Texas Anti-Slapp Motion Survives A Motion To Nonsuit

Written by Robert Ray

I am a Texas attorney. I am Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. My principle office is in Lantana, Texas in the DFW area. I am a past chair of the Texas State Bar Computer & Technology Section. I was appointed by the Chief Justice to serve one year as and ex-officio member on the Judicial Committee on Information Technology.



Court of Appeals

Justice Court

In DUCHOUQUETTE v. PRESTIGIOUS PETS, LLC, No. 05-16-01163-CV (Tex. App. – Dallas, November 6, 2017), a husband and wife left their pets, including their fish, under the care of Pets. They watched their fish on a web cam and felt that their fish was being over fed. They made some unfavorable comments on Yelp. Pets sued them in the Justice of the Peace court for defamation, misrepresentation tort and breach of contract. They sued for $6,766 in damages and an injunction. The claim was based on a non-disparagement clause in the contract of care. The Duchouquettes filed a motion under the Texas Anti-Slapp statute, Texas Citizens Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 et. seq. Pets did not respond to the motion but instead, filed a motion to nonsuit. The justice court granted the nonsuit, denied all outstanding motions and dismissed the entire case.

County Court at Law

The Duchouquettes appealed the justice court judgment to the county court. Pets then filed another nonsuit of its claims and a plea to the jurisdiction. Pets’ plea to the jurisdiction argued that the county court lacked jurisdiction because (i) the justice court nonsuit mooted the entire case and (ii) no judgment was rendered by the justice court, so there was nothing to appeal. The County Court had a hearing and dismissed the case a second time.

Court of Appeals

The Duchouquettes appealed to the Texas Court of Appeals.

“Pets argued that the county court lacked jurisdiction because: (i) the justice court lacked jurisdiction over the defamation claim, (ii) the nonsuit disposed of the case, and (iii) the county court could not consider the Duchouquettes’ TCPA motion because it was a de novo appeal and they failed to re-file the motion in county court.”

After ruling that the lower courts did have jurisdiction even though one of the claims was for defamation, the appeals court ruled in favor of the Duchouquettes

“(b)ecause the justice court had jurisdiction over some of Pets’ claims and the TCPA motion to dismiss to those claims was an affirmative claim for relief pending in the county court, the county court erred in concluding that it lacked jurisdiction.”

The Texas Anti-Slapp motion was a motion seeking affirmative relief filed in the justice court and survived the nonsuit, they did not need to refile in the county court at law.

Disposition

The Duchouquettes wanted the appeals court to render a verdict on their motion. As I have written here before, the appeals court can not rule on a Texas Anti-Slapp motion until the trial judge holds a hearing. Since the county court did not hold a hearing, the appeals court sent the case back to that court so a hearing could be held.

PS

After Pets nonsuited their case in the justice of the peace court, they filed a new suit in the district court. The Duchouquettes filed a Texas Anti-Slapp motion in that court which was granted. The district court awarded them $7,000 in sanctions and cost against Pets. An appeal from that judgment was not part of this appeal.

Assuming that the county court also grants them sanctions and/or attorney’s fees, Pets will end up paying a high price for the claims that they brought.