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 v. Robert J. Rogers

• Court: Court of Appeals of Texas
• Decided: January 14, 2016
• Docket: 01-15-00121-CV
• Status: Published

Opinion

Opinion issued January 14, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00121-CV ——————————— 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

2 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.