Preview
Received and E-Filed for Record
4/16/2021 3:47 PM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Charlotte Forbes
CAUSE NO. 19-06-07875
IN RE THE CAROLYN S. CLARK § IN THE DISTRICT COURT OF
§
IRREVOCABLE LIVING TRUST § MONTGOMERY COUNTY, TEXAS
§
U/T/A JULY 28, 2017 § 457th JUDICIAL DISTRICT
PLAINTIFFS’ LAWYERS’ MOTION TO DISMISS THE NEWLY PLED
COUNTERCLAIMS WITH PREJUDICE UNDER THE TEXAS CITIZENS’
PARTICIPATION ACT
COMES NOW Plaintiffs’ counsel Steven Earl, James Graham and Stilwell, Earl &
Apostolakis, LLP (the “lawyers” or “counsel”), filing this Motion to Dismiss the Newly Pled
Counterclaims with Prejudice Under the Texas Citizens’ Participation Act seeking relief against
Defendant Kristin Wilkinson n/k/a Kristin Wilkinson Guardino (“Wilkinson”) and Leonard
Guardino (collectively, “Guardinos”) and, in support thereof, would show the Court as follows:
I. SUMMARY
1. The Guardinos filed a slew of counterclaims on March 24, 2021, including the following
(all of which are denied) 1:
Cause of Action Defendants Claims
Defamation James Flitsch Wilkinson was defamed in court;
Carolyn Clark James Flitsch cannot act for the Trust;
Steven Earl The Guardinos are private citizens;
James Graham The Guardinos were injured; and,
Stilwell, Earl & Apostolakis, LLP Injury was foreseeable
Request for James Flitsch Both Guardinos make this claim;
Retraction Carolyn Clark Statements Plaintiffs made in the
Steven Earl petition were out of context; and,
James Graham The statements are not relevant.
Stilwell, Earl & Apostolakis, LLP
Fraud by Non- Carolyn Clark About 2 years after the Trust was
Disclosure signed, Carolyn Clark had a legal duty
to disclose to the Guardinos Carolyn’s
desires for trustees
1
Ex. A at 11-32 (2nd Amd. Answer/Counterclaim).
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 1
Negligence and James Flitsch The statements in court and the
Gross Carolyn Clark actions taken in court were the named
Negligence Steven Earl persons acting negligently to engage
James Graham in fraud, intentional infliction of
Stilwell, Earl & Apostolakis, LLP emotional distress, and interfering
with the Guardinos legal relationship
with the Trust; the lawyers’ actions in
the suit helped Carolyn Clark and
James Flitsch disparage the Guardinos
and take away the Guardinos legal
rights
Tortious James Flitsch The actions taken in court by these
interference Carolyn Clark persons interfered with the legal and
Steven Earl contractual relationships between the
James Graham Trust and the Guardinos, who had
Stilwell, Earl & Apostolakis, LLP valid contracts with the Trust
Exemplary James Flitsch The actions taken by these people in
damages Carolyn Clark court was enough for the Guardinos to
Steven Earl recover exemplary damages
James Graham
Stilwell, Earl & Apostolakis, LLP
Participatory and James Flitsch The lawyers’ assistance with the legal
Vicarious Carolyn Clark proceeding renders both the lawyers
Liability Steven Earl and the clients liable.
James Graham
Stilwell, Earl & Apostolakis, LLP
2. The Guardinos filed their meritless New Counterclaims for the sole purpose of intimidating
the Plaintiffs (and their counsel) from exercising their constitutional right to petition and right to
exercise free speech. Texas has deemed such lawsuits – filed for no purpose but to stall the exercise
of a constitutional right – as Strategic Lawsuits Against Public Participation. To combat the
arbitrary filing of suits to quiet the expression of one’s constitutional rights, Texas has codified the
Texas Citizens Participation Act (“TCPA”). TEX. CIV. PRAC. & REM. CODE §27.001.
3. The TCPA requires immediate, mandatory dismissal of lawsuits that attempt to silence the
constitutional rights of others, save – of course, when a claimant can provide clear and specific
evidence to support every element of each and every claim provided that such claims are not
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 2
subject to a dispositive affirmative defense. The Guardinos are currently counter-suing Plaintiffs
and their counsel for defamation and defamation related claims. The Guardinos’ claims – being
unfounded and subject to well established defenses – will not pass the TCPA test and must be
dismissed with prejudice. Further, as allowed under the TCPA, Plaintiffs’ lawyers seek
reimbursement of all costs and attorney’s fees in defending against this lawsuit and sanctions to
prevent future misconduct.
II. BACKGROUND FACTS
4. The tragedy began in 2017 when Clark hired Wilkinson to draft a revocable trust. Clark is
a widow and was at the time. The Trust drafted by Wilkinson had material scrivener’s errors in
it 2 and necessitated this action to correct errors in the Trust. The reformation action remains open
and the Guardinos are not part of the reformation action as they are strangers to the Trust – being
neither trustees nor beneficiaries.
5. The Trust Wilkinson drafted appointed Carolyn’s son, Kevin Clark, and her grandson,
James Flitsch, as co-trustees. Kevin Clark later resigned and a controversy arose about whether
Wilkinson and her new husband, Leonard Guardino, took over as co-trustees of the Trust. This
part of the controversy was resolved by this Court in August 2020, when it granted Plaintiffs’
summary judgment. (Ex. B). However, a claim remains for recovery of some or all of the
$91,015.99 in trust property which Wilkinson obtained while holding herself out as trustee.
6. In pursuit of their claims, Plaintiffs filed their Third Amended Petition on September 28,
2020. The petition set out Plaintiffs’ causes of action against the Guardinos, and certain facts
related to the claims. The initial response from the Guardinos was to file a frivolous removal
2
Pl. 3rd Am. Pet., p. 4 n. 1.
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 3
action on October 20, 2020, to try and move this case to federal court. 3 This effort failed and the
case was remanded. 4 Notably, on the federal civil cover sheet for notice of removal, in
handwriting, the Guardinos state that part of the relief they wanted in federal court was “the
disbarment of ℿ atty Steven Earl.” (Ex. C). This was clearly evidencing the Guardinos plans to
retaliate against Plaintiffs and their counsel for the exercise of the right to petition, Wilkinson
signed the civil cover sheet. (Ex. C).
7. The Guardinos filed a new set of counterclaims (“New Counterclaims”) on March 24,
2021. In the New Counterclaims, the Guardinos complain, through various causes of action, that
(i) certain statements made in the Third Amended Petition defamed them and harmed them and
their businesses 5, (ii) the Plaintiff’s’ court action to declare that the Guardinos were not trustees
tortiously interfered with the Guardinos contractual relationship with the Trust to serve as trustees,
(iii) the Plaintiffs’ lawyer/law firm negligently participated in (i)-(ii) with the Plaintiffs by
providing legal help to Plaintiffs in this suit, and, (iv) Carolyn Clark did not object enough to the
3
For example, black letter law required the Guardinos to obtain the consent of other defendants to
remove the case. (Ex. D, p. 1-2). They never did this. Id. At the oral hearing on the Plaintiffs’
Motion to Remand, Federal District Judge Keith P. Ellison (appointed by President Clinton in
1999) pointed this out. Instead of acknowledging black letter law required the missing consents
from other Defendants, Wilkinson-Guardino argued with a 20+ year federal trial judge over basic
jurisdictional rules.
4
Plaintiffs did not move for the sanctions of attorney’s fees in federal court only because doing so
would have given the Guardinos the right to appeal the decision on fees – delaying remand.
5
Several cites to the Guardinos New Counterclaims show the Plaintiffs’ lawyers more than meet
their preponderance of the evidence burden to show the TCPA applies: (i) “James Flitsch and his
agents held themselves out as representing the Trust in pleadings in this case as if properly
engaging in business activity for the Trust….” (p. 8); (ii) Plaintiffs and their counsel “…filed a
Third Amended Original Petition wherein they, knowingly and intentionally, with actual malice
and/or with gross negligence agreed, or understood among themselves, or agreed after the fact to
injure the Guardinos by defaming them by inserting into their third amended petition defamatory
statements about Kristin Wilkinson Guardino.” (p. 9); (iii) “The defendants’ and counter-
defendants’ named herein statements were false….” (p. 10);(iv) the demand for retraction (pp. 11-
12) only identifies statements made in the Third Amended Petition; and, (v) offering bogus
arguments and evidence to a court (pp. 18-19).
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 4
Guardinos serving as trustees such that the Guardinos relied on her silence to serve as trustees or
take action as trustees.
8. In the New Counterclaims, the Guardinos make several requests that Plaintiffs retract
allegations made in the Third Amended Petition, including:
(1) that “Wilkinson was involuntarily removed as Trustee for failing to post bond
as ordered by the court;” (2) that “Wilkinson was actively suspended from the
practice of law on three separate occasions: (1st) Six (6) month suspension from
August 1, 2009 to February 28, 2010; District 4E Grievance Committee Evidentiary
Panel 4E09, Cause No. H0090520881 (Exhibit 2) arising from the Harris County,
Texas felony criminal charges in Cause No. 1074730 referenced in footnote 4
next);” and (3) “but in the court’s final disposition, the court authorized the state to
prosecute the case as a misdemeanor under Texas Penal Code § 12.44(b) and
deferred further proceedings without entering a finding of guilt. Wilkinson was
placed on community supervision with deferred adjudication; she successfully
completed the community supervision. Although the case was ultimately
dismissed, Wilkinson served community supervision and the felony criminal
charge remains in the record Exhibit 5.”
Guardinos’ 2nd Amd Answer, at 11-12.
9. Plaintiffs attached exhibits to the Third Amended Petition which showed that none of those
statements were false. In fact, the exhibits conclusively prove up the allegations.
10. Wilkinson was "involuntarily removed." This was conclusively shown in Exhibit 1 to the
Third Amended Petition which is a copy of the actual court order removing Wilkinson. Moreover,
it was recited by the Beaumont Court of Appeals as a fact in Wilkinson v. Comm'n for Lawyer
Discipline, 2019 Tex. App. LEXIS 6390, at *22-23 (Tex. App.—Beaumont July 25, 2019, pet.
denied) (memo op.) (“After McCulloch discovered that Wilkinson was managing J.G.'s assets of
approximately $800,000, the probate court ordered Wilkinson to post a $350,000 bond. After
Wilkinson did not post the bond and filed a notice of nonsuit of the guardianship proceeding, on
March 26, 2015, the probate court removed Wilkinson as trustee and appointed Kyle Frazier as
successor interim trustee.”).
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 5
11. Wilkinson was "suspended on 3 occasions." This was conclusively shown in Exhibits 2-4
of the Third Amended Petition.
a. 1st Suspension – 9/22/2009 - Page 1 of Exhibit 2 includes a copy of the “Judgment
Affirming Judgment of Active Suspension” which refers to an active suspension
signed July 22, 2009. Page 2 of Exhibit 2 contains records from the Chief
Disciplinary Counsel for the State Bar of Texas identifying the findings supporting
the active suspension. Page 3 of Exhibit 2 is a copy of the Judgment of Active
Suspension including findings.
b. 2nd Suspension - 1/21/2011 – Pages 1-2 of Exhibit 3 contains a copy of the
“Judgment Overruling Plea to the Jurisdiction and Affirming Judgment of Partially
Probated Suspension.” Pages 3-10 of Exhibit 3 contain a copy of the “Judgment of
Partially Probated Suspension”. The Judgment “DECREED that [Wilkinson] be
suspended from the practice of law for a period of forty-eight (48) months….” (Ex.
3 p. 5).
c. 3rd Suspension - 1/21/2011 – Pages 1-5 of Exhibit 4 contains a copy of the “Judgment
Overruling Plea to the Jurisdiction and Revoking Probation.” On page 4, the order
“DECREED that [Wilkinson] be, and hereby is, actively SUSPENDED from the
practice of law in the State of Texas for a period of twenty-four months effectively
immediately…..”
d. Eventual disbarment – Exhibit 6 is the jury’s answer to the charge in Wilkinson’s
disbarment trial. In answer to Question No. 1, the jury found that Wilkinson engaged
“in conduct involving dishonesty, fraud, deceit or misrepresentation.” In answer to
Question No. 2, the jury found that Wilkinson committed a “Criminal act that
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 6
reflects on her honesty, trustworthiness or fitness as a lawyer in other respects.” The
verdict was unanimous. Wilkinson was disbarred within weeks upon entry of
judgment and the judgment was affirmed in Wilkinson v. Comm'n for Lawyer
Discipline, 2019 Tex. App. LEXIS 6390, at *1 (Tex. App.—Beaumont July 25,
2019, pet. denied) (cert. denied 141 S. Ct. 90, 207 L. Ed.2d 172, 2020 U.S. Lexis
3126) (memo op.).
12. Wilkinson was in fact charged with a felony that was reduced to a misdemeanor. Page 1
of Exhibit 5 is a copy of the felony indictment. Page 3 recites that the criminal court allowed the
charges to be prosecuted as a misdemeanor and deferred adjudication was given.
13. But, aside from truth, there are far more problems with the New Counterclaims. Initially,
Wilkinson was suspended several times and eventually disbarred and there are quite a few public
documents which report these official government actions. Now that she is banned from practicing
law or holding herself out as an attorney, how on earth could debates over the number, variety or
specific contentions about why or how often she was suspended or disbarred reduce or diminish
her reputation to practice law? Whatever debates Wilkinson wants to engage in about, she was
suspended and eventually disbarred because of bad conduct. She has no business that gives legal
advice.
14. Perhaps what Wilkinson is saying is, unless Plaintiffs (through the lawyers) bring to light
her history by way of this lawsuit, that Wilkinson can explain away the numerous legal actions
that haunted and then ended her legal practice so that someone who might otherwise be convinced
to do business with her as a professional (non-lawyer) could understand that Wilkinson never
deserved any of it.
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 7
Maybe Wilkinson still wants to practice law and keep it secret. 6 If either is her goal, she thinks
that Plaintiffs’ (through the lawyers) exercise of the right to petition is standing in her way such
that it warrants bringing the New Counterclaims.
15. Or perhaps – and most likely- Wilkinson is continuing a longstanding practice that she has
of suing opponents and lawyers for opposing her in court. She already countersued Carolyn Clark
in cause number 19-07-10233 (now pending in this Court) for making statements in or about the
malpractice suit, and, those claims were dismissed under the TCPA. (Ex. E – TCPA Motion in
that case; Ex. F- TCPA order in that case).
16. But Plaintiffs and their counsel are not Wilkinson’s first victims. See.e.g. Wilkinson v.
USAA Fed. Sav. Bank Tr. Servs., 2014 Tex. App. LEXIS 7091 (Tex. App.—Houston [14th Dist.]
2014, pet. denied) (memo op.). In that case, Wilkinson sued USAA for defamatory remarks made
in open court. Id. at 22-24. Not only did she sue USAA – but she also sued USAA’s counsel and
a court receiver for claims for “vicarious liability, breach of fiduciary duty, fraud, defamation,
breach of contract, and violations of the DTPA.” Id. at *1. Wilkinson argued that statements made
in court did not provide an absolute privilege or judicial proceeding privilege. Id. at 18. The
Appeals Court identified that “…Wilkinson predicated her defamation claims on allegedly
‘defamatory remarks’ that the appellees made ‘in open court’ and to ‘the judge’ about her and
about ‘all kinds of problems’ with her contracts.” Id. at *21. The court observed that all of
Wilkinson’s
6
There is evidence that Wilkinson is still holding herself out as a lawyer in public records and
maintaining a PLLC that she should have dissolved. (See Ex. G – Texas Secretary of State filings).
Also, in her disbarment case, there was evidence that Wilkinson charged $350 per hour for her
time as a paralegal when she was on suspension. Wilkinson v. Comm'n for Lawyer Discipline,
2019 Tex. App. LEXIS 6390, at *38-39.
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 8
“…summary judgment evidence that involved some kind of communication or
representation made by either USAA or WKHB—including hearing transcripts,
letters, faxes, emails, motions, and court-ordered status reports—related to and was
generated in or as part of the post-judgment turnover and collection proceeding in
the underlying case. See Lane, 821 S.W.2d at 625. Because the essence of each of
Wilkinson's claims for defamation, fraud, and breach of fiduciary duty is that she
suffered injury as a result of USAA's and WKHB's communication of allegedly
false statements during a judicial proceeding, we conclude that the absolute
privilege bars all of her tort claims.
Id. at *25. According to the decision – “Indeed, Wilkinson does not respond to any of USAA's
and WKHB's cited authority on the judicial proceedings privilege.” Id. at *17 n.9. The Houston
Court of Appeals then affirmed that part of the summary judgment against Wilkinson’s claims.7
Id.
17. Thus, Wilkinson has actual prior experience in at least two prior cases with the privileges
that apply to statements made in or that are related to legal proceedings and prior knowledge that
the privileges bar claims of the same type she brings in the New Counterclaims.
18. She has more experience in meritless claims than that. In Wilkinson v. Susman, 2020 Tex.
App. LEXIS 8953 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (memo op.), Wilkinson
lost on summary judgment for her claims against an estate. In that claim, she said the dependent
administrator she sued had no standing to defend against Wilkinson’s claim against the estate. Id.
at 9-11. This was rejected. Id. The estate was adverse to a client of Wilkinson’s and Wilkinson’s
client was owed money (a contingent fee) after obtaining a default judgment in an accident case.
Wilkinson, who claimed a contingent fee in the default judgment in the name of her client, sued
the estate to get paid her contingent fee. That meritless claim was rejected. Id. at 17-23 (citing
Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 562 (Tex. 2006) and Dow Chem. Co. v. Benton,
163 Tex. 477, 357 S.W.2d 565, 567 (Tex. 1962).
7
The case affirmed all summary judgment grounds against Wilkinson’s claims. Id. at *37, 39.
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 9
19. Many more problems exist – such as:
a. Looking at the fact of prior disciplinary history and also the statements made about
Wilkinson in Wilkinson v. Comm'n for Lawyer Discipline, how can Wilkinson claim
she has a diminished reputation? The disbarment case recounts evidence that proved
Wilkinson took a disabled person’s money.
b. Inasmuch as Leonard Guardino is not a lawyer, how could the same debates about
Wilkinson’s practice of law or criminal history diminish his reputation to practice
law?
c. As the Guardinos are strangers to the Trust (being neither trustees nor beneficiaries),
how could they have a contractual relationship with the Trust such that Plaintiffs
interfered with it?
d. If the Trust did not require Carolyn Clark to consent to a successor trustee, 8 then
how could silence by Carolyn Clark ever be a fraudulent misrepresentation?
20. None of this explains why the Guardinos think that the New Counterclaims are superior to
the absolute privilege for making statements in or related to litigation, or the attorney privilege for
attorneys to do the same – except that the Guardinos want to punish and silence Plaintiffs, control
counsel and/or the selection of counsel for Plaintiffs, and control the forum (or lack if it) for
Plaintiffs’ complaints. Instead, it all shows that the Guardinos are doing the very things Texas
precludes under the Texas Citizens Participation Act.
21. In addition, Wilkinson has a substantial track record of non-compliance with court or
judicial body orders.
8
This is an example of a failure in drafting by Wilkinson. There is no reason why Wilkinson
would draft a trust for Carolyn with other people as trustees and give Carolyn no say whatsoever
in the identity of those trustees.
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 10
III. ARGUMENT AND AUTHORITIES
A. STANDARD OF REVIEW
22. The TCPA encourages and safeguards the constitutional rights of persons to speak and
petition freely and, at the same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002. If a legal action is based on or is
in response to a party’s exercise of the right to petition and right to exercise her free speech, the
party sued may file a motion to dismiss the legal action. TEX. CIV. PRAC. & REM. CODE §27.003.
On filing on a TCPA motion to dismiss, all discovery in the legal action is suspended until the
court has ruled on the motion to dismiss. Id.
23. In determining whether a legal action should be dismissed, the court shall consider the
pleadings and supporting and opposing affidavits stating the facts on which liability or defense is
based. TEX. CIV. PRAC. & REM. CODE §27.006. There is no restriction on proving up fees or
sanctions at a hearing.
24. Deciding whether or not to grant a TCPA motion to dismiss is a two-step process. In re
Lipsky, 460 S.W.3d 579, 587 (Tex.2015). Initially the burden is on the movant to show “by a
preponderance of the evidence” is based on, relates to, or is in response to the movant’s exercise
of the right to free speech and/or right to petition. Id. Once the movant meets this burden, the
burden shifts to the counter-plaintiff to establish by clear and specific evidence a prima facie case
for each essential element of the claim in question. Id.
25. If Plaintiffs’ lawyers prove, by reference to the New Counterclaims, that “it is clear from
the [pleadings] pleadings that the action is covered by the [TCPA], the [TCPA movant] need show
no more." Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017); Push Start Indus., LLC v. Hous. Gulf
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 11
Energy Corp., 2020 Tex. App. LEXIS 9337, at *11-12 (Tex. App.—Beaumont 2020, no pet.)
(memo op.).
B. THE RIGHT TO PETITION IS PROTECTED UNDER THE TCPA
26. The exercise of the right to petition is defined as “a communication in or pertaining to…a
judicial proceeding.” TEX. CIV. PRAC. & REM. CODE §27.001(4)(A)(i); Brown Sims, P.C. v. L.W.
Matteson, Inc., 2019 Tex.App. LEXIS 8746 at *7 (Tex.App.—San Antonio 2019, no pet.) (memo
op.). Thus, for the TCPA to apply to this case, the claim brought by the Guardinos need only relate
to Plaintiffs’ exercise of the right to petition as the lawyers represent the Plaintiffs. Id.
27. The TCPA applies to a legal action against a party that is based on, related to, or in response
to the party’s making or submitting of a statement or document in or pertaining to a judicial
proceeding. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018).
28. The Beaumont Court of Appeals has previously held that the TCPA applies to statements
made in or that are related to judicial proceedings. Johnson-Todd v. Morgan, 480 S.W.3d 605,
609 (Tex. App.—Beaumont 2015, pet. denied). In Johnson-Todd the movant proved application
of the TCPA through the opposing petition because suit was filed over statements made in or
related to a judicial proceeding. Id. at 607, 609. Thus, the burden shifted to the non-movant who
was then required to establish, by clear and specific evidence, a ‘prima facie case for each essential
element’ of his various claims.” Id. at 609-10. Then, as should be the case here, the Johnson-
Todd court ruled the TCPA barred the claims because they were based upon statements made in
or related to a judicial proceeding. Id. at 610.
29. Interestingly, in Johnson-Todd, the TCPA applied to protect the right to petition of a lawyer
representing a client. Id. at 611. The opposing lawyer was sued for statements made in court and
the Beaumont Court of Appeals rejected the notion that the TCPA applies to parties only and not
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 12
their counsel. Id. Beaumont observed that the TCPA “…was certainly intended to protect those
persons employed in an agency relationship with parties involved in litigation from becoming the
objects of retaliation for providing the courts with information relevant to a pending suit.” Id.
C. The Guardinos’ Claims are Barred by Absolute Privilege
30. As indicated in Johnson-Todd, an absolute privilege applies to statements made in a
judicial proceeding. Id. at 610-611; accord Collins v. Zolnier, 2019 Tex. App. LEXIS 4429, at *5
(Tex. App.—Beaumont May 30, 2019, pet. denied) (memo op.) (citing authorities). 9 The absolute
privilege applies even if the allegedly false information is not relevant. Id.at *6-7. Further:
The immunity is absolute even if the statement is false and uttered or published
with express malice. Reagan, 166 S.W.2d at 912; Hill, 877 S.W.2d at 782. The
privilege extends to statements made by the judge, jurors, counsel, parties, or
witnesses and attaches to all aspects of the proceedings. James v. Brown, M.D.,
637 S.W.2d 914, 916 (Tex. 1982); Hill, 877 S.W.2d at 782. The privilege also
applies to out-of-court communications if the communication bears some
relationship to the proceeding and is in furtherance of the attorney's
representation. Hill, 877 S.W.2d at 782 (citing Russell v. Clark, 620 S.W.2d
865, 870 (Tex. Civ. App.-Dallas 1981, writ ref'd n.r.e.)).
Dall. Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 238 (Tex. App.—Dallas 2000, pet.
denied).
31. The privilege bars all related tort claims – not just defamation. Johnson-Todd, 480 S.W.3d
at 610 (collecting authorities).
32. When the absolute privilege is applied to lawyers for parties, it also called attorney
immunity. Since the Guardinos attempt to hold the Plaintiffs’ lawyers liable for the work done in
court and on this case, the Guardinos must also deal with attorney immunity which shields lawyers’
conduct in or related to litigation. Cantey v. Hanger, 467 S.W.3d 477, 481 (Tex. 2015). The
attorney privilege applies to bar even fraud claims and many claims for criminal conduct. Bethel
v. Quilling, 595 S.W.3d 651, 658 (Tex. 2020) (privilege applied to lawyer sued by non-client for
9
Certiorari was also denied, 141 S. Ct. 90, 207 L. Ed.2d 172, 2020 U.S. Lexis 3126.
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 13
allegedly destroying property related to litigation – claim dismissed under TEX. R. CIV. P. 91a).
Specifically, as to the defamation type claims brought by the Guardinos:
As a result of attorney immunity, a claim for defamation cannot be based on
an attorney's statement that is related to a proceeding for which the attorney is
employed and that is within the scope of that representation.
Landry's, Inc. & Hous. Aquarium, Inc. v. Animal Legal Def. Fund, 566 S.W.3d 41, 58 (Tex. App.—
Houston [14th Dist.] 2018, pet. denied).
33. Since the Guardinos complain about statements in court, actions in court, and pleadings,
the absolute privilege and attorney immunity bars the defamation, disparagement, negligence,
gross negligence, and the “participatory” and “vicarious” liability claims.
34. Also, the tortious interference claims fail, as they arise out the lawyers’ pleadings work
that obtained the summary judgment in August 2020 which decided that the Guardinos were not
trustees. While the Guardinos lost at summary judgment and thus have no contractual relationship
with the Trust, they cannot seek to hold Plaintiffs’ lawyers liable for seeking and obtaining that
relief.
D. THE GUARDINOS’ CLAIMS ARE UNDOUBTEDLY BASED ON PLAINTIFFS’ AND THEIR
LAWYERS’ RIGHT OF FREE SPEECH AND RIGHT TO PETITION
35. The Guardinos’ counterclaim is a judicial admission that their suit is within the scope of
the TCPA. While Plaintiffs initially sued to declare that the Guardinos were not trustees and
should return trust property, the Guardinos have counter-sued for statements that Plaintiffs’
lawyers made in pleadings and open Court representing the Plaintiffs and actions taken by
Plaintiffs’ counsel in court representing the Plaintiffs – falling squarely within the TCPA. The
following chart tracks the allegations, the TCPA trigger for protection and the applicable defense
which bars the claims:
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 14
Claim TCPA Coverage Affirmative
Defense
Plaintiffs (through the lawyers) § 27.001(1) communication is a Privilege for
filed their 3rd Amended Petition statement in any form or medium statements made
containing false statements about § 27.001(4)(A)(i), (E) right to in judicial
the Guardinos, intending to injure petition includes “communication” proceeding,
the Guardinos (p. 9 §19; p. 11 §23) pertaining to or in a judicial attorney
proceeding privilege, and
truth
Claim Flitsch has no authority to § 27.001(1) communication is a Privilege for
file a petition (p.9 §20) statement in any form or medium statements made
§ 27.001(4)(A)(i), (E) right to in judicial
petition includes “communication” proceeding,
pertaining to or in a judicial attorney
proceeding privilege, and
truth
The pleading contained false § 27.001(1) communication is a Privilege for
statements that are not relevant to statement in any form or medium statements made
the lawsuit (p. 10 §21; p. 11 §23; p. § 27.001(4)(A)(i), (E) right to in judicial
12 §24) petition includes “communication” proceeding,
pertaining to or in a judicial attorney
proceeding privilege, and
truth
The Guardinos were damaged § 27.001(1) communication is a Privilege for
because the pleading was filed with statement in any form or medium statements made
false statements (p. 10 §22) § 27.001(4)(A)(i), (E) right to in judicial
petition includes “communication” proceeding,
pertaining to or in a judicial attorney
proceeding privilege, and
truth
The Guardinos demand a retraction § 27.001(1) communication is a Privilege for
of false statements (p. 11 §23) statement in any form or medium statements made
§ 27.001(4)(A)(i), (E) right to in judicial
petition includes “communication” proceeding,
pertaining to or in a judicial attorney
proceeding privilege, and
truth
Plaintiffs’ lawyers were negligent § 27.001(1) communication is a Privilege for
and grossly negligent in making statement in any form or medium statements made
statements in the Plaintiffs’ petition § 27.001(4)(A)(i), (E) right to in judicial
(pp. 16-19, §§30-31) petition includes “communication” proceeding,
pertaining to or in a judicial attorney
proceeding privilege, and
truth
PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS
PAGE 15
The Guardinos seek exemplary § 27.001(1) communication is a Privilege for
damages because pleadings and statement in any form or medium statements made
court activity hurt their reputation § 27.001(4)(A)(i), (E) right to in judicial
(pp. 22-24) petition includes “communication” proceeding,
pertaining to or in a judicial attorney
proceeding privilege, and
truth
The Guardinos assert a claim § 27.001(1) communication
Preview
Received and E-Filed for Record 4/16/2021 3:47 PM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Charlotte Forbes CAUSE NO. 19-06-07875 IN RE THE CAROLYN S. CLARK § IN THE DISTRICT COURT OF § IRREVOCABLE LIVING TRUST § MONTGOMERY COUNTY, TEXAS § U/T/A JULY 28, 2017 § 457th JUDICIAL DISTRICT PLAINTIFFS’ LAWYERS’ MOTION TO DISMISS THE NEWLY PLED COUNTERCLAIMS WITH PREJUDICE UNDER THE TEXAS CITIZENS’ PARTICIPATION ACT COMES NOW Plaintiffs’ counsel Steven Earl, James Graham and Stilwell, Earl & Apostolakis, LLP (the “lawyers” or “counsel”), filing this Motion to Dismiss the Newly Pled Counterclaims with Prejudice Under the Texas Citizens’ Participation Act seeking relief against Defendant Kristin Wilkinson n/k/a Kristin Wilkinson Guardino (“Wilkinson”) and Leonard Guardino (collectively, “Guardinos”) and, in support thereof, would show the Court as follows: I. SUMMARY 1. The Guardinos filed a slew of counterclaims on March 24, 2021, including the following (all of which are denied) 1: Cause of Action Defendants Claims Defamation James Flitsch Wilkinson was defamed in court; Carolyn Clark James Flitsch cannot act for the Trust; Steven Earl The Guardinos are private citizens; James Graham The Guardinos were injured; and, Stilwell, Earl & Apostolakis, LLP Injury was foreseeable Request for James Flitsch Both Guardinos make this claim; Retraction Carolyn Clark Statements Plaintiffs made in the Steven Earl petition were out of context; and, James Graham The statements are not relevant. Stilwell, Earl & Apostolakis, LLP Fraud by Non- Carolyn Clark About 2 years after the Trust was Disclosure signed, Carolyn Clark had a legal duty to disclose to the Guardinos Carolyn’s desires for trustees 1 Ex. A at 11-32 (2nd Amd. Answer/Counterclaim). PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 1 Negligence and James Flitsch The statements in court and the Gross Carolyn Clark actions taken in court were the named Negligence Steven Earl persons acting negligently to engage James Graham in fraud, intentional infliction of Stilwell, Earl & Apostolakis, LLP emotional distress, and interfering with the Guardinos legal relationship with the Trust; the lawyers’ actions in the suit helped Carolyn Clark and James Flitsch disparage the Guardinos and take away the Guardinos legal rights Tortious James Flitsch The actions taken in court by these interference Carolyn Clark persons interfered with the legal and Steven Earl contractual relationships between the James Graham Trust and the Guardinos, who had Stilwell, Earl & Apostolakis, LLP valid contracts with the Trust Exemplary James Flitsch The actions taken by these people in damages Carolyn Clark court was enough for the Guardinos to Steven Earl recover exemplary damages James Graham Stilwell, Earl & Apostolakis, LLP Participatory and James Flitsch The lawyers’ assistance with the legal Vicarious Carolyn Clark proceeding renders both the lawyers Liability Steven Earl and the clients liable. James Graham Stilwell, Earl & Apostolakis, LLP 2. The Guardinos filed their meritless New Counterclaims for the sole purpose of intimidating the Plaintiffs (and their counsel) from exercising their constitutional right to petition and right to exercise free speech. Texas has deemed such lawsuits – filed for no purpose but to stall the exercise of a constitutional right – as Strategic Lawsuits Against Public Participation. To combat the arbitrary filing of suits to quiet the expression of one’s constitutional rights, Texas has codified the Texas Citizens Participation Act (“TCPA”). TEX. CIV. PRAC. & REM. CODE §27.001. 3. The TCPA requires immediate, mandatory dismissal of lawsuits that attempt to silence the constitutional rights of others, save – of course, when a claimant can provide clear and specific evidence to support every element of each and every claim provided that such claims are not PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 2 subject to a dispositive affirmative defense. The Guardinos are currently counter-suing Plaintiffs and their counsel for defamation and defamation related claims. The Guardinos’ claims – being unfounded and subject to well established defenses – will not pass the TCPA test and must be dismissed with prejudice. Further, as allowed under the TCPA, Plaintiffs’ lawyers seek reimbursement of all costs and attorney’s fees in defending against this lawsuit and sanctions to prevent future misconduct. II. BACKGROUND FACTS 4. The tragedy began in 2017 when Clark hired Wilkinson to draft a revocable trust. Clark is a widow and was at the time. The Trust drafted by Wilkinson had material scrivener’s errors in it 2 and necessitated this action to correct errors in the Trust. The reformation action remains open and the Guardinos are not part of the reformation action as they are strangers to the Trust – being neither trustees nor beneficiaries. 5. The Trust Wilkinson drafted appointed Carolyn’s son, Kevin Clark, and her grandson, James Flitsch, as co-trustees. Kevin Clark later resigned and a controversy arose about whether Wilkinson and her new husband, Leonard Guardino, took over as co-trustees of the Trust. This part of the controversy was resolved by this Court in August 2020, when it granted Plaintiffs’ summary judgment. (Ex. B). However, a claim remains for recovery of some or all of the $91,015.99 in trust property which Wilkinson obtained while holding herself out as trustee. 6. In pursuit of their claims, Plaintiffs filed their Third Amended Petition on September 28, 2020. The petition set out Plaintiffs’ causes of action against the Guardinos, and certain facts related to the claims. The initial response from the Guardinos was to file a frivolous removal 2 Pl. 3rd Am. Pet., p. 4 n. 1. PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 3 action on October 20, 2020, to try and move this case to federal court. 3 This effort failed and the case was remanded. 4 Notably, on the federal civil cover sheet for notice of removal, in handwriting, the Guardinos state that part of the relief they wanted in federal court was “the disbarment of ℿ atty Steven Earl.” (Ex. C). This was clearly evidencing the Guardinos plans to retaliate against Plaintiffs and their counsel for the exercise of the right to petition, Wilkinson signed the civil cover sheet. (Ex. C). 7. The Guardinos filed a new set of counterclaims (“New Counterclaims”) on March 24, 2021. In the New Counterclaims, the Guardinos complain, through various causes of action, that (i) certain statements made in the Third Amended Petition defamed them and harmed them and their businesses 5, (ii) the Plaintiff’s’ court action to declare that the Guardinos were not trustees tortiously interfered with the Guardinos contractual relationship with the Trust to serve as trustees, (iii) the Plaintiffs’ lawyer/law firm negligently participated in (i)-(ii) with the Plaintiffs by providing legal help to Plaintiffs in this suit, and, (iv) Carolyn Clark did not object enough to the 3 For example, black letter law required the Guardinos to obtain the consent of other defendants to remove the case. (Ex. D, p. 1-2). They never did this. Id. At the oral hearing on the Plaintiffs’ Motion to Remand, Federal District Judge Keith P. Ellison (appointed by President Clinton in 1999) pointed this out. Instead of acknowledging black letter law required the missing consents from other Defendants, Wilkinson-Guardino argued with a 20+ year federal trial judge over basic jurisdictional rules. 4 Plaintiffs did not move for the sanctions of attorney’s fees in federal court only because doing so would have given the Guardinos the right to appeal the decision on fees – delaying remand. 5 Several cites to the Guardinos New Counterclaims show the Plaintiffs’ lawyers more than meet their preponderance of the evidence burden to show the TCPA applies: (i) “James Flitsch and his agents held themselves out as representing the Trust in pleadings in this case as if properly engaging in business activity for the Trust….” (p. 8); (ii) Plaintiffs and their counsel “…filed a Third Amended Original Petition wherein they, knowingly and intentionally, with actual malice and/or with gross negligence agreed, or understood among themselves, or agreed after the fact to injure the Guardinos by defaming them by inserting into their third amended petition defamatory statements about Kristin Wilkinson Guardino.” (p. 9); (iii) “The defendants’ and counter- defendants’ named herein statements were false….” (p. 10);(iv) the demand for retraction (pp. 11- 12) only identifies statements made in the Third Amended Petition; and, (v) offering bogus arguments and evidence to a court (pp. 18-19). PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 4 Guardinos serving as trustees such that the Guardinos relied on her silence to serve as trustees or take action as trustees. 8. In the New Counterclaims, the Guardinos make several requests that Plaintiffs retract allegations made in the Third Amended Petition, including: (1) that “Wilkinson was involuntarily removed as Trustee for failing to post bond as ordered by the court;” (2) that “Wilkinson was actively suspended from the practice of law on three separate occasions: (1st) Six (6) month suspension from August 1, 2009 to February 28, 2010; District 4E Grievance Committee Evidentiary Panel 4E09, Cause No. H0090520881 (Exhibit 2) arising from the Harris County, Texas felony criminal charges in Cause No. 1074730 referenced in footnote 4 next);” and (3) “but in the court’s final disposition, the court authorized the state to prosecute the case as a misdemeanor under Texas Penal Code § 12.44(b) and deferred further proceedings without entering a finding of guilt. Wilkinson was placed on community supervision with deferred adjudication; she successfully completed the community supervision. Although the case was ultimately dismissed, Wilkinson served community supervision and the felony criminal charge remains in the record Exhibit 5.” Guardinos’ 2nd Amd Answer, at 11-12. 9. Plaintiffs attached exhibits to the Third Amended Petition which showed that none of those statements were false. In fact, the exhibits conclusively prove up the allegations. 10. Wilkinson was "involuntarily removed." This was conclusively shown in Exhibit 1 to the Third Amended Petition which is a copy of the actual court order removing Wilkinson. Moreover, it was recited by the Beaumont Court of Appeals as a fact in Wilkinson v. Comm'n for Lawyer Discipline, 2019 Tex. App. LEXIS 6390, at *22-23 (Tex. App.—Beaumont July 25, 2019, pet. denied) (memo op.) (“After McCulloch discovered that Wilkinson was managing J.G.'s assets of approximately $800,000, the probate court ordered Wilkinson to post a $350,000 bond. After Wilkinson did not post the bond and filed a notice of nonsuit of the guardianship proceeding, on March 26, 2015, the probate court removed Wilkinson as trustee and appointed Kyle Frazier as successor interim trustee.”). PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 5 11. Wilkinson was "suspended on 3 occasions." This was conclusively shown in Exhibits 2-4 of the Third Amended Petition. a. 1st Suspension – 9/22/2009 - Page 1 of Exhibit 2 includes a copy of the “Judgment Affirming Judgment of Active Suspension” which refers to an active suspension signed July 22, 2009. Page 2 of Exhibit 2 contains records from the Chief Disciplinary Counsel for the State Bar of Texas identifying the findings supporting the active suspension. Page 3 of Exhibit 2 is a copy of the Judgment of Active Suspension including findings. b. 2nd Suspension - 1/21/2011 – Pages 1-2 of Exhibit 3 contains a copy of the “Judgment Overruling Plea to the Jurisdiction and Affirming Judgment of Partially Probated Suspension.” Pages 3-10 of Exhibit 3 contain a copy of the “Judgment of Partially Probated Suspension”. The Judgment “DECREED that [Wilkinson] be suspended from the practice of law for a period of forty-eight (48) months….” (Ex. 3 p. 5). c. 3rd Suspension - 1/21/2011 – Pages 1-5 of Exhibit 4 contains a copy of the “Judgment Overruling Plea to the Jurisdiction and Revoking Probation.” On page 4, the order “DECREED that [Wilkinson] be, and hereby is, actively SUSPENDED from the practice of law in the State of Texas for a period of twenty-four months effectively immediately…..” d. Eventual disbarment – Exhibit 6 is the jury’s answer to the charge in Wilkinson’s disbarment trial. In answer to Question No. 1, the jury found that Wilkinson engaged “in conduct involving dishonesty, fraud, deceit or misrepresentation.” In answer to Question No. 2, the jury found that Wilkinson committed a “Criminal act that PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 6 reflects on her honesty, trustworthiness or fitness as a lawyer in other respects.” The verdict was unanimous. Wilkinson was disbarred within weeks upon entry of judgment and the judgment was affirmed in Wilkinson v. Comm'n for Lawyer Discipline, 2019 Tex. App. LEXIS 6390, at *1 (Tex. App.—Beaumont July 25, 2019, pet. denied) (cert. denied 141 S. Ct. 90, 207 L. Ed.2d 172, 2020 U.S. Lexis 3126) (memo op.). 12. Wilkinson was in fact charged with a felony that was reduced to a misdemeanor. Page 1 of Exhibit 5 is a copy of the felony indictment. Page 3 recites that the criminal court allowed the charges to be prosecuted as a misdemeanor and deferred adjudication was given. 13. But, aside from truth, there are far more problems with the New Counterclaims. Initially, Wilkinson was suspended several times and eventually disbarred and there are quite a few public documents which report these official government actions. Now that she is banned from practicing law or holding herself out as an attorney, how on earth could debates over the number, variety or specific contentions about why or how often she was suspended or disbarred reduce or diminish her reputation to practice law? Whatever debates Wilkinson wants to engage in about, she was suspended and eventually disbarred because of bad conduct. She has no business that gives legal advice. 14. Perhaps what Wilkinson is saying is, unless Plaintiffs (through the lawyers) bring to light her history by way of this lawsuit, that Wilkinson can explain away the numerous legal actions that haunted and then ended her legal practice so that someone who might otherwise be convinced to do business with her as a professional (non-lawyer) could understand that Wilkinson never deserved any of it. PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 7 Maybe Wilkinson still wants to practice law and keep it secret. 6 If either is her goal, she thinks that Plaintiffs’ (through the lawyers) exercise of the right to petition is standing in her way such that it warrants bringing the New Counterclaims. 15. Or perhaps – and most likely- Wilkinson is continuing a longstanding practice that she has of suing opponents and lawyers for opposing her in court. She already countersued Carolyn Clark in cause number 19-07-10233 (now pending in this Court) for making statements in or about the malpractice suit, and, those claims were dismissed under the TCPA. (Ex. E – TCPA Motion in that case; Ex. F- TCPA order in that case). 16. But Plaintiffs and their counsel are not Wilkinson’s first victims. See.e.g. Wilkinson v. USAA Fed. Sav. Bank Tr. Servs., 2014 Tex. App. LEXIS 7091 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (memo op.). In that case, Wilkinson sued USAA for defamatory remarks made in open court. Id. at 22-24. Not only did she sue USAA – but she also sued USAA’s counsel and a court receiver for claims for “vicarious liability, breach of fiduciary duty, fraud, defamation, breach of contract, and violations of the DTPA.” Id. at *1. Wilkinson argued that statements made in court did not provide an absolute privilege or judicial proceeding privilege. Id. at 18. The Appeals Court identified that “…Wilkinson predicated her defamation claims on allegedly ‘defamatory remarks’ that the appellees made ‘in open court’ and to ‘the judge’ about her and about ‘all kinds of problems’ with her contracts.” Id. at *21. The court observed that all of Wilkinson’s 6 There is evidence that Wilkinson is still holding herself out as a lawyer in public records and maintaining a PLLC that she should have dissolved. (See Ex. G – Texas Secretary of State filings). Also, in her disbarment case, there was evidence that Wilkinson charged $350 per hour for her time as a paralegal when she was on suspension. Wilkinson v. Comm'n for Lawyer Discipline, 2019 Tex. App. LEXIS 6390, at *38-39. PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 8 “…summary judgment evidence that involved some kind of communication or representation made by either USAA or WKHB—including hearing transcripts, letters, faxes, emails, motions, and court-ordered status reports—related to and was generated in or as part of the post-judgment turnover and collection proceeding in the underlying case. See Lane, 821 S.W.2d at 625. Because the essence of each of Wilkinson's claims for defamation, fraud, and breach of fiduciary duty is that she suffered injury as a result of USAA's and WKHB's communication of allegedly false statements during a judicial proceeding, we conclude that the absolute privilege bars all of her tort claims. Id. at *25. According to the decision – “Indeed, Wilkinson does not respond to any of USAA's and WKHB's cited authority on the judicial proceedings privilege.” Id. at *17 n.9. The Houston Court of Appeals then affirmed that part of the summary judgment against Wilkinson’s claims.7 Id. 17. Thus, Wilkinson has actual prior experience in at least two prior cases with the privileges that apply to statements made in or that are related to legal proceedings and prior knowledge that the privileges bar claims of the same type she brings in the New Counterclaims. 18. She has more experience in meritless claims than that. In Wilkinson v. Susman, 2020 Tex. App. LEXIS 8953 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (memo op.), Wilkinson lost on summary judgment for her claims against an estate. In that claim, she said the dependent administrator she sued had no standing to defend against Wilkinson’s claim against the estate. Id. at 9-11. This was rejected. Id. The estate was adverse to a client of Wilkinson’s and Wilkinson’s client was owed money (a contingent fee) after obtaining a default judgment in an accident case. Wilkinson, who claimed a contingent fee in the default judgment in the name of her client, sued the estate to get paid her contingent fee. That meritless claim was rejected. Id. at 17-23 (citing Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 562 (Tex. 2006) and Dow Chem. Co. v. Benton, 163 Tex. 477, 357 S.W.2d 565, 567 (Tex. 1962). 7 The case affirmed all summary judgment grounds against Wilkinson’s claims. Id. at *37, 39. PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 9 19. Many more problems exist – such as: a. Looking at the fact of prior disciplinary history and also the statements made about Wilkinson in Wilkinson v. Comm'n for Lawyer Discipline, how can Wilkinson claim she has a diminished reputation? The disbarment case recounts evidence that proved Wilkinson took a disabled person’s money. b. Inasmuch as Leonard Guardino is not a lawyer, how could the same debates about Wilkinson’s practice of law or criminal history diminish his reputation to practice law? c. As the Guardinos are strangers to the Trust (being neither trustees nor beneficiaries), how could they have a contractual relationship with the Trust such that Plaintiffs interfered with it? d. If the Trust did not require Carolyn Clark to consent to a successor trustee, 8 then how could silence by Carolyn Clark ever be a fraudulent misrepresentation? 20. None of this explains why the Guardinos think that the New Counterclaims are superior to the absolute privilege for making statements in or related to litigation, or the attorney privilege for attorneys to do the same – except that the Guardinos want to punish and silence Plaintiffs, control counsel and/or the selection of counsel for Plaintiffs, and control the forum (or lack if it) for Plaintiffs’ complaints. Instead, it all shows that the Guardinos are doing the very things Texas precludes under the Texas Citizens Participation Act. 21. In addition, Wilkinson has a substantial track record of non-compliance with court or judicial body orders. 8 This is an example of a failure in drafting by Wilkinson. There is no reason why Wilkinson would draft a trust for Carolyn with other people as trustees and give Carolyn no say whatsoever in the identity of those trustees. PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 10 III. ARGUMENT AND AUTHORITIES A. STANDARD OF REVIEW 22. The TCPA encourages and safeguards the constitutional rights of persons to speak and petition freely and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002. If a legal action is based on or is in response to a party’s exercise of the right to petition and right to exercise her free speech, the party sued may file a motion to dismiss the legal action. TEX. CIV. PRAC. & REM. CODE §27.003. On filing on a TCPA motion to dismiss, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss. Id. 23. In determining whether a legal action should be dismissed, the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which liability or defense is based. TEX. CIV. PRAC. & REM. CODE §27.006. There is no restriction on proving up fees or sanctions at a hearing. 24. Deciding whether or not to grant a TCPA motion to dismiss is a two-step process. In re Lipsky, 460 S.W.3d 579, 587 (Tex.2015). Initially the burden is on the movant to show “by a preponderance of the evidence” is based on, relates to, or is in response to the movant’s exercise of the right to free speech and/or right to petition. Id. Once the movant meets this burden, the burden shifts to the counter-plaintiff to establish by clear and specific evidence a prima facie case for each essential element of the claim in question. Id. 25. If Plaintiffs’ lawyers prove, by reference to the New Counterclaims, that “it is clear from the [pleadings] pleadings that the action is covered by the [TCPA], the [TCPA movant] need show no more." Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017); Push Start Indus., LLC v. Hous. Gulf PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 11 Energy Corp., 2020 Tex. App. LEXIS 9337, at *11-12 (Tex. App.—Beaumont 2020, no pet.) (memo op.). B. THE RIGHT TO PETITION IS PROTECTED UNDER THE TCPA 26. The exercise of the right to petition is defined as “a communication in or pertaining to…a judicial proceeding.” TEX. CIV. PRAC. & REM. CODE §27.001(4)(A)(i); Brown Sims, P.C. v. L.W. Matteson, Inc., 2019 Tex.App. LEXIS 8746 at *7 (Tex.App.—San Antonio 2019, no pet.) (memo op.). Thus, for the TCPA to apply to this case, the claim brought by the Guardinos need only relate to Plaintiffs’ exercise of the right to petition as the lawyers represent the Plaintiffs. Id. 27. The TCPA applies to a legal action against a party that is based on, related to, or in response to the party’s making or submitting of a statement or document in or pertaining to a judicial proceeding. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). 28. The Beaumont Court of Appeals has previously held that the TCPA applies to statements made in or that are related to judicial proceedings. Johnson-Todd v. Morgan, 480 S.W.3d 605, 609 (Tex. App.—Beaumont 2015, pet. denied). In Johnson-Todd the movant proved application of the TCPA through the opposing petition because suit was filed over statements made in or related to a judicial proceeding. Id. at 607, 609. Thus, the burden shifted to the non-movant who was then required to establish, by clear and specific evidence, a ‘prima facie case for each essential element’ of his various claims.” Id. at 609-10. Then, as should be the case here, the Johnson- Todd court ruled the TCPA barred the claims because they were based upon statements made in or related to a judicial proceeding. Id. at 610. 29. Interestingly, in Johnson-Todd, the TCPA applied to protect the right to petition of a lawyer representing a client. Id. at 611. The opposing lawyer was sued for statements made in court and the Beaumont Court of Appeals rejected the notion that the TCPA applies to parties only and not PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 12 their counsel. Id. Beaumont observed that the TCPA “…was certainly intended to protect those persons employed in an agency relationship with parties involved in litigation from becoming the objects of retaliation for providing the courts with information relevant to a pending suit.” Id. C. The Guardinos’ Claims are Barred by Absolute Privilege 30. As indicated in Johnson-Todd, an absolute privilege applies to statements made in a judicial proceeding. Id. at 610-611; accord Collins v. Zolnier, 2019 Tex. App. LEXIS 4429, at *5 (Tex. App.—Beaumont May 30, 2019, pet. denied) (memo op.) (citing authorities). 9 The absolute privilege applies even if the allegedly false information is not relevant. Id.at *6-7. Further: The immunity is absolute even if the statement is false and uttered or published with express malice. Reagan, 166 S.W.2d at 912; Hill, 877 S.W.2d at 782. The privilege extends to statements made by the judge, jurors, counsel, parties, or witnesses and attaches to all aspects of the proceedings. James v. Brown, M.D., 637 S.W.2d 914, 916 (Tex. 1982); Hill, 877 S.W.2d at 782. The privilege also applies to out-of-court communications if the communication bears some relationship to the proceeding and is in furtherance of the attorney's representation. Hill, 877 S.W.2d at 782 (citing Russell v. Clark, 620 S.W.2d 865, 870 (Tex. Civ. App.-Dallas 1981, writ ref'd n.r.e.)). Dall. Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 238 (Tex. App.—Dallas 2000, pet. denied). 31. The privilege bars all related tort claims – not just defamation. Johnson-Todd, 480 S.W.3d at 610 (collecting authorities). 32. When the absolute privilege is applied to lawyers for parties, it also called attorney immunity. Since the Guardinos attempt to hold the Plaintiffs’ lawyers liable for the work done in court and on this case, the Guardinos must also deal with attorney immunity which shields lawyers’ conduct in or related to litigation. Cantey v. Hanger, 467 S.W.3d 477, 481 (Tex. 2015). The attorney privilege applies to bar even fraud claims and many claims for criminal conduct. Bethel v. Quilling, 595 S.W.3d 651, 658 (Tex. 2020) (privilege applied to lawyer sued by non-client for 9 Certiorari was also denied, 141 S. Ct. 90, 207 L. Ed.2d 172, 2020 U.S. Lexis 3126. PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 13 allegedly destroying property related to litigation – claim dismissed under TEX. R. CIV. P. 91a). Specifically, as to the defamation type claims brought by the Guardinos: As a result of attorney immunity, a claim for defamation cannot be based on an attorney's statement that is related to a proceeding for which the attorney is employed and that is within the scope of that representation. Landry's, Inc. & Hous. Aquarium, Inc. v. Animal Legal Def. Fund, 566 S.W.3d 41, 58 (Tex. App.— Houston [14th Dist.] 2018, pet. denied). 33. Since the Guardinos complain about statements in court, actions in court, and pleadings, the absolute privilege and attorney immunity bars the defamation, disparagement, negligence, gross negligence, and the “participatory” and “vicarious” liability claims. 34. Also, the tortious interference claims fail, as they arise out the lawyers’ pleadings work that obtained the summary judgment in August 2020 which decided that the Guardinos were not trustees. While the Guardinos lost at summary judgment and thus have no contractual relationship with the Trust, they cannot seek to hold Plaintiffs’ lawyers liable for seeking and obtaining that relief. D. THE GUARDINOS’ CLAIMS ARE UNDOUBTEDLY BASED ON PLAINTIFFS’ AND THEIR LAWYERS’ RIGHT OF FREE SPEECH AND RIGHT TO PETITION 35. The Guardinos’ counterclaim is a judicial admission that their suit is within the scope of the TCPA. While Plaintiffs initially sued to declare that the Guardinos were not trustees and should return trust property, the Guardinos have counter-sued for statements that Plaintiffs’ lawyers made in pleadings and open Court representing the Plaintiffs and actions taken by Plaintiffs’ counsel in court representing the Plaintiffs – falling squarely within the TCPA. The following chart tracks the allegations, the TCPA trigger for protection and the applicable defense which bars the claims: PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 14 Claim TCPA Coverage Affirmative Defense Plaintiffs (through the lawyers) § 27.001(1) communication is a Privilege for filed their 3rd Amended Petition statement in any form or medium statements made containing false statements about § 27.001(4)(A)(i), (E) right to in judicial the Guardinos, intending to injure petition includes “communication” proceeding, the Guardinos (p. 9 §19; p. 11 §23) pertaining to or in a judicial attorney proceeding privilege, and truth Claim Flitsch has no authority to § 27.001(1) communication is a Privilege for file a petition (p.9 §20) statement in any form or medium statements made § 27.001(4)(A)(i), (E) right to in judicial petition includes “communication” proceeding, pertaining to or in a judicial attorney proceeding privilege, and truth The pleading contained false § 27.001(1) communication is a Privilege for statements that are not relevant to statement in any form or medium statements made the lawsuit (p. 10 §21; p. 11 §23; p. § 27.001(4)(A)(i), (E) right to in judicial 12 §24) petition includes “communication” proceeding, pertaining to or in a judicial attorney proceeding privilege, and truth The Guardinos were damaged § 27.001(1) communication is a Privilege for because the pleading was filed with statement in any form or medium statements made false statements (p. 10 §22) § 27.001(4)(A)(i), (E) right to in judicial petition includes “communication” proceeding, pertaining to or in a judicial attorney proceeding privilege, and truth The Guardinos demand a retraction § 27.001(1) communication is a Privilege for of false statements (p. 11 §23) statement in any form or medium statements made § 27.001(4)(A)(i), (E) right to in judicial petition includes “communication” proceeding, pertaining to or in a judicial attorney proceeding privilege, and truth Plaintiffs’ lawyers were negligent § 27.001(1) communication is a Privilege for and grossly negligent in making statement in any form or medium statements made statements in the Plaintiffs’ petition § 27.001(4)(A)(i), (E) right to in judicial (pp. 16-19, §§30-31) petition includes “communication” proceeding, pertaining to or in a judicial attorney proceeding privilege, and truth PLAINTIFFS’ LAWYERS’ TCPA MOTION TO DISMISS PAGE 15 The Guardinos seek exemplary § 27.001(1) communication is a Privilege for damages because pleadings and statement in any form or medium statements made court activity hurt their reputation § 27.001(4)(A)(i), (E) right to in judicial (pp. 22-24) petition includes “communication” proceeding, pertaining to or in a judicial attorney proceeding privilege, and truth The Guardinos assert a claim § 27.001(1) communication