In a nasty fight over attorney’s fees within a nasty fight over the Hunt Oil family fortune, the Houston [1st] Court of Appeals has thrown out an effort by one of the heirs, Albert G. Hill, III, to use the TCPA to get out of a suit for attorney’s fees.
In a made-for-TV fashion, Albert G. Hill, III v. Lisa Blue, Stephen Malouf, Charla Aldous, Michael Lynn, and Jeff Tillotson (01-20-00418-CV) arose initially from Hill III’s 2007 lawsuit against his father (Albert G. Hill, Jr.), sisters, and Tom Hunt over the management of Hunt Oil and the family trusts. Hill, Jr. was represented by Michael Lynn, whose partner is Jeff Tillotson (though Tillotson was not part of the representation). Hill III’s lawyers were Lisa Blue, Stephen Malouf, and Charla Aldous. Discovery revealed that in 2004 Hill III tried to get a home equity loan, representing that he owned the house that was in fact jointly owned with the family trust. Hill, Jr. suspected a rat, but the federal judge overseeing the trust litigation determined that Hill, Jr. had committed perjury with the assistance of his lawyer, Lynn. Lynn responded by filing a criminal complaint against Hill III for fraud in connection with the 2004 loan. The parties reached a global settlement in 2010, in which Hill III agreed not to contest his father’s will. (When Hill, Jr. died in 2017, Hill III contested the will anyway in a separate lawsuit.)
Apparently, Hill III did not pay what his lawyers thought they were owed out of the nine-figure settlement. They sued Hill III in December 2010 for $50 million. A few months later, a Dallas grand jury returned a four-count indictment against Hill III for making false representations to obtain property or credit. Hill III moved to quash the indictments. A trial court dismissed the charges in 2013 and judgment became final in 2018, following appeals. Shortly thereafter, Hill III filed suit against the lawyers for malicious prosecution, alleging that Lynn and Tillotson sought prosecution in retaliation for the perjury finding and that Blue, Malouf, and Aldous conspired to pressure the Dallas DA to bring charges against their former client. Hill III’s claims against the lawyers were based largely on campaign contributions they made to the DA, as well as communications with the DA during the pertinent time period. (As everyone knows, Lisa Blue is very active in Democratic politics in Dallas County, so none of that should come as a surprise.)
Each of the lawyer defendants moved to dismiss under the Texas Citizens Participation Act (TCPA; Chapter 27, CPRC). They asserted that their claims arose from the exercise of their rights of speech, petition, and association, and that Hill III had failed to present clear and specific evidence of the elements of his malicious prosecution claim. The trial court agreed and dismissed the case in toto. It also excluded the 5,000 pages of “evidence” submitted by Hill III as hearsay, irrelevant, and unresponsive. Hill III appealed.
The court of appeals affirmed. Deciding the evidentiary question first, the court found that Hill III made no attempt to identify the evidence he thought provided evidence for any element of the malicious prosecution claim, to respond to the defendants’ specific objections to the evidence, or make any argument explaining how trial court’s error “probably caused the rendition of an improper judgment or prevented him from properly presenting his case on appeal.” Moreover, by failing to challenge all possible grounds for the trial court’s action, an appellant waives any error. Finally, Hill III’s appellant brief provided neither substantive analysis nor authority. This is certainly not the kind of opinion an appellate lawyer would want to showcase in order to attract new business.
Hill III fared no better on his challenge to the trial court’s TCPA dismissal. For starters, filing a criminal complaint with a district or county attorney or making a political contribution are constitutionally protected actions under the First Amendment. With regard to communications between Blue and the district attorney, these were clearly about a matter of public concern and free speech within the ambit of the TCPA. And Hill III’s allegation that Malouf and Aldous conspired with Blue in order to advance the attorney’s fees litigation involves the lawyers’ right to association and is thus protected by the TCPA. On all counts, therefore, the TCPA applied to Hill III’s claims.
The burden then shifted to Hill III to establish by clear and specific evidence each of the elements of malicious prosecution. These are: “(1) the commencement of a criminal prosecution against the plaintiff; (2) causation (initiation or procurement) of the action by the defendant; (3) termination of the prosecution in the plaintiff’s favor; (4) the plaintiff’s innocence; (5) the absence of probable cause for the proceedings; (6) malice in filing the charge; and (7) damage to the plaintiff.” This hefty showing is necessary, according to SCOTX, to balance the public’s interest in good faith reporting of criminal activity against the presumption of innocence. Just because criminal charges may end in dismissal or acquittal does not mean that probable cause did not exist, no more than “an arrest prove that the malicious prosecution plaintiff is not innocent.” Private citizens have no obligation to investigate their good faith belief that a crime may have occurred. Moreover, once a complaint has been taken up, the decision to prosecute lies within the discretion of the prosecuting attorney, not the complainant (unless the prosecutor knew the information was false and that outside pressure was the determining factor in the decision to prosecute). The court of appeals found no such evidence supporting the malicious prosecution or conspiracy allegations. (The court further noted that Hill III’s claims against the lawyers for civil conspiracy and aiding and abetting are derivative torts, and dismissal of the malicious prosecution claim necessarily entails dismissal of the derivative claims as well.)
This decision apparently puts an end to Hill III’s litigation spree. In 2020 the U.S. Fifth Circuit Court of Appeals ruled against him in his challenge to the will, so he is undoubtedly facing the prospect of paying his sisters’ costs and attorney’s fees from that suit. Add that to whatever he owes the lawyer defendants here, both for their work during the initial litigation and for successfully asserting the TCPA, and the numbers could easily reach into the high eight figures. Certainly the lawyers did well out of this circus, but it’s hard to see that anyone else did.
