LOWELL BRUCE MERRITT v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice Francis

A jury convicted Lowell Bruce Merritt of retaliation, and the trial court assessed punishment at two years probated for five years and a $3000 fine.   In four issues, appellant complains about the legal sufficiency of the evidence to support his conviction, the adequacy of the trial court's admonishments on his right to counsel, and charge error.

The dispositive issue is whether filing a frivolous lawsuit can constitute the “unlawful” act required for the offense.   We conclude it cannot and that the evidence is legally insufficient to support the conviction.   We reverse the trial court's judgment and render a judgment of acquittal.

The events leading up to appellant's indictment on a felony retaliation charge began in July 2007 when appellant's neighbor reported that appellant “cussed” his wife.   After reviewing the report, a Collin County sheriff's deputy filed a disorderly conduct complaint against appellant in the Precinct 2 Justice of the Peace Court of Terry Douglas.   A jury convicted appellant of the Class C misdemeanor offense, and appellant appealed his conviction to the county court at law, where he was ultimately acquitted in a bench trial.

While his case was pending in the county court, appellant filed separate pro se lawsuits against his neighbor, the deputy sheriff who filed the complaint, and a witness at the justice court trial, complaining about their conduct in the criminal prosecution.   Appellant filed the suits in Judge Douglas's JP court and sought to recuse the judge.   Judge Douglas denied the motion to recuse, and after considering the defendants' motions for summary judgment, rendered take-nothing judgments.   The judge also sanctioned appellant $5,500 in one of the cases for filing a frivolous lawsuit.

Appellant then filed the lawsuit against Judge Douglas that is the basis of this criminal prosecution.   In his suit, filed in county court, appellant alleged Judge Douglas violated his rights by refusing to recuse himself and, as damages, sought the amount he sought in his earlier lawsuits as well as the sanctions ordered by Douglas.   Days later, Robert Davis, an attorney retained by Collin County to represent Judge Douglas, sent a letter to appellant advising him that Judge Douglas was immune from suit and warning that if appellant did not dismiss the suit, he would seek sanctions.   Appellant did not dismiss the suit, and five weeks later, the trial court granted Judge Douglas's plea to the jurisdiction and dismissed the lawsuit.

Appellant was subsequently indicted on a charge of retaliation.   The indictment alleged that appellant “intentionally and knowingly harm[ed] and threaten[ed] to harm Terry Douglas, by filing a frivolous lawsuit against him ․ in retaliation for and on account of his service and status as a public servant, to-wit:  Justice of the Peace:  Precinct Two.” Following a three-day trial, a jury convicted appellant of the offense.

In his first issue, appellant argues the evidence is legally insufficient to support his conviction because the act claimed to be retaliatory must be “unlawful” and filing a frivolous lawsuit is not unlawful.   Resolution of this issue requires us to construe the retaliation statute.

Our primary objective when construing a statute is to give effect to the Legislature's intent as expressed in the statute's language.   See Cornet v. State, No. PD–1067–10, 2012 WL 204286, at *3 (Tex.Crim.App. Jan. 25, 2012).   Looking to the text of the statute, we initially ascertain whether the statutory language is clear and unambiguous on its face.  Id. If so, we consider whether adoption of the interpretation would produce “absurd consequences that the Legislature could not possibly have intended”;  and if the plain meaning interpretation generates no such absurdities, we adopt that interpretation.  Id.

Section 36.06 of the Texas Penal Code provides that a person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service or status of another as a public servant.  Tex. Penal Code Ann. § 36.06(a)(1)(A) (West 2011).  Section 1.07(a)(48) of the penal code defines “unlawful” to mean “criminal or tortious or both[.]”  Tex. Penal Code Ann. § 1.07(a)(48) (West Supp.2011).

Neither side argues that the act of filing of a frivolous lawsuit is “criminal”;  rather, the issue is whether the act is “tortious.”   The penal code does not define “tortious.”   Where a statutory term is not defined by the Legislature, we ascribe to that term its ordinary meaning.  Morrow v. State, 862 S.W.2d 612, 614 (Tex.Crim.App.1993).   In consulting dictionaries for the meaning of a particular word, we look to the lexicographical alternatives the Legislature most likely had in mind, taking into account the context provided by the phrase, subsection of the statute, and overall statutory scheme in which the word appears.  Cornet, 2012 WL 2042286, at *4.

The term “tortious” is defined by Webster's Dictionary as “implying or involving tort for which the law gives damages.”   Webster's Third Int'l DictionaryY 2413 (1981).   A tort is defined as “a wrongful act for which a civil action will lie except for one involving breach of contract.”  Id. Similarly, Black's Law Dictionary defines “tortious” as “[w]rongful;  of the nature of a tort.”   Black's Law Dictionary 1489 (6th ed.1990).   Further, tort is defined as “[a] private or civil wrong or injury, including action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages.”  Id.

The State argues that filing a frivolous lawsuit is a “tortious act.”   Specifically, the State argues that chapters 9 and 10 of the Texas Civil Practice and Remedies Code both “prohibit filing a pleading or motion that is not based on existing law or a non-frivolous extension of existing law.”   The State then concludes that “[b]ecause filing a frivolous lawsuit violates a statutory tort, it is a tortious and thus unlawful act.”   We cannot agree.

Chapter 9 of the civil practice and remedies code authorizes sanctions for the filing of groundless pleadings and claims in bad faith or for an improper purpose, such as harassment or to cause unnecessary delay.   See Tex. Civ. Prac. & Rem.Code Ann. §§ 9.001–.014  (West 2002).   Chapter 10 allows for sanctions for filing pleadings and motions without legal or evidentiary support or for improper purpose.   See Tex. Civ. Prac. & Rem.Code Ann. § 10.001–.006 (West 2002).   While both statutes allow for the filing of a “motion” for sanctions, neither creates an independent tort cause of action for damages for filing a frivolous lawsuit.   See Mantri v. Bergman, 153 S.W.3d 715, 717–18 (Tex.App.-Dallas 2005, pet. denied) (concluding chapter 10 does not provide independent cause of action for filing frivolous lawsuit);  Michels v. Zeifman, No. 03–08–00287–CV, 2009 WL 349167, at *4–5 (Tex.App.-Austin 2009, pet. denied) (mem.op.) (concluding chapter 9 does not provide independent cause of action for filing frivolous pleadings).   In other words, the conduct prohibited by these statutes—filing frivolous pleadings or motions—is sanctionable, not tortious.   Thus, contrary to the State's argument otherwise, filing a frivolous lawsuit is not a statutory tort under chapters 9 or 10.   The State does not argue that filing a frivolous lawsuit can be the basis for any other statutory or common law tort.   Because filing a frivolous lawsuit is not “tortious,” it is not “unlawful” under the penal code definition;  consequently, we conclude the alleged conduct in this case cannot serve as the basis for a criminal charge of retaliation.

In reaching this decision, we recognize that a central purpose of the retaliation statute is to encourage a certain class of citizens to perform vital public duties without fear of retribution.  Doyle v. State, 661 S.W.2d 726, 729 (Tex.Crim.App.1983) (per curiam).   But in seeking to achieve that purpose, we are first and foremost bound to apply the language of a statute in accordance with its plain and common meaning when we can do so without producing absurd results.   Here, we can so apply the statue without an absurd result.   We sustain the first issue.   Our disposition makes it unnecessary to address the remaining issues.   See Tex.R.App. P. 47.1.

We reverse the trial court's judgment and render a judgment of acquittal.

101008F.U05 S

Court of Appeals

Fifth District of Texas at DallasJUDGMENT

LOWELL BRUCE MERRITT, Appellant

No. 05–10–01008–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 366 th Judicial District Court of Collin County, Texas.  (Tr.Ct.No.366–82583–09).

Opinion delivered by Justice Francis, Justices O'Neill and Richter participating.

Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the appellant is hereby ACQUITTED.

Judgment entered March 27, 2012.

/Molly Francis/

MOLLY FRANCIS

JUSTICE

MOLLY FRANCIS JUSTICE