In Collins v. Collins, No. 01-17-00817-CV, (Tex. App. – Houston[1st Dist.], March 15, 2018) (mem. op.) Corinna Collins, the former wife of Bryant Collins, sued Kelly Collins, Bryant’s surviving spouse, and the administrator of Bryant’s 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.

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.

Corinna was married to Bryant for about 14 years during which time Bryant worked for ePlus, Inc. and did some consulting work for a company called Carol Crane. During their divorce, Bryant filed an affidavit which 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.

After the divorce, Bryant married Kelly. At some point, Corinna found that Bryant did have an interest in Carol Crane. Corinna filed suit.

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 under the Texas Anti-Slapp (TCPA) statute based on Bryant’s exercise of the “right to petition.” Corinna argued that the statute did not apply because the divorce was a private matter and not a matter of public concern. Kelly argued that the “right to petition” in the statute was unrelated to the use of the term “matter of public concern” in the statute.

The court of appeals first held that the Texas Anti-Slapp (TCPA) did apply to this situation.

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”… Whatever might be connoted by a reference to “free speech” in other contexts, for purposes of the (Texas Anti-Slapp )TCPA the “exercise of the right of free speech” is defined as “a communication made in connection with a matter of public concern”… Similarly, the “Exercise of the right to petition” is defined to include, among other things, “a communication in or pertaining to . . . a judicial proceeding…)…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.

Corinna’s claims are based in part on a written affidavit Bryant served in response to a discovery request during their divorce in 2007….Although the TCPA does not define “judicial proceeding,” neither party disputes that the divorce was a judicial proceeding, or that the discovery responses and inventory were “communications” made in the divorce proceeding.

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.”

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…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.

The court ruled that the Texas Anti-Slapp (TCPA) applied and that Kelly had met the first step in the Texas Anti-Slapp (TCPA) process. The burden then shifted to Corinna to establish by clear and specific evidence 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.” In the probate court, Corinna presented no evidence to establish a prima facie case for her claims.

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… 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.

Corinna relied only on her contention that the Texas Anti-Slapp (TCPA) did not apply. Relying solely on that, she did not produce any evidence of her claim. While her claim seemed valid, the court had to approve the motion to dismiss.

The moral here is – DON’T rely on one of the three steps required on the Texas Anti-Slapp (TCPA) put on evidence of all steps.

If you file the motion to dismiss or if you have it filed against you, pay attention to the following:

1. Assume that the Texas Anti-Slapp (TCPA) applies (you can argue it doesn’t apply but assume it does);
2. Make sure you put on evidence of your claim – evidence that if not challenged will support a verdict – non-movant.
3. Put on evidence of any and all defenses to the claim -movant.