### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00813
- CV

Madeleine Connor, Appellant

v. Charles McCormick, Appellee

FROM THE 200TH DISTR ICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 16
- 005883 , THE HONORABLE ERIC SHEPPERD, JUDGE PRE SIDING

M E M O R A N D U M O P I N I O N
Ma del ein e Connor appeals from the tria l court ’ s order s (1) gran ting Charles McCormick ’ s motion t o dismiss certain claims she assert ed against him pur suant to the Texas Ci tizen s ’ Par ticipation Act, see Tex. Civ. Prac. & R em. Code §§ 27.001

- .011 (TCP A ) , a nd (2) gra nting McCormick ’ s motion for summary judgmen t on the re maining cl a i ms s he asserted against him on the ground that they were barred by the doctrine of res judicata

. We will af firm.

BACKGROUND Connor sued McCorm i ck in May 2017 alleg ing th at he defamed her by sending her employer an email in November 2016 that contain ed false and defam atory statement s about her

. Connor allege d that the email contained material falsehoods in cluding that she has

“ borderli ne persona l ity d isorder with histrionic feat ures, ” that she was fir ed f rom previous
emp loy ment, that she has a “ vendetta against men, ” and that she has a goal of “ further crippl [ing]2

veter ans and other disabled citizens. ” Connor alleged that the email was not only d efam a t ory but also caused her severe emotional distress because it was s ent to her supervisor at a time when she was be ing consid e red for a promotion to serve as the General Counsel of the Texas
Veterans Commission

.

McCormick filed a motion to dismiss C o nnor ’ s clai m s pur suant to the TCPA , asserting that Connor ’ s suit was based on his exercise of the right to free speec h or the right to petition

. See id. § 27.00 3 (a), .00 5(b). McCormi ck argue d that the letter he sent to Connor ’ s employer was a “ commun i ca t ion made in connection with a matter of p ublic co ncern , ” see id. § 27. 001( 2) (defining “ exercise of the ri ght of free sp eech ” as commu nication made in

con nection with matter of pub lic con cern), and was also a “ communication pertaining to a judicial procee d ing , ” a “ communication in connection with an issue under consideration or review by a govern mental body, ” and a “ communication that is reasonably likely to encou r age consideration or review of an issue by an executive or other governmental body

. ” S ee id. § 27.001(4) (B ), (C) (def ining “ exercise of the right to petition ” to include communica tion pertaining to judicial proceeding and communication in connection with issue under r eview by governmental body or reasonably like ly to enc ourage consideration or re v ie w of issue by executive or governmental body ). M cCormick also a sserted that th e letter was a communicati on
p rotected under the United States and Texas Constitu tions. See id. § 27.00 1( 4 ) ( E ) ( defi ning

“ exercise of the right to petition ” to include commun ic a tion that falls within protection of right to petition government under Unit ed States or Texas Constit utions).

Connor f iled a respons e to the mo ti on to dismiss in which she argued, in part, that she had made a prima facie case for eac h element of her cl a ims for defamation and intentional infliction of emotion al distress. See id. § 27.005 (c) (court may not di smiss legal action if party3

brin ging it establishes by c lear and speci fic evidence prim a facie c ase for e ach essential ele ment of claim in questio n)

. After a hearing, the tr ial court grant ed McCormick ’ s motion in part and denied it in part. The trial court found that Con nor had shown by clear an d specific ev idence a prima facie case for the es se ntial elements of her claims for defamation and inten ti o nal infliction

o f emotiona l distr ess ba sed on McCormick ’ s statement s that (1) Connor ha s “ border li ne personality disorder with histrionic features ” and (2) Connor was “ fired from the Te xas Atto rney Gener al ’ s Office ” and d enied the motion to dismiss thos e c laims. The court granted McCormick ’ s motion to dismiss Connor ’ s claims that were based on any other statements made by McCormick in the November 2016 email. The trial court ’ s order also awarded McCormick $1,000 as reasonable and necessary attorneys ’ f ee s asso ciated with the motion to di smiss. See id. § 27.009 (a)(1) (if court orders dismissal of action u nder TC P A, court shall award moving party reasonable atto rn e ys ’ fees).

McC ormi ck then filed a mo tion for summary judgment as serting th at he was entit le d to judgment a s a matter of law because (1) the claims brought against him were barred by the doctrine of res judicata and (2) the s tatement s made in the Novembe r 2016 email were absolutely privi leged because the y were made in the course of a ju dicial p ro c ee ding. See Barr

v. R eso lution Trust Co rp. , 837 S.W.2d 627, 628 (Tex. 1992) ( discussin g doctrine of res ju di cata ) ; Reagan v. Guardian Li fe Ins. Co. , 166 S.W.2d 909, 9 12

- 13 (Tex. 1942) ( discussing judicial proceedings priv ilege). Connor filed a respons e t o the mo tion for summary judgment and ob jected to eight documents McCormick submitted as summary judgment evi dence. The tri al court grante d Mc Cormick ’ s motion for sum mary judgment on the ground that the doctrine of res ju dicata barred Connor ’ s claim s. T h e co urt also overruled Connor ’ s objections to4

McCormi ck ’ s summary judgment evidence. Connor ’ s motion for new tri al was overru led by operation of law , and this appeal f ollowed.

DISC USSI ON In her first issue, Connor asserts that the trial court lacke d j u r isdiction to rule on McCormick ’ s summary judgment motion. Judge Eric Shepp erd of County Court at Law No. 2 of Travis County pr es ided over the he aring on the motion fo r summary judgment in Travis County District Court an d issued the or d er gr anting that m o t ion. Connor argues that , while
Ju dge Shepp erd pres ided, the district court lacked jur isdiction because Connor sought damages that exceed ed the maximum amount in contro versy over wh ich county courts have jurisdiction. We disagree. Travis County Local R u le 17 recites the authori ty granted in the Texa s Government Co de 1 to judge s of Travis Cou nty district co urts and statutory county courts to hear any civil case filed in the district courts or county courts and autho rizes the Travis County Court Administ r a t or to assign each available county court judge to hear any matter. See Travis County ( Tex.) Civ. Dist. Ct. Loc. R. 17.1. Connor argues that this autho rity is l imite d by sections 25.00 0 3 and 25.2292 of the Government Code, which set out the jurisdi ctio n o f statutory county courts and limits their juris diction o ver civi l cases to those in which the amount in controversy is

more than $500 and does not exceed $250,000. See Tex. Gov ’ t Code §§ 25.0003, .2292. By
stat ute , however, a “ statutory county court j u d ge may hear and determine a matter pending in

1 Rule 17.1 cit es to the Government Co de generally, withou t specifying a section, but the rule tra cks the language o f s ection 74 .094 : “ A district or sta tu to r y county court judge may he ar and dete rmine a matter p ending in any district or statutory county court i n the county regard less of w heth er the matter is preliminary or final or whether there is a judgment in the matte r. ” Tex. Gov ’ t Code § 74.0 94.5

any district . . . court in the county , ” and any order or judgm ent signed in this manner “ i s valid and binding as if the c as e wer e pending in the court of the judge who acts in the matter. ” Id. § 74.094(a). T he only statutory limitation on a sta tutory county court judge ’ s as signment is
geo graphical. Id. § 74.054(b) ( “ An active stat utory county court judge may not be assigned to
h ear a matter pending in a district court ou tside the county of the judge ’ s res i d e nce. ” ) ; see Lopez
v. Stat e , 57 S.W.3d 625, 628

- 29 (Tex . App.

— Corpus Christi 2001, pet. ref ’ d). This Court has
pr eviously addressed the application of this statute w hen the a mount in controvers y is outside the jurisdiction of the county court. See Cham p i o n Printing & Co

pying LLC v. Nic hols , No. 03

- 15

- 00704

- CV, 2017 WL 3585213, at *8 (T ex. A pp.

— Austin Aug. 18, 2017, pet. denie d ) (me m. op.). We h eld that the stat ute authorizes a statu tory county court judge to hear , determine, and sign a judgment in a ma tter pe nd i ng in district court that would be outside the county court ’ s jurisdiction

. Id. ; see also In re Na sh , 13 S.W.3d 894, 897

- 98 (T ex. App.

— Beaumont 2000, orig. proceeding ) (distinguishing transfe r of case to county court, w hich may affect ju ri sdicti on, fro m

as si gnment of county court jud ge to sit in district court, which does not necessarily affect jurisdiction of dist rict court presi ded over by county court judge )

. The trial court did no t lac k jurisdiction to consider the motion for summary judgmen t. 2 We o verrule Co nnor ’ s first issue.

In her second is sue, Con nor asserts that the tr ial court erred in concluding that her claims were barred by the doctri ne of res judicata and granting McC ormick ’ s motion for

2 We n o t e that the T exas Supreme C ou rt denied Connor ’ s pet ition for writ of mandamus requesting th at the court vacate any orders sign ed by Judg e Sh epperd in the underlyi ng p roceeding on the g round that he lacked juris diction becau se the amount in controversy ex c e eded the jurisdictional lim i t placed on statutory county courts. See In re Connor , No. 18

- 03 19 (Tex. June 15, 2018 , orig. proceed ing ) ( mandamus denied ).6

summary judg ment on that ground. We revie w t he g ra nting of a summary ju dgment de novo. 3 The reviewing court should affirm the summary judgment if any of the theories presented to the
tr ial court and preserved for appellate review have mer i t. Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, 147 (T ex . 2004).

“ Res judicata , or claims preclusion, prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, shou ld have been litigate d in the prior suit. ” Barr , 8 37 S.W.2d at 628

. For re s judicata to ap ply, the following elements must be present : (1) a prior final judgment on the merits by a cou rt of
compe tent ju risdic tion; (2) the same parties or those in privity with them; and (3) a second action based o n the s am e claims as were raised or could have been raised in the first ac tion. Citizens
In s. Co. of Am. v. Daccach , 217 S. W.3d 430, 449 (Tex. 2007). 4 T h e doctrine seeks to bring an end to litigation, prevent vexatious litigation, ma i ntain stability of c ourt de ci sions, promote judicial economy, and prevent double recovery. Id. Under the transactional approach followed in Texas, a subsequent suit is barr e d if it arises out o f the same subje ct matter as the prior suit, and t hat subjec t matter could have b een lit ig ated in the prior suit. Barr , 837 S.W. 2d at 631. Res

3 The standards for reviewin g a summary judgment are well est a blished and undisputed on a ppeal. See , e.g. , City o f Keller v. Wilson , 168 S.W.3d 8 02, 87 (T ex. 2005); Goodyear Tire & Rubber Co. v. M

ayes , 236 S.W.3d 7 54, 755 (Tex. 2007); Ford Motor Co. v. R id g way , 135 S.W.3d 598, 600 (T ex. 2004); see also Te x. R. Civ. P. 166(a). Accordingly, we need not r e peat them her e.

4 Connor a sserts that fed eral l aw applies to determine whether res judicata serves as a bar to McCormick ’ s cl aims. See Eagle Prop s . , Ltd. v. S charbauer , 807 S.W.2d 714, 718 (Tex. 1990) (when prior j udg ment relied on to est ablish affirma t ive defen s e of res judicata was rendered by federal cour t, federal law applies to determine whether res judicata serves as bar to subsequent state court action). The is sue in this case, how ever, is whether a prior st ate court judgm ent in a suit previousl y fil ed by Connor against McCormick bars he r clai ms in th e proceedings underlying t his appeal.7

judicata prevents a plaintiff from abandoning cla ims and sub sequently asserting them when t he claims could have been litigated in the prior suit. C itizens Ins. Co. of Am. , 217 S.W.3d at 449.

In S e pt ember 2015, before in itiating the underlying proceeding, Connor filed suit in Travis County dis trict court against McCormick and other directors o f the Lost Creek
Mu nicipal Utility Di strict on behalf of her neigh bor and client , David McIntyr e , see king to

e njoin the cons truction of sidewalks in the District (the “ first suit ” ) . In November 2015, Connor filed an amended petition in which she adde d he r se lf as a pla int iff and asserted a claim for money damages under 42 U.S.C. § 198 3, alleging that the defenda nt s had retali ated against her and McIntyre for exercising their First Amendment rights. Connor also sought de clarato ry and injunctive relief rega r ding the sidewal k construc tion. The defendants removed the first suit to federa l court. In April 20 16 the fe deral district court dismiss ed the federal claims and r e manded the sta te law claims to state court. Connor appealed the dismissal to the Uni ted S tates Court of Appe al s for the Fifth Circuit, w hich affirmed it. See McIntyre v . Casto , 670 F. App ’ x 250 ( 5 th Cir. 2016). In Ma rch 2016, w hile th at appeal was pendin g, Connor filed an amended petition in the first suit in stat e court , adding further fac t ual alleg ations in support of the federal First Amendment re taliation c laim. Th e defe ndants again re moved t he first suit to federal court

a nd moved to di smiss Connor ’ s claims. The federal dist rict court stayed the action un til the Fifth Circuit issued i t s judgme nt in th e appeal. The stay was lifted in March 2017. It wa s du ring the time the first suit was sta ye d that McCormick s ent the November 2016 email to Connor ’ s employer that is the basis of her claims in the und erlying proceeding for defama tion and inten tional i nfliction of emo tional distr ess .

A fter the federal district cour t lif ted the stay in the fir st suit, Connor sought leave
to supplement her complaint t o assert a § 1983 c laim that McCormick ’ s November 2016 email to8

her employer was in retaliation for her exercising he r First Amendment rights

. T he federal district court again di smissed Conn or ’ s fe de ral claims and remanded the first suit to state district
court. The feder a l court denied Connor ’ s requ est for leave to supplement her com plaint on the ground that supplemen t ation woul d be futile because the allegation fail ed to show that McCormic k s ent th e e mail as a state a ctor , as required to allege a § 1983 claim, rather than as a private citizen

. Connor appealed th e denial of her motion for leave to supplement the compl a int to the Fifth Cir cuit, which affirmed it

. See Co nnor v. Castro , 719 F . App ’ x 3 76 ( 5th Cir. 2018 ) , cert. denied , 139 S. Ct. 343 ( 2018 )

.

After the first suit was remanded to state district court the second time, McCormick and the other defendants filed a plea to the jurisdiction and moti o n to dismiss
p ursuant t o the TCPA. Connor then f i le d a notice of non suit of all c laims she had asserted against McCormick and the other defendants in the first suit but continued to represen t McIntyre

. Four days later she filed a notice of nonsuit of al l claims McIntyre had asserted a gains t McCormick and the o ther de fendants in the fi rst suit. The trial court ultimately granted the

m otion to di smiss pursuant to the TCPA and ordered Connor and McInt yre to pay attorneys ’ fees and costs

. See Craig v. T eja s Promotions , LLC , 550 S.W.3d 287, 29 3 (Tex. App.

— Aus tin 2018, pet. denied) (mova nt under TCPA can continue to pursue requ est for attorneys ’ fe es after nonsuit of nonmovant ’ s claims). Connor and McIntyre appealed the trial court ’ s order , and th e appellate

c ou rt affirmed. See McIntyre v. Cas tro , No. 13

- 17

- 00 56 5

- CV, 2018 WL 6175858, at * 9 (Tex. App.

— Corpus Christi Sept. 6, 2018, pet. denied) (mem. op.).

We con clude that McCormick has carr ied his burden of demon strating , as a matter of law, th e elements of his affirmative d e fense of res judic ata . The s ummary - judgment evidence sho ws th at a court of competent jurisd iction render ed final judgment on the m erits of9

Con nor ’ s claims against McCormick in the first suit. The cl aims Connor has asserted against McCormi ck in th e under lying proceeding co uld have been rai sed in the first sui t but w er e not.
In fact, the summary

-

judgment ev idence demonstrates that Connor sought to amend her pleadings in the first su it to add the very claims she has asserted against McCormick in th e underl ying proceeding.

On appeal, Co nnor maintains that res judicat a canno t bar her claims in th e second proceeding because the federal district court denied her request to amend her pl eadings to ass ert claims arising out of t he November 2016 email. Ho w eve r, after the federal d istrict court den ied
Connor ’ s motion to amen d her pleadings because the requested amendment would not c onstitute a § 1983 claim co gnizable in federal court , it did not render a final judgm ent but, rather, remanded the c ase to state district court. Connor could have, but d id not, am end her pleadings
t o asser t her sta te

- law claims against McCormick arising out of the November 2016 email. This is what distinguishe s this case from Turner v. Richardson Inde pendent School District , 885 S.W.2d 553 (Tex. App.

— Dal las 1994, writ de nied ) , on whic h Connor reli es . In Turner , the plaintiff s filed suit in federal district co urt alleging federal c auses o f action for civil rights violation s and cla ims under § 1983 and Title V II . Th e plaintiffs attem pted to amend their
pe tit ion to assert state disability discrimina ti on and intentional infliction of emotional distress cl aims , but the federal court denied them leave to amend. The federal case was tried to final j udgment. Id. at 557. The plaintiffs then filed suit in sta te dist rict co urt . The state court held that re s judicata did not bar t he disability discrimination claim that th e plaintiffs were unable to assert in fed eral court

. Id . at 5 60. In the present case, however, the federal suit did not result in a final ju dg ment , and Con n or was not unable to as sert he r claims against McCo rmick w hen the

case was remanded to state district court. Connor ’ s r eliance on Turner is therefo re misplaced.10

The trial cour t d id not err in concluding that Co n nor ’ s claims against McCormic k for def amat ion and intentional infliction of emotional dist ress were barred by the doctrine of res judicat a . We overrule Connor ’ s second iss ue.

In her third issue, Connor asserts that th e trial court erred by granting McCormick ’ s motion in part and de nying it with respect to two of the alleged de fa matory statements made in the letter. According to Connor, nothing in the TCPA permits a trial court to grant “ in part ” what she contends is a “ single claim. ” It was not error , however, for the t rial
court to consi der e ach al leged ly defamatory statem en t separately in dec iding whether dismissal of a claim b ased on that statement was prop er under the TCPA

. See, e.g. , Campone v. Kline , No. 03

- 16

- 00854

- CV, 2018 WL 3652231, at * 6 (Tex. App.

— Aus tin Aug. 2, 2018, no pet.) (mem . op.) ( affirming denial of def am ation claim based on sta tements made to o ne person but
not based on statem ent s made to other peop le) ; see also Better Bus. Bureau of Metro Dall., Inc.

v. Ward , 401 S.W.3d 440 , 443 (Tex. App.

— Dallas 2013, pet. d enied) (TCPA requires us “ to
treat any claim b y any party on an individual and separate bas is ” ). Because e ach allegedly defamatory statement could independently support a cause of action for defamation and intentional infli ction of emot ional distr ess, it w as not impro per for the court to consider w he ther to dismiss Connor ’ s claims of defamation and intentional inflict ion of emoti o nal dist ress as to each statem ent. See Robert B. J ames , DD S, Inc. v. Elkins , 553 S.W.3d 596, 607 (Tex. App.

— San Antonio 2018, p et. denied ) (addr essing separately causes of act io n for defamation arising out of insurance claim based on purported theft and statements to police departm ent alleging theft); Akin v. San ta Clara Land Co. , 34 S.W.3d 334 , 340 (Tex. App.

— San Antonio 2000, pe t . denied) ( holdi ng that each publication of def am atory statement inflicts independent injury from which defamation cause of a cti o n may arise ). We overru le Connor ’ s third issue.11 In her fourth issue, Connor complains that the trial court allowed McCormic k ’ s counsel in th e first suit , acting now as ami cu s curiae , to file a document in sup por t of McCormick ’ s m otion for summary judg ment and to present argument at the summary - judgment hearing

. Connor objected to and moved to strike the previous counsel ’ s fil in g as “ impr oper, irr elevant, and . . . [filed] to o late to be considered by the Court

. ” On appeal, Connor asserts that

n ot strik ing the filing and permitting argument from the amicus curiae violated her constitutional rights to due process and due course of law. See U .S

. Con st. amend. XIV, § 1 ; Tex. Co nst. art I, § 19

. The d ecision to hear an amicus cur iae is wholly wit hin the trial court ’ s d iscretion.
See Jackson v. Birk , 84 S.W. 2d 332, 332 (Tex. App.

— Fort Wo rth 1935, no writ). A court
may entertain suggestion s from an a micus curia e who, as a “ fri en d of the court , ” ma ke s suggestions to the court about questions apparent from the re cord in the c ase. See State v. The Jefferson Iron Co. , 60 Tex

. 312, 314

- 15 ( 1 883) ; Kelley v. Scott , No. 1 4

- 01

- 00696

- CV,
2 003 WL 21229275 , a t * 1 (Tex. App.

— Houston [ 14 th Dist.] May 29, 2003, no pet.) (mem. op.) ( citing Moseby v. Burrow , 52 Tex. 396, 403 ( 1880) , and Jackson , 84 S.W.2d at 332). An amicus
curiae is not a party to a suit and may only make sugges t ions to the cour t; the court c an only take actions tha t it could have taken in the absence of the suggestions from the amicus curiae

. See The Jeffe rson Iron Co. , 60 Tex. at 314

- 15. Texas Rule of Civil Procedure 166a(b) aut hori zed t he trial co urt to grant McCormick ’ s mot ion for summar y judgment on the affirm at ive defense of res judicata

. See Tex. R. Civ. P. 166a(b) (summary jud gment for defending party). We hold that the trial court did not err by allowing McCo rmick ’ s prior counsel to act as amicus curiae

. We overrule Connor ’ s fou rth issue.12 CONCLUS ION
Ha v in g overruled each of Connor ’ s four issues on appeal, we affirm the trial
court ’ s judgment.

_____________________ _____________________ Ch a ri L. Kelly , Justice Before Just ices Goodwin, Baker, and Kelly Affirmed Filed : January 9, 2020