Hesse v. Howell, 07-16-00453-CV
| Decision Date | 07 June 2018 |
| Docket Number | No. 07-16-00453-CV,07-16-00453-CV |
| Parties | DAVID CHRISTOPER HESSE, APPELLANT v. JASON KANE HOWELL, APPELLEE |
| Court | Texas Court of Appeals |
On Appeal from County Court at Law Number 1 Potter County, Texas
Trial Court No. 105,728-1; Honorable W.F. Roberts, Presiding
Before CAMPBELL, PIRTLE, and PARKER, JJ.
Appellant, David Christopher Hesse, appeals from the trial court's order granting the motion to dismiss of Appellee, Jason Kane Howell, filed pursuant to chapter 27 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001-.009 (West 2015).1 Chapter 27, known as the Texas Citizens Participation Act (TCPA), is often characterized as an "anti-SLAPP" (Strategic Lawsuits Against Public Participation) statute.2 By six issues, Hesse questions whether (1) Howell is entitled to any immunity for swearing to facts, abusing process, and committing crimes foreign to the duties of a prosecutor; (2) the Code of Criminal Procedure or the Rules of Civil Procedure control issuance of a writ of attachment; (3) the anti-SLAPP statute applies to preclude suit against a prosecutor who falsely swears to an Application for a Writ of Attachment that results in the arrest of a person who was never served with a notice to appear; (4) the anti-SLAPP statute applies to preclude a suit brought against a prosecutor under 42 U.S.C. § 1983; (5) a trial court may take judicial notice of non-existent facts; and (6) the trial court abused its discretion in overruling his objections to Howell's motion to dismiss. We affirm.
Hesse is a private practice attorney and Howell is an assistant prosecutor for the 47th Judicial District Attorney's Office. This civil tort action stems from a previous criminal contempt proceeding arising out of an underlying criminal prosecution. Hesse, while in the course of representing a criminal defendant, was held in contempt by the trial judge of the 251st District Court in and for Potter County, Texas, for using, what the trial court deemed to be, inappropriate language in a courtroom proceeding. The trial court sought to punish Hesse's conduct by the imposition of a fine, jail time, or both. See TEX. GOV'TCODE ANN. § 21.002(b) (West 2004) ().
In that contempt proceeding, the trial judge signed a Notice of Allegations of Contempt in which she ordered that Hesse be notified "by certified mail, return receipt requested, at his current address according to the records of the District Clerk," to appear and show cause why he should not be held in contempt. Pursuant to section 21.002(d) of the Texas Government Code, the Honorable Kelly Moore, presiding judge of the administrative region encompassing Potter County, appointed the Honorable Paul Davis to preside and determine Hesse's guilt or innocence in that contempt proceeding. See TEX. GOV'T CODE ANN. § 21.002(d) (West 2004) (). A contempt hearing was scheduled for July 29, 2016, at 1:30 p.m., and service was attempted by certified mail, return receipt requested. The record reflects that a certified mail return receipt "green card," signed by "Cathy Bears," was filed with the Potter County District Clerk. The signature line on the green card was not restricted to the "addressee only" and nowhere did the receipt depict Hesse's signature.
On the day of the scheduled hearing, Howell appeared for the State of Texas, but Hesse failed to appear at the appointed time. Attempts were made to reach Hesse by phone and by email, but he did not respond. Judge Davis finally commenced the hearing at 2:30 p.m. and announced he was taking judicial notice of the file in the criminal case, which included the Notice of Allegations of Contempt and the green card pertaining toservice of the notice of hearing. Because Hesse did not appear, Judge Davis directed Howell to prepare a capias for his detention. Howell complied and signed an Application for Attachment in which he swore upon his oath that "David Christopher Hesse was served with [Notice of a Due Process Hearing] by Certified Mail . . . ." At 2:35 p.m. that same day, the judge ordered the Clerk of the Court to issue a Writ of Attachment for Hesse and he was arrested and detained in the Potter County Jail on July 31, 2016.
On August 1, 2016, the trial judge held a telephonic arraignment in which Hesse informed him that he had missed the scheduled contempt hearing because he was unaware of the hearing due to lack of personal service of the contempt allegations and notice of hearing. The judge authorized his court coordinator to send Hesse a copy of the Notice of Allegations of Contempt and set a hearing date for him to answer the allegations. Hesse was then released on bond.
Several weeks later, Hesse filed the underlying suit against Howell individually, and in his official capacity as an assistant district attorney, for numerous causes of action, both state and federal. Howell invoked the TCPA and filed a motion to dismiss the suit as permitted by section 27.003. He alleged that his Application for Attachment, the very basis of Hesse's lawsuit, implicated his right to petition which was protected under the TCPA.
In his response to the motion to dismiss, Hesse alleged that the TCPA did not apply and that even if it did, Howell was not immune from suit or liability. Hesse also filed numerous objections to Howell's motion, which the trial court overruled. Following ahearing, the trial court granted Howell's motion to dismiss and Hesse now appeals that ruling.
The threshold question before us is whether the TCPA applies under the circumstances of this case. Youngkin v. Hines, ___ S.W.3d ___, No. 16-0935, 2018 Tex. LEXIS 348, at *7-8 (Tex. April 27, 2018). Thus, we will address Hesse's issues in a logical rather than sequential order beginning with issue three by which he questions the applicability of the TCPA.
The stated purpose of the TCPA is to "encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." See § 27.002; ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam); In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding) ( that the TCPA's purpose "is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits"). The Legislature has instructed that the TCPA "shall be construed liberally to effectuate its purpose and intent fully." See § 27.011(b). To effectuate the purpose of the TCPA, the Legislature included an expedited, two-step procedure for the dismissal of claims brought to intimidate or to silence a defendant's exercise of an enumerated First Amendment right. See § 27.003. See also Coleman, 512 S.W.3d at 898.
First, a defendant moving to dismiss must show by a preponderance of the evidence3 that the plaintiff's claims are based on, relate to, or are in response to the defendant's exercise of: (1) the right of free speech, (2) the right to petition, or (3) the right of association. § 27.005(b); Coleman, 512 S.W.3d at 898; In re Lipsky, 460 S.W.3d at 586-87. If the defendant demonstrates that the plaintiff's suit implicates one of these rights, then the second step shifts the burden to the plaintiff to "establish[] by clear and specific evidence4 a prima facie case5 for each essential element of the claim in question." § 27.005(c); Coleman, 512 S.W.3d at 899; In re Lipsky, 460 S.W.3d at 587.
Even if the plaintiff satisfies this second step by meeting its burden of establishing a prima facie case, the trial court must still dismiss the lawsuit if the defendant "establishes by a preponderance of the evidence each essential element of a valid defense to the [plaintiff's] claims." § 27.005(d); Coleman, 512 S.W.3d at 899. In determining whether to dismiss a suit, the trial court shall consider the pleadings as well as supporting and opposing affidavits. § 27.006.
Under the TCPA, "exercise of the right to petition" is defined as a "communication in or pertaining to" a judicial proceeding. § 27.001(4)(A)(i). A "communication" includesthe "making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." § 27.001(1); Deaver v. Desai, 483 S.W.3d 668, 672 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
Recently, the Texas Supreme Court addressed the "right to petition" in Youngkin, 2018 Tex. LEXIS 348, at *7-8, and confirmed that the statutory definition of the phrase is expansive. Youngkin, an attorney representing clients in a real estate dispute, recited a Rule 11 agreement into the record. Id. at *2. Based on transactions that occurred post the Rule 11 agreement, Hines, the opposing party to the suit, believed he received less ownership of certain property than expected from the Rule 11 agreement. He filed suit against Youngkin and his clients for fraud. Id. at *3-4.
Youngkin moved to dismiss the suit under the TCPA alleging that recitation of the Rule 11 agreement into the record constituted the exercise of his right to petition. He also raised the defense of attorney immunity. Id. at *5. The Supreme Court held that based on a common understanding of the legislative definitions of terms supplied in the TCPA, Youngkin's conduct was the making of a statement, i.e., a "communication," in a judicial proceeding...
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