richard-fawcett-kevin-roberts-darrin-pitts-george-lillard-christopher ( 2016 )

Opinion issued January 14, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00121-CV
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RICHARD FAWCETT, KEVIN ROBERTS, DARRIN PITTS, GEORGE
LILLARD, CHRISTOPHER MATTHEWS, ARMANDO FLORIDO, BILLY
MORENO, DAVID VUKOVIC, KEN KIRKPATRICK, JAMES LEMONS,
DOUGLAS HISSONG AND SALOMON LAHANA, Appellants
V.
ROBERT J. ROGERS, Appellee
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2014-51782
CONCURRING AND DISSENTING OPINION
I concur in the portion of the judgment of this Court affirming the trial
court’s order denying the motion of appellants, Richard Fawcett, Kevin Roberts,
Darrin Pitts, Christopher Matthews, Armando Florido, Billy Moreno, David
Vukovic, Ken Kirkpatrick, James Lemons, and Douglas Hissong (collectively, the
“Signing Defendants”), to dismiss the suit of appellee, Robert J. Rogers, against
them for defamation. I respectfully dissent from the portion of the judgment of this
Court reversing the trial court’s order denying the motion of appellants, George
Lillard and Salomon Lahana, to dismiss Rogers’s suit against them for defamation.
In their first issue, the Signing Defendants, Lillard, and Lahana argue that
the trial court erred in denying their motion to dismiss Rogers’s suit against them
because his defamation claim is “based on, related to, or in response to [their]
exercise of their rights of association as defined in the Texas Citizen Participation
Act.” See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(2), 27.001–.011 (Vernon
2015). However, Rogers’s allegations that appellants falsely accused him of
misappropriating funds do not at all concern their constitutional right to associate
as discussed in Chapter 27 of the Texas Civil Practice and Remedies Code. See
Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 217–20 (Tex. App.—Houston [1st
Dist.] 2014, no pet.) (Jennings, J., concurring).
Here, although all of the parties were members of the Order of the
Freemasons at the Gray Lodge, the complained-of acts of all of the appellants in
regard to their alleged defamation of Rogers do not at all concern their
constitutional rights to petition, speak freely, associate freely, “and otherwise
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participate in government,” i.e., engage in citizen or public participation. See id.Rogers’s lawsuit against appellants has nothing to do with their constitutional right
to engage in citizen or public participation. See id. And his allegation that
appellants defamed him cannot in any reasonable sense be read as an attempt to
strategically silence them, prevent them from engaging in citizen or public
participation, prevent them from associating for such purposes, or in any other way
infringe upon their constitutional rights. See id. Simply put, the fact that
appellants, as defendants in a civil tort lawsuit, happen to be Masons, does not
transform Rogers’s lawsuit against them into a “strategic lawsuit against public
participation.”
Accordingly, I respectfully disagree with the majority’s analysis of the first
issue and its conclusion that the trial court erred in not dismissing Rogers’s suit
against Lillard and Lahana. And I agree with the majority that the trial court did
not err in denying the motion of the Signing Defendants to dismiss Rogers’s suit
against them.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Brown.
Jennings, J., concurring in part and dissenting in part.
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