David Barnes v. Katherine Kinser, Jonathan Bates, and Kinser & Bates, LLP

Affirmed and Opinion Filed April 7, 2020

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00481-CV

DAVID BARNES, Appellant
V.
KATHERINE KINSER, JONATHAN BATES, AND KINSER & BATES,
LLP, Appellees

On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-01550-F

OPINION
Before Justices Myers, Osborne, and Nowell
Opinion by Justice Nowell
This is an interlocutory appeal from an order denying a motion to dismiss

pursuant to the Texas Citizens Participation Act (TCPA).1 The issue presented is

whether a counterclaim for sanctions under Chapter 10 of the civil practice and

1
TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011. The 2019 amendments to the TCPA do not apply to
this lawsuit, which was filed before the effective date of the amendments. See Act of May 17, 2019, 86th
Leg., R.S., ch. 378, §§ 11, 12, 2019 Tex. Gen. Laws 684, 687 (amendments to TCPA apply “only to an
action filed on or after” September 1, 2019). All references to the statute in this opinion are to the version
in effect prior to the amendments.
remedies code and Texas Rule of Civil Procedure 13 is a legal action as defined by

the TCPA. We conclude that it is not and affirm the trial court’s order.

Background

David Barnes and Jennifer Barnes were divorced in 2012. Katherine Kinser,

Jonathan Bates, and Kinser & Bates, LLP (collectively Kinser) represented Jennifer

in the negotiation of a 2006 marital property agreement (MPA) with Barnes and in

the later divorce proceeding. Jennifer disputed the validity of the MPA in the divorce

case. However, the trial court found it valid and rendered a divorce decree in

accordance with the MPA.

Almost two years after the divorce, Jennifer sued Kinser for legal malpractice.

Her claims related to negotiation of the MPA in 2006 and to representation in the

divorce proceedings. Kinser moved to compel arbitration of the divorce-related

claims under a written arbitration agreement. The trial court compelled arbitration

of those claims while the claims relating to the MPA remained pending. The

arbitration resulted in a net award to Jennifer against Kinser. A portion of the award

represents the disgorgement of fees paid to Kinser for litigation over the MPA in the

divorce proceeding. The trial court confirmed the arbitration award, resulting in an

interlocutory judgment for Jennifer against Kinser.

In February 2018, Jennifer’s pending claims regarding negotiation of the

MPA were severed from the claims adjudicated in the judgment confirming the

–2–
arbitration award, making that judgment final. Jennifer’s claims regarding the MPA

remained pending in the trial court.

On July 5, 2018, David Barnes filed a new lawsuit against Kinser for money

had and received based on the theory that the fees ordered disgorged in the

arbitration award had been paid with community funds and he was therefore entitled

to half of the disgorged fees. This lawsuit was later consolidated with Jennifer’s

pending malpractice claims regarding the negotiation of the MPA.

On February 15, 2019, Kinser filed a counterclaim against Barnes for

sanctions under Chapter 10 of the civil practice and remedies code and Rule 13 of

the rules of civil procedure. TEX. CIV. PRAC. & REM. CODE §§ 10.001–.006; TEX. R.

CIV. P. 13. Kinser alleged Barnes’s petition was groundless, had no basis in law or

fact, and had no evidentiary support. Kinser requested an award of her attorney’s

fees and costs in defending against the suit. Kinser later amended the counterclaim

to add an allegation that the suit was filed for purposes of harassment.

Barnes filed a TCPA motion to dismiss arguing that the counterclaim was a

legal action filed in response to his exercise of the right to petition. Kinser responded

that the counterclaim was supported by clear and convincing evidence of all the

elements of a claim for sanctions under Chapter 10 and Rule 13. Kinser also argued

that the TCPA may not apply because the counterclaim is not a legal action as

defined by the statute.

–3–
 On April 4, 2019, the trial court signed an order denying the motion to dismiss.

Barnes then perfected this interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(12).

Standard of Review

The TCPA “protects citizens who petition or speak on matters of public

concern from retaliatory lawsuits that seek to intimidate or silence them.” In re

Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). That protection comes

in the form of a motion to dismiss for “any suit that appears to stifle the defendant’s”

exercise of those rights. Id. Reviewing a TCPA motion to dismiss requires a three-

step analysis. Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). Initially the

moving party must show by a preponderance of the evidence that the legal action

against it is based on, relates to, or is in response to the movant’s exercise of the

right of free speech, petition, or association. See TEX. CIV. PRAC. & REM. CODE §

27.005(b). If the movant meets its burden, the nonmoving party must establish by

clear and specific evidence a prima facie case for each essential element of its claim.

See id. § 27.005(c). If the nonmoving party satisfies that requirement, the burden

shifts back to the movant to prove each essential element of any valid defenses by a

preponderance of the evidence. Id. § 27.005(d). If the movant meets its burden in

this third step, the trial court must dismiss the action. See id.

We review de novo the trial court’s determinations that the parties met or

failed to meet their burdens of proof under section 27.005. Campbell v. Clark, 471

–4–
S.W.3d 615, 623 (Tex. App.—Dallas 2015, no pet.). We also review de novo

questions of statutory construction. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509

(Tex. 2015) (per curiam).

Discussion

The TCPA defines a “legal action” as “a lawsuit, cause of action, petition,

complaint, cross-claim, or counterclaim or any other judicial pleading or filing that

requests legal or equitable relief.” TEX. CIV. PRAC. & REM. CODE § 27.001(6).

Barnes contends that “[a]s a counterclaim, [Kinser’s] pleading falls within the

express statutory language of the TCPA’s definition of legal action.”

While the definition of “legal action” is expansive, this and other courts have

recognized that the definition of “legal action,” viewed in light of the purpose of the

TCPA, must be given a “somewhat restrictive application.” Misko v. Johns, 575

S.W.3d 872, 876 (Tex. App.—Dallas 2019, pet. denied) (quoting Dow Jones & Co.,

Inc. v. Highland Capital Mgmt., L.P., 564 S.W.3d 852, 857 (Tex. App.—Dallas

2018, pet. denied)); see also Paulsen v. Yarrell, 537 S.W.3d 224, 233 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied) (holding TCPA dismissal motion is not itself

a TCPA “legal action” subject to a cross TCPA motion). Read in context, the

TCPA’s definition of “legal action” refers to a procedural vehicle for vindication of

a legal claim. Misko, 575 S.W.3d at 876; Dow Jones, 564 S.W.3d at 857–58;

Paulsen, 537 S.W.3d at 233.

–5–
 Sanctions, on the other hand, serve the purpose of securing compliance with

the rules of civil procedure, punishing violators, and deterring similar misconduct

by others. Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 363 (Tex. 2014). They

may also serve the purpose of remedying the prejudice caused the innocent party.

TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig.

proceeding). Both Chapter 10 and Rule 13 allow sanctions for abuses of the pleading

process. See Nath, 446 S.W.3d at 362. Chapter 10 allows sanctions for pleadings

filed with an improper purpose or that lack legal or factual support. Id. Rule 13

allows sanctions for pleadings that are groundless and brought in bad faith, intended

to harass, or false when made. Id.

Sanctions may not be imposed based on the legal merit of a pleading or

motion. Cherry Petersen Landry Albert LLP v. Cruz, 443 S.W.3d 441, 453 (Tex.

App.—Dallas 2014, pet. denied). Rather, the focus of a sanctions inquiry is the

conduct of the party or lawyer at the time the pleading was filed. Id. The question is

whether, using an objective standard, the party and its counsel made a reasonable

inquiry into the legal and factual basis of the claim before filing it. Id. Thus, we

cannot equate a request for sanctions under Chapter 10 or Rule 13, whether filed as

a counterclaim or a motion, with a “procedural vehicle for the vindication of a legal

claim.” Dow Jones, 564 S.W.3d at 858.

Further, construing any counterclaim or motion seeking relief as a legal action

under the TCPA definition would defeat the underlying purpose of the statute. In
–6–
Misko, we held that a motion for discovery sanctions was not a legal action under

the TCPA. Misko, 575 S.W.3d at 878. In Dow Jones, we concluded that a subpoena

seeking discovery from a third party was not a legal action under the TCPA. Dow

Jones, 564 S.W.3d at 858. While the broad language of the definition of legal action

could arguably include both of those proceedings, such an expansive reading would

defeat the purpose of the TCPA to secure quick and inexpensive dismissal of

meritless “legal actions” that threaten expressive freedoms. Misko, 575 S.W.3d at

876; Dow Jones, 564 S.W.3d at 858 (“The TCPA was designed to reduce meritless

litigation, not multiply it.”); see also Paulsen, 537 S.W.3d at 233–34 (observing that

if “legal action” were so expansive, it would invite “‘piecemeal or seriatim ‘motions

to dismiss’ attacking myriad ‘legal actions’ that consist merely of individual filings

within or related to a lawsuit, as opposed to the underlying lawsuit and substantive

claims that are the Act’s core focus’ [and] would result in application of the TCPA

that ‘strays from—and, indeed, undermines through cost and delay—its manifest

purpose to secure quick and inexpensive dismissal of meritless ‘legal actions’ that

threaten expressive freedom.’” (quoting In re Elliott, 504 S.W.3d 455, 480 (Tex.

App.—Austin 2016, orig. proceeding) (Pemberton, J., concurring)).

Barnes relies on the majority opinion in Hawxhurst v. Austin’s Boat Tours,

550 S.W.3d 220 (Tex. App.—Austin 2018, no pet.), to support his argument that the

–7–
counterclaim for sanctions is a legal action subject to the TCPA.2 In that case, the

defendant filed a counterclaim for sanctions under Chapter 9 of the civil practice and

remedies code alleging the plaintiff’s amended petition was frivolous. Id. at

223. The plaintiff filed a TCPA motion to dismiss the counterclaim arguing it was

based on and filed in response to the plaintiff’s exercise of the right to petition. Id.

at 224. The trial court denied the motion. On appeal, the majority concluded that the

defendant’s pleading, construed as either a counterclaim or a motion for sanctions,

was a legal action as defined by the TCPA. Id. at 226. The dissent reasoned that the

defendant’s sanctions request was not a legal action subject to the TCPA “because

the TCPA’s definition of ‘legal action,’ read carefully and in context, refers to a

‘legal action’ in the sense of a procedural vehicle for the vindication of some

substantive cause of action or right of relief.” Id. at 234 (Pemberton, J., dissenting).

The dissent concluded that the request for sanctions, “like the TCPA motion in

Paulsen, does not ‘request[ ] legal or equitable relief’ in this more limited, technical

sense, and is not a ‘legal action.’” Id.

Barnes argues we rejected the reasoning of the dissent in Misko. We disagree.

In Misko, we merely assumed Hawxhurst was decided correctly, then distinguished

2
At oral argument, Barnes cited Riggs & Ray, P.C. v. State Fair of Tex., No. 05-17-00973-CV, 2019
WL 4200009 (Tex. App.—Dallas Sept. 5, 2019, pet. filed) (mem. op.) in support of his argument. However,
we were not called on in that case to consider whether the declaratory judgment action was a legal action
as defined by the TCPA because no one disputed that it was. Id. at *3 n.7 (“The parties do not dispute that
R & R’s lawsuit is a ‘legal action’ under the TCPA.”).
–8–
it. Misko, 575 S.W.3d at 878 & n.5. We did state that the Chapter 9 counterclaim for

sanctions “attacked the plaintiff’s substantive claims.” Id. However, we were not

faced with a request for sanctions under Chapters 9 or 10 or Rule 13 and the

statement was not material to our holding. Faced with such a request in this case, we

can no longer assume Hawxhurst was decided correctly. Our analysis in Misko and

Dow Jones applies to the sanctions request in this case and establishes that the

request does not seek vindication of a substantive legal right arising outside the

litigation context. Seeking sanctions for misconduct in litigation, including the filing

of an allegedly frivolous or groundless lawsuit, is not a legal action under the TCPA.

The dissent’s reasoning in Hawxhurst is consistent with our holding in Misko and

Dow Jones. Accordingly, we respectfully disagree with the majority opinion in

Hawxhurst.

Moreover, the TCPA does not abrogate or lessen any other defense, remedy,

immunity or privilege available under other law. TEX. CIV. PRAC. & REM. CODE §

27.011(a). In Misko we recognized that “[t]he specter of being required to engage in

litigation under the TCPA, including the automatic stay of all proceedings when a

motion to dismiss under the TCPA is filed and the possibility of an interlocutory

appeal if the motion to dismiss is denied, would at least ‘lessen’ the remedies

available to a party to address discovery abuse during the course of litigation.”

Misko, 575 S.W.3d at 878 n.4. The same reasoning applies to requests for sanctions

for abuse of the pleading process.
–9–
 The request for sanctions here, like the similar request in Misko, is not a

request for legal or equitable relief and not a legal action as defined by the TCPA.

We overrule Barnes’s first issue. We need not address the remaining issues. TEX. R.

APP. P. 47.1.

Conclusion

Barnes failed to establish that Kinser’s counterclaim for sanctions under

Chapter 10 and Rule 13 is a legal action as defined by the TCPA. We affirm the trial

court’s order denying the motion to dismiss.

/Erin A. Nowell/
ERIN A. NOWELL
JUSTICE

190481F.P05

–10–
 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

DAVID BARNES, Appellant On Appeal from the 116th Judicial
District Court, Dallas County, Texas
No. 05-19-00481-CV V. Trial Court Cause No. DC-18-01550-
F.
KATHERINE KINSER, Opinion delivered by Justice Nowell.
JONATHAN BATES, AND Justices Myers and Osborne
KINSER & BATES, LLP, Appellees participating.

In accordance with this Court’s opinion of this date, the trial court’s April 4,
2019 order denying the motion to dismiss is AFFIRMED.

It is ORDERED that appellees Katherine Kinser, Jonathan Bates, and
Kinser & Bates, LLP recover their costs of this appeal from appellant David
Barnes.

Judgment entered this 7th day of April, 2020.

–11–