Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 14th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-18-11757.
Justices Myers, Osborne, and Nowell.
Kappos appeals the trial court's dismissal of her claims
against Douglas F. Baxter under the Texas Citizens
Participation Act (TCPA). Tex. Civ. Prac. & Rem. Code
Ann. §§ 27.001-.011. Kappos brings three issues on
appeal contending the trial court erred by granting
Baxter's motion to dismiss. We affirm the trial
2016, Kappos brought suit in the federal court for the
Western District of Texas against multiple individuals, a
trust, and California judicial entities and judicial
officers. Baxter was a Deputy Attorney General for the State
of California, and he was assigned to represent the
California judicial officers and entities in the litigation.
Baxter filed a motion to dismiss Kappos's claims against
his clients, arguing the case should be dismissed under
Federal Rule of Civil Procedure 12(b) and because the proper
venue was California and not Texas. See Fed. R. Civ.
P. 12(b). Kappos responded, arguing that Baxter had made
misrepresentations in the motion. The federal court rejected
Kappos's arguments, but instead of dismissing, the court
transferred venue of the case to the federal court for the
Central District of California. The California federal
district court granted the defendants' motion to dismiss
for a variety of reasons. Less than a year later, Kappos
brought this suit in Texas state district court against
suit against Baxter, Kappos alleged Baxter "filed an
egregiously false written statement in a federal court"
stating "that a California state court had properly
litigated a consolidated case of two actions and rendered a
judgment" against Kappos. Kappos's allegations and
argument appear to assert that there was no California
state-court judgment against her because the court that
rendered the judgment lacked jurisdiction, or because
judgment was rendered on one part of the consolidated case
but not on the other part. Kappos's petition in this suit
alleged that Baxter's communications with the federal
court stating there was a California state-court judgment
constituted fraud, "abuse of process," gross
negligence, and civil conspiracy. She sought actual and
exemplary damages, an injunction, and declaratory relief.
moved for dismissal under the TCPA, asserting his
communications with the federal court were the exercise of
his right of free speech and his right to petition. He also
asserted the defenses of attorney immunity and the
judicial-proceedings privilege. Kappos filed a response to
the motion. The trial court held a hearing on the motion and
granted Baxter's motion to dismiss.
Kappos and Baxter represented themselves in the trial court
and before this Court. Kappos is not an attorney. We
liberally construe the pleadings and briefs of pro se parties
who are not licensed attorneys. Washington v. Bank of
N.Y., 362 S.W.3d 853, 854 (Tex. App.-Dallas 2012, no
pet.). However, we hold pro se litigants to the same
standards as licensed attorneys and require them to comply
with applicable laws and rules of procedure. Mansfield
State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978);
Washington, 362 S.W.3d at 854. To do otherwise would
give a pro se litigant an unfair advantage over a litigant
who is represented by counsel. Shull v. United Parcel
Serv., 4 S.W.3d 46, 53 (Tex. App.-San Antonio 1999, pet.
CITIZENS PARTICIPATION ACT
first issue, Kappos contends, "Did the district court
err in dismissing this action based on a conclusion of law
that any statements made in a judicial proceeding, whether
true or not, are protected under the TCPA?" In this
case, we determine whether Baxter's statements made in
the underlying federal court action constituted the exercise
of the right to petition as defined in the TCPA, and if so,
whether the trial court erred by dismissing Kappos's suit
under the TCPA. We do not address whether "any
statements made in a judicial proceeding . . . are protected
under the TCPA."
TCPA permits a defendant to move for dismissal of a legal
action that is "based on, relates to, or is in response
to a party's exercise of the right of free speech, right
to petition, or right of association." Civ. Prac. §
27.003(a). The statute's purpose "is to encourage
and safeguard the constitutional rights of persons to
petition, speak freely, associate freely, and otherwise
participate in government to the maximum extent permitted by
law and, at the same time, protect the rights of a person to
file meritorious lawsuits for demonstrable injury."
Id. § 27.002.
of a motion to dismiss under the TCPA is a three-step
process. Youngkin v. Hines, 546 S.W.3d 675, 679
(Tex. 2018). In step one, the movant for dismissal has
the burden of showing by a preponderance of the evidence that
the legal action is based on, relates to, or is in response
to the movant's exercise of one of those rights. Civ.
Prac. § 27.005(b). If the movant does so, then the
procedure moves to step two, and the burden of proof shifts
to the nonmovant 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(c). If the
nonmovant meets this burden, then the procedure moves to step
three, and the burden of proof shifts back to the movant to
"establish by a preponderance of the evidence each
essential element of a valid defense to the nonmovant's
claim." Id. § 27.005(d). If the movant
meets this burden, then the trial court "shall
dismiss" the legal action. Id. We review de
novo the trial court's determinations that the parties
met or failed to meet their burdens of proof under section
27.005. U.S. Anesthesia Partners of Tex. P.A. v.