In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00076-CV
__________________
KENNETH A. BITGOOD, Appellant
V.
STEPHEN S. HARKNESS AND ANNA M. HARKNESS, Appellees
__________________________________________________________________
On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 20-05-05682-CV
__________________________________________________________________
MEMORANDUM OPINION
In a suit to enforce deed restrictions, Kenneth A. Bitgood appealed the denial
of his Texas Citizens Participation Act (“TCPA”) motion to dismiss the malicious
prosecution counterclaim filed against him by Stephen S. Harkness and Anna M.
Harkness (collectively “Harkness”). See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(12). In four issues, Bitgood contends (1) he filed the motion to dismiss
within the time permitted by the TCPA, (2) the TCPA applies, (3) Harkness had the
burden of proof and failed to meet that burden, and (4) because the trial court erred
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by denying Bitgood’s motion to dismiss, the attorney’s fee award to Harkness should
be reversed and Bitgood should recover his attorney’s fees. By way of a single cross-
point, Harkness challenges our jurisdiction to consider this accelerated appeal. We
reverse the trial court’s order and remand the case to the trial court.
BACKGROUND
This case has been before this Court on two previous occasions. See Bitgood
v. Harkness, No. 09-20-00263-CV, 2021 WL 2371252 (Tex. App.—Beaumont June
10, 2021, pet. denied) (mem. op.) (Bitgood I); see also In re Bitgood, No. 09-21-
00092-CV, 2021 WL 3555724 (Tex. App.—Beaumont Aug. 12, 2021, orig.
proceeding) (mem. op.) (Bitgood II). For the sake of brevity, we set forth the case
history where necessary but generally refer to the specifics of the factual history and
background as we described them in Bitgood I and Bitgood II.
DEED RESTRICTION LAWSUIT
AND TEMPORARY INJUNCTION APPEAL
Bitgood sued Harkness for violating deed restrictions and sought to enjoin
construction on Harkness’s property. Bitgood I, 2021 WL 2371252, at *1. The trial
court issued a temporary injunction on June 4, 2020. Id. at *3. After a hearing, on
November 6, 2020, the trial court found Bitgood lacked standing, granted Harkness’s
motion to dismiss, and dismissed Bitgood’s claims without prejudice. Id. at *4.
Bitgood challenged the order dissolving the temporary injunction in an accelerated
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appeal. Id. On June 10, 2021, we affirmed the trial court’s order dissolving the
temporary injunction. Id. at *9.
PRETRIAL SANCTIONS AND MANDAMUS
While Bitgood I was pending in the appellate court, Bitgood amended his trial
court pleadings with another request for a temporary injunction, monetary damages,
and permanent injunctive relief. Bitgood II, 2021 WL 3555724, at *2. Harkness filed
a motion to dismiss for lack of subject matter jurisdiction due to Bitgood’s lack of
standing. Id. Harkness also filed a counterclaim seeking sanctions against Bitgood
for filing a frivolous lawsuit. Bitgood responded by amending his pleadings to allege
that he could enforce restrictions affecting the property conveyed in a 1975 deed that
included the Bitgood and Harkness tracts or, in the alternative, that Bitgood could
enforce deed restrictions as an owner of property within the general scheme
comprised of thirty-four properties on Lake Conroe Drive as expressed in recitals
contained in other individual deeds. Id. He further amended his pleadings to
complain that Harkness had blocked the driveway Bitgood had used for fourteen
years. Id. Bitgood requested temporary and permanent injunctive relief. Id. Bitgood
also filed a motion for contempt for violating the temporary injunction that had been
dissolved, the dissolution of which had not been superseded. Id.
Before we issued our opinion in Bitgood I, Harkness filed a motion to sanction
Bitgood and his attorney for filing successive applications for injunctive relief on
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grounds that had already been dismissed by the trial court. Id. Harkness argued
Bitgood sought injunctive relief for harassment and delay and that he sought
contempt in bad faith after the trial court dissolved the injunction. Id. In March 2021
the trial court ordered Bitgood and his attorney to pay a $20,000 penalty and to pay
Harkness $18,640 in attorney’s fees. Id. at *1.
Bitgood sought mandamus review of the pretrial sanctions order. Id. We
temporarily stayed the trial court’s order and requested a response from Harkness.
After Harkness responded and Bitgood replied, we held the record did not support
the trial court’s finding that Bitgood’s pleadings falsely stated that Harkness’s
property was located within the Tres Subdivision and that the trial court prematurely
found the allegations to be false. Id. at *3. That said, the dismissal for lack of
standing, since it was a dismissal without prejudice, did not bar Bitgood from
repleading. Id. Factual allegations contained in Bitgood’s superseded pleadings were
not conclusive and were not judicial admissions. Id. at *4. We held the trial court
abused its discretion by sanctioning Bitgood and his attorney for having filed an
amended petition. Id. On August 12, 2021, we conditionally granted mandamus
relief and directed the trial court to vacate its Order Imposing Sanctions. Id. at *5.
COUNTERCLAIM, MOTION TO DISMISS,
NONSUIT, AND TCPA APPEAL
While Bitgood I was pending in the appellate court, and before the trial court
signed the order of sanctions against Bitgood and his lawyer that we addressed in
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Bitgood II, Harkness filed a Third Amended Counterclaim, asserting claims against
Bitgood for trespass on their property, bringing a frivolous suit in violation of section
9.001 and 10.001 of the Texas Civil Practice and Remedies Code, and malicious
prosecution. With regard to the claim for malicious prosecution, Harkness alleged
(1) the suit terminated in their favor on November 6, 2020, when the trial court
dismissed Bitgood’s case for lack of subject matter jurisdiction, (2) Bitgood acted
with malice by continuing the proceeding after the trial court dismissed the case; (3)
Bitgood, in bad faith, alleged the property was not located in the Tres Subdivision
but was somehow subject to the extraterritorial jurisdiction of the Tres Subdivision;
(4) Bitgood’s actions caused injury to Harkness’ reputation and to the value of the
property during the period they were denied their right to use the property; and (5)
Harkness suffered physical distress, mental anguish, and expenses in defending the
underlying suit.
Bitgood filed a motion to dismiss under the TCPA. Bitgood alleged Harkness
brought the malicious prosecution claim in response to Bitgood’s exercise of his
right to petition. Bitgood alleged the trial court’s November 6, 2020 order of
dismissal was without prejudice and that his Fourth Amended Petition incorporated
the original claims subject to a pending appeal and included alternative claims and
requests for injunctive relief. Bitgood argued Harkness brought the claim for
malicious prosecution in response to Bitgood’s exercising his right to adjudicate his
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rights under Texas law. Bitgood argued Harkness’ malicious prosecution claim
lacked clear and specific evidence that (1) Bitgood pursued his lawsuit maliciously,
(2) Bitgood lacked probable cause to enforce his rights under the restrictive
covenants, (3) the underlying lawsuit was terminated in Harkness’ favor, and (4)
Harkness suffered a special injury. Bitgood attached an unsworn declaration for
attorney’s fees, which states the reasonable and necessary attorney’s fees incurred
in handling the motion to dismiss were $19,005, with an additional $20,000 for
handling a resulting appeal, should one be filed.
Harkness asked the trial court to dismiss the TCPA motion as untimely
because Bitgood filed the motion more than 60 days after Harkness filed their
Second Amended Counterclaim, which presented a claim against Bitgood for filing
a frivolous lawsuit. According to Harkness, the sole distinction between the Second
Amended Counterclaim and the Third Amended Counterclaim was the addition of a
claim for malicious prosecution. Harkness argued the same essential underlying fact
that Bitgood changed his plea as to the location of Harkness’ property underlies both
claims. Harkness argued Bitgood did not have a legal right to petition to have the
court hear his unlawful successive application for injunctive relief on grounds that
could have been set up in the initial application and that Bitgood filed a sham petition
not entitled to protection under the TCPA. Harkness objected to the unsworn
declaration of Bitgood’s lawyer on the ground that it was conclusory, full of
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statements that could not easily be verified, and contained claims that were patently
unreasonable considering the nineteen-day time period between service of the
counterclaim and the date Bitgood filed his motion to dismiss under the TCPA.
According to Harkness, a prima facie case of malicious prosecution was established
by the filing of the petition for an injunction, verified by Bitgood, in the absence of
privity or a general plan or scheme, when minimal due diligence would have
revealed the deed restrictions were inapplicable. Harkness alleged that, although
Bitgood was appealing the dissolution of the temporary injunction, the litigation
terminated in Harkness’ favor because Bitgood treated the appellate proceeding as
if it had concluded by amending his pleadings in the trial court with successive
applications for injunctive relief. Harkness requested attorney’s fees because
Bitgood’s motion seeking relief under the TCPA was frivolous and brought to delay
discovery in the suit, which was ongoing. In a reply, Harkness challenged the trial
court’s subject matter jurisdiction to hear Bitgood’s TCPA motion.
After Bitgood filed his motion to dismiss under the TCPA, Harkness
nonsuited his claims for malicious prosecution and for filing a frivolous suit by filing
a notice of nonsuit. Even so, Harkness chose to retain a claim for trespass. Less than
a week later, the trial court signed the order nonsuiting the claims Harkness filed for
malicious prosecution and filing a frivolous suit without prejudice to the claims
being refiled. Less than two weeks later, the trial court signed an amended order
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denying Bitgood’s TCPA motion to dismiss and ordered Bitgood to pay Harkness
attorney’s fees in of $9,000 within thirty days.
JURISDICTION
In a cross-point, Harkness argues we lack subject matter jurisdiction over
Bitgood’s appeal for two reasons: first, Harkness claims the trial court lacked subject
matter jurisdiction over the amended pleadings Bitgood filed while Bitgood
maintained his appeal from the trial court’s order dissolving the temporary
injunction; and second, the amended pleadings Bitgood filed while he pursued his
previous accelerated appeal failed to allege changed circumstances sufficient to
justify a new injunction.
Harkness argues the subject matter of Bitgood’s accelerated appeal represents
Bitgood’s attempt to enforce the restrictions of Harkness’ deed and enjoin the
construction of their home. According to Harkness, once Bitgood perfected an
accelerated appeal, the trial court no longer had jurisdiction over the subject matter
of the suit. According to Harkness, since jurisdiction over the case existed
exclusively in the appellate court, the trial court did not have jurisdiction when
Bitgood amended his pleadings. Furthermore, the trial court lacked jurisdiction to
rule on the motion to dismiss Bitgood filed under the TCPA asking the trial court to
dismiss the counterclaim for malicious prosecution, which Harkness filed when
Bitgood amended his pleadings.
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Harkness cites Birchfield v. Bourland to support their challenge to our subject
matter jurisdiction. See 187 S.W. 422, 426 (Tex. Civ. App.—Fort Worth 1916, no
writ). In Birchfield, the appellate court reversed an order granting a temporary
injunction and ordered the injunction dissolved. Id. at 424. Without filing a motion
for rehearing with the appellate court, Bourland filed an amended petition in the trial
court. Id. Two days after the appellate court issued its opinion, the trial court relied
on the amended petition and issued a new injunction. Id. The appellate court
dissolved the second temporary injunction and issued a writ of prohibition against
issuing another temporary injunction. Id. at 426. The appellate court excluded from
the prohibition any further temporary injunction based on new facts or an injunction
on final hearing from the writ of prohibition. Id.
In Birchfield, the trial court issued a new injunction that was the same as the
injunction the appellate court had ordered dissolved two days earlier. Id. at 424. It
appears the appellate court in Birchfield simply enforced its judgment dissolving the
temporary injunction. The current rules of appellate procedure allow the appellate
courts to preserve the status quo pending the results of the appeal. See Tex. R. App.
P. 29.6(a) (“While an appeal from an interlocutory order is pending, . . . the appellate
court may review . . . a further appealable interlocutory order concerning the same
subject matter; and . . . any interlocutory order that interferes with or impairs the
effectiveness of the relief sought or that may be granted on appeal.”). However,
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neither Rule 29.6, nor Birchfield operate to deprive an appellate court of jurisdiction
to review an order issued by the trial court during an accelerated appeal. To the
contrary, trial courts retain jurisdiction while accelerated appeals are pending. See
id. 29.5. Rule 29.5 does not restrict parties from amending their pleadings. See id.
And trial courts may make further orders unless prohibited by law. Id. By statute, an
appeal of an order granting a motion to dissolve a temporary injunction does not stay
the commencement of the trial or other proceedings pending the resolution of the
appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(b).
Harkness also argues the trial court lacked jurisdiction to act on Bitgood’s
successive applications for injunctive relief because Bitgood failed to allege that
circumstances had changed since his original application. In Bitgood’s first
accelerated appeal, we affirmed the trial court’s order dissolving the temporary
injunction because Bitgood failed to establish standing to seek injunctive relief. See
Bitgood I, 2021 WL 2371352, at *9. As we explained in our opinion in the
mandamus proceeding, Bitgood could amend his pleadings to establish standing.
Bitgood II, 2021 WL 3555724, at *3. In response to Bitgood’s amended pleading,
Harkness filed a counterclaim for malicious prosecution. Bitgood invoked the TCPA
in a motion to dismiss. The denial of a TCPA motion to dismiss by order or by
operation of law is expressly appealable by an accelerated appeal. See Tex. Civ.
Prac. & Rem. Code Ann. §§ 27.008, 51.014(a)(12). In this appeal, we are not
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confronted with an order contrary to the mandate we issued in Appeal Number 09-
20-00263-CV. We overrule Harkness’ cross-point.
TCPA NEW LEGAL ACTION
In issue one, Bitgood contends the trial court could not deny his TCPA motion
to dismiss on the ground that he failed to comply with section 27.003(b), which
requires a party to file the motion to dismiss a legal action not later than the 60th day
after the date of service of the legal action. See id. § 27.003(b). The statutorily
defined term “legal action” includes a “counterclaim . . . that requests legal,
declaratory, or equitable relief[]” but does not include “a procedural action taken or
motion made in an action that does not amend or add a claim for legal, declaratory,
or equitable relief[.]” Id. § 27.001(6)(A). In response, Harkness argues that
malicious prosecution is merely a subset of Harkness’ earlier assertion that Bitgood
should be sanctioned for filing a frivolous lawsuit.
The Courts of Appeals do not agree on whether a motion for sanctions for
frivolous pleadings and motions can be a legal action for purposes of the TCPA.
Compare Patel v. Patel, No. 14-18-00771-CV, 2020 WL 2120313, at *4-8 (Tex.
App.—Houston [14th Dist.] May 5, 2020, no pet.) (mem. op.) and Barnes v. Kinser,
600 S.W.3d 506, 511 (Tex. App.—Dallas 2020, pet. denied), with KB Home Lone
Star Inc. v. Gordon, 629 S.W.3d 649, 655 (Tex. App.—San Antonio 2021, no pet.)
and Hawxhurst v. Austin’s Boat Tours, 550 S.W.3d 220, 226 (Tex. App.—Austin
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2018, no pet.). We need not decide whether a motion for sanctions qualifies as a
legal action for purposes of the TCPA because Harkness’ counterclaim for malicious
prosecution qualifies as a new legal action for purposes of calculating the time for
filing a motion to dismiss under the TCPA.
“[T]he essential facts alleged in a pleading comprise part of the cause of action
and thus part of the legal action as the TCPA defines that phrase.” Montelongo v.
Abrea, 622 S.W.3d 290, 301 (Tex. 2021). “But the elements of the claim asserted
also comprise part of the legal action as the TCPA uses that phrase.” Id. Therefore,
“an amended or supplemental pleading that asserts a new claim involving different
elements than a previously asserted claim also asserts a new legal action that triggers
a new sixty-day period for filing a motion to dismiss that new claim.” Id.
A request to sanction a party or a lawyer for filing a frivolous pleading has
different elements from a malicious prosecution claim. The elements of a claim of
malicious prosecution of a civil claim are: (1) the institution or continuation of civil
proceedings against the plaintiff; (2) by or at the insistence of the defendant; (3)
malice in the commencement of the proceeding; (4) lack of probable cause for the
proceeding; (5) termination of the proceeding in plaintiff’s favor; and (6) special
damages. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996). The cause
of action for malicious prosecution does not require the plaintiff to prove that the
person signed a pleading or motion.
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“Chapters 9 and 10 of the Texas Civil Practice and Remedies Code and rule
13 of the Texas Rules of Civil Procedure allow a trial court to sanction an attorney
or a party for filing motions or pleadings that lack a reasonable basis in fact or law.”
Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). “Under Section 10.001, the signer
of a pleading or motion certifies that each claim, each allegation, and each denial is
based on the signatory’s best knowledge, information, and belief, formed after
reasonable inquiry.” Id. at 615. A party seeking sanctions under Chapter 10 of the
Texas Civil Practice and Remedies Code is not required to specifically show bad
faith or malicious intent but may prevail by establishing the person certified he made
a reasonable inquiry into all of the allegations when he did not and that he certified
that all the allegations in the petition had evidentiary support, or were likely to have
evidentiary support, when some allegations did not. Id. at 617. None of these
provisions for imposing sanctions for filing a frivolous pleading require proof of
special damages.
Harkness’ Third Amended Counterclaim asserted for the first time a claim
that contains different elements than a previously asserted claim, thereby initiating
or restarting the sixty-day time limit for Bitgood to file a motion to dismiss. See
Montelongo, 622 S.W.3d at 301. We conclude Bitgood filed his motion to dismiss
within the time required by the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. §
27.003(b). We sustain issue one.
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APPLICABILITY OF THE TCPA
In issue two, Bitgood contends the trial court erred by denying his motion to
dismiss Harkness’ claim for malicious prosecution because the claim qualifies as a
legal action filed in response to Bitgood’s exercise of his right to petition. See id. §
27.003(a). To establish his right to a dismissal of Harkness’ counterclaim for
malicious prosecution, Bitgood must establish that Harkness’ legal action is in
response to Bitgood’s exercise of the right to petition. See id. §§ 27.003(a),
27.005(b)(1)(B). “Exercise of the right to petition” is defined, in part, as “a
communication in or pertaining to . . . a judicial proceeding[.]” Id. § 27.001(4)(A)(i).
If Bitgood establishes his right to dismissal, to avoid dismissal Harkness must
“establish[] by clear and specific evidence a prima facie case for each essential
element of the claim in question.” See id. § 27.005(c). If Harkness makes a prima
facie case of malicious prosecution, to obtain relief under the TCPA Bitgood must
establish “an affirmative defense or other ground in which [Bitgood] is entitled to
judgment as a matter of law.” See id. § 27.005(d).
Harkness responds that the TCPA does not protect “sham petitions” that are
objectively baseless and conceal an attempt to harm a rival directly through the
judicial process itself as opposed to the outcome. Harkness argues Bitgood’s live
pleading is a sham petition because the legal theories asserted therein were or should
have been known to Bitgood when he filed his First Amended Application for
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Injunction and Original Petition but were not pleaded until he filed his Fourth
Amended Petition. Harkness also argues the malicious prosecution counterclaim
preserves Harkness’ right to seek redress from Bitgood’s unlawful pleadings, which
Harkness claims threaten to prolong litigation and unethically force concessions.
The trial court dissolved Bitgood’s temporary injunction because the trial
court sustained Harkness’ motion to dismiss for lack of subject matter jurisdiction.
See Bitgood I, 2021 WL 2371252 at *4. The trial court dismissed Bitgood’s First
Amended Application for Temporary Restraining Order, Temporary Injunction,
Permanent Injunction, and Original Petition without prejudice to refiling. Id. Since
Bitgood had a right to replead his claims to correct his pleading deficiency and
establish his standing to enforce the restrictions, his failure to assert the newly
pleaded theory in his original petition did not render his amended petition a sham
pleading. We conclude the TCPA applies. See Tex. Civ. Prac. & Rem. Code Ann. §
27.003. We sustain issue two.
PRIMA FACIE CASE OF MALICIOUS PROSECUTION
In issue three, Bitgood contends Harkness failed to support with clear and
specific evidence each element of a cause of action for malicious prosecution. As
we noted above, the elements of a claim of malicious prosecution of a civil claim
are: (1) the institution or continuation of civil proceedings against the plaintiff; (2)
by or at the insistence of the defendant; (3) malice in the commencement of the
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proceeding; (4) lack of probable cause for the proceeding; (5) termination of the
proceeding in plaintiff’s favor; and (6) special damages. Tex. Beef Cattle Co., 921
S.W.2d at 207. In Texas Beef Cattle Company, the Supreme Court of Texas held that
until the appeals process had been exhausted, the underlying civil suit does not
terminate in favor of the malicious prosecution case’s plaintiff. Id. at 208.
Harkness argues that by amending his pleadings in the trial court Bitgood
treated the appellate proceeding as if it had already terminated in favor of Harkness.
Harkness further argues the counterclaim for malicious prosecution, having been
merely prematurely filed, could be properly asserted if this Court affirmed the
dissolution of the temporary injunction. We did affirm the trial court’s dissolution
of the temporary injunction, but that ruling did not finally determine whether
Bitgood was entitled to enforce deed restrictions against Harkness. The trial court
dismissed Bitgood’s petition in an interlocutory order in a case that has not yet
proceeded to trial and judgment, and any appeal that might follow. Until a cause of
action accrues, there is no live controversy between the parties and the trial court
cannot adjudicate the matter. See City of Garland v. Louton, 691 S.W.2d 603, 605
(Tex. 1985) (“A court has no jurisdiction to render an advisory opinion on a
controversy that is not yet ripe.”). Any claim Harkness could bring for malicious
prosecution requires a final adjudication that has not yet occurred. We conclude
Harkness failed to establish by clear and specific evidence a prima facie case for
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each essential element of a claim for malicious prosecution. See Tex. Civ. Prac. &
Rem. Code Ann. § 27.005(c). The trial court erred by denying Bitgood’s motion to
dismiss Harkness’ counterclaim for malicious prosecution. We sustain issue three.
ATTORNEY’S FEES
In issue four, Bitgood challenges the trial court’s award of attorney’s fees to
Harkness and argues he is entitled to a rendition of judgment for the fees he requested
in his motion. Harkness responds the trial court properly exercised its discretion in
awarding Harkness attorney’s fees because its decision denying Bitgood’s motion to
dismiss under the TCPA was proper.
The trial court awarded attorney’s fees to Harkness because it found Bitgood’s
motion was frivolous or brought solely for delay. See id. § 27.009(b). However, since
we have found the trial court erred in failing to grant Bitgood’s motion to dismiss,
we reverse the trial court order awarding attorney’s fees to Harkness.
An award of reasonable attorney’s fees and costs incurred in defending the
legal action is mandatory if a court orders dismissal of a legal action under the
TCPA. See id. § 27.009(a)(1). The court may award the moving party sanctions. Id.
§ 27.009(a)(2). Because the trial court has not had the opportunity to consider these
awards, we remand so that it may do so. We sustain issue four.
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CONCLUSION
We reverse the trial court’s order denying Bitgood’s Motion to Dismiss
Harkness’s Third Amended Counterclaim for Malicious Prosecution. We remand
the case to the trial court so the trial court may (1) determine Bitgood’s reasonable
attorney’s fees and costs incurred in defending against Harkness’s Third Amended
Counterclaim for Malicious Prosecution and (2) consider whether to sanction
Harkness, as Bitgood requested, under section 27.009(a) of the Civil Practice and
Remedies Code.
REVERSED AND REMANDED.
_________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on February 25, 2022
Opinion Delivered April 21, 2022
Before Golemon, C.J., Kreger and Horton, JJ.
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