Allison Publications, LLC v. Jane Doe ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00330-CV
___________________________
ALLISON PUBLICATIONS, LLC, Appellant and Appellee
V.
JANE DOE, Appellee and Appellant
On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 21-4755-431
Before Birdwell and Walker, JJ., and Gonzalez, J.1
Opinion by Justice Walker
1
The honorable Ruben Gonzalez, Judge of the 432nd District Court, sitting by
assignment of the Chief Justice of the Texas Supreme Court pursuant to Section
74.003(h) of the Government Code. See Tex. Gov’t Code Ann. § 74.003(h).
OPINION
I. INTRODUCTION
Appellant Allison Publications, LLC (Allison) appeals the trial court’s granting
of Appellee Jane Doe’s motion to dismiss brought pursuant to the Texas Citizens
Protection Act (TCPA). Despite Doe proceeding under complete anonymity, she was
awarded dismissal with prejudice, attorney’s fees, $10,000 in sanctions, and costs of
court. In four issues, Allison complains that the trial court erred because (1) Texas
law does not allow a trial court to grant affirmative relief to a completely anonymous
party, (2) the TCPA did not apply to this case, (3) the record and the TCPA did not
support the award of sanctions and attorney’s fees, and (4) the trial court should have
granted Allison’s motions for discovery that sought Doe’s name and other identifying
information. In a cross-appeal, Doe contends that the trial court (1) improperly
dismissed as moot her Rule 91a motion to dismiss—which she filed in addition to her
TCPA motion—and (2) miscalculated her award of attorney’s fees.
Because the trial court’s subject matter jurisdiction had not been established to
permit its entrance of a final judgment on Doe’s TCPA motion to dismiss, we will
reverse the trial court’s judgment in its entirety and remand for further proceedings
consistent with this opinion. See Tex. R. App. P. 43.2(d), 43.3(a).
2
II. BACKGROUND
A. FACTUAL BACKGROUND
Allison publishes regional and specialty publications in Texas, such as D
Magazine. According to Allison, in April 2021, three of its advertisers received phone
calls from a person who identified herself as a journalist named “Maya” or “Maya
Pembledon.” The caller allegedly told the advertisers that Allison is a racist publisher
and encouraged them to cease advertising with Allison. The advertisers expressed
concerns to Allison after receiving the calls, and at least one decided not to renew its
advertising contract with Allison.
Allison learned that the calls had been made using one or more VoIP phone
numbers, which are internet-based numbers that are difficult to trace and, thus, help
maintain the anonymity of the caller. To independently “identify [the caller] and to
provide her with accurate information—and to remediate the reputational and
relational damage her calls caused,” Allison placed numerous calls to these VoIP
numbers that were not answered or returned. Allison also employed an attorney and
a private investigator to attempt to identify the caller, but its efforts proved
unsuccessful.
B. PROCEDURAL BACKGROUND
Allison sued “Jane Doe” on June 7, 2021, for business disparagement and
sought to subpoena the records of Bandwidth.com, a wholesaler of VoIP numbers
that owned the number used by Doe to call Allison’s advertisers. Bandwidth.com
3
notified Allison that it did not have access to Doe’s identity because it had sold the
right to use Doe’s VoIP number to another entity called Pinger, Inc.
On June 29, 2021, someone declaring to be the “Jane Doe” named in the
petition filed a special appearance2 and a motion to dismiss under section 27.003 of
the TCPA. Within and subject to the special appearance, Doe also pleaded a general
denial. All were filed anonymously and without any identifying information. Instead,
they attached a “Declaration of Jane Doe”—bearing the signature “Jane Doe”—
through which she asserted the need to preserve her anonymity to protect against
“reprisals” such as Allison’s lawsuit and to allow her reporting to “stand on its own.”
Doe claimed to be a journalist who sought information from certain of Allison’s
advertisers for a project investigating an alleged lack of diversity and inclusion of racial
minorities at publications located in major U.S. cities.
In her TCPA motion,3 Doe argued that dismissal was appropriate because
(1) Allison’s petition had not established a prima facie case for business disparagement
and (2) Doe had established an affirmative defense under Section 73.055 of the
Defamation Mitigation Act (DMA) because Allison failed to serve upon Doe a timely
request for correction, clarification, or retraction. Doe also sought attorney’s fees and
sanctions as allowed under the TCPA.
At a hearing on her motions, Doe waived her special appearance and entered a
2
general appearance.
Doe filed an amended TCPA motion to dismiss on August 19, 2021.
3
4
In response, Allison filed two motions: (1) a motion for the court to order Doe
to provide identifying information pursuant to the pleading requirements of Sections
30.014 and 30.015 of the Texas Civil Practice and Remedies Code and (2) a motion
for limited discovery under TCPA section 27.006 seeking to subpoena Pinger, Inc.’s
records and to issue written discovery requests to Doe or to depose Doe. Allison
claimed that good cause existed for the court to grant its second motion because the
requested information—including Doe’s identity—was needed to defend against
Doe’s TCPA motion to dismiss and to support the elements of its business
disparagement claim. The trial court denied both of Allison’s motions.
Doe then filed a Rule 91a motion to dismiss, arguing that Allison had failed to
plead with sufficient specificity which of Doe’s statements were defamatory and that
the statement that Allison was “racist” was not capable of a defamatory meaning.
Doe also reasserted that dismissal was required under Section 73.055 of the DMA.
In its final judgment, the trial court granted Doe’s TCPA motion, awarding her
$10,650 in attorneys’ fees and $10,000 in sanctions. It further ordered that “to
preserve the anonymity of [Doe], all payments of this judgment shall be made to The
Law Offices of Tony McDonald Client Trust Account to be held in trust by The Law
Offices of Tony McDonald for the benefit of [Doe].” The judgment also denied her
Rule 91a motion to dismiss as “moot.” Allison appealed, and Doe cross-appealed the
denial of her Rule 91a motion and the trial court’s award of attorneys’ fees.
5
Doe’s identity remains unknown to this court, the trial court, Allison, and even
Doe’s own attorney.4
III. DOE’S EXTRAORDINARY RELIEF
With its first issue, Allison asks if the trial court erred by awarding affirmative
relief to the unidentified Doe. We will answer yes, because the trial court’s subject
matter jurisdiction had not been established to entertain Doe’s TCPA motion.
Invoking the anonymous speech protections of the First Amendment, Doe
attempts to pave a road for recovery that, in our view, has never been paved in the
history of American jurisprudence: whereby a wholly unidentified, unnamed person
may invoke a court’s authority to obtain affirmative, merits-based, and dispositive
relief against another litigant. See Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 467
(Tex. App.—Houston [1st Dist.] 2020, pet. dism’d) (“[A] motion to dismiss under the
TCPA constitutes a claim for affirmative relief . . . .”); Buzbee v. Clear Channel Outdoor,
LLC, 616 S.W.3d 14, 22 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (“[A]
dismissal under the TCPA is a judgment on the merits and carries res judicata
implications.”); Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., 500 S.W.3d 26,
40 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (same).
Doe’s attorney stated at an August 19 hearing that he has “intentionally
4
avoided learning [Doe’s] name so that [he] can’t ever be forced to divulge it.” He
maintained this position at oral arguments before this court.
6
A. COURTS RECOGNIZE LIMITED RIGHT TO PROCEED PSEUDONYMOUSLY BUT
NOT IN COMPLETE ANONYMITY
Doe contends that her request is well-founded because courts across the nation
routinely recognize a litigant’s right to seek affirmative relief “pseudonymously.” She
directs us to sixteen such cases,5 each decided in various non-Texas state and federal
jurisdictions. Then, quoting law professor Eugene Volokh, Doe emphasizes that
plaintiffs are often permitted to proceed pseudonymously if “the injury litigated
against would be incurred as a result of the disclosure of the plaintiff’s identity.”
Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings L.J. (Jan. 13, 2021
draft) (manuscript at 42), https://www2.law.ucla.edu/volokh/pseudonym.pdf
(internal quotations omitted). This, Doe argues, is precisely the situation in which she
Doe cites: Doe v. Harris, 640 F.3d 972 (9th Cir. 2011); Doe v. City of N.Y.,
5
15 F.3d 264 (2d Cir. 1994); Doe v. Civiletti, 635 F.2d 88 (2d Cir. 1980); Doe [later renamed
to J.L.] v. Regis Univ., No. 1:21-cv-00580-NYW, 2021 WL 5056239, at *1 (D. Colo.
Mar. 2, 2021, order); E.B. v. Landry, No. 19-862-JWD-SDJ, 2020 WL 5775148, at *1
(M.D. La. Sept. 28, 2020, order); Doe v. Trs. of Dartmouth Coll., No. 18-cv-040-LM,
2018 WL 2048385, at *1 (D.N.H. May 2, 2018, order); Doe v. Grinnell Col., No. 4:17-
cv-079-RGE-SBJ, 2017 WL 11646145, at *1 (S.D. Iowa July 10, 2017, order); United
States Dep’t of Just. v. Utah Dep’t of Com., No 2:16-cv-00611-DN-DBP, 2017 WL
963203, at *1 (D. Utah Mar. 10, 2017); Doe v. United States, 210 F. Supp. 3d 1169(W.D. Mo. 2016); Doe v. Univ. of St. Thomas, No. 16-cv-1127-ADM-KMM, 2016 WL
9307609, at *1 (D. Minn. May 25, 2016, order); In re Ashley Madison Customer Data Sec.
Breach Litig., MDL No. 2669, 2016 WL 1366616, at *1 (E.D. Mo. Apr. 6, 2016); Doe v.
Alger, 317 F.R.D. 37 (W.D. Va. 2016); M.J. v. Jacksonville Hous. Auth., No. 3:00-cv-711-
J-37MCR, 2011 WL 4031099, at *1 (M.D. Fla. Sept. 12, 2011, order); Doe I-VIII v.
Sturdivant, No. 06-10214, 2006 WL 8432896, at *1 (E.D. Mich. Apr. 7, 2006); Doe v.
Szul Jewelry, Inc., 2008 N.Y. Slip. Op. 31382(U), 2008 WL 2157893, at *1 (Sup. Ct.
2008); Doe v. O’Neill, No. C.A. W.C. 86-354, 1987 WL 859818, at *1 (R.I. Super.
Jan. 6, 1987).
7
finds herself: defending against an infringement upon her right to First Amendment
anonymous speech, the loss of which would be the exact injury incurred if her identity
was disclosed.
But Doe’s argument and the authority on which it relies are irrelevant to our
case—chiefly because Doe conflates judicially-facilitated pseudonymity with total
anonymity. Each of the sixteen cases cited by Doe involved a pseudonymous party
whose name and identity were known to the trial court and also to the opposing party;
the litigants merely disputed whether that party’s real name should be revealed to the
public generally. See, e.g., City of N.Y., 15 F.3d at 265 (holding that employee had right
to keep private from public disclosure his HIV-positive status); Utah Dep’t of Com.,
2017 WL 963203, at *2 (granting intervenors’ motion to proceed using pseudonyms
because they had a right to keep private from public disclosure their prescriptions and
medical conditions); M.J., 2011 WL 4031099, at *1–3 (granting plaintiffs’ motion to
proceed using pseudonyms because they had a right to keep private from public
disclosure their juvenile criminal records).
We fail to see how these cases are instructive for deciding how to proceed with
the wholly-unknown Doe. To the contrary, we have neither discovered nor been
directed to any cases—in any jurisdiction—that stand for the proposition that a
person unknown to the trial court, the opposing party, and her own attorney can
proceed and be awarded the type of relief obtained here by Doe.
8
B. TEXAS LAW DOES NOT CONTEMPLATE SUCH RELIEF
FOR UNKNOWN LITIGANTS
Doe further argues that the TCPA and Texas pleading rules give wide latitude
to the trial court to proceed with a completely anonymous party. The TCPA, she
says, exists precisely to protect anonymous speech and delineates no requirement that
movants under Section 27.003 be known—something the legislature could have
included had it desired to deny relief to anonymous parties. See Tex. Civ. Prac. &
Rem. Code Ann. § 27.003(a). In this vein, Doe notes that no Texas court has “yet to
object” to an anonymous party moving for TCPA relief, citing only to Glassdoor, Inc. v.
Andra Grp., L.P. 575 S.W.3d 523, 525 (Tex. 2019).
In Glassdoor, Inc., a clothing retailer filed a Rule 202 petition for discovery to
obtain identifying information of people who anonymously left negative reviews of
the retailer’s business on the website Glassdoor.com. Id.; see Tex. R. Civ. P. 202.
Specifically, the retailer sought to depose a representative of Glassdoor, Inc., to
discover the reviewers’ identities. Glassdoor, Inc., 575 S.W.3d at 525. Glassdoor, Inc.
then filed a TCPA motion to dismiss, which was joined anonymously by two of the
reviewers identified only as Doe 1 and Doe 2.6 Id. The trial court denied Glassdoor’s
TCPA motion and granted the retailer’s discovery request. Id. at 526.
6
Doe 1 and Doe 2 never sought to formally join the proceedings as parties and
the retailer did not object to their joining of Glassdoor, Inc.’s motion. Glassdoor, Inc. v.
Andra Group, LP, 560 S.W.3d 281, 285 n.1 (Tex. App.—Dallas 2017), judgment vacated,
cause dismissed, 575 S.W.3d 523 (Tex. 2019).
9
On appeal, the supreme court was asked whether the trial court had erred in
denying Glassdoor, Inc.’s motion and granting the retailer’s Rule 202 discovery
request. Id. at 525. However, the court did not address these issues, holding that the
dispute was moot because any of the retailer’s potential claims were barred by the
applicable statute of limitations:
Andra necessarily discovered the reviews before filing its Rule 202
petition, at which time its causes of action commenced even though it
did not know the authors’ identities. Andra could have filed suit and
conducted discovery about those identities, but chose instead to proceed
under Rule 202, thereby risking the timeliness of its potential claims. See
In re Does 1–10, 242 S.W.3d 805, 814 (Tex. App.—Texarkana 2007, orig.
proceeding) (noting that “in most cases involving Internet lawsuits based
on libel or breach of contract, the scenario is that suit is brought against
a Doe defendant, and the plaintiff at some point early in the proceeding
seeks to discover his or her identity . . . through the discovery tools of
that forum”).
Id. at 530. Accordingly, the case was dismissed for want of jurisdiction. Id. at 531.
We are not convinced by Doe’s arguments pertaining to statutory silence. That
the TCPA fails to specifically prohibit anonymous movants cannot serve as evidence
of an intentional omission by the legislature—particularly when such an interpretation
would serve to contravene the explicit procedural rules of this state that require party
identification.7 This is because the “legislature does not alter major areas of law ‘in
7
See Tex. R. Civ. P. 45 (providing that pleadings must contain all information
“required by any law or rule authorizing or regulating any particular action or
defense”); Tex. Civ. Prac. & Rem. Code Ann. §§ 30.014 (requiring each party to
include in its initial pleading the last three numbers of its driver’s license and social
security numbers), 30.015 (requiring each party who has appeared or answered to
provide to the trial court clerk its name and current address); see also Stinson v. King,
10
vague terms’ or no terms at all—‘it does not, one might say, hide elephants in
mouseholes.’” Wasson Ints., Ltd. v. City of Jacksonville, 489 S.W.3d 427, 438 (Tex. 2016)
(quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468, 121 S. Ct. 903, 910 (2001);
see La Sara Grain Co. v. First Nat’l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984)
(“Generally, courts are to construe statutes so as to harmonize with other relevant
laws, if possible.”); see also Massachusetts v. United N. & S. Dev. Co., 140 Tex. 417, 421
(1942) (“Interpretation by implication is permitted only to supply obvious intent not
expressly stated, and never to contradict nor add to a statute.”).
Neither does an absence of judicial objections to anonymous TCPA movants
connote that Texas courts endorse such a practice. Instead, it emphasizes the novelty
of Doe’s position in that, as far as we can tell, no other court has been asked to
address the issue. In Glassdoor, Inc., the supreme court was rightly unconcerned with
the anonymous Doe 1 and Doe 2 parties because it held that the retailer was time-
barred from ever again suing any person, regardless of that person’s identity, for
leaving the negative reviews then at issue. Glassdoor, Inc., 575 S.W.3d at 530–31.
83 S.W.2d 398, 399 (Tex. App.—Dallas 1935, writ dism’d) (“No suit can lawfully be
prosecuted save in the name of a plaintiff and against a defendant having a legal entity
either as a natural or as an artificial person. There must be a real plaintiff and a real
defendant.”); Davis v. Raney Auto Co., 249 S.W. 878, 878 (Tex. App.—Texarkana 1923,
no writ) (“Every individual who sues for his own private benefit must sue in his own
name; that is, the name by which he is legally known as distinguished from other
individuals.”); Midkiff v. Stephens, 29 S.W. 54, 55 (Austin 1895, no writ) (“A plea that
does not show on its face, and with certainty, in whose behalf it is made, presents no
issue between the parties, and should be treated as a nullity.”).
11
Having dismissed the entire case for want of jurisdiction, any subsequent ruling by the
supreme court related to the Does’ identities would have likely constituted an
unlawful advisory opinion. See Meeker v. Tarrant Cnty. Coll. Dist., 317 S.W.3d 754, 758–
59 (Tex. App.—Fort Worth 2010, pet. denied) (“The mootness doctrine prevents
courts from rendering advisory opinions, which are outside the jurisdiction conferred
by . . . the Texas constitution.”).
Further, in arguing that the TCPA “is meant to” protect anonymous speech,
Doe forgets that the TCPA’s purpose is actually twofold: to (1) protect a person’s
First Amendment rights, and also to (2) “protect the rights of a person to file
meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code Ann.
§ 27.002. In other words, the TCPA’s speech protections must be balanced by the
rights of allegedly-defamed parties who are equally entitled to have their cases
developed and tested in the courts of this state. Id. The second TCPA protection
would be improperly subordinated to the first if a TCPA movant was entitled to
merits-based relief as an anonymous party because a non-movant could never proffer
a meaningful defense against an unknown foe. See Sw. Refin. Co. v. Bernal, 22 S.W.3d
425, 437 (Tex. 2000) (“And basic to the right to a fair trial—indeed, basic to the very
essence of the adversarial process—is that each party have the opportunity to
adequately and vigorously present any material claims and defenses.”); see also First
United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 224–25 (Tex. 2017)
(stating that Texas fair-notice pleading standards measure “whether the pleadings have
12
provided the opposing party sufficient information to enable that party to prepare a
defense or a response”).
Accordingly, we disagree with Doe that there exists a common law or statutory
mechanism through which a completely anonymous TCPA movant may invoke a
court’s authority to obtain affirmative, merits-based, and dispositive relief.
IV. DISCUSSION
We will now turn to traditional jurisdiction rules to analyze whether the trial
court’s subject matter jurisdiction had been established to authorize the entrance of its
final judgment.
A. JURISDICTION MUST BE ESTABLISHED FROM THE OUTSET
“As a general proposition, before a court may address the merits of any case,
the court must have jurisdiction over the party or the property subject to the suit,
jurisdiction over the subject matter, jurisdiction to enter the particular judgment, and
capacity to act as a court.” The State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex.
1994). A court’s jurisdiction “not only embraces the power to hear, but includes as
well the authority to enter a judgment, and to carry that judgment into execution.”
Morrow v. Corbin, 62 S.W.2d 641, 645 (1933); see Smith v. Clopton, 4 Tex. 109, 114 (1849)
(“The only inquiry then to be made at the institution of a suit is whether the facts of
the case are such as to entitle a party to a judgment in his favor in either law or equity . . . .”
(emphasis added)).
13
B. SUBJECT MATTER JURISDICTION
Questions of party identification inherently bear upon a court’s subject matter
jurisdiction. See Reddy P’ship/5900 N. Freeway LP v. Harris Cnty. Appraisal Dist.,
370 S.W.3d 373, 376 (Tex. 2012) (addressing whether trial court had jurisdiction after
a party was misnamed in petition); Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex.
1991) (addressing whether trial court had jurisdiction to enter judgment against party
not specifically named in petition); Dunlap v. Southerlin, 63 Tex. 38, 43 (1885)
(addressing whether trial court had jurisdiction to enter judgment in favor of party not
specifically named in petition). Subject matter jurisdiction is essential to the trial
court’s authority and “is never presumed and cannot be waived.” Tex. Ass’n of Bus. v.
Tex. Air Cont. Bd., 852 S.W.2d 440, 443–44 (Tex. 1993). Appellate courts are duty-
bound to examine issues of subject matter jurisdiction and may do so sua sponte.
Meeker, 317 S.W.3d at 758–59; see M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex.
2004). Issues of standing and mootness implicate subject matter jurisdiction and must
be established at the outset of a case. Patterson v. Planned Parenthood of Hous. & Se. Tex.,
Inc., 971 S.W.2d 439, 442–43 (Tex. 1998); see El Paso Cnty. v. El Paso Cnty. Emergency
Servs. Dist. No. 1, 622 S.W. 25, 36 (Tex. App.—El Paso 2020, no pet.) (explaining that
standing and mootness are threshold issues because “an absence of subject-matter
jurisdiction obviates a case from being heard.”) (citing Tex. Ass’n of Bus., 852 S.W.2d at
443–44).
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1. Standard of Review
Whether the trial court has subject matter jurisdiction is a legal question that
appellate courts review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004); Meeker, 317 S.W.3d at 758–59. The burden of proof to establish
subject matter jurisdiction rests upon the party who, by requesting affirmative relief,
seeks to invoke the jurisdiction of the trial court. Country Cmty. Timberlake Vill., L.P. v.
HMW Special Util. Dist. of Harris, 438 S.W.3d 661, 667 (Tex. App.—Houston [1st
Dist.] 2014, pet. denied) (citing Tex. Ass’n of Bus., 852 S.W.2d at 446); see Kessling v.
Friendswood Indep. Sch. Dist., 302 S.W.3d 373, 386 (Tex. App.—Houston [14th Dist.]
2009, pet. denied) (citing DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex.
2008)); see also Pace Corp. v. Jackson, 284 S.W.2d 340, 350 (Tex. 1955) (“[I]f one party is
asserting a right to damages or some other active relief in his own behalf, the burden
of proving his right to that relief still rests upon him. The time sequence in filing of
pleadings can neither relieve him of his responsibilities nor deprive him of his
advantages.”)
When, as here, the appellate court sua sponte raises the issue of subject matter
jurisdiction,8 it must construe the pleadings in favor of the party invoking the trial
court’s jurisdiction and, if necessary, review the entire record to determine if any
8
While Allison complained generally that the trial court erred in awarding Doe
relief, it did not brief the issue as one implicating the trial court’s subject matter
jurisdiction.
15
evidence supports jurisdiction. Tex. Ass’n of Bus., 852 S.W.2d at 446; see Fin. Comm’n of
Tex. v. Norwood, 418 S.W.3d 566, 582 n.86 (Tex. 2013). If the record and pleadings
affirmatively negate the existence of jurisdiction the case should be dismissed, Rusk
State Hosp. v. Black, 392 S.W.3d 88, 96–97 (Tex. 2012), but if they “do not
affirmatively demonstrate an incurable defect,” the party should be afforded the
opportunity to replead, C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389, 395 (Tex. 2007).
2. Standing
To establish standing, a party must allege facts sufficient to show that it—
rather than a third party or the public at large—was personally injured and has a
sufficient relationship with the lawsuit to have a justiciable interest in its outcome.
Heckman v. Williamson Cnty., 369 S.W.3d 137, 155 (Tex. 2012); Rhey v. Redic, 408 S.W.3d
440, 456 (Tex. App.—El Paso 2013, no pet.). Such injury must be “concrete and
particularized, actual or imminent, [and] not hypothetical.” DaimlerChrysler Corp.,
252 S.W.3d at 304–05.
Put simply, Doe existed as a legal fiction to the trial court and thus she has not
alleged sufficient facts to show that she is the true defendant with a connection to this
case. See Riston v. Doe, 161 S.W.3d 525, 528 (Tex. App.—Houston [14th Dist.] 2004,
pet. denied) (“‘John Doe’ is a fictitious name used in legal proceedings to designate a
person whose identity is unknown.”) (citing BLACK’S LAW DICTIONARY 845 (7th ed.
1999)); Meg Tomlinson, Krupski and Relation Back for Claims Against John Doe Defendants,
86 Fordham L. Rev. 2071, 2084 (2018) (“While the use of fictitious defendants is not
16
favored, courts have recognized their utility as stand-ins for real parties to afford
plaintiffs the opportunity to identify unknown defendants through discovery.”); cf.
Herrera v. Cleveland, 8 F.4th 493, 498 (7th Cir. 2021), cert. denied, 142 S. Ct. 1414 (2022);
Kemper Ins. Cos. v. Fed. Exp. Corp., 115 F. Supp. 2d 116, 125 (D. Mass. 2000); 3 Am.
Jur. Trials § 681 (2022). It follows, then, that Doe’s injury as alleged in her TCPA
motion bore the same fictional quality and could not yet be shown for standing
purposes to be concrete, particularized, and actual. See DaimlerChrysler Corp.,
252 S.W.3d at 304–05. Without knowing Doe’s identity, the trial court was powerless
to answer the most fundamental of questions: Who is Jane Doe? Being unable to
answer this question, the trial court could not have reasonably determined that the
real person standing behind the Jane Doe curtain was the actual defendant who had a
personal stake in the case. Id.
We conclude that Doe’s standing had not been sufficiently proven to invoke
the trial court’s subject matter jurisdiction.
3. Mootness
The mootness doctrine requires that a controversy exist between the parties at
every stage of the litigation. Meeker, 317 S.W.3d at 759. An issue is moot “when a
party seeks a ruling on some matter that, when rendered, would not have any practical
legal effect on a then-existing controversy.” Id.; see Brown v. Todd, 53 S.W.3d 297, 302
(Tex. 2001) (explaining that, because courts are prohibited from issuing advisory
opinions, all judicial decisions must have a binding effect on the parties). For a
17
judgment to have legal effect it “must be sufficiently definite and certain to define and
protect the rights of all litigants, or it should provide a definite means of ascertaining
such rights, to the end that ministerial officers can carry the judgment into execution
without ascertainment of facts not therein stated.” Stewart v. USA Custom Paint &
Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994) (holding that a document labeled as a
dismissal order that did not include the party names or docket number was not a valid
judgment because it was impossible to discern from its face whose rights were
affected).
Without knowing Doe’s name or identity, it was impossible for the trial court
to render a judgment as to her TCPA motion that was sufficiently definite to have any
practical legal effect. The trial court’s attempt at a final judgment highlights why this
is true. It is captioned as “Allison Publications, LLC, Plaintiff, v. Jane Doe, Defendant,”
and it contains no identifying or contact information for Doe. Additionally, it directs
Allison to make all payments to a trust account held by Doe’s attorney—who himself
admits to not knowing Doe’s name and cited at the motions hearing his “fiduciary
duty” to Doe as the only mechanism available to ensure that payment of the final
judgment award would make its way to Doe.
Thus, by its very terms, the trial court’s judgment sought to protect Doe’s
identity from the entire world, which invariably precludes a ministerial officer or the
trial court itself from effectuating the judgment. A ministerial officer tasked with
execution would be unable to ascertain exactly whose rights it was seeking to protect.
18
See Stewart, 870 S.W.2d at 20; see also Tex. R. Civ. P. 629 (requiring all writs of
execution to contain the “names of the parties in whose favor and against whom the
judgment was rendered”).
And, relatedly, the judgment’s silence as to Doe’s identity would render any
future competent court incapable of parsing certain post-judgment matters. For
instance, if an issue of res judicata arose, what would stop Doe—or another person
claiming to be the true Jane Doe—from bringing a new action related to the same
subject matter? See Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007)
(stating that res judicata bars a subsequent suit only if the identities of the parties to a
previously adjudicated suit are established as the same as those in the subsequent suit).
Or, how would a court navigate an application for a turnover order, a temporary
restraining order to prevent the secreting of assets, or a writ of garnishment to
impound Allison’s nonexempt property? See Gerjets v. Davila, 116 S.W.3d 864, 867
(Tex. App.—Corpus Christi-Edinburg 2003, no pet.) (turnover order and TRO);
Patriot Residential Mgmt. Servs., LLC v. Wells Fargo Bank, N.A., No. 02-12-00253-CV,
2013 WL 2338769 at *1 (Tex. App.—Fort Worth May 30, 2013, no pet.) (mem. op.)
(turnover order and garnishment action). A future court looking to the trial court’s
final judgment devoid of Doe’s identity could not reliably rule on any of these
matters.
19
Tellingly, Doe agrees that her anonymity rendered the trial court impotent to
enter a binding order against her, stating in her response to Allison’s motion for
identifying information that
it is unclear what would be the purpose or effect of holding an
anonymous defendant in contempt . . . . Indeed, issuance of a bench
warrant calling for the arrest of “Jane Doe” would be quite a farce . . . .
[And] it is again unclear what would be the purpose or effect of assessing
a $50 fine against an anonymous defendant, or how the court would
expect to collect $50 from “Jane Doe.”
Thus, Doe seeks to have her anonymity and wield it, too. This runs afoul of
the principle that a party not bound by a judgment is barred from asserting that
another is bound by it, Glover v. Donohoo, 197 S.W.2d 531, 534 (Tex. App.—El Paso
1946, no writ), and the well-worn prohibition against the offensive use of certain
privileges or immunities. See, e.g., Ginsberg v. Fifth Ct. of Appeals, 686 S.W.2d 105, 108
(Tex. 1985) (“A plaintiff cannot use one hand to seek affirmative relief in court and
with the other lower an iron curtain of silence against otherwise pertinent and proper
questions which may have a bearing upon his right to maintain his action.”) (internal
quotations omitted); cf. Reata Const. Corp. v. City of Dall., 197 S.W.3d 371, 375–76 (Tex.
2006) (“[W]e believe it would be fundamentally unfair to allow a governmental entity
to assert affirmative claims against a party while claiming it had immunity as to the
party’s claims against it.”).
20
V. CONCLUSION
For these reasons, we conclude that Doe did not allege sufficient facts for the
trial court to make the threshold determinations regarding standing and mootness to
establish subject matter jurisdiction. However, because this does not present an
incurable defect, Doe should be given the opportunity to plead additional facts as
necessary to establish that jurisdiction. See C.L. Westbrook, Jr., 231 S.W.3d at 395.
Our resolution on jurisdictional grounds of Allison’s first issue disposes of
Allison’s second and third issues and also Doe’s second issue on cross-appeal.9 See
Tex. R. App. P. 47.1. Further, we pretermit consideration of Allison’s fourth issue
because its resolution would not alter the disposition of the appeal, and the issue may
be rendered moot upon remand and further proceedings below. See Tex. R. App.
P. 47.1; Horn v. Hedgecoke Ins. Agency, 836 S.W.2d 296, 299–300 (Tex. App.—Amarillo
1992, no pet.).
Accordingly, we reverse the trial court’s final judgment and remand for further
proceedings below, to include giving Doe the opportunity to provide any facts
9
Doe’s first issue on cross-appeal argues that the trial court erred by denying
her Rule 91a motion. Because this motion also sought affirmative relief by way of a
dismissal with prejudice and attorney’s fees, our jurisdictional analysis applies equally
thereto, and we thus overrule this issue. See Rauhauser v. McGibney, 508 S.W.3d 377,
381 (Tex. App.—Fort Worth 2014, no pet.), overruled on other grounds by Hersh v. Tatum,
526 S.W.3d 462, 467 (Tex. 2017) (“The law is well-settled that a defendant’s motion to
dismiss that may afford more relief than nonsuit affords constitutes a claim for
affirmative relief . . . .”).
21
necessary to establish the court’s jurisdiction to decide her TCPA motion. See Tex. R.
App. P. 43.2(d), 43.3(a); C.L. Westbrook, Jr., 231 S.W.3d at 395.
/s/ Brian Walker
Brian Walker
Justice
Delivered: August 18, 2022
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