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Windsor v. Round

Court of Appeals of Texas, Tenth District

August 28, 2019

WILLIAM M. WINDSOR, Appellant
v.
SAM ROUND, Appellee WILLIAM M. WINDSOR, Appellant
v.
KELLIE McDOUGALD, Appellee WILLIAM M. WINDSOR, Appellant
v.
JOEYISALITTLEKID, ET AL., Appellees

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

          Before Chief Justice Gray, Justice Davis, and Justice Neill

          OPINION

          Rex D. Davis Justice.

         William M. Windsor is the appellant and represents himself in all three of these appeals. All three of these appeals arise from the same underlying trial court case in which Windsor, the plaintiff, also represented himself. Each appeal was separately docketed in this Court for the reasons set forth in Windsor v. Round, 532 S.W.3d 825 (Tex. App.-Waco 2014, order) (per curiam). Nevertheless, we will address all three of these appeals together in this opinion.

         Background

         • December 26, 2013 - Windsor filed his original petition in the underlying case against Joeyisalittlekid, Joeyisalittlekid.blogspot.com, Sean D. Fleming, Sam Round, and several other defendants. Windsor asserted in the pleading that his own residence was located in South Dakota. Windsor further asserted that Joeyisalittlekid.blogspot.com is an entity whose address is Google's California address and that Round's residence is located in Georgia. 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 in the underlying case against Joeyisalittlekid, Joeyisalittlekid.blogspot.com, Fleming, Round, and the other defendants. In this amended pleading, Windsor added Kellie McDougald and several others as defendants. Furthermore, as in his original petition, Windsor again asserted in his first amended petition that his own residence was located in South Dakota, that Joeyisalittlekid.blogspot.com is an entity whose address is Google's California address, and that Round's residence is located in Georgia.

         Windsor then alleged in his first amended petition 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 a man named 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, Round, McDougald, and the other defendants, began posting alleged defamatory content about Windsor. Windsor claimed that the actions of Fleming, Round, McDougald, 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 5, 2014 - Windsor filed a "Motion for Continuance on Special Exceptions Filings." Windsor asserted in the motion that "Google, Inc. and various defendants" had filed special exceptions and that a hearing on Google, Inc.'s special exceptions had been set for February 24, 2014. Windsor requested "a continuance of that hearing as well as a continuance on any hearings on special exceptions until needed discovery [could] be obtained." In this motion, Windsor began providing a Texas address for himself.

         • February 21, 2014 - McDougald filed a pro se original answer and special exceptions to Windsor's petition. McDougald denied all of Windsor's allegations.

         • February 24, 2014 - Round filed a pro se "Original Answer and Special Exceptions to Plaintiff's Petition." Although not stated in the title, Round made a special appearance in the substance of this document because he challenged the trial court's personal jurisdiction over him. See Tex. R. Civ. P. 120a; Hall v. Hubco, Inc., 292 S.W.3d 22, 35 (Tex. App. - Houston [14th Dist.] 2006, pet. denied) (op. on reh'g) ("In determining the nature of a filing, we look to the substance of [the] document, not merely its title."). In this pleading, Round also denied all of Windsor's allegations.

         Additionally, on February 24, Windsor filed an "Amended Motion for Continuance on Special Exceptions Filings."

         • 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. Over the next approximately ten months, both Windsor and Fleming then submitted numerous filings related to Fleming's TCPA motion to dismiss.

         • March 5, 2014 - The trial court signed an "Order Granting Non-Party Google Inc.'s Special Exceptions to Plaintiff's First Amended Verified Petition." The order stated, in part, as follows:

IT IS THEREFORE ORDERED that Google Inc.'s Special Exceptions to Plaintiff's First Amended Verified Petition are SUSTAINED. The Court specifically finds that Google Inc. is not, nor has it ever been, a party to this lawsuit. The Court further finds that Plaintiff does not now have, and never has had, any claims or causes of action pending against Google Inc. in this lawsuit. In addition, the Court hereby strikes from the record any statement to the contrary regarding Google Inc.'s status in this lawsuit.

         • 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, other than Google's special exceptions which were previously heard and ruled upon by the court.

         • March 14, 2014 - Windsor filed a "Motion for Hearing on Default Judgment" against each of Joeyisalittlekid, Round, and McDougald, alleging that each had failed to answer. The motions were dated March 13, 2014 but were not filed until March 14.

         • 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 Joeyisalittlekid, Joeyisalittlekid.blogspot.com, Fleming, Round, McDougald, and the other defendants. In this amended pleading, Windsor asserted that his own residence was now located in Texas. But as in his December 26, 2013 original petition and January 15, 2014 first amended petition, Windsor asserted in this amended petition that Joeyisalittlekid.blogspot.com is an entity whose address is Google's California address and that Round's residence is located in Georgia. Along with the allegations in his January 15, 2014 first amended petition, Windsor then alleged in his second amended petition that the actions of Fleming, Round, McDougald, and the other defendants constituted invasion of privacy by disclosure and business disparagement. Windsor also brought a conversion claim against one of the defendants.

         Finally, on August 12, Windsor filed a motion to declare that he is not a public figure or a limited-purpose public figure.

         • August 20, 2014 - McDougald filed a pro se motion to dismiss Windsor's claims against her under the TCPA.

         • September 16, 2014 - Windsor filed a "Motion to Strike and Motion for Sanctions Against Defendant Kellie McDougald." Windsor moved to strike McDougald's February 21, 2014 pro se original answer and special exceptions to Windsor's petition and her August 20, 2014 pro se TCPA motion to dismiss because McDougald failed to state her address, telephone number, and email address when she signed each document and because Windsor was not properly served with McDougald's TCPA motion to dismiss. Windsor further argued that the trial court should impose an appropriate sanction against McDougald for failing to properly serve him with her TCPA motion to dismiss.

         Additionally, on September 16, Windsor filed a motion to compel discovery from McDougald that he had served on her on August 12, 2014. In the same filing, Windsor again requested that the trial court sanction McDougald.

         • September 17, 2014 - Fleming filed a response to Windsor's August 12, 2014 motion to declare that he is not a public figure or a limited-purpose public figure.

         • September 19, 2014 - Windsor filed a "Second Amended Motion for Continuance on Special Exceptions Filings." Along with requesting "a continuance on any hearings on special exceptions until needed discovery [could] be obtained," as Windsor requested in his February 5, 2014 "Motion for Continuance on Special Exceptions Filings" and his February 24, 2014 "Amended Motion for Continuance on Special Exceptions Filings," Windsor stated in this second amended motion that he needed "a continuance on special exceptions and TCPA motions" because personal jurisdiction issues and motions to strike needed to be heard and resolved first.

         Additionally, on September 19, Windsor filed a "Motion to Deem Non-Texas Defendants Have Waived Any Challenges to Personal Jurisdiction Due to Failure to Comply with Rule 120a." Windsor acknowledged in this motion that Round had made a special appearance in this case and that Round is not a Texas resident. Windsor argued, however, that Round had waived any challenge to personal jurisdiction because he had failed to comply with Rule of Civil Procedure 120a in that his initial appearance was not made by sworn motion. See Tex. R. Civ. P. 120a.

         Finally, on September 19, the trial court held the hearing that it had notified the parties of in its August 11, 2014 "Trial Court Order No. 1 and Notice of Hearing." At the outset of the hearing, Fleming's counsel stated that his "primary concern" was to set Fleming's TCPA motion to dismiss for a hearing. Round's counsel 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, which led to the following exchange:

THE COURT: We will need to handle any special appearances first.
MR. WINDSOR: Your Honor, as to special appearance, 120(a) [sic] requires that they all be under oath, under a sworn motion. They weren't. I filed a motion __ an amended motion this morning saying that __
THE COURT: I understand. That may be the argument that you present at the hearing.
MR. WINDSOR: Right.
THE COURT: But we need to have a special hearing for the special appearance and that will come first in line. Then we'll proceed to any Chapter 27 [TCPA] Motion to Dismiss.

         The hearing on Round's special appearance was eventually set for October 28, 2014. The trial court also gave the parties notice that the TCPA motions to dismiss would be heard the same day. The trial court stated:

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.

         • October 2, 2014 - Windsor filed a motion to compel discovery from McDougald that he had served on her on August 19, 2014. In the same filing, Windsor requested that the trial court also sanction McDougald. Additionally, on October 2, Windsor filed a "Motion for Continuance and Discovery on [the] Special Appearances" of the defendants who are non-Texas residents, including Round.

         • October 6, 2014 - Round filed a sworn special appearance and, subject thereto, first amended answer and special exceptions.

         • October 23, 2014 - Subject to his special appearance, Round filed his response to Windsor's October 2, 2014 "Motion for Continuance and Discovery on [the] Special Appearances" of the defendants who are non-Texas residents, including Round.

         • October 24, 2014 - Subject to his special appearance, Round filed a combined "Motion to Join Sean D. Fleming's [September 17, 2014] Response to Plaintiff's [August 12, 2014] 'Motion to Declare that the Plaintiff Is Not a Public Figure or a Limited-Purpose Public Figure'" and "Response to Plaintiff's [August 12, 2014] 'Motion to Declare that the Plaintiff Is Not a Public Figure or a Limited-Purpose Public Figure.'"

         • October 28, 2014 - Windsor filed his third amended petition against Joeyisalittlekid, Joeyisalittlekid.blogspot.com, Fleming, Round, McDougald, and the other defendants. As in his August 12, 2014 second amended petition, Windsor asserted in this amended petition that his own residence was located in Texas. Furthermore, as in all of his previous petitions, Windsor asserted in this amended petition that Joeyisalittlekid.blogspot.com is an entity whose address is Google's California address and that Round's residence is located in Georgia. Along with the allegations in his August 12, 2014 second amended petition, Windsor then alleged in his third amended petition that the actions of Fleming, Round, McDougald, and the other defendants constituted intentional infliction of emotional distress through online impersonation.

         Additionally, on October 28, the trial court then held the scheduled hearing on Round's special appearance. After considering it, the trial court eventually made the following ruling:

In Cause Number 88611, William Windsor versus Sam Round, et al, the trial court hereby grants Sam Round's Special Appearance.
Based upon the pleadings and the Special Appearance evidence available to the trial court, the trial court finds that Plaintiff Mr. Windsor has not presented or proved a prima facie case on the questions of jurisdiction. Jurisdiction against Sam Round will be in his resident state of Georgia.
Further, with respect to any request for continuance on the part of Mr. Windsor for purposes of discovery, that motion is respectfully denied.
The trial court finds that based upon the nature, scope and the extent of the various discovery motions on file by Mr. Windsor that with respect to the evidence and information sought by these motions, that if any such discovery were engaged in, that the results of such discovery will not produce evidence supporting sufficient jurisdictional facts to allow the State of Texas to have jurisdiction over Sam Round.

         The trial court then additionally stated:

THE COURT: . . . .
With respect to the trial court's ruling, does either side need any further supplementation, clarification, or any additional findings?
Mr. Windsor?
MR. WINDSOR: No, Your Honor.
[Round's Counsel]: No, Your ...

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