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Mustafa v. Pennington

Court of Appeals of Texas, Third District, Austin

April 24, 2019

Shakeel Mustafa, Appellant
Tyler Pennington, Appellee


          Before Justices Goodwin, Baker, and Smith.


          Edward Smith, Justice

         Appellant Shakeel Mustafa sued Tyler Pennington, the amicus attorney appointed to assist a trial court in resolving a custody dispute between Mustafa and Asim, his ex-wife. Mustafa's petition for relief alleges Pennington failed to satisfy his obligations under the Family Code, allegedly giving rise to claims of defamation, negligence, and breach of contract. Mustafa subsequently non-suited his defamation and negligence claims, and the district court granted Pennington's motion to dismiss the contract claim under the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Code §§ 27.001-.011. Mustafa now appeals from the dismissal order. We will affirm.


         Mustafa's wife filed for divorce in 2007. The merits of the divorce and custody dispute are not before this Court, but we will summarize the custody proceedings to establish the context of Mustafa's claims against Pennington and evaluate the district court's dismissal of those claims.

         The Underlying Custody Dispute

         In early 2016, Mustafa sued for modification of an order naming Mustafa and Asim joint managing conservators of the children and granting Asim the exclusive right to designate their primary residence. Mustafa's petition sought to maintain the joint managing conservatorship but to designate Mustafa as the conservator with the exclusive right to designate the children's primary residence. Asim filed a counterpetition seeking to dissolve joint conservatorship and have Asim named the sole managing conservator.

         The suit was brought in a Williamson County court at law, which had acquired continuing exclusive jurisdiction over the children through a prior custodial challenge brought by Mustafa. See Tex. Fam. Code § 155.001 ("[A] court acquires continuing, exclusive jurisdiction . . . on the rendition of a final order."). That court appointed Pennington as amicus attorney to investigate the best interest of the children pursuant to Section 107.005 of the Family Code. During his initial two-month investigation, Pennington interviewed school officials and a counselor and observed the children with Mustafa and with Asim. When Mustafa provided photographs of an apparent injury to the older child's arm, complaining that the stepfather was responsible, Pennington recommended the children begin seeing a therapist specializing in adolescent crisis. After several sessions with the children, the therapist provided Pennington with an affidavit stating that Mustafa might be pressuring the children-especially the older child-to come and live with him and that this pressure was resulting in unusual behavior by the older child. Based on the therapist's belief that Mustafa's unsupervised access to the children might harm the children's physical or emotional health and frustrate the judicial process, Pennington obtained an order limiting Mustafa's access to the children until the case could be resolved on the merits.

         The custody dispute was tried to jury a month after the enforcement hearing. The jury heard testimony reflecting Mustafa's longstanding attempts to pressure the children into leaving their mother and his repeated efforts to impede the judicial process. The pediatric therapist testified that Mustafa had tried to record the confidential sessions between the therapist and the children. He explained his conclusion that Mustafa might have persuaded the children to fabricate allegations of abuse in hopes of increasing his own access to them. The older child, testifying at trial, admitted that he had injured his own arm and confirmed that Mustafa had told him not to be honest with the therapist, but could not remember whether he had ever accused his stepfather of causing the injury. He also admitted to feeling "uncomfortable" on the witness stand and "nervous" about what Mustafa might say following his testimony that he wanted to live with his mother and loved his stepfather. After four days of testimony and two hours of deliberation, the jury unanimously found that Asim should be appointed sole managing conservator of the children and that the existing joint managing conservatorship should be dissolved. The court rendered a final order reflecting the jury's verdict and designating Asim as sole managing conservator.

         Mustafa filed a motion for new trial, a motion to interview the children, a motion to set aside orders, a request for findings of fact and conclusions of law, and an "objection to visiting judge." The motions were denied by operation of law. He appealed the final order to this Court, which dismissed the appeal for want of prosecution "after multiple delays and extensions of time." See Mustafa v. Asim, No. 03-17-00702-CV, 2018 WL 4190804, at *2-3, (Tex. App.-Austin Aug. 31, 2018 (pet. filed).

         Mustafa's Suit Against Pennington

         While the appeal was pending, Mustafa sued Pennington in Williamson County district court, alleging that Pennington had "egregiously breached his statutory duties promulgated by §107.003 and §107.005 of the Texas Family Code." Mustafa then pleaded counts of "breach of implied-in-fact contract, breach of implied-in-law contract, breach of express contract, defamation, and negligence." The petition's appendix included the motion for temporary orders filed by Pennington in the underlying custody dispute, the affidavits filed in support of that motion, and Pennington's post-trial motion to quash Mustafa's attempts to depose the pediatric therapist that testified at trial.

         Pennington filed a motion to dismiss under Section 27.002 of the Civil Practice and Remedies Code, which allows a party to move for dismissal "[i]f a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association . . . ." Mustafa filed a "nonsuit with prejudice of the defamation claim," which included a stated intent to "nonsuit[] and abandon[] any claims invoking the Texas Citizens Participation 'Anti-Slapp' Act." He continued to litigate his contract theories and sought discovery on those claims and on the TCPA motion, see Tex. Civ. Prac. & Rem. Code § 27.006(b), seeking to depose his older child and Pennington. After a hearing on the motion and the requested discovery, the district court denied Mustafa's discovery request and dismissed Mustafa's remaining claims with prejudice "pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code," awarding Pennington $14, 516.62 in attorney's fees and expenses. Se ...

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