WILLIAM M. WINDSOR, Appellant
SEAN D. FLEMING, Appellee
the 378th District Court Ellis County, Texas, Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Neill.
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.
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
was originally "an online gathering place" for a
group of people who disliked Joey Dauben. 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 . . . .
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 . . . .
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
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
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,
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.
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
September 16, 2014 - Windsor filed a second
supplement to his motion to dismiss Fleming's TCPA motion
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
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
[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
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
[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
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
[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
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
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
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
[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
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.
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.
trial court stated that the "first order of
business" at the hearing was Round's special
appearance. Once that portion of the hearing concluded,
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
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.
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 ...