Court of Appeals of Texas, Eighth District, El Paso
TERRENCE L. DANIELS, Appellant,
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.
from the 243rd District Court of El Paso County, Texas (TC#
McClure, C.J., Rodriguez, and Hughes, JJ.
T. RODRIGUEZ, JUSTICE.
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).
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.