634 S.W.3d 401
Tex. App.2021Background
- Ronald and Adrienne Bibby were appointed co-guardians of their adult son Erik (nonverbal, severely autistic) in 2016; dispute between them became strained.
- In July–August 2019 Adrienne requested and the probate court appointed a guardian ad litem (Baker), who investigated and recommended Ronald be sole guardian after finding the co-guardianship harmful to Erik.
- Adrienne filed a police report alleging Erik was sexually assaulted by a family member; Baker and subsequent investigations found little supporting evidence and noted disruption to Erik’s routine.
- Ronald filed an application under Tex. Estates Code §1203.052 to remove Adrienne as co-guardian, alleging she filed a false police report amounting to gross misconduct/abuse.
- Adrienne moved to dismiss Ronald’s removal application under the 2019 Texas Citizens Participation Act (TCPA); the probate court denied the TCPA motion and Adrienne appealed.
- The court of appeals held (1) the removal application is a “legal action” under the TCPA, (2) filing a police report invokes the right to petition, and (3) Ronald presented clear-and-specific prima facie evidence of abuse under §1203.052(a)(6), so the TCPA dismissal was properly denied. The judgment affirming the probate court was entered.
Issues
| Issue | Plaintiff's Argument (Ronald) | Defendant's Argument (Adrienne) | Held |
|---|---|---|---|
| Whether a guardianship-removal application is a “legal action” under the TCPA | Removal is a procedural remedy within a guardianship and not a TCPA "legal action" | The removal application is a petition/request for relief and thus a TCPA "legal action" | Held: removal application is a "legal action" under the TCPA and may be subject to TCPA analysis |
| Whether Adrienne’s police report is protected petition/free-speech conduct under the TCPA | Filing a false police report is not a protected constitutional right | Filing a police report is an exercise of the right to petition regardless of truth | Held: filing the police report invokes the right to petition; Adrienne made the TCPA movant’s initial showing |
| Preservation of evidentiary objections / motions to strike | Court properly considered evidence; opponent waived nothing | Adrienne argued trial court refused to rule on her motions to strike and objections | Held: Adrienne failed to preserve error — record does not show a refusal ruling she objected to |
| Whether Ronald met his burden to establish a prima facie case for removal (gross misconduct/abuse) | Presented clear and specific evidence (police/APS reports, affidavits, disruption to Erik) showing abusive conduct under §1203.052(a)(6) | Evidence was insufficient / conclusions were speculative; no prima facie showing | Held: Ronald met the clear-and-specific prima facie showing for abuse under §1203.052(a)(6); TCPA dismissal properly denied |
Key Cases Cited
- Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370 (Tex. 2019) (standard of review for denial of TCPA motion)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (nonmovant must establish prima facie case by clear and specific evidence under TCPA)
- In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218 (Tex. 2004) (definition of prima facie/minimum quantum of evidence)
- State ex rel. Best v. Harper, 562 S.W.3d 1 (Tex. 2018) (a removal petition seeks statutory legal relief and is a "legal action")
- Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021) (use of “petition” in pleadings and scope of judicial pleadings)
- Serafine v. Blunt, 466 S.W.3d 352 (Tex. App.—Austin 2015) (discussion of broad TCPA application and resulting issues)
- Buckingham Senior Living Cmty., Inc. v. Washington, 605 S.W.3d 800 (Tex. App.—Houston [1st Dist.] 2020) (filing police reports implicates right to petition)
- In re Estate of Calkins, 580 S.W.3d 287 (Tex. App.—Houston [1st Dist.] 2019) (interlocutory appellate jurisdiction over probate court TCPA denials)