Opinion issued May 30, 2019




                                          In The

                                 Court of Appeals
                                         For The

                            First District of Texas
                               ————————————
                                 NO. 01-18-00160-CV
                              ———————————
       IN RE ESTATE OF MARY OLIVE HULL CALKINS, Deceased


                     On Appeal from the Probate Court No. 2
                             Harris County, Texas
                          Trial Court Case No. 441165


                                     OPINION

      Richard Stephen Calkins and his sister Carolyn, who is not a party in this

appeal, have litigated, for years, the question of who should manage the assets of

their mother Mary Olive Hull Calkins.1 Now that Mary Olive is deceased, her

children are litigating the probate of her estate.


1
      The Calkins family litigation encompasses multiple lawsuits filed in various district
      and probate courts in at least two counties and has resulted in at least a dozen appeals
      Maurice Bresenhan is the estate’s court-appointed administrator. When

Calkins, through his attorney Susan Norman, declined to provide Bresenhan certain

information he asserted was necessary for preparation of Mary Olive’s final

individual and the estate’s income tax returns, Bresenhan moved for an order

compelling both Calkins and Norman to produce the information. The probate court

granted the motion, but, when the production deadline came, Calkins and Norman

did not turn anything over to Bresenhan and instead jointly moved to dismiss

Bresenhan’s “legal action” under the Texas Citizens Participation Act (TCPA or the

“Act”). See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011. Calkins and Norman



      and original proceedings in the First and Fourteenth Courts of Appeals, including
      appeals not only involving the proposed guardianship of Mary Olive and her estate
      but also the administration of a family trust. See, e.g., In re Calkins, No. 01-15-
      01009-CV, 2015 WL 9480099 (Tex. App.—Houston [1st Dist.] Dec. 29, 2015, orig.
      proceeding); James v. Calkins, 446 S.W.3d 135 (Tex. App.—Houston [1st Dist.]
      2014, pet. denied); James v. Underwood, 438 S.W.3d 704 (Tex. App.—Houston
      [1st Dist.] 2014, no pet.); James v. Goehrs, No. 01-12-00445-CV, 2014 WL 810851
      (Tex. App.—Houston [1st Dist.] Feb. 27, 2014, no pet.) (per curiam) (mem. op.); In
      re Estate of Calkins, Nos. 01-11-00731-CV to 01-11-00734-CV, 2013 WL 4507923
      (Tex. App.—Houston [1st Dist.] Aug. 22, 2013, no pet.) (per curiam) (mem. op.);
      James v. Easton, 368 S.W.3d 799 (Tex. App.—Houston [14th Dist.] 2012, pet.
      denied); Calkins v. James, No. 01-12-00036-CV, 2012 WL 344955 (Tex. App.—
      Houston [1st Dist.] Feb. 2, 2012, no pet.) (per curiam) (mem. op.); James v. Easton,
      No. 14-10-00471-CV, 2011 WL 303804 (Tex. App.—Houston [14th Dist.] Jan. 27,
      2011, no pet.) (per curiam) (mem. op.); In re James, No. 01-10-00751-CV, 2011
      WL 148263 (Tex. App.—Houston [1st Dist.] Jan. 13, 2011, orig. proceeding) (per
      curiam) (mem. op.); Calkins v. James, No. 01-10-00574-CV, 2010 WL 5395731
      (Tex. App.—Houston [1st Dist.] Dec. 30, 2010, no pet.) (per curiam) (mem. op.);
      Calkins v. James, No. 01-10-00413-CV, 2010 WL 3928541 (Tex. App.—Houston
      [1st Dist.] Oct. 7, 2010, no pet.) (per curiam) (mem. op.); In re James, No. 01-09-
      00623-CV, 2009 WL 2836514 (Tex. App.—Houston [1st Dist.] Aug. 31, 2009, orig.
      proceeding) (per curiam) (mem. op.).
                                           2
argued that Bresenhan sought the tax information as retribution for their exercise of

protected rights of speech, association, and petitioning in previous litigation about

whether to establish a guardianship for Mary Olive. The probate court denied the

motion to dismiss and did not award Bresenhan, as the respondent, any attorney’s

fees. See id. § 27.009(b). Calkins, Norman, and Bresenhan all appealed.

      In this interlocutory appeal under Section 51.014(a)(12) of the Civil Practice

and Remedies Code,2 Calkins and Norman contend the underlying probate

proceeding must be dismissed, in its entirety, because (1) the probate judge presiding

at the time was constitutionally disqualified and therefore lacked authority to act;

(2) the probate proceeding was filed prematurely before Mary Olive’s death; and

(3) their TCPA motion should have been granted. Bresenhan challenges the probate

court’s failure to award him attorney’s fees.

      Finding no error in the probate court’s ruling, we affirm.

                                      Background

      Because the facts giving rise to the Calkins family dynamics, the pre-death

application for a guardianship of Mary Olive, and, ultimately, this probate




2
      See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12) (“A person may appeal from an
      interlocutory order of a district court, county court at law, statutory probate court,
      or county court that: . . . denies a motion to dismiss filed under [Civil Practice and
      Remedies Code] Section 27.003.”).
                                            3
proceeding have been detailed in earlier appellate opinions,3 only those facts

necessary for resolution of the issues currently before the Court are included here.

      Though Calkins and Carolyn disagree about the specific time of their mother’s

death, there is no dispute that Mary Olive died at some time on July 8, 2015.4 That

day, Carolyn filed an application to probate a will executed by Mary Olive in

November 2002. Calkins answered and filed a will contest, offering a competing,

later-executed will and two codicils.

      The probate court appointed Bresenhan as the administrator of Mary Olive’s

estate and, according to Bresenhan, ordered him to file income tax returns for Mary

Olive individually and the estate. Bresenhan sent two emails and one letter to

Norman, as Calkins’s attorney, between April 2016 and November 2017, asking that

she provide copies of documents to aid his preparation of the tax returns.

      Norman refused to provide the documents, responding that Bresenhan’s

appointment as administrator was void, that he lacked authority to file a tax return

on behalf of either Mary Olive individually or her estate, and that he would violate

federal law by misrepresenting his authority on a tax return. Although not explicit in

her correspondence, Norman’s reference to Bresenhan’s “void” appointment


3
      See note 1 supra.
4
      Calkins, relying on a certificate of death issued by the State of Texas, asserts that
      Mary Olive died at 12:30 p.m. on July 8, 2015. Carolyn asserts that she was with
      Mary Olive when she passed and that the time of death was at or before 11:48 a.m.
                                            4
seemingly concerns Calkins’s contention that the then-sitting judge, the Honorable

Mike Wood, could not preside over any case involving the Calkins family because

he either was disqualified or had recused in a previously filed guardianship case

involving Mary Olive.5

      Bresenhan filed a “Motion for Tax Information” requesting an order

compelling Calkins “and/or his counsel to provide the necessary tax information.”

The appellate record does not indicate whether Calkins or Norman filed a written

response. About one month later, Judge Wood granted the motion and ordered both

Calkins “and his counsel” to provide Bresenhan the following:

      1) any testamentary and trust documents executed by Mary Olive before her
         death;

      2) a list of all stocks and bonds held by Mary Olive at the time of her death;

      3) records of any bank accounts, notes, and cash at the time of Mary Olive’s
         death;

      4) the previous eight years of Mary Olive’s tax returns;

      5) the name and contact number of Mary Olive’s accountant before and at the
         time of her death;

      6) a list of any insurance on Mary Olive’s life;

      7) a list of any real property owned by Mary Olive at the time of her death;
         and


5
      Judge Wood has since retired and is no longer the presiding judge of the Harris
      County Probate Court No. 2. Cf. In re Baylor Med. Ctr. at Garland, 280 S.W.3d
      227, 229 n.6 (Tex. 2008) (taking judicial notice sua sponte that trial judge had been
      replaced by election during pendency of mandamus case).
                                            5
      8) any other “files of matters” necessary to help Bresenhan determine the
         status of the estate’s assets.

      Calkins and Norman did not produce any documents. Instead, on the day the

production was due, they jointly moved to dismiss Bresenhan’s “legal action” under

the TCPA. In their motion to dismiss, Calkins and Norman argued that the

allegations in Bresenhan’s motion for tax information were based on, related to, or

in response to the various pleadings and motions filed by Norman on Calkins’s

behalf in the guardianship case. They asserted that by ordering Norman,

individually, to comply with its production mandate, the probate court interfered

with the attorney-client relationship, denied Norman the exercise of her right to

associate with Calkins as a client, and denied Calkins his right to associate with

Norman as his preferred counsel. They further asserted that the order prohibited

Calkins’s petitioning activity and speech related to his “objections to actions taken

by a disqualified/recused judge.”

      To their motion to dismiss, Calkins and Norman attached: (1) printed docket

sheets from the Harris County Clerk’s website providing the case information and

status for the previous guardianship case and the underlying probate proceeding;

(2) Mary Olive’s death certificate; (3) the Local Rules of the Harris County probate

courts; (4) information related to Judge Wood’s disqualification or recusal in the




                                         6
guardianship case;6 (5) the transcript for the hearing on a motion to transfer the

underlying probate case; and (6) the transcript for the hearing on Bresenhan’s motion

for tax information, along with the motion itself and the probate court’s order. In

addition, Calkins and Norman each submitted an affidavit, wherein they set out the

history of the Calkins family litigation and their respective roles in it.

      Bresenhan responded and argued that Calkins and Norman’s TCPA dismissal

motion, filed more than two years after the probate began, was untimely and, as a

result, frivolous or dilatory so as to trigger an award of attorney’s fees to him under

TCPA Section 27.009(b). See TEX. CIV. PRAC. & REM. CODE § 27.009(b) (“If the

court finds that a motion to dismiss filed under this chapter is frivolous or solely

intended to delay, the court may award court costs and reasonable attorney’s fees to

the responding party.”). Bresenhan requested fees in the amount of $10,880 for

responding to the dismissal motion; $20,000 in the event of an unsuccessful appeal

to an intermediate appellate court; and an additional $10,000 in the event of an

unsuccessful petition for review in the Texas Supreme Court.

      As was observed at the hearing on the TCPA motion, however, Bresenhan

filed his request for attorney’s fees the night before the hearing, prompting this

exchange in which Bresenhan withdrew his fees request:


6
      This information includes a hearing transcript and selected pleadings. Calkins and
      Norman did not include the administrative judge’s written orders on the
      disqualification or recusal motions.
                                            7
     BRESENHAN:                   And we have asked for attorney’s fees on
                                  the Motion to Dismiss. We filed an
                                  affidavit. The motion –

     CALKINS’S COUNSEL: Your Honor, we got that in at 5:12 last
                        night. You see that relative to a motion for
                        sanctions, which is what that contains –

     THE COURT:                   Yeah. I’m not going to grant . . . all those
                                  sanctions. I haven’t had any evidence of it.
                                  They haven’t seen it.

     BRESENHAN:                   There are affidavits attached.

     COURT:                       Well, you filed it last night.

     BRESENHAN:                   Well, that’s true. But there’s no –

     COURT:                       Well, three days’ notice of a hearing.

     BRESENHAN:                   All right. Fine. Then we’ll just limit it to
                                  denying the motion.

     COURT:                       Okay. If you’ll hand me an order that does
                                  that.

      After the hearing, the probate court issued a written order taking judicial

notice of the contents of its file and denying Calkins and Norman’s TCPA motion to

dismiss. The order does not include an express ruling on Bresenhan’s request for

attorney’s fees, and no other order either denies or awards the requested fees.



                                          8
                        Interlocutory Appellate Jurisdiction

      The probate court has not rendered a final judgment in this case. “Unless a

statute authorizes an interlocutory appeal, appellate courts generally only have

jurisdiction over final judgments.”7 CMH Homes v. Perez, 340 S.W.3d 444, 447

(Tex. 2011) (instructing courts to strictly apply interlocutory appeal statutes as “a

narrow exception to the general rule that interlocutory orders are not immediately

appealable”). Calkins, Norman, and Bresenhan all appealed under the statute

authorizing an interlocutory appeal from an order that “denies a motion to dismiss

filed under Section 27.003 [of the TCPA].” TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(12). Section 27.003 provides a mechanism for the dismissal of a “legal

action” that is “based on, relates to, or is in response to a party’s exercise of the right

of free speech, right to petition, or right of association.” Id. § 27.003(a).

      Although this appeal is from the probate court’s order denying Calkins and

Norman’s TCPA dismissal motion, Calkins and Norman’s first two appellate issues

have nothing to do with Bresenhan’s alleged attempt to suppress protected

expression. Instead, Calkins and Norman complain about Judge Wood presiding



7
      We recognize that probate proceedings are an exception to the “one final judgment”
      rule; in such cases, “multiple judgments final for purposes of appeal can be rendered
      on certain discrete issues.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex.
      2001); De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). But that exception is
      not implicated here because the parties have not argued that an interlocutory probate
      order is sufficiently final to qualify for appeal. They rely exclusively on the statute
      authorizing interlocutory appeals. See TEX. CIV. PRAC. & REM. CODE § 51.014(a).
                                             9
over the proceeding and the timing of Carolyn’s application for probate of Mary

Olive’s will. According to Calkins and Norman, these matters affect the probate

court’s subject-matter jurisdiction and, thus, may be raised at any time, including in

this interlocutory appeal of the probate court’s order denying their TCPA motion to

dismiss. As discussed below, we disagree and do not reach either of Calkins and

Norman’s first two issues because they are outside the limited scope of our

interlocutory jurisdiction.

A.    Disqualification

      In their first issue, Calkins and Norman contend that Judge Wood was

constitutionally disqualified from presiding over any matter involving the Calkins

family, including the underlying probate proceeding. Their contention is based on

the regional presiding judge’s decision—more than five years ago—to either recuse

or disqualify Judge Wood from presiding in the prior guardianship case involving

Mary Olive. They argue that the remedy for Judge Wood’s refusal, before his

retirement, to remove himself as a decisionmaker in the probate proceeding is

dismissal of the entire cause.

      Even ignoring that Calkins and Norman offer no legal authority for their

contention that the removal of a judge in one proceeding carries over to subsequent

proceedings, we cannot consider the contention in this interlocutory appeal. The

appealed-from order is the order denying Calkins and Norman’s TCPA motion to


                                         10
dismiss Bresenhan’s tax-information motion. The appealed-from order is not an

order denying a motion to recuse or disqualify Judge Wood. Neither the statute on

which this Court relies for its interlocutory appellate jurisdiction nor any other

statute authorizes an interlocutory appeal from a disqualification or recusal order.

See id. § 51.014(a)(12).

      Calkins and Norman argue that the Court may nevertheless consider the issue

because Judge Wood’s constitutional disqualification is a jurisdictional matter that

can be raised at any time. See Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146,

148 (Tex. 1982) (noting that disregard of “constitutional disqualification is error that

can be raised at any point in the proceeding”); Postal Mut. Indem. Co. v. Ellis, 169

S.W.2d 482, 484 (Tex. 1943) (“It is settled that the disqualification of a judge . . .

affects his very jurisdiction and power to act, and cannot be waived.”). But, in

making this argument, Calkins and Norman ignore (1) the meaningful distinctions

between constitutional disqualification and recusal (which influence whether or not

a jurisdictional issue is presented) and (2) the ambiguities in this record (which

prevent us from determining the nature of the issue presented).

      A judge may be removed from a case because he is constitutionally

disqualified (TEX. CONST. art. V, § 11), is subject to a statutory strike (TEX. GOV’T

CODE § 74.053), or is recused under the rules promulgated by the Texas Supreme

Court (TEX. R. CIV. P. 18a, 18b). “The grounds and procedures for each type of


                                          11
removal are fundamentally different,” as are the appellate remedies. See In re Union

Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998) (orig. proceeding); In re Wilhite,

298 S.W.3d 754, 757 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding).

      No statute or rule expressly contemplates an interlocutory appeal of the

removal of a judge. When a judge continues to sit in violation of a constitutional

proscription, mandamus is available to compel his disqualification. In re Union Pac.

Res. Co., 969 S.W.2d at 428–29. This is so because any orders or judgments rendered

by a constitutionally disqualified judge are void and without effect. Id. at 428. In

contrast, a presiding judge’s erroneous decision not to recuse himself does not void

or nullify his subsequent acts. Id. An order or judgment rendered in such

circumstances may be challenged only on appeal from a final judgment. See TEX. R.

CIV. P. 18a(j)(1)(A) (“An order denying a motion to recuse may be reviewed only

for abuse of discretion on appeal from the final judgment.”).

      Calkins and Norman have not argued that an independent ground for Judge

Wood’s constitutional disqualification exists in the probate proceeding, which might

render Judge Wood’s ability to preside a jurisdictional issue. That is, they have not

argued that Judge Wood (1) served as a lawyer in the matter in controversy or

previously practiced with a lawyer who served during such association as a lawyer

in the matter; (2) individually or as a fiduciary, has an interest in the subject matter

in controversy; or (3) is related by affinity or consanguinity within the third degree


                                          12
to one of the parties. See TEX. CONST. art. V, § 11; TEX. R. CIV. P. 18b(a). Instead,

they argue that his disqualification or recusal in the previous guardianship case

concerning Mary Olive carries over to the probate of her estate after death.

      But the record does not establish Judge Wood’s previous constitutional

disqualification. Our general references to Judge Wood as having been recused or

disqualified in a previous matter, without clarification of the grounds or procedure

applied, are intentional. That is as specific as we can be on this record. Neither the

materials designated for inclusion in the appellate record nor the parties themselves

make clear whether Judge Wood was, in fact, constitutionally disqualified or only

recused in the guardianship proceeding. A decision of this Court, however, suggests

that the administrative judge ruled only to recuse Judge Wood. See James, 438

S.W.3d at 707–08. Given this lack of clarity, the record does not permit us to

consider Calkins and Norman’s first issue as part of this interlocutory appeal.8

B.    Application to probate will

      Relying on the instruction in Section 256.002 of the Estates Code that “[t]he

probate of a will of a living person is void,” TEX. EST. CODE § 256.002, Calkins and

8
      Even if Calkins and Norman are correct that Judge Wood should not have presided
      in the probate proceeding, this is still an interlocutory appeal from the order denying
      their TCPA motion to dismiss. Our remedy would be a judgment declaring the order
      denying the TCPA motion void, not dismissal of the entire probate proceeding. Cf.
      Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d 550, 555 (Tex. 2006) (“It has
      always been the rule in Texas that any orders or judgments rendered by a trial judge
      who is constitutionally disqualified are void and without effect.”) (emphasis added).

                                            13
Norman next urge the Court to dismiss the probate proceeding because Carolyn, who

is not a party in this appeal, allegedly filed her application to probate Mary Olive’s

will when Mary Olive was still alive. We see no application for Section 256.002 in

this limited, interlocutory appeal under the TCPA. The appealed-from order is not

the probate of a will. It does not make any declaration or have any effect on the title

or right to possess any property disposed of by either of Mary Olive’s purported

wills. The order does nothing more than reject Calkins and Norman’s contention that

Bresenhan sought tax information to suppress their protected speech, association, or

petitioning activity.

      Thus, Calkins and Norman’s request for this Court to determine whether

Carolyn prematurely applied to probate is outside the scope of this interlocutory

appeal under the TCPA and, in addition, would impermissibly require this Court to

act as a factfinder on the time of Mary Olive’s death. See Tex. Nat’l Bank v. Karnes,

717 S.W.2d 901, 903 (Tex. 1986) (stating that “a court of appeals cannot make

original findings of fact”); Bellefonte v. Underwriters Ins. Co. v. Brown, 704 S.W.2d

742, 744–45 (Tex. 1986) (stating that “[f]indings of fact are the exclusive province

of the jury and/or trial court” and explaining that court of appeals exceeds its

authority when it acts as factfinder). We will not consider their second issue.




                                          14
                                         TCPA

      In their third issue, Calkins and Norman ask this Court to set aside the probate

court’s order denying their TCPA motion to dismiss and remand with instructions to

dismiss the probate proceeding. Bresenhan raises cross-issues, contending that the

probate court’s order denying the TCPA motion should have included an award of

his attorney’s fees for responding to the motion and this appeal.

      Before we consider whether the probate court’s ruling on the TCPA motion

to dismiss is erroneous, we note that Calkins and Norman have requested relief (i.e.,

the dismissal of the probate proceeding) we cannot grant in this appeal. Any motion

challenging the probate proceeding as a “legal action” subject to dismissal under the

TCPA was due 60 days after Calkins was served with the probate application in July

2015, which, as Bresenhan points out, was more than two years before Calkins and

Norman sought any relief under the TCPA. See TEX. CIV. PRAC. & REM. CODE

§ 27.003(b) (“A motion to dismiss a legal action under this section must be filed not

later than the 60th day after the date of service of the legal action.”); see also Cavin

v. Abbott, 545 S.W.3d 47, 59 (Tex. App.—Austin 2017, no pet.) (“A party seeking

to invoke the Act’s testing and dismissal mechanisms must do so by motion soon

after the ‘legal action’ to be challenged is filed.”).

      To avoid a timeliness challenge, Calkins and Norman assert that Bresenhan’s

motion for tax information itself is the “legal action.” Assuming without deciding


                                            15
that Bresenhan’s tax-information motion is a “legal action” subject to dismissal

under the TCPA,9 the maximum relief we could grant is dismissal of that motion,

not dismissal of the entire probate proceeding. See TEX. CIV. PRAC. & REM. CODE

§ 27.005(b) (stating that “a court shall dismiss a legal action against the moving

party if the moving party shows by a preponderance of the evidence that the legal

action is based on, relates to, or is in response to the party’s exercise of” certain

enumerated rights).

      We cannot grant even this more limited relief, however, because Calkins and

Norman have not established by a preponderance of the evidence that Bresenhan’s

motion for tax information was “based on, relate[d] to, or . . . in response to [their]

exercise of the right of free speech, right to petition, or right of association,” as was

their burden as TCPA movants. Id. §§ 27.001(2)–(4), .003(a), .005(b); see In re




9
      This Court has expressed doubt as to whether the TCPA applies to proceedings other
      than those for adjudication of legal claims on their merits. See Paulsen v. Yarrell,
      537 S.W.3d 224, 233 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (applying
      doctrine of ejusdem generis to interpret TCPA’s definition of “legal action” and
      observing that list within definition “is best characterized by the observation that
      each element of this [enumerated] class is a procedural vehicle for the vindication
      of a legal claim, in a sense that is not true for a motion to dismiss”); Caress v.
      Fortier, No. 01-18-00071-CV, 2019 WL 2041325, at *2 (Tex. App.—Houston [1st
      Dist.] May 9, 2019, no pet. h.) (holding that “the TCPA does not apply to Rule 202
      proceedings”); see also TEX. CIV. PRAC. & REM. CODE § 27.001(6) (defining “legal
      action” as “a lawsuit, cause of action, petition, complaint, cross-claim, or
      counterclaim or any other judicial pleading or filing that requests legal or equitable
      relief”).
                                            16
Lipsky, 460 S.W.3d 579, 586–87 (Tex. 2015) (orig. proceeding). Bresenhan’s

attorney’s fees issue also fails.

A.    Principles of law and standards of review

      The TCPA is “sometimes referred to as an anti-SLAPP law—the acronym

standing for strategic lawsuit against public participation.” KBMT Operating Co. v.

Toledo, 492 S.W.3d 710, 713 n.6 (Tex. 2016). Its stated purpose “is to encourage

and safeguard the constitutional rights of persons to petition, speak freely, associate

freely, and otherwise participate in government to the maximum extent permitted by

law and, at the same time, protect the rights of a person to file meritorious lawsuits

for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002; Schimmel v.

McGregor, 438 S.W.3d 847, 854 (Tex. App.—Houston [1st Dist.] 2014, pet.

denied). To effectuate this purpose, the Act provides a procedure to expedite the

dismissal of legal actions brought to intimidate or silence a party’s exercise of First

Amendment rights. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898

(Tex. 2017); see also TEX. CIV. PRAC. & REM. CODE §§ 27.003, .005.

      First, the party moving to dismiss must show, by a preponderance of the

evidence, that the non-movant’s “legal action” is “based on, relates to, or is in

response to [the movant’s] exercise of the right of free speech, right to petition, or

right of association,” as those rights are statutorily defined. TEX. CIV. PRAC. & REM.

CODE §§ 27.001(2)–(4), .003(a), .005(b); see In re Lipsky, 460 S.W.3d at 586.


                                          17
      If the movant makes this initial showing, then the burden shifts to the

non-movant to establish “‘by clear and specific evidence a prima facie case for each

essential element of the claim in question.’” See Lipsky, 460 S.W.3d at 587 (quoting

TEX. CIV. PRAC. & REM. CODE § 27.005(c)). “The legislature’s use of ‘prima facie

case’ in the second step of the inquiry implies a minimal factual burden: ‘[a] prima

facie case represents the minimum quantity of evidence necessary to support a

rational inference that the allegation of fact is true.’” Schimmel, 438 S.W.3d at 855

(quoting KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 688 (Tex. App.—

Houston [1st Dist.] 2013, pet. denied)).

      The TCPA instructs that “the court shall consider the pleadings and supporting

and opposing affidavits stating the facts on which the liability or defense is based.”

TEX. CIV. PRAC. & REM. CODE § 27.006(a). If it orders dismissal of “a legal action,”

the trial court shall award to the movant reasonable attorney’s fees, costs, and

sanctions. Id. § 27.009(a). Alternatively, if the court finds the motion to dismiss is

frivolous or solely intended to delay, the court may award court costs and reasonable

attorney’s fees to the non-movant. Id. § 27.009(b). We review de novo whether each

party carried its assigned burden. See Better Bus. Bureau of Metro. Hous., Inc., v.

John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.]

2013, pet. denied).




                                           18
      To the extent our analysis requires statutory construction, that is a question of

law we also consider de novo. See Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.

2011); Better Bus. Bureau of Metro Hous., 441 S.W.3d at 353. When construing the

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

Legislature’s intent, which we seek first and foremost in the statute’s text. See First

Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631–32 (Tex. 2008). The plain

meaning of the text is the best expression of legislative intent, unless a different

meaning is supplied by legislative definition or is apparent from the context, or the

plain meaning leads to absurd results. See Tex. Lottery Comm’n v. First State Bank

of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). We must apply the statute as written.

Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015) (per curiam). We

construe the Act liberally “to effectuate its purpose and intent fully.” TEX. CIV. PRAC.

& REM. CODE § 27.011(b); Schimmel, 438 S.W.3d at 854.

B.    Calkins and Norman’s motion to dismiss

      As set out above, the Act imposes the initial burden on Calkins and Norman

to establish by a preponderance of the evidence that Bresenhan’s motion for tax

information was based on, related to, or was in response to their exercise of the right

of free speech (i.e., “a communication made in connection with a matter of public

concern”); right of association (i.e., “a communication between individuals who join

together to collectively express, promote, pursue, or defend common interests”); or


                                          19
right to petition (i.e., “a communication in or pertaining to . . . a judicial proceeding,”

among other things). See TEX. CIV. PRAC. & REM. CODE §§ 27.001(2)–(4);

27.005(b). When the probate court denied the motion to dismiss, it did not expressly

determine whether Calkins and Norman met this burden. We consider that question

de novo. Better Bus. Bureau of Metro. Hous., 441 S.W.3d at 353.

      On appeal, Calkins and Norman argue that Bresenhan’s motion for tax

information “was based on, related to, or was in response to [their] exercise of the

right of association.” But they do not point to any specific evidence supporting their

argument; instead, they reference the 80 pages of the appellate record occupied by

their motion to dismiss and its attachments and assert that, within those pages, is

proof satisfying their initial burden. The referenced pages include arguments that

(1) Bresenhan moved for tax information in retaliation for the “pleadings, motions

and responses to motions” Calkins filed in this and other litigation, which Calkins

and Norman asserted was protected petitioning activity; and (2) the mandate for

Norman, individually, to produce documents interfered with the attorney-client

relationship through which Calkins objected to Judge Wood presiding, which

Calkins and Norman asserted was protected speech.

      Assuming arguendo that Calkins and Norman engaged in conduct that would

fall within the TCPA’s definitions of the “exercise of the right of free speech,”

petition, or association, see TEX. R. APP. P. 38.1(i), we find no evidence that


                                            20
Bresenhan’s motion for tax information is a “legal action” predicated upon that

conduct. See TEX. CIV. PRAC. & REM. CODE § 27.003(a); see also Elite Auto Body

LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 197 (Tex. App.—Austin 2017,

pet. dism’d) (observing that initial burden “can be met if . . . [movant’s] claims are

predicated factually on conduct that falls within” one of TCPA-defined categories

of protected expression). The evidence submitted primarily concerns Judge Wood’s

decision not to recuse himself in the probate proceeding and the long history of

litigation involving Mary Olive’s estate that, according to Calkins and Norman,

compelled Judge Wood to reach a different conclusion. Evidence regarding Judge

Wood’s recusal decision does not establish or support any inference of a connection

between Bresenhan’s motion for tax information and one of the TCPA-defined

categories of protected expression.

      We are mindful that the TCPA does not require Calkins and Norman to

present testimony or documentary evidence to satisfy their evidentiary burden. See

Serafine v. Blunt, 466 S.W.3d 352, 360 (Tex. App.—Austin 2015, no pet.) (deciding

challenged legal action related, in part, to exercise of right to petition based on

consideration of pleadings as evidence). Under Section 27.006, pleadings may be

considered as evidence. TEX. CIV. PRAC. & REM. CODE § 27.006(a). But Bresenhan’s

motion for tax information is devoid of any suggestion that it is based on, related to,

or in response to protected expression as defined by the TCPA. See id. §§ 27.001(2)–


                                          21
(4), .003(a). To the contrary, the motion indicates a different, permissible purpose.

Bresenhan expressly stated that he filed the motion because he was court ordered to

file Mary Olive’s individual and estate tax returns and he needed the documents

identified in his motion to comply with the order.

       On this record, we conclude that Calkins and Norman have not satisfied their

initial burden to show that Bresenhan’s motion for tax information is subject to

dismissal under the TCPA.10 See id. § 27.005(b). Accordingly, we overrule their

third issue.

C.     Bresenhan’s request for attorney’s fees

       Section 27.009(b) of the TCPA permits an award of court costs and reasonable

attorney’s fees to the responding party “[i]f the court finds that a motion to dismiss

filed under [the Act] is frivolous or solely intended to delay.” Id. § 27.009(b). In his

two issues on appeal, Bresenhan challenges the probate court’s failure to award him

attorney’s fees under Section 27.009(b) for responding to Calkins and Norman’s

motion to dismiss and defending the probate court’s order on appeal. We do not




10
       Without citation to any authority, Bresenhan argues that Norman is not a proper
       party on appeal because she is counsel for a party—not a party herself—in the
       proceeding below and, thus, could not join Calkin’s TCPA motion to dismiss.
       Norman responds that she jointly moved with Calkins because both Bresenhan’s
       motion for tax information and the probate court’s order granting the motion
       directed her, individually, to act. We need not reach this issue given our conclusion
       that the probate court did not err in denying the motion.

                                            22
decide whether Bresenhan was entitled to attorney’s fees because he did not preserve

the issue for appeal.

      “To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds for

the desired ruling.” Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 897 (Tex.

App.—Texarkana 2004, pet. denied) (citing TEX. R. APP. P. 33.1(a)(1)). In addition,

“an adverse ruling must be obtained from the trial court, either expressly or

implicitly.” Id. (citing TEX. R. APP. P. 33.1(a)(2)); see also Jackson v. Jackson, No.

01-04-01215-CV, 2006 WL 3095384, at *3 (Tex. App.—Houston [1st Dist.] Nov.

2, 2006, no pet.) (mem. op.) (“A party must obtain a ruling on a motion in order to

preserve error on the issue raised by the motion.”); Kadhum v. Homecomings Fin.

Network, Inc., No. 01-05-00705-CV, 2006 WL 1125240, at *2 n.4 (Tex. App.—

Houston [1st Dist.] Apr. 27, 2006, pet. denied) (mem. op.) (“In order to preserve a

complaint for appellate review, a party must have presented to the trial court a timely

motion, stating the specific grounds for the ruling that it desired the court to make,

and must have obtained a ruling on its motion.”).

      Although Bresenhan requested attorney’s fees under Section 27.009(b) in his

response to Calkins and Norman’s TCPA motion to dismiss, the appellate record

does not include a written or oral ruling on his request. See TEX. R. APP. P.

33.1(a)(2). The probate court’s written order denying the motion to dismiss states:


                                          23
      As requested, the Court takes judicial notice of the contents of the
      Court’s file, and at this time, the motion to dismiss of Richard Calkins,
      and Susan C. Norman, under Chapter 27 of the Texas Civil Practice &
      Remedies Code is DENIED.

It does not include any language refusing to award Bresenhan attorney’s fees. Nor

does it implicitly deny Bresenhan’s fees request, as the denial of a respondent’s

attorney’s fees does not necessarily flow from the denial of a motion to dismiss. See

TEX. CIV. PRAC. & REM. CODE §§ 27.003, .009(b). Quite the opposite, a finding that

a motion to dismiss is not well taken must precede an award of the respondent’s

attorney’s fees under Section 27.009(b). See id. § 27.009(b) (requiring finding that

motion to dismiss “is frivolous or solely intended to delay” before court may award

attorney’s fees to respondent). Likewise, no oral ruling appears in the court

reporter’s transcript. During argument on Bresenhan’s fee request, the probate court

questioned whether Bresenhan had timely filed the request and supporting affidavit

under the local rules. Rather than argue the timeliness of the request or press for the

probate court for a ruling, Bresenhan responded: “All right. Fine. Then we’ll just

limit to denying the motion.” And the probate court signed an order to that effect.

      By failing to obtain a ruling from the probate court, Bresenhan has not

preserved for appellate review any issue regarding his request for attorney’s fees.

See TEX. R. APP. P. 33.1(a)(2); see also Jackson, 2006 WL 3095384, at *3; Kadhum,

2006 WL 1125240, at *2 n.4. Accordingly, we overrule his issues on appeal.



                                          24
                                   Conclusion

      For the foregoing reasons, we affirm the probate court’s order.




                                             Sarah Beth Landau
                                             Justice

Panel consists of Justices Keyes, Higley, and Landau.




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