Robert R. Cole, Jr., Individually, and as Assignee of the Estate of Judge Robert R. Cole v. Carol Lynn Wolfram, Successor Guardian Ad Litem and Attorney Ad Litem
02-21-00410-CV
| Tex. App. | Apr 28, 2022Background
- In 2016 Robert R. Cole, Jr. sued the executor of Karen Cole’s estate and another defendant asserting multiple claims related to the estate.
- The probate court later found Linda Kay Cole a necessary party and appointed Carol L. Wolfram as guardian ad litem and attorney ad litem for Linda.
- Wolfram moved under the Texas Estates Code to require Cole to post security for costs and sought dismissal under Tex. R. Civ. P. 143 if security was not posted.
- Cole responded by filing a Texas Citizens Participation Act (TCPA) motion to dismiss, arguing Wolfram’s motion was a retaliatory “legal action” aimed at chilling his rights.
- The trial court denied Cole’s TCPA motion, concluding a motion for security for costs is not a “legal action” under the TCPA; the court of appeals affirmed.
- The court reasoned that the catchall phrase in the TCPA ("a filing that requests legal, declaratory, or equitable relief") does not encompass a procedural motion for security for costs because it requests no traditional remedy that changes parties’ legal relationship.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a motion for security for costs is a "legal action" under the TCPA (i.e., a "filing that requests legal, declaratory, or equitable relief"). | Cole: Wolfram's motion is a retaliatory legal action subject to TCPA dismissal because it seeks to punish/silence him. | Wolfram: The motion is a procedural request for security for costs, not a suit or filing that requests legal/declaratory/equitable relief under the TCPA. | The court held the motion for security for costs is not a "legal action" under the TCPA; therefore TCPA dismissal was not available and the trial court's denial was affirmed. |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (explains TCPA purpose and summary-dismissal framework)
- Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318 (Tex. 2017) (statutory terms must be read in context)
- Dow Jones & Co. v. Highland Capital Mgmt., L.P., 564 S.W.3d 852 (Tex. App.—Dallas 2018) (discusses the catchall "filing that requests relief" and concept that relief changes parties' relationship)
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (principles of statutory construction and looking to plain meaning)
- BBVA Compass Inv. Sols., Inc. v. Brooks, 456 S.W.3d 711 (Tex. App.—Fort Worth 2015) (appellate courts cannot consider materials outside the record)