Morris v. Daniel

Decision Date03 December 2020
Docket NumberNO. 01-20-00148-CV,01-20-00148-CV
Citation615 S.W.3d 571
Parties Jennifer MORRIS, Appellant v. David Patrick DANIEL, Jr., Appellee
CourtTexas Court of Appeals

Jason B. Ostrom, 4301 Yoakum Blvd., Houston, Texas 77006, for Appellant.

David Patrick Daniel, JR., 4801 Woodway Drive, Ste. 440-W, Houston, Texas 77056, for Appellee.

Panel consists of Justices Goodman, Landau, and Adams.

Gordon Goodman, Justice

Jennifer Morris appeals from the trial court's order denying her motion to dismiss David Patrick Daniel, Jr.'s suit under the Texas Citizens Participation Act. See TEX. CIV. PRAC. & REM. CODE §§ 27.001 –.011 (TCPA or Act); id. at § 51.014(a)(12) (providing right to interlocutory appeal from order denying motion to dismiss made under Act). Because Morris failed to meet her initial burden to show Daniel's suit is based on or in response to her exercise of the rights of free speech or association, we affirm the trial court's order denying her motion to dismiss.


Morris and Daniel are divorced. They settled a dispute as to the custody of their child via a mediated settlement agreement. The settlement agreement contained a confidentiality clause barring Morris and Daniel from disclosing information relating to the custody dispute as well as other litigation between them.

In accord with their settlement, the trial court presiding over the custody dispute entered an agreed order as to the custody of their child. The order incorporated the settlement agreement's confidentiality clause. The order specified that the confidentiality clause does not apply to the order itself and authorized the parties to disclose the order to effect or enforce it.

Daniel later sued Morris for breach of contract, alleging that she breached their settlement agreement by disclosing its terms to third parties in violation of the confidentiality clause. Daniel sought the return of the amount he paid Morris in connection with the settlement agreement and a declaration voiding the agreement.

Morris filed a special exception objecting that Daniel did not state any facts as to how she had breached the confidentiality clause. She also moved to dismiss Daniel's suit under the Citizens Participation Act arguing that Daniel's suit violated her right of free speech and right of association because any communication she made or activity she engaged in concerned a matter of public concern.

In his response, Daniel claimed Morris had violated the confidentiality clause in two ways. First, he asserted she gave a copy of the settlement agreement to a third party in an unrelated out-of-state lawsuit in which Daniel's new wife was a litigant. Second, Daniel asserted Morris misrepresented the terms of the settlement agreement in a letter she wrote to their child's school. He then argued that these breaches fell outside the Act's scope.

Morris replied contending that Daniel had not filed any evidence supporting either of the breaches he asserted. Daniel then filed a copy of a letter sent to the school by Morris's lawyer.

The trial court denied Morris's motion to dismiss.

Morris appeals.

Daniel's Motion to Dismiss Appeal

More than five months after Morris filed her notice of appeal, Daniel filed a notice of nonsuit in the trial court, which entered an order granting the nonsuit. Daniel contends his nonsuit moots the appeal and requests that we dismiss it.

Morris opposes dismissal of the appeal. She argues the trial court erred in denying her motion to dismiss the suit under the Citizens Participation Act and that her entitlement to attorney's fees under the Act prevents the appeal from being moot.

As an initial matter, it is questionable whether Daniel could have filed an effective notice of nonsuit in the trial court after Morris filed her notice of appeal. By statute, when a party appeals from the denial of a motion to dismiss under the Act, the appeal stays all proceedings in the trial court until the appeal is resolved. TEX. CIV. PRAC. & REM. CODE § 51.014(b). The Supreme Court previously has held that a nonsuit filed during the pendency of an interlocutory appeal is effective when filed. See Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon , 195 S.W.3d 98, 100 (Tex. 2006) (per curiam) (appeal from denial of jurisdictional plea). In Blackmon , however, the Court did not consider the effect of the statutory stay of all trial-court proceedings because it was inapplicable.1 See id. at 100–01. More recently, the Court has indicated it is possible the statutory stay precludes a party from filing a notice of nonsuit in the trial court. See Morath v. Lewis , 601 S.W.3d 785, 788 (Tex. 2020) (per curiam) (declining to decide whether stay barred filing nonsuit in trial court as nonsuit was filed directly with Court). In addition, the Court has recently held that the statutory stay is mandatory and without exception when an interlocutory appeal from the denial of a motion to dismiss under the Act is pending. In re Geomet Recycling , 578 S.W.3d 82, 86–87 (Tex. 2019). Finally, our court has previously held that the statutory stay prevents a party from amending its pleadings to drop a claim during the pendency of the appeal. City of Houston v. Swinerton Builders , 233 S.W.3d 4, 7–9 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

But we need not resolve whether Daniel's nonsuit was effective. Even if Daniel could file an effective nonsuit in the trial court during the pendency of this interlocutory appeal, a nonsuit does not moot any claims for affirmative relief made by the opposing party and Morris has made claims for affirmative relief.

Unlike a nonsuit, a dismissal under the Citizens Participation Act is with prejudice.

Gaskamp v. WSP USA, Inc. , 596 S.W.3d 457, 468 (Tex. App.—Houston [1st Dist.] 2020, pet. dism'd) (en banc). In addition, a movant who obtains dismissal under the Act is entitled to costs and reasonable attorney's fees and may be awarded sanctions against the nonmovant. TEX. CIV. PRAC. & REM. CODE § 27.009(a).

In Gaskamp , we held that a nonsuit does not moot a motion to dismiss under the Act because, unlike the nonsuit, the motion may entitle the movant to dismissal with prejudice as well as costs, reasonable attorney's fees, and sanctions. 596 S.W.3d at 468–69. A movant's request for dismissal with prejudice, costs, reasonable attorney's fees, and sanctions under the Act are requests for affirmative relief, which the nonmovant cannot dispose of by nonsuiting his own claims. Id.

Morris requested dismissal of Daniel's suit as well as attorney's fees and sanctions in her motion to dismiss under the Act. Due to these claims for affirmative relief, Daniel's nonsuit does not render Morris's motion or this appeal moot. Id.

We deny Daniel's motion to dismiss the appeal.

Morris's Citizens Participation Act Motion

Morris argues that Daniel's legal action is subject to the Citizens Participation Act because it is based on or is in response to her exercise of the rights of free speech and association. She maintains that her communications and actions qualify as exercises of the rights of free speech and association because they concern her child's safety and education, which she characterizes as matters of public concern. Because Daniel did not make a prima facie case for each element of his contract claim, Morris argues, the trial court erred by not dismissing his legal action.

Standard of Review and Applicable Law

We review de novo a trial court's denial of a motion to dismiss under the Citizens Participation Act.2 Holcomb v. Waller Cty. , 546 S.W.3d 833, 839 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). We likewise interpret the Act and decide whether it applies to a legal action de novo. See Youngkin v. Hines , 546 S.W.3d 675, 680 (Tex. 2018) ; Better Bus. Bureau of Metro. Houston v. John Moore Servs. , 500 S.W.3d 26, 39 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

In assessing whether a legal action comes within the Act's scope, we rely on the Act's language, interpreting it as a whole rather than reading its individual provisions in isolation from one another. Youngkin , 546 S.W.3d at 680. We interpret the Act according to the plain, common meaning of its words, unless a contrary purpose is evident from the context or a plain reading of its text leads to absurd results. Id. We cannot judicially amend the Act by imposing requirements the Act does not or by narrowing or expanding its scope contrary to its terms. Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n , 518 S.W.3d 318, 337 (Tex. 2017) ; see ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 899 (Tex. 2017) (per curiam) (court presumes Legislature purposely omitted words not included in Act). Nor can we substitute the words of the Act to give effect to what we think the Act should say. Coleman , 512 S.W.3d at 901.

The Act directs us to liberally interpret its provisions to fully effectuate its purpose, which "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." TEX. CIV. PRAC. & REM. CODE §§ 27.002, 27.011(b). To accomplish this purpose, the Act provides a summary procedure in which a party may move to dismiss a legal action on the ground that the legal action is based on or is in response to the party's exercise of the right of free speech, right to petition, or right of association. Id. § 27.003(a) ; see In re Lipsky , 460 S.W.3d 579, 589–90 (Tex. 2015).

A motion to dismiss made under the Act generally entails a three-step analysis. Youngkin , 546 S.W.3d at 679–80. The movant first must demonstrate that the nonmovant's legal action is based on or is in response to the movant's exercise of the right of free speech, right to petition, or right of association. TEX. CIV. PRAC. & REM. CODE § 27.005(b)(1). The...

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