The opinion
Opinion issued March 15, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00817-CV
———————————
KELLY COLLINS, Appellant
V.
CORINNA COLLINS, Appellee
On Appeal from the Probate Court No. 1
Harris County, Texas
Trial Court Case No. 456765-401
MEMORANDUM OPINION
Corinna Collins, the former wife of Bryant Collins, sued Kelly Collins, who
was Bryant’s surviving spouse and the administrator of his estate. Corinna alleged
causes of action for fraud, conversion, and partition based on Bryant’s alleged
misrepresentation or nondisclosure of assets during their divorce. Kelly filed a
motion to dismiss under the Texas Citizens Participation Act based on exercise of
the right to petition, because Corinna’s claims were based on communications
made during a judicial proceeding. See TEX. CIV. PRAC. & REM. CODE § 27.001(1),
(4)(A)(i). Corinna argued in response that the TCPA did not apply because the
dispute did not involve a matter of public concern. The probate court denied the
motion, and Kelly filed this interlocutory appeal.
Kelly challenges the probate court’s ruling in six issues. The first three
issues contend that the court erred by denying the motion to dismiss to the extent it
determined the TCPA does not apply to this case. The remaining issues argue that
Corinna failed to establish a prima facie case by clear-and-specific evidence, that
Kelly proved a defense to the cause of action by a preponderance of the evidence,
and that the court erred by denying a request for damages and costs, as provided by
the statute.
We conclude that the TCPA applies. Because Corinna made no effort to
demonstrate a prima facie case, we reverse the order of the probate court, render
judgment dismissing the case against Kelly, and remand to the probate court for a
determination of statutory damages and costs. See id. § 27.009.
Background
Appellee Corinna Collins was married to Bryant Collins from 1993 until
they divorced in 2007. In October 2006, Bryant entered into a contract to work as a
2
sales consultant for Carol Crane Rigging & Lifting Technology, Inc. The contract
specified a contingent compensation structure, which provided that Bryant would
be paid a percentage of revenue and a portion of the sales commission if the
business was sold.
In response to a discovery request during the divorce, Bryant produced an
affidavit in which he averred that he was employed full time by ePlus, Inc. and that
he had done some consulting work for Carol Crane in 2006, for which he had been
paid. In regard to his relationship to Carol Crane, Bryant stated: “At no time did I
have any ownership in the company. I also have not since agreed to any future
deferred compensation agreements and am not owed any compensation for any
work performed in the past or since that time. I receive no income or benefits from
any entity other than ePlus, Inc.” A letter from David Martinez, Jr., the owner of
Carol Crane, supported Bryant’s affidavit. Martinez confirmed that Bryant had no
ownership in Carol Crane, that he had been paid in full, and that no additional
compensation was contemplated or owed.
In late 2007, the divorce court entered judgment on a mediated settlement
agreement. Bryant agreed that Corinna should have over 90% of the community
property, and he agreed to pay her spousal support in excess of what could be
required by law. Both Bryant and Corinna testified that they believed this was a
fair and equitable division of the marital estate. Bryant later married Kelly.
3
In 2008, Bryant became a salaried executive and 30% shareholder of Carol
Crane. In 2013, Bryant and Martinez litigated a business dispute related to their
obligations and ownership interests in Carol Crane. In connection with that case,
Bryant testified that an agreement between them in 2008 had superseded the 2006
agreement.
Bryant died in 2017, and Corinna filed a claim in the probate court. She
alleged that Bryant had a contingent ownership interest in Carol Crane in 2007,
though his affidavit averred that he had been paid in full and had no expectation of
future compensation. Corinna alleged common-law fraud and fraud by
nondisclosure, both based on Bryant’s affidavit and actions taken in their 2007
divorce. She also alleged conversion, and she sought a partition of the property
interest based on the same factual allegations.
Kelly filed a motion to dismiss Corinna’s claims arguing that they were
based on, related to, and in response to Bryant’s exercise of the right to petition,
and therefore she was entitled to have the claims dismissed pursuant to the Texas
Citizens Participation Act. In response, Corinna argued that the TCPA did not
apply because the divorce involved a private matter, not a matter of public concern.
The probate court denied Kelly’s motion to dismiss, and she filed this interlocutory
appeal.
4
Analysis
On appeal, Kelly argues that the probate court erred by denying her motion
to dismiss. She argues that the TCPA applies to a claim based on the “right to
petition,” even if it is unrelated to a matter of public concern. She also argues that
all of Corinna’s claims were based on, related to, and in response to
communications made in a judicial proceeding and Bryant’s exercise of his right to
petition as defined by the TCPA. Kelly further argues that the court should have
granted the motion to dismiss because Corinna failed to establish a prima facie
case for her claims by clear-and-specific evidence and because she proved all the
elements of an affirmative defense by a preponderance of the evidence. As such,
she contends that the probate court should have awarded her damages and costs as
provided by statute.
I. Applicability of the TCPA
Kelly’s first three issues concern the applicability of the TCPA to the facts
of the underlying case. We review these issues de novo to the extent they involve
interpretation of a statute. Better Bus. Bureau of Metro. Hous., Inc. v. John Moore
Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied). “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
5
apparent from the context, or the plain meaning leads to absurd results.” Id. (citing
Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.
2010)).
The expressly enacted legislative purpose of the TCPA is to “encourage and
safeguard the constitutional rights” of people to “petition, speak freely, associate
freely, and otherwise participate in government to the maximum extent permitted
by law” while simultaneously protecting an individual’s right “to file meritorious
lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002. To
achieve this goal, the TCPA provides for the early dismissal of certain categories
of meritless cases. See id. § 27.003.
The dismissal procedure in the TCPA is a two-step process. In the first step,
a party files a motion to dismiss asserting that the “legal action” against her is
based on, relates to, or in response to her “exercise of the right of free speech, right
to petition, or right of association.” Id. § 27.003(a); see In re Lipsky, 460 S.W.3d
579, 586 (Tex. 2015). Considered in the abstract, the rights to free speech, petition,
and association have a constitutional dimension. But in the specific context of the
TCPA, the Legislature defined the types of communications that trigger the
procedure. The movant must establish by a preponderance of the evidence that “the
legal action is based on, relates to, or is in response to” her exercise of the
aforementioned rights, as they are statutorily defined. See TEX. CIV. PRAC. & REM.
6
CODE § 27.005(b); see also id. § 27.001(2) (limiting the “exercise of the right of
association” for purposes of the TCPA to communications “between individuals
who join together to collectively express, promote, pursue, or defend common
interests”); id. § 27.001(3) (limiting the “exercise of the right of free speech” for
purposes of the TCPA to communications “made in connection with a matter of
public concern”); id. § 27.001(4) (limiting the “exercise of the right to petition” for
purposes of the TCPA to thirteen particular categories of communications).
The second step of the TCPA dismissal procedure concerns whether the
“legal action” has sufficient indicia of merit to proceed. See id. § 27.005(c), (d).
After the movant has met her burden in the first step, the court is required to
dismiss the legal action unless the nonmovant establishes “by clear and specific
evidence a prima facie case for each essential element of the claim in question.”
See id. § 27.005(c). Clear-and-specific evidence means “enough detail to show the
factual basis” for the claim, and it requires more than “mere notice pleading.”
Lipsky, 460 S.W.3d at 590–91. A prima facie case means “evidence sufficient as a
matter of law to establish a given fact if it is not rebutted or contradicted” or “the
minimum quantum of evidence necessary to support a rational inference that the
allegation of fact is true.” Id. at 590.
Kelly’s motion to dismiss argued that because Corinna’s suit was “based on
an affidavit provided by Bryant in their 2007 divorce suit,” it was a legal action
7
based on communications made in a judicial proceeding. In response, Corinna
argued that the TCPA did not apply because the communications were not related
to a matter of public concern.
The TCPA specifies the scope of communications included within the
definitions of the “exercise of the right to free speech” and the “exercise of the
right to petition.” See id. § 27.001(3), (4). Whatever might be connoted by a
reference to “free speech” in other contexts, for purposes of the TCPA the
“exercise of the right of free speech” is defined as “a communication made in
connection with a matter of public concern.” Id. § 27.001(3). Similarly, the
“Exercise of the right to petition” is defined to include, among other things, “a
communication in or pertaining to . . . a judicial proceeding . . . .” Id.
§ 27.001(4)(a)(i). Critically, the words “matter of public concern” are not included
as any part of the statutory definition of the “exercise of the right to petition” for
purposes of the TCPA. See id. § 27.001(4). “‘Communication’ includes the making
or submitting of a statement or document in any form or medium, including oral,
visual, written, audiovisual, or electronic.” Id. § 27.001(1).
Corinna’s claims are based in part on a written affidavit Bryant served in
response to a discovery request during their divorce in 2007. She also bases her
common-law fraud claim on Bryant’s allegedly incomplete written inventory.
Although the TCPA does not define “judicial proceeding,” neither party disputes
8
that the divorce was a judicial proceeding, or that the discovery responses and
inventory were “communications” made in the divorce proceeding.
Relying on legislative history and a prior case from this court, Corinna
argues that the TCPA does not apply to her claims because they do not relate to a
matter of public concern. “Unambiguous statutory language is interpreted
according to its plain language unless such an interpretation would lead to absurd
results.” Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009). We do not
employ the rules of statutory construction or extrinsic aids such as legislative
history when the statute’s language is clear and unambiguous. Molinet v. Kimbrell,
356 S.W.3d 407, 414 (Tex. 2011). There has been no argument or demonstration
that the statutory definition of “exercise of the right to petition” is ambiguous.
Corinna contends that I-10 Colony, Inc. v. Lee, No. 01-14-00465-CV, 2015
WL 1869467 (Tex. App.—Houston [1st Dist.] Apr. 23, 2015, no pet.) (mem. op.),
supports her argument that the TCPA does not apply to her case because it does not
involve a matter of public concern. In I-10 Colony, the defendant moved to dismiss
the plaintiff’s fraud claim under the TCPA, arguing that the claim was “based on
its exercise of the right to free speech.” 2015 WL 1869467, at *2. The statutory
definition of the exercise of the right of free speech includes “a communication
made in connection with a matter of public concern.” See TEX. CIV. PRAC. & REM.
CODE § 27.001(3). Relying on the plain language of the statute, this court
9
concluded that the statements alleged as the basis of the fraud claim were not made
in connection with a matter of public concern. I-10 Colony, 2015 WL 1869467, at
*4–5. As such, the court held that the trial court did not err by denying the motion
to dismiss.
Corinna contends that Kelly’s argument “that a communication made in or
pertaining to a judicial proceeding need not involve a matter of public concern . . .
flies in the face of this Court’s holding” in I-10 Colony. We disagree. This case is
distinguishable because it involves the right to petition, while I-10 Colony involved
the right of free speech. Under the plain language of the TCPA, a legal action that
is based on, related to, or in response to a party’s exercise of the right to petition
need not involve a matter of public concern because the definition of “right to
petition” does not mention “public concern.” See TEX. CIV. PRAC. & REM. CODE
§ 27.001(4).
Finally, Corinna contends that application of the TCPA to her claim without
requiring the movant to show a connection to a matter of public concern would
lead to absurd results. She argues: “Incredibly, appellant contends that any claim
based on another’s ‘exercise of the right to petition’ is subject to dismissal under
the TCPA.” She contends that Kelly’s interpretation of the statute would disallow
partition suits and breach-of-contract suits arising from prior settlements.
Corinna’s absurdity argument wrongly assumes that suits subject to the TCPA are
10
automatically dismissed. Establishing that the statute applies is, however, just the
first step of the procedure. The TCPA allows the nonmovant to proceed with her
legal action by demonstrating a prima facie case by clear-and-specific evidence.
See id. § 27.005(c). Considering the TCPA as a whole and applying its plain text,
we do not agree that interpreting “exercise of the right to petition” according to the
statutory language will lead to an absurd result.
Considering the undisputed facts and the statutory definitions, we conclude
that for the purpose of the TCPA, Bryant was exercising his right to petition when
he served the affidavit and inventory in the divorce. See id. § 27.001(1), (4)(a)(i).
Thus, to invoke the TCPA dismissal procedure, all that Kelly was required to show
was that Corinna’s claims were based on, related to, or in response to Bryant’s
exercise of the right to petition. See id. § 27.003.
In her petition, Corinna alleged that Bryant committed common-law fraud
by misrepresenting his assets and failing to “disclose the existence of the contract
with Carol Crane on his inventory or in responses to discovery.” Corinna’s causes
of action for partition, conversion, and fraud by nondisclosure rely on the same
factual allegations to support her claim for a share of Bryant’s interest in Carol
Crane.
Corinna’s claims are based on the inventory and discovery responses served
by Bryant during the parties’ divorce. Her legal action was shown to be based on,
11
related to, or in response to Bryant’s exercise of the right to petition as defined by
the statute. The claims were brought against Kelly in a representative capacity, as
the administrator of Bryant’s estate. We conclude that the TCPA applies, and we
sustain Kelly’s first three issues.
II. Failure to establish a prima facie case
In her fourth issue, Kelly argues that Corinna failed to establish by clear-
and-specific evidence a prima facie case for each essential element of her claims.
When applying the TCPA, a court “may not dismiss a legal action” if the party
bringing the legal action “establishes by clear and specific evidence a prima facie
case for each essential element of the claim in question.” Id. § 27.005(c). In the
probate court, Corinna presented no evidence to establish a prima facie case for her
claims.
Kelly demonstrated that Corinna’s claims are based on or related to Bryant’s
exercise of the right to petition. But Corinna’s response to the motion to dismiss
expressly responded only to the first step of the inquiry—whether Kelly had
established the applicability of the TCPA. In the probate court, Corinna relied
entirely on her atextual interpretation of the statutory definition of “right to
petition.” In addition, she asserted that the dismissal procedure involved a two-step
“process,” and she asked for additional time to file a further response if the court
determined that Kelly had met her burden of proof on the first step.
12
On appeal, Corinna makes a different argument, asserting that the pleadings
and Kelly’s evidence prove the essential elements of her claims. She also suggests
that this court, as part of its review, should search the record for the purpose of
locating and identifying the evidence that supports a prima facie case of her claims,
without identifying such evidence in her brief by citations to the record. The TCPA
puts the burden on “the party bringing the legal action” to “establish by clear and
specific evidence a prima facie case for each essential element of the claim in
question.” Id. § 27.005. This burden never shifts to the movant to refute her own
motion or to the court to search the record for responsive evidence. See id.
§§ 27.001–.011.
In the probate court, Corinna presented neither argument nor evidence to
establish a prima facie case. Only her pleadings appear in the record. Mere notice
pleading is insufficient to support a prima facie case. See Lipsky, 460 S.W.3d at
590–91. Corinna was required to establish the factual basis for her claims by clear
and specific evidence. Because she did not do so, we conclude that she did not
establish a prima facie case for any of her causes of action. We sustain Kelly’s
fourth issue.
Conclusion
Corinna’s case was based on, related to, or in response to Bryant’s exercise
of the right to petition. See TEX. CIV. PRAC. & REM. CODE § 27.005(b). Corinna
13
failed to establish by clear and specific evidence a prima facie case for each
essential element of her claims. See id. § 27.005(c). We therefore conclude that the
probate court erred by denying the TCPA motion to dismiss. We need not address
Kelly’s remaining argument, that she established by a preponderance of the
evidence each element of a valid defense to the nonmovant’s claim. See TEX. R.
APP. P. 47.1; see also TEX. CIV. PRAC. & REM. CODE § 27.005(d). Because a
successful movant is entitled to an award of “court costs, reasonable attorney’s
fees, and other expenses incurred in defending against the legal action as justice
and equity may require,” we sustain Kelly’s sixth issue which seeks remand for a
determination of costs, fees, and expenses. See TEX. CIV. PRAC. & REM. CODE §
27.009(a)(1).
We reverse the trial court’s denial of the motion to dismiss and remand the
case to the trial court to award costs, fees, and expenses as required by the TCPA
and to order dismissal of the suit with prejudice. See id. § 27.009(a).
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
14