Opinion
No. 05-17-00680-CV
08-28-2018
KENNETH W. MORRISON AND STONECOAT OF TEXAS L.L.C., Appellants v. JOHN D. PROFANCHIK, SR., AND PROCAL STONE DESIGN L.L.C., Appellees
On Appeal from the 68th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-16-15721
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Lang
In this interlocutory appeal, Kenneth W. Morrison and Stonecoat of Texas L.L.C. appeal the trial court's order denying their motion to dismiss with prejudice the lawsuit brought by John D. Profanchik, Sr., and Procal Stone Design L.L.C. and seeking damages, costs, and attorneys' fees. Morrison and Stonecoat raise two issues on appeal arguing the trial court erred when it denied their: (1) motion for damages, costs and attorneys' fees (motion to impose sanctions) under Chapters 9 and 10 of the Texas Civil Practice and Remedies Code and Rule 13 of the Texas Rules of Civil Procedure; and (2) motion to dismiss Profanchik and Procal's defamation claims under Chapter 27 of the Texas Civil Practice and Remedies Code, which is referred to as the Texas Citizens Participation Act. We conclude that we do not have interlocutory jurisdiction over the portion of the trail court's order denying Morrison and Stonecoat's motion to impose sanctions. Also, we conclude Morrison and Stonecoat have not challenged on appeal all grounds on which the trial court could have denied their motion to dismiss under the Texas Citizens Participation Act. We dismiss for want of jurisdiction the portion of the appeal challenging the trial court's order to the extent it denies Morrison and Stonecoat's motion to impose sanctions. We affirm the trial court's order to the extent it denies Morrison and Stonecoat's motion to dismiss under the Texas Citizens Participation Act.
See Citizens Participation Act, 82nd Leg. R.S., ch. 341, §§ 1-2, 2011 Tex. Gen. Laws 961, 961-64 (codified at TEX. CIV. PRAC. & REM. CODE ANN. § 27.001-27.011) (section one states, "This Act may be cited as the Texas Citizens Participation Act."). Also, the Texas Citizens Participation Act is sometimes referred to as an anti-SLAPP law-the acronym standing for strategic lawsuit against public participation. KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 713 n.6 (Tex. 2016).
I. PROCEDURAL CONTEXT
On December 8, 2016, Profanchik filed suit against Morrison and Stonecoat alleging claims for defamation. On January 3, 2017, Morrison and Stonecoat answered the lawsuit, generally denying the allegations and asserting several affirmative defenses. Also, on January 3, 2017, Morrison and Stonecoat filed a motion to transfer venue because there were two related suits already filed in the Collin County District Court: (1) cause no. 416-02057-2015, which was filed by Profanchik, individually, against Morrison and Stonecoat; and (2) cause no. 296-05415-2016, which was filed by Procal against Morrison and Stonecoat. On January 10, 2017, Profanchik filed his first amended petition and Procal filed a plea intervention, alleging claims for: (1) defamation; (2) business disparagement; and (3) violations of the Texas Deceptive Trade Practices Act-Consumer Protection Act (DTPA).
Procal's Collin County lawsuit (cause no. 296-05415-2016) is also before this Court on interlocutory appeal in appellate cause no. 05-17-00696-CV.
TEX. BUS. & COM. CODE ANN. § 17.41 (West 2011) (this subchapter may be cited as the Deceptive Trade Practices-Consumer Protection Act).
On February 8, 2017, Morrison and Stonecoat filed a motion to dismiss with prejudice and to impose sanctions. That motion sought two things: (1) dismissal of Profanchik's and Procal's claims for defamation under the Texas Citizens Participation Act; and (2) the imposition of sanctions under Chapters 9 and 10 of the Civil Practice and Remedies Code, and Rule 13 of the Texas Rules of Civil Procedure. On March 22, 2017, the trial court signed an order granting Morrison and Stonecoat's motion to transfer venue. On March 24, 2017, Profanchik and Procal filed a motion to reconsider the motion to transfer venue, which the trial court granted on April 17, 2017.
On June 5, 2017, Profanchik and Procal filed their response to the motion to dismiss and motion to impose sanctions raising, in part, seven independent grounds they claimed were a basis on which the trial court should deny the motion to dismiss. On June 12, 2018, the trial court held a hearing on Morrison and Stonecoat's motion to dismiss and motion to impose sanctions and signed an order to that effect on the same day.
II. FRIVOLOUS LAWSUIT AND SANCTIONS
In issue one, Morrison and Stonecoat argue the trial court erred when it denied their motion to impose sanctions under Chapters 9 and 10 the Texas Civil Practice and Remedies Code and Texas Rule of Civil Procedure 13. They claim the trial court should have granted their motion to impose sanctions because there is "no basis in fact to support any pleading filed contending that Morrison or Stonecoat published any of the defamatory statements." Profanchik and Procal respond that "the trial court did not abuse its discretion in denying [Morrison and Stonecoat's] [motion to impose sanctions], as there is substantial evidence of [Morrison and Stonecoat's] liability and the parties have not yet even engaged in full discovery."
Generally, appellate courts only have jurisdiction over final judgments. See, e.g., CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). Appellate courts strictly apply statutes granting interlocutory appeals because they are a narrow exception to the general rule that interlocutory orders are not immediately appealable. See, e.g., CMH Homes, 340 S.W.3d at 447; Tex. A&M Univer. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007); see also TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West Supp. 2017) (statutory list of appealable interlocutory orders). An order denying a motion to impose sanctions is neither a final judgment nor an interlocutory order permitted by statute to be appealed. See Langston v. Freese & Goss L.L.P., No. 05-15-00458-CV, 2015 WL 5813392, at *1 (Tex. App.—Dallas Oct. 6, 2015, no pet.) (mem. op.); see also Johnson v. Volberding, No. 12-17-00112-CV, 2017 WL 2265682, at *1 (Tex. App.—Tyler May 24, 2017, no pet.) (mem. op.); Manning v. Enbridge Pipelines (E. Tex.) L.P., 345 S.W.3d 718, 729 (Tex. App.—Beaumont 2011, pet. denied).
We dismiss for want of jurisdiction Morrison and Stonecoat's interlocutory appeal of the portion of the trial court's order that denies their motion to impose sanctions under Chapters 9 and 10 the Texas Civil Practice and Remedies Code and Texas Rule of Civil Procedure 13.
III. MOTION TO DISMISS
In issue two, Morrison and Stonecoat argue the trial court erred when it denied their motion to dismiss Profanchik's and Procal's defamation claims under the Texas Citizens Participation Act. They contend that: (1) Profanchik and Procal failed to produce clear and specific evidence to support each element of their defamation claims; (2) the decision of the Collin County district court has no bearing on their motion to dismiss in this case; (3) Profanchik and Procal failed to establish that the alleged defamatory statements were published; (4) the commercial speech exception does not apply; and (5) the allegedly defamatory statements involve matters of public concern, so they are communications protected by free speech and the right of association.
In their first amended petition, Profanchik and Procal brought claims against Morrison and Stonecoat for defamation, business disparagement, and violations of the DTPA. In their written motion to dismiss, Morrison and Stonecoat addressed only the defamation claims. In Profanchik and Procal's response to the motion to dismiss, they argued they had clear and specific evidence for all three of their claims. During the hearing in the trial court, Morrison and Stonecoat addressed the defamation and business disparagement claims, but not the claims for violations of the DTPA. However, in Morrison and Stonecoat's brief on appeal, they only discuss the defamation claims. Accordingly, Profanchik's and Procal's claims for business disparagement and violations of the DTPA are not before us on appeal.
During the hearing on Morrison and Stonecoat's motion to dismiss, they stated, "this doesn't involve the right of association . . . or the right of petition, which would be a petition to the government. But it does involve the right of free speech." Accordingly, we will not consider the merits of Morrison and Stonecoat's issue with respect to the right of association theory. See Combined Law Enforcement Ass'ns of Tex. v. Sheffield, No. 03-13-00105-CV, 2014 WL 411672, at *4 (Tex. App.—Austin Jan. 31, 2014, pet. denied) (mem. op.) (concluding that where appellants cited only "right of association" in their motions to dismiss, trial court's rejection of that theory was only one of three rights protected under TCPA that was preserved for review); see also Lahijani v. Melifera Partners, LLC, No. 01-14-01025-CV, 2015 WL 6692197, at *3 (Tex. App.—Houston [1st Dist.] Nov. 3, 2015, no pet.) (mem. op.) (noting appellants argued in motion to dismiss only that statements were made in connection with matter of public concern because statements related to "service in the marketplace" so that is only theory preserved for appellate review).
In general, an appellate court must affirm a trial court's judgment if an appellant does not challenge all independent bases or grounds that fully support a complained-of ruling or judgment. See, e.g., Cardwell v. Gurley, No. 05-09-01068-CV, 2018 WL 3454800, at *5 (Tex. App.—Dallas July 18, 2018, no pet. h.) (mem. op.); LandAmercia Commonwealth Title Co. v. Wido, No. 05-14-00036-CV, 2015 WL 6545685, at *9 (Tex. App.—Dallas Oct. 29, 2015, no pet.) (mem. op.); Blackstone Med., Inc. v. Phoenix Surgicals L.L.C., 470 S.W.3d 636, 648 (Tex. App.—Dallas 2015, no pet.); Creech v. Columbia Med. Ctr. of Las Colinas Subsidiary L.P., 411 S.W.3d 1, 6 (Tex. App.—Dallas 2013, no pet.); Oliphant Fin. L.L.C. v. Angiano, 295 S.W.3d 422, 423-24 (Tex. App.—Dallas 2009, no pet.). If an appellant fails to assign error to an independent ground that fully supports the complained-of ruling or judgment, an appellate court must accept the validity of that ground, rendering harmless any error in the grounds challenged on appeal. See, e.g., Cardwell, 2018 WL 3454800, at *5; Oliphant Fin., 295 S.W.3d at 423-24; see also Kasper v. Meadowood Ranch Estates, Inc. Property Owners Ass'n, No. 05-07-00982-CV, 2008 WL 3579379, at *2 (Tex. App.—Dallas Aug. 15, 2008, no pet.) (mem. op.) (if summary judgment granted, whether properly or improperly, on ground not challenged on appeal, judgment must be affirmed).
In Profanchik and Procal's response to the motion to dismiss they raised seven independent grounds on which they contended the trial court should deny Morrison and Stonecoat's motion to dismiss: (1) the application of principles of equity, res judicata, collateral estoppel because the Collin County district court case already denied an identical motion based on the exact same facts and causes of action; (2) Morrison and Stonecoat cannot invoke the Texas Citizens Participation Act because they claim they did not make the defamatory statements; (3) the Collin County District Court already ruled the commercial speech exception applied; (4) the right of free speech does not protect defamatory statements; (5) Morrison and Stonecoat have failed to meet their burden because their motion to dismiss "offers nothing more than conclusions without evidence"; (6) Profanchik and Procal have clear and specific evidence establishing a prima facie case on their claims for defamation, business disparagement, and violations of the DTPA; and (7) the trial court should not consider Morrison and Stonecoat's affirmative defenses and even if it did so, those affirmative defenses fail as a matter of law. However, Morrison and Stonecoat fail to assign error to all of these independents grounds.
First, in their response to the motion to dismiss filed in the trial court, Profanchik and Procal argued the trial court should deny Morrison and Stonecoat's motion to dismiss because: (1) equity, res judicata, collateral estoppel apply as the Collin County district court already denied an identical motion based on the exact same facts and causes of action; and (2) the Collin County District Court already ruled the commercial speech exception applied. On appeal, as to these grounds, Morrison and Stonecoat argue with respect to the Collin County district court's ruling as follows:
b. The decision by District Judge Roach in Collin County has no bearing.
While it is correct that [the Collin County district court] did not grant Morrison's motion to dismiss in the Collin County lawsuit, the reasons why [the Collin County district court] did not grant the motion are not clear. The lawsuit in Collin County had already been non-suited by Procal and Procal had already intervened in this action in Dallas County. Nothing can be determined regarding the reasons why [the Collin County district court] determined not to grant the motion to dismiss and the arguments of the Profanchik in his June 5, 2017 Response were mere speculation regarding the conclusions and reasons for [the Collin County district court's] decision. The order of [the Collin County district court] from the Collin County defamation action has been appealed to this court and is a companion case to this case which will be heard by the same panel of this court. The [trial] court's
reliance on the decision of the Collin County defamation district court is misplaced and is no justification for denying Morrison's motion to dismiss under Chapter 27.[Italics added.]
We note that only the italicized section heading and one sentence in the above-quoted appellate argument addressed Profanchik and Procal's equity, res judicata, and collateral estoppel arguments presented to the trial court as a basis for denying Morrison and Stonecoat's motion to dismiss. Also, to the extent the paragraph addresses any of Profanchik and Procal's contentions with respect to the effect of the Collin County district court's ruling, we note that Morrison and Stonecoat do not provide any citations to authority or the record to support their appellate argument. See TEX. R. APP. P. 38.1(i) (brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and to record); see also Kasper, 2008 WL 3579379, at *2 (appellant must do more than merely assert an issue or list of issues broad enough to cover all possible summary judgment grounds).
Second, in their response to the motion to dismiss, Profanchik and Procal argued the trial court should deny Morrison and Stonecoat's motion to dismiss because Morrison and Stonecoat claimed they did not make the defamatory statements, so they cannot invoke the Texas Citizens Participation Act. On appeal, Morrison and Stonecoat do not challenge or address this basis for the trial court's ruling.
Because Morrison and Stonecoat fail to challenge all grounds on which the trial court could have denied their motion to dismiss, we must accept the validity of the unchallenged grounds and affirm the order. See e.g., Cardwell, 2018 WL 3454800, at *5; Oliphant Fin., 295 S.W.3d at 423-24; see also Kasper, 2008 WL 3579379, at *2 (if summary judgment granted, whether properly or improperly, on ground not challenged on appeal, judgment must be affirmed). Issue two is decided against Morrison and Stonecoat.
We express no opinion as to the merits of the unchallenged grounds.
IV. CONCLUSION
This Court does not have interlocutory jurisdiction over the portion of the trail court's order denying Morrison and Stonecoat's motion to impose sanctions. Also, Morrison and Stonecoat have not challenged on appeal all grounds on which the trial court could have denied their motion to dismiss under the Texas Citizens Participation Act.
We dismiss for want of jurisdiction the portion of the appeal to the extent it challenges the trial court's order denying Morrison and Stonecoat's motion to impose sanctions. We affirm the trial court's order to the extent it denies Morrison and Stonecoat's motion dismiss under the Texas Citizens Participation Act.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE 170680F.P05
JUDGMENT
On Appeal from the 68th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-16-15721.
Opinion delivered by Justice Lang. Justices Brown and Whitehill participating.
In accordance with this Court's opinion of this date, the portion of the trial court's order denying appellants KENNETH W. MORRISON AND STONECOAT OF TEXAS L.L.C.'s motion for damages, costs, and attorneys' fees is DISMISSED for want of jurisdiction. The trial court's order to the extent it denies appellants KENNETH W. MORRISON AND STONECOAT OF TEXAS L.L.C.'s motion to dismiss is AFFIRMED.
It is ORDERED that appellees JOHN D. PROFANCHIK, SR., and PROCAL STONE DESIGN L.L.C. recover their costs of this appeal from appellants KENNETH W. MORRISON AND STONECOAT OF TEXAS L.L.C. Judgment entered this 28th day of August, 2018.