Richard Stephen Calkins and His Counsel, Susan C. Norman v. Carolyn Calkins James and Maurice Bresenham, Jr., Administrator of the Estate of Mary Olive Hull Calkins, 580 S.W.3d 287

Background

Mary Olive Hull Calkins died on July 8, 2015; her daughter Carolyn filed to probate a 2002 will and Richard Calkins contested with a later will and codicils.
Probate court appointed Maurice Bresenhan as estate administrator and (per him) ordered him to file Mary Olive’s individual and estate income tax returns.
Bresenhan moved to compel Calkins and his attorney Susan Norman to produce tax- and asset-related documents; the probate court ordered production but Calkins/Norman refused.
On the production deadline, Calkins and Norman jointly filed a motion to dismiss under the Texas Citizens Participation Act (TCPA), alleging Bresenhan’s motion was retaliatory for their protected speech/petitioning/association and that the order improperly targeted Norman individually.
The probate court denied the TCPA motion and did not rule on Bresenhan’s late request for attorney’s fees; all parties appealed. The Court of Appeals affirmed.

Issues

Issue	Calkins/Norman's Argument	Bresenhan's/Respondent's Argument	Held
1. Whether judge’s prior disqualification/recusal in a guardianship case voided his authority in probate	Judge Wood was or should have been disqualified/recused based on prior proceedings; his continued participation voids proceedings	Record does not show constitutional disqualification in probate; remedy for prior recusal differs and is not reviewable in this interlocutory TCPA appeal	Not reached on merits; issue outside scope of interlocutory appeal and record ambiguous as to nature of prior removal (recusal vs constitutional disqualification)
2. Whether probate application was prematurely filed before decedent’s death (Estates Code §256.002)	Carolyn filed to probate while Mary Olive was alive, so probate is void	Determination of time of death and probate validity are factual matters outside the TCPA interlocutory appeal	Not considered; outside scope of TCPA appeal and would require factfinding not appropriate on interlocutory appeal
3. Whether the TCPA requires dismissal of Bresenhan’s motion for tax information (and/or entire probate)	Bresenhan’s motion was based on, related to, or in response to Calkins/Norman’s exercise of protected rights; therefore TCPA dismissal required	Bresenhan’s motion sought ordinary compliance with court order to prepare tax returns and contains no indication it targeted protected expression; TCPA motion was untimely if aimed at the underlying probate filing	Court held Calkins/Norman failed to meet their initial burden under TCPA to show the motion was based on protected conduct; denial of TCPA motion affirmed; even if timely, only the tax-motion (not entire probate) could be dismissed
4. Whether respondent (Bresenhan) preserved claim for attorney’s fees under TCPA §27.009(b)	N/A (appellant contested denial of fees)	Probate court implicitly/explicitly failed to award fees though request made at hearing; seeks reversal/fees	Fee issues not preserved for appeal because no ruling (oral or written) denying fees and Bresenhan withdrew pressing the request at hearing; appellate complaints overruled

Key Cases Cited

CMH Homes v. Perez, 340 S.W.3d 444 (Tex. 2011) (interlocutory appeal statutes are narrow exception to final-judgment rule)
In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA burden-shifting framework and evidentiary standards)
In re Union Pac. Res. Co., 969 S.W.2d 427 (Tex. 1998) (mandamus available to compel disqualification when judge is constitutionally disqualified)
ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (TCPA as mechanism to dismiss actions meant to chill First Amendment rights)
Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146 (Tex. 1982) (constitutional disqualification affects judge’s power and may be raised anytime)