Terrence L. Daniels v. Barbara Browder, Susana Martinez, in Her Individual and Official Capacities, Amy Orlando, in Her Individual and Official Capacities, Susan Riedel, in Her Individual and Official Capacities, James Dickens, in His Individual and Official Capacities

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
TERRENCE L. DANIELS, §
Appellant, §
v. §
STATE OF NEW MEXICO, BARBARA §
BROWDER, in her individual and official
capacities, SUSANA MARTINEZ, in her §
individual and official capacities, AMY
ORLANDO, in her individual and official §
capacities, SUSAN RIEDEL, in her No. 08-14-00060-CV
individual and official capacities, JAMES §
DICKENS, in his individual and official Appeal from the
capacities, SCOT KEY, in his individual §
and official capacities, KIRBY WILLS, in 243rd District Court
his individual and official capacities, §
PETER GIOVANNINNI, in his individual of El Paso County, Texas
and official capacities, MICHAEL CAIN, §
in his individual and official capacities, (TC# 2012DCV06543)
OSCAR FERRALEZ, in his individual and §
official capacities, LISA KING, in her
individual and official capacities, BRIAN §
FRAGA, in his individual and official
capacities, ASHLEY MEEKS, in her §
individual and official capacities, LAS
CRUCES SUN-NEWS, KAREN §
NOUGUES, in her individual and official
capacities, MICHELLE BALLARD, in her §
individual and official capacities,
ROBERT CONCHA, and VALERIE §
CONCHA,
§
Appellees.
OPINION
This appeal involves a pro se appellant, Terrence Daniels, who is appealing two trial
courts’ orders dismissing Appellees. Appellant’s lawsuit alleged various causes of action:
fraud, breach of fiduciary duty, defamation, malicious prosecution, false imprisonment,
deprivation of first amendment rights, deprivation of equal protection and due process, conspiracy
to defraud, and conspiracy to obstruct justice. Appellees were dismissed based on forum non
conveniens or lack of personal jurisdiction, except for three media Appellees who were dismissed
under the Texas Citizens Participation Act (TCPA).
From what we can discern, in five issues Appellant contends that: (1) the trial court
erroneously granted the dismissal motions for forum non conveniens because Appellees committed
torts against him in Texas, or alternatively that the forum non conveniens statute does not allow a
Texas plaintiff’s suit to be dismissed; (2) the trial court improperly granted the dismissal motions
of the media Appellees under the TCPA because they did not comply with mandatory deadlines
under the act; (3) the 448th trial court dismissals were void because no hearing was held; (4) the
243rd trial court failed to apply federal law pursuant to the Supremacy Clause of the United States
Constitution; and (5) the 243rd trial judge was biased against Appellant. For the following
reasons, we vacate in part and affirm in part.
BACKGROUND
Factual History
The events of this case span several years. Appellees’ dismissal motions were granted, as
a result the non-procedural facts of this appeal derive from Appellant’s allegations in his original
amended petition. Appellant, a Texas resident, was a substitute teacher and girls’ basketball
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coach at Chaparral Middle School in the Gadsden Independent School District in New Mexico.
Appellant was suspended from his position in April 2007 after another coach, Karen Nougues,
reported he was having an inappropriate relationship with a student. After his suspension, the
student’s mother, Valerie Concha, filed a police report with the Dona Ana County Sheriff’s Office
in New Mexico. Michelle Ballard, an administrative intern, sent a letter to parents stating
Appellant was no longer employed and had been directed to cease any contact with any student.
Appellant alleges, in June 2007, the district attorney of Dona Ana County, NM—Susana
Martinez—called and instructed him not to have any further contact with the student.
Subsequently, Appellant learned the Dona Ana County District Attorney would be filing criminal
charges against him.
In November 2007, Appellant attended a basketball tournament in Canutillo, Texas. At
the tournament, Nougues allegedly told an on-duty El Paso Sheriff’s Department deputy that there
was a restraining order against Appellant. The next day Nougues confronted Appellant and called
him a “sicko.” The following day, Appellant was approached by the student’s parents, Robert
and Valerie Concha, who demanded he cease attending any of their daughter’s basketball games.
Valerie Concha then told a tournament official not to allow Appellant into the basketball
tournament because “he’s a pedophile.”
In December 2007, Appellant was shopping in El Paso when he saw Robert and Valerie
Concha, who apparently reacted with disgust at seeing him. They sought out and spoke with the
manager, allegedly about Appellant, but no action was taken.
In August 2008, Appellant attended a high school volleyball game in New Mexico.
Robert Concha (“Concha”) approached Appellant. Concha allegedly told Appellant he would
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make sure Appellant never approached his daughter again, and called the police. A sheriff’s
deputy spoke with both men and told them to keep their distance from each other. In October
2008, Appellant attended another high school volleyball game in New Mexico. Concha sat
behind Appellant at the game and took pictures of Appellant. After becoming belligerent, Concha
was then escorted out of the gym by campus security, and threatened to wait for Appellant in the
parking lot.
Appellant received a Target Notice stating his case would be called before the grand jury
in November 2008. A New Mexico State University police officer, Oscar Ferralez, filed an
extradition warrant for his arrest. Appellant was arrested on November 1, 2008 by two El Paso
police officers. He was transferred to the custody of New Mexico five days later. Appellant was
released on bond the following day.
On November 12, Appellant received a second amended criminal summons, drafted by a
Dona Ana County assistant district attorney, Lisa King, informing him that his arraignment was
set for December 1. Appellant called King to confirm the date of the arraignment and alleges
when he spoke to her that he identified her voice as the individual who had called him in June
2007, claiming to be Susana Martinez.
In April 2009, a superseding grand jury was held in New Mexico. Appellant alleges that
Valerie Concha committed perjury at the grand-jury proceeding. Appellant was indicted for the
offense of aggravated stalking.
Appellant was appointed a public defender, Kirby Wills. Appellant asserts he told Wills
to modify his conditions of release and assert his right to a speedy trial but Wills ignored his
requests. Wills later withdrew as defense counsel. Peter Giovannini was then appointed as
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defense counsel; Appellant claims Giovannini did little but request continuances. Giovannini
later withdrew as counsel. Appellant’s third attorney, Michael Cain, filed an appearance and met
with Appellant. Cain served as Appellant’s defense counsel for several months but withdrew in
March 2011. Finally, attorney Pedro Pineda remained Appellant’s defense counsel throughout
the proceedings.
On January 19, 2012, the Las Cruces Sun-News published an article written by Ashley
Meeks entitled “Case postponed for ex-teacher accused of stalking.” The article discussed the
case but incorrectly reported Appellant had violated a restraining order by contacting the girl. A
restraining order had been requested but not issued.
On May 2, 2012, Appellant went to trial in Dona Ana County on the charge of aggravated
stalking. After hearing the evidence, the trial court granted Appellant’s motion for a directed
verdict. Appellant contends Valerie Concha committed perjury during the trial. On May 5,
2012, a second article was published by the Las Cruces Sun-News entitled “Las Cruces judge
throws out stalking case against ex-teacher,” written by Brian Fraga. The article quoted the
prosecutor, Scot Key, that if the case had been given to the jury they would have found Appellant
guilty. It also quoted defense counsel, Pineda, that Appellant had committed no crime, reporting
Pineda’s belief the criminal case was the result of pressure by the Conchas. Appellant alleges the
article implies he is guilty but had escaped justice. On December 29, 2012, the New Mexico trial
court entered an order closing the criminal case.
Procedural History
Appellant, a Texas resident, filed this civil action in the 448th District Court in El Paso,
Texas, on November 1, 2012. He alleged fraud, breach of fiduciary duty, defamation, malicious
5
prosecution, false imprisonment, deprivation of first amendment rights, deprivation of equal
protection and due process, conspiracy to defraud, and conspiracy to obstruct justice. Appellees
include: Barbara Browder, Karen Nougues and Michelle Ballard, (“Gadsden ISD Appellees”),
Susana Martinez, Lisa King, Amy Orlando, James Dickens, Susan Riedel, and Scot Key, (“DA
Appellees”); Las Cruces Sun-News, Brian Fraga, and Ashley Meeks (“Media Appellees”); Kirby
Wills, Peter Giovanninni, and Michael Cain; (“Defense Counsel Appellees”); Officer Oscar
Ferralez; and the student’s parents, Robert and Valerie Concha. Except for Barbara Browder, the
remaining Appellees are New Mexico residents.
On January 8, 2013, the Media Appellees moved to dismiss Appellant’s claims under the
Texas Citizens Participation Act, attaching the two newspaper articles at issue along with the
affidavit of a custodian of records for the Las Cruces Sun-News. In April, they filed a
supplemental motion to dismiss along with a certified record of the court documents from the
criminal case against Appellant. The 448th trial court granted the motion to dismiss.
The remaining original appellees, except for Ferralez, made special appearances and filed
motions to dismiss based on forum non conveniens and mandatory venue. The 448th trial court
granted their motions in part based on their assertions they are New Mexico residents.
Appellant filed an amended original petition adding Browder, a Texas resident and director of
human resources for Chaparral Middle School, to the case as a new defendant and perfected service
on Ferralez.
The 448th trial judge voluntarily recused himself from the case. Appellant’s case was
transferred to the 243rd District Court. The 243rd trial judge dismissed the remaining appellees,
Ferralez on December 6, 2013, and Browder on January 7, 2014. This appeal followed.
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DISCUSSION
I.
FORUM NON CONVENIENS
Appellant’s first issue is the dismissal of Appellees for forum non conveniens by the 448th
and 243rd trial courts. As best we can discern, his point of error is that some of the torts
committed by the Appellees were directed at him in Texas and therefore should not have been
dismissed. Alternatively, he argues that the trial courts should not have dismissed his claims
because he is a Texas resident and statutory forum non conveniens is improper under the statute if
the plaintiff is a Texas resident.
Standard of Review
A trial court’s dismissal of parties for forum non conveniens is entitled to great deference.
In re Elamex, S.A. de C.V., 367 S.W.3d 879, 887 (Tex.App.--El Paso 2012, orig. proceeding).
Reversing a trial court’s dismissal of parties under the doctrine of forum non conveniens is only
proper when the trial court has clearly abused its discretion. Quixtar Inc. v. Signature Mgmt.
Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010). A trial court abuses its discretion if its decision is
so arbitrary and unreasonable that it constitutes a clear and prejudicial error of law, or if it clearly
fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379,
382 (Tex. 2005).
We will not substitute our judgment for that of the trial court’s even if we would have
reached a different decision based on the circumstances. Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 242 (Tex. 1985) (“The mere fact that a trial judge may decide a matter within his
7
discretionary authority in a different manner than an appellate judge in a similar circumstance does
not demonstrate that an abuse of discretion occurred.”); Quixtar, 315 S.W.3d at 31.
Analysis
The doctrine of forum non conveniens is equitable and courts use it to prevent imposing an
inconvenient jurisdiction on a litigant. In re Elamex, 367 S.W.3d at 887. The United States
Supreme Court aptly described the purpose behind the doctrine in the frequently cited case of Gulf
Oil Corp. v. Gilbert:
The principle of forum non conveniens is simply that a court may resist imposition
upon its jurisdiction even when jurisdiction is authorized by the letter of a general
venue statute. These statutes are drawn with a necessary generality and usually
give a plaintiff a choice of courts, so that he may be quite sure of some place in
which to pursue his remedy. But the open door may admit those who seek not
simply justice but perhaps justice blended with some harassment. A plaintiff
sometimes is under temptation to resort to a strategy of forcing the trial at a most
inconvenient place for an adversary, even at some inconvenience to himself.
Many of the states have met misuse of venue by investing courts with a
discretion to change the place of trial on various grounds, such as the convenience
of witnesses and the ends of justice.
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S. Ct. 839, 842, 91 L. Ed. 2d 1055 (1947). It is
with this purpose in mind that the courts are empowered—by common law or statute—to ensure
that the forum is warranted by the interests of the litigants and witnesses. Yoroshii Investments
(Mauritius) Pte. Ltd. v. BP Int'l Ltd., 179 S.W.3d 639, 643 (Tex.App.--El Paso 2005, pet. denied).
For dismissal under forum non conveniens to be appropriate an alternate forum for the
plaintiff must exist. In re Elamex, 367 S.W.3d at 887. Not only must there be at least one other
forum open to the plaintiff, but the alternate forum must also be both “available” and “adequate.”
Id. The alternate forum is “available” if it has jurisdiction over all of the parties and the whole
case or if there is evidence that all the defendants are amenable to process or have consented to
8
process in the alternate forum. Yoroshii, 179 S.W.3d at 643. An alternate forum is not going to
be considered “adequate” if the remedies it offers are so unsatisfactory that they really offer no
remedy at all—not just that the remedies are different or less advantageous. In re ENSCO
Offshore Int'l Co., 311 S.W.3d 921, 924 (Tex. 2010).
If an alternate forum is available and adequate, the trial court must then determine which
forum is the most appropriate for the litigation by weighing certain public and private interest
factors. In re Elamex, 367 S.W.3d at 887. Under the common law, the plaintiff’s choice of
forum should not be disturbed unless the balance of these factors strongly favors the defendant
requesting dismissal. Yoroshii, 179 S.W.3d at 643. The private interest factors to consider are:
(1) the relative ease of access to sources of proof;
(2) the availability of compulsory process for ensuring the attendance of unwilling
witnesses; and
(3) the enforceability of a judgment if one is obtained.
Id. at 643. The public interest factors to consider are:
(1) the burden imposed upon the citizens and courts of Texas in trying a case that
has no relation to Texas;
(2) the general interest in having localized controversies decided locally; and
(3) the interest in having a diversity case tried in a forum that is familiar with the
law that must govern the action.
Id.
The Texas Legislature codified the doctrine in 1993—with some significant differences—
Texas’ statutory forum non conveniens is applicable only to actions for wrongful death or personal
injury. TEX.CIV.PRAC.&REM.CODE ANN. § 71.051(i)(West Supp. 2016). Texas’ statutory forum
non conveniens, Section 71.051, is different from the common law in two important ways: (1)
9
the mandatory “shall” language requires dismissal of claims if the court finds it would be in the
interest of justice and for the convenience of the parties, and (2) the court cannot allow a stay or
dismiss a plaintiff’s claim if the plaintiff is a legal resident of Texas. TEX.CIV.PRAC.&REM.CODE
ANN. § 71.051.
Section 71.051
Thus, if Appellant’s claims fall under Section 71.051, because he is a Texas resident, his
case should not have been dismissed. If Section 71.051 is inapplicable, then we must analyze the
dismissals under the common-law doctrine of forum non conveniens.
Appellant’s claims are governed by Section 71.051 only if the term “personal injury,” as
used in the statute, is taken to mean any injury in tort—and not just physical injury. The statute
itself does not define personal injury. TEX.CIV.PRAC.&REM.CODE ANN. § 71.001 (West 2008).
The only case directly addressing the definition of personal injury under Section 71.051 holds that
it does not apply to actions for breach of contract, quantum meruit, and fraud. Pablo Rion y
Asociados, S.A. de C.V. v. Dauajare, 495 S.W.3d 494, 497 (Tex.App.--Houston [14th Dist.] 2016,
no pet.)(“The statute for forum non conveniens does not apply to [plaintiff’s] business case.”).
Thus, we must engage in statutory analysis to determine what the legislature meant by “personal
injury.”
Statutory terms are to be interpreted by considering the ordinary meaning of the word used.
In re Ford Motor Co., 442 S.W.3d 265, 271 (Tex. 2014). Black’s Law Dictionary defines
personal injury as follows: “1. In a negligence action, any harm caused to a person, such as a
broken bone, a cut, or a bruise; bodily injury. —Also termed bodily injury. 2. Any invasion of a
personal right, including mental suffering and false imprisonment. — Also termed private injury.”
10
[Emphasis in orig.]. Black’s Law Dictionary 906 (10th ed. 2014). When interpreting an
undefined statutory term, we are also guided by considering the word within the context of the
section at issue and the statute as a whole. See CHCA Woman's Hosp., L.P. v. Lidji, 403 S.W.3d
228, 232 (Tex. 2013)(“We analyze statutory language in context, considering the specific section
at issue as well as the statute as a whole.”).
Section 71.051 suggests that the term “personal injury” equates to bodily injury in its use
of an associated term: “wrongful death.” TEX.CIV.PRAC.&REM.CODE ANN. § 71.051 (This
section applies to action for personal injury or wrongful death.) After surveying the case law
regarding Section 71.051, actions for dismissal under the statute are confined only to claims of
wrongful death or bodily injury and have not been applied to claims for other torts. See In re
Bridgestone Americas Tire Operations, LLC, 459 S.W.3d 565 (Tex. 2015)(orig. proceeding);
Badall v. Durgapersad, 454 S.W.3d 626 (Tex.App.--Houston [1st Dist.] 2014, pet. denied);
Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011); Owens Corning v. Carter, 997 S.W.2d 560
(Tex. 1999). The legislative history is primarily focused on bodily injury and wrongful death,
and indeed, the prohibition on dismissing Texas residents was narrowed in response to asbestos-
related claims from out of state. See S. Comm. on State Affairs, Bill Analysis, Tex. H.B. 4, 78th
Leg., R.S. (2003); S. Comm. on State Affairs, Bill Analysis, Tex. H.B. 755, 79th Leg., R.S. (2005).
In light of this record, it seems clear that the legislature intended personal injury to mean bodily
injury. Further, the complete lack of any case allowing Section 71.051 to stay a dismissal for
other torts outside of wrongful death or bodily injury claims supports our conclusion that Section
71.051 is inapplicable here. Given that Appellant’s claims of fraud, breach of fiduciary duty,
defamation, malicious prosecution, false imprisonment, deprivation of first amendment rights,
11
deprivation of equal protection and due process, conspiracy to defraud, and conspiracy to obstruct
justice do not sound in personal injury, we find Appellant’s claim that Section 71.051 governs his
case unpersuasive.
Common-law Forum Non Conveniens
Next, we turn to whether the trial court abused its discretion in granting Appellees’
dismissal motions under the common-law doctrine of forum non conveniens. Quixtar, 315
S.W.3d at 31. In doing so, we cannot substitute our judgment for that of the trial court; we merely
determine whether the trial court acted without any reference to guiding principles or rules.
Downer, 701 S.W.2d at 242. We cannot say that it did.
In analyzing a forum non conveniens claim, the first step for the trial court is to determine
whether an alternate forum is available and adequate. In re Elamex, 367 S.W.3d at 887. The
foreign forum is available if it has jurisdiction over the parties and the case and it is adequate if it
offers satisfactory remedies. Yoroshii Investments, 179 S.W.3d at 643; In re ENSCO Offshore,
311 S.W.3d at 924. Here, except for Appellee Browder, all the remaining Appellees are citizens
of New Mexico. However, we note that Appellee Browder has agreed to submit to New Mexico
jurisdiction, and a defendant may make a forum available by consenting to jurisdiction in that
forum. Yoroshii Investments, 179 S.W.3d at 643. Because New Mexico authorizes jurisdiction
over residents in the county in which they may be found, and Browder has agreed to New Mexico
jurisdiction, an alternate forum is available. N.M. STAT. ANN. § 38-3-1 (1978). As to whether
the New Mexico forum is adequate, Appellant has pled no facts asserting New Mexico remedies
are lacking in any way. The plaintiff has the burden to prove that the alternate forum is
inadequate. Yoroshii Investments, 179 S.W.3d at 643. Appellant has failed to do so, therefore,
12
we cannot find that the trial court abused its discretion in finding the New Mexico forum to be
both available and adequate.
Once it has been established an alternate forum is available and adequate, the trial court
must weigh the public and private interest factors to determine whether dismissal is appropriate.
In re Elamex, 367 S.W.3d at 887. Under the common law, the factors must strongly favor the
defendant seeking dismissal for forum non conveniens. Yoroshii Investments, 179 S.W.3d at 643.
The private factors are: (1) relative ease of access to sources of proof; (2) availability of
compulsory process for witnesses and defendants; and (3) enforceability of a judgment if obtained.
As for the first and second factors, all but one material fact witness reside in New Mexico and,
excepting Browder, all Appellees reside in New Mexico. This makes access to sources of proof
and compulsory process difficult (if not impossible) in Texas, and by comparison relatively easy
in New Mexico; both points weighing in favor of dismissal under the first and second factors. As
to the third factor, we have already established that all defendants, including Browder, are subject
or have subjected themselves to jurisdiction in New Mexico, therefore, making a judgment
enforceable. Because the trial court could have considered and applied each of the private factors,
we cannot say it acted arbitrarily or without reference to guiding principles as required to show an
abuse of discretion.
The public factors to be considered are: (1) the burden on the citizens and courts of Texas
of trying a case that has no relation to Texas; (2) the established general-interest in having localized
controversies decided locally; and (3) the interest in having a diversity case tried in a forum that is
familiar with the law governing the action. Yoroshii Investments, 179 S.W.3d at 645. Under the
first factor, the trial court could have found the case had no relation to Texas based solely on
13
Appellant’s allegations, and therefore was an undue burden on Texas courts. The alleged conduct
against Appellant by the Gadsden ISD Appellees, including Browder, occurred in New Mexico.
Likewise, the alleged conduct of the DA Appellees against Appellant occurred in New Mexico.
Appellant’s claims against his defense attorneys, Wills, Giovanninni, and Cain, is based on their
alleged conduct against Appellant in New Mexico. Appellant’s allegations against Officer
Ferralez stem from his actions in New Mexico. When weighed together, the facts show that the
Appellant’s case lacks substantial relation to Texas and could be an undue burden on Texas courts
under the first factor. Further, when we consider that the alleged actions were allegedly
committed by New Mexico residents in New Mexico, it becomes apparent that this is a localized
controversy, which weighs in favor of dismissal under the second public-interest factor. Yoroshii
Investments, 179 S.W.3d 645.
As for the third factor, the alleged tortious acts occurred in New Mexico and would fall
under the purview of New Mexico tort law. Further, the New Mexico Torts Claims Act applies
because Appellant sued the Gadsden ISD Appellees, Defense Counsel Appellees, and the DA
Appellees in their official capacities. N.M.STAT.ANN. § 41-4-18 (1978). The law governing the
action will, if not exclusively, largely be New Mexico law, and the trial court could have
considered this under the third public-interest factor in granting the dismissal motions. Thus, the
facts supported dismissal under the public-interest factors and we cannot conclude that the trial
court acted without reference to them.
Appellant’s arguments that the trial court abused its discretion in granting the dismissal
motions are unpersuasive. We cannot say that the trial court acted without reference to any
guiding principles in granting defendants’ dismissal motions especially when nearly every factor
14
was applicable and weighed in the Appellees favor. As discussed, infra, statutory forum non
conveniens does not govern Appellant’s claims and so is inapplicable. Thus, the trial court did
not abuse its discretion and Appellant’s first issue is overruled.
II.
THE MEDIA APPELLEES
In the second issue on appeal, Appellant complains the Media Appellees were improperly
dismissed under the Texas Citizens Participation Act (TCPA) because of their failure to comply
with mandatory deadlines under the act. The TCPA is the Texas version of the so called anti-
SLAPP legislation passed throughout the United States; the acronym SLAPP denotes “Strategic
Lawsuit Against Public Participation.” 12 TEX.JUR.3D Civil Rights § 6 (2012). Its stated
purpose 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 ANN. § 27.002 (West 2015). The evil that motivated
legislatures across the country to pass anti-SLAPP laws was the chilling of citizens’ free speech
out of fear of litigation aimed not at redressing actual wrongs, but at silencing them via the
burdensome costs of defending against meritless claims. See Laura Lee Prather & Justice Jane
Bland, Bullies Beware: Safeguarding Constitutional Rights Through Anti-SLAPP in Texas, 47
TEX.TECH L.REV. 725, 731 (2015).
The TCPA authorizes a party to file a motion to dismiss if the claim against him relates to
his exercising his right of free speech, petition, or association. TEX.CIV.PRAC.&REM.CODE ANN.
§ 27.003 (West 2015). The “exercise of the right of free speech” is defined in the act as “a
15
communication made in connection with a matter of public concern.”
TEX.CIV.PRAC.&REM.CODE ANN. § 27.001(3). A “communication” is defined as including “the
making or submitting of a statement or document in any form or medium, including oral, visual,
written, audiovisual, or electronic.” Id. at § 27.001(1). Finally, a “matter of public concern”
includes issues related to: health or safety; environmental, economic, or community well-being;
the government; a public official or public figure; or a good, product, or service in the marketplace.
Id. at § 27.001(7).
A defendant to avail himself of the statute’s remedies, must file a motion to dismiss within
60 days after the date of service of the legal action, however, the court may extend this deadline
on a showing of good cause. TEX.CIV.PRAC.&REM.CODE ANN. § 27.003. Once the motion is
filed, all discovery is suspended until the court rules on the motion. Id. In making its ruling, the
court will consider the pleadings, supporting and opposing affidavits. Id. at § 27.006; see also
Pena v. Perel, 417 S.W.3d 552, 556 (Tex.App.--El Paso 2013, no pet.). The defendant must show
by a preponderance of the evidence that her claim relates to her exercise of her right to free speech,
petition, or of association. TEX.CIV.PRAC.&REM.CODE ANN. § 27.005 (West 2015).
Once a defendant has carried his initial burden to establish the claims against him are
covered by the TCPA, the burden shifts to the plaintiff to present by clear and specific evidence a
prima facie case for each element of his claim to avoid dismissal. TEX.CIV.PRAC.&REM.CODE
ANN. § 27.005(c); Entravision Communications Corp. v. Salinas, 487 S.W.3d 276, 283 (Tex.App.-
-Corpus Christi 2016, pet. denied).
Analysis
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Here, Appellant sued the Media Appellees for alleged libel written in two articles that
reported on his criminal case in New Mexico. The allegedly libelous communication was not the
mere fact that he had been charged with aggravated stalking. Rather, it was that the articles
incorrectly stated that he had violated a restraining order—when in fact a restraining order had
been sought but not obtained. Appellant also contended the second article implied he had “got
off on a technicality.” Appellant asserts the dismissal of the Media Appellees was improper
because they did not follow the deadlines for their motions to dismiss under the TCPA. Therefore,
he argues, the dismissals were improvidently granted, or alternatively that the trial court abused
its discretion in granting the dismissal motions because the articles were clearly libelous.
The first issue we address is whether the motions to dismiss were overruled by operation
of law. The TCPA provides powerful remedies for defendants seeking to dismiss suits, however,
the act also provides strict deadlines for invoking these remedies. As noted above, a defendant
has 60 days from the service of the legal action to file a dismissal motion under the TCPA.
TEX.CIV.PRAC.&REM.CODE ANN. § 27.003(b)(West 2015); Schimmel v. McGregor, 438 S.W.3d
847, 855 (Tex.App.--Houston [1st Dist.] 2014, pet. denied). In the case at hand, the statute also
provided for an accelerated hearing: the court was required to set a hearing on the motion to
dismiss within 30 days of service of the motion, unless docket conditions required an extension.
Citizens Participation Act, 82nd Leg., R.S., ch 341, § 27.004, 2011 TEX.GEN.LAWS 961, 963
(current version at TEX.CIV.PRAC.&REM.CODE ANN. § 27.004). Further, the court had to rule on
the motion within 30 days of the hearing. Citizens Participation Act, 82nd Leg., R.S., ch 341,
§ 27.005, 2011 TEX.GEN.LAWS 961, 963 (current version at TEX.CIV.PRAC.&REM.CODE ANN.
§ 27.005). If the court did not rule within that 30-day window, the motion was considered denied
17
by operation of law. Citizens Participation Act, 82nd Leg., R.S., ch 341, § 27.008, 2011
TEX.GEN.LAWS 961, 963 (current version at TEX.CIV.PRAC.&REM.CODE ANN. § 27.008).
Appellant filed his initial suit on November 1, 2012, and Media Appellees were served
with process on December 5, 2012. They properly filed their motion to dismiss under the TCPA
on January 8, 2013, within the 60 days required by the act. In accordance with the statute effective
at that time, the trial court was required to hold a hearing within 30 days. However, the hearing
was not held until February 20, 2013, a full 43 days after service of the motion. During the
hearing, which included the New Mexico Appellees making special appearances, the trial court
focused exclusively on the jurisdictional defects raised by the New Mexico Appellees. Media
Appellees asked the court if they should proceed on the motion to dismiss under the TCPA or if it
wanted them to wait and allow Appellant time to respond to the New Mexico Appellees’
jurisdictional issues. The trial court instructed the Media Appellees to allow the Appellant
additional time to respond to those motions, and the TCPA dismissal motions were not addressed.
The TCPA dismissal motions were not raised again until 41 days after the hearing—on April 2—
when Media Appellees filed a supplemental motion, noting the 30-day timetable under the statute
and stating the hearing on their motion was not held on February 20. The trial court did not hold
another hearing on their dismissal motions but nonetheless granted the motions to dismiss on April
18.
Unfortunately for the Media Appellees, these deadlines were not optional. The trial court
was authorized to delay the hearing only for good cause. Citizens Participation Act, 82nd Leg.,
R.S., ch 341, § 27.004, 2011 TEX.GEN.LAWS 961, 963 (amended 2013). Though Media Appellees
do not address this issue in their brief, the trial court arguably ruled by implication and found good
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cause when the trial court gave Appellant time to respond to the New Mexico Appellees’
jurisdictional issues. See Schimmel, 438 S.W.3d at 856 (holding that by mentioning the timeliness
of appeal, the trial court impliedly ruled that there was good cause for defendant’s failure to file
his motion on time as required under the TCPA). However, even if the court did so, no subsequent
hearing on the motion was held. The statute requires a hearing on the Media Appellees’ dismissal
motions, and without such a hearing the motions to dismiss cannot be granted. Citizens
Participation Act, 82nd Leg., R.S., ch 341, § 27.004, 2011 TEX.GEN.LAWS 961, 963 (amended
2013). On the other hand, if the hearing on February 20 was, in fact, the motion hearing, then the
dismissal motion was overruled by operation of law when a ruling was not made within 30 days
of February 20. The trial court’s April 18 order granting the motions was invalid. See
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 79-80 (Tex.App.-
-Houston [1st Dist.] 2013, pet. denied). In either case, the motions to dismiss were improvidently
granted. Thus, Appellant’s second issue is sustained.
III.
PLENARY POWER
In the third issue on appeal, Appellant contends that the dismissal orders of the 448th trial
court were void due to the lack of a hearing. In addition, Appellant contends that the 243rd trial
court refused to rule on his motion to declare those dismissal orders void and the trial court failed
to acknowledge the court’s plenary power when the case was transferred from the 448th trial court,
and thus committed reversible error. We disagree.
Contrary to Appellant’s assertions, as previously discussed, a hearing was held by the 448th
trial court on February 20, 2013. During that hearing, Appellees made special appearances
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challenging the trial court’s jurisdiction and submitted supporting affidavits. The trial judge
granted Appellant additional time to submit a written brief responding to the dismissal motions
and Appellees an opportunity to respond to Appellant’s brief. After the briefs were filed, the
448th trial court granted the dismissal motions. Appellant’s contention that those dismissal orders
were void due to the lack of a hearing is meritless, which renders his issue regarding the 243rd trial
court’s plenary power moot. Appellant’s third issue is overruled.
IV.
FEDERAL RIGHTS AND THE SUPREMACY CLAUSE
In his fourth issue, we understand Appellant to contend that the 243rd trial judge violated
the Supremacy Clause in granting the dismissals because they included federal causes of action
against Appellees. A Texas district court is a court of general jurisdiction, meaning it is
authorized to hear claims arising out of the U.S. Constitution and federal statutes. TEX.CONST.
art. V, §§ 1, 8; TEX.GOV’T CODE ANN. §§ 24.007, 24.008 (West 2004 & Supp. 2016). Appellant
is correct that federal causes of action can and sometimes must be heard and decided by a state
court unless federal statute provides for exclusive federal jurisdiction. U.S. CONST. art. VI, cl. 2;
See ASARCO Inc. v. Kadish, 490 U.S. 605, 109 S. Ct. 2037, 104 L. Ed. 2d 696 (1989)(holding that
state courts may render decisions based on their own interpretations of federal law unless the
statute provides for exclusive federal jurisdiction); In re Haynes and Boone, LLP, 376 S.W.3d 839
(Tex.App.--Houston [1st Dist.] 2012, orig. proceeding); First Nat. Collection Bureau, Inc. v.
Walker, 348 S.W.3d 329 (Tex.App.--Dallas 2011, pet. denied). But Appellant’s claims were
dismissed based on forum non conveniens—not because the trial court refused to hear the supposed
federal claims. Appellant’s fourth issue is without merit and is thus overruled.
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V.
JUDICIAL BIAS
Last, Appellant maintains that the 243rd trial judge demonstrated clear bias by repeatedly
admonishing him to retain counsel. Appellant asserts this bias was further shown by the adverse
rulings he received.
To show judicial bias, Appellant must demonstrate that the judge displayed a deep-seated
favoritism or antagonism which made a fair judgment impossible. Burgess v. Feghhi, 191 S.W.3d
411, 415 (Tex.App.--Tyler 2006, no pet.). Critical or hostile remarks, expressions of impatience,
dissatisfaction, annoyance, or even displays of anger toward a party are not sufficient to establish
bias. Id.; Ludlow v. DeBerry, 959 S.W.2d 265 (Tex.App.--Houston [14th Dist.] 1997, no pet.).
If a party disagrees with a ruling—which is usually a point of error to be raised on appeal—only
in the most unusual of cases will the adverse ruling demonstrate the favoritism necessary to show
bias. Ellason v. Ellason, 162 S.W.3d 883, 887 (Tex.App.--Dallas 2005, no pet.).
The record indicates that the trial judge advised Appellant on several occasions to seek
counsel. Appellant consistently responded that he would proceed pro se. These repeated
remonstrations do not show a deep-seated favoritism or antagonism; at worst, they show
annoyance which is insufficient to demonstrate judicial bias rendering fair judgment impossible.
Burgess, 191 S.W.3d 415. Appellant’s fifth issue is overruled.
CONCLUSION
Having sustained Appellant’s second issue, we reverse the order of the 448th district court
granting the dismissal motions of Las Cruces Sun-News, Ashley Meeks, and Brian Fraga, and
remand for further proceedings. In overruling Appellant’s remaining issues, we affirm the
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judgment of the trial court dismissing the other appellees.
October 31, 2017
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., Not Participating
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