Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law No. 3 Dallas County,
Texas Trial Court Cause No. CC-16-02381-C
Justices Francis, Myers, and Whitehill
case arises out of defamation, fraud, and breach of contract
claims Prestigious Pets (Pets) asserted against Robert and
Michele Duchouquette (the Duchouquettes) after Ms.
Duchouquette posted an unfavorable internet review about
Pets' care of their pet beta fish. The underlying dispute
has navigated a justice court, a county court at law, a
district court, and now this court.
pivotal question before us is whether the county court had
jurisdiction over the Duchouquettes TCPA request for
attorney's fees and sanctions in an appeal from the
justice court's dismissal order that followed Pets'
voluntary nonsuit of its claims.
conclude that the county court erred by dismissing the case
for want of jurisdiction because a nonsuit does not affect
another party's outstanding claims for relief. We reverse
the trial court's order granting the plea to the
jurisdiction and remand for further proceedings on the TCPA
October 2015, the Duchouquettes hired Pets to care for their
two dogs and a fish while they were away. Mr. Duchouquette
signed Pets' contract, which included a clause forbidding
"any action that negatively impacts [Pets]."
they were away, watching their fish webcam, the Duchouquettes
saw the Pets representative overfeeding the fish. But they
were unable to contact the Pets representative because of
Pets' policy against direct communication between clients
and pet sitters. When they returned from vacation, Ms.
Duchouquette posted an unfavorable Yelp review of Pets'
responded with a letter demanding modification of the review
and threatening legal action for breach of the contract's
non-disparagement clause. Although Ms. Duchouquette made
changes to her review, Pets sued both Duchouquettes in the
justice court. The petition claimed, inter alia,
breach of the non-disparagement clause, libel and slander,
intentional misrepresentation, and fraud by omission. Pets
requested $6,766 in damages, and an injunction ordering
compliance with the non-disparagement clause.
February 11, 2016, the Duchouquettes filed a TCPA motion to
dismiss claiming that the Yelp review was an exercise of free
speech and requesting attorneys' fees and sanctions.
See Tex. Civ. Prac. & Rem. Code §27.006
(a). The motion was set for hearing on April 4, 2016.
did not respond to the motion. Instead, two weeks before the
hearing, Pets filed a notice of nonsuit and request for
dismissal without prejudice. The justice court granted the
nonsuit that day, dismissed the case, and denied all
outstanding motions. Consequently, the Duchouquettes did not
get to pursue their request for attorneys' fees or
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 Duchouquettes responded,
arguing that (i) a motion for attorneys' fees and
sanctions under the TCPA is an independent claim for
affirmative relief that survives a plaintiffs' nonsuit
and (ii) they properly perfected the appeal.
county court conducted a hearing, granted Pets' plea to
the jurisdiction, and dismissed the case without
prejudice. The dismissal order makes no reference to
the TCPA motion and does not identify the grounds for
granting the plea. This appeal from that dismissal order