CAROLYN CALKINS JAMES,
NO. 01-13-00118-CV
Court of Appeals For The First District of Texas
Opinion issued August 21, 2014
On Appeal from the 125th District Court, Harris County, Texas, Trial Court Cause No. 2011-21236
OPINION
Appellant Carolyn Calkins James and her brother, appellee Richard Stephen Calkins, have, for years, been embroiled in litigation in multiple courts regarding the estate and guardianship of their mother, Mary Olive Calkins.1 In the underlying suit, Richard, as agent-in-fact of Mary, and appellee Michael Easton, pro se,2 sued Carolyn and her lawyers, claiming that they were fraudulently representing that Carolyn was the next friend of Mary and had fraudulently filed a lis pendens clouding title to Mary’s home. The appellants filed a motion to dismiss pursuant to the Texas Citizen’s Participation Act (TCPA), asserting that the lawsuit was related to their exercise of free speech, their freedom to petition, and their freedom of association. See
Background
The guardianship proceeding
In March 2008, Carolyn filed an application for guardianship of Mary in Harris County probate court. She contended that Mary was incapacitated and that Richard was abusing the power of attorney that Mary had executed in his favor in May 2007. That suit remains pending.
The 61st District Court declaratory judgment action
In December 2008, while the guardianship action was pending, Carolyn, individually and as next friend of Mary, sued Richard in the 61st District Court of Harris County. She sought a declaratory judgment that Richard obtained Mary’s 2007 power of attorney by fraud and breached his fiduciary duties in the handling of Mary’s property; that Mary’s execution of a 2007 deed conveying her home to a trust created and controlled by Richard is invalid; and that Richard is not the agent-in-fact of Mary. Richard, as the agent-in-fact of Mary, and Easton, as assignee of Richard’s individual claims, counterclaimed to enforce the power of attorney.
In September 2010, Carolyn executed a notice of lis pendens stating that the 61st District Court case “involve[d] the establishment of an interest in . . . and/or the right to possession of” Mary’s home and filed it with the Harris County clerk. That suit remains pending.
The underlying lawsuit
This appeal arises from a third lawsuit, which began in April 2011 and was filed in the 125th District Court. Easton and Richard, individually and as agent-in-fact for Mary, sued Judge Steve M. King of Probate Court #1 in Tarrant County, Probate Court #1 Court Administrator Mark W. Sullivan, Carolyn, and two of her lawyers, G. Wesley Urquhart and Kenneth Zimmern, alleging that Carolyn and her lawyers had conspired to engage in ex parte communications about Mary’s guardianship proceeding with “nearly every single probate judge in this state.”
In August 2011, Richard and Easton filed a second amended petition, wherein they dropped Judge King and Sullivan as defendants, and added as a defendant Mary Elizabeth Urquhart, who had notarized the 2010 lis pendens. The petition omitted the original allegations about an alleged conspiracy to communicate ex parte. Instead, the gravamen of this new petition was that Carolyn and her lawyers had fraudulently appeared in various courts on behalf of Mary, despite knowing that they had no authority to represent Mary, and had fraudulently filed the lis pendens that gave notice of the 61st District Court suit in order to secure payment of Carolyn’s legal fees, knowing that the filing was fraudulent and that Carolyn had no interest in Mary’s home. The purpose of the suit was to cancel the lis pendens and stop appellants from suing on Mary’s behalf. In their fourth amended petition, Richard sued only as agent-in-fact for Mary, and Easton sued individually and as
On November 21, 2012, Carolyn, G. Wesley, and Mary Elizabeth filed a motion for leave to file a motion to dismiss under the TCPA, and filed a motion to dismiss under the TCPA along with G. Wesley Urquhart, P.C. The motion asserted that all of Richard and Easton’s claims were based on the movants’ actions in or related to various lawsuits, and therefore were an attempt to restrict the movants’ freedom of speech, right to petition, and right of association. In response, Richard and Easton argued that the TCPA did not apply because their causes of action were all recognized causes of action in Texas.
On December 17, 2012, the trial court held a hearing, granted the motion for leave, and took the motion to dismiss under advisement. The trial court did not rule on the motion within 30 days of the hearing, and it was therefore overruled by operation of law. The movants timely appealed.
Appellate Jurisdiction
Before turning to the merits, we address (1) appellees’ argument that we lack jurisdiction over this appeal because G. Wesley Urquhart, P.C. was not served, and instead voluntarily appeared, (2) appellees’ motion to dismiss the appeals of Mary Elizabeth, G. Wesley, and his law firm because these appellants have been dismissed without prejudice from the underlying lawsuit, and (3) appellees’ argument regarding whether the TCPA applies to this case.
A. Are we deprived of jurisdiction over this appeal because one appellant waived service, and others sought leave to file a motion to dismiss after the statutory deadline?
Appellees argue that we lack jurisdiction over this appeal because G. Wesley Urquhart, P.C. was not formally served, and instead voluntarily appeared. The TCPA provides that “[a] motion to dismiss a legal action under this section must be filed not later than the 60th day after the date of service of the legal action.”
1. Standard of Review and Applicable Law
We review questions of jurisdiction and of statutory construction de novo. See Tex. Lottery Comm‘n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In interpreting statutes, our primary purpose is to give effect to the Legislature’s intent by relying on the plain meaning of the text adopted by the Legislature, unless a different meaning is supplied by statutory definition or is apparent from the context, or the plain meaning leads to absurd results. Tex. Lottery Comm‘n, 325 S.W.3d at 635.
2. Analysis
The TCPA provides that “[a] motion to dismiss a legal action under this section must be filed not later than the 60th day after the date of service of the legal action. The court may extend the time to file a motion under this section on a showing of
We disagree. With a few exceptions, a defendant may voluntarily appear in lieu of service. See
Appellees also complain that the trial court granted Carolyn, G. Wesley, and Mary Elizabeth’s motion for leave to file the joint motion to dismiss despite the fact that they had been served more than 60 days before they sought leave. They claim that this was error because it was premised upon the ability of G. Wesley Urquhart, P.C. to move for dismissal under the TCPA. But the statute expressly provides that the trial court may grant leave to file a motion after the 60-day deadline, and we have already concluded that G. Wesley Urquhart, P.C. was not precluded from filing a motion to dismiss. See
B. Are the appeals of Mary Elizabeth, G. Wesley, and G. Wesley Urquhart, P.C. moot?
Appellees moved to dismiss the appeals of Mary Elizabeth, G. Wesley, and G. Wesley Urquhart, P.C., for lack of jurisdiction, arguing that their appeals are moot because they have been dismissed without prejudice from the underlying lawsuit
1. Standard of Review and Applicable Law
Whether we have subject-matter jurisdiction is a legal question that we review de novo. Meeker v. Tarrant Cnty. Coll. Dist., 317 S.W.3d 754, 759 (Tex. App.—Fort Worth 2010, pet. denied); see Trulock v. City of Duncanville, 277 S.W.3d 920, 923 (Tex. App.—Dallas 2009, no pet.); City of Shoreacres v. Tex. Comm‘n of Envtl. Quality, 166 S.W.3d 825, 830 (Tex. App.—Austin 2005, no pet.). The question of whether an appeal is moot implicates subject-matter jurisdiction. See Meeker, 317 S.W.3d at 759; City of Shoreacres, 166 S.W.3d at 830.
“The mootness doctrine prevents courts from rendering advisory opinions, which are outside the jurisdiction conferred by article II, section 1 of the Texas constitution.” Meeker, 317 S.W.3d at 759 (citing Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000)). “A controversy must exist between the parties at every stage of the legal proceeding, including the appeal.” Id. (citing Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 427 (Tex. 2002); McClure v. JPMorgan Chase Bank, 147 S.W.3d 648, 651 (Tex. App.—Fort Worth 2004, pet. denied)). “An issue may become moot when a party seeks a ruling on some matter that, when rendered, would not have any practical legal effect on a then-existing controversy.” Id. When an appeal is moot, we must dismiss it. See id.
2. Analysis
After appellants filed this appeal, appellees nonsuited their claims against Mary Elizabeth, G. Wesley, and G. Wesley Urquhart, P.C., and the trial court signed orders granting the nonsuits. Appellees argue that, because these parties have been dismissed from the underlying proceeding, they have obtained the relief sought by their motion to dismiss, and their appeals are moot. The dismissed appellants, on the other hand, argue that the trial court should have granted their motion and awarded costs, fees, and sanctions, as they requested. See
We agree that Mary Elizabeth, G. Wesley, and G. Wesley Urquhart, P.C.’s appeals are not moot. In Villafani, Dr. Villafani moved to dismiss medical malpractice claims filed against him by Adela Trejo, arguing that Trejo’s expert report did not meet the statutory requirements of the Medical Liability Insurance Improvement Act (MLIIA). Id. at 467. He also requested sanctions under the MLIIA. Id. The trial court denied the motion. Id. Later, Trejo filed a notice of nonsuit without prejudice as to Villafani, and the trial court dismissed her claims. Id. Villafani appealed the trial court’s denial of his motion for sanctions and dismissal. Id. The court of appeals dismissed his appeal for lack of jurisdiction, holding that the nonsuit rendered Villafani’s appeal moot. Id. at 467–68.
The Supreme Court reversed. Although typically parties have an absolute right to a nonsuit, the decision to nonsuit does not affect a non-moving party’s independent claims for affirmative relief, which may include a motion for sanctions. Id. at 469–70. “Whether a particular sanction is considered a claim for affirmative relief
Allowing defendants to seek sanctions under the MLIIA for attorney’s fees and dismissal with prejudice deters claimants from filing meritless suits. Removing a defendant’s ability to appeal a denial of a motion for sanctions after a nonsuit frustrates this purpose; a claimant could simply nonsuit a meritless claim and later re-file the claim with impunity. Therefore, because the purpose of the sanctions under the MLIIA survived Trejo’s nonsuit of her claims, we hold that Villafani’s motion was for sanctions that survive a nonsuit and could be the subject of an appeal.
Id. at 470–71 (citations omitted).
Likewise, here, the TCPA provides for dismissal and sanctions “sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter,” and provides that such sanctions “shall” be awarded when dismissal is warranted under the TCPA. See
C. Does the TCPA apply to all of the claims in this case?
Appellees argue that the TCPA does not apply to this case because the underlying lawsuit was filed in April 2011, before the effective date of the TCPA.
1. Standard of Review and Applicable Law
The effective date of the TCPA is June 17, 2011. See Act of June 17, 2011, 82nd Leg., R.S., ch. 341, § 3, 2011 Tex. Gen. Laws 961, 964. The TCPA “applies only to a legal action filed on or after the effective date.”
The TCPA defines “legal action” as “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.”
2. Analysis
a. Defendants added after effective date
Here, it is undisputed that appellees filed their original petition before June 17, 2011, but amended it repeatedly after June 17, 2011. It is also undisputed that appellees joined Mary Elizabeth Urquhart and G. Wesley Urquhart, P.C. as defendants after June 17, 2011. In Better Business Bureau of Metropolitan Dallas, Inc. v. Ward, 401 S.W.3d 440 (Tex. App.—Dallas 2013, pet. denied), the Dallas Court of Appeals concluded that, because the
b. Claims amended after effective date
Appellees sued Carolyn and G. Wesley in April 2011, before the effective date of the TCPA. In the original petition, appellees asserted claims for monetary damages for an alleged civil conspiracy to violate the law through ex parte communications regarding the guardianship proceeding. The petition alleged that, as part of this conspiracy, Carolyn and her lawyers communicated ex parte with Judge Steve M. King of Probate Court #1 in Tarrant County and Probate Court #1 Court Administrator Mark W. Sullivan in an attempt to get favorable rulings from Judge King. The appellees sought a temporary and permanent injunction to prevent further communications.
However, in their second amended petition, filed in August 2011, appellees abandoned the allegations and claims based on a conspiracy to communicate ex parte, and they also dropped Judge King and Sullivan as defendants. In the second amended petition, appellees asserted claims for fraud and slander of title. The factual basis for the claims was Carolyn and her lawyers’ allegedly fraudulent attempt to (1) appear on behalf of Mary in court and (2) cloud title to Mary’s home by filing the lis pendens. The seventh amended petition, filed in October 2012, was the live pleading at the time the motion to dismiss was filed, and its factual basis was similar to that of the second amended petition and included claims for actual and constructive fraud, statutory barratry under
The TCPA applies to a “legal action” filed on or after June 17, 2011, and a “legal action” includes “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.” See Act of June 17, 2011, 82nd Leg., R.S., ch. 341, § 3, 2011 Tex. Gen. Laws 961, 964;
We note that the Corpus Christi Court of Appeals concluded in San Jacinto Title Services of Corpus Christi, LLC v. Kingsley Properties, LP, No. 13-12-00352-CV, 2013 WL 1786632 (Tex. App.—Corpus Christi Apr. 25, 2013, pet. denied) that a cause of action that was added after the effective date of the TCPA was not subject to dismissal under the TCPA, but we find Kingsley distinguishable. Id. at *5–6. There, the original petition, filed before the effective date of the TCPA, alleged breach of fiduciary duty and tortious interference with prospective business relations. Id. at *1. An amended petition filed after the effective date added a cause of action for business disparagement. Id. at *5. The defendants argued that the addition of the business disparagement cause of action rendered all of the claims, including the claims that pre-dated the effective date of the statute, subject to the TCPA, but the court of appeals rejected that argument. Id. at *5–6. Notably, there is no indication that the claim added after the statute’s effective date in Kingsley was based on different factual allegations than those in the original petition. Here, the amended petition filed after the statute’s effective date included substantively different factual allegations, and all of the causes of action alleged in the amended petition were new causes of action. Accordingly, we conclude that the TCPA applies to all of appellees’ claims against all appellants. See
Having concluded that we have jurisdiction and that the TCPA applies to all claims against appellants, we deny appellees’ motion to dismiss and turn to the merits of the appeal.
Motion to Dismiss under the TCPA
In their first issue, appellants contend that the trial court erred in denying their motion to dismiss because they proved by a preponderance of the evidence that the appellees’ claims “are based on, relate to, or are in response to [appellants’] exercise of the right of free speech, right to petition, and/or right of association,” and because appellees failed to establish by clear and specific evidence a prima facie case for each essential element of their claims. Appellants also contend that they are entitled to damages, costs, and sanctions.
A. Standard of Review and Applicable Law
To obtain dismissal under the TCPA, a defendant must show “by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.”
If the movant meets its burden to show that a claim is covered by the TCPA, to avoid dismissal of that claim, a plaintiff must establish “by clear and specific evidence a prima facie case for each essential element of the claim in question.”
The TCPA requires that the proof offered address and support each “essential element” of every claim asserted with “clear and specific evidence.” See
“As the statute does not define ‘clear and specific’ evidence, these terms are given their ordinary meaning.” Id. (citing TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)). “‘Clear’ means ‘free from obscurity or ambiguity,’ ‘easily understood,’ ‘free from doubt,’ or ‘sure.’” Id. (quoting MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 229 (11th ed. 2003)). “‘Specific’ means ‘constituting or falling into a specifiable category,’ ‘free from ambiguity,’ or ‘accurate.’” Id. (quoting MERRIAM WEBSTER’S COLLEGIATE DICTIONARY at 1198). “Clear and specific evidence has also been described as evidence that is ‘unaided by presumptions, inferences, or intendments.’” Id. (quoting Rehak Creative Servs., 404 S.W.3d at 726).
C. Analysis
Appellants argue that they proved that appellees’ claims were exclusively based on, related to, and in response to appellants’ exercise of their right of free speech, right to petition, and right to associate, because they demonstrated that all of appellees’ claims are based on appellants’ conduct in pending lawsuits. They assert that “all of Appellants’ conduct in pending lawsuits is privileged, and protected as the exercise of the right to freely speak, freely associate, and to petition the government.” Appellants’ Br. 28. Accordingly, we consider whether appellants showed by a preponderance of the evidence that appellees’ legal action is based on, relates to, or is in response their exercise of one of these rights, beginning with the right to petition. See
1. Exercise of the Right to Petition
The TCPA provides that “a communication in or pertaining to a judicial proceeding” constitutes the exercise of the right to petition. See
We agree that appellees’ claims in the underlying case are “based on, relate[] to, or [are] in response to” appellants’ exercise of the right to petition as defined by the TCPA. See
2. Appellees’ Prima Facie case
Because appellants met their initial burden under the TCPA, the burden shifted to appellees to establish “by clear and specific evidence a prima facie case for each essential element” of their claims.
a. Actual Fraud
“A plaintiff seeking to prevail on a fraud claim must prove that (1) the defendant made a material misrepresentation; (2) the defendant knew the representation was false or made the representation recklessly without any knowledge of its truth; (3) the defendant made the representation with the intent that the other party would act on that representation or intended to induce the party’s reliance on the representation; and (4) the plaintiff suffered an injury by actively and justifiably relying on that representation.” Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 217 (Tex. 2011).
Here, neither Richard, as agent-in-fact for Mary, nor Easton adduced any evidence that they relied upon any of the alleged fraudulent representations by the appellants. To the contrary, they assert that they knew from the beginning that the representations of appellants were false. Accordingly, we conclude that appellees failed to adduce clear and specific evidence to establish a prima facie case of actual fraud. See Better Bus. Bureau of Metro. Hous., 2013 WL 3716693, at *5.
b. Constructive fraud
“Constructive fraud is the breach of a legal or equitable duty that the law declares fraudulent because it violates a fiduciary relationship.” Hubbard v. Shankle, 138 S.W.3d 474, 483 (Tex. App.—Fort Worth 2004, pet. denied) (citing Archer v. Griffith, 390 S.W.2d 735, 740 (Tex. 1964)). “An informal fiduciary duty may arise from a moral, social, domestic or purely personal relationship of trust and confidence, generally called a confidential relationship.” Id. (citing Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 287 (Tex. 1998)). A familial relationship does not by itself establish a fiduciary relationship. See Tex. Bank & Trust Co. v. Moore, 595 S.W.2d 502, 507 (Tex. 1980).
Here, appellees adduced no evidence to show that any fiduciary duty was breached. Accordingly, the evidence does not clearly and specifically establish all of the essential elements of a prima facie constructive fraud claim. See Better Bus. Bureau of Metro. Hous., 2013 WL 3716693, at *5.
Section 82.0651 of the Government Code provides for civil liability for prohibited barratry. “A client may bring an action to void a contract for legal services that was procured as a result of conduct violating Section 38.12(a) or (b), Penal Code, or Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, regarding barratry by attorneys or other persons, and to recover any amount that may be awarded under Subsection (b).” See
As a threshold matter, section 82.0651 permits only the client of the “attorneys or other persons” to bring suit. The evidence shows that neither Richard, individually, nor Easton was a client of any of Carolyn’s lawyers. Thus, the evidence does not establish a prima facie case under section 82.0651 on their behalf.
Appellees allege in their petition that Carolyn and her lawyers entered into a fraudulent contingent fee contract which provided that Mary’s assets would be used to pay for Carolyn’s representation of Mary as next friend. They appear to claim that this contract constitutes a contract with Mary herself, therefore bringing it under the purview of section 82.0651. However, none of the evidence that appellees submitted showed the existence of any contract, or that the contract was actually entered into between Mary and Carolyn’s lawyers, as opposed to Carolyn and her lawyers. Accordingly, viewing all of the evidence in the light most favorable to the appellees, we conclude that appellees failed to adduce clear and specific evidence to establish a prima facie case under section 82.0651. See Better Bus. Bureau of Metro. Hous., 2013 WL 3716693, at *5.
d. Fraudulent lien
Section 12.002 of the Property Code forbids the filing of a fraudulent lien and allows a party injured by a fraudulent lien to recover damages. It provides:
(a) A person may not make, present, or use a document or other record with:
(1) knowledge that the document or other record is a fraudulent court record or a fraudulent lien or claim against real or personal property or an interest in real or personal property;
(2) intent that the document or other record be given the same legal effect as a court record or document of a court created by or established under the constitution or laws of this state or the United States or another entity listed in Section 37.01, Penal Code, evidencing a valid lien or claim against real or personal property or an interest in real or personal property; and
(3) intent to cause another person to suffer:
(A) physical injury;
(B) financial injury; or
(C) mental anguish or emotional distress.
See
“Generally speaking, the purpose of lis pendens notice is twofold: (1) to protect the filing party’s alleged rights to the property that is in dispute in the lawsuit and (2) to put those interested in the property on notice of the lawsuit.” David Powers Homes, Inc. v. M.L. Rendleman Co., Inc., 355 S.W.3d 327, 336 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Appellees claimed in their petition and in their response to the motion to dismiss that appellants knew that the lis pendens was fraudulent when it was filed, and that Carolyn admitted under oath that she knew that the lis pendens was fraudulent. But no evidence supports these assertions, and “[c]onclusory statements are not probative and accordingly will not suffice to establish a prima facie case.” Better Bus. Bureau of Metro. Hous., 2013 WL 3716693, at *5 (citing In re E.I. DuPont de Nemours & Co., 136 S.W.3d at 223–24). The evidence shows that the lis pendens provided notice of the pendency of the 61st District Court lawsuit, which requested a declaratory judgment that a 2007 deed conveying Mary’s home to a trust created and controlled by Richard is invalid. There is no evidence showing that Carolyn, or her lawyers, believe that the lis pendens is fraudulent or that the deed properly transferred the house to Richard. Appellees failed to adduce any evidence that, when viewed in the light most favorable to them, showed that any appellant knew that the lis pendens was fraudulent. Accordingly, we conclude that appellees failed to adduce clear and specific evidence to establish a prima facie case that appellants violated section 12.002 of the Property Code. See id.
Because appellees did not meet their burden to establish “by clear and specific evidence a prima facie case for each essential element” of their claims, we sustain appellants’ first issue in part with respect to their argument regarding their right to petition. See
Conclusion
We hold that appellants satisfied their burden under the TCPA to show that appellees’ claims against them are based on, relate to, or are in response to, the exercise of their right to petition. See
Rebeca Huddle
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Justice Sharp, concurring without opinion.