Opinion
01-20-00419-CV
08-02-2022
ALBERT G. HILL, III, Appellant v. MARGARET KELIHER, HEATHER HILL WASHBURNE, ELISA HILLSUMMERS, RAY WASHBURNE, ALINDA WIKERT, LYDA HILL, DAVIDPICKETT, TY MILLER, JOY WALLER, THOMAS TATHAM, ANDCHESTER DONNALLY, Appellees
On Appeal from the 127th District Court Harris County, Texas Trial Court Case No. 2019-38645
Panel consists of Justices Kelly, Hightower, and Countiss.
MEMORANDUM OPINION
Peter Kelly, Justice
Albert G. Hill, III ("Hill III") was charged with crimes relating to mortgage fraud, and the charges were later dismissed. Hill III then sued multiple family members and others for malicious prosecution, conspiracy, and aiding and abetting, alleging that they had procured his indictments for improper purposes. The appellees filed motions to dismiss under the Texas Citizens Participation Act ("TCPA") arguing that Hill III's lawsuit implicated their rights to freedom of speech, freedom of association, and freedom to petition. The trial court sustained the appellees' objections to all of Hill III's evidence, granted the TCPA motions, and dismissed all of Hill III's claims against the appellees. On appeal, Hill III argues that the trial court erred by excluding his evidence, and by dismissing his claims because (1) the motions and hearing were untimely, (2) the TCPA did not apply to his derivative claims, (3) his pleadings and evidence demonstrated a prima facie case for his claims, and (4) the appellees failed to prove their affirmative defenses.
See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011 (Texas Citizens Participation Act). The Legislature enacted the TCPA in 2011 and amended it in 2013 and again in 2019 to narrow its application. See Act of May 21, 2011, 82nd Leg., ch. 341 (HB 2973), §2; amended by Act of May 24, 2013, 83rd Leg., ch. 1042 (H.B. 2935), §1; amended by Act of May 17, 2019, 86th Leg., R.S., ch. 378, (H.B. 2730), §2. The 2019 amendments were effective on September 1, 2019. This lawsuit was filed in June 2019, and, to the extent that a provision was amended in 2019, we rely on the prior version of the statute, which we indicate with a parenthetical citation to the year of enactment.
We conclude that the motions and hearing were timely and the TCPA applied to Hill III's claims. We further conclude that Hill III failed to show by clear and specific evidence a prima facie case of malicious prosecution because he did not show that there was a lack of probable cause for procuring charges against him. In the absence of evidence to support a prima facie case of malicious prosecution, Hill III's derivative claims also fail. Accordingly, we affirm the trial court's judgment.
Background
I. Family feud
As noted by multiple courts, extensive litigation has resulted from disputes and challenges related to trusts formed by "Haroldson Lafayette ('H.L.') Hunt, the late Texas oil baron reputed to be one of the world's richest men when he died in 1974." "After 'protracted [and] complicated' litigation, Hill v. Schilling, 593 Fed.Appx. 330, 331 (5th Cir. 2014), squabbling over the trusts was supposedly ended by a settlement agreement confected in 2010," which resulted in a "nine-figure payment" to Hill III. But the disputes did not end.
Hill v. Washburne, 953 F.3d 296, 301 (5th Cir. 2020); see Hill v. Schilling, 495 Fed.Appx. 480, 482 (5th Cir. 2012) (describing formation of the trusts); Hill v. Hunt, 3:07-CV-2020-O, 2009 WL 5125085, at *1 (N.D. Tex. Dec. 29, 2009) (same); see also Blue v. Hill, 3:07-CV-2020-L, 2020 WL 869716, at *2 (N.D. Tex. Feb. 21, 2020) (slip op.) ("The court has addressed this contentious and unrelenting family dispute in a multitude of prior opinions beginning in 2007 and continuing through the present.").
Hill, 953 F.3d at 301.
Id.
In this case, we consider whether the trial court erred by granting the defendants' TCPA motions to dismiss Hill III's claims for malicious prosecution, conspiracy, and aiding and abetting. The gravamen of Hill III's allegations is that the defendants conspired with his late father, Albert G. Hill, Jr. ("Hill Jr."), to have him arrested for making false representations in connection with a $500,000 home equity loan. This case connects to the prior litigation in at least two ways. First, many of the appellees were parties to the 2010 settlement agreement. Second, Hill III asserts that the procurement of charges against him was in retaliation for his trust litigation or in an attempt to gain a favorable position in those cases.
II. The Bordeaux property, the trust litigation, and the home equity loan
In 2004, Hill III entered into a transaction involving the house he shared with his wife (the "Bordeaux Transaction"). Hill III maintains that his father, Albert G. Hill, Jr. ("Hill Jr.") gave him an advance on his expected inheritance to help him pay off some debt. Hill Jr. and the trustees of the family trusts have maintained that it was a sale of 80% of the interest in the house. In his live pleading in this case, Hill III acknowledged that he and his wife signed a deed conveying to the Albert Hill Trust an undivided 80% interest in the Bordeaux property. Hill III has maintained, however, that this was "not a real conveyance" because it was not contemporaneously recorded in the deed records.
Hill III and his wife owned a house located on "Bordeaux Street" in Dallas, Texas. The total value of the house is not in the pleadings, but Hill III alleges that the $500,000 home equity loan in 2009 was overcapitalized even assuming that he owned only 20% of the property.
Hill III is the great-grandson of the late Texas oil magnate H.L. Hunt. Hill III and his two sisters, along with his father and his siblings, are beneficiaries of the Margaret Hunt Trust Estate and the H.L. Hunt, Jr. Trust Estate (the "family trusts"). In 2007 and 2008, Hill III filed lawsuits alleging wrongdoing and mismanagement of the family trusts.
See Schilling, 495 Fed.Appx. at 482; Blue, 2020 WL 869716, at *2.
While the litigation unfolded, Hill III experienced cash-flow problems, and, in 2009, he obtained a $500,000 home equity loan from OmniAmerican Bank secured by the Bordeaux property. Hill III maintains that he told OmniAmerican Bank that the Albert Hill Trust had a claim to an interest in the house, but he represented that he owned 100% interest in the property. Hill III also maintains that in July 2009, Hill Jr., his attorney Mike Lynn, and David Pickett, the trustee of the Albert Hill Trust, were in contact with OmniAmerican Bank about the Bordeaux property.
III. Accusations of mortgage fraud and settlement of the trust litigation
According to Hill III, in February 2010, the federal district judge presiding over the trust litigation found Hill Jr. had committed perjury with help from attorney Mike Lynn. Hill III contended that his father blamed him for the perjury finding and threatened him by saying, "I will see you in jail!" Hill III alleged that several days later, his father's lawyer, Mike Lynn, submitted a criminal complaint accusing Hill III of mortgage fraud. Hill III alleged that in the following six weeks, Hill Jr. and Lynn met with an assistant district attorney regarding their accusations. Hill III further alleged that trustee David Pickett submitted a criminal complaint to the district attorney based on the same facts.
Hill III also alleged that his former attorneys spoke to the district attorney about the impending criminal charges, but these allegations are not part of this appeal.
In May 2010, Hill III entered into a Global Settlement Agreement regarding the trust litigation with Hill Jr., Lyda Hill, Alinda H. Wikert, Ivan Irwin, Jr. (not a party to this appeal), Heather Washburne, Elisa H. Summers, Margaret Keliher, Joyce E. Waller, Ty Miller, and others whose names were redacted from the appellate record. The federal district court presiding over one of the trust lawsuits entered a final judgment based on the confidential Global Settlement Agreement in November 2010. In exchange for settlement of his claims, Hill III received a nine-figure payment.
After the parties settled their disputes, Hill III's counsel withdrew from representation amid a fee dispute, which led to additional litigation and culminated in an award of $24 million for the lawyers.
IV. Hill III is charged with mortgage fraud.
In the spring of 2011, Hill III was indicted on four counts of mortgage fraud. Specifically, Hill III was accused of:
Hill III's wife was also indicted on the same charges, but the charges against her were dismissed in the interest of justice about six months later. She is not a party to the underlying lawsuit in this appeal.
1. Intentionally and knowingly making a materially false and misleading statement to OmniAmerican Bank, namely that he and his wife were the only owners of the Bordeaux property with the intent to obtain property, other than real property, worth in excess of $200,000;
2. Intentionally and knowingly making a materially false and misleading written statement to OmniAmerican Bank, namely that his gross monthly income from base employment income was $54,341.00 with the intent to obtain property, other than real property, worth in excess of $200,000;
3. Defrauding OmniAmerican Bank: With intent to defraud and harm OmniAmerican Bank, causing OmniAmerican Bank to sign and execute a document (wiring instructions), which affected the pecuniary interest of OmniAmerican, in an amount exceeding $200,000 and causing OmniAmerican to sign and execute this document by deception, by creating and confirming words and conduct and false impressions of fact that were likely to affect OmniAmerican's judgment in the transaction and that Hill III did not believe to be true, by failing to correct false impressions of fact that were likely to affect OmniAmerican's judgment in the transaction that Hill III had previously created and confirmed by words and conduct that he did not then believe to be true, and by transferring and encumbering real property (namely, the Bordeaux property) without disclosing a security interest, an adverse claim, and other legal impediment to the enjoyment of the property, whether the security interest, adverse claim and impediment is or is not valid and is or is not a matter of official record; and
4. Intentionally and knowingly making a materially false and misleading written statement to OmniAmerican Bank, namely: that his Inwood National Bank account contained $102,174.00, with the intent to obtain property other than real property, in an aggregate value exceeding $200,000.
V. Charges against Hill III are dismissed.
About six months later, Hill III filed a pretrial motion to quash and dismiss the indictments due to prosecutorial misconduct: The Court of Criminal Appeals summarized the motion as follows:
State v. Hill, 499 S.W.3d 853, 855 (Tex. Crim. App. 2016).
Hill believes that his father, who (through his attorney) reported the allegations of mortgage fraud to the district attorney's office, was disgruntled over the outcome of the federal trust litigation. Hill claims that the District Attorney, Craig Watkins, was under the influence of Hill's father and under the influence of Lisa Blue Baron (who had a pending federal lawsuit against Hill seeking several million dollars in attorney's fees arising out of the federal trust litigation). Hill claimed that the State's prosecution against him was vindictive and that he was selectively prosecuted for conduct that does not normally lead to criminal prosecution.
. . .
In his motion to quash and dismiss, Hill first claimed that he was deprived of his due process right to a disinterested prosecutor. Hill asserted that both his father and Blue were responsible for large campaign donations having been made to Watkins. Hill claims that the evidence demonstrates that Watkins was under the influence of Hill's father (who had a motive to retaliate against Hill based on the outcome of the federal trust litigation), and under the influence of Blue (who had a pending suit against Hill seeking several million dollars in attorney's fees). Second, Hill claimed in his motion to dismiss that the prosecution against him was vindictive, and thus violated his rights to due process, because it was retaliation against him for exercising his legal right to engage in the trust and fee dispute litigations. Third, Hill asserted that his right to equal protection was violated because the District Attorney's office chose to selectively
prosecute [him] for conduct that does not normally lead to criminal prosecution.
Id. at 855, 857-58.
The trial court held a hearing at which several assistant district attorneys testified about the complaints from Hill Jr. and Pickett, their investigation, and the decision to go the grand jury. The trial court expressed its concern that the only witnesses who could address what motivated the prosecution of Hill III were the district attorney, Craig Watkins, who refused to testify, and Hill III's former attorney, Lisa Blue, who appeared but pleaded the Fifth Amendment and refused to answer questions. The trial court dismissed the indictments. The court of appeals vacated the order dismissing the indictments, holding that the trial court erred by conducting an evidentiary hearing,, and the Court of Criminal Appeals reversed, holding that the trial court had discretion to conduct a pretrial evidentiary hearing on the motion to quash and dismiss.
See id. at 858-63.
Id. at 863.
See id.
See State v. Hill, No. 05-13-00421-CR, 2014 WL 7497992, at *11 (Tex. App.- Dallas Dec. 29, 2014) (mem. op.; not designated for publication), rev'd, 499 S.W.3d 853 (Tex. Crim. App. 2016)
Hill, 499 S.W.3d at 871-72.
On remand, the court of appeals held that the trial court's determination that the district attorney's conduct violated Hill III's due process rights was not an abuse of discretion.
State v. Hill, 558 S.W.3d 280, 286-87 (Tex. App.-Dallas 2018, no pet.).
Hill presented evidence from which the trial court could have found actual vindictiveness. Watkins had the ultimate authority to approve or refuse the presentation of Hill's case to the grand jury. The bank did not complain of Hill's conduct in connection with the loan. Hill's father raised the complaint after an adverse decision in his trust litigation against Hill. Also, around this same time, a law partner of Hill's father's attorney made donations or pledges to Watkins's campaign. Further, shortly before the indictments were handed down, Watkins called Hill's former attorney, who was engaged in fee dispute litigation against Hill, to talk about the indictments. Hill's allegations of prosecutorial misconduct centered on Watkins, but Watkins refused to testify. And the assistant district attorney who presented the case to the grand jury and testified about the decision to prosecute was impeached. Before she presented the case to the grand jury, she wrote that she did not see how she was going to prove the case. Yet after Hill raised the issue of prosecutorial misconduct, she added to her notes and testified that it was a good case and there was evidence to support it. This misconduct, by a career prosecutor, shows the depth of the taint in this case. In conjunction with the other evidence, the testimony of that assistant district attorney cast doubt on the whole process.
Id.
In August 2018, the court of appeals affirmed the trial court's order dismissing the indictments against Hill III.
Id. at 287.
VI. Hill III sues family members, lawyers, and others for malicious prosecution.
On June 5, 2019, Hill III filed suit against some of the former district attorneys who were involved with his criminal indictments (Craig Watkins, Terri Moore, and Russell Wilson), some of his relatives (Hill III's sisters Heather Hill Washburne and Elisa Hill Summers; Hill III's brother-in-law Ray Washburne; Hill III's aunts Alinda Wikert and Lyda Hill) and others who were business associates of Hill Jr. (Margaret Keliher, David Pickett, Ty Miller, Joy Waller, Thomas Tatham, and Chester Donnally). Hill III's claims against Watkins, Moore, and Wilson were later severed and transferred to Dallas County, and they are not involved in this appeal.
In a Rule 11 agreement, the parties specified that all defendants were served with the original petition on June 12, 2019. Hill III did not sue his father, who had died in 2017.
Hill III alleged claims of malicious prosecution as to the district attorney defendants and Pickett, conspiracy to commit malicious prosecution as to all the defendants, and "aiding and abetting" the commission of malicious prosecution against all of the defendants. He alleged that "family members" and "advisors" helped Hill Jr. initiate or procure the indictments against him by influencing district attorney Watkins to file the charges.
Specifically, Hill III made the following allegations against each appellee:
• Pickett: At Hill Jr.'s direction and in his role as trustee of the Albert Hill Trust, Pickett communicated in writing and orally with the district attorney's office. Pickett informed the district attorney's office that Hill III and his wife had signed a deed transferring 80% interest in the Bordeaux property to the Albert Hill Trust and that Hill III misrepresented his monthly income on his loan application. Hill III characterized these statements as false based on his contention that the Bordeaux transaction was illegal and unenforceable and not a real transaction because it was not contemporaneously recorded in the public records. Hill III alleged that Pickett repeatedly contacted the district attorney to monitor the progress of the criminal case and urge the filing of charges. He also alleged that Pickett once berated an assistant district attorney after charges against Hill III's wife were dismissed.
• Ray Washburne: On February 20, 2010, Ray Washburne texted Hill III that "everyday brings new charges and [Hill Jr.] is coming up with new ideas daily."
• Elisa Summers, Heather Washburne, Ray Washburne: Summers and the Washburnes "have been aligned with [Hill III's] father against [Hill III]" in the trust litigation and other family disputes and remained in close contact with Hill Jr. throughout his life. "It has also been reported to [Hill III], through a former member of the Dallas DA's office, that [Hill III's] sisters provided information used by the DA's office to pursue the indictments against [Hill III] and that [Hill III's] father hired a consultant or public relations firm to coach one or both of [Hill III's] sisters on how to most effectively convey information to the DA's office."
• Ty Miller: Ty Miller was "a long-time personal and financial advisor to and confidant of [Hill III's] father." He took leadership roles in Hill Jr.'s business and investment endeavors. Miller used his influence with a bank ("BB&T") to obtain Hill III's confidential information, and he provided that information to the district attorney involved with Hill III's case.
• Alinda Wikert and Lyda Hill: Wikert and Lyda Hill donated $200,000 to the animal cruelty unit of the Dallas County district attorney's office. An assistant district attorney who previously worked
on the Hill III case had been reassigned to this unit. Wikert and Lyda Hill aligned with Hill Jr. during the trust litigation. "Further, it has been reported to [Hill III] that a former prosecutor of the Dallas County DA's office has admitted that Lyda and/or Alinda also provided information to the DA used in the pursuit of the criminal charges against [Hill III]."
• Margaret Keliher: Keliher was a trustee of one of the family trusts and on the advisory boards for both family trusts. Hill III alleged that Keliher favored his father and his aunts in trust transactions and aligned with Hill Jr. and Hill III's sisters and aunts in the trust litigation. Keliher served as executor of Hill Jr.'s estate after his death. Keliher was a board member of "an organization that donated substantial sums to the DA's office." "Keliher met with representatives of BB&T and facilitated BB&T's provision of confidential financial records about [Hill III] to the DA's office that were then used in pursuit of criminal charges against [Hill III]."
• Joy Waller: "Joy Waller was [Hill III's] father's long-time personal assistant." Hill III alleges that Waller helped Hill Jr. falsify records in the trust litigation.
• Thomas Tatham: "Thomas Tatham was a long-time financial advisor to [Hill III's] father." He was a member of the advisory board for two trusts created by the 2010 Global Settlement Agreement. He participated in efforts by Hill III's sisters to terminate the trusts early.
• Chester Donnally: "Chester Donnally knew [Hill III's] father for his entire life." He was a business associate and investment advisor for Hill Jr. and trusts in which Hill Jr. had an interest. He was involved in the early termination of the trusts.
On July 12, 2019, the appellees filed a notice of removal to federal court. They transferred the suit to the federal district court that had previously entered judgment on the Global Settlement Agreement in 2010. On September 4, 2019, the federal district court remanded the case to state court after finding that it lacked subject matter jurisdiction under the federal removal statutes.
While this was pending in federal court, the appellees filed in federal district court for the Northern District of Texas, Dallas Division, a motion to enjoin state court litigation. The federal district court had entered judgment on the Global Settlement Agreement in 2010. This motion was consolidated with two similar motions filed by the attorneys with whom Hill III had a fee dispute. Blue, 2020 WL 869716, at *1. In denying the motions to enjoin the state court litigation, the federal district court acknowledged that it had continuing jurisdiction, and it noted that prudential concerns weighed against enjoining a state court from resolving a dispute concerning state claims of malicious prosecution and conspiracy. Id. at *7. The district court explained:
That the court has jurisdiction under the continuing jurisdiction clause of the Final Judgment and Settlement Agreement is not disputed. Whether to exercise that continuing jurisdiction and intervene into state court proceedings, however, must be decided by the court exercising its sound discretion on a case-by-case basis.
. . . .
Further, the court has exercised continuing jurisdiction over this matter since 2013. At some juncture, the exercise of continuing jurisdiction becomes intrusive and implicates important concerns regarding federalism. Continuing jurisdiction has a place and time, and it is best reserved for cases in which prolonged federal oversight is needed, such as those cases necessary to accomplish large-scale institutional reform and desegregation; to protect the fundamental right to vote; to oversee mass torts litigation; and to oversee class actions or consent decrees. Unlike these weighty matters requiring continued federal supervision for the greater public good, this case is an acrimonious, private dispute brought by an extremely disgruntled heir against his family members and those working on their behalf. Little, if any, public good is achieved by the court's continued and incessant involvement in the quotidian and private disputes that rival those seen in the hit television series Dallas (1978-1991) and Dynasty (1981-89).Id.
See 28 U.S.C.A. § 1441.
VII. TCPA motions to dismiss
The appellees then filed motions to dismiss under the TCPA. Pickett, Waller, Tatham and Donnally filed their motion September 24, 2019. Three groups of defendants filed TCPA motions to dismiss on October 4, 2019: (1) Keliher and Miller; (2) Summers and the Washburnes; and (3) Alinda Wikert and Lyda Hill. Evidence was attached to each motion. Two groups of defendants asserted that Hill III's lawsuit was based on or related to their exercise of their rights to association and free speech: (1) Keliher and Miller, and (2) Alinda Wikert and Lyda Hill. The remaining two groups of defendants asserted that Hill III's lawsuit was based on or related to their exercise of the rights to petition, to free speech, and of association. Hill III replied with thousands of pages of evidence.
On December 9, 2019, the appellees filed an omnibus reply to Hill III's response to their motions to dismiss. In the response, they objected to Hill III's evidence on the following grounds: lack of personal knowledge shown in Hill III's declarations, hearsay, relevance, and lack of authentication.
The appellees initially requested hearings on their TCPA motions between October 17, 2019, and October 23, 2019. All the appellees, except the Washburnes and Summers, initially set their hearings for November 21, 2019. The Washburnes and Summers initially set their hearing for December 18, 2019, and the other appellees' hearings were reset to December 18, 2019. Later, all four motions were reset to December 11, 2019.
The trial court held a hearing on December 11, 2019, at which the issues of timeliness of the motions and hearing were argued. The appellees noted that they had filed TCPA motions in federal court after removal and prior to remand. They also argued that the removal to federal court tolled the TCPA deadlines, making their filings in state court after remand timely. The court expressed concern that the removal had been trial strategy and that the appellees should be foreclosed from claiming that any tolling occurred because they could have chosen to remain in state court and timely file their TCPA motions. The trial court continued the hearing to December 16, 2019, to allow the parties to file additional pleadings and argument. The trial court sustained the appellees' objections to Hill III's evidence and granted all of the TCPA motions on January 14, 2020. The court later heard argument and evidence on attorney's fees under the TCPA and issued four separate final orders that together constitute the final judgment in this case on May 8, 2020, and May 13, 2020. Hill III appealed.
Analysis
In granting the motions to dismiss, the trial court did not provide a reason for the ruling. On appeal, Hill III challenges the timeliness of the motions and the hearing, the applicability of the TCPA to his claims, the trial court's exclusion of his evidence, any implied conclusion that he failed to make a prima facie case for his claims to defeat the TCPA motions, and the affirmative defenses of release through the Global Settlement Agreement, res judicata, and collateral estoppel.
I. TCPA
A. Standards of review
We review a trial court's ruling on a TCPA motion to dismiss de novo. Kassab v. Pohl, 612 S.W.3d 571, 577 (Tex. App.-Houston [1st Dist.] 2020, pet. denied). We consider the pleadings and evidence in the light most favorable to the nonmovant. Id.; Schimmel v. McGregor, 438 S.W.3d 847, 855-56 (Tex. App.- Houston [1st Dist.] 2014, pet. denied). Whether the TCPA applies is an issue of statutory interpretation that we also review de novo. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018).
B. Purpose
The TCPA "is a bulwark against retaliatory lawsuits meant to intimidate or silence citizens on matters of public concern." Dall. Morning News, Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019); see In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015). It is intended "to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits." Lipsky, 460 S.W.3d at 589; see also Tex. Civ. Prac. & Rem. Code § 27.002 ("The purpose of this chapter 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.").
C. Applicability-rights of free speech, to petition, and of association
The TCPA applies to 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) (2011). A lawsuit is a legal action. Id. § 27.001(6). The "exercise of the right of free speech" means "a communication made in connection with a matter of public concern." Id. § 27.001(3). "'Communication' 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). A "matter of public concern includes an issue related to: (A) health or safety; (B) environmental, economic, or community well-being; (C) the government; (D) a public official or public figure; or (E) a good, product, or service in the marketplace." Id. § 27.001(7).
Under the 2011 TCPA, "exercise of the right to petition" includes "a communication in or pertaining to: (i) a judicial proceeding; (ii) an official proceeding, other than a judicial proceeding, to administer the law; [and] (iii) an executive or other proceeding before a department of the state . . . government or a subdivision of the state . . . government . . . ." Id. § 27.001(4)(A). Exercise of the right to petition also includes "a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body in another governmental or official proceeding," or "a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding." Id. § 27.001(4)(B), (C).
Reporting wrongdoing to governmental officials is an exercise of the right to petition, regardless of whether the report is true or false. See Bibby v. Bibby, 634 S.W.3d 401, 408-09 (Tex. App.-Houston [1st Dist.] 2021, no pet.); Buckingham Senior Living Cmty., Inc. v. Washington, 605 S.W.3d 800, 807 (Tex. App.- Houston [1st Dist.] 2020, no pet.) ("When a person interacts with the police to report perceived wrongdoing, that person is exercising their right to petition, as that right is defined in the TCPA."); see also Vu v. Tran, No. 02-21-00059-CV, 2021 WL 3679245, at *4 (Tex. App.-Fort Worth Aug. 19, 2021, no pet.) (mem. op.) (malicious prosecution claim implicated defendants' right to petition when it alleged that they made reports that led to charges that were later dropped); Ford v. Bland, No. 14-15-00828-CV, 2016 WL 7323309, at *1 (Tex. App.-Houston [14th Dist.] Dec. 15, 2016, no pet.) (mem. op.) ("Statements to police regarding incidences of perceived wrongdoing are protected by the TCPA."); Murphy USA, Inc. v. Rose, No. 12-15-00197-CV, 2016 WL 5800263, at *3 (Tex. App.-Tyler Oct. 5, 2016, no pet.) (mem. op.) ("Filing a police report, whether true or false, implicates a person's right to petition the government . . . .").
Under the 2011 TCPA, "'exercise of the right of association' means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests." Tex. Civ. Prac. & Rem. Code § 27.001(2) (2011).
D. Motions to dismiss and the burden-shifting test
A party may file a motion to dismiss a legal action that "is based on, relates to, or is in response to [that] party's exercise of the right of free speech, right to petition, or right of association." Id. § 27.003(a) (2011). The TCPA movant has the initial burden to demonstrate by a preponderance of the evidence that the TCPA applies to the challenged legal action. Id. § 27.005(b) (2013). "In determining whether a legal action should be dismissed under [the TCPA], the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a) (2011). Once the movant shows that the TCPA applies to the challenged legal action, the burden shifts to the nonmovant to establish "by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c) (2013). If the nonmovant makes this showing, the burden again shifts to the movant to establish "by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claims." Id. § 27.005(d) (2013).
"The phrase 'prima facie case' traditionally 'refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted.'" Lang v. Knowles, No. 01-18-00268-CV, 2019 WL 4065015, at *5 (Tex. App.-Houston [1st Dist.] Aug. 29, 2019, pet. denied) (mem. op.) (quoting Lipsky, 460 S.W.3d at 590). The "prima facie standard requires only the minimum of evidence necessary to support a rational inference that the allegation of fact is true." In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (internal quotations omitted). Evidence is clear and specific when the plaintiff provides "enough detail to show the factual basis" for his claim. Lipsky, 460 S.W.3d at 591.
E. TCPA Timelines
A motion to dismiss under the TCPA "must be filed not later than the 60th day after the date of service of the legal action." Tex. Civ. Prac. & Rem. Code § 27.003(b) (2011). A hearing on a TCPA motion to dismiss "must be set not later than the 60th day after the date of service of the motion unless the docket conditions of the court require a later hearing, upon a showing of good cause, or by agreement of the parties, but in no event shall the hearing occur more than 90 days after service of the motion" except when the court allows discovery as authorized by the statute. Id. § 27.004(a), (c). If the court cannot hold a hearing by the 60th day after the date of service of the motion, "the court may take judicial notice that the court's docket conditions required a hearing at a later date" so long as the hearing occurs by the 90th day after the date of service of the motion. Id. § 27.004(b). The trial court must rule on a TCPA motion to dismiss by "the 30th day following the date of the hearing on the motion." Id. § 27.005(a) (2013). Under the version of the TCPA that applies to this case, if the trial court continues the hearing so that it is held on more than one date, the date of the hearing of the motion is the date the hearing is concluded. See, e.g., Stewart v. Douglas on behalf of TCU Pee Wee Youth Ass'n, Inc., No. 02-19-00292-CV, 2020 WL 4360560, at *4 (Tex. App.-Fort Worth July 30, 2020, no pet.) (mem. op.) (court's obligation to rule on the motion was not triggered by the court starting but continuing the hearing to an indefinite future date); Clinton v. Araguz, No. 13-18-00526-CV, 2019 WL 5793127, at *4-5 (Tex. App.-Corpus Christi-Edinburg Nov. 7, 2019, pet. denied) (mem. op.) (holding that TCPA motion was not denied by operation of law thirty days after an August 9, 2018 hearing when the record established that the trial court intended to postpone the hearing). Cf. In re Neely, No. 14-19-01018-CV, 2020 WL 1434569, at *2-4 (Tex. App.-Houston [14th Dist] Mar. 24, 2020, orig. proceeding) (mem. op.) (per curiam) (holding that TCPA motion was overruled by operation of law thirty days after a July 19, 2019 hearing when, at that hearing, the parties argued the merits of the motion and the trial court expressed no intent to continue or reset the hearing). Under the 2011 TCPA, the court was not required to file findings regarding its ruling on a TCPA motion to dismiss except on request of a party, in which case the court would "issue findings regarding whether the legal action was brought to deter or prevent the moving party from exercising constitutional rights and is brought for an improper purpose, including to harass or to cause unnecessary delay or to increase the cost of litigation." Tex. Civ. Prac. & Rem. Code § 27.007(a) (2011).
Section 27.004 has not been revised since 2013.
II. The TCPA motions were timely filed.
In his first issue, Hill III asserts that the trial court erred by granting the motions to dismiss because they were not timely filed. He argues that the date of service was June 12, 2019, and the motions were filed more than 60 days later on September 24, 2019 (Pickett, Waller, Tatham, and Donnally), and October 4, 2019 (Keliher and Miller), (Washburne, Washburne, and Summers), and (Alinda Wikert and Lyda Hill). October 4, 2019 is 134 days after June 12, 2019. Hill III argues, therefore, that the court erred by granting an untimely motion.
Under federal law, the filing of a notice of removal of a case from state court to federal court immediately divests the state court of jurisdiction until the time when the federal court remands the case to state court. See 28 U.S.C. § 1446(d); see also In re Sw. Bell Tel. Co., 235 S.W.3d 619, 624 (Tex. 2007) (orig. proceeding) ("From the time the case was removed to federal court until it was remanded to state court, the state court was prohibited from taking further action."). The Texas Supreme Court has held that removal of a case to federal court tolls the running of appellate timelines. See Gonzalez v. Guilbot, 315 S.W.3d 533, 537 (Tex. 2010), abrogated on other grounds by Ex parte E.H., 602 S.W.3d 486, 496-97 (Tex. 2020).
Several courts of appeals have extended this rule by holding that removal to federal court tolls the running of timelines for filing other motions and pleas. See Clayton Mountain Dev., LLC v. Ruff, No. 11-20-00114-CV, 2021 WL 3413644, at *5 (Tex. App.-Eastland Aug. 5, 2021, no pet.) (mem. op.) ("Because state court time periods and deadlines are suspended when a case is removed to federal court, the period of removal is not considered in the determination of whether a motion in the state court has been timely filed or considered."); In re Univ. of the Incarnate Word, 469 S.W.3d 255, 258-59 (Tex. App.-San Antonio 2015, orig. proceeding) (removal to federal court tolled the statutory time period for hearing a plea to the jurisdiction).
In this case, Hill III filed suit on June 5, 2019, and the appellees were served with the suit on June 12, 2019. The appellees filed a notice of removal on July 12, 2019, which was 30 days after they were served with the lawsuit. The federal court remanded the case on September 4, 2019, and the appellees filed their motions to dismiss under the TCPA on September 24, 2019 and October 4, 2019, which was 20 and 30 days after remand, respectively. Not including the period of time when the case had been removed to federal court, the motions were filed the 50th and 60th days after the appellees were served with the lawsuit. Accordingly, we conclude that the motions were timely filed. See Tex. Civ. Prac. & Rem. Code § 27.003(b) (2011); see also Clayton Mountain, 2021 WL 3413644, at *4-5 (tolling TCPA deadlines due to removal of case to federal court).
Hill III frames this issue as one of trial strategy and extension of time to file the motion for good cause as provided by the TCPA. See Tex. Civ. Prac. & Rem. Code § 27.003(b) (2011) ("The court may extend the time to file a motion under this section on a showing of good cause."). Hill III relies on Kinder Morgan SACROC, LP v. Scurry Cnty., 589 S.W.3d 889, 901 (Tex. App.-Eastland 2019), rev 'd, 622 S.W.3d 835 (Tex. 2021), a case in which the trial court did not find that good cause existed to allow an extension of time to file a TCPA motion to dismiss when the plaintiff amended its claims. But the court of appeals was overruled by the Supreme Court of Texas, which held that the amended claims constituted new legal actions. Kinder Morgan SACROC, LP v. Scurry Cnty., 622 S.W.3d 835, 848 (Tex. 2021) (concluding that addition of previously unpleaded claims in amended petition constituted a new legal action under the TCPA). And Kinder Morgan did not involve the removal of a case to federal court, so the federal statutory provision prohibiting the trial court from taking action did not apply.
We overrule Hill III's first issue.
III. The hearing on the TCPA motions was timely.
In his second issue, Hill III argues that the trial court erred by granting the motions to dismiss because the hearing on the motions was concluded more than 60 days after the date the motions were served. He argues that the appellees did not demonstrate that they were diligent in their attempts to set the motions for hearing.
Hill relies on three intermediate appellate court cases for the proposition that a TCPA movant waives his motion to dismiss by failing to have it set for hearing within 60 days of the date of service of the motion. But the cases he relies on do not say that at all: they hold that a TCPA movant waives his motion to dismiss by failing to use reasonable diligence to set the motion for a hearing within the statutory 90-day deadline. See Grubbs v. ATW Invs., Inc., 544 S.W.3d 421, 426 (Tex. App.-San Antonio 2017, no pet.) (TCPA movant waived motion to dismiss by failing to obtain a hearing on his motion within 90 days after the motion was served); Braun v. Gordon, No. 05-17-00176-CV, 2017 WL 4250235, at *3 (Tex. App.-Dallas Sept. 26, 2017, no pet.) (mem. op.) (TCPA movant waived motion to dismiss by failing to have motion set for hearing until nearly 120 days after the motion was served); see also In re Herbert, No. 05-19-01126-CV, 2019 WL 4509222, at *2-3 (Tex. App.-Dallas Sept. 19, 2019, orig. proceeding) (mem. op.) (granting mandamus when trial court refused to set TCPA motion for hearing within the 90-day deadline "because the TCPA requires the trial court to hold a timely hearing when the movant acts with reasonable diligence to obtain such a hearing"). Because the appellees set their motions for hearing within the 90-day deadline, Hill III's authorities do not advance his argument.
The TCPA provides that the trial court may hold the hearing after the 60th day after service of the motion when it takes judicial notice that the conditions of the docket require it and so long as the hearing is held no later than the 90th day after the service of the motion. See Tex. Civ. Prac. & Rem. Code § 27.004(a) ("A hearing on a motion under Section 27.003 must be set not later than the 60th day after the date of service of the motion unless the docket conditions of the court require a later hearing, upon a showing of good cause, or by agreement of the parties, but in no event shall the hearing occur more than 90 days after service of the motion under Section 27.003" except where the court allows limited discovery relevant to the motion). The statute does not define "conditions of the docket," nor does it require the court to make a finding that it has taken judicial notice that the conditions of the docket require setting the hearing beyond the 60-day deadline but before the 90th day after service of the motion. Cf. Tex. Civ. Prac. & Rem. Code § 27.007 (2011) (requiring trial court to make findings, upon request, relevant to an award of sanctions under former section 27.009).
The appellate record shows that the appellees acted with reasonable diligence to set the motions for hearing within the statutory deadline, in light of the conditions of the docket, which include conditions specific to this case. The motions to dismiss were filed on September 24, 2019, and October 4, 2019. On October 17, 2019, and October 23, 2019, the appellees contacted the clerk's office to request a hearing on the motion. Initially, all appellees, except the Washburnes and Summers, set their motions for hearing on November 21, 2019, which was the 58th day after Pickett, Waller, Tatham, and Donnally served their motion to dismiss, and the 48th day after the other appellees served their motion to dismiss. The Washburnes and Summers made additional contacts by phone and email with the clerk's office to explain that setting the motions to dismiss to be heard at the same time would serve the interest of judicial efficiency. All of the motions were then set for hearing on December 18, 2019, which was the 75th or 85th day after the TCPA motions were served. The hearings were then reset to December 11, 2019, which was the 68th or 78th day after the TCPA motions were filed.
The record also discloses factors affecting the conditions of the trial court's docket, particularly in regard to the this case: the complicated nature of this case, the number of defendants and separate counsel, the judicial efficiency of hearing the motions together, the need for an extended period of time for such a hearing to afford all parties an opportunity to be heard, and the time the court needed to study and consider the arguments, objections, and submissions of the parties, which included several thousand pages of evidence submitted by Hill III.
We conclude that the hearing, which was held before the 90th day after the service of the motions, was timely. See Tex. Civ. Prac. & Rem. Code § 27.004(a). We overrule Hill III's second issue.
IV. The TCPA applies to Hill III's claims against all of the appellees.
In his third issue, Hill III contends that the TCPA does not apply to his claims. In his live pleading, Hill III alleged that Hill Jr., Mike Lynn, Lisa Blue, Craig Watkins, Terri Moore, and Jeff Tillotson initiated Hill III's prosecution by providing allegedly false information to the district attorney's office. Hill III alleged that the following people committed civil conspiracy to harm him: Hill Jr., Lisa Blue, Stephen Malouf, Charla Aldous, Mike Lynn, Jeff Tillotson, Craig Watkins, Terri Moore, Russell Wilson, Margaret Keliher, Heather Washburne, Elisa Summers, Ray Washburne, Alinda Wikert, Lyda Hill, David Pickett, Ty Miller, Joy Waller, Thomas Tatham, and Chester Donnally. Hill III alleged that they "had a meeting of the minds on the object (the prosecution of [Hill III]) and course of action (supplying knowingly false information to prosecutors, exerting undue influence over prosecutors, and providing financial benefits to DA Watkins)." Hill III then pleaded facts that he alleged demonstrated how each person was part of the conspiracy.
At the hearing on the TCPA motions, the trial court severed Hill III's claims against the attorneys (Blue, Malouf, Aldous, Lynn, Tillotson, Watkins, Moore, and Russell), and transferred venue of that case to Dallas County. They are not part of this appeal. Hill Jr. died in 2017; he is not a party to this appeal. As to the appellees in this appeal, most of Hill III's factual allegations fall into four categories:
(1) the appellees provided information alleging wrongdoing on the part of Hill III to the district attorney's office;
(2) the appellees directly, or as a member of a group, donated money to the district attorney's office, specifically, the animal cruelty division;
(3) the appellees were business associates or advisors to Hill Jr. or served as trustees of the family trusts;
(4) the appellees aligned with Hill Jr. in the trust litigation and ongoing family disputes or worked with other family members to terminate trusts created by the Global Settlement Agreement.
In addition, Hill III made two specific, additional allegations of fact. First, he alleged that Ray Washburne texted Hill III, saying that Hill Jr. came up with new "charges" daily. Second, he alleged that Waller helped Hill Jr. to falsify records in the trust litigation.
A. Claims against appellees alleged to have given information to the district attorney
All of the appellees contend that Hill III's claims infringe on their rights to free speech. Pickett, the Washburnes, Summers, Waller, Tatham, and Donnelly also contend that Hill III's claims infringe on their rights to petition. As to their free-speech argument, to prove that the TCPA applies to Hill III's claims against them, they must show that his claims are based on, related to, or in response to their communications made in connection with a matter of public concern, including safety, community well-being, and the government. See Tex. Civ. Prac. & Rem. Code § 27.003(a) (2011); id. § 27.001 (1), (3), (6), (7) (2011). As to their freedom to petition argument, to prove that the TCPA applies to Hill III's claims against them, they must show that his claims are based on, related to, or in response to their communications in or pertaining to, among other things, a judicial proceeding, an official proceeding to administer the law, or an issue under consideration or review by a legislative, executive, judicial, or other governmental body in a governmental or official proceeding. See Tex. Civ. Prac. & Rem. Code § 27.001(4) (2011). Reporting wrongdoing to governmental officials is an exercise of the right to petition, regardless of whether the report is true or false. See Bibby, 634 S.W.3d at 408; Buckingham Senior Living Cmty., 605 S.W.3d at 807.
Hill III alleged that the following appellees provided to the district attorney's office allegedly false information that Hill III had been engaged in potentially criminal wrongdoing: Pickett, Heather Washburne, Summers, Keliher, Miller, Wikert, and Lyda Hill. Reports of potentially criminal activity to law enforcement and related judicial proceedings are matters of public concern. See Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017). Because the alleged statements to the district attorney's office concerned allegations of potentially criminal wrongdoing, they were statements of public concern and an exercise of these appellees' rights to freedom of speech and freedom to petition. See id. Thus, we conclude that the TCPA applies to Hill III's claims for malicious prosecution against Pickett, Heather Washburne, Summers, Keliher, Miller, Wikert, and Lyda Hill.
As to their freedom to petition argument, to prove that the TCPA applies to Hill III's claims against them, they must show that his claims are based on, related to, or in response to their communications in or pertaining to, among other things, a judicial proceeding, an official proceeding to administer the law, or an issue under consideration or review by a legislative, executive, judicial, or other governmental body in a governmental or official proceeding. See Tex. Civ. Prac. & Rem. Code § 27.001(4) (2011).
As to Ray Washburne, Hill III alleged that Ray sent him a text message on February 20, 2010 during the pendency of the trust litigation that said: "Every day brings new charges and [Hill Jr.] is coming up with new ideas daily." Ray's right to free speech and right to petition are implicated by this allegation. To the extent that Hill III alleges that this is a reference to criminal charges, it is a comment on a matter of public concern because it relates to the reporting of wrongful acts to law enforcement. The entire text message was attached to Ray Washburne's motion to dismiss, and it showed that Ray was communicating about resolving the trust litigation. In that context, the text message is a communication relating to a judicial proceeding, and it is protected as freedom to petition.
Hill III also alleged that the appellees were part of a conspiracy to make allegedly false statements about him to the district attorney in order to procure criminal charges against him and that they aided and abetted the primary actors in doing so. Civil conspiracy is not an independent tort. Agar Corp., Inc. v. Electro Cirs. Int'l, LLC, 580 S.W.3d 136, 142 (Tex. 2019). Rather it is "a theory of vicarious liability," and "part of the factual situation that permits a remedy against co-conspirators . . . who did not commit the underlying unlawful act." Id. at 141. "Civil conspiracy is 'derivative' such that it is 'connected to the underlying tort and survives or fails alongside it.'" Cunningham v. Waymire, 612 S.W.3d 47, 68 (Tex. App.-Houston [14th Dist.] 2019, no pet.) (quoting Agar Corp., 580 S.W.3d at 140-41). In Cunningham, the court of appeals refused to dismiss civil conspiracy claims because nonmovant defeated the TCPA motion to dismiss the tort underlying civil conspiracy theory. 612 S.W.3d at 68. "Aiding and abetting, like civil conspiracy, is also a derivative tort-to the extent it is an actionable tort in Texas" and dismissal or a grant of summary judgment as to the underlying tort also determines the disposition of the aiding and abetting claim. Brumfield v. Williamson, 634 S.W.3d 170, 208 (Tex. App.-Houston [1st Dist.] May 27, 2021, pet. denied).
"The plaintiff in a civil conspiracy action must show the following elements: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result." Metzger v. Sebek, 892 S.W.2d 20, 43-44 (Tex. App.-Houston [1st Dist] 1994, writ denied). "The 'unlawful, overt acts' must be acts in furtherance of the conspiracy." Id. at 44.
"The Texas Supreme Court has not expressly decided whether Texas recognizes a cause of action for aiding and abetting." Brumfield v. Williamson, 634 S.W.3d 170, 194 n. 26 (Tex. App.-Houston [1st Dist] May 27, 2021, pet. denied); see First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 224-25 (Tex. 2017); Nguyen v. Watts, 605 S.W.3d 761, 792 n.19 (Tex. App.-Houston [1st Dist.] 2020, pet. denied). The Fourteenth Court of Appeals has stated the elements for a claim for aiding and abetting are: "(1) the primary actor committed a tort; (2) the defendant had knowledge that the primary actor's conduct constituted a tort; (3) defendant had intent to assist the primary actor; (4) defendant gave the primary actor assistance or encouragement; and (5) defendant's conduct was a substantial factor in causing the tort." Immobiliere Jeuness Establissement v. Amegy Bank Nat'l Ass'n, 525 S.W.3d 875, 882 (Tex. App.-Houston [14th Dist.] 2017, no pet.) (citing Juhl v. Airington, 936 S.W.2d 640, 643 (Tex. 1996) (discussing concert of action theories of tort liability)).
Pickett, Heather Washburne, Ray Washburne, Summers, Keliher, Miller, Wikert, and Lyda Hill have demonstrated that the TCPA applies to Hill III's malicious prosecution claims against them. Likewise, the TCPA applies to Hill III's derivate claims against them for civil conspiracy and aiding and abetting. Because these appellees met their burden to show that the TCPA applied, the burden shifted to Hill III to come forward with a prima facie case for his claims.
B. Claims against appellees alleged to have donated money to the district attorney's office
Hill III also alleged that Alinda Wikert and Lyda Hill donated money to the animal cruelty division of the Dallas County district attorney's office, and that Keliher served on the board of a group that donated money to the district attorney's office. We have already concluded that Keliher, Wikert, and Lyda Hill demonstrated that Hill III's claims against them are subject to the TCPA, and we need not consider whether their contributions also implicated the protections of the TCPA. See Tex. R. App. P. 47.1.
C. Claims against business associates
Hill III also alleged that the remaining appellees-Tatham, Donnally, and Waller-were part of a conspiracy to make allegedly false statements about him to the district attorney in order to procure criminal charges against him and that they aided and abetted the primary actors in doing so.
Hill III alleged that these three people associated with Hill Jr. as employees, trusted advisors, or trustees of family trusts. Hill III alleged that Tatham, Donnally, and Waller worked with Hill Jr. and Pickett to promote or pursue the filing of the criminal complaint. Pickett, Tatham, Donnally, and Waller filed a joint motion to dismiss.
We have already explained that reporting potentially criminal activity to law enforcement implicates the rights to free speech and to petition. As to Tatham, Donnally, and Waller, any statements that they made to each other or to others who were sued by Hill III about reporting potentially criminal activity to law enforcement also implicates their exercise of the freedom of association. See Tex. Civ. Prac. & Rem. Code § 27.001(2) (2011) (defining the exercise of the right of association as "a communication between individuals who join together to collectively express, promote, pursue, or defend common interests"). We conclude that Tatham, Donnally, and Waller have shown that the TCPA applies to Hill III's claims against them. Accordingly, the burden shifted to Hill III to make a prima facie case as to his claims against them.
V. Hill III's challenge to the trial court's evidentiary rulings is waived.
Before we determine whether Hill III met his burden to come forward with a prima facie case for his claims, we must address his contention that the trial court improperly excluded evidence. In the trial court, the appellees jointly objected to Hill III's voluminous submission of evidence. They objected to his two declarations on the following grounds: lack of personal knowledge, hearsay, conclusory, speculation, lack of foundation, best evidence, parol evidence, assumes facts, unsupported opinion, relevance, and lack of authentication. The objections were made both on a global and specific basis. The appellees provided charts identifying specific objections on a paragraph and line basis. The appellees also objected to Hill III's 121 exhibits, only 29 of which are included in the appellate record. They objected on the grounds of hearsay, relevance, and lack of authentication. Finally, they objected to the voluminous production of evidence and Hill III's failure to clearly identify which pieces of evidence support his prima facie case. On appeal, Hill III challenges the exclusion of his evidence generally with the exception of objections that his evidence is conclusory or not based on personal knowledge. He does not make any arguments on a granulated basis that corresponds to the specific objections made by the appellees in the trial court.
"When an appellee objects to evidence on several independent grounds and, on appeal, the appellant complains of the exclusion of the evidence on only one of those grounds, the appellant waives any error by failing to challenge all possible grounds for the trial court's ruling that sustained the objection." Gulley v. Davis, 321 S.W.3d 213, 218 (Tex. App.-Houston [1st Dist.] 2010, pet. denied). Hill III failed to challenge all possible grounds for the trial court's evidentiary ruling, and we therefore conclude that he waived his challenge to the exclusion of his evidence. See id.
VI. Hill III failed to make a prima facie case for his claims.
Because the trial court excluded nearly all of Hill III's evidence, we rely primarily on the factual allegations in his live pleading to determine whether he has established by clear and specific evidence a prima facie case for his claims against Pickett, Heather Washburne, Ray Washburne, Summers, Keliher, Miller, Wikert, and Lyda Hill. See Tex. Civ. Prac. & Rem. Code § 27.005(c) (2013).
A plaintiff in a malicious prosecution claim must establish:
(1) the commencement of a criminal prosecution against the plaintiff;
(2) causation (initiation or procurement) of the action by the defendant;
(3) termination of the prosecution in the plaintiff's favor;
(4) the plaintiff's innocence;
(5) the absence of probable cause for the proceedings;
(6) malice in filing the charge; and
(7) damage to the plaintiff.Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997).
The Supreme Court of Texas has explained the judicial philosophy behind malicious prosecution claims:
This Court has long recognized a cause of action for those subjected unjustifiably to criminal proceedings, but has also made clear that the cause of action must sometimes yield to society's greater interest in encouraging citizens to report crimes, real or perceived. The elements necessary to prevail on a malicious prosecution claim reflect this balance. Thus, the plaintiff must prove not only that the defendant commenced criminal proceedings against her and she is innocent of the crime charged, but also that the defendant lacked probable cause and harbored malice toward her. These latter elements guard against a jury's natural inclination to punish those who, through error but not malevolence, commence criminal proceedings against a person who is ultimately exonerated. The probable cause element "asks whether a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed them to be before the criminal proceedings were instituted." Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997) (citing Akin v. Dahl, 661 S.W.2d 917, 920 (Tex. 1983), cert. denied, 466 U.S. 938, (1984)). Courts must presume that the defendant acted reasonably and had probable cause to initiate criminal proceedings. Id. To rebut this presumption, the plaintiff must produce evidence that the motives, grounds, beliefs, or other information upon which the defendant acted did not constitute probable cause. Id. at 518.Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 792-93 (Tex. 2006). The dichotomy between the criminal law's presumption of innocence and requirement of proof beyond a reasonable doubt and the civil law's presumption that one who reports a crime does so in good faith is justified by societal interests that "it is more important that the guilty occasionally go free than for the innocent to be jailed," and that "it is more important that a private citizen report an apparent subversion of our laws than for the wrongly accused to attain monetary redress from the accuser." Id. at 794.
In light of these competing interests, an acquittal or dismissal of charges does not prove lack of probable cause, nor does an arrest prove that the malicious prosecution plaintiff is not innocent. Id. Because probable cause is presumed, to make a prima facie case on malicious prosecution, the plaintiff must show that the defendants harbored animus or relied on information that does not support a reasonable belief that the plaintiff was guilty of the crimes for which he was charged. See id. at 794-95. In reviewing the record to determine whether a plaintiff has made a prima facie case, we remain cognizant that "a private citizen has no duty to investigate a suspect's . . . explanation before reporting a crime." Id. at 794.
We focus our analysis on the element of absence of probable cause because we believe it is dispositive. "Probable cause is the 'existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor [complainant], that the person charged was guilty of the crime for which he was prosecuted.'" Buckingham Senior Living Cmty., 605 S.W.3d at 811 (quoting Richey, 952 S.W.2d at 517). The probable-cause element inquires "whether a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed them to be before the criminal proceedings were instituted." Richey, 952 S.W.2d at 517. "[T]here is an initial presumption in malicious prosecution actions that the defendant acted reasonably and in good faith and had probable cause to initiate the proceedings." Id. The presumption disappears if a plaintiff produces evidence that the motives, grounds, beliefs, and other evidence upon which the defendant acted did not constitute probable cause. Id. "Courts must be especially careful in malicious prosecution cases to ensure that sufficient evidence supports each element of liability. Otherwise, the fourth element (innocence) automatically swallows the fifth (lack of probable cause) and sixth (malice) elements of this claim." Kroger Tex. Ltd. P'ship, 216 S.W.3d at 795.
A. Making false statements to obtain credit
Hill III was charged with three instances of making a false statement to obtain credit. "A person commits an offense if he intentionally or knowingly makes a materially false or misleading written statement to obtain property or credit, including a mortgage loan." Tex. Penal Code § 32.32(b). As alleged in the indictments, Hill III was accused of making false statements on the application for a loan with OmniAmerican Bank regarding: (1) his ownership of the Bordeaux property, (2) the amount of his monthly income from employment, and (3) the amount of money in his Inwood National Bank Account.
In his live pleading, Hill III alleges repeatedly that reports to the district attorney about the Albert Hill Trust owning 80% of the Bordeaux property were false because the sale was not a real transaction in light of the fact that the deed was not recorded in the public records. But the real estate sales contract, the bill of sale, and the general warranty deed evidencing the sale of 80% of the Bordeaux property were attached to Pickett's motion to dismiss. Ordinarily, a conveyance of land must be in writing and signed and delivered by the conveyor. Tex. Prop. Code § 5.021. As between grantor and grantee, "a deed is valid even if it is not acknowledged" and not recorded. Apex Fin. Corp. v. Garza, 155 S.W.3d 230, 237 (Tex. App.-Dallas 2004, pet. denied) ("Recording of a deed is not essential to pass title to the land."). Ordinarily, people are charged with knowledge of the contents of a deed they have signed. See Cosgrove v. Cade, 468 S.W.3d 32, 40 (Tex. 2015) (parties who signed a deed were charged with knowledge of material omissions from deed); see also In re Bank of Am., N.A., 278 S.W.3d 342, 344 (Tex. 2009) (courts presume that party who signs a contract knows its contents).
Hill III alleges that any reports to the district attorney that he claimed to own 100% of the Bordeaux property on his OmniAmerican Bank loan application were false because everyone involved in the litigation knew that the 2004 transaction was not really a sale or transfer of ownership. That argument is belied by the deed of trust signed by Hill III. Even though Hill III has alleged malice on the part of those who made reports of his alleged wrongdoing to the district attorney, we cannot conclude that Hill III proved absence of probable cause as to the charge that he misrepresented his ownership of the Bordeaux property on his bank loan application.
As to the charges that he misrepresented his Inwood Bank balance and his monthly employment earnings, Hill III does not allege that his representations were truthful and accurate or deny signature of the loan application. Instead, he alleges that a representative of the bank told him what to write on the form to secure the loan. Those allegations, if proven, may be relevant to whether OmniAmerican Bank actually was deceived, but they do not support an inference that the people who made reports to the district attorney's office lacked probable cause to do so.
We conclude that Hill III did not present clear and specific evidence that any of the appellees lacked probable cause to make a report to law enforcement regarding the three charges for making false statements to obtain credit.
B. Fraudulently securing execution of a document
Hill III was also charged with fraudulently securing the execution of a document. "A person commits an offense if the person, with the intent to defraud or harm any person . . . causes another person, without that person's effective consent, to sign or execute any document affecting property or service or the pecuniary interest of another." Tex. Penal Code § § 32.46(a)(1). "Consent is not effective if . . . induced by deception or coercion . . . ." Id. §32.46(d)(3)(a). "Deception" means
(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;
(B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true;
. . . .
(D) selling or otherwise transferring or encumbering property without disclosing a lien, security interest, adverse claim, or other legal impediment to the enjoyment of the property, whether the lien, security interest, claim, or impediment is or is not valid, or is or is not a matter of official record;Tex. Penal Code § 31.01(1); see id. § 32.46(d)(1).
To make a prima facie case of the element of probable cause as to this charge, Hill III had to show that the appellees harbored animus or relied on information that does not support a reasonable belief that Hill III induced OmniAmerican Bank to execute the loan documents by use of deception as defined in the statute. See Kroger Tex. Ltd. P'ship, 216 S.W.3d at 794-95. Hill III's statements on the loan application created a false impression of fact because he failed to disclose that the trust had an ownership interest in the house. See Tex. Penal Code § 31.01(1); see also id. § 32.46(d)(1).
We conclude that Hill III did not present clear and specific evidence that any of the appellees lacked probable cause to make a report to law enforcement regarding the charge for fraudulently securing execution of a document.
* * *
Having concluded that Hill III did not present clear and specific evidence that the appellees lacked probable cause to make reports to law enforcement, we conclude that Hill III failed to make a prima facie case of malicious prosecution. We further conclude that Hill III did not make a prima facie case establishing probable cause as required for his claim of malicious prosecution. Because both conspiracy and aiding and abetting are derivative torts, they cannot survive in the absence of a prima facie case on the underlying tort, which in this case is malicious prosecution. See Agar Corp., 580 S.W.3d at 140-41; Cunningham, 612 S.W.3d at 68.
Conclusion
We overrule all of Hill III's issues, and we affirm the judgment of the trial court.