City of Aransas v. Shodrok

          On appeal from the County Court at Law No. 1 of Nueces County, Texas.

          Before Chief Justice Contreras and Justices Hinojosa and Tijerina

          MEMORANDUM OPINION

          JAIME TIJERINA, JUSTICE

         Appellants, the City of Port Aransas (the City), Mayor Charles R. Bujan, and City Manager David Parsons, appeal the trial court's final judgment in favor of appellee Julie Smith Shodrok. By three issues, appellants contend the trial court erred by dismissing the City's claims under the Texas Citizens Participation Act (TCPA) because it proved its prima facie case by clear and specific evidence; Shodrok was not entitled to attorney's fees; and monetary awards are barred by governmental immunity. We reverse and render.

         I. Background

         Shodrok is a resident of Port Aransas, Texas. On July 6, 2017, she and her husband met with the mayor in his office to discuss issues pertaining to the City. The mayor and Shodrok consented to recording their discussion, so Shodrok used the recording function on her cell phone to record the meeting. At the start of the meeting, she connected her cell phone to a charger, plugged it into an electrical outlet, began recording, and placed her phone on the floor.

         At the conclusion of the meeting three hours later, the Shodroks left the mayor's office without Shodrok's phone. The city manager then entered the mayor's office, and the two held a private conversation while Shodrok's phone continued to record. Approximately four minutes later, while the mayor and city manager continued to converse, Shodrok returned to retrieve her phone.

         After reviewing the contents of the recording, Shodrok discovered her recorder had recorded the mayor and city manager's private conversation. Subsequently, she "expressed her frustration" about their private conversation on a social media website and another internet site in addition to e-mailing five city council members.^[1]

         On July 21, 2017, the City sued Shodrok for allegedly violating the Texas Interception of Communications Act (TICA). See Tex. Civ. Prac. & Rem. Code Ann. §§ 123.001-.004. Shodrok moved to dismiss on two grounds: the TCPA, also known as the anti-SLAPP (strategic lawsuits against public participation) statute, and Texas Rules of Civil Procedure 91a. See id. § 27.003;^[2] Tex.R.Civ.P. 91a. She also requested sanctions, court costs, and attorney's fees under the TCPA, Rule 13 of the Texas Rules of Civil Procedure, and Chapters 9 and 10 of Texas Civil Practice and Remedies Code.^[3]

         The City filed a "Notice of Non-Suit" on its TICA claim against Shodrok on September 27, 2017 while Shodrok continued her pursuit for affirmative relief. See Tex. R. Civ. P. 164. On December 14, 2017, the trial court held a hearing on Shodrok's motion to dismiss and her requested relief. Three days later, the trial court entered a "Final Judgment and Order on Julie Smith Shodrok's Attorneys Fees and Sanctions - Chapter 27 (TCPA)" awarding attorney's fees, costs, and sanctions against the City.^[4] This appeal followed.

         II. Texas Citizens Participation Act

         The 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. It is to "be construed liberally to effectuate its purpose and intent fully," but it "does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions." Id. § 27.011.

         The TCPA provides a procedure for the expedited dismissal of "retaliatory lawsuits that seek to intimidate or silence [citizens] on matters of public concern." In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). The Act provides that

[a] two-step process is initiated by motion of a defendant who believes that the lawsuit responds to the defendant's valid exercise of First Amendment rights. Under the first step, the burden is initially on the defendant-movant to show "by a preponderance of the evidence" that the plaintiff's claim "is based on, relates to, or is in response to the [movant's] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association." Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). If the movant is able to demonstrate that the plaintiff's claim implicates one of these rights, the second step shifts the burden to the plaintiff to "establish[ ] by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c).

Id. And even if the nonmovant makes this showing, the trial court must dismiss the case if the movant "establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim." Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d). When determining whether to dismiss the legal action, the court must consider "the pleadings and supporting and opposing affidavits stating the facts ...