Rashia Lynn Whitlock v. Kimberly Kaye Taylor

Reversed and Remanded and Memorandum Opinion filed April 25, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00877-CV

RASHIA LYNN WHITLOCK, Appellant

V.
KIMBERLY KAYE TAYLOR, Appellee

On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 22-DCV-291980

MEMORANDUM OPINION

Appellant Rashia Lynn Whitlock (“Whitlock”) appeals a plea to the
jurisdiction and a motion for sanctions granted by the trial court in her lawsuit for
defamation, malicious prosecution, and public disclosure of private facts against
appellee Kimberly Kaye Taylor (“Taylor”). We reverse and remand.

I. BACKGROUND

This case arises from a once-amicable, close friendship between a university
graduate and actress, Whitlock, and a university academic counselor, Taylor. After
a disagreement between the women while Whitlock was visiting Taylor from out
of town, Taylor made a complaint of criminal trespass about Whitlock to the Fort
Bend County Sheriff’s Office, and she later sought a protective order against
Whitlock after alleged harassment from Whitlock’s supporters. According to
Whitlock, Taylor also shared false details about the disagreement, criminal
complaint, and application for protective order with the interim dean of the
university, the dean of the school of communications, the university police, and a
congressional staffer for the congresswoman whose district includes the university.

On March 21, 2022, Whitlock sued Taylor for defamation, malicious
prosecution, and public disclosure of private facts. Taylor answered and filed a
plea to the jurisdiction, claiming the trial court lacked subject matter jurisdiction
over Whitlock’s claims. The trial court conducted a hearing on Taylor’s plea to the
jurisdiction on August 19, 2022. On August 30, 2022, the trial court granted
Taylor’s plea to the jurisdiction and motion for sanctions, holding that it did not
have subject matter jurisdiction over Whitlock’s claims, that Taylor had “absolute
immunity” from Whitlock’s defamation claim, and that Taylor and her attorney
were entitled to a total of $15,381.00 in attorney’s fees and costs as sanctions.

II. ANALYSIS

In its order, the trial court found that Whitlock’s “pleadings fail to confer
subject matter jurisdiction on this Court”; found that Taylor has “absolute
immunity” from Whitlock’s defamation claim; and denied all of Whitlock’s
claims. The order also awards sanctions after stating that the trial court found
“ample bad faith” for Whitlock and her attorney’s failure to recognize Taylor’s
“absolute privilege” in making alleged defamatory statements, in Whitlock’s filing
of prior similar claims, in their use of court proceedings to coerce Taylor into a

2
personal relationship, and their refusal to respond to discovery. In four issues that
we construe as two, Whitlock argues that the trial court erroneously granted
Taylor’s plea to the jurisdiction and motion for sanctions.

A. PLEA TO THE JURISDICTION

We first address the trial court’s grant of Taylor’s plea to the jurisdiction for
lack of subject matter jurisdiction.1

Subject matter jurisdiction involves a court’s power to hear a particular type
of suit. TV Azteca v. Ruiz, 490 S.W.3d 29, 36 (Tex. 2016). Subject matter
jurisdiction is essential to the authority of a court to decide a case. Tex. Ass’n of
Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); see Buzbee v.
Clear Channel Outdoor, LLC, 616 S.W.3d 14, 21 (Tex. App.—Houston [14th
Dist.] 2020, no pet.). A trial court has subject matter jurisdiction “when the nature
of the case falls within the general category of cases the court is empowered, under
applicable statutory and constitutional provisions, to adjudicate.” Diocese of
Galveston-Hous. v. Stone, 892 S.W.2d 169, 174 (Tex. App.—Houston [14th Dist.]
1994, orig. proceeding). “The absence of subject matter jurisdiction may be raised
by a plea to the jurisdiction.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554
(Tex. 2000).

1. Standard of Review

A plea questioning the trial court’s subject matter jurisdiction over a dispute
raises a question of law that we review de novo. Westbrook v. Penley, 231 S.W.3d

1
In appellee’s brief, Taylor argues that the trial court heard her no-evidence motion for
summary judgment in the same hearing in which the plea to the jurisdiction was heard. However,
the dispositive ruling in the trial court is the plea to the jurisdiction order. This order does not
mention either party’s motion for summary judgment. Moreover, Taylor set the hearing for her
plea to the jurisdiction, and her notice of hearing does not include her motion for summary
judgment.

3
389, 394 (Tex. 2007); In re Alief Vietnamese All. Church, 576 S.W.3d 421, 427
(Tex. App.—Houston [1st Dist.] 2019, orig. proceeding). A defendant may
challenge the court’s jurisdiction either on the pleadings or by evidence negating
jurisdictional facts. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
225–26 (Tex. 2004).

We first look to the plaintiff’s pleadings to determine whether the facts
pleaded affirmatively demonstrate that subject matter jurisdiction exists.
Westbrook, 231 S.W.3d at 394–95. We construe the pleadings liberally in favor of
the plaintiff, look to the pleader’s intent, and accept as true the unchallenged
factual jurisdictional allegations in the pleadings. See Miranda, 133 S.W.3d at 226.
If the pleadings are insufficient to establish jurisdiction but do not affirmatively
demonstrate an incurable jurisdictional defect, then the plaintiff should be afforded
the opportunity to replead. Westbrook, 231 S.W.3d at 395. If the pleading is
sufficient to demonstrate jurisdiction, and if the defendant does not challenge the
plaintiff’s factual allegations with supporting evidence, then our inquiry ends.
Buzbee, 616 S.W.3d at 23.

However, if a plea to the jurisdiction challenges the existence of
jurisdictional facts, then we consider relevant evidence submitted by the parties
when necessary to resolve the jurisdictional issues raised, as the trial court is
required to do. Miranda, 133 S.W.3d at 227. In a case in which the jurisdictional
challenge implicates the merits of the plaintiff’s cause of action and the plea to the
jurisdiction includes evidence, the trial court reviews the relevant evidence to
determine if a fact issue exists. Id. If the evidence creates a fact question regarding
the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction,
and the fact issue will be resolved by the fact finder. Id. By reserving for the fact
finder the resolution of disputed jurisdictional facts that implicate the merits of the

4
claim or defense, we preserve the parties’ right to present the merits of their case at
trial. Id. at 228. In deciding a plea to the jurisdiction, a court may not consider the
merits of the case, only the plaintiff’s pleadings and the evidence pertinent to the
jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.
2002).2

2. Whitlock’s Pleadings

In her petition, Whitlock pleads causes of action for defamation, malicious
prosecution, and public disclosure of private facts. She sets forth the elements of
each cause of action in the pleading. Her petition is detailed and includes what
appear to be screenshots from various exhibits. For instance, the petition describes
how Taylor reported Whitlock to the Fort Bend County Sheriff’s Office as a
trespasser who had earlier caused a disturbance, rather than a visitor with whom
Taylor shared a putative mother-daughter relationship. The petition then sets forth
screenshots from what appears to be Taylor’s deposition testimony, acknowledging
that on the day of the purported disturbance, the women had not argued and “were
making do.” The petition shows that Taylor next sought a protective order against
Whitlock, juxtaposed against a screenshot of Taylor’s deposition testimony that
Whitlock had not threatened, harmed, or harassed Taylor, her family, or her co-
workers. District courts have the authority to address claims for defamation, see,
e.g., Klentzman v. Brady, 456 S.W.3d 239, 245 (Tex. App.—Houston [1st Dist.]
2014), aff’d, 515 S.W.3d 878 (Tex. 2017); malicious prosecution, see, e.g.,

2
Taylor states in her briefing that Whitlock has failed to include the reporter’s record
from the hearing on the plea to the jurisdiction. An appellant has the burden of making an
appellate record demonstrating the trial court abused its discretion. See Simon v. York Crane &
Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987). Absent such a record, the reviewing court
presumes the evidence before the trial court was adequate to support its ruling. Id. Here,
however, the clerk’s record includes the evidence submitted at the hearing on the plea to the
jurisdiction, which the trial court instructed the parties to file after the hearing was conducted by
video conferencing.

5
Gilbreath v. Horan, 682 S.W.3d 454, 503 (Tex. App.—Houston [1st Dist.] 2023,
pet. denied); and public disclosure of private facts. See, e.g., Patel v. Hussain, 485
S.W.3d 153, 172 (Tex. App.—Houston [14th Dist.] 2016, no pet.). We conclude
that the facts pleaded in Whitlock’s petition affirmatively demonstrate that the trial
court has subject matter jurisdiction. See Westbrook, 231 S.W.3d at 394–95.

3. Taylor’s Challenge to Jurisdictional Facts

We then examine whether Taylor negated jurisdictional facts. See Miranda,
133 S.W.3d at 226. In her plea to the jurisdiction, Taylor first asserted that
Whitlock lacked standing but has not subsequently argued standing in the trial
court or on appeal.3 In her plea, Taylor next contended that Whitlock “absolutely
has not plead[ed] and cannot, as a matter of law, establish every element of
defamation, malicious prosecution, and public disclosure of private facts.” As we
addressed above, Whitlock’s pleadings sufficiently set forth the elements of her
claims. To the extent that Taylor challenges the evidence that may support Taylor’s
claims, or the lack thereof, a plea to the jurisdiction may not be used to weigh the
merits of the claims. See Brown, 80 S.W.3d at 555; see also Tex. R. Civ. P.
166a(I).

In her appellate briefing and in her reply to Whitlock’s response to the plea
to the jurisdiction, Taylor next argues that the trial court lacks subject matter
jurisdiction because Taylor had the “absolute privilege” to report perceived
wrongdoing to the police. The trial court granted her plea to the jurisdiction on this

3
Generally, a plaintiff has standing if there is a concrete injury to the plaintiff and a real
controversy between the parties that is fairly traceable to the defendant’s conduct and likely to be
redressed by the requested relief. See Heckman v. Williamson County, 369 S.W.3d 137, 155–56
(Tex. 2012). For instance, Whitlock has standing to bring claims for injuries to her from Taylor’s
actions and alleged defamation. See Nguyen v. Trinh, No. 14-21-00110-CV, 2022 WL 805820, at
*3 (Tex. App.—Houston [14th Dist.] Mar. 17, 2022, no pet.) (mem. op.) (stating a “defamatory
statement must be directed at the plaintiff as an ascertainable person to be actionable.”).

6
basis, stating that “The Court FINDS that Defendant has an absolute immunity
from defending against a suit for defamation based on statements made during a
petition to the government for recourse and/or judicial proceedings.” We disagree
that absolute privilege deprived the trial court of subject matter jurisdiction over
Whitlock’s claims.

Texas recognizes two classes of privilege applicable to defamation suits,
“absolute privilege” and “conditional or qualified privilege,” the purpose of which
are to support the administration of justice through “full and free disclosure of
information as to criminal activity both by the public and by participants in judicial
proceedings.” Shell Oil Co. v. Writt, 464 S.W.3d 650, 654 (Tex. 2015). Absolute
privilege protects an individual from a defamation claim for publishing a
defamatory matter preliminary to a proposed judicial proceeding or as part of a
judicial proceeding in which the person is testifying.4 See id. at 654–55. Although
Taylor asserts absolute privilege to challenge subject matter jurisdiction, she has
provided no authority, either in her appellate briefing or in the trial court, in which
absolute privilege has been addressed as part of subject matter jurisdiction.5

4
Taylor argues absolute privilege applies because Whitlock’s defamation claims are
based on her statements to the Fort Bend County Sheriff’s Office. However, Whitlock’s petition
also specifically identifies persons other than the Fort Bend County Sheriff’s Office to whom
Taylor made allegedly defamatory statements. Additionally, a “circumstance generally giving
rise to a qualified privilege is ‘when a person makes a statement to police identifying someone as
a potential suspect in the commission of a criminal offense.’” Saks & Co., LLC v. Li, 653 S.W.3d
306, 315 (Tex. App.—Houston [14th Dist.] 2022, no pet.) (emphasis added).
5
The sole case Taylor relied upon in the trial court addressed the Texas Citizen’s
Participation Act (“TCPA”), which safeguards individuals’ constitutional rights to petition
government. See Murphy USA, Inc. v. Rose, No. 12-15-00197-CV, 2016 WL 5800263, at * 1,
(Tex. App.—Tyler Oct. 5, 2016, no pet.) (mem. op.) (concluding that filing a police report
implicates a person’s right to petition the government and that the TCPA thus applies to causes
of action based on reporting an incident to police). Taylor did not file a TCPA motion, which
was due within sixty days after she was served. See Tex. Civ. Prac. & Rem Code Ann. §
27.003(b). The record indicates that Taylor set a hearing to simultaneously present her plea to the
jurisdiction and a motion for extension of time to file a TCPA motion. However, there is no
motion for extension of time or the trial court’s ruling on such a motion in the appellate record.

7
Rather, absolute privilege is properly characterized as either an affirmative defense
or an issue which the plaintiff must disprove as part of her cause of action when it
is raised. See id. at 654; Thibodeau v. Lyles, 558 S.W.3d 166, 171 (Tex. App.—
Houston [14th Dist.] 2018, no pet.) (concluding that absolute privilege results in a
defense to the merits of a claim rather than a dismissal for lack of subject matter
jurisdiction). We thus decline to consider absolute privilege in determining subject
matter jurisdiction.

Having concluded that Whitlock’s petition adequately demonstrates the trial
court’s subject matter jurisdiction and having declined to consider absolute
privilege in determinations of subject matter jurisdiction, we sustain Whitlock’s
first issue.

B. SANCTIONS

In her second issue, Whitlock argues that the trial court erred in imposing
sanctions. Among her arguments, Whitlock contends she received inadequate
notice of the hearing on sanctions and inadequate opportunity to respond. Whitlock
also argues the trial court premised sanctions on Taylor’s assertion of absolute
privilege, a defense which the trial court incorrectly considered in assessing subject
matter jurisdiction.

We review a trial court’s imposition of sanctions for an abuse of discretion.
Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009) (per curiam); In re
Hereweareagain, Inc., 383 S.W.3d 703, 708 (Tex. App.—Houston [14th Dist.]
2012, orig. proceeding). We will reverse the sanctions order only if the trial court
acted without reference to any guiding rules and principles, such that its ruling was
arbitrary or unreasonable. Unifund, 299 S.W.3d at 97.

8
1. Notice

“‘Notice is essential for the proper imposition of sanctions.’”
Hereweareagain, 383 S.W.3d at 708 (quoting Zep Mfg. Co. v. Anthony, 752
S.W.2d 687, 690 (Tex. App.—Houston [1st Dist.] 1988, no writ)). The statutory
authority for the sanctions imposed—Chapter 10 and Rule 13—expressly require
that notice be given to the party subject to the sanctions. See Tex. Civ. Prac. &
Rem. Code Ann. § 10.003; Tex. R. Civ. P. 13. Here, Taylor first invoked Chapter
10 and Rule 13 in her reply to Whitlock’s response to her plea to the jurisdiction,
which was filed four days before the hearing. Cf. TransAm. Nat. Gas Corp. v.
Powell, 811 S.W.2d 913, 915 (Tex. 1991) (orig. proceeding) (permitting motion
for sanctions in party’s responsive pleading); McFarland v. Szakalun, 809 S.W.2d
760, 765 (Tex. App.—Houston [14th Dist.] 1991, writ denied) (concluding three-
day notice was reasonable notice of sanctions hearing). The day before the hearing,
Taylor also amended her answer to request sanctions based on Chapter 10 and Rule
13. Taylor’s amended notice of hearing does not include a request for hearing on
sanctions. Still, Whitlock needed to object in the trial court to the lack of notice
about sanctions to preserve error. See Tex. R. App. P. 33.1(a); Low v. Henry, 221
S.W.3d 609, 618 (Tex. 2007). Whitlock did not raise lack of notice until her
appeal, which is untimely. See Tex. R. App. P. 33.1; Low, 221 S.W.3d at 618.

2. Bases for Sanctions

We next address whether sanctions were properly awarded under Chapter 10
or Rule 13 and conclude that they were not. Chapter 10 allows a trial court to
sanction a party or an attorney for filing pleadings that lack a reasonable basis in
law or fact. See Tex. Civ. Prac. & Rem. Code Ann. § 10.001; Unifund, 299 S.W.3d
at 97. Rule 13 permits sanctions against attorneys and represented parties who file
a groundless pleading in bad faith or for the purpose of harassment. Tex. R. Civ. P.

9
13; Gomer v. Davis, 419 S.W.3d 470, 477 (Tex. App.—Houston [1st Dist.] 2013,
no pet.). A pleading is “groundless” if it has “no basis in law or fact and [is] not
warranted by good faith argument for the extension, modification, or reversal of
existing law.” Tex. R. Civ. P. 13.

Generally, courts presume that pleadings are filed in good faith. Unifund,
299 S.W.3d at 97. The party seeking sanctions bears the burden of overcoming the
presumption. Id. The party seeking to impose sanctions pursuant to Rule 13 must
demonstrate first that the opposing party’s pleadings are groundless, and then must
demonstrate that the groundless pleadings were either filed in bad faith or for the
purpose of harassment. Gomer, 419 S.W.3d at 478. The trial court does not abuse
its discretion if it bases its decision on conflicting evidence and some evidence
supports its decision. Unifund, 299 S.W.3d at 97. However, a trial court abuses its
discretion when its decision is contrary to the only permissible view of probative,
properly admitted evidence. Id.

Sanctions under Rule 13 may be imposed only for good cause, and the trial
court is required to state the particulars of good cause in the order. Tex. R. Civ. P.
13. Similarly, under Chapter 10, a trial court is required to describe in its order the
conduct the court has found sanctionable and explain the basis for the sanction
imposed. See Tex. Civ. Prac. & Rem. Code Ann. § 10.005. Here, the trial court’s
order states:

The Court further FINDS that Plaintiff’s and/or her attorney’s ample
bad faith since initiating this suit is established in their (1) use of court
proceedings to coerce Defendant into a personal relationship with
Plaintiff; (2) failure or refusal to recognize Defendant’s absolute
privilege in making the complained of alleged statements; (3) refusal
to provide answers to written interrogatories and produce documents
in response to requests for production to prove its claims; and (4) prior
history of filing similar claims warrants the imposition of sanctions to
discourage future baseless litigation.
10
As we have concluded earlier in this opinion, absolute privilege is not
applicable to determining subject matter jurisdiction. Further, it is qualified
privilege, not absolute privilege, that may be asserted when a defamation defendant
identifies a person as a criminal suspect to law enforcement. See Saks & Co., 653
S.W.3d at 315. Moreover, Whitlock’s petition identifies individuals outside of the
Fort Bend County Sheriff’s Office to whom Taylor allegedly defamed her. Thus,
the trial court erred in finding that Whitlock’s petition was groundless and in
awarding sanctions.

Because Taylor did not demonstrate that Whitlock’s petition was groundless,
we need not address whether Taylor proved the petition was filed in bad faith or
for harassment.6 See Gomer, 419 S.W.3d at 478 (concluding that a party must first
demonstrate that a pleading was groundless and then show the groundless pleading
was filed in bad faith or for harassment).

We sustain issue two.

III. CONCLUSION

Having sustained Whitlock’s first and second issues, we reverse the trial
court’s order granting Taylor’s plea to the jurisdiction and request for sanctions.

6
The trial court’s finding of bad faith refers to discovery, but Taylor did not seek
discovery sanctions pursuant to Texas Rule of Civil Procedure 215. Instead, Taylor sought
sanctions specifically under Chapter 10 and Rule 13, and these are the only legal bases cited in
the trial court’s order. See F1 Constr., Inc. v. Banz, No. 05-19-00717-CV, 2021 WL 194109, at
*2 (Tex. App.—Dallas Jan. 20, 2021, no pet.) (mem. op.) (concluding “this is not a Rule 215
sanctions case” where party cited different rule in its motion for sanctions and trial court’s
findings did not mention Rule 215). Taylor did not file a motion to compel, and she did not
provide evidence of failure to comply with a discovery order or request. To the contrary, the
affidavit from Whitlock’s attorney in support of sanctions addresses the plea to the jurisdiction
and general defense costs, not abuse of discovery. Discovery “sanctions are designed to rectify
discovery abuse by compensating the aggrieved party for expenses incurred.” CHRISTUS Health
Gulf Coast v. Carswell, 505 S.W.3d 528, 540 (Tex. 2016). When a party seeks attorney’s fees as
discovery sanctions, the burden is on that party to put forth some affirmative evidence how
attorney’s fees resulted from or were caused by sanctionable conduct. Id.

11
We remand to the trial court for further proceedings consistent with this opinion.

/s/ Margaret "Meg" Poissant
Justice

Panel consists of Justices Wise, Zimmerer, and Poissant.

12