Hawxhurst v. Austin's Boat Tours
Decision Date | 22 March 2018 |
Docket Number | NO. 03-17-00288-CV,03-17-00288-CV |
Citation | 550 S.W.3d 220 |
Parties | Gerald E. HAWXHURST, Appellant v. AUSTIN’S BOAT TOURS, Austin Edwards, and Angel Edwards, Appellees |
Court | Texas Court of Appeals |
Ms. Susan St. Denis, Mr. Gerald Hawxhurst, for Appellant.
Ms. Elizabeth Shehan, Mr. Paul A. Batrice, Austin, for Appellees.
Before Justices Puryear, Pemberton, and Goodwin
In this interlocutory appeal, Gerald E. Hawxhurst challenges the trial court’s denial of his motion to dismiss pursuant to the Texas Citizens Participation Act (TCPA or the Act). See Tex. Civ. Prac. & Rem. Code §§ 27.001 –.011. Hawxhurst sued Austin’s Boat Tours, Austin Edwards, and Angel Edwards (collectively, ABT) for gross negligence, negligence per se, and breach of contract for damages to Hawxhurst’s boat arising from an incident on Lake Travis. ABT filed a counterclaim for sanctions under Chapter 9 of the Texas Civil Practice and Remedies Code alleging Hawxhurst filed frivolous pleadings. See generally id. §§ 9.001–.014. Hawxhurst filed a motion to dismiss ABT’s counterclaim pursuant to section 27.003 of the TCPA, contending that it was "based on" and "in response to" his "exercise of the right to petition." See id. §§ 27.001(4), .003(a). For the reasons that follow, we reverse the trial court’s order denying Hawxhurst’s motion to dismiss and remand this case to the trial court for further proceedings.
In July 2015, Hawxhurst was boating on Lake Travis when he observed a life jacket floating in the water. He maneuvered his boat toward the life jacket so that his passenger could pull it from the lake. As he approached the life jacket, his boat propeller became entangled in a dock line that was tied to the life jacket and anchored to the bottom of the lake by a heavy object. The boat motor became disabled, and while Hawxhurst’s passenger attempted to remove the line from the motor, the boat drifted into the rocky shore, damaging the hull. Because the life jacket had ABT’s name on it, Hawxhurst contacted ABT, a company that organizes boat tours and parties on Lake Travis. Hawxhurst alleges that the person with whom he spoke by phone identified himself as the owner of ABT, acknowledged that ABT’s representative had placed the "make-shift buoy" in the lake and had left it there, and promised to pay for repairs to the boat. Hawxhurst alleges that he subsequently exchanged emails with ABT memorializing ABT’s agreement to pay for the repairs. Hawxhurst had the boat repaired and forwarded the invoice to ABT, which refused to pay. Hawxhurst made a formal demand pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code. See id. § 38.002(2), (3). When ABT continued to refuse to pay for the damage to the boat, Hawxhurst filed suit against ABT, alleging gross negligence in creating a dangerous situation, negligence per se for placing a buoy in water controlled by the Lower Colorado River Authority (LCRA) in violation of LCRA’s land and water use regulations, and breach of contract for breaching its oral contract to pay for the damage. Hawxhurst also sought a permanent injunction enjoining ABT from placing unauthorized objects, including mooring buoys, anywhere in Lake Travis.
After Hawxhurst filed an amended petition omitting his request for an injunction, ABT filed "Defendant’s (sic) First Amended Answer and Counterclaim for Attorney Fees," seeking sanctions, costs, and attorney’s fees under Chapter 9 of the Civil Practice and Remedies Code. See generally id. §§ 9.001–.014 ( ). Hawxhurst filed a motion to dismiss ABT’s counterclaim pursuant to section 27.003 of the TCPA, contending that it was "based on" and "in response to" his "exercise of the right to petition" because his lawsuit was a "communication in ... a judicial proceeding." See id. §§ 27.001(4)(A)(i) ( ), .003(a) (providing that party may file motion to dismiss legal action if it is "based on, relates to, or is in response to," as relevant to this appeal, "a party’s exercise of the right ... to petition"). Specifically, Hawxhurst argued that ABT’s claim sought to recover attorney’s fees incurred solely as a result of his exercising his right to petition by filing suit to redress wrongs. Hawxhurst also sought attorney’s fees, costs, and sanctions. See id. § 27.009 (a)(1), (2).
In response, ABT argued that the TCPA does not apply because Hawxhurst had not shown that its counterclaim was "based on" or "in response to" his "right to petition" and that the "mere filing of a lawsuit on a private matter does not invoke the TCPA." In the alternative, ABT argued that it had established a prima facie case for its claim. See id. § 27.005(c) ( ). ABT also sought costs and attorney’s fees.
After a hearing on Hawxhurst’s motion to dismiss, the trial court requested and the parties filed supplemental briefing addressing the trial court’s concern that ABT had mistakenly labeled its pleading and that, under Rule 71, the "counterclaim" should be treated as a "motion for sanctions." See Tex. R. Civ. P. 71 ( ). The trial court subsequently issued an order finding that ABT’s "counterclaim" had been mislabeled and that justice required treating it as a "motion for sanctions," ordering ABT to amend its answer to remove the mislabeled "counterclaim" and denying the re-labeled motion for sanctions.1 The trial court further found that the motion for sanctions was not a "legal action" within the parameters of the TCPA and that a motion to dismiss under the TCPA "was not the appropriate vehicle to require [ABT] to drop the mislabeled counterclaim." The trial court denied Hawxhurst’s motion to dismiss, and this appeal followed.
The TCPA is often characterized as an "anti-SLAPP" statute, i.e., a means by which defendants targeted by "Strategic Lawsuits Against Public Participation," or SLAPP, suits can move for dismissal of such lawsuits. See Tex. Civ. Prac. & Rem. Code § 27.002 ; see, e.g. , Serafine v. Blunt (Serafine I) , 466 S.W.3d 352, 365–67 (Tex. App.—Austin 2015, no pet.) (Pemberton, J., concurring) (summarizing TCPA legislative history and emphasis on "anti-SLAPP" concerns). The TCPA allows a motion to dismiss a "legal action" that is "based on, relates to, or is in response to a party’s exercise of," as relates to this appeal, "the right ... to petition." Tex. Civ. Prac. & Rem. Code § 27.003(a). The Act defines "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." Id. § 27.001(6) ; see Cavin v. Abbott , 545 S.W.3d 47, 56, No. 03-16-00395-CV, 2017 WL 3044583, at *6, 2017 Tex. App. LEXIS 6511, at *15 (Tex. App.—Austin July 14, 2017, no pet.). The Act defines the "[e]xercise of the right to petition" as "a communication in or pertaining to," as relates to this appeal, "a judicial proceeding." Tex. Civ. Prac. & Rem. Code § 27.001(4)(A)(i). A " ‘[c]ommunication’ includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." Id. § 27.001(1).
In enacting the TCPA, the legislature explained that its purpose is "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." Id. § 27.002 ; see Hersh v. Tatum , 526 S.W.3d 462, 466 (Tex. 2017). "To effectuate the statute’s purpose, the Legislature has provided a two-step procedure to expedite the dismissal of claims brought to intimidate or to silence a defendant’s exercise of these First Amendment rights." ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 898 (Tex. 2017) (per curiam). In the first step, the party filing a motion to dismiss under section 27.003 of the TCPA bears the burden to show by a preponderance of the evidence that the legal action is "based on, relates to, or is in response to" the party’s "exercise of," relevant to this appeal, "the right ... to petition." Tex. Civ. Prac. & Rem. Code §§ 27.003(a), .005(b); see Hersh , 526 S.W.3d at 466 ; Coleman , 512 S.W.3d at 898. If the movant satisfies this burden, the trial court must dismiss the lawsuit unless the nonmovant "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question." Tex. Civ. Prac. & Rem. Code § 27.005(c) ; see Hersh , 526 S.W.3d at 467–68 ; Coleman , 512 S.W.3d at 899. In determining whether to dismiss an action, the trial court must consider "the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based" regardless of whether they are formally offered as evidence. Tex. Civ. Prac. & Rem. Code § 27.006(a) ; see Hersh 526 S.W.3d at 467 ; Serafine I , 466 S.W.3d at 357.
Our analysis requires statutory construction, which is a question of law that we review de novo. See Coleman , 512 S.W.3d at 899. Our primary concern is the express statutory language. See Galbraith Eng'g Consultants, Inc. v. Pochucha , 290 S.W.3d 863, 867 (Tex. 2009). "If that language is unambiguous, we interpret the statute according to its plain meaning." Lippincott v. Whisenhunt , 462 S.W.3d 507, 509 (Tex. 2015) (per curiam). "Additionally, ‘[we] pr...
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