Hill v. Blue

1

ALBERT G. HILL, III, Appellant v. LISA BLUE, STEPHEN MALOUF, CHARLA ALDOUS, MICHAEL LYNN, JEFF TILLOTSON, Appellees

No. 01-20-00418-CV

Court of Appeals of Texas, First District

August 2, 2022

On Appeal from the 127th District Court Harris County, Texas Trial Court Case No. 2019-38870

Panel consists of Justices Kelly, Hightower, and Countiss.

MEMORANDUM OPINION

Peter Kelly, Justice

Albert G. Hill, III ("Hill III") sued the appellees for malicious prosecution, conspiracy, and aiding and abetting. The appellees filed motions to dismiss under the Texas Citizens Participation Act. The trial court granted the motions and dismissed Hill III's claims. Hill III raises five issues on appeal. The first four issues challenge the trial court's ruling on the TCPA motions, and the fifth issue challenges the trial court's ruling sustaining all objections to his evidence.

We affirm.

Procedural History

This appeal is related to Hill v. Keliher, No 01-20-00419-CV, slip op. (Tex. App.-Houston [1st Dist.] Aug 2, 2022, no pet. h) (mem. op.). Beginning in 2007, Hill III was engaged in extensive, protracted, and acrimonious litigation with his father and other relatives and associates regarding family trusts and assets, which included multiple different cases in multiple venues and jurisdictions,^[1] including a lawsuit in the federal district court for the Northern District of Texas, Civil Action No. 3:07-cv-02020 (the "trust litigation") which resulted in a global settlement agreement. Hill III's father, Albert G. Hill, Jr. ("Hill Jr."),^[2] was represented in the trust litigation by Michael Lynn, whose law partner is Jeff Tillotson. From November 2009 until November 2010, Hill III was represented by Lisa Blue, Charla Aldous, and Stephen Malouf.

Discovery in the trust litigation revealed that, in 2009, Hill III applied for a home equity loan on the house he shared with his wife, which was owned jointly by Hill III and a family trust. On the loan application Hill III represented that he owned 100% interest in the house and that he had an annual salary of $55,000. Hill Jr. suspected that his son had made false representations and failed to disclose relevant facts on the loan application.

In February 2010, the federal district judge presiding over the trust litigation found Hill Jr. had committed perjury with help from attorney Mike Lynn. Hill III contended that his father publicly blamed him for the ruling. Several days later, Lynn submitted a criminal complaint regarding Hill III's potentially criminal activities related to the 2004 home equity loan. In mid-May 2010, Hill III entered into a global settlement agreement regarding the trust litigation in exchange for a nine-figure payment.

In July 2010, a dispute arose between Hill III and his attorneys-Blue, Aldous, and Malouf-regarding attorney's fees. The federal court entered final judgment based on the settlement agreement in November 2010, and the court allowed Blue, Aldous, and Malouf to withdraw from representation of Hill III. In December 2010, Blue, Aldous, and Malouf sued Hill III for approximately $50 million in attorney's fees.

In late March 2011, a grand jury returned four indictments against Hill III. Three indictments charged him with making false statements to obtain property or credit, see Tex. Penal Code § 32.32, and the fourth indictment charged him with securing execution of a document by deception. See id. § 32.46. In November 2012, Hill III moved to quash the indictments, and in March 2013, after an evidentiary hearing, the trial court dismissed all charges against Hill III with prejudice. The judgment became final in 2018, after final disposition of all appeals.^[3]

Background

I. The malicious prosecution lawsuit

In June 2019, Hill III filed suit for malicious prosecution. As relevant to this appeal, Hill III alleged that that Lynn and Tillotson had sought his prosecution in retaliation after the federal court found that Lynn had helped Hill Jr. commit perjury. Hill alleged that in February 2010, Lynn submitted to the district attorney a written report alleging that Hill III had engaged in potentially criminal activity regarding the 2004 home loan. Hill III further alleged that in March 2010, Lynn met with an assistant district attorney to discuss his report. Hill III also alleged that Jeff Tillotson, Lynn's law partner, donated $48,500 to Watkins's political campaign between June 2010 and March 2011.^[4] Hill III asserted that Tillotson's campaign contributions "crossed the line and constituted improper influence."

Hill III also alleged that Blue pressured Watkins to prosecute him in order to gain an advantage in the attorney's fee litigation. Hill III alleged that Blue made political and charitable donations and frequently communicated with Watkins during times that were significant either to Hill's prosecution or to the attorney's fee litigation. Hill III alleged that Blue held political fundraisers at her home to benefit Watkins in November 2009 and March 2011, and that she donated nearly $20,000 to Watkins's political campaign between November 2009 and March 2011. Blue also donated $100,000 to Southern Methodist University's Dedman School of Law in honor of Craig Watkins in 2010.

Hill III alleged that Blue frequently communicated with Watkins between May 2010 and April 2011.^[5] Hill III alleged that his malicious prosecution and conspiracy claims against Blue were based "largely on the evidence that was introduced at the hearing on the Motion to Quash" and findings and conclusions made by the trial court that reviewed the evidence.^[6] Hill III alleged that his malicious prosecution and conspiracy claims against Aldous and Malouf were based on their association with Blue when they jointly represented Hill III in the trust litigation and later sued him for attorney's fees. Hill III referenced communications among Blue, Aldous, and Malouf, and he alleged that Malouf was present during one phone call between Blue and Watkins in which the indictments against him were discussed. Hill also alleged that Malouf had an independent relationship with Watkins, as demonstrated by Watkins selecting Malouf to represent Dallas County in a civil matter in September 2011.^[7]

II. The TCPA motions

Each appellee filed a motion to dismiss under the Texas Citizens Participation Act.^[8]

A. Lynn

Lynn argued that Hill III's claims arose from his rights to petition and to free speech. Lynn asserted that Hill III could not make a prima facie case for malicious prosecution because he lacked clear and specific evidence to establish: (1) procurement, (2) Hill III's innocence, (3) lack of probable cause, and (4) malice. Moreover, Lynn argued that even if Hill III could make a prima facie case, it was barred by the defenses of (a) attorney immunity and (b) release, based on the global settlement agreement in the trust litigation. Lynn maintains that all of Hill III's claims arise out of Lynn's representation of Hill Jr. in litigation or Lynn's actions in representing Hill Jr. in researching, drafting, and presenting a complaint to law enforcement. Lynn asserted that he submitted the report to the district attorney in February 2010 as part of his representation of Hill Jr., and then he withdrew from representation in April 2010. Lynn had no further communication with the district attorney's office after April 2010. The release in the global settlement agreement pertained to claims against all present and former attorneys for Hill Jr. Lynn never donated to Watkins's campaign, and he denied knowledge of Tillotson's contributions.

B. Tillotson

Tillotson argued that the TCPA applied to Hill III's claims because his involvement was limited to making lawful campaign contributions, which constitutes the exercise of his rights to free speech and association. Tillotson argued that Hill III could not make a prima facie case for the first element of malicious prosecution-procurement of the prosecution-because Hill III did not allege that he would not have been indicted but for the campaign contributions. Tillotson also argues that derivative claims cannot survive without proof of an underlying tort, and Texas does not recognize a cause of action for "aiding and abetting" malicious prosecution.

C. Blue

Blue argued that Hill III's claims arose from her exercise of the rights to free speech and of association. She maintained that Hill III's claims are based on her lawful campaign contributions to Watkins and her communications with Watkins and others in his office. She argued that Hill III cannot make a prima facie case for malicious prosecution because there is no clear and specific evidence that she procured his prosecution by providing false information that caused Hill III to be indicted. Like the other appellees, she also argued that derivative claims cannot survive without proof of an underlying tort, and Texas does not recognize a cause of action for "aiding and abetting" malicious prosecution. Blue further argued that, even if Hill III could make a prima facie case, it was barred by collateral estoppel based on the findings of the magistrate judge and federal district court in the attorney's fee suit.

D. Aldous

Aldous argued that Hill III's allegations arose from her exercise of the rights to free speech, to petition, and of association, and therefore the TCPA applies.^[9] She maintained that Hill III could not prove with clear and specific evidence any of the elements of malicious prosecution. Finally, she argued that even if Hill III could make a prima facie case, his claims were barred by res judicata and collateral estoppel based on the findings of the magistrate judge and federal district court in the attorney's fee suit.

E. Malouf

Malouf...