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Misko v. Johns

Court of Appeals of Texas, Fifth District, Dallas

May 1, 2019

KAREN MISKO, Appellant

          On Appeal from the 429th Judicial District Court Collin County, Texas, Trial Court Cause No. 429-01844-2013

          Before Justices Whitehill, Molberg, and Reichek.



         The Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (the TCPA), "protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them." In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). Indeed, the stated purpose of the TCPA is to "encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." Tex. Civ. Prac. & Rem. Code Ann. § 27.002.

         However, based on the broad definitions in the statute, parties have sought to apply the protections of the TCPA to an increasing range of situations that do not further this purpose, including filing motions to dismiss (1) a suit affecting the parent-child relationship under the family code, Smith v. Malone, No. 05-18-00216-CV, 2018 WL 6187639, at *1-2 (Tex. App.- Dallas Nov. 27, 2018, pet. denied) (mem. op.); (2) an appeal from the denial of a motion to dismiss under the TCPA, Amini v. Spicewood Springs Animal Hosp., LLC, 550 S.W.3d 843, 843-44 (Tex. App.-Austin 2018, no pet.); (3) a post-judgment subpoena directed to a third party, Dow Jones & Co., v. Highland Capital Mgmt., L.P., 564 S.W.3d 852, 854 (Tex. App.-Dallas 2018, pet. filed); and (4) a TCPA motion to dismiss, Paulsen v. Yarrell, 537 S.W.3d 224, 230 (Tex. App.- Houston [1st Dist.] 2017, pet. denied).

         This appeal is the second interlocutory appeal in this case concerning an order denying dismissal under the TCPA. In the first appeal, we determined the trial court did not err by denying Tracy Johns' TCPA motion to dismiss Karen Misko's substantive claims. See Backes v. Misko, 486 S.W.3d 7 (Tex. App.-Dallas 2015, pet. denied). In this second appeal, Misko, attempting to stretch the applicability of the TCPA beyond the substantive claims at issue, contends the trial court erred by denying a TCPA motion to dismiss a motion for sanctions filed by Johns based on Misko's conduct during the course of litigation.

         We conclude the definition of "legal action" in the TCPA does not encompass a motion for sanctions alleging discovery abuse by a party that is filed after, and in this case years after, the commencement of litigation. Further, construing the TCPA to apply to such a motion would open the floodgates to serial motions to dismiss during the pendency of litigation based on conduct ancillary to the substantive claims in the case. Accordingly, we affirm the trial court's denial of Misko's motion to dismiss.


         On May 9, 2013, Jane Backes sued Misko for tortious interference with prospective business relations and invasion of privacy. That same day, Johns filed a petition in intervention alleging Misko had also tortiously interfered with Johns' prospective business relations. On January 27, 2014, Misko filed counterclaims against Backes and Johns. Misko alleged Johns defamed her in postings on an internet forum and that Backes and Johns conspired to publish the defamatory statements with the intention of harming Misko's reputation and business.

         Backes and Johns filed motions to dismiss Misko's claims pursuant to the TCPA. The trial court denied the motions to dismiss, and Backes and Johns filed an interlocutory appeal. We affirmed the trial court's denial of Johns' motion, but reversed its denial of Backes' motion and rendered judgment dismissing Misko's claims against Backes. See Backes, 486 S.W.3d at 29.[1]

         On remand, Johns began conducting discovery into Misko's substantive claims and damages. Johns filed numerous motions complaining Misko was not adequately complying with the discovery requests and asserting Misko had improperly designated expert witnesses and failed to produce documents relied upon by the designated experts. The discovery disputes culminated in a motion for sanctions filed by Johns on March 14, 2018. In the motion, Johns alleged Misko had used false evidence (suborned perjury) and made fraudulent filings in the case. Johns specifically asserted Misko (1) had induced a fact witness to sign a false affidavit and used that affidavit, as well as a false and misleading affidavit from an expert witness, to defeat Johns' motion to dismiss; (2) fraudulently designated two individuals as expert witnesses; and (3) "duped" the trial court into making rulings based on the assumption that the designated individuals had relevant records. Johns requested that, pursuant to Chapter 10 of the Texas Civil Practice and Remedies Code, Texas Rules of Civil Procedure 13 and 215, and the trial court's inherent power, the trial court dismiss Misko's claims and award Johns attorneys' fees and expenses of at least $147, 290.31.

         Misko filed a TCPA motion to dismiss the motion for sanctions. Misko argued the motion for sanctions was a legal action, as defined by the TCPA, and was filed in response to her exercise of the right to petition and Johns could not produce clear and specific evidence to establish a prima facie case for each essential element of the motion for sanctions.[2] Johns responded to the motion to dismiss, attaching voluminous evidence.

         Misko's motion to dismiss and Johns' motion for sanctions were set to be heard on the same day. After the trial court denied the motion to dismiss, Misko immediately filed a notice of interlocutory appeal, staying all proceedings in the trial court including Johns' motion for sanctions. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(12), (b).

         Applicable Law and ...

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