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Daniels v. State of New Mexico

Court of Appeals of Texas, Eighth District, El Paso

October 31, 2017

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 individual and official capacities, JAMES DICKENS, in his individual and official capacities, SCOT KEY, in his individual and official capacities, KIRBY WILLS, in his individual and official capacities, PETER GIOVANNINNI, in his individual and official capacities, MICHAEL CAIN, in his individual and official capacities, 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.

         Appeal from the 243rd District Court of El Paso County, Texas (TC# 2012DCV06543)

          Before McClure, C.J., Rodriguez, and Hughes, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, JUSTICE.

         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 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 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 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 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.

         DISCUSSION

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