Charles Wayne Russell v. Lori Elizabeth Russell

Opinion issued February 25, 2020

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-19-00516-CV
———————————
CHARLES WAYNE RUSSELL, Appellant
V.
LORI ELIZABETH RUSSELL, Appellee

On Appeal from the County Court at Law No. 2
Galveston County, Texas
Trial Court Case No. 19-FD-0579

MEMORANDUM OPINION

Lori Elizabeth Russell filed a post-divorce petition alleging that her ex-

husband, Charles Wayne Russell, his trial attorney, and her trial attorney

committed fraud, conspiracy, and conversion. Charles Wayne Russell answered

and moved to dismiss the claims under the Texas Citizens Participation Act (the
“TCPA”)1, and the trial court denied his motion. On appeal, Charles2 challenges

the trial court’s order denying his TCPA motion. Having determined that Charles

has not met his initial TCPA burden, we affirm.

Background

Lori’s divorce petition

In 2015, Lori filed her petition for divorce from Charles. Lori and Charles

signed a mediated settlement agreement (“MSA”). The MSA divided the marital

property, with Lori receiving “$201,000 of Charles[’s] 401(k)” and twelve

payments of $750 each.

Lori’s attorney drafted the final divorce decree. The final divorce decree

“did not include the 401(k) award and only included one $750 payment in its

division of the marital estate.” The final divorce decree included a provision

stating, “To the extent that there may be a conflict between this Order and the

Mediated Settlement Agreement from September 28, 2015, this Order controls.”

1
See TEX. CIV. PRAC. & REM. CODE §§ 27.001–27.011. The Texas Legislature
amended certain provisions of the TCPA in 2019. Act of May 17, 2019, 86th Leg.,
R.S., ch. 378, §§ 1–9, § 12, sec. 27.001, 27.003, 27.005–.007, 27.0075, 27.009–
.010 (to be codified at TEX. CIV. PRAC. & REM. CODE §§ 27.001, 27.003, 27.005–
.007, 27.0075, 27.009–.010). The amendments became effective September 1,
2019. Id. at § 11. Because suit was filed before the effective date of the
amendments, this case is governed by the statute as it existed before the
amendments. See id. All our citations and analysis are to the TCPA as it existed
prior to September 1, 2019.
2
Because both parties have the same last name, we will refer to them by their first
names.
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Notwithstanding the conflict between the terms of the MSA and the proposed final

divorce decree, both Charles and Lori approved and consented to the final divorce

decree “as to both form and substance.”

Lori and her attorney appeared at the prove-up hearing. Charles and his

attorney did not appear. Neither the $201,000 of Charles’s 401(k) nor the twelve

$750 payments were raised at the prove-up hearing. Lori’s attorney did not

introduce the MSA into the record or ask the trial court to render judgment on the

MSA. At the end of the hearing, the trial court granted the divorce and signed the

final divorce decree. Neither Lori nor Charles appealed from the final judgment,

and the trial court later lost its plenary power.

Lori’s motion for judgment nunc pro tunc

Later, Lori filed a motion for judgment nunc pro tunc, contending that the

final divorce decree was incorrect because it did not contain the 401(k) award or

the twelve $750 payments. After a hearing, the trial court signed and entered a

judgment nunc pro tunc, which revised the final divorce decree to reflect the

division of marital property as provided by the MSA—namely, that Lori was to

receive “$201,000 of Charles[’s] 401(k)” and twelve $750 payments.

Charles’s motion to set aside nunc pro tunc judgment

Shortly after the trial court entered the judgment, Charles filed a motion to

set aside the judgment nunc pro tunc as void. Charles argued that the judgment was

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void because the trial court rendered judgment on the property division in the final

divorce decree. The trial court denied Charles’s motion, and Charles appealed.

Charles’s appeal

In Matter of Marriage of Russell, 556 S.W.3d 451, 461 (Tex. App.—

Houston [14th Dist.] 2018, no pet.), our sister court reversed the judgment nunc

pro tunc as void and reinstated the original final divorce decree. In doing so, the

court explained that the judgment nunc pro tunc was void because it “changed the

substantive rights of the parties under the [final divorce] decree and corrected

judicial, and not clerical, errors.” Id. at 458. The court held that judicial errors

cannot not be remedied through a nunc pro tunc judgment. Id. at 456 (citing

Matter of Marriage of Bowe & Perry, No. 14-16-00551-CV, 2017 WL 6102779, at

*5 (Tex. App.—Houston [14th Dist.] Dec. 7, 2017, no pet.). (mem. op.)). The court

observed that Lori could have challenged the judgment had she timely done so

before the court lost its plenary power over the final divorce decree. Id. at 461. But

she did not.

Lori’s post-divorce petition

After the appellate court reinstated the final divorce decree, Lori filed a post-

divorce petition, alleging that Charles, his trial attorney, and her trial attorney

committed fraud, conspiracy to defraud, and conversion. Specifically, Lori alleged

that they “conspired to defraud [Lori] by deceiving the Court into believing and

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therefore accepting [the final divorce decree] that deviated substantially from the

terms of the written agreement of the parties.” She also alleged that the

“conspirators went even further in implementing their fraudulent behavior by

signing for the Court a purposed Agreed Decree of Divorce and intentionally

misleading the Court into believing that [Lori] had acquiesced in the illegal

contract.” In explaining her conversion claim, Lori contended that Charles, his trial

attorney, and her trial attorney “wrongfully convert[ed] the property belonging to

[Lori] by virtue of the [MSA].”

Charles’s TCPA Motion

Charles answered and moved to dismiss under the TCPA.3 Charles argued

that Lori’s suit is based on, relates to, or is in response to his exercise of the right

to petition, i.e., “to petition both in the trial court and the Court of Appeals.”

Charles further argued that Lori’s suit is based on, relates to, or is in response to

his exercise of the right of association, i.e., his right to “associate with his

counsel.” Charles also argued that Lori’s suit is based on, relates to, or is in

response to his exercise of the right of free speech, i.e., his right to “articulate his

opinion pertaining to [the marital property] at issue in this proceeding.” Charles

asserted that Lori failed to establish by clear and specific evidence a prima facie

3
Charles also filed a plea to the jurisdiction, a Rule 92 general denial, and a Rule
91a motion to dismiss. All of Charles’s pleadings sought to end the litigation.
Charles did not assert any causes of action against Lori.
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case for each essential element of her claims, thereby entitling him to dismissal of

the claims under the TCPA. Finally, Charles raised affirmative defenses,

contending that Lori’s claims were barred by res judicata and collateral estoppel.

To his motion, Charles attached his affidavit, Lori’s motion for judgment nunc pro

tunc, and the Russell opinion.

Lori filed a response, stating that “[t]he issue is not the litigation[.] [T]he

issue is the fraud, the deception, the conversion[,] the outright manipulative

conduct, the continued pursuit of the deceptive activity[,] and the failure to return

the property to which he has no legal right.” In support of her response, Lori asked

the court to take judicial notice of “this Court’s file and some of the pleadings upon

which Lori relies to support her position.” The associate judge issued a report

recommending denying Charles’s motions. On Charles’s request, the presiding

judge held a hearing and directed the parties to submit post-submission briefs. The

trial court denied Charles’s TCPA motion. This interlocutory appeal followed.

The Texas Citizens Participation Act

A. Applicable law and standard of review

The purpose of the TCPA statute “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

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demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002; KTRK Television,

Inc. v. Robinson, 409 S.W.3d 682, 688 (Tex. App.—Houston [1st Dist.] 2013, pet.

denied). The Texas Supreme Court has described the statute’s purpose as “to

identify and summarily dispose of lawsuits designed only to chill First Amendment

rights, not to dismiss meritorious lawsuits.” In re Lipsky, 460 S.W.3d 579, 589

(Tex. 2015).

Under the TCPA, a defendant may move to dismiss 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.” TEX. CIV. PRAC. & REM. CODE §

27.003(a); Mustafa v. Pennington, No. 03-18-00081-CV, 2019 WL 1782993, at *2

(Tex. App.—Austin Apr. 24, 2019, no pet.) (mem. op). A “‘legal action’ means a

lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any

other judicial pleading or filing that requests legal or equitable relief.” TEX. CIV.

PRAC. & REM. CODE § 27.001(6).

The TCPA defines “exercise of the right to petition” as, among other things,

“a communication in or pertaining to . . . a judicial proceeding.” Id. §

27.001(4)(A)(i). “Communication” is defined under the TCPA as including “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); Adams

v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018) (“Almost

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every imaginable form of communication, in any medium, is covered [under the

TCPA].”). Furthermore, the TCPA defines “exercise of the right of association” as

a “communication between individuals who join together to collectively express,

promote, pursue, or defend common interests.” TEX. CIV. PRAC. & REM. CODE §

27.001(2). Lastly, the TCPA defines “exercise of the right of free speech” as a

“communication made in connection with a matter of public concern.” Id. §

27.001(3). And a “matter of public concern” includes an issue related to “a good,

product, or service in the marketplace.” Id. § 27.001(7).

The defendant-movant bears the initial burden of showing by a

preponderance of evidence that the conduct that forms the suit is based on, relates

to, or is in response to the movant’s exercise of his rights to free speech,

association, or petition. Id. § 27.005(b); S & S Emergency Training Sols., Inc. v.

Elliott, 564 S.W.3d 843, 847 (Tex. 2018). If the defendant meets this burden, then

the burden shifts to the plaintiff-nonmovant to establish “by clear and specific

evidence a prima facie case for each essential element of the claim in

question.” TEX. CIV. PRAC. & REM. CODE § 27.005(c). Dismissal of the case is

nonetheless required if the defendant-movant “establishes by a preponderance of

the evidence each essential element of a valid defense to the [plaintiff’s] claim.”

Id. § 27.005(d); Baumgart v. Archer, 581 S.W.3d 819, 825 (Tex. App.—Houston

[1st Dist.] 2019, pet. filed). In conducting our review, we consider the pleadings

8
and evidence in a light favorable to the plaintiff-nonmovant. Deuell v. Tex. Right to

Life Comm., Inc., 508 S.W.3d 679, 685 (Tex. App.—Houston [1st Dist.] 2016, pet.

denied).

We review de novo a trial court’s ruling on a TCPA motion to dismiss.

Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Services, Inc., 441

S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). We interpret

the TCPA in accordance with its express statutory language. See Jordan v. Hall,

510 S.W.3d 194, 197 (Tex. App.—Houston [1st Dist.] 2016, no pet.). When

construing the TCPA, as with any other statute, our objective is to give effect to the

legislative intent, looking first to the statute’s plain language. Lippincott v.

Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015).

Whether Charles satisfied his TCPA burden

Charles contends that the TCPA applies because Lori’s post-divorce petition

is based on, relates to, or is in response to his exercise of his rights to petition,

association, or free speech.

A. Right to petition

Charles first contends that Lori filed the post-divorce petition because he

filed a “petition to the trial court to enter an agreed Final Decree establishing a just

and right division of his marital community property estate.”

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 Charles’s first theory is that Lori sued him because he petitioned the trial

court for entry of a final divorce decree. That theory is not consistent with the

undisputed facts in this case. It is undisputed that Lori, and not Charles, petitioned

the trial court for a divorce. Lori then petitioned the trial court for a judgment nunc

pro tunc. In response to her petitioning, and at every stage thereafter, Charles’s

actions were limited to challenging Lori’s petition efforts as he continued to rely

on the original decree. Because Charles has not established by a preponderance of

the evidence that Lori’s legal action is based on, relates to, or is in response to

Charles’s petitioning activity, Charles’s first theory is without merit. See Elliott,

564 S.W.3d at 847.

Charles’s second theory is that Lori filed the post-divorce petition because

he filed “a successful appeal to the Fourteenth Court of Appeals to declare the . . .

Judgment Nunc Pro Tunc void and to reinstate the Final Decree.” The TCPA

defines “exercise of the right to petition” as “a communication in or pertaining to .

. . a judicial proceeding.” TEX. CIV. PRAC. & REM. CODE § 27.001(4)(A)(i). The

issue, then, is whether Charles’s previously-filed appeal constitutes a “judicial

proceeding” to implicate the right to petition and invoke the TCPA’s protections.

In Levatino v. Apple Tree Cafe Touring, Inc., 486 S.W.3d 724, 728 (Tex.

App.—Dallas 2016, pet. denied), the appellate court rejected the appellant’s

position that “judicial proceeding” meant a “previously filed judicial proceeding”

10
and concluded that the ordinary meaning of “judicial proceeding” is “an actual,

pending judicial proceeding.” Along these same lines, in Long Canyon Phase II &

III Homeowners Ass’n, Inc. v. Cashion, 517 S.W.3d 212, 220 (Tex. App.—Austin

2017, no pet.), a different appellate court stated, “The ordinary meaning of the

phrase ‘judicial proceeding’—versus, e.g., ‘future,’ ‘potential,’ or ‘threatened’

judicial proceeding—is an actual, pending judicial proceeding.”

Applying the TCPA statute’s plain language and ordinary meaning, we

similarly conclude that a “judicial proceeding” does not include past or previously-

filed judicial proceedings. Charles cannot demonstrate that Lori’s suit is based on,

relates to, or is in response to his exercise of the right to petition because he did not

have a pending proceeding at the time she filed her post-divorce petition. See

Chandni, Inc. v. Patel, --- S.W.3d ---- , 2019 WL 6799759, at *7 (Tex. App.—El

Paso Dec. 13, 2019, no pet. h.) (“The mere fact that the parties were involved in

litigation does not mean every subsequent action between them that could result in

further litigation relates to or arises out of the judicial proceeding.”). Lori filed the

post-divorce petition after the Fourteenth Court of Appeals had already issued its

decision in Russell. Therefore, Charles’s second theory is also without merit.

B. Right of association

Charles states that Lori’s post-divorce petition “attacks” his right of

association “(1) with the trial court, (2) with his own attorney and (3) with Lori and

11
her attorney by alleging ‘conspiracy’” by communicating with each other to

“resolve and settle legal disputes and agree to language to be included in proposed

documents filed with courts.”

Charles’s defensive theory is that the defendants did not hold a common

interest because they “did not conspire at any time against [Lori].” But we also

have to consider Lori’s pleading. See generally Deuell, 508 S.W.3d at 685. In

Lori’s pleading, she alleges that Charles, his trial attorney, and her trial attorney

“conspired to defraud [Lori].” Charles may deny her allegations, but, in analyzing

a TCPA dismissal motion, we evaluate the pleadings as framed by the parties. See

Adams, 547 S.W.3d at 892. Lori alleges Charles and the two attorneys joined

against her. And Charles concedes, in his TCPA motion, that such intentional

tortious conduct is not protected by the TCPA. We find no reason to disagree with

his position.

C. Right of free speech

Finally, Charles asserts that Lori’s post-divorce petition “attacks” his right of

free speech to request relief from the trial and appellate courts because he cannot

“articulate his opinion pertaining to the division of his funds to the trial court

without fear of legal sanctions, expense, delay or unwarranted costs.” Charles

asserts that his pecuniary interests are a matter of public concern. We disagree. The

plain language of the TCPA defines a “matter of public concern” as “a good,

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product, or service in the marketplace.” TEX. CIV. PRAC. & REM. CODE § 27.001(7)

(emphasis added). The marital property of these private parties is not a good,

product, or service in the marketplace. Charles does not cite to any case law

holding otherwise. TEX. R. APP. P. 38.1(i) (requiring appellant’s brief to include

“appropriate citations to authorities”).

Accordingly, we hold that Charles did not meet his initial burden to show by

a preponderance of the evidence that Lori’s post-divorce suit was “based on,

relates to, or is in response to” the exercise of his right to petition, right of

association, or right of free speech. The TCPA does not apply to this action.

Conclusion

Having overruled Charles’s sole issue, we affirm the trial court’s order.

Sarah Beth Landau
Justice

Panel consists of Chief Justice Radack and Justices Landau and Hightower.

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