Court of Appeals of Texas, Third District, Austin
THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 18-0609-C26,
THE HONORABLE DONNA GAYLE KING, JUDGE PRESIDING
Justices Goodwin, Baker, and Triana
D. TRIANA, JUSTICE
Tara and Paul Hamlin sued attorney Alton Lee Rigby and his
firm, Smith Robertson, L.L.P. (Appellants), claiming that
Appellants fraudulently domesticated a foreign judgment
against Tara Hamlin and in favor of Appellants' client,
MFG Financial, Inc. (MFG). Appellants filed a motion to
dismiss under the Texas Citizens Participation Act (TCPA),
which was denied by operation of law because the district
court did not rule on the motion. See Tex. Civ.
Prac. & Rem. Code § 27.008(a). We hold that the TCPA
applies to the Hamlins' claims and that Appellants are
entitled to dismissal based on the affirmative defense of
attorney immunity. Therefore, we reverse the district
court's denial of the motion to dismiss.
late 1990s, Tara Bertalan (now Tara Bertalan Hamlin)
purchased a gym membership in Phoenix, Arizona. She does not
dispute that she did not pay the membership fees that were
due. Debt collection company MFG acquired the interest in the
debt and sued Tara to recover it. On May 25, 1999, MFG
obtained a judgment against Tara in small claims court in
Arizona for the $774.00 principal amount of the debt, $476.33
in interest, and $21.75 in costs, for a total of $1272.08.
Under Arizona law, that judgment was valid for five years.
Tara did not pay that judgment, so on March 31, 2004, MFG
renewed the judgment. The renewal stated that its expiration
date was May 25, 2009, ten years from the original judgment
instead of five years from the date the renewal was docketed.
The court mailed a notice of renewal of the judgment to MFG
and Tara on April 1, 2004. Before the listed expiration date
of the renewal, on May 7, 2009, MFG again renewed the
judgment. MFG sent Tara a copy of the affidavit seeking
renewal. The court renewed the judgment for an additional 5
years, until May 7, 2014.
the second renewal expired, MFG hired Appellants to
domesticate the Arizona judgment in Texas, which they did. An
affidavit by Rigby and documents supporting a notice of the
filing for foreign judgment were sent by certified mail to
Tara on December 4, 2013. On December 12, 2013, Appellants
filed the authenticated copy of the May 7, 2009 judgment for
domestication on MFG's behalf. Notice of filing of the
foreign judgment was sent to Tara on January 29, 2014. In
April 2014, the clerk of the district court recorded the
judgment in Texas and on May 1, 2014, an abstract of the
judgment was filed in Williamson County.
and her husband, Paul, sold their Williamson County home in
June 2016. While attempting to close on the sale, the title
company discovered the abstract of judgment. The title
company informed the Hamlins that to close they would either
have to sign an affidavit testifying that the judgment did
not apply to their homestead or satisfy the debt. The Hamlins
executed the affidavit, and the sale closed on June 24, 2016.
In July 2016, the Hamlins sent Appellants a demand letter
seeking to have MFG release the debt on the basis that the
first renewal of the judgment had expired five years from the
date it was renewed, March 2009, rather than from the stated
expiration date, May 25, 2009. The Hamlins contend that
because the first renewal expired in March 2009, the second
renewal on May 7, 2009, was untimely. MFG, through
Appellants, filed a release of judgment in Williamson County
district court in September 2016. That release was recorded
in the public records of Williamson County in March 2017,
with the result that all of the claims arising from the
domestication of the judgment against Tara were released.
Nevertheless, in May 2018, the Hamlins sued MFG and
Appellants, seeking declaratory relief that the released
judgment is unenforceable, illegal, and fraudulent; seeking
to have the debt released and expunged from all the public
records; and seeking a minimum of $10, 000 in damages on
account of the mental anguish, inconvenience, pain,
suffering, and costs (including over $70, 000 in
attorney's fees) that the Hamlins have suffered and are
suffering as a result of having had the judgment against them
domesticated in Texas. The Hamlins allege that MFG and
Appellants engaged in illegal and fraudulent behavior by
violating Chapter 12 of the Civil Practice and Remedies Code
(fraudulent court records or liens) and the Deceptive Trade
Practices Act (DTPA).
answered with a general denial and a motion to dismiss under
the TCPA. The district court heard arguments on the motion to
dismiss, but did not rule on the motion, which was denied by
operation of law. Appellants filed this interlocutory appeal.
[TCPA] protects citizens who petition or speak on matters of
public concern from retaliatory lawsuits that seek to
intimidate or silence them." In re Lipsky, 460
S.W.3d 579, 584 (Tex. 2015). The protection comes in the form
of a motion to dismiss a suit that would stifle the
defendant's exercise of those rights. Id.
Reviewing a TCPA motion to dismiss requires a three-step
analysis. Youngkin v. Hines, 546 S.W.3d 675, 679
(Tex. 2018). First, the party moving for dismissal must show
by a preponderance of the evidence that the TCPA applies to
the legal action against it. Tex. Civ. Prac. & Rem. Code
§ 27.005(b). If the movant meets that burden, the
nonmovant must establish by clear and specific evidence a
prima facie case for each essential element of its claim.
Id. § 27.005(c). If the nonmovant satisfies
that requirement, the burden shifts back to the movant to
prove each essential element of any valid defenses by a
preponderance of the evidence. Id. § 27.005(d).
review de novo whether the movant has established by a
preponderance of the evidence that the TCPA applies and
whether the nonmovant has presented clear and specific
evidence establishing a prima facie case for each essential
element of the challenged claims. Serafine v. Blunt,
466 S.W.3d 352, 357 (Tex. App.-Austin 2015, no pet.). A party
may invoke the TCPA dismissal procedure if that party shows
by a preponderance of the evidence that the legal action
against it "is based on, relates to, or is in response
to" the party's exercise of the right to speak,
petition, or associate. Tex. Civ. Prac. & Rem. Code
§ 27.003(a); see Youngkin, 546 S.W.3d at 680.
The "exercise of the right to petition" includes
"a communication in or pertaining to . . . a judicial
proceeding." Tex. Civ. Prac. & Rem. Code §
27.001(4)(A). A "communication" is "the making
or submitting of a statement or document in any form or
medium." Id. § 27.001(1).
case, Appellants submitted documents in the form of the
Arizona judgment and at least the renewal with the May 7,
2014 expiration date to the district court in Williamson County
in order to domesticate that judgment in Texas. Under the
statute's definitions, Appellants made a communication in
or pertaining to a judicial proceeding, thereby exercising
the right to petition on behalf of their client. See
Youngkin, 546 S.W.3d at 680 (analyzing the
"expansive statutory definition of the 'exercise of
the right to petition'"); Hawxhurst v.
Austin's Boat Tours, 550 S.W.3d 220, 227-228 (Tex.
App.-Austin 2018, no pet.) (discussing the "right to
petition" and noting the "broad reach" of ...