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Using the Texas Anti-SLAPP law for a family feud

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Sometimes family brings out the worst in people. And judges get to see more than their share of that.

In Rio Grande H2O Guardian v. Robert Muller Family Partnership Ltd., Fourth District Court of Appeals Chief Justice Catherine Stone had to deal with a water conservation organization that is one in name only because one brother had a spat with his sibling.

Baldemar Garcia Jr., attorney Person Whitworth Borchers & Morales in Laredo got stuck writing the losing brief on this one.

In February 2009, Albert Muller Jr., his wife, son, “and ex son-in-law Greg Ebe formed an entity named Rio Grande H2O Guardian,” Garcia said.

Albert III, also an attorney, was president, treasurer and secretary. That’s one way to cut overhead.

“Three months after its formation, the entity sued Robert’s family partnership … those doing business with him (Home Mart Inc., Emerald Riverview Development Ltd., and Emerald River and Mines Management LC) and the city of Laredo,” Garcia said.

Rio Grande H2O’s certificate of filing said it intended to be a 501-c(3) nonprofit, but the only action it took was to sue, he continued. This explains why a Google search of the not-quite-yet nonprofit won’t produce a website, just links to litigation.

The brothers own real property in close proximity. Albert Jr.’s family believes their land will be negatively affected by a zoning change on the Robert’s family land, Garcia said.

“Angry that Robert had secured a zoning change on his real property, Albert Jr. sued … to invalidate and enjoin those changes,” Garcia said. “”Albert Jr. portrayed his litigation as a public crusade to protect the environment, despite his brother coincidentally being the target.”

Robert filed a counterclaim for tortious interference. In response, Albert Jr. filed a Texas Citizens Participation Act/anti-SLAPP motion to dismiss claiming that he was exercising constitutionally protected rights of free speech, to associate, and petition when he sued his brother.

Chief Justice Stone’s January opinion is the appellate court’s second look at this case. Laredo tried to assert that Rio Grande H2O lacked standing, that its claims “were not ripe for consideration.” A trial court in Webb County denied the city’s plea and the city appealed to the Fourth District, which upheld the trial court ruling.

When Rio Grande H2O and Albert Jr. sought to dismiss the Robert family’s tortious interference counterclaim, the trial court denied the motion. Rio Grande H2O appealed and here we are.

Civics Lesson!
The Texas Citizens Participation Act of 2011 was passed to safeguard the constitutional rights of persons to petition while at the same time protecting the rights of persons to file meritorious lawsuits.

To accomplish this, the Anti-SLAPP law, as it is known, provides an “early stage” mechanism for dismissing unmeritorious lawsuits. Basically, if the lawsuit is based on nothing more than the fact that a citizen exercised the right of free speech, it should go away.

There is a “burden-shifting” mechanism. The person being sued has to show, “by a preponderance of the evidence,” that the lawsuit is based on the citizen protestor’s exercise of free speech, petition or association.

In the case of The Battling Mullers, this came down to how well Albert Jr. and his band dotted their i’s and crossed their t’s.

The Robert family contended Rio Grande H2O had no right to petition because the filing of the lawsuit was not within the powers it was formed to exercise.

I can see that. It would appear the Albert Jr. faction used Rio Grande H2O as a tool to stay within the boundaries of the Anti-SLAPP law under the barest of circumstance.

I'm picturing two adolescent brothers forced to split a bedroom and one is always taunting the other by tapping his toe on the duct tape that separates his half of the room from the other.

Let Stone speak:
“The Texas Business Organizations Code provides that an act of a corporation is not invalid because the act was beyond the purposes of the corporation.
“The fact that an act is beyond the scope of a corporation’s state purpose can be asserted in a proceeding brought only by a shareholder or member of the corporation, the corporation itself, or the attorney general.
“The (Robert family’s) argument is contrary to this court’s holding in Rio Grande H2O Guardian I that the filing of the lawsuit was germane to Rio Grande H2O Guardian’s organizational purpose because the lawsuit was within its stated goals of ‘preserving and enhancing the water quality of the Rio Grande and its local tributaries’ and ‘preservation of … low-density residential area near the Rio Grande.’”

The Robert family just got served. Stone reversed the trial court’s order and dismissed the Robert family’s claims against the Albert Jr. family.

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