Kenneth A. Bitgood v. Stephen S. Harkness and Anna M. Harkness

• Court: Court of Appeals of Texas
• Decided: April 21, 2022
• Docket: 09-21-00076-CV
• Status: Published

Opinion

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

1 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

2 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

3 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 4 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

5 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

6 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

7 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.

8 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,

9 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

10 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

11 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.

12 “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.

13 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

14 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

15 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

16 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.

17 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.