Opinion
NO. 01-17-00392-CV
07-03-2018
DIOGU KALU DIOGU II, Appellant v. YAOWAPA RATANA APORN, Appellee
On Appeal from the 505th District Court Fort Bend County, Texas
Trial Court Case No. 16-DCV-237547
MEMORANDUM OPINION
This is an appeal of the dismissal of a bill of review. Yauwapa Apron obtained a judgment against Diogu Kiogu Diogu in 2014, which was affirmed on appeal in 2015. The next year, Diogu filed a bill of review, seeking to have that judgment set aside, arguing that the Texas Citizen's Participation Act bars Aporn's already-litigated claims against him and his status as a licensed attorney provides him absolute immunity from suit. Aporn moved to dismiss the bill of review. Her motion was granted, Diogu's bill of review was dismissed, and Diogu now appeals that dismissal.
See Diogu v. Ratan-Aporn, No. 01-14-00694-CV, 2015 WL 3982531, *1 (Tex. App.—Houston [1st Dist.] June 30, 2015, pet. denied) (mem. op.).
See TEX. CIV. PRAC. & REM. CODE § 27.001-.011.
Diogu contends that the trial court erred in dismissing his bill of review because he demonstrated that the prior trial court lacked subject-matter jurisdiction.
We affirm.
Background
Diogu sued two people in 2013: his wife (Thitiphasr Charoentheerasak) and Yauwapa Ratan-Aporn. See Diogu v. Ratan-Aporn, No. 01-14-00694-CV, 2015 WL 3982531, *1 (Tex. App.—Houston [1st Dist.] June 30, 2015, pet. denied) (mem. op.) (Diogu I). He alleged that his marriage was induced by fraud and that Aporn conspired with his wife to defraud him. See id. Diogu nonsuited his wife but continued to pursue his claims against Aporn. See id. Aporn filed counterclaims against Diogu, alleging that he wrongfully filed a lis pendens that burdened her homestead and that he intentionally caused her emotional distress. See id. Diogu then nonsuited his claims against Aporn, but she pursued her counterclaims to trial. See id. Aporn sought a declaration that the lis pendens was improper, actual damages, sanctions, and attorney's fees. See id. Diogu, who is a licensed attorney, represented himself. See id.
Aporn's claims were tried to the bench. The trial court found that Diogu violated Section 12.002 of the Civil Practice and Remedies Code, which prohibits a person from making, presenting, or using a document or other record with knowledge that the document is a fraudulent claim against real property, with intent that the document be given the same legal effect as a court record, and with intent to cause another person to suffer emotional distress. See id. at *7, see also TEX. CIV. PRAC. & REM. CODE § 12.002(a). The trial court assessed actual damages of $10,000 and punitive damages of $25,000 against Diogu, individually, and awarded Aporn attorney's fees. See Diogu I, 2015 WL 3982531, at *2.
Diogu appealed, arguing, among other things, that the trial Court lacked subject-matter jurisdiction because (1) Aporn's claims against him were mooted when Diogu lifted the lis pendens pre-trial, (2) Aporn lacked standing to pursue her claim for damages because she sold the property pre-trial, and (3) case law that pre-dates the enactment of Section 12.002 creates an "absolute privilege" that bars suit against one who files a lis pendens. Id. at *2-7. We rejected each argument and affirmed the judgment. Id. at *8. Diogu sought discretionary review with the Texas Supreme Court, but his petition was denied.
As that case progressed, Diogu filed a parallel suit against Aporn in another district court. Aporn obtained dismissal of the second suit, and Diogu's appeal of that dismissal was, itself, dismissed by the Fourteenth Court of Appeals as untimely. See Diogu v. Raton-Aporn, No. 14-17-00360-CV, 2017 WL 2960185 (Tex. App.—Houston [14th Dist.] July 11, 2017, no pet.) (mem. op.) (Diogu II).
Before Diogu II was dismissed, Diogu filed a bill of review as a direct attack on the judgment in Diogu I. He argued that the Texas Citizen's Participation Act barred Aporn's claims against him and that he had absolute immunity from suit because he is an attorney. He contended that both defenses implicated the prior trial court's subject-matter jurisdiction, leaving its judgment in Diogu I void. Aporn answered and filed a combined plea to the jurisdiction and motion to dismiss the bill of review. The trial court held a hearing on Aporn's motion, granted the motion, and entered an order dismissing Diogu's bill of review.
Diogu appeals.
Bill of Review
Diogu argues that he "is entitled to a Bill of review setting aside the prior judgment by the Trial or an Order declaring that judgment void by this court for lack of subject matter Jurisdiction." We construe his argument to be that the trial court erred by dismissing his bill of review because the trial court that entered the judgment against him in Diogu I lacked subject-matter jurisdiction.
A. Applicable law and standard of review
A bill of review is an independent equitable action brought by a party to a former action seeking to set aside a judgment. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). Ordinarily, a bill-of-review petitioner must plead and prove (1) a meritorious defense to the underlying cause of action, (2) which the petitioner was prevented from making by (a) the fraud, accident, or wrongful act of the opposing party or (b) official mistake, (3) unmixed with any fault or negligence on the petitioner's own part. Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 812 (Tex. 2012). To invoke the equitable powers of the court, the bill-of-review petitioner's pleading must allege these elements factually and with particularity. Baker, 582 S.W.2d at 408.
With regard to the meritorious defense element, the petitioner must allege sworn facts with particularity sufficient to constitute the defense and present prima facie proof to support the contention at a pretrial hearing. Id.; Amanda v. Montgomery, 877 S.W.2d 482, 485-86 (Tex. App.—Houston [1st Dist.] 1994, no writ). A petitioner meets the requirement of presenting prima facie proof of a meritorious defense by establishing that his defense is not barred as a matter of law and that he will be entitled to judgment on retrial if no evidence to the contrary is offered. Baker, 582 S.W.2d at 408-09; Maree v. Zuniga, 502 S.W.3d 359, 365 (Tex. App.—Houston [14th Dist.] 2016, no pet.). This is a question of law for the court. Baker, 582 S.W.2d at 409.
Prima facie proof may include documents, answers to interrogatories, admissions, and affidavits as well as "other evidence that the trial court may receive in its discretion." Id. "This preliminary showing is essential in order to assure the court that valuable judicial resources will not be wasted by conducting a spurious 'full-blown' examination of the merits." Id. at 408.
If the court determines that a prima facie meritorious defense has not been made, the trial court dismisses the case and the bill-of-review proceeding terminates. Id. at 409. An inquiry whether a bill-of-review petitioner has presented prima facie proof of a meritorious defense is a question of law that we review de novo. Bevering v. Bevering ex rel. Bevering, 401 S.W.3d 293, 296-97 (Tex. App.—San Antonio 2013, pet. denied); Mosley v. Dallas Cty. Child Protective Servs. Unit of the Tex. Dep't of Protective and Reg. Servs., 110 S.W.3d 658, 661 (Tex. App.—Dallas 2003, pet. denied).
In addition to the three elements discussed above, a bill-of-review petitioner also must prove that he exercised due diligence in pursuing all adequate legal remedies after the challenged judgment was entered, or show good cause for failing to exhaust those remedies. See Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989); Headifen v. Harker, No. 03-16-00028-CV, 2017 WL 3902623, at *2 (Tex. App.—Austin Aug. 30, 2017, pet. denied) (mem. op.) (stating that "bill-of-review petitioner must have exercised due diligence in pursuing all appropriate legal remedies against the former judgment" and that disregard of available remedies generally will foreclose relief through bill of review). The due-diligence requirement is distinct from the three bill-of-review elements. See Perdue v. Patten Corp., 142 S.W.3d 596, 606 (Tex. App.—Austin 2004, no pet.).
The law places a heavy burden on a bill-of-review petitioner to set aside a judgment because it is fundamentally important that judgments be accorded some finality. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
B. The parties' arguments
Aporn moved to dismiss Diogu's bill of review for failing to meet the elemental requirements. She argued that "there is nothing in his pleadings where he alleges any of the elements that will be necessary to prove to have sustained a bill of review."
In his response to Aporn's motion to dismiss, Diogu argued that his bill-of-review petition, on its face, "affirmatively demonstrates a jurisdictional defect sufficient to void a judgment because it establishes that the trial court lacked subject matter jurisdiction over the suit" because "the counterclaim which the judgment was based is barred by both the Texas Anti SLAAP Statute and Texas Attorney's absolute litigation immunity."
The petition he referred to contained the following assertions:
"The defendant's judgment . . . is void ab initio because the claims arose out of protected activity under the Texas anti-SLAPP or Texas Citizens Participation Act (TACA) statute, in violation and to circumvent attorney immunity and that the court lacked subject jurisdiction over those proceedings."
"Clearly all of Defendant's causes of action arose from the Plaintiff's recording and expunging a Lis Pendens recorded on a property she did own at the time of the judgment and an Original Petition proceedings that filed and later dismissed."
"The recording of the Lis Pendens . . . are all protected activity under Texas Anti-SLAPP and/or Texas Citizens Participation Act (TCPA) as such the Court lacked subject matter jurisdiction ab initio over the allegation and the Lis Pendens. As such the judgment is void ad initio."
"Furthermore, Diogu Kalu Diogu II, a license Texas Attorney filed and prosecuted the lawsuit including the bill of review that resulted in the above civil liability on belief of his client and all the actions taken in connection was in connection with representing a client in litigation."
The trial court held a hearing, at which Diogu argued that a lack of subject-matter jurisdiction can be argued at any time, including through a bill of review, and that the trial court in Diogu I lacked subject-matter jurisdiction for two independent reasons: (1) the TCPA barred Aporn's claim and (2) he held absolute immunity from suit because he is an attorney.
Diogu relied solely on his pleading to meet his initial burden to support his bill of review with prima facie proof. He did not offer any documents or other prima facie proof before or at the hearing. See Baker, 582 S.W.2d at 409 (stating that prima facie proof can include documents, discovery responses, and affidavits, as well as other evidence that trial court receives in its discretion). Nor did he address the due-diligence requirement to obtain bill-of-review equitable relief.
C. Trial court did not err because Diogu failed to present prima facie proof of a meritorious defense
Diogu offered two rationales for the trial court in Diogu I lacking subject-matter jurisdiction: the TCPA and attorney immunity.
1. TCPA
The TCPA is found in Chapter 27 of the Civil Practice and Remedies Code, which is titled, "Actions Involving the Exercise of Certain Constitutional Rights." TEX. CIV. PRAC. & REM. CODE § 27.001-.011. The TCPA's purpose is to protect "citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them." In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015). It does so by creating "procedural mechanisms through which a litigant may require, by motion, a threshold testing of the merits of legal proceedings or filings that are deemed to implicate the expressive interests protected by the statute, with the remedies of expedited dismissal, cost-shifting, and sanctions for any found wanting." Memorial Hermann Health Sys. v. Khalil, No. 01-16-00512-CV, 2017 WL 3389645, at *3 (Tex. App.—Houston [1st Dist.] Aug. 8, 2017, pet. denied) (mem. op.) (quoting Serafine v. Blunt, 466 S.W.3d 352, 369 (Tex. App.—Austin 2015, no pet.) (Pemberton, J., concurring)); see TEX. CIV. PRAC. & REM. CODE § 27.003-.009.
When a movant seeks dismissal under the TCPA, the movant has the initial burden to show "by a preponderance of the evidence" that the nonmovant has asserted a "legal action" that is "based on, relates to, or is in response to" the movant's exercise of one of the rights delineated in the statute. TEX. CIV. PRAC. & REM. CODE § 27.005(b). If the movant meets that burden, additional burden-shifting mechanisms are invoked. See id. § 27.005(c). In ruling on a TCPA motion to dismiss, the trial court considers the pleadings and any supporting and opposing affidavits to evaluate whether each party has met its burden. Id. § 27.006(a); In re Lipsky, 460 S.W.3d at 587.
When a movant establishes that he is entitled to summary-dismissal of a nonmovant's suit under the TCPA, the trial court dismisses the suit and awards requisite fees to the prevailing movant. See id. § 27.005 (providing for dismissal on appropriate proof); § 27.009(a)(1) (mandating award of reasonable attorney's fees and other recoveries to movant who obtains dismissal under Chapter 27).
Whether the TCPA afforded Diogu an avenue for expedited dismissal of Apron's claims does not raise an issue of subject-matter jurisdiction. Compare Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 500 S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (stating that dismissal under TCPA "constitutes a final determination on the merits") and Scarbrough v. Metro. Transit Auth. of Harris Cty., 326 S.W.3d 324, 339 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (stating that dismissal for lack of subject-matter jurisdiction is not adjudication on merits).
Moreover, Diogu failed to present prima facie proof in support of his defense, which under the TCPA, places the burden on him to show "by a preponderance of the evidence" that Aporn has asserted a "legal action" against him that is "based on, relates to, or is in response to" his exercise of one of the rights delineated in the statute. See TEX. CIV. PRAC. & REM. CODE § 27.005(b). An unsupported allegation invoking the TCPA merits does not support Diogu's assertion in his bill of review that the trial court lacked subject-matter jurisdiction to enter the judgment against him.
2. Attorney immunity
An attorney has qualified immunity from civil liability, with respect to non-clients, for actions taken in connection with representing a client in litigation. Dixon Fin. Servs., Ltd. v. Chang, 325 S.W.3d 668, 673 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Attorney immunity is an affirmative defense. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015).
"An attorney who pleads the affirmative defense of attorney immunity has the burden to prove that his alleged wrongful conduct, regardless of whether it is labeled fraudulent, is part of the discharge of his duties to his client." Id. at 484. An attorney is not protected from liability to non-clients for actions when those actions do not qualify as the type of conduct an attorney engages in while discharging his duties to a client. Id. For example, an attorney has no immunity from a claim that the attorney knowingly assisted a client in evading a judgment through a fraudulent transfer. Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 382 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). Likewise, a person who acts in his personal capacity and is not discharging duties to a client does not have attorney-immunity protection for those personal acts. See Cantey Hanger, 467 S.W.3d at 484 (stating that immunity does not extend "outside the scope of representation").
Diogu's original suit was brought in his personal capacity and contains assertions that he, the plaintiff, was married to Charoentheerasak and that Aporn assisted Charoentheerasak in defrauding Diogu as it related to his marriage. Aporn counterclaimed against him, individually, and sought damages.
Diogu offered no prima facie proof in support of his bill of review that Aporn sued him in his representative capacity for acts undertaken in discharging an attorney's duties to a client versus in his personal capacity. A legal argument about attorney immunity, in the abstract, without prima facie proof that the qualified immunity applies to the claims raised does not support Diogu's assertion that the trial court in Diogu I lacked subject-matter jurisdiction to enter the judgment against him. Moreover, the attorney immunity defense is an affirmative defense; it is not a jurisdictional issue.
Conclusion
Because Diogu failed to present prima facie proof of a meritorious defense, the trial court did not err in dismissing his bill of review.
Diogu notes that he filed an amended bill of review days before the trial court issued its final judgment dismissing his suit. The amended pleading added the requisite verification to his pleading but failed to present any additional legal arguments or prima facie proof in support of any meritorious defense, which is the basis for affirming the trial court's judgment.
We affirm. All pending motions are denied.
Harvey Brown
Justice Panel consists of Justices Higley, Brown, and Caughey.