Landa v. Rogers
| Decision Date | 30 March 2023 |
| Docket Number | 03-21-00097-CV |
| Parties | Ulda Cassidy Landa, Appellant v. Bryan Kelly Rogers, Appellee |
| Court | Texas Court of Appeals |
FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY NO C-1-CV-20-004368, THE HONORABLE ERIC SHEPPERD, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Triana and Jones. [*]
Appellant Ulda Cassidy Landa appeals pro se from the trial court's final judgment dismissing her causes of action with prejudice under the Texas Citizens Participation Act (TCPA).[1] For the following reasons, we affirm the trial court's judgment.
After the birth of Landa and Rogers's child in 2015, Landa and the child moved from Austin to Houston to live with Rogers in or around October 2015. Landa alleges that the move was part of a binding oral contract entered into by Rogers and her pursuant to which she allegedly agreed to temporarily relocate to Houston with their newborn to live with Rogers for a period not to exceed one year, and in exchange Rogers agreed to not oppose any attempt by Landa to return to Austin with their child. [2] The parties' romantic and domestic relationship deteriorated, and ultimately Landa informed Rogers on or around August 10, 2016, that she would be separating from him.
On August 12, 2016, Landa filed a Suit Affecting the Parent-Child Relationship (SAPCR) in Harris County, requesting that she have the exclusive right to designate the primary residence of the child and that the residence be restricted to Travis County, Harris County, and their contiguous counties. Rogers filed his counterpetition approximately one month later, which, relevant here, requested that the child's residence be restricted only to Harris County and its contiguous counties. During the course of the SAPCR, the parties negotiated a Rule 11 agreement, participated in mediation, and entered into a mediated settlement agreement, which in relevant part awarded the right to designate the child's primary residence to Landa but included a geographic restriction of Harris County, Fort Bend County, and/or Montgomery County. The trial court entered an agreed order conforming to the settlement agreement on November 21, 2017, which included a similar geographic restriction.
On September 8, 2020, Landa filed a pro se civil lawsuit against Rogers in Travis County, which relevant to the present appeal, alleged that Rogers breached the parties' oral contract by opposing the inclusion of Travis County as part of the residence restriction in the SAPCR proceeding; that Rogers further injured her through his statements and filings relating to the Rule 11 agreement, the settlement agreement, and the agreed order; and (in later filings) that Rogers had misled the SAPCR court through certain statements and filings concerning his property ownership, income, and employment. Landa amended her lawsuit several times, but as of her third amended petition[3] (her live pleading at the time of the TCPA dismissal hearing), she asserted causes of action for breach of contract,[4] fraud, fraudulent inducement, civil conspiracy, breach of duty of good faith and fair dealing, false imprisonment, and intentional infliction of emotional distress.
Rogers was served with citation and the original petition on September 15, 2020. On November 10, 2020, Rogers served his Motion to Dismiss and Notice of Hearing on Landa and attempted to electronically file the motion; his motion requested that the trial court dismiss all causes of actions pursuant to Rule 91a of the Texas Rules of Civil Procedure and the TCPA. Although Rogers received a contemporaneous email showing electronic submission, Rogers subsequently learned on November 30 that the submission had failed and the district court had not received his motion. Rogers subsequently resubmitted the motion, successfully filing it on December 1, and separately filed a motion requesting the trial court correct the file-stamp date for his dismissal motion or extend all applicable deadlines.
On January 6, 2021, the trial court held a hearing on both of Rogers's motions. The trial court heard Rogers's arguments in support of his motion to correct the file-stamp date or alternatively amend all applicable deadlines, and when the trial court asked Landa whether she had any objections to the motion, Landa responded, "No Your Honor." The trial court thereafter granted the motion, clarifying that the court was "not changing the dates" but was "giv[ing] [Rogers] the time you need in addition." The trial court then heard from the parties on the dismissal motion and took the motion under advisement.
On February 4, 2021, the trial entered an order granting Rogers's motion in part and finding that Landa's claims are based on or in response to Rogers's exercise of his right to petition, that Landa had failed to establish by clear and specific evidence a prima facie case for each essential element of her claims, and that the action was brought to deter or prevent Rogers from exercising his constitutional rights and was for an improper purpose. The trial court thereafter dismissed all of Landa's claims with prejudice under the TCPA and awarded Rogers attorneys' fees, contingent attorneys' fees, court costs, and a $100 sanction, which the trial court found "is sufficient to deter [Landa] from bringing similar action in the future."[5] Landa timely filed her notice of accelerated appeal, and this appeal followed.
We review a trial court's ruling on a TCPA motion to dismiss de novo. RigUp, Inc. v. Sierra Hamilton, LLC, 613 S.W.3d 177, 182 (Tex. App.-Austin 2020, no pet.). Insofar as that ruling turns on issues of statutory construction, we also review those issues de novo, "mindful that the Legislature has directed us to construe the TCPA liberally to effectuate its purpose and intent." Id. ).
The TCPA "protects citizens who [associate,] petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them." Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018) (quoting In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015)); see also Tex. Civ. Prac. &Rem. Code § 27.002 (describing TCPA's purpose). "To effectuate this purpose, the TCPA allows a party to move for expedited dismissal of 'claims brought to intimidate or to silence a defendant's exercise of these First Amendment rights.'" RigUp, 613 S.W.3d at 181 (quoting ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 898 (Tex. 2017) (per curiam)).
A court undertakes a three-step analysis when reviewing a TCPA motion to dismiss. Id. at 181-82. First, the moving party bears the initial burden of demonstrating that the nonmovant's legal action "is based on or is in response to" the movant's exercise of certain constitutional rights-rights of free speech, petition, and association-or certain statutorily defined creative endeavors. See Tex. Civ. Prac. &Rem. Code § 27.005(b). If the movant meets his burden of showing the TCPA applies, then the burden shifts to the nonmovant to establish "by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). If the nonmovant satisfies her burden of presenting a prima facie case, then the burden shifts back to the movant "to prove each essential element of a valid defense to the nonmovant's claim by a preponderance of the evidence." RigUp, 613 S.W.3d at 181-82 ).
The trial court must consider "the pleadings, evidence a court could consider under [a summary judgment review], and supporting and opposing affidavits stating the facts on which the liability or defense is based." Tex. Civ. Prac. & Rem. Code § 27.006(a). Furthermore, the pleadings, evidence, and affidavits must be viewed in the light "most favorable to the nonmovant." RigUp, 613 S.W.3d at 182.
Landa raises ten issues on appeal concerning the dismissal under the TCPA, which broadly fall into three categories: procedural challenges (issues one through five), substantive challenges (issues six and seven), and challenges to the attorney's fees and sanction awards (issues eight through ten). We address each category in turn.
TCPA procedural challenges
In her first issue, Landa contends that the trial court's dismissal order was "the functional equivalent of a general demurrer," which is expressly precluded under Rule 90 of the Texas Rules of Civil Procedure. See Tex.R.Civ.P. 90 (). But an order entered by the trial court is not a general demurrer. See In re Shire PLC, 633 S.W.3d 1, 11-12 (Tex. App.-Texarkana 2021, no pet.) (orig proceeding) ( that "general demurrers" were originally responses filed by defendants asserting that "the plaintiff's petition [was] wholly insufficient in law to state any cause of action against the defendant" (quoting 2 Roy W. McDonald &Elaine A. Grafton Carlson, Texas Civil Practice § 9.24[b] (2d ed. 2021))). Landa also contends that Rogers was required to assert special exceptions before the trial court could dismiss her causes of actions under the TCPA, but Landa cites precedent solely from before "the [L]egislature enacted the TCPA in 2011." State ex rel. Best v. Harper, 562 S.W.3d 1, 10 (Tex. 2018), as corrected on denial of reh'g (Dec. 21, 2018) )); see also, e.g., Greenstein v. Baggett, No. 05-09-00640-CV, 2010 WL 4119023, at *2 (Tex. App.-Dallas Oct. 21, 2010, no pet.) (mem. op.); Centennial Ins. Co. v. Commercial Union Ins. Co., 803...
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