Summary
recognizing the outcome of a TCPA motion to dismiss survives a claimant's nonsuiting of the claim for which dismissal is sought
Summary of this case from Florez v. OlibasOpinion
NO. 14-18-01053-CV
10-20-2020
DIOGU LAW FIRM PLLC AND DIOGU KALU DIOGU II, Appellants v. DAVID MELANSON; DENISE ROBBINS; EDDIE M. KRENEK; AND TRICIA KRENEK, Appellees
On Appeal from the 434th Judicial District Court Fort Bend County, Texas
Trial Court Cause No. 18-DCV-251076
MEMORANDUM OPINION
Appellants, Diogu Law Firm PLLC and Diogu Kalu Diogu II ("Diogu"), challenge the trial court's judgment in favor of Appellees, David Melanson, Denise Robbins, Eddie M. Krenek, and Tricia Krenek. We affirm.
Background
On February 15, 2018, City of Fulshear code enforcement officer Sheffield observed the city right of way had been fenced at the intersection of 4th Street and Harris Street in Fulshear. As Sheffield stopped to investigate, a gentleman approached him and told him that "this property had been fenced by" Diogu because "Diogu was attempting to take possession of other properties in the City of Fulshear without purchasing the properties from the rightful owners." Sheffield called Diogu, who "confirmed he had fenced the city right of way property at the intersection of 4th St and Harris St." When Sheffield advised Diogu that he had fenced in city property and asked him to remove the fence, Diogu said "the city does not have record of ownership of the property" and he would not remove the fence. After Sheffield obtained a copy of the city plat document showing the city's ownership of the right of way, the matter was turned over to the city attorney.
On February 28, 2018, Diogu sent a letter on behalf of Advanced Technology Transfer and Intellectual Property Group LLC to the City of Fulshear and requested the city abandon the fenced-in right of way and claimed the right of way "has been openly used for the purposes of adverse possession." Fulshear City Attorney, Grady Randle, responded to Diogu's letter via email on March 6, 2018, stating, among other things:
Diogu described the entity as the trustee for his two minor children.
I am in receipt of your letter dated February 28th as well as your 4th voicemail. Before I address the substance of your letter, the City of Fulshear is represented by me as the city attorney and therefore you may not contact my client, the City[,] except through me.
To answer your letter:
1. No, the City will not abandon the 50 foot right-of-way across lot 11 Block 13
2. No, adverse possession does not apply to the City
3. No, the City will not put this on its agenda
4. Yes, the City will file a plea to the jurisdiction asserting its governmental immunity if your client files a lawsuit
5. Yes, demand is made to your client to immediately remove the barb wire fence from across Fourth street
In response, on March 6, 2018, Diogu sent Randle two emails stating, among other things, that (1) he did not consider Randle's "unhinged email communication as response to the petition [his] office made to the Mayor and the City Coun[ci]l of the City of Fulshear", and (2) he would appear at the Fulshear City Council meeting to present his case. The following day, Diogu sent Randle a third email informing Randle that he had "made an open record request about [Randle's] employment with the City of Fulshear." Diogu further stated: "I intend to find out the role that Tommy Kuykendall and the Police Chief/City Manager played in your employment. By the way, I hope you don't act a fool when corresponding with me. I am intolerant of ignorant and stupid people like you."
An easy search reveals clear statutory and case law that adverse possession does not run against the sovereign.
On March 20, 2018, Diogu appeared before the Fulshear City Council. According to the minutes, Diogu "spoke to [the] City Council regarding the Police Chief being named Acting City Manager" during the citizen's comments portion of the city council meeting.
On March 21, 2018, Randle sent a letter to Diogu refuting any claim "to any lawful right of possession or ownership of the property [Diogu] fenced in" and demanding immediate removal of the "wire fencing [Diogu] unlawfully installed on city property".
On March 22, 2018, Diogu filed a petition to take depositions under Texas Rule of Civil Procedure 202. Diogu sought to depose the mayor of Fulshear, two council members, the city secretary, the city attorney, the police chief, and the city manager to "investigate potential actions civil in nature against their individual capacities, the City of Fulshear or both, including but not limited to claims under 42 U.S.C. § 1983." Diogu alleged that city attorney Randle's letter, formally demanding that Diogu remove the fence from the right of way, was sent in "retaliation against [Diogu]'s participation in the public and free speech forum and to chill the issues he raised." According to Diogu, he raised during the city council meeting "the impermissible potential conflict of interest and corruption involving the appointment of" Seymour as both the police chief and city manager of Fulshear as well as other corruption involving the Fulshear Police Department.
Diogu named himself and Advanced Technology Transfer and Intellectual Property Group LLC as petitioners.
One of the council members Diogu sought to depose was Appellee Tricia Krenek.
On April 6, 2018, the City of Fulshear filed a suit against Advanced Technology Transfer and Intellectual Property Group LLC for declaratory judgment to quiet title to the right of way Diogu had fenced off. The suit was assigned to the 400th District Court of Fort Bend County.
On May 1, 2018, Judge Chad Bridges in the 240th District Court held a hearing on Diogu's Petition to Take Depositions under Rule 202. After hearing the parties' arguments, Judge Bridges denied the petition and stated, among other things:
And after reviewing and taking judicial notice of all the contents of the Court's file, it is clear to me that all of this lawsuit emanates around the piece of property that both of you discussed and the outcome of whatever litigation there is going to be about who owns that property and who has rights to it.
This all comes out of the same factual transaction in all of these claims. And, quite frankly, if filed in a separate lawsuit would probably be subject to a motion for consolidation without ruling on whether or not that would be granted or not.
But this is what is clear to me. All the people who are named in this petition are all people that would probably wind up being if in this lawsuit across the hall, the dec action in the 400th is pursued, and I anticipate it will be. . . . I am saying that all of these issues, all of these issues that are going to be raised in this petition, all the things that have been said today, all the things that are included in all the pleadings that I've seen so far, are going to be joined in the lawsuit in the 400th.After the hearing, an unflattering post about Diogu appeared on Appellee Denise Robbins's Facebook, stating, among other things:
That is why I cannot make the findings under [Rule 202.4] in this matter. I think this is properly dealt with across the hall with Judge Jaramillo and my order is going to be that.
So a little update to what transpired in Court today. If I wasn't present I wouldn't believe the Crazy, bizarre, weird behavior of the infamous Sanctioned Attorney. . . . So the "Sanctioned One" began his statement to the court by Attacking Chief Seymour for militarizing Fulshear by having too many police cars! Wait What? Targeting indigent people of Fulshear, that just happen to be minorities. Fulshear arrest more Caucasian (1), Hispanic (2), and African Americans (3)! Some other really weird stuff but too stupid to type.
* * *
Then in the middle of his ramblings, out of left field, he said, you know almost every household in Fulshear someone probably has a bachelors degree. WTH! And this is relevant how?
He made a couple of comments about Grady Randle but at this point we were kinda stuck in that Holy crap this guy still practices Law or his own kinda Law!
He did make some very interesting admissions. That Ms. Offord was the brainchild of this lawsuit and when she was fired he could no longer get the information needed for his case.
* * *
Judge basically told him he didn't have a case! No surprise there!On May 3, 2018, Appellants sued Denise Robbins and David Melanson, asserting claims for defamation and intentional infliction of emotional distress and seeking $25,000,000 in damages. The case was assigned to the 434th District Court in Fort Bend County, Judge James Shoemake presiding. Appellants alleged they "suffered irreparable personal and economic injury because Defendants published false statements of fact about Diogu" and his law firm on Facebook.
Although the post does not refer to Diogu by name, Appellees state in their brief that we "may assume the post appeared on Robbins' Facebook page and that it pertained to Diogu and the Rule 202 hearing."
We will refer to Appellants' lawsuit as the "defamation suit."
On July 6, 2018, Robbins and Melanson filed a motion to dismiss Appellants' claims with prejudice under the Texas Citizens' Participation Act ("TCPA") and contended that Appellants' defamation suit was based on an exercise of the right to free speech and the right to petition as defined by the TCPA. Robbins and Melanson requested court costs, attorney's fees, and sanctions under the TCPA.
On July 10, 2018, Appellants filed Plaintiffs' First Amended Original Petition adding Tricia Krenek and Eddie Krenek as defendants; Eddie Krenek is one of Robbins's and Melanson's trial counsel. In addition to defamation and intentional infliction of emotional distress claims, Appellants added a civil conspiracy claim.
On July 13, 2018, Appellees filed Defendants' Supplemental TCPA Motion to Dismiss and Rule 13 Motion for Sanctions. Appellees argued (1) the defamation, intentional infliction of emotional distress, and civil conspiracy claims should be dismissed with prejudice because they are based on the exercise of the rights to free speech and petition and because Appellants cannot establish by clear and specific evidence a prima facie case for each element of their claims; and (2) the trial court should award Appellees costs, attorney's fees, and sanctions pursuant to the TCPA and Texas Civil Procedure Rule 13.
That same day, Appellants filed Plaintiffs' Motion to Disqualify Opposing Counsels. Appellants requested the trial court issue "an Order disqualifying Krenek Law Offices, Tricia Thompson Krenek and Eddie M. Krenek from further involvement in this case." Appellants argued that, "[in] defiant [sic] of all professional ethics and despite the Notice that both Tricia Krenek and Eddie Krenek have become parties to the suit, Tricia Krenek called this Court, obtained a hearing date and set this case for an Oral hearing on frivolous motion to dismiss."
Appellees set their motions to dismiss for hearing on August 20, 2018. The morning of the hearing, Appellants filed a "Verified Plaintiffs' Second Amended Original Petition and Request for Disclosure", adding claims for assault and cyberstalking to their already pleaded claims.
At the hearing, Judge Shoemake first heard Appellants' motion to disqualify Appellees' attorneys. Based on the parties' arguments, Judge Shoemake denied the motion to disqualify. Appellants also argued in opposition of Appellees' TCPA motions to dismiss. Appellants claimed that, because Diogu's Petition to Take Depositions under Rule 202 constituted "an anti-SLAPP case in the 240th district court", Appellees "do not have the authority to use an anti-SLAPP statute motion to dismiss against a legitimate right to file an anti-SLAPP petition." In a convoluted way, Appellants' argument seemed to be that (1) the Facebook posts about the hearing on his Petition to Take Depositions under Rule 202 (which Appellants believe constitutes Diogu's "anti-SLAPP case") were made in "retaliation against [Diogu's] anti-SLAPP petition" filed in the 240th District Court; (2) Appellants filed the defamation suit in response to the Facebook post; (3) Appellants' defamation suit "involves an anti-SLAPP statute"; and (4) Appellees' TCPA motions to dismiss cannot be used to dismiss Appellants' defamation suit because it "involves an anti-SLAPP statute." Appellants presented neither affidavits nor witnesses in opposition to Appellees' motions to dismiss. Instead, Diogu, on behalf of Appellants, requested a continuance and stated: "I intend to call witnesses and intend to produce extra evidence based on other sources."
Appellees argued their motions to dismiss should be granted because Appellants' defamation suit "was based on a Facebook posting that was about a courtroom proceeding, it was clearly a matter of public concern. That means the lawsuit was based on the exercise of free speech. So we were entitled to file the motion." Appellees also argued that "Mr. Diogu has been characterizing his Rule 202 petition and his libel suit as anti-SLAPP lawsuits. There's no such thing. There is an anti-SLAPP statute that provides a procedural mechanism to challenge these kinds of frivolous lawsuits that attack constitutional rights."
Judge Shoemake granted Appellants a continuance so they could present evidence and set a hearing for August 24, 2018. Diogu stated, "I'll be ready by Friday, Judge." At the August 24, 2018 hearing, Appellants were not ready. Instead, Appellants orally nonsuited all their claims in the defamation suit without prejudice and claimed (without evidence) that they could not obtain any affidavits because of witness intimidation. Judge Shoemake ruled in favor of Appellees on their TCPA motions and dismissed Appellants' claims with prejudice. He also gave Appellants a few days to file "an affidavit in opposition to the attorneys' fees and to answer any assertion that [Appellees]'ve made regarding sanctions" before holding a hearing. At an August 28, 2018 hearing, Judge Shoemake heard evidence on the requested attorney's fees and sanctions.
On September 21, 2018, Judge Shoemake signed a final judgment in the defamation suit ordering that (1) Appellants' claims are dismissed with prejudice; (2) Appellants' Motion to Disqualify Opposing Counsels is denied because it was filed in violation of Texas Rule of Civil Procedure 13; (3) Appellants must pay Appellees $3,159.00 as reasonable and necessary attorney's fees incurred in defending said motion; (4) Appellees' TCPA motions to dismiss are granted; (5) Appellants pay Appellees $52,853.00 as reasonable and necessary attorney's fees in defending "the case in chief and for filing and presenting the Motion[s] to Dismiss" as well as attorney's fees in the event of an appeal; and (6) Appellants pay Appellees "the additional amount of $105,706.00 as sanctions to deter the bringing of similar actions and to promote the purposes of the TCPA. The same day, the trial judge also signed findings of fact and conclusions of law.
On October 10, 2018, Appellants filed a petition for writ of mandamus, asking this court to compel Judge Shoemake to stay all proceedings in the trial court pending our resolution of Appellants' contention that "the trial court had no authority to continue proceedings in this case after they non-suited their claims." See In re Diogu Law Firm PLLC, No. 14-18-00878-CV, 2018 WL 4997322, at *1 (Tex. App.—Houston [14th Dist.] Oct. 16, 2018, orig. proceeding). This court denied Appellants' petition for writ of mandamus and held that "[a] motion to dismiss under the TCPA survives a non-suit because a victory on the motion to dismiss, which may include attorneys' fees and sanctions, would afford the movants more relief than a non-suit would." Id.
On October 22, 2018, Diogu Law Firm PLLC filed a motion for new trial, which was denied by operation of law. On the same day, Diogu Law Firm also filed a Motion to Disqualify or Recuse Judge Shoemake and Presiding Judge Susan Brown of the 11th Administrative Judicial Region pursuant to Texas Rule of Civil Procedure 18a. Judge Craig Estlinbaum (active judge of the 130th District Court in Matagorda County) held a hearing on Diogu Law Firm's motion on December 4, 2018. After considering the motions and hearing evidence and arguments, Judge Estlinbaum signed an order on December 7, 2018, in which he ordered that (1) "Diogu's Motion to Disqualify or Recuse Hon. James Shoemake is without merit and is hereby DENIED"; (2) "Diogu's Motion to Disqualify or Recuse Hon. Susan Brown is DENIED as moot"; (3) Plaintiffs Diogu Law Firm PLLC and Diogu Kalu Diogu II, jointly and severally . . . pay sanctions that include reasonable and necessary legal fees to Defendants in the amount of $4,345.00 (for legal fees incurred by Pete Kennedy); and the amount of $2,400.00 (for legal fees incurred by Eddie Krenek); and (4) "the Clerk of the 434th Judicial District Court and counsel for Defendants forward a copy of this Order and Diogu's Motion to Disqualify or Recuse Judge James Shoemake and Judge Susan Brown to the Office of the General Counsel of the State Bar of Texas for investigation and any other action it may deem necessary."
Appellants filed a timely amended notice of appeal on December 19, 2018.
ANALYSIS
On appeal, Appellants present five issues in their brief. However, before turning to these issues, we note that analyzing them presents a challenge. Appellants' arguments are not clear, concise, or coherent; instead, they are convoluted, disjointed, and difficult to deconstruct and decipher. Nonetheless, we will attempt to discern and address all arguments fairly raised and adequately briefed as best we understand them. We begin with Appellants' first issue.
I. Mootness
Appellants argue in their first issue that their oral nonsuit without prejudice, announced at the August 24, 2018 hearing, rendered Appellees' TCPA motions to dismiss moot and required the trial court to dismiss Appellees' motions for lack of a "justiciable controversy." We disagree.
Whether we have subject matter jurisdiction is a legal question that we review de novo. Hughs v. Dikeman, Nos. 14-19-00969-CV, 14-20-00078-CV, 2020 WL 5361658, at *4 (Tex. App.—Houston [14th Dist.] Sept. 8, 2020, no pet. h.); Allen v. Goodwill Indus. of Houston, Inc., No. 14-17-00738-CV, 2018 WL 5056493, at *2 (Tex. App.—Houston [14th Dist.] Oct. 18, 2018, no pet.) (mem. op.). Mootness is a threshold issue that implicates subject matter jurisdiction. Hughs, 2020 WL 5361658, at *4; City of Shoreacres v. Tex. Comm'n of Envtl. Quality, 166 S.W.3d 825, 830 (Tex. App.—Austin 2005, no pet.).
"A case becomes moot when there ceases to be a justiciable controversy between the parties or when the parties cease to have 'a legally cognizable interest in the outcome.'" State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018) (quoting Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982))). "Mootness occurs when events make it impossible for the court to grant the relief requested or otherwise 'affect the parties' rights or interests.'" Id. (quoting Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012)). "When a case becomes moot, the court loses jurisdiction and cannot hear the case, because any decision would constitute an advisory opinion that is 'outside the jurisdiction conferred by Texas Constitution article II, section 1.'" Id. (quoting Matthews v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016)).
A party's decision to nonsuit does not affect a nonmoving party's independent claims for affirmative relief, including motions for dismissal under the TCPA. Abatecola v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV, 2018 WL 3118601, at *13 (Tex. App.—Houston [14th Dist.] June 26, 2018, pet. denied) (mem. op.). Even though a plaintiff has an absolute right to nonsuit before resting its case in chief, a nonsuit "shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief." Tex. R. Civ. P. 162; Abatecola, 2018 WL 3118601, at *13.
"'[A] defendant's motion to dismiss that may afford more relief than a nonsuit affords constitutes a claim for affirmative relief that survives a nonsuit[.]'" Abatecola, 2018 WL 3118601, at *14 (quoting Rauhauser v. McGibney, 508 S.W.3d 377, 381 (Tex. App.—Fort Worth 2014, no pet.), overruled on other grounds by Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017)). "TCPA motions to dismiss survive nonsuit because, unlike a nonsuit, the TCPA motion to dismiss might also allow the movant to obtain a dismissal with prejudice, attorney's fees, and sanctions." Abatecola, 2018 WL 3118601, at *14; Rauhauser, 508 S.W.3d at 381-83; see also TN CPA, P.C. v. Nguyen, No. 14-19-00677-CV, 2020 WL 5415593, at *4 (Tex. App.—Houston [14th Dist.] Sept. 10, 2020, no pet. h.) (mem. op.). Consequently, Appellants' nonsuit did not moot Appellees' pending TCPA motions to dismiss. See Abatecola, 2018 WL 3118601, at *14; see also Iola Barker v. Hurst, No. 01-17-00838-CV, 2018 WL 3059795, at *4-5 (Tex. App.—Houston [1st Dist.] June 21, 2018, no pet.) (mem. op.) (TCPA motion to dismiss survived nonsuit filed after motion to dismiss); Walker v. Hartman, 516 S.W.3d 71, 80 (Tex. App.—Beaumont 2017, pet. denied) (same); Breitling Oil & Gas Corp. v. Petroleum Newspapers of Alaska, LLC, No. 05-14-00299-CV, 2015 WL 1519667, at *3 (Tex. App.—Dallas Apr. 1, 2015, pet. denied) (mem. op.) (same); and Rauhauser, 508 S.W.3d at 381-83 (same).
Additionally, we already rejected Appellants' contention when we denied their petition for writ of mandamus and held that "[a] motion to dismiss under the TCPA survives a non-suit because a victory on the motion to dismiss, which may include attorneys' fees and sanctions, would afford the movants more relief than a non-suit would." In re Diogu Law Firm PLLC, 2018 WL 4997322, at *1.
Furthermore, the three cases Appellants cite in their brief to support their mootness argument are inapplicable because they do not involve a nonsuit under Rule 162. First, in Harper, the state sought to remove Harper from the Somervell County Hospital District Board for allegedly violating the district's by laws. 562 S.W.3d at 5. In response, Harper filed a motion to dismiss the case under the TCPA but the trial court denied Harper's motion. Id. at 5-6. Harper filed an interlocutory appeal and the court of appeals reversed and remanded, holding that (1) the TCPA applies to the state's removal action and (2) the state failed to establish a prima facie case for removal. Id. at 6. The state filed a motion for rehearing (which the court of appeals denied) and while the motion was pending, Harper lost reelection and no longer served on the district board. Id.
On appeal to the supreme court, the state conceded that Harper's failed reelection bid rendered its removal petition moot, but the state contended that the issue whether the court of appeals properly ordered the trial court to award Harper his costs, attorney's fees, and sanctions under the TCPA was not moot. Id. at 7. The supreme court agreed that Harper's request for attorney's fees and sanctions under the TCPA presented an issue that is separate from the request for removal, and "that this separate issue survive[d] the mootness." Id. The supreme court held that because Harper established his right to dismissal before his failed reelection bid rendered the state's removal petition moot, "his claim for attorney's fees, costs, and sanctions breathe[d] life into this appeal." Id. at 8. Since no nonsuit was filed in Harper, neither the parties nor the supreme court discussed or even mentioned Rule 162 or any potential impact the filing of a nonsuit might have on a TCPA motion to dismiss.
Second, in Glassdoor, Inc. v. Andra Group, LP, 575 S.W.3d 523, 525 (Tex. 2019), Andra sought to depose Glassdoor under Texas Rule of Civil Procedure 202. Glassdoor filed an answer opposing the petition and also filed a motion to dismiss under the TCPA. Id. The trial court denied the motion to dismiss and granted Andra's request to depose Glassdoor under Rule 202. Id. at 526. The court of appeals affirmed the trial court's order. Id. The supreme court vacated the judgments of the trial court and court of appeals and dismissed the case for want of jurisdiction, holding (1) Andra's petition for pre-suit discovery was moot because the statute of limitations had run on the potential claims Andra sought to investigate under Rule 202, and (2) Glassdoor's TCPA motion to dismiss was moot because Glassdoor did not prevail on its TCPA motion to dismiss before the petition for pre-suit discovery was rendered moot. Id. at 527-31. As in Harper, no nonsuit was filed and neither the parties nor the supreme court discussed or mentioned Rule 162 or any potential impact the filing of a nonsuit might have on a TCPA motion to dismiss.
Third, in O'Hern v. Mughrabi, 579 S.W.3d 594 (Tex. App.—Houston [14th Dist.] 2019, no pet.), Mughrabi was one of five members of a condominium association board who sued the other four members for breach of fiduciary duty for approving a repair project and a special assessment on each owner to pay for the repair project. Id. at 598. Mughrabi asserted he was damaged by the members' breach in an amount at least equal to the expenditures made in furtherance of the repair project and the cost of the special assessment to each owner. Id. at 598, 600. The four members filed a TCPA motion to dismiss Mughrabi's suit. Id. at 598. Thereafter, a new board was elected and immediately voted to cancel the special assessment. Id. at 599. The trial court held a hearing on the members' TCPA motion, but the motion was overruled by operation of law. Id. The members then filed an interlocutory appeal. Id.
This court concluded that the part of Mughrabi's breach of fiduciary duty claim seeking damages based on the special assessment cost to each owner became moot once the special assessment was cancelled and, therefore, because the members "did not prevail on their TCPA motion before the part of Mughrabi's fiduciary duty claim based on the special assessment cost became moot", the trial court lacked jurisdiction, based on Glassdoor and Harper, to consider the members' "TCPA motion, including the request for attorneys' fees, costs, and sanctions, insofar as the motion sought dismissal of Mughrabi's claim and related damages based on the special assessment". Id. at 600-01. However, the court also held that "the part of Mughrabi's breach of fiduciary duty claim that alleges damages other than the special assessment cost is a live controversy because those expenditures are alleged to have been incurred." Id.
As in Harper and Glassdoor, this court also was not asked to decide what impact the filing of a nonsuit might have on a party's pending TCPA motion to dismiss; therefore, neither the parties nor this court discussed or mentioned Rule 162 or its impact or relevance with regard to a pending TCPA motion. Appellants' citations to supreme court opinions and our opinion in O'Hern lend no support for Appellants' argument that their oral nonsuit without prejudice rendered Appellees' TCPA motions to dismiss moot. Conversely, we have binding precedent from this court that is directly on point and clearly states that "TCPA motions to dismiss survive nonsuit because, unlike a nonsuit, the TCPA motion to dismiss might also allow the movant to obtain a dismissal with prejudice, attorney's fees, and sanctions." In re Diogu Law Firm PLLC, 2018 WL 4997322, at *1; Abatecola, 2018 WL 3118601, at *14.
Accordingly, we overrule Appellants' first issue.
II. Standing
Appellants contend in their second issue that Appellees lacked standing to invoke TCPA section 27.003(a) "because such act will yield an absurd result therefore, the Appellee[s] failed to satisfy their initial burden of establishing by a preponderance of the evidence that the Appellants' legal action was based on, relates to, or is in response to appellants' [sic] exercise of the right of free speech, the right to petition, or the right of association."
The TCPA is an anti-SLAPP law; "SLAPP" is an acronym for "Strategic Lawsuits Against Public Participation." Toth v. Sears Home Improvement Prods., Inc., 557 S.W.3d 142, 149 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Fawcett v. Grosu, 498 S.W.3d 650, 654 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). The TCPA is intended "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, sec. 27.002, 2011 Tex. Gen. Laws 961, 962 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.002); Toth, 557 S.W.3d at 150. This statute "protects citizens from retaliatory lawsuits that seek to intimidate or silence them" from exercising their First Amendment rights and provides a procedure for the "expedited dismissal of such suits." In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding).
The Texas Legislature amended the TCPA in its most recent legislative session and the amendments are effective September 1, 2019. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1-12, 2019 Tex. Gen. Laws 684, 684-87 (current versions at Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011). Because this suit was filed before the effective date of the amendments, it is governed by the statute as it existed before the amendments, and all citations are to the TCPA as it existed prior to September 1, 2019, unless otherwise indicated.
To effect its stated purpose, the TCPA provides a mechanism for trial courts to identify and summarily dispose of those suits designed specifically to chill First Amendment rights. Id. at 589. The TCPA establishes a three-step process for resolving a motion for expedited dismissal. Castleman v. Internet Money Ltd., 546 S.W.3d 684, 691 (Tex. 2018) (per curiam). First, the moving party must show by a preponderance of the evidence that the plaintiff's claim "is based on, relates to, or is in response to the [moving party's] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association." Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, sec. 27.005, 2011 Tex. Gen. Laws 961, 962 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.005).
If the moving party makes the initial showing, the burden shifts to the plaintiff to "establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. Even if the plaintiff satisfies the second step, the court shall dismiss the plaintiff's claim if the moving party "establishes by a preponderance of the evidence each essential element of a valid defense to the [plaintiff]'s claim." Id. To determine whether a claim should be dismissed under the TCPA, the court "shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, sec. 27.006, 2011 Tex. Gen. Laws 961, 963 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.006).
In their brief, Appellants make nothing more than a conclusory statement that "Appellee[s] failed to satisfy their initial burden of establishing by a preponderance of the evidence that the Appellants' legal action was based on, relates to, or is in response to appellants' [sic] exercise of the right of free speech, the right to petition, or the right of association." They present no argument why Appellees allegedly did not satisfy their burden establishing the TCPA's applicability. Appellants fail to explain why their defamation suit (which they filed in response to Robbins's Facebook post expressing criticism about Diogu's performance during the May 1, 2018 hearing on Diogu's Petition to Take Depositions under Rule 202 in a different case) was not a legal action based on, related to, or in response to Appellees' exercise of the right of free speech and thus was not within the TCPA's scope. Therefore, Appellants waived their contention that Appellees "lacked standing to invoke [the] TCPA" because "Appellee[s] failed to satisfy their initial burden of establishing" that Appellants' suit is based on, relates to, or is in response to Appellees' exercise of the rights of speech, petition, or association as defined by the TCPA. See Tex. R. App. P. 38.1(i) (appellant's "brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record").
In their second issue under the sub-heading "Right To Petition", Appellants also make the following statements:
Appellants finally contend they have established that even if TCPA applies to [sic] Appellees' cannot invoke TCPA 27[.]003(a) because Appellant's [sic] "actions and communications related to such actions which were undertaken" due to their appearance before the City of Fulshear council meeting and before 240th Judicial District Court arising under" constitutional or statutory Absolute Judicial proceeding immunity. Those type of communication are protected under the TCPA. Because, the TCPA sets out a number of ways in which a communication can be the "exercise of the right to petition." Appellants contend their communications and actions constituted the exercise of the right to petition because they were "in or pertaining to a judicial proceeding," "in connection with an issue under consideration or review by a . . . judicial, or other governmental body," or "reasonably likely to encourage consideration or review of an issue by a . . . judicial, or other governmental body."
Because the Appellants "exercised [their] right to petition" in
this sense by uttering an oral "communication" "pertaining to" a "judicial proceeding (Fulshear City Council meeting and the 240th Judicial District) to which they are cloaked with absolute protection from any form of civil damages, including attorney fees and sanction, even if it survived nonsuit, which it did not.(citations omitted).
As best as we can understand Appellants' statements, it seems they are asserting that Appellees cannot prevail on their TCPA motion to dismiss because Diogu's appearance and "communication" at the Fulshear City Council meeting in March 2018 and at the hearing on May 2018 constituted an exercise of Appellants' right to petition which is protected by the TCPA and prevents Appellees from prevailing on (and even filing) a TCPA motion to dismiss. However, Appellants cite no authority for their apparent assertion. See id. (appellant's "brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"). Nor have we found any authority supporting Appellants' contention.
Accordingly, we overrule Appellants' second issue
III. Immunity
Appellants assert in their third and fourth issues that "the court lacks subject matter jurisdiction to reach the merit[s] of Appellees' claims because Appellees initiated this action post nonsuit, Appellants argue that the TCPA does not waive immunity from suit and liability." Appellants assert the trial court lacked subject matter jurisdiction to award attorney's fees and sanctions against them because they have "[a]bsolute [j]udicial [p]roceeding immunity" and "absolute privilege from civil liability." In sup port of their issues, Appellants state:
Whereas on the face of their petition and evidence, the Appellants had a constitutionally and statutorily protected right of expression - right to Petition, they exercised those rights in a judicial
proceeding, city of Fulshear Council meeting on March 20th, 2018, whereas based on those circumstance[s], the Appellants, were with absolute privilege from civil liability, and simultaneously with a constitutionally protected rights [sic] to file a meritorious lawsuit from demonstrable injury from the Appellees, Facebook posts, it will yield an absurd result for the Appellees, to invoke 27.003(a) motion to dismiss whose purpose is the protection of the Appellants' right to Petition will yield an absurd result. As such there is no other solution but to conclude the appellees failed to satisfy their initial burden of establishing by a preponderance of the evidence that the Appellants' legal action was based on, relates to, or is in response to appellants' exercise of the right of free speech, the right to petition, or the right of association. See CIV. PRAC. & REM. §§ 27.003, 27.005; Dyer [v. Medoc Health Servs., LLC, 573 S.W.3d 418, 429-30 (Tex. App.—Dallas 2019, pet. denied)].We understand Appellants to be asserting that the trial court lacked jurisdiction to award attorney's fees and sanctions under the TCPA against them because they are absolutely protected from such awards by the judicial proceedings privilege. Appellants cite Engelman Irrigation District v. Shields Brothers, Inc., 514 S.W.3d 746, 751 (Tex. 2017), to support their contention that "'Absolute Judicial Proceeding immunity' from suit 'implicates a court's subject-matter jurisdiction' and may 'be raised for the first time on appeal.'"
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Appellants have met their burden and are asking the Court to vacate the Final Judgement [sic] even if it not before and dismiss this appeal. As such, the Court lack [sic] subject matter jurisdiction to reach the merit of the attorney fees and sanction.
We omit a paragraph here because Appellants merely copied language from Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181 (Tex. App.—El Paso 2014, no pet.) that is irrelevant to the resolution of Appellants' third and fourth issues. However, we note that Appellants did not cite to Miller Weisbrod, L.L.P. in their brief to acknowledge the language therein is copied verbatim from that opinion.
However, the supreme court in Engelman did not make the statement Appellants claim in their brief. Instead, the court stated, "we held that sovereign immunity implicated subject-matter jurisdiction and therefore immunity could be raised for the first time on appeal, under the rule that lack of subject-matter jurisdiction can be raised at any time in the proceeding. . . . We did not hold that sovereign immunity equates to a lack of subject-matter jurisdiction for all purposes or that sovereign immunity so implicates subject-matter jurisdiction that it allows collateral attack on a final judgment." Id. Further, Engelman is inapplicable because it focused on whether "sovereign immunity so implicates subject-matter jurisdiction that the final judgment against Engelman can be challenged by collateral attack in a later proceeding." Id. at 752 (emphasis added). Engelman never considered, discussed, or even mentioned the judicial proceedings privilege because it was not an issue in the case. Id. at 747-55. Appellants thus have no authority for their contention that the judicial proceedings privilege implicates a court's subject matter jurisdiction and prevented the trial court from awarding attorney's fees and sanctions against Appellants, nor have we found authority stating so.
We acknowledge that Appellants (in their issue heading) also state that "the court lacks subject matter jurisdiction to reach the merit of Appellees' claims because Appellees initiated this action post nonsuit." However, Appellants incorrectly assert that "Appellees initiated this action post nonsuit" because the record clearly establishes Appellees filed and also argued their TCPA motions to dismiss before Appellants orally nonsuited. Additionally, Appellants advance no argument in their brief regarding their conclusory statement. See Tex. R. App. P. 38.1(i) (appellant's "brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record").
Further, to the extent Appellants are arguing that the judicial proceedings privilege affords them protection from the trial court's award of attorney's fees and sanctions pursuant to the TCPA, we reject that argument.
We note that Appellants have not cited any authority that supports their argument that the judicial proceedings privilege affords them protection from the trial court's attorney's fees and sanctions award against them.
The judicial proceedings privilege is an affirmative defense. Wilkinson v. USAA Fed. Sav. Bank Tr. Servs., No. 14-13-00111-CV, 2014 WL 3002400, at *6 (Tex. App.—Houston [14th Dist.] July 1, 2014, pet. denied) (mem. op.); see also ProPublica, Inc. v. Frazier, No. 01-19-00009-CV, 2020 WL 370563, at *7 (Tex. App.—Houston [1st Dist.] Jan. 23, 2020, pet. filed) (mem. op.). It applies to judges, counsel, and parties, among others. Landry's, Inc. v. Animal Legal Def. Fund, 566 S.W.3d 41, 57 (Tex. App.—Houston [14th Dist.] 2018, pet. denied); Wilkinson, 2014 WL 3002400, at *6. Under the judicial proceedings privilege, any statement made in the due course of or in serious contemplation of a judicial or quasi-judicial proceeding is absolutely privileged and cannot serve as the basis for a defamation lawsuit. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 487 (Tex. 2015) (Green, J. dissenting); Shell Oil Co. v. Writt, 464 S.W.3d 650, 654-55 (Tex. 2015); James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982) (per curiam); Landry's, Inc., 566 S.W.3d at 57.
Thus, the privilege provides the defendant with a defense against the plaintiff's defamation suit that is based on communications made in the course of a judicial or quasi-judicial proceeding; the judicial proceedings privilege does not provide protection to the plaintiff who brought the defamation suit. Therefore, even accepting Appellants' apparent (but erroneous) assertion that their defamation suit is based on statements Diogu made at the Fulshear City Council meeting and that the council meeting was a judicial proceeding, Appellants cannot claim the judicial proceedings privilege because the privilege protects the party against whom the defamation suit (based on communications made in the course of a judicial or quasi-judicial proceeding) is brought. Appellants as the plaintiffs in this defamation suit cannot assert the judicial proceedings privilege and avoid the sanctions and attorney's fees the trial court awarded against them as provided by the TCPA after the court granted Appellees' TCPA motions to dismiss Appellants' defamation suit.
Accordingly, we overrule Appellants' third and fourth issues.
IV. Relief under the TCPA
In their fifth issue, "[A]ppellants argue that the trial court erred in denying their [TCPA] motion to dismiss and failing to award attorney's fees, costs, and sanctions against the Appellees and the Texas Rule of Civil Procedure Rule 18(a)(h) is not exempted from the TCPA." In that regard, Appellants state in their brief:
The TCPA permits a party to file a motion to dismiss a "legal action" if the action "is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association." . . . The Appellees argue that a Texas Rule of Civil Procedure Rule 18(a)(h) is not a 'legal action' and that, as a result, dismissal under the TCPA is not available. And, according to the state, applying the TCPA's dismissal and cost provisions to the Texas Rule of Civil Procedure Rule 18(a)(h action is inconsistent with the TCPA's language and purpose.(citations omitted).
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Clearly, Appellants have shown that Texas Rule of Civil Procedure Rule 18(a)(h) is a legal action under the act. Then the burden shifts to the non-movant to establish by clear and specific evidence a prima facie case for each essential element of its claims. The record shows that the Appellee[s] made no such showing. Even if they did, movant would have prevailed by showing the trial court must still dismiss the claim if the movant "establishes by a preponderance of the evidence each essential element of a valid defense to the [non-movant's] claim. Here the Movants are entitled to both Judicial proceeding immunity and Attorney privilege immunity.
We understand Appellants to be complaining that the trial court denied their TCPA motion to dismiss (which they allegedly asserted in response to Appellees' request that Appellants be sanctioned under Texas Rule of Civil Procedure 18a(h) for filing a baseless motion to disqualify Judges Shoemake and Brown) because (1) Appellants have shown that Appellees' request to sanction Appellants for filing a baseless motion to disqualify constitutes a legal action under the TCPA; (2) Appellees failed to present evidence to establish their legal action; and (3) even if Appellees could establish their legal action, Appellants should prevail on their TCPA motion because they are protected by the judicial proceedings privilege and attorney immunity. We reject Appellants' complaint.
Appellants have not provided us with a record cite to a written TCPA motion to dismiss, and we have searched the entire record but have not found such a motion filed by Appellants. However, from the following statements Appellants made in the facts section of their brief, it appears they claim that they made an oral TCPA motion to dismiss during the December 4, 2018 hearing on Diogu Law Firm's motion to disqualify Judges Shoemake and Brown: "During that Oral Hearing, the Appellant invoked TCPA Section 27.003(a) motion to dismiss. The motion was tried by consent without objection by the Appellees."
The motion to recuse was only filed by Diogu Law Firm.
Appellants' contention is not supported by the record. We have reviewed the transcript of the December 4, 2018 hearing on the motion to disqualify and Appellants neither orally made a TCPA motion to dismiss nor was such a motion tried by consent. No written TCPA petition or motion to dismiss was filed by the Appellants. The trial court cannot possibly err in denying a non-existent motion or relief on a petition that is not found in the record. Therefore, we conclude that the trial court committed no error.
Additionally, because Appellants never filed or orally made a TCPA motion to dismiss and the trial court committed no error, we need not address Appellants' contentions that (1) Appellees' request to sanction Appellants for filing a baseless motion to disqualify constitutes a legal action under the TCPA; (2) Appellees failed to present evidence to establish their legal action; and (3) Appellants should prevail on their TCPA motion because they are protected by the judicial proceedings privilege and attorney immunity.
Accordingly, we overrule Appellants' fifth issue.
CONCLUSION
We affirm the trial court's judgment.
In light of our disposition, we deny Appellants' "Emergency Motion to Dismiss this Appeal Declare the Underlying Orders, Judgment and Abstract of Judg[]ment Void and Dismiss Appeal for Lack of Jurisdiction" taken with the case.
/s/ Meagan Hassan
Justice Panel consists of Justices Zimmerer, Spain, and Hassan.