The San Antonio Court of Appeals has reversed a trial court award of attorney’s fees against a party for seeking dismissal of the other party’s motion for monetary sanctions.
Whataburger Restaurants LLC and Crystal Krueger v. Sadok Ferchichi and Martina Coronado (No. 04-22-00020-CV; filed December 28, 2022) arose from a discovery dispute in a personal injury action brought by Ferchichi against Whataburger and its employee Krueger, who rear-ended Ferchichi’s vehicle while using a company car. During a mediation, the mediator told Ferchichi that Whataburger and Krueger disclosed that they had an investigative video that had not been produced in discovery. Ferchichi responded by filing a motion to compel production of the video and for sanctions based on defendants’ failure to fully respond to discovery. Whataburger and Krueger moved to dismiss plaintiffs’ motion for sanctions under the Texas Citizens Participation Act (TCPA; Chapter 27, CPRC). The trial court denied the motion and awarded attorney’s fees to plaintiffs. Defendants appealed.
The court of appeals reversed and rendered in part and reversed and remanded in part. First, the court determined that a motion for sanctions was a “legal action” to which the TCPA applied. Next the court found that defendants filed the TCPA motion to dismiss “based on or in response to” their right to petition, which includes “a communication in or pertaining to . . . a judicial proceeding.” § 27.001(4)(A)(i), CPRC. The question then became whether plaintiffs demonstrated by “clear and specific” evidence each element of their claim for attorney’s fees. Here the court found that plaintiffs offered no evidence supporting the attorney’s fees award. Without such evidence, the court could not determine the reasonableness of the award. Because plaintiffs failed to establish a prima facie case, the court reversed the award and dismissed plaintiffs’ motion for sanctions. To add insult to injury, the court remanded the case back to the trial court for consideration of sanctions against plaintiffs. Turnabout is fair play.
