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Kappos v. Baxter

Court of Appeals of Texas, Fifth District, Dallas

October 30, 2019

BRENDA KAPPOS, Appellant
v.
DOUGLAS F. BAXTER, Appellee

          On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-11757.

          Before Justices Myers, Osborne, and Nowell.

          MEMORANDUM OPINION

          LANA MYERS JUSTICE.

         Brenda 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.[1] Kappos brings three issues on appeal contending the trial court erred by granting Baxter's motion to dismiss. We affirm the trial court's judgment.

         BACKGROUND

         In 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 Baxter.

         In this 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.

         Baxter 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.

         PRO SE PARTIES

         Both 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. denied).

         TEXAS CITIZENS PARTICIPATION ACT

         In her 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."

         The 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.

         Determination of a motion to dismiss under the TCPA is a three-step process. Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018).[2] 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. ...


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