Plaintiff can't avoid having to pay defendant's attorney fees just by dropping the case

|The Volokh Conspiracy |

That's what a Texas appellate decision held last week in Duchouquette v. Prestigious Pets, LLC, a case that we had blogged about last year. From the opinion:

In October 2015, the Duchouquettes hired [Prestigious] Pets to care for their two dogs and a fish while they were away. Mr. Duchouquette signed Pets' contract, which included a clause forbidding "any action that negatively impacts [Pets]."

While they were away, watching their fish webcam, the Duchouquettes saw the Pets representative overfeeding the fish. But they were unable to contact the Pets representative because of Pets' policy against direct communication between clients and pet sitters. When they returned from vacation, Ms. Duchouquette posted an unfavorable Yelp review of Pets' services.

Pets responded with a letter demanding modification of the review and threatening legal action for breach of the contract's non-disparagement clause. Although Ms. Duchouquette made changes to her review, Pets sued both Duchouquettes in the justice court. The petition claimed, inter alia, breach of the non-disparagement clause, libel and slander, intentional misrepresentation, and fraud by omission. Pets requested $6,766 in damages, and an injunction ordering compliance with the non-disparagement clause.

On February 11, 2016, the Duchouquettes filed a TCPA [Texas Citizens Participation Act] motion to dismiss claiming that the Yelp review was an exercise of free speech and requesting attorneys' fees and sanctions. [Prevailing defendants generally can't get attorney fees in most civil cases, but they can get them when authorized by special statutes; many such statutes, such as the TCPA or other "anti-SLAPP" statutes in other states, aim at protecting speakers who are sued for their speech. -EV] The motion was set for hearing on April 4, 2016.

Pets did not respond to the motion. Instead, two weeks before the hearing, Pets filed a notice of nonsuit and request for dismissal without prejudice. The justice court granted the nonsuit that day, dismissed the case, and denied all outstanding motions. Consequently, the Duchouquettes did not get to pursue their request for attorneys' fees or sanctions. [Footnote: Pets filed a new suit in district court and the Duchouquettes filed another TCPA motion. The district court granted the motion, denied the Duchouquettes' request for $10,415 in attorneys' fees incurred at the district court level, and awarded the Duchouquettes $7,000 in sanctions and costs. That action is not the subject of this appeal.]

The Duchouquettes appealed the justice court judgment to the county court. Pets then filed another nonsuit of its claims and a plea to the jurisdiction. Pets' plea to the jurisdiction argued that the county court lacked jurisdiction because (i) the justice court nonsuit mooted the entire case and (ii) no judgment was rendered by the justice court, so there was nothing to appeal. The Duchouquettes responded, arguing that (i) a motion for attorneys' fees and sanctions under the TCPA is an independent claim for affirmative relief that survives a plaintiffs' nonsuit and (ii) they properly perfected the appeal.

The county court conducted a hearing, granted Pets' plea to the jurisdiction, and dismissed the case without prejudice. The dismissal order makes no reference to the TCPA motion and does not identify the grounds for granting the plea. This appeal from that dismissal order followed.

The appellate court concluded that plaintiffs' decision to drop the suit did not end up also dropping the defendants' motion for fees and sent the case back down to trial court to decide that motion.

Thanks to reader Mike Sawicki for the pointer.