McIntyre v. Castro
| Decision Date | 06 September 2018 |
| Docket Number | NUMBER 13-17-00565-CV |
| Parties | DAVID MCINTYRE AND MADELEINE CONNOR, Appellants, v. ERIC CASTRO, ET AL., Appellees. |
| Court | Texas Court of Appeals |
On appeal from the 419th District Court of Travis County, Texas.
Before Justices Contreras, Longoria, and Hinojosa
Appellants David McIntyre and Madeleine Connor appeal from the granting of appellees' motion to dismiss under the Texas Citizens Participation Act (TCPA). By ten issues, appellants argue the trial court erred in granted the motion to dismiss. We affirm.
McIntyre and Connor originally filed their action against appellees Eric Castro, Nancy Naeve, Gary Sertich, Leah Stewart, and Chuck McComick, in Texas state court. In appellants' Sixth Amended Original Complaint, they alleged that in 2012 the Lost Creek Municipal Utility District (MUD) began a plan to install sidewalks in the Lost Creek neighborhood. Appellants, and other neighborhood homeowners, opposed the plan. According to appellants' complaint, in September 2013, the plan was rejected in a neighborhood referendum. Appellants asserted seven counts in their Sixth Amended Complaint. In the first six they sought declaratory relief, declaring appellees acted outside the scope of their authority under the Texas Constitution and Texas statutes, as well as contrary to the will of their constituents, in using taxpayer and utility district funds to construct sidewalks. In their seventh count appellants sought monetary damage under 42 U.S.C. § 1983 for retaliation by appellees in response to appellants' exercise of their rights under the First Amendment to the United States Constitution. See 42 U.S.C.A. § 1983 (West, Westlaw through P.L. 115-223).
Appellees removed the case to the United States District Court, Western Division of Texas, based on appellants' federal cause of action. The federal district court dismissed appellants' federal cause of action and remanded the state law claims to state court. Appellants appealed to the United States Fifth Circuit Court of Appeals.
On April 14, 2016, during the pendency of their federal appeal, appellants filed their Seventh Amended Original Petition in state court. In this petition, the first five countsunder state law remained unchanged; but in their sixth count, as amended, appellants sought an additional declaration that appellees exceeded their authority by using tax funds to draft a bar ethics complaint against appellant Connor. Count seven remained a federal claim under section 1983 for the violation of Connor's First Amendment rights, though appellants restyled it as an "abridgment" claim rather than "retaliation." On April 19, 2016, appellees again removed the case to federal district court.
On May 5, 2016, appellees filed a "Motion to Dismiss Pursuant to Rule 12(b)(1), 12(b)(6) and Chapter 27 of the Texas Civil Practice & Remedies Code" in the federal district court. On May 20, 2016, the federal district court rendered an order staying the cause and abating "all pending matters, settings, and deadlines." The Fifth Circuit issued its opinion affirming the federal district court's order on October 27, 2016, and the federal district court lifted the stay on March 21, 2017. On April 10, 2017, appellees filed their motion to set hearing on their motion to dismiss, which appellants opposed. On April 25, 2017, the federal district court dismissed appellants' federal cause of action and remanded the state law claims to state court.
On May 8, 2017, appellees then filed their Plea to the Jurisdiction, Motion to Dismiss Pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code, and Motion to Dismiss Pursuant to Section 101.106 of the Texas Civil Practice and Remedies Code in state court, relating to appellants' remaining state causes of action. On May 15, 2017, a hearing on the motion was set for May 30, 2017 and notice of hearing was issued. On May 26, 2017, appellant Connor nonsuited her personal state law claims without prejudice. On May 29, 2017, appellants filed their Eighth Amended Original Petition and in response, appellees filed "Defendants' Supplement to Fourth Supplemental Plea to theJurisdiction and Motion to Dismiss Pursuant to Chapter 27 of the Texas Civil Practice & Remedies Code (TCPA)." In their eighth amended petition, appellants amended Connor's nonsuited personal claims for "(1) the abridgement of [appellant's] clearly established rights to free speech, assembly, and the right to petition the government for redress of grievances, and (2) for retaliation for exercising those rights" to reassert the claims with McIntyre as the injured party.
On May 30, 2017, a hearing was held on appellees' plea to the jurisdiction and motions to dismiss. The trial court made a determination to have the case heard by submission on the live pleadings filed the day before. The trial court advised appellees to update their motions to specifically address appellants' eighth amended petition and appellees filed "Defendants' Fifth Supplemental Plea to the Jurisdiction, Motion to Dismiss Pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code, and Motion to Dismiss Pursuant to Section 101.106 of the Texas Civil Practice & Remedies Code" the evening of the hearing. Further, the trial court gave appellants the opportunity to respond to the most recent plea to the jurisdiction and motions to dismiss no later than June 6, 2017 and noted that no additional amended petitions would be entertained.
On May 30, 2017, after appellees filed their updated motions, appellant McIntyre filed a "Notice of Nonsuit" dismissing all of his claims with prejudice. Subsequently, on June 5, 2017, appellants filed their "Objections to Defendants' Setting on Motion to Dismiss, Request to Deny Motion to Dismiss, and/or Motion to Strike Notice of Hearing on Defendants' Motion to Dismiss," to which appellees replied.
After the June 6, 2017 deadline imposed by the trial court, appellants filed their "Response to Defendants' Motion to Dismiss Under the TCPA," to which appelleesreplied. On June 26, 2017, the trial court issued an "Order Granting Defendants' Motion to Dismiss Pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code." The order also awarded attorneys' fees in the amount of $2,124.00 and costs of $76.67 against appellants and sanctioned appellants in the amount of $500.00. Furthermore, the order stated that should appellants choose to appeal the order and be unsuccessful, appellees "shall be awarded an additional $15,000.00 in attorneys' fees." Appellants filed a motion for new trial on July 24, 2017, and the trial court advised the parties that it would not issue any further rulings on the matter. This appeal followed.
Appellants raise ten issues arguing: (1) a state district court cannot hear and decide a motion to dismiss under the TCPA that had already been denied by the federal Western District of Texas; (2) a state district court cannot hear and decide a motion to dismiss under the TCPA more than a year after it was initiated in federal court; (3) the TCPA does not allow holding a hearing past ninety days, even if a district court determines that the hearing was held by agreement; (4) the existing Texas case law permitting a district court's award of prospective attorneys' fees on appeal chills an appellant's right to appeal and offends principles of public policy and due course of law/due process under the Texas and United States Constitutions; (5) a district court cannot order attorneys' fees and sanctions on a motion to dismiss where no evidence is submitted in the motion or presented to the trial court at a hearing; (6) appellant Connor provided clear and specific evidence of each and every element of her claims against appellees, defeating dismissal; (7) the TCPA is unconstitutional as applied to appellants; (8) the TCPA offends the Texas Constitution's right to trial by jury; (9) the amount of prospective appellate fees awardedby the district court was disproportionate to the fees awarded on the motion to dismiss; and (10) the trial court erred in assessing fees and sanctions jointly and severally against appellants when the claims sought to be dismissed under the TCPA were brought only by appellant Connor.
By their first issue appellants argue that the trial court did not have jurisdiction over appellees' motions to dismiss because the federal district court had already denied the motion. Appellants argue that the order from the federal district court granting appellees' motion to dismiss the federal causes of action and remanding the state law claims to state court fully adjudicated the issue and therefore, the state district court lacked jurisdiction to proceed on the motions.
Appellants' argument is based on the doctrine of res judicata. The doctrine of res judicata is an affirmative defense that prevents parties and their privies from relitigating a cause of action that has been finally adjudicated by a competent tribunal. Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 206-07 (Tex. 1999); Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 798 (Tex. 1992). In support of their position, appellants direct the Court's attention to the conclusion of the federal district court's order, which in relevant part states: (Emphasis in original). Appellants argue that this order is a final adjudication of all the issues raised in appellees' motions to dismiss, however, the federal district court clearly remanded the remaining state law claims to the state district court foradjudication. Appellants point to no case law, nor do w...
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