whereby Plaintiff agreed to purchase from Nexus
1,000,000 face masks for use during the Great Pandemic. See Amended Petition at 11 29. The total
purchase price of the face masks was $3,500,000 and the masks were to be delivered to Plaintiff.
Id. 1N 30-31. According to the contract, the estimated delivery date for the Masks was “7-10 days
from Escrow Funding” with a “target” of April 21, 2020. Id. 1] 33. The contract required (l) an
amount equal to the total purchase price be placed into an escrow account and (2) one-half of the
total purchase price, $1,750,000, to be released from the escrow account upon Plaintiff’s receipt
of an invoice for the masks. Id. 1] 34. Then, the balance of the total purchase price ($1,750,000)
was to be released upon delivery of the masks to Plaintiff. Id.
The Contract is Funded but Plaintiff Claims the Funds Were Not Used As Agreed On
April 16, 2020, the escrow was established pursuant to an Escrow Agreement between Plaintiff
1
These facts consist of Plaintiff’s allegations in the operative Petition. Defendant refutes those allegations, but accepts
them as true solely for the purposes of this Motion because it seeks summary judgment on the pleadings. See Vazquez
v. Deutsche Bank Nat’l Trust Ca, N.A., 441 S.W.3d 783 (Tex. App—Houston [1st Dist.] 2014, no pet.).
AUSTIN SMITH’S AMENDED MOTION FOR SUMMARY JUDGMENT Page 2
and Nexus. Id. 11
35. After being presented with an invoice for the masks, Plaintiff deposited into
escrow the total purchase price of $3,500,000. Id. 1] 36. Per the contract, one-half of the amount
deposited into the escrow account was released by the escrow agent. Id. 11 38. This money was to
be earmarked for payment of the masks to be delivered to Plaintiff. Id.
However, Plaintiff alleges that the funds were sent to Defendant CGE Group LLC. Id.
Plaintiff further alleges that the amount released to Nexus was not used to purchase masks, but
rather as part of Defendant Burl Outlaw’s scheme to pay bills unrelated to Plaintiff’s order. Id. 11
39. Plaintiff continued to inquire about the status of its order and question the location of the Masks
as time went on. Id. 1111 40-41. After receiving pictures of the product from Defendant Outlaw,
Plaintiff raised concerns about the quality and specifications of the Masks in the picture. Id. 11
41.
A Dispute Arises. Ultimately, Nexus delivered a Termination Letter to Plaintiff stating that
Nexus was giving notice to Plaintiff that it “has agreed to terminate the Master contract” and asking
Plaintiff s President, Marissa Freed (“Ms Freed”) to signify her agreement to the terms therein by
signing and dating the letter and returning a copy to Defendant. Id.
After the Termination Letter was signed and returned, a dispute arose in which Plaintiff
sued Nexus, George Outlaw, David Schiller, Jim Fultz, Tony Serna, Nexus 49 Relations, LLC,
Austin Smith, Epoch International Partners, LLP, CGE Group, LLC, and Mark C. Weiner on
multiple counts alleging that the remaining one-half of the total purchase price ($1,750,000) to be
released to Defendant Nexus on or about April l7, 2020, as stated in the Termination Letter, had
not been returned to Plaintiff
Smith ’s role as an attorney for Nexus. Smith is an attorney licensed in the State of Texas.
At the time of the events giving rise to this lawsuit, Smith was engaged by Nexus as its counsel.
Id. at 11 26. At the time, Smith was an associate at the law firm of Thompson & Knight. Id. 11
10.
AUSTIN SMITH’S AMENDED MOTION FOR SUMMARY JUDGMENT Page 3
Plaintiffs allegations regarding Smith revolve around his role as counsel to Nexus in
connection with the dispute. First, Plaintiff alleges that Smith sent letters as Nexus’ lawyer to
Plaintiff:
“They [Defendants] engaged Defendants Austin Smith, acting as counsel for
Nexus Medical, and David Schiller, acting as ‘VP of Products’ for Nexus
Medical, to represent that Defendant Nexus Medical had ‘Proof of Funds’ to
purchase masks.”
See Amended Petition at 11 26 (emphasis added). To this same point, Plaintiff also alleges
that Smith’s supposed wrongful conduct in sending these letters was done as an attorney
for Nexus and in typical attorney fashion:
“In fact, Defendant Austin Smith sent multiple letters on his firm letterhead
representing that Defendant Nexus Medical had billions of dollars of funds to
purchase masks.”
Id.
Second, Plaintiff contends that Smith, at the direction of his clients, asked the
escrow agent (Chicago Title) to wire a small amount ($42,125) of escrow funds to
Defendant CGE Group, LLC. See Amended Petition at 1B8. According to Plaintiff, this
entity was not known to Plaintiff and “was a stranger to the Master Agreement and Escrow
Agent.” Id. Plaintiff references an email (Exhibit C) but that email actually asks the escrow
agent to release funds for Nexus Medical and to wire those funds to the referenced entity.
Third, Plaintiff alleges that Smith drafted and delivered the Termination Letter to
Plaintiff on behalf of Nexus. See Amended Petition at W 41-43. While Plaintiff claims
that the Termination Letter did not accurately state all of the facts, Plaintiff does not assert
any specific wrongful conduct by Smith in sending the Termination Letter. Id. .
I. SUMMARY OF PLAINTIFF’S CLAIM AGAINST DEFENDANT AUSTIN SMITH
Plaintiff asserts various causes of action, including against Defendant as one of the
AUSTIN SMITH’S AMENDED MOTION FOR SUMMARY JUDGMENT Page 4
“Individual Defendants” for Violation of UCC Article 2, Common Law Fraud and
Fraudulent Inducement to Enter into the Master Contract, Conspiracy, Quantum Meruit and Unjust
Enrichment, and Accounting and Construction Trust.
II. LAW AND ARGUMENT
A. Summary Judgment Standard
Defendant is entitled to summary judgment on the pleadings if the allegations therein, taken
“as true and view[ed] . . . in a light most favorable to [Plaintiff],” fail to state a Viable claim against
defendant. Vazquez, 441 S.W.3d at 786 (quoting Natividad v. Alexsis, Ina, 875 S.W.2d 695, 699
(Tex. 1994)). Under Texas’s attorney immunity doctrine, “an attorney is immune from liability to
nonclients for conduct within the scope of his representation of his clients,” even if that conduct
was allegedly wrongful. Youngkz‘n v. Hines, 546 S.W.3d 675, 681 (Tex. 2018).
The purpose of this doctrine is “[t]o ensure that attorneys may practice their profession
effectively and zealously advocate for their clients without subjecting themselves to claims from
nonclients.” Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 485 (Tex. 2015). “This is not to say .
. . that attorneys are not otherwise answerable for misconduct in the course of representing a client
in litigation . . . [b]ut ‘the remedy is public, not private, consisting of things like sanctions,
contempt, and attorney disciplinary proceedings,”’ not civil claims asserted by nonclients in court.
Highland Cap. Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-00055-CV, 2016 WL
164528, at *6 (Tex. App—Dallas Jan. 14, 2016, pet. denied) (quoting Byrd, 467 S.W.3d at 482).
B. Plaintiff’s Pleading Establishes Defendant’s Immunity under the Attorney
Immunity Doctrine.
Plaintiff s own allegations make clear that its claims against Defendant are barred by the
attorney immunity doctrine. Defendant’s client was Nexus, not Plaintiff. See Pet. 1111 10, 26 & Exhs.
C and D. All of Plaintiff’s allegations against Smith accuse him of engaging in misconduct while
AUSTIN SMITH’S AMENDED MOTION FOR SUMMARY JUDGMENT Page 5
“acting as counsel for Nexus,” assisting Nexus in a purchase and sale transaction, corresponding
with other parties to that transaction at the direction and on behalf of Nexus (Via his firm email
and under his firm letterhead, and drafting and delivering a Termination Letter on Nexus’s behalf.
See id. 1W 10, 26, 38-43 & Exs. C, D. These actions unquestionably fall within the provision of
legal services that involve the professional skills, training, and authority of an attorney and are
actions that lawyers conduct on a daily basis. See, e.g., Highland Cap. Mgmt., 2016 WL 164528
at *6 (declaring the following conduct within the scope of attorney immunity: “acquiring
documents from a client that are the subject of litigation against the client, reviewing the
documents, copying the documents, retaining custody of the documents, analyzing the documents,
making demands on the client's behalf, advising a client to reject counter-demands, speaking about
an opposing party in a negative light, advising a client on a course of action, and even threatening
particular consequences such as disclosure of confidential information if demands are not met”).
Therefore, Defendant is entitled to judgment as a matter of law on attorney-immunity grounds.
Each allegation against Smith is based on his role as an attorney:
o The letters sent on behalf of Nexus by Smith as their lawyer (See Amended Petition at
11 26 and Exh. D).
o The email sent to the escrow agent providing wiring instructions at the direction of his
client. (See Amended Petition at 1i 38 and Exh. C).
o The Termination Letter sent by Smith on behalf of and at the direction of his client.
(Amended Petition at 1H] 41-43).
Plaintiffs assertion of fraud claims against Defendant does not change this result. Again,
the doctrine applies even to wrongfi11 conduct, and “[m]erely labeling an attorney’s conduct
‘fiaudulent’ does not and should not remove it from the scope of client representation or render it
foreign to the duties of an attorney.” Byrd, 467 S.W.3d at 483 (internal quotation marks omitted).
The alleged acts of which Plaintiff complains here involve “the uniquely lawyerly capacity” as
AUSTIN SMITH’S AMENDED MOTION FOR SUMMARY JUDGMENT Page 6
well as the “attorney’s skills as an attorney[]” and are not conduct “entirely foreign to the duties
of an attorney[.]” Taylor v. Talbert, 644 S.W.3d 637, 646 (Tex. 2022) (citing Landry’s, Inc. v.
Animal Legal Def Fund, 631 S.W.3d 40, 52 (Tex. 2021)). Therefore, Plaintiff’s allegations of
fraud are irrelevant.
In short, the face of Plaintiff s petition establishes that Plaintiff” s claims against Defendant
are barred by the defense of attorney immunity. Therefore, Defendant is entitled to judgment as a
matter of law on that ground.
HI. CONCLUSION
For the reasons set forth above, Defendant Austin Smith respectfully requests that the Court
grant this Motion for Traditional Summary Judgment, enter judgment in Defendant’s favor on all
claims asserted against him, and award Defendant any further relief to which he may be entitled.
Dated: March l9, 2024 Respectfully submitted,
/s/ Jeffrey M. Tillotson
Jeffrey M. Tillotson
Texas Bar No. 20039200
jtillotson@tillotsonlaw.com
TILLOTSON JOHNSON & PATTON
1201 Main Street, Suite 1300
Dallas, Texas 75202
(214) 382-3041 Telephone
(214) 292-6564 Facsimile
COUNSEL FOR DEFENDANT
AUSTIN SMITH
CERTIFICATE OF SERVICE
This is to certify that the foregoing was served by certified mail, email, and electronically
on Plaintiff on the 19th day of March, 2024.
/s/Je r M Tillotson
Jeffrey M. Tillotson
AUSTIN SMITH’S AMENDED MOTION FOR SUMMARY JUDGMENT Page 7
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Bar No. 20039200
swade@tillotsonlaw.com
Envelope ID: 85730202
Filing Code Description: Motion - Summary Judgment
Filing Description: AMENDED
Status as of 3/20/2024 8:38 AM CST
Associated Case Party: FREED & FREED INTERNATIONAL LTD
Name BarNumber Email TimestampSubmitted Status
Christopher A.Brown CABrown@duanemorris.com 3/19/2024 4:56:43 PM SENT
Diana Maldonado DMaldonado@duanemorris.com 3/19/2024 4:56:43 PM SENT
Carolyn Roch roch.c@wssllp.com 3/19/2024 4:56:43 PM SENT
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LaKeisha Williams-Till Williams-till.l@wssllp.com 3/19/2024 4:56:43 PM SENT
Associated Case Party: NEXUS MEDICAL LLC
Name BarNumber Email TimestampSubmitted Status
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Levi McCathern |mccathern@mccathernlaw.com 3/19/2024 4:56:43 PM SENT
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Case Contacts
Name BarNumber Email TimestampSubmitted Status
Jeffrey MTillotson jtillotson@tillotsonlaw.com 3/19/2024 4:56:43 PM SENT
Joseph Alrrobali airrobali@tillotsonlaw.com 3/19/2024 4:56:43 PM SENT
Coyt Johnston 10834400 randy@jtlaw.com 3/19/2024 4:56:43 PM SENT
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certificate of service that complies with all applicable rules.
Jeffrey Tillotson on behalf of Jeffrey M. Tillotson
Bar No. 20039200
swade@tillotsonlaw.com
Envelope ID: 85730202
Filing Code Description: Motion - Summary Judgment
Filing Description: AMENDED
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Associated Case Party: DAVID SCHILLER
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Bar No. 20039200
swade@tillotsonlaw.com
Envelope ID: 85730202
Filing Code Description: Motion - Summary Judgment
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FILED 3/19/2024 4:56 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Jenifer Trujillo DEPUTY CAUSE NO. DC-20-07453 FREED & FREED §§§§§§§§§§§§§§§§ INTERNATIONAL LTD., IN THE DISTRICT COURT OF Plaintiffi V. DALLAS COUNTY, TEXAS NEXUS MEDICAL, LLC, GEORGE BURL OUTLAW, DAVID SCHILLER, JIM FULTZ, TONY SERNA, NEXUS 49 RELATIONS, LLC, AUSTIN SMITH, EPOCH INTERNATIONAL PARTNERS, LLP, CGE GROUP, LLC, MARK C. WEINER, Defendants. 134TH JUDICIAL DISTRICT DEFENDANT AUSTIN SMITH’S AMENDED MOTION FOR TRADITIONAL SUMMARY JUDGMENT Defendant Austin Smith (“Smith”) files this Amended Motion for Traditional Summary Judgment pursuant to Texas Rule of Civil Procedure 166a(c) as to all claims asserted against him by Plaintiff Freed & Freed International Ltd., (“Plaintiff”) and would respectfully show the Court as follows: Summary of Motion and Supporting Grounds. This lawsuit arises out of contract dispute between Plaintiff and defendant Nexus Medical, LLC over purchasing face masks during the Great Pandemic. Defendant Smith’s role in this dispute, however, was minimal. An associate at the time with Thompson & Knight, his only connection to this lawsuit was as a lawyer for Nexus. Everything Smith did that Plaintiff complains about in this lawsuit was done in Smith’s role as counsel to Nexus. Under Texas’s attorney immunity doctrine, “an attorney is immune from liability to nonclients for conduct within the scope of his representation of his clients,” even if that conduct AUSTIN SMITH’S AMENDED MOTION FOR SUMMARY JUDGMENT Page 1 was allegedly wrongful. Youngkz'n v. Hines, 546 S.W.3d 675, 681 (Tex. 2018). Because Smith is being sued for conduct allegedly undertaken in his role as counsel to Nexus, his is immune. As a result, summary judgment is appropriate on all claims asserted against him. Summary Judgment Factsl The Dispute. The actual dispute in this case is between Plaintiff and a company called Nexus Medical (a defendant). The gravamen of the claim is that Nexus falsely claimed it could supply face masks to Plaintiff when it actually could not do so. See Amended Petition at 1W 17-25. In that regard, Plaintiff alleges a lengthy tale of supposed bad conduct by Nexus and people associated with Nexus. Id. at 11 25. The Face Mask Contract. During Smith’s representation of Nexus, on April l6, 2020, Plaintiff and Nexus entered into a contract whereby Plaintiff agreed to purchase from Nexus 1,000,000 face masks for use during the Great Pandemic. See Amended Petition at 11 29. The total purchase price of the face masks was $3,500,000 and the masks were to be delivered to Plaintiff. Id. 1N 30-31. According to the contract, the estimated delivery date for the Masks was “7-10 days from Escrow Funding” with a “target” of April 21, 2020. Id. 1] 33. The contract required (l) an amount equal to the total purchase price be placed into an escrow account and (2) one-half of the total purchase price, $1,750,000, to be released from the escrow account upon Plaintiff’s receipt of an invoice for the masks. Id. 1] 34. Then, the balance of the total purchase price ($1,750,000) was to be released upon delivery of the masks to Plaintiff. Id. The Contract is Funded but Plaintiff Claims the Funds Were Not Used As Agreed On April 16, 2020, the escrow was established pursuant to an Escrow Agreement between Plaintiff 1 These facts consist of Plaintiff’s allegations in the operative Petition. Defendant refutes those allegations, but accepts them as true solely for the purposes of this Motion because it seeks summary judgment on the pleadings. See Vazquez v. Deutsche Bank Nat’l Trust Ca, N.A., 441 S.W.3d 783 (Tex. App—Houston [1st Dist.] 2014, no pet.). AUSTIN SMITH’S AMENDED MOTION FOR SUMMARY JUDGMENT Page 2 and Nexus. Id. 11 35. After being presented with an invoice for the masks, Plaintiff deposited into escrow the total purchase price of $3,500,000. Id. 1] 36. Per the contract, one-half of the amount deposited into the escrow account was released by the escrow agent. Id. 11 38. This money was to be earmarked for payment of the masks to be delivered to Plaintiff. Id. However, Plaintiff alleges that the funds were sent to Defendant CGE Group LLC. Id. Plaintiff further alleges that the amount released to Nexus was not used to purchase masks, but rather as part of Defendant Burl Outlaw’s scheme to pay bills unrelated to Plaintiff’s order. Id. 11 39. Plaintiff continued to inquire about the status of its order and question the location of the Masks as time went on. Id. 1111 40-41. After receiving pictures of the product from Defendant Outlaw, Plaintiff raised concerns about the quality and specifications of the Masks in the picture. Id. 11 41. A Dispute Arises. Ultimately, Nexus delivered a Termination Letter to Plaintiff stating that Nexus was giving notice to Plaintiff that it “has agreed to terminate the Master contract” and asking Plaintiff s President, Marissa Freed (“Ms Freed”) to signify her agreement to the terms therein by signing and dating the letter and returning a copy to Defendant. Id. After the Termination Letter was signed and returned, a dispute arose in which Plaintiff sued Nexus, George Outlaw, David Schiller, Jim Fultz, Tony Serna, Nexus 49 Relations, LLC, Austin Smith, Epoch International Partners, LLP, CGE Group, LLC, and Mark C. Weiner on multiple counts alleging that the remaining one-half of the total purchase price ($1,750,000) to be released to Defendant Nexus on or about April l7, 2020, as stated in the Termination Letter, had not been returned to Plaintiff Smith ’s role as an attorney for Nexus. Smith is an attorney licensed in the State of Texas. At the time of the events giving rise to this lawsuit, Smith was engaged by Nexus as its counsel. Id. at 11 26. At the time, Smith was an associate at the law firm of Thompson & Knight. Id. 11 10. AUSTIN SMITH’S AMENDED MOTION FOR SUMMARY JUDGMENT Page 3 Plaintiffs allegations regarding Smith revolve around his role as counsel to Nexus in connection with the dispute. First, Plaintiff alleges that Smith sent letters as Nexus’ lawyer to Plaintiff: “They [Defendants] engaged Defendants Austin Smith, acting as counsel for Nexus Medical, and David Schiller, acting as ‘VP of Products’ for Nexus Medical, to represent that Defendant Nexus Medical had ‘Proof of Funds’ to purchase masks.” See Amended Petition at 11 26 (emphasis added). To this same point, Plaintiff also alleges that Smith’s supposed wrongful conduct in sending these letters was done as an attorney for Nexus and in typical attorney fashion: “In fact, Defendant Austin Smith sent multiple letters on his firm letterhead representing that Defendant Nexus Medical had billions of dollars of funds to purchase masks.” Id. Second, Plaintiff contends that Smith, at the direction of his clients, asked the escrow agent (Chicago Title) to wire a small amount ($42,125) of escrow funds to Defendant CGE Group, LLC. See Amended Petition at 1B8. According to Plaintiff, this entity was not known to Plaintiff and “was a stranger to the Master Agreement and Escrow Agent.” Id. Plaintiff references an email (Exhibit C) but that email actually asks the escrow agent to release funds for Nexus Medical and to wire those funds to the referenced entity. Third, Plaintiff alleges that Smith drafted and delivered the Termination Letter to Plaintiff on behalf of Nexus. See Amended Petition at W 41-43. While Plaintiff claims that the Termination Letter did not accurately state all of the facts, Plaintiff does not assert any specific wrongful conduct by Smith in sending the Termination Letter. Id. . I. SUMMARY OF PLAINTIFF’S CLAIM AGAINST DEFENDANT AUSTIN SMITH Plaintiff asserts various causes of action, including against Defendant as one of the AUSTIN SMITH’S AMENDED MOTION FOR SUMMARY JUDGMENT Page 4 “Individual Defendants” for Violation of UCC Article 2, Common Law Fraud and Fraudulent Inducement to Enter into the Master Contract, Conspiracy, Quantum Meruit and Unjust Enrichment, and Accounting and Construction Trust. II. LAW AND ARGUMENT A. Summary Judgment Standard Defendant is entitled to summary judgment on the pleadings if the allegations therein, taken “as true and view[ed] . . . in a light most favorable to [Plaintiff],” fail to state a Viable claim against defendant. Vazquez, 441 S.W.3d at 786 (quoting Natividad v. Alexsis, Ina, 875 S.W.2d 695, 699 (Tex. 1994)). Under Texas’s attorney immunity doctrine, “an attorney is immune from liability to nonclients for conduct within the scope of his representation of his clients,” even if that conduct was allegedly wrongful. Youngkz‘n v. Hines, 546 S.W.3d 675, 681 (Tex. 2018). The purpose of this doctrine is “[t]o ensure that attorneys may practice their profession effectively and zealously advocate for their clients without subjecting themselves to claims from nonclients.” Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 485 (Tex. 2015). “This is not to say . . . that attorneys are not otherwise answerable for misconduct in the course of representing a client in litigation . . . [b]ut ‘the remedy is public, not private, consisting of things like sanctions, contempt, and attorney disciplinary proceedings,”’ not civil claims asserted by nonclients in court. Highland Cap. Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-00055-CV, 2016 WL 164528, at *6 (Tex. App—Dallas Jan. 14, 2016, pet. denied) (quoting Byrd, 467 S.W.3d at 482). B. Plaintiff’s Pleading Establishes Defendant’s Immunity under the Attorney Immunity Doctrine. Plaintiff s own allegations make clear that its claims against Defendant are barred by the attorney immunity doctrine. Defendant’s client was Nexus, not Plaintiff. See Pet. 1111 10, 26 & Exhs. C and D. All of Plaintiff’s allegations against Smith accuse him of engaging in misconduct while AUSTIN SMITH’S AMENDED MOTION FOR SUMMARY JUDGMENT Page 5 “acting as counsel for Nexus,” assisting Nexus in a purchase and sale transaction, corresponding with other parties to that transaction at the direction and on behalf of Nexus (Via his firm email and under his firm letterhead, and drafting and delivering a Termination Letter on Nexus’s behalf. See id. 1W 10, 26, 38-43 & Exs. C, D. These actions unquestionably fall within the provision of legal services that involve the professional skills, training, and authority of an attorney and are actions that lawyers conduct on a daily basis. See, e.g., Highland Cap. Mgmt., 2016 WL 164528 at *6 (declaring the following conduct within the scope of attorney immunity: “acquiring documents from a client that are the subject of litigation against the client, reviewing the documents, copying the documents, retaining custody of the documents, analyzing the documents, making demands on the client's behalf, advising a client to reject counter-demands, speaking about an opposing party in a negative light, advising a client on a course of action, and even threatening particular consequences such as disclosure of confidential information if demands are not met”). Therefore, Defendant is entitled to judgment as a matter of law on attorney-immunity grounds. Each allegation against Smith is based on his role as an attorney: o The letters sent on behalf of Nexus by Smith as their lawyer (See Amended Petition at 11 26 and Exh. D). o The email sent to the escrow agent providing wiring instructions at the direction of his client. (See Amended Petition at 1i 38 and Exh. C). o The Termination Letter sent by Smith on behalf of and at the direction of his client. (Amended Petition at 1H] 41-43). Plaintiffs assertion of fraud claims against Defendant does not change this result. Again, the doctrine applies even to wrongfi11 conduct, and “[m]erely labeling an attorney’s conduct ‘fiaudulent’ does not and should not remove it from the scope of client representation or render it foreign to the duties of an attorney.” Byrd, 467 S.W.3d at 483 (internal quotation marks omitted). The alleged acts of which Plaintiff complains here involve “the uniquely lawyerly capacity” as AUSTIN SMITH’S AMENDED MOTION FOR SUMMARY JUDGMENT Page 6 well as the “attorney’s skills as an attorney[]” and are not conduct “entirely foreign to the duties of an attorney[.]” Taylor v. Talbert, 644 S.W.3d 637, 646 (Tex. 2022) (citing Landry’s, Inc. v. Animal Legal Def Fund, 631 S.W.3d 40, 52 (Tex. 2021)). Therefore, Plaintiff’s allegations of fraud are irrelevant. In short, the face of Plaintiff s petition establishes that Plaintiff” s claims against Defendant are barred by the defense of attorney immunity. Therefore, Defendant is entitled to judgment as a matter of law on that ground. HI. CONCLUSION For the reasons set forth above, Defendant Austin Smith respectfully requests that the Court grant this Motion for Traditional Summary Judgment, enter judgment in Defendant’s favor on all claims asserted against him, and award Defendant any further relief to which he may be entitled. Dated: March l9, 2024 Respectfully submitted, /s/ Jeffrey M. Tillotson Jeffrey M. Tillotson Texas Bar No. 20039200 jtillotson@tillotsonlaw.com TILLOTSON JOHNSON & PATTON 1201 Main Street, Suite 1300 Dallas, Texas 75202 (214) 382-3041 Telephone (214) 292-6564 Facsimile COUNSEL FOR DEFENDANT AUSTIN SMITH CERTIFICATE OF SERVICE This is to certify that the foregoing was served by certified mail, email, and electronically on Plaintiff on the 19th day of March, 2024. /s/Je r M Tillotson Jeffrey M. Tillotson AUSTIN SMITH’S AMENDED MOTION FOR SUMMARY JUDGMENT Page 7 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Jeffrey Tillotson on behalf of Jeffrey M. Tillotson Bar No. 20039200 swade@tillotsonlaw.com Envelope ID: 85730202 Filing Code Description: Motion - Summary Judgment Filing Description: AMENDED Status as of 3/20/2024 8:38 AM CST Associated Case Party: FREED & FREED INTERNATIONAL LTD Name BarNumber Email TimestampSubmitted Status Christopher A.Brown CABrown@duanemorris.com 3/19/2024 4:56:43 PM SENT Diana Maldonado DMaldonado@duanemorris.com 3/19/2024 4:56:43 PM SENT Carolyn Roch roch.c@wssllp.com 3/19/2024 4:56:43 PM SENT Winget Spadafora txoffice@wssllp.com 3/19/2024 4:56:43 PM SENT Laura Kherkher kherkher.l@wssllp.com 3/19/2024 4:56:43 PM SENT LaKeisha Williams-Till Williams-till.l@wssllp.com 3/19/2024 4:56:43 PM SENT Associated Case Party: NEXUS MEDICAL LLC Name BarNumber Email TimestampSubmitted Status McCathern Receptionist receptionist@mccathernlaw.com 3/19/2024 4:56:43 PM SENT Levi McCathern |mccathern@mccathernlaw.com 3/19/2024 4:56:43 PM SENT Justin N.Bryan jbryan@mccathernlaw.com 3/19/2024 4:56:43 PM SENT Craig A. Jackson 797925 craig@cjlawoffice.com 3/19/2024 4:56:43 PM SENT Elizabeth Criswell ecriswell@mccathernlaw.com 3/19/2024 4:56:43 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Jeffrey MTillotson jtillotson@tillotsonlaw.com 3/19/2024 4:56:43 PM SENT Joseph Alrrobali airrobali@tillotsonlaw.com 3/19/2024 4:56:43 PM SENT Coyt Johnston 10834400 randy@jtlaw.com 3/19/2024 4:56:43 PM SENT Emily Kathleen Stevenson 24048819 emilystevenson@sbcglobal.net 3/19/2024 4:56:43 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Jeffrey Tillotson on behalf of Jeffrey M. Tillotson Bar No. 20039200 swade@tillotsonlaw.com Envelope ID: 85730202 Filing Code Description: Motion - Summary Judgment Filing Description: AMENDED Status as of 3/20/2024 8:38 AM CST Case Contacts Emily Kathleen Stevenson 24048819 emilystevenson@sbcglobal.net 3/19/2024 4:56:43 PM SENT J. Marc Hesse 9549420 jmh@hesselaw.com 3/19/2024 4:56:43 PM SENT Scott John Luedke 24000097 sluedke@plainscapital.com 3/19/2024 4:56:43 PM SENT Kira Lytle klytle@tillotsonlaw.com 3/19/2024 4:56:43 PM SENT Francine Ly fly@dallascourts.org 3/19/2024 4:56:43 PM SENT Lauren Lopez llopez@tillotsonlaw.com 3/19/2024 4:56:43 PM SENT Phillip M.Hudson, ||| pmhudson@duanemorris.com 3/19/2024 4:56:43 PM SENT Gloria Agosto GAgosto@duanemorris.com 3/19/2024 4:56:43 PM SENT TJP Service tillotsonjohnsonpatton@gmail.com 3/19/2024 4:56:43 PM SENT Associated Case Party: DAVID SCHILLER Name BarNumber Email TimestampSubmitted Status David Schiller davids1071@yahoo.com 3/19/2024 4:56:43 PM SENT Associated Case Party: MARKC.WE|NER Name BarNumber Email TimestampSubmitted Status Jonathan Gitlin 24064305 jonathan.gitlin@rsbfirm.com 3/19/2024 4:56:43 PM SENT Patel Law Group plglitigation@patellegal.com 3/19/2024 4:56:43 PM SENT Associated Case Party: TONY SERNA Name BarNumber Email TimestampSubmitted Status Matthew Sparks matt@sparkslitigation.com 3/19/2024 4:56:43 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Jeffrey Tillotson on behalf of Jeffrey M. Tillotson Bar No. 20039200 swade@tillotsonlaw.com Envelope ID: 85730202 Filing Code Description: Motion - Summary Judgment Filing Description: AMENDED Status as of 3/20/2024 8:38 AM CST Associated Case Party: KING FIFER Name BarNumber Email TimestampSubmitted Status Timothy King Fifer 785860 kingfifer@g mail.com 3/19/2024 4:56:43 PM SENT