Grace Chen Graham v. James L. Miller, IV

AFFIRMED and Opinion Filed February 13, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00766-CV
GRACE CHEN GRAHAM, Appellant
v.
JAMES L. MILLER, IV, Appellee
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-53475-2018
MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Kennedy
Opinion by Justice Nowell
This interlocutory appeal arises from a third-party petition filed against a
therapist, appellant Dr. Grace Chen Graham, for violations of the Texas Civil
Wiretap Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 123.002. The underlying
lawsuit involves a custody dispute between April S. Miller (Mother)1 and appellee
James M. Miller, IV (Father).
1
Mother filed a separate appeal challenging the denial of her TCPA motion to dismiss. See In re
J.L.M., V, H.E.M., & V.R.M., No. 05-22-00758-CV, (Tex. App.—Dallas Feb. 13, 2023 no pet. h.) (mem.
op.).
Dr. Graham filed a motion to dismiss Father’s claims pursuant to the Texas
Citizens Participation Act. The motion was denied by operation of law. In four
issues, she argues the trial court erred by denying her motion to dismiss because (1)
the TCPA applies; (2) Father failed to meet his burden under the Wiretap Act; (3)
she established numerous affirmative defenses; and (4) she is entitled to her
attorney’s fees. Because we conclude the TCPA does not apply, we affirm the order
denying Dr. Graham’s motion to dismiss.
Background
Mother and Father divorced in November of 2012. They had three children
during the marriage: H.E.M., J.L.M., and V.R.M. In March of 2018, Mother filed a
petition to modify the parent-child relationship. Father subsequently filed a counter-
petition to modify the parent-child relationship.
On March 21, 2019, the trial court signed an Agreed Order for Counseling
and appointed Dr. Graham as the children’s counselor. Her role was to “help the
children through th[e] difficult process when the parents [were] trying to figure out
how they want[ed] to share the children.” The order required Mother and Father to,
among other things, “comply with the recommendations and directives of Dr.
Graham as it relates to the children’s counseling: including making themselves
available to speak with Dr. Graham and/or to participate in the counseling session
as requested by Dr. Graham” and “sign all necessary releases (e.g.–HIPAA) to
authorize Dr. Graham to share information pertaining to the children’s counseling to
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the attorneys for the parties, the child custody evaluator appointed in this matter, and
to the Court.” The trial court entered an agreed order in that SAPCR proceeding on
September 10, 2019; however, Dr. Graham continued providing counseling to the
children as needed.
During a session in December of 2020, H.E.M. told Dr. Graham she recorded
interactions with her father and stepmother. H.E.M. played a portion of the
recordings for Dr. Graham. Although there were approximately ten recordings, Dr.
Graham only listened to three of them because she found them difficult to hear.
On February 25, 2022, Father filed a Second Amended Counterpetition to
Modify Parent-Child Relationship and Original Third-Party Petition Against Grace
Chen Graham for violations of the Wiretap Act because she allegedly “divulged an
illegally obtained recording to another individual.” In Father’s third-party petition,
he alleged the following facts:
One of the children recorded [FATHER] without his consent.
The child is not of requisite age in order to consent to being recorded.
Therefore, the recording was illegally obtained.
Upon information and belief, there are roughly ten recordings
(the “recordings”). The child divulged the recordings to therapist
[GRAHAM]. [GRAHAM] then divulged the recordings to
[MOTHER]. [MOTHER] then divulged the recordings to her husband
as well as her attorneys Laurel Clement and Blake Mitchell.
Graham filed an original answer but did not assert any affirmative defenses.
Dr. Graham filed a motion to dismiss pursuant to the TCPA on April 25, 2022.
She alleged Father’s Wiretap Act claim was a legal action based on or in response
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to her “exercise of the right to petition” because her communication regarding the
recordings was “a communication in or pertaining to a judicial proceeding.” See
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4)(A)(i). She attached her deposition
and an affidavit from Mother to her motion to dismiss.
Father filed his “objection” to Dr. Graham’s motion to dismiss in which he
argued (1) the TCPA did not apply; (2) an exemption applied; (3) he provided clear
and specific evidence of each element of his cause of action; and (4) Dr. Graham
failed to establish an affirmative defense. The trial court held a hearing and took the
motion under advisement. Dr. Graham’s motion was overruled by operation of law.
This appeal followed.
TCPA Framework and Standard of Review
The TCPA permits a party to file a motion to dismiss a legal action that is
based on or is in response to that party’s exercise of her right of free speech, right to
petition, or right of association as defined in the statute. TEX. CIV. PRAC. & REM.
CODE ANN. §§ 27.001, 27.003. To accomplish its purpose, the TCPA endorses a
summary process requiring judicial review of the pleadings and limited evidence.
See In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding). This
summary procedure requires a trial court to dismiss suits, or particular claims within
suits, that demonstrably implicate those statutorily protected rights, unless the
plaintiff–nonmovant makes a prima facie showing that his claims have merit. TEX.
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CIV. PRAC. & REM. CODE ANN. § 27.005(b); Sullivan v. Abraham, 488 S.W.3d 294,
295 (Tex. 2016).
The TCPA dismissal procedure has three steps. White Nile Software, Inc. v.
Carrington, Coleman, Sloman & Blumenthal, LLP, No. 05-19-00780-CV, 2020 WL
5104966, at *4 (Tex. App.—Dallas Aug. 31, 2020, pet. denied) (mem. op.). First,
the defendant–movant has the initial burden to show by a preponderance of the
evidence that the case is based on or is in response to the party’s exercise of the right
of free speech, right to petition, or right of association. TEX. CIV. PRAC. & REM.
CODE ANN. § 27.005(b). If the defendant–movant does not meet this burden, the
motion fails. White Nile Software, Inc., 2020 WL 5104966, at *4. Second, if the
defendant–movant satisfies the first step, the plaintiff–nonmovant must establish by
clear and specific evidence a prima facie case for each essential element of his claim.
TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c). If the plaintiff–nonmovant fails to
meet this burden, the trial court must dismiss the claim. Id. § 27.005 (b)–(c). Third,
if the plaintiff–nonmovant meets his step-two burden and the defendant–movant has
asserted a defense, the defendant–movant must establish by a preponderance of the
evidence each essential element of a valid defense to the plaintiff–nonmovant’s
claims to prevail. Id. § 27.005(d).
We review de novo the denial of a TCPA motion. See Beard v. McGregor
Bancshares, Inc., No. 05-21-00478-CV, 2022 WL 1076176, at *4 (Tex. App.—
Dallas Apr. 11, 2022, pet. denied) (mem. op.). In conducting our review, we
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consider the pleadings, evidence a court could consider under Texas Rule of Civil
Procedure 166a, and supporting and opposing affidavits stating the facts on which
the liability or defense is based. Id.; see also TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.006(a).
Analysis
Dr. Graham first contends the trial court erred in denying her motion to
dismiss pursuant to the TCPA because Father’s legal action was based on or in
response to her right to petition. We begin our analysis with step one of the TCPA
burden-shifting analysis, which is dispositive of this appeal.
The TCPA defines “exercise of the right to petition” as “a communication in
or pertaining to,” in relevant part, “a judicial proceeding.” TEX. CIV. PRAC. & REM.
CODE ANN. § 27.001(4)(A)(i). The ordinary meaning of “judicial proceeding” is “an
actual, pending judicial proceeding” or “any proceeding initiated to procure an order
or decree, whether in law or in equity.” See Dyer v. Medoc Health Servs., LLC, 573
S.W.3d 418, 429 (Tex. App.—Dallas 2019, pet. denied) (quoting Levatino v. Apple
Tree Cafe Touring, Inc., 486 S.W.3d 724, 728–29 (Tex. App.—Dallas 2016, pet.
denied)). The statute further defines “exercise of the right to petition” to mean “a
communication in connection with an issue under consideration or review by a . . .
judicial body” and a “communication that is reasonably likely to encourage
consideration or review of an issue by a . . . judicial body.” TEX. CIV. PRAC. & REM.
CODE ANN. § 27.001(4)(B), (C).
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The protections of the TCPA are specifically directed at communications.
White Nile Software, Inc., 2020 WL 5104966, at *5. The parties do not dispute the
recordings at issue are communications as defined by the TCPA, but instead dispute
whether Father’s wiretap lawsuit is based on or in response to Dr. Graham’s right to
petition.
Dr. Graham argues the recordings, which she shared with Mother, the
parenting coordinator, and attorneys, pertained to a judicial proceeding in which the
trial court appointed her to act as counselor for the minor children on a continuing
basis. Father responds he is suing Dr. Graham for illegally publishing his statements
recorded by H.E.M. without his consent.2 “It is the extra step of replaying the
illegally recorded conversations . . . [that] exposes Dr. Graham to liability under the
Texas Wiretap Act,” not that she discussed the recordings with others.
We begin by determining whether Dr. Graham established by a preponderance
of the evidence that the recordings were communications “in or pertaining to a
judicial proceeding.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4)(A)(i). Here,
as part of a prior SAPCR proceeding between Mother and Father, the trial court
signed an Agreed Order for Counselor on March 21, 2019 appointing Dr. Graham
2
In Texas, when one party to the communication consents to the interception of the communication,
there is no violation of chapter 123. See Allen v Mancini, 170 S.W.3d 167, 171 (Tex. App.—Eastland 2005,
pet. denied); see also TEX. CIV. PRAC. & REM. CODE ANN. § 123.001(2) (“interception” means the “aural
acquisition of the contents of a communication through the use of an interception device that is made
without the consent of a party to the communication”). Father asserts H.E.M., who is a minor, could not
consent to the recording. We need not consider this issue for disposition of this appeal. See TEX. R. APP.
P. 47.1.
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as the children’s counselor. The trial court entered an agreed order in that SAPCR
proceeding on September 10, 2019. Dr. Graham continued seeing the children for
counseling as needed.
Dr. Graham testified H.E.M. shared recordings with her during a therapy
session in December 2020. Dr. Graham then shared the recordings with Mother,
who shared them with a parenting coordinator and attorneys. At that time, there was
no pending “judicial proceeding” or ongoing “legal action.” Id. § 27.001(6)
(defining “legal action” as “lawsuit, cause of action, petition, complaint, cross-claim,
or counter-claim . . .”); see Dyer, 573 S.W.3d at 429 (concluding appellants failed
to satisfy their burden of establishing claims were based on, related to, or in response
to right to petition when there was no evidence of a pending “judicial proceeding”
at the time the parties sent texts messages to each other). Accordingly, the
recordings were not “a communication in or pertaining to a judicial proceeding.”
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4)(A)(i). For the same reasons, the
recordings were not communications “in connection with an issue under
consideration or review by a . . . judicial body,” because the parties had nothing
under consideration or review by the trial court at that time. Id. § 27.001(4)(B).
Finally, we consider whether the recordings were communications
“reasonably likely to encourage consideration or review of an issue” by a judicial
body. Id. § 27.001(4)(C). Although the record indicates Dr. Graham shared the
recordings with Mother because she was concerned for H.E.M.’s mental health and
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possible exposure to an abusive environment, she presented no evidence her
publication of the recordings to Mother or her discussions with Mother (or anyone
else) were intended to encourage consideration or review by a judicial body.
To the contrary, Dr. Graham stated in her deposition she did not report her
concerns to Child Protective Services because the recordings did not rise to the level
that would require mandatory reporting. She also did not consider calling the police
after hearing the recordings because “we give parents huge latitude on how they
want to discipline their kids.” She was “hopeful” that by talking with Father, and
possibly stepmother, she could “get things kind of calmed down.” Such evidence
indicates Dr. Graham was trying to avoid further judicial proceedings and resolve
the situation within the family unit.
We conclude Dr. Graham failed to show by a preponderance of the evidence
that Father’s third-party petition alleging violations of the Wiretap Tap Act is based
on or in response to her exercise of the right to petition. TEX. CIV. PRAC. & REM.
CODE ANN. § 27.005(b). We overrule Dr. Graham’s first issue. Because Dr. Graham
failed to meet her burden under step one of the TCPA burden-shifting analysis, we
need not consider her remaining arguments. TEX. R. APP. P. 47.1.
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Conclusion
We affirm the trial court’s order denying Dr. Graham’s motion to dismiss.
/Erin A. Nowell/
ERIN A. NOWELL
JUSTICE
220766F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GRACE CHEN GRAHAM, On Appeal from the 366th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 366-53475-
No. 05-22-00766-CV V. 2018.
Opinion delivered by Justice Nowell.
Justices Partida-Kipness and
JAMES L. MILLER, IV, Kennedy participating.
Appellee
In accordance with this Court’s opinion of this date, we AFFIRM the trial
court’s order denying appellant Grace Chen Graham’s motion to dismiss pursuant
to the TCPA.
It is ORDERED that appellee JAMES L. MILLER, IV recover his costs of
this appeal from appellant GRACE CHEN GRAHAM.
Judgment entered this 13th day of February 2023.
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