Mark Thuesen v. David Robert Scott ( 2023 )

In the
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00254-CV
________________
MARK THUESEN, Appellant
V.
DAVID ROBERT SCOTT, Appellee
________________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 22-03-03383-CV
________________________________________________________________________
OPINION
In this accelerated interlocutory appeal, Appellant Mark Thuesen challenges
the trial court’s order denying his Motion to Dismiss pursuant to the Texas Citizens’
Participation Act (“TCPA”). See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.011,
51.014(a)(12) (authorizing interlocutory appeal for order denying TCPA motion to
dismiss filed under section 27.003). Thuesen sued David Robert Scott for
interference with his possessory right to Thuesen’s child. See Tex. Fam. Code Ann.
§§ 42.001–.003. Scott answered with a General Denial that included a Motion for
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Sanctions asserting that Thuesen filed a frivolous pleading, which Thuesen asserted
constituted a “legal action” and moved to dismiss pursuant to the TCPA. See Tex.
Civ. Prac. & Rem. Code Ann. § 27.003. As discussed below, we affirm the trial
court’s order denying Thuesen’s TCPA Motion to Dismiss.
I. Background
Thuesen and Breanna Ward had a child together but are no longer in a
romantic relationship. Scott and Ward are in a relationship, and according to the
record Scott is characterized as Ward’s “significant other.” Thuesen sued Scott for
interference with possessory interest in child and alleged that Scott and Ward kept
his child from him over the Christmas holidays in 2021 and into 2022 when he was
entitled to possession. Thuesen alleged this conduct violated an Agreed Modification
of Conservators, Possession and Access Order (“Possession Order”) from
Montgomery County Court at Law Number 3 (“CCL”). Thuesen further alleged that
the CCL ordered the child returned to Thuesen. Thuesen specifically alleged that:
Scott violated his rights by retaining possession of the child when Thuesen was
entitled to possession; Scott aided and assisted in the conduct that violated Thuesen’s
court-ordered possessory rights when Thuesen was entitled to possession and access;
and Scott either had actual knowledge of the existence and contents of the Possession
Order or reasonable cause to believe that the child was the subject of a court order
and that his actions were likely to violate the court order.
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In his Original Petition for Interference with Possessory Interest in Child,
Thuesen described how Ward took their child and refused to return him after
Thuesen granted her request to see the child for a visit at a park over the holidays
during Thuesen’s designated period of possession. Thuesen also alleged he
repeatedly called her and sent text messages, but Ward cut off all communication
with Thuesen in violation of the Possession Order. Thuesen pleaded that he
contacted the Colorado County Sheriff’s Office, who sent an officer to the residence,
where Scott had the officer call Thuesen and read him a criminal trespass warning
over the phone. Scott then threatened to have Thuesen arrested although the
Possession Order provided for pickup of the child at that residence on some
occasions. Thuesen alleged that on December 26, 2022, he filed a “Petition for Writ
of Habeas Corpus for Return of Child and Writ of Attachment” and that the CCL
ordered Ward to appear with the child on January 11, 2022. Thuesen further claimed
that Scott traveled to the courthouse with Ward but continued to illegally restrain,
retain possession of, and “concealed the whereabouts of the child” outside the
courtroom. Thuesen alleged that Scott did so despite having actual notice of the
existence and contents of the Possession Order or reasonable cause to believe that
the child was the subject of the Possession Order.
When Scott answered, he moved for sanctions pursuant to Texas Rule of Civil
Procedure 13 and Texas Civil Practice and Remedies Code chapter 10. Scott alleged
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that Thuesen’s suit was harassing, groundless, and “had no basis in law or fact and
not warranted by good faith argument for the extension, modification or reversal of
existing law.” Scott further asserted that Thuesen filed his Petition frivolously. Scott
complained that Thuesen alleged Scott “was jointly and severally liable for conduct
that has already been litigated and disposed of.” Scott sought “costs of court,
attorney’s fees, and such other and further relief as Defendant may be entitled to in
law or equity.”
Thereafter, Thuesen filed a TCPA Motion to Dismiss Scott’s “legal action”
for sanctions against him. Thuesen argued that Scott’s Motion for Sanctions was in
response to Thuesen’s lawsuit and implicated Thuesen’s right to free speech and
right to petition. Thuesen further asserted that it was Scott’s burden to prove that his
Motion for Sanctions was exempt under the TCPA. Thuesen supported his TCPA
Motion to Dismiss with his Affidavit and certified copies of records from the CCL
custody proceedings. Scott did not respond to the TCPA Motion to Dismiss or
present any evidence. The trial court determined that Scott’s Motion for Sanctions
did not constitute a “legal action” under the statute, thus the TCPA did not apply and
denied Thuesen’s Motion to Dismiss. After Thuesen appealed, Scott filed an
Amended Answer omitting his Motion for Sanctions, which is not part of the
appellate record.
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On appeal, Thuesen contends that: (1) his TCPA Motion to Dismiss was
timely; (2) he met his initial burden demonstrating that Scott’s legal action is based
on or in response to his exercise of the right of free speech and right to petition; (3)
Scott’s Motion for Sanctions constituted a “legal action” for purposes of the TCPA;
(4) Scott failed to establish by clear and specific evidence a prima facie case for each
essential element of his legal action for sanctions; and (5) he established an
affirmative defense or other grounds which entitled him to judgment as a matter of
law. Scott counters that he has dismissed his Motion for Sanctions, thus making the
appeal moot.
II. Standard of Review
We review a trial court’s denial of a TCPA motion to dismiss de novo. See
Walker v. Hartman, 516 S.W.3d 71, 79–80 (Tex. App.—Beaumont 2017, pet.
denied) (citation omitted); see also Adams v. Starside Custom Builders, LLC, 547
S.W.3d 890, 897 (Tex. 2018) (citations omitted). We consider the pleadings and
affidavits stating facts upon which liability or any defense is based in the light most
favorable to the nonmovant. See Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a); In
re Lipsky, 460 S.W.3d 579, 587 (Tex. 2015) (orig. proceeding); Push Start Indus.,
LLC v. Hous. Gulf Energy Corp., No. 09-19-00290-CV, 2020 WL 7041567, at *3
(Tex. App.—Beaumont Nov. 30, 2020, no pet.) (mem. op.) (citations omitted).
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III. Analysis
A. Mootness
Scott questions our subject matter jurisdiction and contends that he ultimately
dismissed his Motion for Sanctions filed in the trial court making this appeal moot,
so we first address mootness. Although Scott’s First Amended Answer is not part of
the clerk’s record; as we explain, even if we could consider the Amended Answer,
it would not impact our subject matter jurisdiction. See Tex. R. App. P. 34.1
(discussing contents of record); see also James v. State, 997 S.W.2d 898, 901 n.5
(Tex. App.—Beaumont 1999, no writ) (“An appellate court must determine a case
on the record as filed and cannot consider documents attached as exhibits or
appendices to briefs or motions.”). “‘[A]lthough a plaintiff decides which of its own
claims to pursue or to abandon, that decision does not control the fate of a
nonmoving party’s independent claims for affirmative relief.’” Walker, 516 S.W.3d
at 80 (quoting Rauhauser v. McGibney, 508 S.W.3d 377, 381–82 (Tex. App.—Fort
Worth 2014, no pet.)). However, a TCPA motion to dismiss survives a nonsuit or
opposing party’s dismissal, because a TCPA motion to dismiss permits the movant
to obtain a dismissal with prejudice, attorney’s fees, and sanctions. See id.; see also
Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a) (requiring trial court to award court
costs and attorney’s fees and permitting the award of sanctions if the court dismisses
a legal action). While Scott had the right to abandon his Motion for Sanctions,
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Thuesen’s TCPA Motion to Dismiss was filed prior to the First Amended Answer
and the TCPA motion survived Scott’s abandonment of the Motion for Sanctions.
See Walker, 516 S.W.3d at 80; Rauhauser, 508 S.W.3d at 381–82. Therefore, this
Court has subject matter jurisdiction to entertain this appeal.
B. TCPA Applicability
1. TCPA Motions to Dismiss
The TCPA is meant “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.” 1 Tex.
Civ. Prac. & Rem. Code Ann. § 27.002. The TCPA instructs courts to liberally
construe it to ensure its stated purpose and intent are fully effectuated, but it “does
not abrogate or lessen any other defense, remedy, immunity, or privilege available
under other constitutional, statutory, case, or common law or rule provisions.” See
id. § 27.011(a), (b); ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898
(Tex. 2017). Under the TCPA, a party may file a motion to dismiss a “legal action”
that is “based on or is in response to a party’s exercise of the right of free speech,
1In 2019, the legislature amended the TCPA. See Act of May 17, 2019, 86th
Leg., R.S., ch. 378, §§ 1–12, 2019 Tex. Gen. Laws 684, 684–87 (current version
at Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.011). The current version of the
statute applies to the case before us. See id. §§ 11–12, 2019 Tex. Gen. Laws at 687.
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right to petition, or right of association[.]” Tex. Civ. Prac. & Rem. Code Ann. §
27.003(a); see also Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d
127, 131 (Tex. 2019). Thuesen asserted that Scott’s Motion for Sanctions was a
“legal action” in response to his exercise of the right of free speech and right to
petition.
The TCPA “provides a three-step process for the dismissal of a ‘legal action’
to which it applies.” Montelongo v. Abrea, 622 S.W.3d 290, 296 (Tex. 2021) (citing
Castleman v. Internet Money Ltd., 546 S.W.3d 684, 691 (Tex. 2018)); see also Tex.
Civ. Prac. & Rem. Code Ann. § 27.005(b)–(d). First, the movant bears the initial
burden to show that the “legal action is based on or is in response to[]” the movant’s
exercise of: “(1) the right of free speech; (2) the right to petition; or (3) the right of
association[.]” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)(1)(A)–(C). If the
movant establishes that the nonmovant’s claim implicates one of these rights, the
burden shifts to the plaintiff to “‘establish[ ] by clear and specific evidence a prima
facie case for each essential element of the claim in question.’” Lipsky, 460 S.W.3d
at 587 (quoting Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c)). Finally, if the
nonmovant establishes their prima facie case, the burden shifts back to the movant
to establish each essential element of an affirmative defense by a preponderance of
the evidence. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d); Youngkin v. Hines,
546 S.W.3d 675, 679–80 (Tex. 2018); Coleman, 512 S.W.3d at 899. In deciding
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whether to dismiss a “legal action” under the TCPA, a court “shall consider the
pleadings, evidence a court could consider under Rule 166a, . . ., and supporting and
opposing affidavits stating the facts on which the liability or defense is based.” Tex.
Civ. Prac. & Rem. Code Ann. § 27.006(a); see also Dall. Morning News, Inc. v.
Hall, 579 S.W.3d 370, 377 (Tex. 2019). “A prima facie case ‘refers to evidence
sufficient as a matter of law to establish a given fact if it is not rebutted or
contradicted.’” Landry’s, Inc. v. Animal Legal Defense Fund, 631 S.W.3d 40, 46
(Tex. 2021) (quoting Lipsky, 460 S.W.3d at 590).
2. Is the request for Sanctions a “Legal Action?”
In his first three issues, Thuesen discusses the timeliness of his TCPA Motion
to Dismiss and the TCPA’s applicability under the statute. We begin with issue three
and Thuesen’s assertion that Scott’s Motion for Sanctions constituted a “legal
action” for purposes of the TCPA, as it is dispositive of this appeal. The trial court
determined that the Motion for Sanctions was not a “legal action” and denied
Thuesen’s TCPA Motion to Dismiss.
This issue involves statutory construction, which is a question of law we
review de novo. See In re Panchakarla, 602 S.W.3d 536, 540 (Tex. 2020) (orig.
proceeding). If a statute’s language is unambiguous, “‘we adopt the interpretation
supported by its plain language unless such an interpretation would lead to absurd
results.’” Id. (quoting TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,
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439 (Tex. 2011)); see also State ex rel. Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018)
(citation omitted). We view the statute as a whole rather than examining isolated
provisions. See Panchakarla, 602 S.W.3d at 540 (citation omitted); Youngkin, 546
S.W.3d at 680. Accordingly, we not only look to what is included in the broad
definition of “legal action” but also any exclusions.
The TCPA defines “legal action” as “a lawsuit, cause of action, petition,
complaint, cross-claim, or counterclaim or any other judicial pleading or filing that
requests legal, declaratory, or equitable relief.” Tex. Civ. Prac. & Rem. Code Ann.
§ 27.001(6); see also Montelongo, 622 S.W.3d at 296 (citing Harper, 562 S.W.3d at
8) (observing the definition of “legal action”). In 2019, the Legislature amended the
definition of a “legal action” to expressly exclude the following:
(A) a procedural action taken or motion made in an action that
does not amend or add a claim for legal, equitable, or declaratory
relief;
(B) alternative dispute resolution proceedings; or
(C) post-judgment enforcement actions.
See Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 1, sec. 27.001(6), 2019 Tex.
Gen. Laws 684, 685 (current version at Tex. Civ. Prac. & Rem. Code Ann. §
27.001(6)(A)–(C)). The statutory exclusions do not expressly mention a motion for
sanctions. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6)(A)–(C). Therefore,
we must determine if a motion for sanctions pursuant to Texas Rule of Civil
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Procedure 13 or chapter 10 qualifies under the first enumerated exclusion and is “a
procedural action taken or motion made in an action that does not amend or add a
claim for legal, equitable, or declaratory relief.” Id. § 27.001(6)(A).
Scott’s Motion for Sanctions falls within the exception outlined in
27.001(6)(A). It is certainly a “procedural action taken or motion made in an
action[.]” Id. We next consider if it “amend[s] or add[s] a claim for legal, equitable,
or declaratory relief.” Id. Since the TCPA does not further define a “claim” or
“relief” we give these words their plain or common meaning. See Panchakarla, 602
S.W.3d at 540; Lipsky, 460 S.W.3d at 590 (citation omitted). We usually look first
to dictionary definitions to determine common, ordinary meaning. See Tex. Dep’t of
Criminal Justice v. Rangel, 595 S.W.3d 198, 208 (Tex. 2020) (citation omitted).
“Claim” is defined to include “[t]he assertion of an existing right; any right to
payment or to an equitable remedy, even if contingent or provisional[.]” Claim,
BLACK’ S LAW DICTIONARY (11th ed. 2019). “Relief” is defined as “redress or benefit
. . . that a party asks of a court[,]” and another term for “relief” is “remedy.” Relief,
BLACK’ S LAW DICTIONARY (11th ed. 2019). “Remedy” is “[t]he means of enforcing
a right or preventing or redressing a wrong; legal or equitable relief.” Remedy,
BLACK’ S LAW DICTIONARY (11th ed. 2019). Based on these definitions, we conclude
that the salient determination is whether the request for sanctions is an assertion of
an existing right a party enforces. As the Texas Supreme Court recently directed,
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“Our starting point is Brown v. De La Cruz, which provides the controlling legal
standard: the existence of a private cause of action must be clearly implied in the
statutory text.” Tex. Medicine Res., LLP v. Molina Healthcare of Tex., Inc., 659
S.W.3d 424, 431 (Tex. 2023) (citing Brown v. De La Cruz, 156 S.W.3d 560, 563
(Tex. 2004)).
“Various rules and statutes imbue courts with authority to sanction attorneys”
and parties. Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 717–18 (Tex.
2020) (citing Tex. Civ. Prac. & Rem. Code Ann. §§ 10.001–.006; Tex. R. Civ. P.
13) (other citations omitted). “A court’s inherent authority includes the ‘power to
discipline an attorney’s behavior.’” See id. at 718 (quoting In re Bennett, 960 S.W.2d
35, 40 (Tex. 1997)). Under both Rule 13 and chapter 10, a party may move for
sanctions, or the court may sanction a party on “its own initiative[.]” Tex. Civ. Prac.
& Rem. Code Ann. § 10.002(a), (b), 10.004(e); Tex. R. Civ. P. 13. If a court can
sanction on its “own initiative” and under its inherent authority (i.e., absent the
motion of a party), it is not an existing right that a party holds; it belongs to the court.
Even if the party requesting sanctions presents proof that a pleading was groundless,
frivolous, filed in bad faith, or for an improper purpose, it does not mean they are
entitled to payment or an equitable remedy; rather, the sole determination of whether
to sanction a party and what that sanction will be rests within the trial court’s
discretion. See Tex. Civ. Prac. & Rem. Code Ann. §§ 10.002(c) (stating court “may
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award” prevailing party), 10.004(a), (c) (stating that a court “may impose a sanction”
when a party signs a pleading in violation of the rules and setting out that it may
include an order to pay a penalty into the court, among other things); Tex. R. Civ. P.
13 (noting “shall impose an appropriate sanction”). In some instances, an appropriate
sanction may be “an order to pay a penalty into court[]” rather than to the movant.
See Tex. Civ. Prac. & Rem. Code Ann. § 10.004(c)(2). Since a motion for sanctions
does not assert an existing right nor is it a right to receive payment or an equitable
remedy, it “does not amend or add a claim[.]” See id. § 27.001(6)(A); see also Claim,
Relief, BLACK’ S LAW DICTIONARY (11th ed. 2019). Moreover, neither the text of
chapter 10 nor Rule 13 clearly implies the existence of a private cause of action for
sanctions. See Tex. Medicine Res., 659 S.W.3d at 431; Brown, 156 S.W.3d at 563.
In Jaster v. Comet II Construction, Inc., the Texas Supreme Court addressed
the meaning of the term “action” in the context of a statute governing certificates of
merit. See 438 S.W.3d 556, 564–65 (Tex. 2014) (citing Tex. Civ. Prac. & Rem. Code
Ann. § 150.002(a)). The Court noted it has used “the terms ‘claim,’ ‘cause of action,’
and ‘chose in action’ to refer to the facts giving rise to a right that is enforceable” in
a legal proceeding. Id. at 565. “[A]lthough a ‘cause of action’ differs from a ‘claim’
in that it exists even before a suit is filed, it is similar to a ‘claim’ in that ‘they both
refer to a legal right that a party asserts in the suit that constitutes the action.’”
Montelongo, 622 S.W.3d at 301 (quoting Jaster, 438 S.W.3d at 564). The court alone
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holds the right to sanction under Rule 13 or chapter 10; because sanctions do not
implicate a legal right a party asserts or enforces, in this context it does not add a
claim for relief when a party requests the trial court to sanction the other party under
chapter 10 or Rule 13. As an exercise of a court’s authority, sanctions implicate due
process concerns, and a two-prong test helps to ensure there are safeguards: (1) a
direct nexus must exist between the offensive conduct, offender, and the sanction
award; and (2) a sanction must fit the triggering offense and be no more severe than
necessary to satisfy its legitimate purposes. See Nath v. Tex. Children’s Hosp., 446
S.W.3d 355, 363 (Tex. 2014) (citing TransAmerican Natural Gas Corp. v. Powell,
811 S.W.2d 913, 917 (Tex. 1991)); see also Low v. Henry, 221 S.W.3d 609, 619–20
(Tex. 2007) (discussing sanctions in the context of frivolous pleadings). “Legitimate
purposes may include securing compliance with the relevant rules of civil procedure,
punishing violators, and deterring other litigants from similar misconduct.” Nath,
446 S.W.3d at 363. In sum, a motion for sanctions asks the court to exercise its
authority and discretion to discipline and deter bad behavior with limiting due
process considerations discussed above rather than to address a party’s “enforceable
right.” See Nath, 446 S.W.3d at 363; see also Jaster, 438 S.W.3d at 565.
When courts have characterized motions for sanctions as claims for
affirmative relief, it is in the context of mootness discussions and expressed as a
caveat, “[a] motion for sanctions is a claim for affirmative relief that survives nonsuit
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if the nonsuit would defeat the purpose of the sanctions.” CTL/Thompson Tex., LLC
v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299, 300 (Tex. 2013) (citing
Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 806–07 (Tex. 1993)) (emphasis
added); Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008). The reason for this is
that if a sanction for filing a frivolous lawsuit did not survive nonsuit, its imposition
would be in the plaintiffs’ hands, thereby defeating the purpose. See CTL/Thompson,
390 S.W.3d at 300. This characterization of sanctions as “affirmative claims” in
mootness discussions does not equate to sanctions accurately being characterized as
“claims” for purposes of a statutory interpretation analysis. Consistent with this
view, “Texas courts have treated proceedings for sanctions as motions, not as
independent causes of action.” Mantri v. Bergman, 153 S.W.3d 715, 717 (Tex.
App.—Dallas 2005, pet. denied); see also Guidry v. Environmental Procedures,
Inc., 388 S.W.3d 845, 860 (Tex. App.—Houston [14th Dist.] 2012, pet. denied);
Michels v. Zeifman, No. 03-08-00287-CV, 2009 WL 349167, at *4 (Tex. App.—
Austin Feb. 12, 2009, pet. denied) (mem. op.). Unlike a pending cause of action, a
pending sanctions motion does not make an otherwise final judgment interlocutory.
Mantri, 153 S.W.3d at 717 (citing Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10
S.W.3d 308, 312 (Tex. 2000)) (other citations omitted). Even if the offending party
dismisses a frivolous or harassing pleading, it does not moot the issue of sanctions,
as the trial court may still sanction a party with or without a motion if its plenary
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power has not expired. See Villafani, 251 S.W.3d at 469; Mantri, 153 S.W.3d at717–18.
Similarly, TCPA motions to dismiss also permit the recovery of costs,
attorney’s fees, and the imposition of sanctions to survive nonsuits, and we have
referred to them as affirmative claims in the context of mootness discussions. See
Walker, 516 S.W.3d at 80. Yet several courts of appeals have already determined
that a TCPA motion to dismiss does not constitute a “legal action” under the statute.
See, e.g., Deepwell Energy Servs., LLC v. Aveda Transp. and Energy Servs., 574
S.W.3d 925, 929 (Tex. App.—Eastland 2019, pet. denied) (relying on the doctrine
of ejusdem generis and concluding TCPA motion to dismiss was not a “legal
action”); Roach v. Ingram, 557 S.W.3d 203, 217–18 (Tex. App.—Houston [14th
Dist.] 2018, pet. denied) (concluding the TCPA does not authorize the filing of a
TCPA countermotion to dismiss); Paulsen v. Yarrell, 537 S.W.3d 224, 233 (Tex.
App.—Houston [1st Dist.] 2017, pet. denied) (relying on the doctrine of ejusdem
generis and concluding same); In re Estate of Check, 438 S.W.3d 829, 836 (Tex.
App.—San Antonio 2014, no pet.) (determining that allowing a “legal action” to
include motions to dismiss would lead to an absurd result not intended by the
Legislature).
Some sister courts have likewise concluded that a motion for sanctions does
not constitute a “legal action” for purposes of the TCPA, while others have reached
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the opposite conclusion. Compare Patel v. Patel, No. 14-18-00771-CV, 2020 WL
2120313, at *4–8 (Tex. App.—Houston [14th Dist.] May 5, 2020, no pet.) (mem.
op.) (concluding the “TCPA does not apply to appellee’s claim that appellants filed
frivolous pleadings”), and Barnes v. Kinser, 600 S.W.3d 506, 511 (Tex. App.—
Dallas 2020, pet. denied), and Misko v. Johns, 575 S.W.3d 872, 877 (Tex. App.—
Dallas 2019, pet. denied), with KB Home Lone Star, Inc. v. Gordon, 629 S.W.3d
649, 656–57 (Tex. App.—San Antonio 2021, no pet.) (holding that motion for
sanctions seeking $5,000 constituted a “legal action” under the TCPA and
distinguishing cases that held otherwise), and Whataburger Restaurants LLC v.
Ferchichi, No. 04-22-00020-CV, 2022 WL 17971316, at *3 (Tex. App.—San
Antonio Dec. 28, 2022, no pet.) (mem. op.) (concluding motion for sanctions
constituted “legal action” under the TCPA), and Hawxhurst v. Austin’s Boat Tours,
550 S.W.3d 220, 228–29 (Tex. App.—Austin 2018, no pet.) (concluding that
“counterclaim” or “motion for sanctions” was a “legal action”). The Patel court
relied on the doctrine of ejusdem generis and applied it to the definition’s list of
“lawsuit, cause of action, petition, complaint, cross-claim, and counterclaim” to
determine that when more specific things are listed, the catchall provision must be
limited to things like the former. See Patel, 2020 WL 2120313, at *4; see also Ross
v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 504 n.1 (Tex. 2015) (citing Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 199
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(2012) (“Where general words follow an enumeration of two or more things, they
apply only to persons or things of the same general kind or class specifically
mentioned.”)). The Dallas Court of Appeals reasoned in Barnes v. Kinser that a
sanctions request did “not seek vindication of a substantive legal right arising outside
the litigation context[]” and thus, seeking sanctions for filing a frivolous or
groundless lawsuit was not a “legal action” under the TCPA. 600 S.W.3d at 511. We
believe the courts in Barnes and Patel reached the right result, albeit for different
reasons than we set forth here, as they analyzed the definition of “legal action” before
the exclusions were added to that definition.
Finally, if we adopted Thuesen’s interpretation, it would lead to absurd
results. The 2019 TCPA amendments added exemptions for certain types of
proceedings. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 9, sec. 27.010(a),
2019 Tex. Gen. Laws 684, 687 (current version at Tex. Civ. Prac. & Rem. Code
Ann. § 27.010(a)(1)–(12)). The latest version of the statute exempts legal actions
filed under Title 2 of the Family Code from the TCPA. See Tex. Civ. Prac. & Rem.
Code Ann. § 27.010(a)(6). Thuesen’s underlying lawsuit for interference with
possessory interest of [a] child falls under Title 2 of the Family Code and would be
exempted from the TCPA. See id.; see also Tex. Fam. Code Ann. §§ 42.001–.003
(under Title 2 of the Family Code). Scott’s Motion for Sanctions is wholly derivative
of the suit brought by Thuesen under Title 2, which the TCPA expressly exempts.
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See Tex. Civ. Prac. & Rem. Code Ann. § 27.010(a)(6); see also Mantri, 153 S.W.3d
at 718 (explaining that “a motion for sanctions for frivolous litigation under chapter
10 must be tied to the allegedly frivolous litigation”). If Scott’s Motion for Sanctions
complaining about Thuesen’s Petition for Interference with Possessory Interest in
[a] Child constitutes a “legal action,” it would pull an action brought under Title 2
of the Family Code within the TCPA’s purview, despite an express exemption for
those actions and lead to an absurd result. See id. § 27.010(a)(6).
The plain language of the statute, when examined as a whole, leads us to
conclude that a motion for sanctions does not constitute a “legal action” for purposes
of the TCPA. Since Scott’s Motion for Sanctions was not a “legal action,” Thuesen
failed to meet his initial burden to show the TCPA applied. See Montelongo, 622
S.W.3d at 296; Lipsky, 460 S.W.3d at 586–87; see also Tex. Civ. Prac. & Rem. Code
Ann. § 27.005(c). We overrule issue three. Each of the remaining issues is predicated
on sustaining issue three and concluding the TCPA applies. Based on our resolution
of this issue, it is unnecessary for us to address Thuesen’s remaining issues. See Tex.
R. App. P. 47.1.
IV. Conclusion
We hold that Scott’s Motion for Sanctions pursuant to Texas Rule of Civil
Procedure 13 and Civil Practice and Remedies Code chapter 10 is not a “legal
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action” pursuant to the TCPA. Having overruled issue three, we affirm the trial
court’s order denying Thuesen’s Motion to Dismiss.
AFFIRMED.
_______________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on February 23, 2023
Opinion Delivered April 6, 2023
Before Golemon, C.J., Horton and Johnson, JJ.
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