Plaintiff ordered to pay attorney fees after non-suiting claims against individual governmental officials under Texas Citizens’ Participation Act

Shillinglaw v. Baylor Univ., 05-17-00498-CV, 2018 WL 3062451, at *1 (Tex. App.—Dallas June 21, 2018, no pet. h.) (mem. op).

This is a Texas Citizens’ Participation Act ( “TCPA) case where the individual governmental officials were awarded fees and costs after the Plaintiff non-suited them individually in an employment dispute.

In 2008, Baylor University hired Shillinglaw, as Director for Football Operations. Baylor later suspended then terminated Shillinglaw after charges of sexual harassment and an investigation occurred. In early 2017, Shillinglaw sued various officials in Dallas County asserting claims of “libel, slander, tortious interference with existing contract” and other torts. The individuals filed motions to dismiss per the TCPA under which the recovery of costs & attorney’s fees, is mandatory. Shillinglaw non-suited his claims against the individuals. Shillinglaw sued Baylor in McLennan County court and demanded the court order Baylor to arbitration, per an arbitration agreement in his employment contract.  However, he did not request that the court in Dallas County compel arbitration until after suit was filed. The Dallas County district court dismissed the motion to compel arbitration and awarded fees and costs against Shillinglaw and for the individuals.  Shillinglaw then filed this appeal.

Shillinglaw contends the dismissal orders should be reversed because the case should have been sent to arbitration. Shillinglaw urges the Federal Arbitration Act (FAA) preempts the TCPA because, as applied here, the TCPA discriminated against arbitration. However, because he sought arbitration after filing suit, he waived the right to arbitration.  Further, the individuals never agreed to arbitrate, only the employer.

The TCPA requires the award of reasonable attorney’s fees to the successful party. Shillinglaw failed to establish, and the record does not show, that the trial court erred in its award. The judgement was affirmed.

If you would like to read this opinion, click here. Panel consists of Justice Bridges, Justice Myers and Justice Schenck. Memorandum Opinion by Justice Schenck. The docket page with attorney information can be found here. 

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