KAREN MISKO, Appellant V. TRACY JOHNS, Appellee
No. 05-18-00487-CV
Court of Appeals Fifth District of Texas at Dallas
May 1, 2019
Opinion by Justice Molberg
On Aрpeal from the 429th Judicial District Court, Collin County, Texas, Trial Court Cause No. 429-01844-2013
OPINION
Before Justices Whitehill, Molberg, and Reichek
Opinion by Justice Molberg
The Texas Citizens Participation Act,
However, based on the broad definitions in the statute, parties have sought to apply the protections of the TCPA to an increasing range of situations that do not further this purpose,
This appeal is the second interlocutory appeal in this case concеrning an order denying dismissal under the TCPA. In the first appeal, we determined the trial court did not err by denying Tracy Johns’ TCPA motion to dismiss Karen Misko‘s substantive claims. See Backes v. Misko, 486 S.W.3d 7 (Tex. App.—Dallas 2015, pet. denied). In this second appeal, Misko, attempting to stretch the applicability of the TCPA beyond the substantive claims at issue, contends thе trial court erred by denying a TCPA motion to dismiss a motion for sanctions filed by Johns based on Misko‘s conduct during the course of litigation.
We conclude the definition of “legal action” in the TCPA does not encompass a motion for sanctions alleging discovery abuse by a party that is filеd after, and in this case years after, the commencement of litigation. Further, construing the TCPA to apply to such a motion would open the floodgates to serial motions to dismiss during the pendency of litigation based on conduct ancillary to the substantive claims in the case. Accordingly, we affirm the trial court‘s denial of Misko‘s motion to dismiss.
Background
On May 9, 2013, Jane Backes sued Misko for tortious interference with prospective business relations and invasion of privacy. That same day, Johns filed a petition in intervention
Backes and Johns filed motions to dismiss Misko‘s claims pursuant to the TCPA. The trial court denied the motions to dismiss, and Backes and Johns filed an interlocutory appeal. We affirmed the trial court‘s denial of Johns’ motion, but reversed its denial of Backes’ motion and rendered judgment dismissing Misko‘s claims аgainst Backes. See Backes, 486 S.W.3d at 29.1
On remand, Johns began conducting discovery into Misko‘s substantive claims and damages. Johns filed numerous motions complaining Misko was not adequately complying with the discovery requests and asserting Misko had improperly designated expert witnesses and failed to produce documents relied upon by the designated experts. The discovery disputes culminated in a motion for sanctions filed by Johns on March 14, 2018. In the motion, Johns alleged Misko had used false evidence (suborned perjury) and made fraudulent filings in the case. Johns specifically asserted Misko (1) had induced a fact witness to sign a false affidavit and used that affidavit, as well as a false and misleading affidavit from an expert witness, to defeat Johns’ motion to dismiss; (2) fraudulently designated two individuals as expert witnesses; and (3) “duped” the trial court into making rulings based on the assumption thаt the designated individuals had relevant records. Johns requested that, pursuant to
Misko‘s motion to dismiss and Johns’ motion for sanctions were set to be heard on the same day. After the trial court denied the motion to dismiss, Misko immediately filed a notice of interlocutory appeal, staying all proceedings in the trial court including Johns’ motion for sanctions. See
Applicable Law and Standard of Review
Under the TCPA, a party may file a motion to dismiss a “legal action” that is based on, related to, or in response to the party‘s exercise of the right of free speech, right to petition, or right of association.
“[T]he Legislature has provided a two-step procedure to expedite the dismissal of claims brought to intimidate or to silence a defendant‘s exercise of [the] First Amendment Rights” protected by the statute. ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam); see also Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018) (noting protection of TCPA “comes in the form of a spеcial motion to dismiss, subject to expedited review, for ‘any suit that appears to stifle the defendant‘s’ exercise of those rights” (quoting In re Lipsky, 460 S.W.3d
Whether the TCPA applies to Johns’ motion for sanctions is an issue of statutory interpretation that we review de novo. See Youngkin, 546 S.W.3d at 680. We construe the TCPA “liberally to effectuate its purpose and intent fully.”
In conducting our review, we consider both the specific statutory language at issue and the statute as a whole. In re Office of Att‘y Gen., 422 S.W.3d 623, 629 (Tex. 2013) (orig. proceeding); see also Youngkin, 546 S.W.3d at 680 (“[L]egislative intent derives from an act as a whole rather than from isolatеd portions of it.“). We endeavor to read the statute contextually, giving effect to every word, clause, and sentence. In re Office of Att‘y Gen., 422 S.W.3d at 629; see also Norman, 342 S.W.3d at 58 (noting courts should “never” apply requirement that Legislature clearly and unambiguously express its intent to waive immunity “mechanically to defeat the law‘s рurpose or the Legislature‘s intent“).
We apply the statute‘s words according to their plain and common meaning, “unless a contrary intention is apparent from the context, or unless such a construction leads to absurd
Analysis
The TCPA defines a “legal action” as “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.”
The definition of “legal action” in the TCPA “appears to enсompass any ‘procedural vehicle for the vindication of a legal claim,‘” Harper, 562 S.W.3d at 8 (quoting Paulsen, 537 S.W.3d at 233). However, the catch-all provision of the statutory definition “functions primarily as a safeguard against creative re-pleading of what are substantively lawsuits, causes of action, petitions, complaints, counterclaims, or cross-claims so as to avoid the TCPA‘s dismissal mechanisms” and, when viewed in light of the purpose of the TCPA, must be given a “somewhat restrictive application.” Dow Jones & Co., 564 S.W.3d at 857. Based on this limited application, we concluded in Dow Jones that a subpoena seeking discovery from a third party is not a legal action undеr the TCPA because:
Were we to conclude the TCPA applies to third-party discovery, the proliferation of motions to dismiss attacking discovery requests, as opposed to the underlying lawsuit and substantive claims that are the TCPA‘s core focus, would result in application оf the TCPA that strays from—and, indeed, undermines through cost
and delay—its manifest purpose to secure quick and inexpensive dismissal of meritless “legal actions” that threaten expressive freedoms. The TCPA was designed to reduce meritless litigation, not multiply it. To construe the TCPA to allow a free standing dismissal procedure with its attendant stay, appeal, and an award of attorney‘s fees every time discovery implicates or touches on the speech of a non-party, would cause the judicial system to grind to a halt and run counter to the TCPA‘s stated purpose, and promote a potentially absurd result.
Id. at 858 (internal citations omitted).
That same reasoning applies here. Johns’ motion for sanctions is based solely on Misko‘s alleged discovery misconduct during the course of this litigation, not on any of Misko‘s substantive claims.3 The denial of Misko‘s motion to dismiss Johns’ motion for sanctions has led to this second interlocutory appeal, causing the resolution of Misko‘s substantive claims to “grind to a halt” and multiplying the litigation surrounding those substantive claims. On this record, we cannot conclude the Legislature intended that a motion based on conduct within litigatiоn that is ancillary to the substantive claims in the case, such as Johns’ motion for sanctions, should fall within the catch-all provision of “other judicial pleading or filing.”4
In reaching this conclusion, we are unpersuaded that Hawxhurst v. Austin‘s Boat Tours, 550 S.W.3d 220 (Tex. App.—Austin 2018, no pet.), upon which Misko relies, mandates a different result. In Hawxhurst, the plaintiff sued for gross negligence, negligence, and breach of contract for damages to his boat arising from аn incident on Lake Travis. Id. at 223. The defendant responded with a counterclaim for sanctions under
Even if we assume Hawxhurst was decided correctly, the motion for sanctions in that case was filed in response to the plaintiff‘s petition and attacked the plaintiff‘s substantive claims. We do not read Hawxhurst to stand for the proposition that each individual filing within pending litigation that is ancillary to the substantive claims at issue constitutes a separate “legal action” for purposes of the TCPA.5
On this record, we conclude that Misko failed to carry her initial burden of showing the TCPA applies to Johns’ motion for sanctions. Accordingly, the trial court did not err by denying Misko‘s motion to dismiss pursuant to the TCPA. We resolve Misko‘s sole issue against her and affirm the trial court‘s order.
180487F.P05
/Ken Molberg/
KEN MOLBERG
JUSTICE
JUDGMENT
KAREN MISKO, Appellant
No. 05-18-00487-CV V.
TRACY JOHNS, Appellee
On Appeal from the 429th Judicial District Court, Collin County, Texas, Trial Court Cаuse No. 429-01844-2013. Opinion delivered by Justice Molberg, Justices Whitehill and Reichek participating.
In accordance with this Court‘s opinion of this date, the trial court‘s May 14, 2018 order denying appellant Karen Misko‘s motion to dismiss pursuant to the Texas Citizens Participation Act is AFFIRMED.
It is ORDERED that appellеe Tracy Johns recover her costs of this appeal from appellant Karen Misko.
Judgment entered this 1st day of May, 2019.