Windsor v. Fleming

          From the 378th District Court Ellis County, Texas, Trial Court No. 88611-A

          Before Chief Justice Gray, Justice Davis, and Justice Neill.

          MEMORANDUM OPINION

          REX D. DAVIS JUSTICE.

         William M. Windsor, who represented himself in the underlying trial court proceedings and is also representing himself in this appellate proceeding, appeals the trial court's December 18, 2014 "Order Granting Defendant Sean D. Fleming's Anti-SLAPP Motion to Dismiss and Judgment Awarding Costs, Expenses, Attorney's Fees and Sanctions in Favor of Sean Fleming Against William Windsor." We will affirm.

         Background

         • December 26, 2013 - Windsor filed his original petition against Fleming and several other defendants. The case was assigned to the 40th District Court of Ellis County. The presiding judge of the 40th District Court is the Honorable Bob Carroll.

         • January 15, 2014 - Windsor filed his first amended petition against Fleming and several other defendants, alleging as follows: Windsor founded an organization called "Lawless America" and developed a website for it. Windsor "publishes an online magazine, produces and hosts a radio show, and has been producing and directing a documentary film about injustices of various types." In December 2012, Windsor became aware of Joeyisalittlekid.blogspot.com. Joeyisalittlekid.blogspot.com was originally "an online gathering place" for a group of people who disliked Joey Dauben.^[1] The group turned its attention to Windsor, however, after members of the group learned that Dauben's girlfriend and family had approached Windsor to "do some filming" about Dauben's story. Members of the group, including Fleming and the other defendants, began posting alleged defamatory content about Windsor. Windsor claimed that the actions of Fleming and the other defendants constituted libel and defamation, defamation per se, slander, slander per se, intentional infliction of emotional distress, tortious interference with contract or business expectancy, tortious interference with a prospective business relationship, invasion of privacy by misappropriation, invasion of privacy, civil conspiracy, and stalking.

         • January 21, 2014 - Fleming filed his original answer and special exceptions to Windsor's petition. Fleming denied all of Windsor's allegations.

         • February 26, 2014 - Fleming filed a motion to dismiss Windsor's claims against him under the Texas Citizens Participation Act (TCPA), generally known as the Texas anti-SLAPP ("strategic lawsuit against public participation") law. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011.

         • March 10, 2014 - The trial court issued a memorandum ruling, staying all of the proceedings in the case. The memorandum ruling provided:

IT IS ORDERED that effective immediately, all proceedings in the above entitled and numbered lawsuit are hereby stayed and remain on hold, including legal deadlines applicable to any party, until such time as the trial court further examines the legal implications and applicability of the Order and vexatious litigant injunction directed against William M. Windsor dated July 15, 2011 and issued by Thomas W. Thrash, Jr., United States District Judge for the Northern District of Georgia . . . .

         The memorandum ruling then specifically stated:

This stay of proceedings applies without prejudice, by way of example only and not by way of any limitation, to - (i) any of Plaintiff's pending motions, requests for hearings, or court dates; (ii) Defendant Sean D. Fleming's Motion to Dismiss; and (iii) the various requests received by the trial court for hearings on special exceptions . . . . [Emphasis added.]

         • March 17, 2014 - Windsor filed a motion requesting that the trial court allow him to conduct discovery and that the hearing on Fleming's TCPA motion to dismiss be set for June 23, 2014, approximately 120 days from the date that Fleming filed his motion to dismiss.

         • April 7, 2014 - Windsor filed a pleading entitled "Constitutional Challenge to Texas Citizens Participation Act" and a motion to dismiss Fleming's TCPA motion to dismiss.

         • April 10, 2014 - Windsor filed a supplement to his motion to dismiss Fleming's TCPA motion to dismiss.

         • August 11, 2014 - The trial court signed "Trial Court Order No. 1 and Notice of Hearing." The trial court concluded in its order that it was not permitted to dismiss Windsor's lawsuit outright for his noncompliance with the terms of the vexatious litigant injunction issued by the federal district judge in Georgia. The trial court concluded, however, that it possessed "legal authority within its inherent judicial power to impose various litigation control measures." The trial court's order therefore provided:

It is Ordered that the stay of proceedings is hereby lifted; however, such Order is specifically subject to and conditioned upon [Windsor]'s current and future compliance with all the other Orders contained herein[, which included an "Order Providing for Litigation Control Measures."] The preceding Order shall be referred to as the "Order Lifting Stay of Proceedings."

. . . Accordingly, with respect to the mechanics of initially lifting the stay, the trial court finds and rules that the Order Lifting Stay of Proceedings shall become automatically effective on such date as [Windsor] (i) complies with Litigation Control Measures #1, #5, #6, and #7 of the preceding Order Providing for Litigation Control Measures; and (ii) files of record a Notice of Compliance with Litigation Control Measures #1, #5, #6, and #7 (with file marked courtesy copy being sent directly to the presiding judge).

         "Trial Court Order No. 1 and Notice of Hearing" also notified the parties that a hearing for the purpose of establishing a "Preliminary Discovery Control Plan & Scheduling Order" would be held on September 19, 2014.

         • August 12, 2014 - Windsor filed a "Notice of Compliance with Litigation Control Measures and Motion for Reconsideration." Windsor requested in the pleading that the trial court reconsider its imposition of the litigation control measures but also represented that he had complied with Litigation Control Measures #1, #5, #6, and #7.

         Additionally, on August 12, Windsor filed his second amended petition against Fleming and the other defendants. Along with the allegations in his first amended petition, Windsor alleged in his second amended petition that Fleming's and the other defendants' actions constituted invasion of privacy by disclosure and business disparagement. Windsor also brought a conversion claim against one of the other defendants, but the claim did not concern Fleming.

         Finally, on August 12, Windsor filed a motion to declare that he is not a public figure or a limited-purpose public figure and, separately, a motion for sanctions and perjury against Fleming.

         • September 16, 2014 - Windsor filed a second supplement to his motion to dismiss Fleming's TCPA motion to dismiss.

         • September 17, 2014 - Fleming filed a response to Windsor's motion to declare that he is not a public figure or a limited-purpose public figure.

         • September 19, 2014 - The trial court held a hearing. At the outset, Fleming's counsel stated that his "primary concern" was to set Fleming's TCPA motion to dismiss for a hearing. Counsel for Sam Round, another defendant, then noted that Round had filed a similar motion but that he had also filed a special appearance that needed to be heard before the TCPA motions to dismiss. The trial court agreed, stating that there needed to be a hearing on the special appearance and that it would then proceed to hear any motion to dismiss Windsor's claims under the TCPA.

         Windsor noted at that point that he had filed a motion asking that the trial court declare that he is not a public figure or limited-purpose public figure. The trial court responded by stating that that issue might be taken up at the hearing on the TCPA motions to dismiss. Windsor then asserted that he needed to conduct discovery to respond to the TCPA motions to dismiss and that he had also filed "a document seeking to have the [TCPA] declared unconstitutional in part." The following exchange then took place:

THE COURT: [Fleming's counsel], maybe what we could do is combine the special appearance hearing along with a hearing to determine whether or not discovery, if at all, is appropriate prior to the Chapter 27 [TCPA] hearing. Does that make sense?

[Fleming's counsel]: Okay. Yes, sir. I understand. And, Your Honor, are you going to wait to set our hearing until that time as well or -- there is a deadline associated with this motion. Now, with a stay all the legal deadlines were postponed but - -

THE COURT: But the stay was lifted.

[Fleming's counsel]: But I understand. But once the stay is lifted, then I guess the deadline starts accruing again. So it's supposed to be done pretty quickly. I just wanted you to be aware of that.

THE COURT: I understand.

MR. WINDSOR: Your Honor, I don't know if it's possible, I don't see anything in the statute and I haven't found any cases, but I'm certainly agreeable to enter into something that extends the period of time if they aren't dismissed for various reasons because I believe - - I believe one or more of them is expired, one of them was filed during the stay so there are some procedural issues, but the point is, if it's possible to agree to give a longer period of time to them, I'm happy to do that.

         At that point, the trial court instructed Windsor, Fleming's counsel, and Round's counsel to confer and "come up with a framework for these hearings." After they conferred, the following exchange occurred:

THE COURT: Then, Counsel, what type of input or agreement with Mr. Windsor did you reach? Do we have a hearing date coming up?

[Round's counsel]: Your Honor, we reached an agreement on a hearing date of October 28th at 1:30 p.m. and [the court coordinator] has been kind enough to reserve the afternoon for the special appearance as well as the discovery issues, whether discovery is warranted on the Chapter 27 Motions to Dismiss and we reached an agreement on that day and those hearings.

THE COURT: So bottom line then, the hearing date set for October 28th, 2014 at 1:30 p.m., that will be, number one, to first consider the special appearance issues and matters related to defendant Sam Round . . . .

And then, secondly, to determine whether or not any discovery in the nature, scope and extent of discovery, if any, will take place in the Chapter 27 hearing. And, of course, that may or may not affect Mr. Round depending upon the Trial Court's ruling in the special appearance but will affect Sean Fleming. Is that correct, [Fleming's counsel]?

[Fleming's counsel]: Yes, Your Honor.

[Fleming's counsel]: Your Honor, hopefully at that hearing we'll then be able to set a hearing date for the Motion to Dismiss. Is that what you're envisioning?

THE COURT: Absolutely. Absolutely. . . .

[Fleming's counsel]: I was just going to make a note that, I mean, as long as it's not an issue, that the statute does say that the hearing should be I think up in 90 days after service, but as long as that's not going to be an issue, there's no objection.

THE COURT: You tell me, do I lose jurisdiction over that issue? By stipulation?

[Fleming's counsel]: Can we stipulate?

MR. WINDSOR: Well, I think what you could actually do would be to set a date just as long as it's off in the future somewhere. I understand you'd be busy in November, so maybe December.

[Fleming's counsel]: You're not going to feel - - you'll stipulate on the record that - -

THE COURT: Well, I tell you what. Let's do this. Let's set the hearing on the merits for Chapter 27 also for October 28th, 2014 with the understanding that it may be announced and started, but it will be immediately recessed. And the reason why it will be recessed is to address discovery issues.

So pragmatically you're not going to reach the merits. But for all purposes - - for all legal purposes whatsoever and on the record, that issue will be at least started and kept open.

And, Mr. Windsor, you're also stipulating to the fullest extent under the law that the Trial Court's authority to hear such Chapter 27 matters, even outside the 90-day rule is permissible, correct?

MR. WINDSOR: No[t] exactly, Your Honor. I had filed motions that these - - Section 27 [sic] are defective for various reasons so - -

THE COURT: I understand. But you're not waiving your arguments that they're defective. Are you suggesting that if the defectives - - if the defects or fails and we arrive at that determination after the 90-day time period they cannot be brought up? Are you talking about procedural defects or substantive defects?

MR. WINDSOR: One of them has expired, Your Honor, according to the statute. One of them was filed while the stay was in effect. Several of the pro se defendants have now filed them. It's well past the 60 days that you're allowed, so that would wipe them all out.

[Fleming's counsel]: Your Honor, one comment. I think - -

THE COURT: Here's what we've got to do then. I didn't realize those other pro se defendants filed Chapter 27 motions, so are all our pro se defendants here as far as we know?

MR. WINDSOR: No, Your Honor.

THE COURT: Well, the ones that announced earlier this morning, are they here?

[Pro se defendant]: Yes.

THE COURT: Everybody still here. Okay. Then I'm giving you notice now that we are going to hear the Chapter 27 motions on October 28, 2014, at 1:30 p.m. At the time we begin the hearing I will be open to the request to consider whether or not I will allow any discovery. If I allow discovery, we will, perhaps, adjourn certain or all of the motions. We'll allow the discovery to take place. Then we'll resume. If I don't allow the discovery to take place, then we will hear the motions on the merits. Sound reasonable?

[Round's counsel]: Yes, Your Honor[.]

[Fleming's counsel]: Yes.

THE COURT: Mr. Windsor?

MR. WINDSOR: Yes, Your Honor.

THE COURT: Pro se defendants agreeable?

PRO SE DEFENDANTS: Yes.

         • September 24, 2014 - Fleming filed a "Motion to Declare [Windsor] a Vexatious Litigant [and] Request Security under Chapter 11 of the Texas Civil Practice and Remedies Code."

         • October 2, 2014 - Windsor filed a motion to strike, and, in a separate document, a response to, Fleming's "Motion to Declare [Windsor] a Vexatious Litigant [and] Request Security under Chapter 11 of the Texas Civil Practice and Remedies Code." Windsor also moved for sanctions against Fleming.

         • October 23, 2014 - Fleming filed a reply to Windsor's response to Fleming's TCPA motion to dismiss.

         • October 27, 2014 - Fleming filed a response to Windsor's motion to strike Fleming's "Motion to Declare [Windsor] a Vexatious Litigant [and] Request Security under Chapter 11 of the Texas Civil Practice and Remedies Code." Fleming also responded to Windsor's motion for sanctions against him.

         • October 28, 2014 - Windsor filed his third amended petition against Fleming and the other defendants. Along with the allegations in his second amended petition, Windsor alleged in his third amended petition that Fleming's and the other defendants' actions constituted intentional infliction of emotional distress through online impersonation.

         Additionally, on October 28, Windsor filed a "Motion Regarding Expiration of Motion to Dismiss of Defendant Sean D. Fleming." The trial court then held a hearing.

         The trial court stated that the "first order of business" at the hearing was Round's special appearance. Once that portion of the hearing concluded, ^[2] the trial court then stated, "[Fleming's counsel], let's go ahead and proceed with your Motion to Dismiss under Chapter 27 of the Civil Practic[e] and Remedies Code." Windsor, however, objected at that point, stating as follows:

Your Honor, I would like to object to this next topic that you want to cover. I filed today a Motion regarding Expiration of the Motion to Dismiss of Sean D. Fleming, and counsel gave you a copy of it so you have it there.

The issue is that the timing relative to these so-called Texas Citizens Participation Act filings and hearings are very, very specific. In this case, Sean D. Fleming served to me on February 24th a copy of that service document which is attached as an exhibit to this.

The hearing - - and it states - - the statute says, "In no event", [sic] twice it says this. "In no event, shall the hearing occur more than 90 days after the service of the Motion". [sic] Well, if we calculate those days, we come up that October 26th was the date that the hearing needed to be held. It's October 28th, by statute, this Motion to Dismiss has been denied. Their option now is to file an appeal. The hearing was not held in the required 90 days.

         After the trial court and the parties discussed Windsor's objection, and after the trial court recessed the hearing for about an hour, Fleming's counsel asserted:

Your Honor, I don't mean to interrupt, but I do have a suggestion to get around this dilemma that we've been discussing so that you can arrive at a legally correct ruling if I could just be heard for one moment, and I didn't think of it until the break. Section 27.006(b) says, "On a motion by a party or on the Court's own motion or on a showing of good cause, the Court may allow specified and limited discovery relevant to the ...