Shakeel Mustafa v. Tyler Pennington ( 2019 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00081-CV
Shakeel Mustafa, Appellant
v.
Tyler Pennington, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
NO. 17-1060-C26, HONORABLE DONNA GAYLE KING, JUDGE PRESIDING
CONCURRING OPINION
I concur in the majority’s judgment affirming the trial court’s order granting appellee
Tyler Pennington’s motion to dismiss under the Texas Citizens Participation Act (TCPA). See Tex.
Civ. Prac. & Rem. Code §§ 27.001–.011. Based on my review of the pleadings and the competing
affidavits filed by the parties, I agree that the trial court properly granted Pennington’s motion to
dismiss. See id. § 27.006(a) (stating that court considers “pleadings and supporting and opposing
affidavits stating the facts on which the liability or defense is based”); see also Hersh v. Tatum,
526 S.W.3d 462, 467–68 (Tex. 2017) (describing shifting burdens and procedures under TCPA);
ExxonMobile Pipeline Co. v. Coleman, 512 S.W.3d 895, 898–99 (Tex. 2017) (per curiam) (same).
As to Mustafa’s challenge to the trial court’s denial of his request for discovery in
response to the motion to dismiss, I would conclude that the trial court did not abuse its discretion
in denying his request. See Tex. Civ. Prac. & Rem. Code §§ 27.003(c) (suspending discovery in
legal action on filing of motion to dismiss under TCPA except as provided by section 27.006(b)),
.006(b) (authorizing, “on a motion by a party . . . and on a showing of good cause,” court to
“allow specified and limited discovery relevant to the motion”); In re IntelliCentrics, Inc.,
No. 02-18-00280-CV, 2018 Tex. App. LEXIS 8725, at *4–5 (Tex. App.—Fort Worth Oct. 25, 2018,
orig. proceeding) (mem. op.) (discussing discovery request in context of pending motion to dismiss
under TCPA and stating that scope of discovery is within trial court’s discretion). Because Mustafa
as a matter of law does not have a viable contractual or quasi-contractual claim against Pennington
based on Mustafa’s factual allegations challenging Pennington’s performance as the amicus attorney
in the custody suit, the trial court within its discretion could have concluded that Mustafa failed to
show the “good cause” that is required to authorize discovery in response to a motion to dismiss
under the TCPA. See Tex. Civ. Prac. & Rem. Code § 27.006(b).
For these reasons, I concur in the judgment.
__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Baker, and Smith
Filed: April 24, 2019
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