Brenda Kappos v. Douglas F. Baxter

AFFIRMED: Opinion Filed October 30, 2019

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00020-CV

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

MEMORANDUM OPINION
Before Justices Myers, Osborne, and Nowell
Opinion by Justice Myers
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

1
The Texas Legislature amended the TCPA effective September 1, 2019. Those amendments apply to “an action filed on or after” that date.
Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex. Sess. Law Serv. 684, 687. Because this lawsuit was filed before September 1, 2019,
the law in effect before September 1 applies. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961–64, amended by
Act of May 24, 2013, 83d Leg., R.S., ch. 1042, 2013 Tex. Gen. Laws 2499–2500. All citations to the TCPA are to the version before the 2019
amendments took effect.
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

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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

2
In ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam), the supreme court described it as a “two-step
procedure.” The actual parts of the procedure are the same under both ExxonMobil and Youngkin, relying on section 27.005(b), (c), and (d).

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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. Mahana, No. 05-18-01414-CV, 2019 WL 4044086, at *3 (Tex. App.—Dallas Aug.

27, 2019, pet. filed); Lei v. Natural Polymer Int’l Corp. 578 S.W.3d 706, 712 (Tex. App.—Dallas

2019, no pet.); Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas 2019,

pet. denied).

The evidence considered by the trial court in determining a motion to dismiss includes “the

pleadings and supporting and opposing affidavits stating the facts on which the liability or defense

is based.” CIV. PRAC. § 27.006(a). The plaintiff’s pleadings are usually “the best and all-sufficient

evidence of the nature of the action.” Hersh v. Tatum, 526 S.W.3d 562, 567 (Tex. 2017) (quoting

Stockyards Nat’l Bank v. Maples, 95 S.W.2d 1300, 1302 (Tex. 1936)).

Step One

In step one of the analysis, Baxter had the burden to establish by a preponderance of the

evidence that Kappos’s legal action against him was based on, related to, or was in response to

Baxter’s exercise of the right of free speech, the right to petition, or the right of association. Id. §

27.005(b).

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 Exercise of the right to petition includes “a communication in or pertaining to . . . a judicial

proceeding . . . .” CIV. PRAC. § 27.001(4)(A)(i). Central to this definition is “a communication,”

which “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).

Kappos alleged in her petition that Baxter, an attorney, “filed an egregiously false written

statement in a federal court of this state of Texas. Specifically, . . . Baxter said that a California

state court had properly litigated a consolidated case of two actions and rendered a judgment in

the consolidated case against . . . Kappos.” Kappos states in her brief that “the gist of Kappos’s

causes of action were for Baxter’s false statements that unlawfully fabricated and used a California

state court judgment against Kappos.” She explains that Baxter made those statements in the

litigation concerning the motion to dismiss her federal suit. Baxter stated in the motion to dismiss

that there was a judgment rendered against Kappos in the underlying litigation in California state

court.

Baxter’s motion to dismiss the federal suit was a written document submitted to the federal

court; therefore, it was a communication. This communication pertained to the federal case.

Therefore, the document was “a communication in or pertaining to a judicial proceeding” and was

Baxter’s exercise of the right to petition.

Kappos’s petition and her brief on appeal make clear that this suit was based on, related to,

or was in response to the motion to dismiss Baxter filed in the federal court. We conclude the trial

court did not err by determining Baxter proved by a preponderance of the evidence that Kappos’s

suit was based on, related to, or was in response to Baxter’s exercise of the right to petition.

Step Two

The burden then shifted to Kappos to establish by clear and specific evidence each essential

element of her causes of action. See CIV. PRAC. § 27.005(c). Kappos filed a response to Baxter’s

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motion to dismiss, but she did not file any additional evidence with it. Her response did not explain

how the pleadings or other evidence established by clear and specific evidence each element of

her causes of action. Nor does she make that showing on appeal.

Step Three

If we assume Kappos had met her burden to establish by clear and specific evidence a

prima facie case for each essential element of her causes of action, then the burden of proof shifted

to Baxter to prove each essential element of a valid defense by a preponderance of the evidence.

See id. § 27.005(d). One of the defenses Baxter pleaded in his answer and asserted in his motion

to dismiss was attorney immunity.

Under the defense of attorney immunity, “an attorney is immune from liability to

nonclients for conduct within the scope of his representation of his clients.” Youngkin, 546 S.W.3d

at 681. “Put differently, an attorney may be liable to nonclients only for conduct outside the scope

of his representation of his client or for conduct foreign to the duties of a lawyer.” Id. This inquiry

“focuses on the kind of conduct at issue rather than the alleged wrongfulness of said conduct. That

is, a lawyer is no more susceptible to liability for a given action merely because it is alleged to be

fraudulent or otherwise wrongful.” Id. (citation omitted). Attorney immunity is necessary to

enable an attorney to zealously represent clients without being “forced constantly to balance his

own potential exposure against his client’s best interest.” Alpert v. Crain, Caton & James, P.C.,

178 S.W.3d 398, 405 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

In Youngkin, Youngkin represented the Scotts in a real estate dispute with Hines. The

parties reached a Rule 11 agreement settling the dispute, which Youngkin read into the record.

Youngkin, 546 S.W.3d at 678. Youngkin prepared the deeds to carry out the settlement. Id. When

Hines thought the deeds varied from the terms of the Rule 11 agreement, he sued Youngkin and

the Scotts. Id. at 679. Hines alleged that Youngkin knowingly participated in the Scotts’

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fraudulent scheme to deprive Hines of his property. Id. Under the TCPA, Youngkin moved for

dismissal of Hines’s claims against him, and he asserted the defense of attorney immunity. Id.

The supreme court determined that Hines’s suit was based on, related to, or was in response to

Youngkin’s exercise of the right to petition. Id. at 680–81. The supreme court assumed without

deciding that Hines met his burden under step two of establishing a prima facie case for his claims.

Id. at 681. The supreme court then determined that Youngkin was protected by attorney immunity

from Hines’s suit. Id. at 681–83. The supreme court concluded Hines’s claims against Youngkin

“must be dismissed.” Id. at 683.

The facts in Youngkin are similar to those in this case. Both suits were based on statements

to the court that the plaintiffs alleged were part of a fraudulent scheme by the attorney with his

clients. As part of his representation of his clients, Baxter stated in a motion filed in the federal

litigation that there was a judgment in the underlying California state-court litigation. Whether

the statements were wrong, fraudulent, or part of a conspiracy to defraud Kappos does not affect

the applicability of the defense of attorney immunity. See Youngkin, 546 S.W.3d at 681. Kappos

was not Baxter’s client. Therefore, following Youngkin, we conclude that Baxter is immune from

Kappos’s suit based on his actions while representing his clients, including his statements in court

filings that there was a judgment in the California state-court litigation.3

We conclude Baxter established by a preponderance of the evidence the elements of the

defense of attorney immunity. Because Baxter established a valid defense to Kappos’s claims by

3
In Youngkin, the court stated there are exceptions to attorney immunity: “participation in a fraudulent business scheme with a client,
knowingly helping a client with a fraudulent transfer to avoid paying a judgment, theft of goods or services on a client’s behalf, and assaulting
opposing counsel during trial.” Youngkin, 546 S.W.3d at 682–83. Kappos did not allege any such behavior. The supreme court also observed,
“That is not to say that an attorney could not be held liable to his own client for misconduct similar to that alleged by Hines or be reprimanded for
ethics violations. But to be held liable to the opposing party is a wholly different matter.” Id. at 682.

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a preponderance of the evidence, the trial court was required to dismiss Kappos’s claims.4 See

CIV. PRAC. § 27.005(d); Youngkin, 546 S.W.3d at 683. We overrule appellant’s first issue.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In her second issue, Kappos contends, “Did the district court err in dismissing this action

as a meritless lawsuit without making any findings of fact, and/or alternatively allowing arguments

of facts of a California state court judgment not in the court record?” If general findings of fact

and conclusions of law are required when properly requested following dismissal of a legal action

under the TCPA,5 then a party seeking findings of fact and conclusions of law must file a written

request within twenty days after the signing of the judgment. TEX. R. CIV. P. 296. The record

does not show that Kappos requested findings of fact and conclusions of law. Accordingly, the

trial court did not err by not making findings of fact and conclusions of law.

Concerning Kappos’s contention that the trial court should have allowed argument about

the “facts of a California state court judgment not in the record,” Kappos presented argument about

the judgment in her response to Baxter’s motion to dismiss. At the hearing on the motion to

dismiss, Kappos presented argument about the judgment. Kappos does not explain how the trial

did not allow her to argue. We conclude Kappos has not shown the trial court erred. We overrule

Kappos’s second issue.

ADMISSION OF EVIDENCE

In her third issue, Kappos contends, “Did the district court err to allow fraudulent

documents, and/or fraudulent statements by Baxter into the court record?” Kappos does not

4
Having concluded that Baxter established the defense of attorney immunity, we do not address whether he established the
judicial-proceedings privilege.
5
This Court has not addressed whether a party may be entitled to findings of fact and conclusions of law under Rule 296 concerning whether
the parties met their burdens of proof under section 27.005. Because Kappos did not file a request for findings of fact and conclusions of law, we
do not address that issue. See Batra v. Covenant Health Sys., 562 S.W.3d 696, 705–06 (Tex. App.—Amarillo 2018, pet. denied) (declining to
address whether findings of fact and conclusions of law under Rule 296 are required following dismissal under the TCPA when party did not file
notice of past due findings of fact and conclusions of law as required by Rule 297).

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identify which documents and statements she contends were not admissible. Kappos does not

explain why the documents and statements were inadmissible, and she does not cite any authority

showing the documents should not have been considered by the trial court. See TEX. R. APP. P.

38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.”). We conclude Kappos has not shown the

trial court erred. We overrule Kappos’s third issue.

CONCLUSION

We affirm the trial court’s judgment.

/Lana Myers/
LANA MYERS
JUSTICE

190020F.P05

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 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

BRENDA KAPPOS, Appellant On Appeal from the 14th Judicial District
Court, Dallas County, Texas
No. 05-19-00020-CV V. Trial Court Cause No. DC-18-11757.
Opinion delivered by Justice Myers.
DOUGLAS F. BAXTER, Appellee Justices Osborne and Nowell participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

It is ORDERED that appellee DOUGLAS F. BAXTER recover his costs of this appeal
from appellant BRENDA KAPPOS.

Judgment entered this 30th day of October, 2019.

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