Williams v. Stevens

• Docket Number: 05-22-00440-CV
• Decision Date: 31 August 2023
• Parties: IVERY CLARK WILLIAMS, Appellant v. NATALIE STEVENS, Appellee
• Court: Texas Court of Appeals

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IVERY CLARK WILLIAMS, Appellant v. NATALIE STEVENS, Appellee

No. 05-22-00440-CV

Court of Appeals of Texas, Fifth District, Dallas

August 31, 2023

On Appeal from the County Court at Law No. 2 Dallas County Texas Trial Court Cause No. CC-22-00388-B

Before Justices Partida-Kipness, Reichek, and Miskel.

MEMORANDUM OPINION

EMILY MISKEL JUSTICE.

Appellant Ivery Clark Williams appeals the trial court's order granting appellee Natalie Stevens's motion to dismiss Williams's claims that she conspired to file fraudulent documents in court while representing her client in a related lawsuit. The trial court dismissed the claims pursuant to the Texas Citizens Participation Act (TCPA). We affirm the trial court's order.

I. Factual and Procedural Background

In this case, Williams is suing his opposing counsel in a personal injury lawsuit for legal filings she made on behalf of her client in that case. The present case stems from a separate lawsuit filed by Williams, acting pro se, against defendant Johnny Johnson as a result of a car accident. In the underlying lawsuit, Williams alleged that he suffered personal injuries due to Johnson's negligent operation of a motor vehicle. Johnson retained Stevens as his attorney to represent him in the lawsuit. On behalf of Johnson, Stevens filed an answer and then an amended answer and counterclaim to Williams's complaint, asserting a general denial, the affirmative defense of comparative negligence, and a counterclaim against Williams for negligence, among other arguments.

During the pendency of that case, Williams filed the present lawsuit against Stevens, alleging that Stevens conspired with Johnson in the underlying negligence lawsuit to intentionally and knowingly file fraudulent court documents by making false statements in Johnson's original answer and his amended answer and counterclaim. He further contends that two insurance company investigators participated in the conspiracy to manufacture false evidence and failed to properly investigate the circumstances of the car accident. Williams asserts damages totaling $2,050,000 and demands that Stevens be disbarred from practicing law in any state.

Stevens filed an answer to Williams's complaint, asserting a general denial, the affirmative defenses of attorney immunity and judicial proceedings privilege, and numerous special exceptions to Williams's claims. On the same date Stevens also filed a motion to dismiss Williams's claims under both the TCPA and Texas Rule of Civil Procedure 91a.

Williams filed a response to Stevens's motion to dismiss and subsequently filed the following documents in the trial court: his own motion to dismiss Stevens's answer and motion to dismiss, a motion to amend his complaint and to add new defendants, a motion for summary judgment, and a motion to dismiss Steven's motion to dismiss for "violating state rules of court."

The trial court held a video hearing on Stevens's motion to dismiss. One week later, the court granted the motion to dismiss Williams's claims under the TCPA without specifying its bases for the order. The order indicates that the court did not consider Stevens's motion to dismiss under Rule 91a on the grounds that Williams's claims have no basis in law or fact. Williams filed a motion to reinstate followed by a notice of appeal in this court. His motion to reinstate was later denied by the trial court. A reporter's record has not been filed in this appeal.

Williams's three stated issues in this appeal are somewhat unclear.^[1] We construe Williams's first two issues as arguing that Stevens was required to file a verified plea under Texas Rule of Civil Procedure 93 as part of her original answer in order to challenge "jurisdiction or capacity to suit." Williams apparently contends that Stevens has disputed the court's jurisdiction and Stevens's capacity to be sued by asserting the affirmative defenses of attorney immunity and judicial proceedings privilege in her motion to dismiss under the TCPA.

Williams's third issue generally reasserts his claims relating to false statements and conspiracy, but his brief also objects to actions taken by the trial courts in the underlying negligence case.^[2] We may not consider issues in cases not before us. However, given that Williams is appealing the trial court's order granting Stevens's motion to dismiss under the TCPA, which does not specify the grounds for the ruling, we will review the trial court's decision before considering Williams's other issues.

II. Appellate Jurisdiction

We first address our jurisdiction to hear this appeal due to initial questions regarding the parties to this lawsuit. As a general rule, an appeal may be taken only from a final judgment disposing of all pending parties and claims. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). After filing his initial complaint in the trial court, Williams filed a motion to amend his complaint to add three additional defendants, Johnson and the two insurance company investigators. The record does not contain returns of service for these defendants, and they did not file answers or otherwise appear in the trial court proceedings.

Williams's notice of appeal in this court also lists these three parties in addition to Stevens. Counsel for Stevens clarified in appellee's brief that he represents only Stevens and that none of the other listed parties appear to have been properly served or have made an appearance in this case. Williams did not respond to this clarification and has not requested that the additional parties be served. He provided no contact information for service of process on these defendants in his amended complaint.

We find nothing to indicate that Williams expects to obtain service on the three additional parties. In these circumstances, the Texas Supreme Court has held that "the case stands as if there had been a discontinuance as to [the unserved defendant], and the judgment is to be regarded as final for the purposes of appeal." See Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962) (concluding that an order granting summary judgment was final where one of the parties listed in the petition was never served nor answered, and nothing indicated that petitioner ever expected to obtain service upon him). Consequently, we find that the trial court's order granting Stevens's motion to dismiss is the final judgment in this case and that we have jurisdiction over this appeal.^[3]

III. The Trial Court Did Not Err in Granting Stevens's Motion to Dismiss Under the TCPA

A. Standard of Review and Applicable Law

Texas courts have consistently held that a reviewing court should affirm the decision of a lower court granting a motion without specifying the grounds for its order if any of the theories presented are meritorious. See Garza v. Garcia, 137 S.W.3d 36, 37 (Tex. 2004) (reviewing order granting motion that asserted both improper venue and inconvenience without specifying grounds); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989) (reviewing order granting motion for summary judgment without specifying grounds); In re A.C., No. 14-99-00448-CV, 2000 WL 1535325, at *1 (Tex. App.-Houston [14^th] Oct. 19, 2000, no pet.) (not designated for publication) (reviewing order granting dismissal with prejudice without specifying grounds).

The TCPA generally protects the rights of persons to petition, speak freely, associate freely, and otherwise fully participate in government by providing a statutory mechanism for dismissing retaliatory lawsuits that seek to intimidate or silence them. See In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015); Tex. Civ. Prac. & Rem. Code § 27.001-.011. We review de novo the trial court's determination of whether the parties met or failed to meet their respective burdens on a motion to dismiss under the TCPA. Landry's, Inc. v. Animal Legal Defense Fund, 631 S.W.3d 40, 45-46 (Tex. 2021); see Tex. Civ. Prac. & Rem. Code § 27.005.

A motion to dismiss under the TCPA generally involves a three-step analysis:

• First, the moving party must show by a preponderance of the evidence that the TCPA properly applies to the legal action against it.

• Second, if the moving party meets that burden, the burden shifts to the nonmoving party to establish by clear and specific evidence a prima facie case for each essential element of its claim.

• Third, if the nonmoving party satisfies that requirement, then the burden shifts back to the moving party to prove each essential element of any valid defenses by a preponderance of the evidence.

Tex. Civ. Prac. & Rem. Code §§ 27.005; see Youngkin v. Hines, 546 S.W.3d 675, 679-80 (Tex. 2018). A nonmovant can avoid the TCPAs application and its burden-shifting requirements by establishing that one of the TCPA's exemptions applies. See Tex. Civ. Prac. & Rem. Code §§ 27.010; Temple v. Cortez Law Firm, PLLC, 657 S.W.3d 337, 343 (Tex. App.-Dallas 2022, no pet.). The nonmovant bears the burden of proving a statutory exemption. Temple, 657 S.W.3d at 343.

B. The TCPA applies to Williams's claims because his claims are based on Stevens's exercise of her right to petition a court.

We first review whether Stevens has demonstrated that the TCPA properly applies to Williams's claims. A party may file a motion to dismiss a legal action under the TCPA if the legal action "is based on 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. &amp Rem. Code § 27.003(a). The exercise of the right to petition includes "a communication in or pertaining to … a judicial proceeding." Id. §27.001(4). A "communication" is defined as "the making or submitting of a statement or document in any form or medium, including oral, visual,...