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Duchouquette v. Prestigious Pets, LLC

Court of Appeals of Texas, Fifth District, Dallas

November 6, 2017

ROBERT DUCHOUQUETTE AND MICHELLE DUCHOUQUETTE, Appellants
v.
PRESTIGIOUS PETS, LLC, Appellee

         On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-16-02381-C

          Before Justices Francis, Myers, and Whitehill

          MEMORANDUM OPINION

          BILL WHITEHILL JUSTICE

         This 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.

         The 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.[1]

         We 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 motion's merits.

         I. Background

         In 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]."

         While 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' services.

         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.

         On 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.

         Pets 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 sanctions.[2]

         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.[3] 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.

         The county court conducted a hearing, granted Pets' plea to the jurisdiction, and dismissed the case without prejudice.[4] 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 followed.

         II. ...


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