Allison Publications, LLC v. Doe

• Decision Date: 18 August 2022
• Docket Number: 02-21-00330-CV
• Citation: 654 S.W.3d 210
• Parties: ALLISON PUBLICATIONS, LLC, Appellant and Appellee v. Jane DOE, Appellee and Appellant
• Court: Texas Court of Appeals

654 S.W.3d 210

ALLISON PUBLICATIONS, LLC, Appellant and Appellee

v.Jane DOE, Appellee and Appellant

No. 02-21-00330-CV

Court of Appeals of Texas, Fort Worth.

Delivered: August 18, 2022

Rehearing Denied October 13, 2022

ATTORNEYS FOR APPELLANT/APPELLEE: JASON P. BLOOM, HAYNES AND BOONE, LLP, DALLAS, TEXAS, THOMAS J. WILLIAMS, CHRISTOPHER R. KNIGHT, CHRISSY H. LONG, HAYNES AND BOONE, LLP, FORT WORTH, TEXAS.

ATTORNEYS FOR APPELLEE/APPELLANT: TONY K. MCDONALD, GARRETT MCMILLAN, THE LAW OFFICES OF TONY MCDONALD, LEANDER, TEXAS.

Before Birdwell and Walker, JJ., and Gonzalez, J.¹

Opinion by Justice Walker

I. INTRODUCTION

Appellant Allison Publications, LLC (Allison) appeals the trial court's granting of Appellee Jane Doe's motion to dismiss brought pursuant to the Texas Citizens Protection Act (TCPA). Despite Doe proceeding under complete anonymity, she was awarded dismissal with prejudice, attorney's fees, $10,000 in sanctions, and costs of court. In four issues, Allison complains that the trial court erred because (1) Texas law does not allow a trial court to grant affirmative relief to a completely anonymous party, (2) the TCPA did not apply to this case, (3) the record and the TCPA did not support the award of sanctions and attorney's fees, and (4) the trial court should have granted Allison's motions for discovery that sought Doe's name and other identifying information. In a cross-appeal, Doe contends that the trial court (1) improperly dismissed as moot her Rule 91a motion to dismiss—which she filed in addition to her TCPA motion—and (2) miscalculated her award of attorney's fees.

Because the trial court's subject matter jurisdiction had not been established to permit its entrance of a final judgment on Doe's TCPA motion to dismiss, we will reverse the trial court's judgment in its entirety and remand for further proceedings consistent with this opinion. See Tex. R. App. P. 43.2(d), 43.3(a).

II. BACKGROUND

A. FACTUAL BACKGROUND

Allison publishes regional and specialty publications in Texas, such as D Magazine. According to Allison, in April 2021, three of its advertisers received phone calls from a person who identified herself as a journalist named "Maya" or "Maya Pembledon." The caller allegedly told the advertisers that Allison is a racist publisher and encouraged them to cease advertising with Allison. The advertisers expressed concerns to Allison after receiving the calls, and at least one decided not to renew its advertising contract with Allison.

Allison learned that the calls had been made using one or more VoIP phone numbers, which are internet-based numbers that are difficult to trace and, thus, help maintain the anonymity of the caller. To independently "identify [the caller] and to provide her with accurate information—and to remediate the reputational and relational damage her calls caused," Allison placed numerous calls to these VoIP numbers that were not answered or returned. Allison also employed an attorney and a private investigator to attempt to identify the caller, but its efforts proved unsuccessful.

B. PROCEDURAL BACKGROUND

Allison sued "Jane Doe" on June 7, 2021, for business disparagement and sought to subpoena the records of Bandwidth.com, a wholesaler of VoIP numbers that owned the number used by Doe to call Allison's advertisers. Bandwidth.com notified Allison that it did not have access to Doe's identity because it had sold the right to use Doe's VoIP number to another entity called Pinger, Inc.

On June 29, 2021, someone declaring to be the "Jane Doe" named in the petition filed a special appearance² and a motion to dismiss under section 27.003 of the TCPA. Within and subject to the special appearance, Doe also pleaded a general denial. All were filed anonymously and without any identifying information. Instead, they attached a "Declaration of Jane Doe"—bearing the signature "Jane Doe"—through which she asserted the need to preserve her anonymity to protect against "reprisals" such as Allison's lawsuit and to allow her reporting to "stand on its own." Doe claimed to be a journalist who sought information from certain of Allison's advertisers for a project investigating an alleged lack of diversity and inclusion of racial minorities at publications located in major U.S. cities.

In her TCPA motion,³ Doe argued that dismissal was appropriate because (1) Allison's petition had not established a prima facie case for business disparagement and (2) Doe had established an affirmative defense under Section 73.055 of the Defamation Mitigation Act (DMA) because Allison failed to serve upon Doe a timely request for correction, clarification, or retraction. Doe also sought attorney's fees and sanctions as allowed under the TCPA.

In response, Allison filed two motions: (1) a motion for the court to order Doe to provide identifying information pursuant to the pleading requirements of Sections 30.014 and 30.015 of the Texas Civil Practice and Remedies Code and (2) a motion for limited discovery under TCPA section 27.006 seeking to subpoena Pinger, Inc.’s records and to issue written discovery requests to Doe or to depose Doe. Allison claimed that good cause existed for the court to grant its second motion because the requested information—including Doe's identity—was needed to defend against Doe's TCPA motion to dismiss and to support the elements of its business disparagement claim. The trial court denied both of Allison's motions.

Doe then filed a Rule 91a motion to dismiss, arguing that Allison had failed to plead with sufficient specificity which of Doe's statements were defamatory and that the statement that Allison was "racist" was not capable of a defamatory meaning. Doe also reasserted that dismissal was required under Section 73.055 of the DMA.

In its final judgment, the trial court granted Doe's TCPA motion, awarding her $10,650 in attorneys’ fees and $10,000 in sanctions. It further ordered that "to preserve the anonymity of [Doe], all payments of this judgment shall be made to The Law Offices of Tony McDonald Client Trust Account to be held in trust by The Law Offices of Tony McDonald for the benefit of [Doe]." The judgment also denied her Rule 91a motion to dismiss as "moot." Allison appealed, and Doe cross-appealed the denial of her Rule 91a motion and the trial court's award of attorneys’ fees.

Doe's identity remains unknown to this court, the trial court, Allison, and even Doe's own attorney.⁴

III. DOE'S EXTRAORDINARY RELIEF

With its first issue, Allison asks if the trial court erred by awarding affirmative relief to the unidentified Doe. We will answer yes, because the trial court's subject matter jurisdiction had not been established to entertain Doe's TCPA motion.

Invoking the anonymous speech protections of the First Amendment, Doe attempts to pave a road for recovery that, in our view, has never been paved in the history of American jurisprudence: whereby a wholly unidentified, unnamed person may invoke a court's authority to obtain affirmative, merits-based, and dispositive relief against another litigant. See Gaskamp v. WSP USA, Inc. , 596 S.W.3d 457, 467 (Tex. App.—Houston [1st Dist.] 2020, pet. dism'd) ("[A] motion to dismiss under the TCPA constitutes a claim for affirmative relief ...."); Buzbee v. Clear Channel Outdoor , LLC , 616 S.W.3d 14, 22 (Tex. App.—Houston [14th Dist.] 2020, no pet.) ("[A] dismissal under the TCPA is a judgment on the merits and carries res judicata implications."); Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs. , 500 S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (same).

A. COURTS RECOGNIZE LIMITED RIGHT TO PROCEED PSEUDONYMOUSLY BUT NOT IN COMPLETE ANONYMITY

Doe contends that her request is well-founded because courts across the nation routinely recognize a litigant's right to seek affirmative relief "pseudonymously." She directs us to sixteen such cases,⁵ each decided in various non-Texas state and federal jurisdictions. Then, quoting law professor Eugene Volokh, Doe emphasizes that plaintiffs are often permitted to proceed pseudonymously if "the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity." Eugene Volokh, The Law of Pseudonymous Litigation , 73 Hastings L.J. (Jan. 13, 2021 draft) (manuscript at 42), https://www2.law.ucla.edu/volokh/pseudonym.pdf (internal quotations omitted). This, Doe argues, is precisely the situation in which she finds herself: defending against an infringement upon her right to First Amendment anonymous speech, the loss of which would be the exact injury incurred if her identity was disclosed.

But Doe's argument and the authority on which it relies are irrelevant to our case—chiefly because Doe conflates judicially-facilitated pseudonymity with total anonymity. Each of the sixteen cases cited by Doe involved a pseudonymous party whose name and identity were known to the trial court and also to the opposing party; the litigants merely disputed whether that party's real name should be revealed to the public generally. See, e.g. , City of N.Y. , 15 F.3d at 265 (holding that employee had right to keep private from public disclosure his HIV-positive status); Utah Dep't of Com. , 2017 WL 963203, at *2 (granting intervenors’ motion to proceed using pseudonyms because they had a right to keep private from public disclosure their prescriptions and medical conditions); M.J. , 2011 WL 4031099, at *1–3 (granting plaintiffs’ motion to proceed using pseudonyms because they had a right to keep private from public disclosure their juvenile criminal records).

We fail to see how these cases are instructive for deciding how to proceed with the wholly-unknown Doe. To the contrary, we have neither discovered nor been directed to any cases—in any jurisdiction—that stand for the proposition that a person unknown to the trial court, the opposing party, and her own attorney can proceed and be awarded the type of relief obtained here by Doe.

B. TEXAS LAW DOES NOT CONTEMPLATE...