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Pacheco v. Rodriguez

Court of Appeals of Texas, Eighth District, El Paso

January 6, 2020


          Appeal from the 143rd Judicial District Court of Reeves County, Texas (TC# 17-04-21935-CVR)

          Before Alley, C.J., Rodriguez, and Palafox, JJ.



         The suit before us arises out of a dog mauling that took the life of Norberto Ramirez Legarda. But this appeal focuses only on the denial of a motion filed under the Texas Citizens Participation Act (TCPA) that sought to dismiss a cross-claim filed by one set of alleged tortfeasors against another. How does a dog mauling get us to the TCPA? A good question, and one that we do not find a satisfactory answer to, or at least an answer that suggests the trial court below erred in denying the TCPA motion. We accordingly affirm the order below.

         I. Background

         A. The Original Lawsuit

         This case originated in April of 2017, when Jaime Legarda, the representative of the Estate of Norberto Ramirez Legarda, filed a wrongful death lawsuit against Appellees, Oscar Lara Rodriguez and Salina Chavez Rodriguez. It seems that 83-year-old Norberto was attacked and killed by three pit bulls owned by Appellees. The dog attack occurred, however, at the home of Appellants, Yolanda and Fernando Pacheco, who are Norberto's daughter and son-in-law, and who are next-door neighbors of Appellees. At the time of the attack, Appellants were out of town and Norberto was taking care of their Labrador retriever. According to police incident reports, the Appellees' pit bulls entered Appellants' yard through an opening in a fence that separated the properties and attacked both Norberto and the Labrador retriever.

         The Estate alleged that Appellees were negligent, negligent per se, and strictly liable for causing Norberto's death. Appellees admit that they owned the pit bulls but claim that they were not on notice that the animals had any abnormally dangerous propensities. The Estate later filed an amended petition that also named Appellants as co-defendants, asserting a premises liability claim against them. Appellants then settled with the Estate and the trial court thereafter granted an order of partial nonsuit of the Estate's claims against Appellants.

         B. The Cross-claim and the Motion to Dismiss

         Almost a year later, Appellees filed a cross-claim against Appellants, alleging that they were negligent in three respects: (1) by failing to properly maintain their fence; (2) by "antagoniz[ing]" the pit bulls by "[scaring] them with their lawnmower[;]" and (3) by failing to warn Norberto about the potential danger surrounding the property, including the dangers resulting from their failure to maintain the fence. Appellees allege that Norberto's death would not have occurred but for Appellants' negligence, and that Appellants were therefore either fully or partially responsible for his death. They pleaded that if any damages were awarded against them, then "damages must [also] be assessed against [Appellants]."

         In addition to this contribution claim, Appellees also sought their own damages from Appellants, alleging that because of the "occurrence made the basis of this lawsuit," they have become "pariahs" and have been "ostracized" by other members of the community. Appellees requested monetary damages to compensate them for the loss of their "reputation and standing in the community," together with court costs and attorney's fees.

         Appellants answered and also filed a motion to dismiss the cross-claim under the TCPA. In their motion, Appellants argued that the cross-claim, while less than clear, was in effect a defamation claim based on the fact that Appellees had requested reputation damages.[1] Appellants therefore alleged that the cross-claim was "based on, relate[d] to, or [was] in response to [Appellants'] exercise of the right of free speech, the right to petition, or the right of association," thereby implicating the TCPA. In turn, Appellants argued that the burden then shifted to Appellees to come forward with clear and specific evidence establishing a prima facie case on each essential element of their defamation claim. Appellees responded to the motion, contending that their cross-claim was directly related to the Estate's original wrongful death lawsuit, and that the TCPA excepted claims for bodily injury and wrongful death.

         Following a short hearing, the motion was denied by operation of law, and this appeal follows. In a single issue, Appellants contend that this ruling was in error.

         II. Standard of Review and Applicable Law

         The Legislature passed the TCPA 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."[2] Tex.Civ.Prac.& Rem.Code Ann. § 27.002; see also MVS Int'l Corp. v. Int'l Advert. Sols., LLC, 545 S.W.3d 180, 188 (Tex.App.--El Paso 2017, no pet.). The TCPA, which is to be liberally construed to effectuate its purpose, is a "bulwark against retaliatory lawsuits meant to intimidate or silence citizens on matters of public concern." Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019); see also Tex.Civ.Prac.& Rem.Code Ann. § 27.011(b) ("This chapter shall be construed liberally to effectuate its purpose and intent fully.").

         To further this end, the TCPA provides for an early dismissal procedure of legal actions implicating certain protected rights for which the plaintiff cannot establish "by clear and specific evidence a prima facie case for each essential element of the claim[.]" Id. §§ 27.003(a), 27.005(c). A "legal action" includes a cross-claim. See id. ยงยง 27.003(a), 27.001(6) (defining "legal action" in the context of the TCPA to include a crossclaim). The dismissal procedure involves a multi-step process. Under the first step, the party moving for dismissal must make an initial showing, supported by a preponderance of the evidence, that the disputed claim "is based on, relates to, or is in response to the [movant's] exercise of: (1) ...

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