The Austin Court of Appeals Rejects Insurance Provider's Texas Anti-Slapp in Negligence Case

Back in June I wrote about Superior Health Plan v. Badawo, were the defendants asserted the plaintiff’s claim for injury to an infant denied medical care was an assault on the defendants’ rights under the TCPA.

https://www.antislapptexas.com/blog/2019/6/4/does-the-texas-anti-slapp-protect-a-billion-dollar-medicaid-insurance-provider-for-denial-of-payment-of-healthcare-services-its-in-the-hands-of-the-austin-court-of-appeals

The Austin Court of Appeals took little time (and spent even less ink) rejecting the appeal, applying the bodily injury exception under Section 27.010(c).

Badawo asserts throughout her live petition that she seeks recovery for “brain damage and ongoing pain, suffering, [and] disability” suffered by D.B. On this record, we conclude Badawo carried her burden to demonstrate that her claims fall within the bodily injury exemption.

The Austin COA dogged the larger question of whether the TCPA even applies, simply assuming it did and proceeding straight to the exemptions. Given the expansion of exemptions under HB 2730, expect to see more COA’s take this route and avoid weighing in on whether the TCPA applies to a type of dispute.

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Pivot Technology files its Right of Association Briefing - Next Up - the Response on Aug. 20

We are getting closer (hopefully) to a definitive interpretation from the Texas Supreme Court on “Right of Association.” The Texas Supreme Court would have issued an opinion on Elite Auto Body (probably in 2018), which is the precursor to Grant v. Pivot Technology. But Elite Auto Body settled prior to merits briefing and its taken almost a year for Grant to work its way up to merits briefing at the TSC.

On August 20 we will get Grant’s Response. At that point, I’ll offer some comments to the initial point/counterpoint in the briefing. Until then, enjoy.

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Is that a Double Unicorn Sighting? Two New Opinions Prove the Texas Anti-Slapp Still Has Kick When it Comes to Defamation Claims.

With one month left until the new changes to the Texas Anti-Slapp go into effect, two opinions from the Dallas and Houston COA prove it can still leave a solid hoof print on ill-advised defamation claims.

 

The Dallas COA closed out July 2019 affirming a dismissal under the Texas Anti-Slapp in  Mazaheri v. Tola, CA. No. 05-18-01367-CV (Dallas COA July 31, 2019), a defamation case concerning a negative review on social media about a LASIK procedure (that was never performed).  Step 1 (does the TCPA apply) was not in question so the Dallas COA skipped to Step 2, did the plaintiff prove the elements of defamation.  Plaintiff did not get close to proving defendants’ statements were false, much less they were defamatory per se.

Appellate points for failure to allow plaintiff to conduct discovery, sustaining objections to certain pieces of plaintiff’s evidence, and the timeliness of introduction of attorneys’ fees (hint: it does not have to occur within thirty-days of the date of the Texas-Anti-Slapp hearing) were rejected.

 

The Houston COA addressed a more complicated fact pattern in McDonald Oilfield Operations, LLC v. 3B Inspection, LLC, et al, Ca. No. 01-18-00118-CV (Houston COA July 25, 2019), a competitor business dispute involving claims for defamation, business disparagement, tortious interference with contract (“TIC”), and tortious interference with prospective business relations (“TIPR”).

Some of the plaintiffs were former independent contractors for defendant McDonald Oilfield, performing pipeline monitoring and pipeline integrity maintenance services.  It appears the independent contractors moved over to competitor 3B Inspection under cover of dark, and continued to keep and use McDonald Oilfield’s information and property to compete.  When McDonald Oilfield raised a proverbial stink, 3B Inspection and the independent went on the offensive and sued first.  McDonald Oilfield counterclaimed and filed a Texas Anti-Slapp against the plaintiffs’ offensive claims.  The trial court denied the Texas Anti-Slapp in its entirety.

At the outset, Plaintiffs amended to drop most of the independent contractors out of the lawsuit and removed the TIPR claim.  TCPA practitioners know this procedural move does not stop a Texas Anti-Slapp motion and typically leaves the non-suited plaintiff naked and subject to an award of attorneys’ fees and sanctions on the abandoned claims.

The Houston COA found Step 1 satisfied, applying ExxonMobil Pipeline v. Coleman, 512 S.W. 3d 895 (Tex. 2017), because McDonald Oilfield’s alleged defamatory statements were an exercise of its right of free speech that related to 3B Inspection’s competence and the independent contractors qualifications to perform pipeline inspections.  Because the type of work performed has environmental, economic, and safety concerns, and McDonald Oilfield’s comments were about goods/services in the marketplace, the comments were protected by statute.

Turning to Step 2, 3B inspection could not establish defamation (much less defamation per se), business disparagement, or damages related to either.  The TIC claims collapsed for lack of support for almost every element on the claim.  No attempt was made on the non-suited claims.  Thus, the Houston COA reversed the denial of the Texas Anti-Slapp and sent the case back for a determination of attorneys’ fees and sanctions.

These cases serve as a reminder of the importance of understanding how the TCPA works prior to filing any suit potentially covered by the statute.

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The Texas Anti-Slapp and the World's Most Expensive Gym Membership?

Smith Robertson, L.L.P. v. Hamlin, CA NO. 03-18-00754-CV (Austin COA July 11, 2019) stands for the proposition that failure to understand the TCPA can create a serious, self-inflicted wound. 

An Arizona judgment was entered against one of the plaintiffs in 1999 for failure to pay dues on a gym membership (in the amount of $1272.08).  Because the plaintiff moved to Texas a law firm was hired to domesticate/record the judgment in 2014.  In 2016, the plaintiffs went to sell their home, discovered the judgment and sent a letter demanding a release of the lien. 

The lien was subsequently voluntarily released in March 2017. 

In May 2018, plaintiffs went on the offensive filing  CPRC 12 and DTPA claims seeking over $80,000 in damages and attorneys’ fees against the law firm for fraudulent domestication of the judgment. 

Predictably, the law firm filed a Texas Anti-Slapp based on Right to Petition (i.e. the Arizona proceeding that created the judgment and the Texas proceeding for domestication).  The MTD was denied by operation of law (failure to rule).

The Austin COA determined the TCPA applied under RTP (Step 1), assumed plaintiffs met their burden on all elements (Step 2) and immediately jumped to attorney immunity as a valid defense to the claims (Step 3)  See Cantey Hanger, LLP v. Byrd, 467 S.W. 3d 477  (Tex. 2015). Because plaintiffs could not overcome the attorney immunity afforded against non-clients the Austin COA reversed the denial of the Texas Anti-Slapp.

But even worse, the Austin COA also remanded for a determination of fees/sanctions. 

Given an undoubtedly very unhappy law firm took this up to the Austin COA, this might be the most expensive gym membership in the history of the world.

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Insomnia and the Construction of an Order Denying an Anti-Slapp Appeal.

My apologies to my readers for my absence but it’s the end of little league baseball season. Sadly, this weekend is our final tournament as a 13 AA team, so it’s big boy baseball (full on 60/90 bases) after this Tuesday. I’ll have more time to dork out on the TCPA the rest of the summer.

My insomnia was in high gear so I’m working through about twenty Texas Anti-Slapp opinions. I’ve read them all to make sure nothing particularly ground breaking has occurred. I don’t post on everyone because not all of them tread new ground.

This is a topic I’ve meant to write for a few weeks, and could apply to any case.

In Callison v. C&C Personell, CA NO. 09-19-00014-CV (Beaumont COA July 2019), a Texas Anti-Slapp targeting a wrongful use of trade secrets claim was denied by operation of law (failure to rule within 30 days).  This is a garden variety employee leaves her former job, allegedly takes  and uses information to compete, and gets sued on a misappropriation of trade secrets claim type case.

 Two things make it somewhat unusual.

First, the plaintiff tried to SLAPP proof the petition by studiously avoiding the word “communication” or inferences that “communications” occurred in the misappropriation of the trade secrets.  The Beaumont COA pierced through this tactic to determine that to use the trade secrets the movant had to  communicate with someone (i.e. customers). Because this use implicated communications concerning goods or services in the marketplace it triggered the Right of Free Speech protections. 

 Second, and in a move I think we will see more COAs adopting, the Beaumont COA went straight to the commercial speech exemption (“CSE”) and did not even address whether the non-movant established the elements of its claim or whether the movant established a valid affirmative defense.

Which leads to the real point of this blog post.

 The reason I consider the Texas Anti-Slapp to have 3 ½ steps is purely from an efficiency standpoint.

https://www.antislapptexas.com/forlawyers

if the trial court determines Step 1 (the TCPA does apply) the next logical consideration is does the CSE apply (what I call the 1 1/2 step).  If the CSE applies there is no reason to examine Step 2 (did the non-movant meet their evidentiary burden) or Step 3 (did the movant establish their burden on a valid defense).   This how the Beaumont COA evaluated the issues: Step 1 and then Step 1 ½ — case over.

 However, in practice, this is a risky gambit for a non-movant fighting a Texas Anti-Slapp, depending on the issues in play. If the trial court stops at Step 1 ½ by finding that the CSE applies, but the COA decides it does not, the case is coming back down for evaluation of Steps 3 and 4.

And then you get another appeal.

Practitioners (and possibly trial courts) should consider constructing a TCPA denial order that gives the COA optionality to uphold a denial of a Texas Anti-Slapp MTD, and prevent a scenario where the COA reverses on one of the steps, but sends the case back to the trial court for further determination and another potential appeal. 

 The construction of such an order, assuming the facts of the case (obviously), would look something like this: 

 “The Court having considered the Anti-Slapp MTD, Response, any Reply, and . . . DENIES the MTD for the following reasons:  (1) the TCPA does not apply to the claims at issue; (2) the Court further considered and determined the non-movant met its burden as to the application of the CSE to the claims at issue; (3) the Court further considered and determined the non-movant met its burden as to each element of the challenged claim; and (4) the Court further considered and determined that no valid defense barred the challenged claims.

With proper explanation to the trial court, it should be amenable to such construction to avoid multiple appeals.

And for those that wonder why it’s 3½ steps, I think of the TCPA as the “Texas Two-Step” dance. A complicated (at least for me) dance I was never very good at and always wanted to end quickly. Unless you are in the Dallas COA, step 1 ½ is the quickest way to end the dance.

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Two More Defamation Lawsuits Eat the Backhand of the Texas Anti-Slapp

Regardless of the changes coming on Sept. 1, 2019 when HB 2730 goes into effect, the Texas Anti-Slapp will continue to serve as an effective deterrent to those unwisely retaliating against individuals speaking out on matters of public concern (whatever the Court’s decide that means over the next two years).

For now, we have Baumgart v. Archer, Ca. No. 01-18-002980-CV (Houston COA June 27, 2019) and Day v. Federation of State Medical Boards of the United States, Inc., Ca. No. 04-18-00605-CV (San Antonio COA June 26, 2019) as object lessons.

In Baumgart, not only did plaintiff lose the defamation suit via Texas Anti-Slapp dismissal, but was hit with $130,000 in sanctions. The Houston COA rejected a defamation by implication assertion, along with constitutional challenges related to the denial of discovery and right to jury trial (because it was not raised below).

In Day, a defamation and tortious interference with prospective business relations, the plaintiff also lost via Texas Anti-Slapp dismissal, and was hit with $83,292.50 in attorneys’ fees. The plaintiff not only failed to establish a false statement, but the alleged defamatory statement was substantially true.

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With the Texas Supreme Court's Refusal to Review Dyer, The Tea Leaves are Getting Clearer on the Fate of Grant v. Pivot Tech.

Readers of this blog know that the Dallas Court of Appeals has taken a strict view of the application of “Right of Association,” repeatedly denying appeals where the ROA application is little more than a private business dispute.

https://www.antislapptexas.com/blog/2019/3/9/bam-the-dallas-court-of-appeals-comes-out-with-its-first-substantive-opinion-on-the-texas-anti-slapp

Dyer was a reaffirmation of Coleman I, and one of the most recent rejections of an expansive ROA came at the beginning of June in Erdner.

https://www.antislapptexas.com/blog/2019/6/3/another-denial-of-a-right-of-association-texas-anti-slapp-motion-but-this-one-with-a-concurrence-and-a-dissent

Today (June 28, 2019), the Texas Supreme Court declined to review Dyer, meaning the Dallas COA’s rejection of the Austin COA’s expansive interpretation of ROA is effectively locked in (at least for the Fifth District) for now.

It is hard to read this any other way than the Texas Supreme Court intends to limit the expansion of ROA.

https://www.antislapptexas.com/blog/2019/6/3/ch-ch-ch-ch-changes-double-whammy-for-the-texas-anti-slapp-from-gov-abbott-and-the-texas-supreme-court

Practitioners should note that in both Kawcak and Dyer, the respondents waived a response brief to the petition to review (a gutsy call), and the TSC quickly denied both petitions.

A game changing opinion is coming on ROA, and my prediction is we see it around the turn of 2020.

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Time to Start Swearing in Witnesses to Testify before the Courts of Appeals During Appeals of Texas Anti-Slapp Motions.

So during the Q&A session of my CLE on Texas Anti-Slapp someone asked me if I had seen the GeoMet opinion that the Texas Supreme Court just released (as in this a.m. on June 14).

While I had not, I did watch the oral argument a few months back and I expected the result, but not footnote 2.

This one takes a little explaining.

The appeal mechanism (Tex. Civ. Prac. & Rem. Code 51.014(b)) for Texas Anti-Slapp denials “stays all other proceedings in the trial court pending resolution of that appeal.” Period, Stop.

Given how the TSC interprets statutes, it was not a shock that they issued In re. Geomet Recycling, LLC, CA NO. 18-0443 (Tex. June 14, 2019), which rejected the argument that a COA is authorized to lift the stay to allow the trial court to conduct a hearing on a temporary injunction and motion for contempt.

Watching the oral argument back on March 12, 2019, the tea leaves were pretty easy to read.

But what makes this blog worthy (other than the obvious) is FN 2 and the discussion of using TRAP 29.3 to have the COA enlist the trial court to conduct a hearing on an injunction issue. Presumably, the COA would use the trial courts findings and recommendations to make the decision (i.e contempt or create at temporary injunction). Thus, the proceeding is not in the “trial court” but in the “court of appeals,” avoiding the trial court stay under 51.014(b). This issue was not tested in Geomet, but observed by the TSC as a possibility.

Alternatively, the COA could swear in witnesses and hold their own hearing.

This situation is really a unicorn, and unlikely to rear its head. But never say never to the Texas Anti-Slapp.

Finally, if you were to look at Congressman Burrows’ Anti-Slapp bill (4575), someone fiendishly smart tried to get the Texas legislature to remove the Texas Anti-Slapp from a 51.014(b) stay.

https://www.antislapptexas.com/blog/2019/3/13/the-future-of-the-texas-anti-slapp-is-here

Said person might have even lobbied for this little nuanced change to make it into HB 6370, and thus avoid future Geomet situations.

Sadly, some of the best ideas are missed.

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What do Llamas, Lauten, and Les have in Common with the Texas Anti-Slapp?

Come find out this Friday as I give a speech on the Texas Anti-Slapp, including covering some of the significant changes that will take affect on September 1, 2019!

Backhanded in Texas: How the Texas Anti-SLAPP Statute May Only Sting

June 14, 2019

Belo Mansion
12:00 p.m.
Dallas, Texas

Sean Lemoine
Wick Phillips Gould & Martin, LLP
www.wickphillips.com
www.antislapptexas.com

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This Texas Anti-Slapp Battle is Nothing to Squawk About!

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Some blog posts just write themselves, so I present to you Belcher v. King and Kirwan, NO. 03-19-00222-CV (Austin COA).

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=b11a5e7c-a177-4110-9162-b27f493609fa&coa=coa03&DT=Order&MediaID=589e9064-a124-4c8f-9274-3d21ceee5e46

This riveting central Texas battle will truly add new meaning to “chickens coming home to roost.” Whether the Austin COA will cry feast of “fowl” on the Texas Anti-Slapp issues remains to be seen, but I will them set the stage with a little background from this long running, henpecked dispute.

The Belchers and Gearys are next-door neighbors on Blue Ridge Drive in the Cliffs of Woodlake subdivision located in Bell County. The parties' dispute commenced when the Belchers bought a flock of chicken hens that they kept in their backyard.  The Belchers asserted that their college-age daughter, Kelsey, suffered periodic spells of depression. At Kelsey's request, they purchased the chickens “for medical reasons.” They claimed that the presence of the hens seemed to have a soothing effect on their daughter's condition. After spending time with the chickens, Kelsey “appeared more active, slept less erratically and socialized more often.” The Gearys and others in the subdivision, perhaps with ruffled feathers, did not welcome the advent of the chickens. Beginning in February 2012, through the Association, they notified the Belchers that keeping chickens in the backyard was in violation of paragraph 12 of the restrictive covenants governing the subdivision.

Belcher v. Geary Family Tr., 03-16-00502-CV, 2018 WL 828853, at *1 (Tex. App.—Austin Feb. 7, 2018, no pet.).

The TCPA just arose in the continuing dust up between the Belchers and the Woodlake Property Owners Association (“Woodlake POA”). The Belchers added King and Kirwan (apparently a couple of big birds in the Woodlake POA). Apparently, being added to the Belcher’s lawsuit really got King and Kirwan’s pluck up, so they brought counterclaims for defamation and a Motion for Sanctions against the Belchers.

But you should never count your chickens before they hatch in Texas litigation, because the Belchers responded with a Texas Anti-Slapp motion. The briefing is fascinating, including a party wearing eye glasses with a hidden video camera, an interaction that almost lead to a human cock fight, and the existential debate of the difference between 2 and 10 chickens.

Pro chicken brief is here:

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=bdd1b817-2498-4fa8-b650-fe12a8289c2c&coa=coa03&DT=Brief&MediaID=84b54959-5b59-4075-98fd-d9e83224664e

Anti-chicken brief is here:

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=d64f7b1e-1bdd-435b-b33c-04e66fd80e87&coa=coa03&DT=Brief&MediaID=a333210a-c229-4b2b-8cd0-76f8ed970075

Having read the first round of briefing, I don’t see a scenario where the Austin COA can render a decision that will put a chicken in every litigant’s pot. Undoubtedly, the loser will be madder than a wet hen.

But have no fear, when the Austin COA renders its opinion, like the country rooster at dawn, you will hear about it first from www.antislapptexas.com

Backhanded in Texas: How the Anti-SLAPP Statute May Only Sting - June 14, 2019 Noon at the Belo in Dallas, Texas

On June 14, 2019, I’ll be discussing the Texas Anti-Slapp while also figuring out ways to turn Brian Lauten’s face red http://www.brianlauten.com/brian-patrick-lauten.html

(Fun fact, he’s the one who recommended for the gig).

Kick off is at noon at the Below - guaranteed to be awesome for all in attendance but one person.

http://www.dallasbar.org/event/cle-trial-skills-section-8

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Does the Texas Anti-Slapp Protect a Billion Dollar Medicaid Insurance Provider for Denial of Payment of Healthcare Services? It's in the Hands of the Austin Court of Appeals.

Props to my wife for reminding me about the case of Linda Badawo v. Superior Healthplan, Inc. and William Brendle Glomb, MD, (pending in the 53rd District Court, Travis County, Texas).

The Dallas Morning News has reported extensively about the terrible circumstances in which Superior refused to pay for round the clock nursing care for a foster baby, leading to severe brain damage when the baby pulled out his breathing tube and no nurse was around. Allegedly, the basis of the denial of care was to save $500.00 a day.

https://www.dallasnews.com/business/health-care/2019/05/22/giant-insurance-company-argues-brain-damaged-toddler-mom-stifling-freedom-ofspeech

His mother sued, bringing claims that included fraud, negligence, breach of fiduciary duty, and intentional infliction of emotional distress.

Superior and Dr. Glomb filed a Texas Anti-Slapp against arguing the claims related to RFS, ROA, and RTP. Here is the guts of their argument.

Appellees’ Claims are premised on communications and statements Superior or Dr. Glomb made, or allegedly made, on matters of public concern—namely, the medical necessity of government-funded Medicaid benefits requested by Ms. Badawo. Suppl. CR 3-19; CR 61-79, 171, 198; See Lippincott, 462 S.W.3d at 510; see also Abbott, 545 S.W.3d at 63–64. Because these communications are protected by Appellants’ constitutional right to “petition, speak freely, associate freely,” the Trial Court erred by denying Appellants’ TCPA motion to dismiss. See TEX. CIV. PRAC. & REM. CODE § 27.002.

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=c8390de1-5fd3-47f6-812e-02767f9c5b56&coa=coa03&DT=Brief&MediaID=ad06e4f4-12a6-44f4-a877-dc81d0f2db44

Quoting from the DMN article, Superior’s attorney argued that allowing the case to proceed “"would have a chilling impact" on Superior, one of more than a dozen companies that Texas pays $22 billion a year to provide health benefits to millions of extremely poor, disabled and elderly people. “

Let’s see how the Austin COA responds to that policy argument as this one as it is now submitted for decision . . .

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Another Denial of a “Right of Association” Texas Anti-Slapp Motion, but This One With a “Concurrence” and a Dissent.

As readers know, the Dallas COA is consistently rejecting ROA Texas Anti-Slapp Motions that are little more than private business disputes.  This is a conclusion the Dallas COA reached in Coleman I, and was not addressed by the Texas Supreme Court in Coleman II.  See ExxonMobil Pipeline Co. v. Coleman, 464 S.W.3d 841, 847 (Tex. App.—Dallas 2015) (Coleman I), rev’d on other grounds, Coleman II, 512 S.W.3d at 900–01 (Tex. 2017).

 In Erdner v. Highland Park Emergency Center, LLC, No. 05-18-00654-CV, No. 05-18-00654-CV (May 21, 2019), the Dallas COA again rejected the expansion of ROA, this time the causes of action unsuccessfully Anti-Slapped were breach of fiduciary duty and aiding and abetting fiduciary duty.  [The Dallas COA also rejected that the “right of free speech” but I’m only going to focus on ROA.].

 The underlying claims deserve a brief discussion.  Plaintiff Highland Park Emergency Center, LLC (“HPEC”) HPEC’s is an entity that operates free standing emergency rooms (the “FSERs”).  HPEC’s manager allegedly violated his fiduciary duties by utilizing information sent to HPEC (that only he had access to) about starting an FSER in Fort Worth without disclosing the opportunity to HPEC’s other members. The manager put together another group of investors to create an entity that opened a FSER in Fort Worth and elsewhere, ultimately resulting in HPEC suing the manger for breach of fiduciary duty and the entity for aiding and abetting.

 Consistent with Coleman I, the Dallas COA determined private communications do not trigger TCPA protections. 

 What makes Erdner blog worthy (albeit pretty much any Texas Anti-Slapp opinion meets this low threshold) is the concurrence (on ROA) and dissent (on RFS) by Justice Whitehill:

 We erred in Coleman by adding an element to the statutory definition of exercise of the right of association. We lack constitutional authority to amend statutes and erred by doing so, no matter how much we disagree with what the legislature did.  As the supreme court said when it corrected our similar error construing the TCPA’s free speech prong, “[a] court may not judicially amend a statute by adding words that are not contained in the language of the statute.” Coleman, 512 S.W.3d at 900 (internal quotations omitted). But we cannot correct our error unless and until we revisit the issue en banc or a higher authority changes the law. MobileVision Imaging Servs., L.L.C. v. LifeCare Hosps. of N. Tex., L.P., 260 S.W.3d 561, 566 (Tex. App.—Dallas 2008, no pet.). Accordingly, I concur in the majority’s holding regarding the right of association. 

There is no further discussion as to the Coleman I error on ROA, perhaps something is brewing that will define the contours of Justice Whitehill’s argument.  Until the Texas Supreme Court weighs in on ROA (or the Dallas COA revisits the issue en banc) expect to see more concurrences on ROA from Justice Whitehill.

 Practitioner’s Note:  the majorities’ analysis and Justice Whitehill’s dissent on RFS are nuanced and expect to see this type of intricacy in the future. 

Consistent Readers’ Note: I drafted this one before the breaking news about Grant v. Pivot Tech getting full briefing from the Texas Supreme Court. Given that decision, watch to see what the TSC does with cases from the Dallas COA like Dyer.

https://www.antislapptexas.com/blog/2019/3/9/bam-the-dallas-court-of-appeals-comes-out-with-its-first-substantive-opinion-on-the-texas-anti-slapp

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Ch-ch-ch-ch-changes - Double Whammy for The Texas Anti-Slapp from Gov. Abbott and the Texas Supreme Court

On June 2, 2019, Gov. Abbott signed HB 2730. It will become law on September 1, 2019 (and does not apply retroactively).

While this may be the death knell for my little blog, some of the changes are certainly positive. I’ll be discussing some of the changes over the coming months.

https://capitol.texas.gov/BillLookup/BillStages.aspx?LegSess=86R&Bill=HB2730

https://capitol.texas.gov/tlodocs/86R/billtext/pdf/HB02730S.pdf#navpanes=0

On May 24, 2019, I posited the question of whether the Texas Supreme Court intended to weigh in on Right of Association by taking up the Grant v. Pivot Tech case.

https://www.antislapptexas.com/blog/2019/5/24/is-the-texas-supreme-court-planning-on-addressing-right-of-association-in-the-grant-pivot-case

Well wonder no more — The TSC has requested full briefing with the final reply brief due on August 6, 2019.

While I thought there was a risk the TSC might not weigh in given the legislative changes coming, worry no longer.

So at least there will be a few updates for this little blog heading into the end of 2019.

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Texas Anti-Slapp Motions go 0-3 in the Houston Court of Appeals on May 30, 2019.

While the Dallas COA is currently taking a wrecking ball to Texas Anti-Slapp Motions, the Houston COA is getting in on the action, affirming the denial of three Texas Anti-Slapp motions (all on May 30, 2019).

 Most notable is Hughes v. Giammannco,  which does an in-depth analysis of what the TCPA does not apply to Rule 202 Petitions.  See No. 01-18-00771-CV, 2019 WL 2292990  (Houston COA  May 30, 2019).  This puts the 1st District squarely in conflict with the Austin and Fort Worth COAs. 

I wrote about the Houston COA coming out against the TCPA covering 202 Petitions a few weeks ago.

 https://www.antislapptexas.com/blog/2019/5/11/application-of-texas-anti-slapp-to-tex-r-civ-p-202-petition-called-into-question

Hughes does a deep dive into the statutory language and explains why the COA thinks 202s do not trigger the TCPA. Worth a read if you are facing a 202 Anti-Slapp.

 North Cypress Medical Center Operating Co. GP, LLC v. Norvil, followed the Tyler COA in determining that hospital lien disputes are exempted from the Texas Anti-Slapp under the commercial speech exemption.  See NO. 01-18-00582-CV, 2019 WL 2292630 (Houston COA May 30, 2019).

 http://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=0cfe3c1a-8943-4271-af2f-0909b69598da&MediaID=e5444d67-57bb-4f35-bdd6-78c87e871ce3&coa=%22%20+%20this.CurrentWebState.CurrentCourt%20+%20@%22&DT=Opinion

 In re. Estate of Mary Olive Hull Calkins, determined that filing a Texas Anti-Slapp Motion against a Motion to Compel is not covered by the TCPA.  See 2019 WL 2292985, NO. 01-18-00160-CV (Houston COA May 30, 2019).

 http://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=61c42704-6da4-473c-86ed-c7ae5015893b&MediaID=f1dcf363-470f-467b-8195-d8dc56d6baeb&coa=%22%20+%20this.CurrentWebState.CurrentCourt%20+%20@%22&DT=Opinion

Now I’m headed to Houston to watch my favorite 13AA baseball team.

Geaux Texas Knights!

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Is the Texas Supreme Court Planning on Addressing Right of Association in the Grant v. Pivot case?

Anti-Slapp practitioners know that Elite Auto Body LLC v. Autocraft Bodywerks, Inc., out the Austin COA, is the case that opened the flood gates for the expansive application of the Texas Anti-Slapp. (520 S.W.3d 191 (Tex. App.—Austin 2017, pet. dism'd)). Because the appeal was ultimately dismissed the Texas Supreme Court never got to weigh in on the Austin COA’s interpretation of “right of association.”

Two weeks ago I noted that the TSC passed on the opportunity to weigh in on Kawcak v. Antero Resources Corp Kawcak v. Antero Resources Corp (Fort Worth COA), which analyzed right of association.

https://www.antislapptexas.com/blog/2019/5/11/the-texas-supreme-court-issues-a-new-texas-anti-slapp-opinion-but-what-it-didnt-write-about-may-be-more-important

Kawcak clearly had Elite Auto Body in its gun sites:

As we have just telegraphed, our holdings arguably conflict with several opinions from the Austin Court of Appeals. Specifically, the Austin court has held that the TCPA’s right of association encompasses claims for trade-secret misappropriation, conspiracy to misappropriate trade secrets, and tortious interference. See Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 881 (Tex. App.—Austin 2018, pet. filed); Craig v. Tejas Promotions, LLC, 550 S.W.3d 287, 296–97 (Tex. App.—Austin 2018, pet. filed); Elite Auto Body, 520 S.W.3d at 205–06.8 The holdings of the Austin court do not address the definition of “common” and instead focus on the definition of the word “communication.” Though the result of those cases is different than our own, they do not analyze the central question we discuss.

Grant v. Pivot is one of the progeny of Elite Auto Body, and reversed a trial court’s denial of a Texas Anti-Slapp motion. The Austin COA determined that ROA covered business disputes covering, among other claims, breach of fiduciary duty, tortious interference, and conspiracy.

Unlike Elite Auto Body, the appeal of Grant v. Pivot is (at least for now) moving forward. On January 11, 2019, in CA NO. 18-0873 , the TSC requested briefing from the Respondent and the Petition for Review briefing is now complete.

Given the speed in which the TSC denied review of Kawcak, you can certainly read the tea leaves to believe maybe we will finally get the high court’s interpretation of ROA, and the vehicle is Grant v. Pivot.

Maybe the race is on between the TSC and the U.S. Fifth Circuit (which still has not issued an opinion on whether the Texas Anti-Slapp applies in federal court) as to which will shake up the Anti-Slapp landscape first.

Until then, safe travels on this memorial day weekend.

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An Issue of First Impression: Can a Trial Court Reconsider its Anti-Slapp Ruling after Thirty Days Have Passed? The Dallas Court of Appeals says No!

The Dallas COA addressed an issue that I am pretty sure is a matter of first impression in Texas:

Can a trial court reverse its prior grant of a Texas Anti-Slapp motion, more than thirty (30) days after the hearing?

In re Hartley, No. 05-19-00571-CV answered the question in the negative because there is no statutory authority for the trial change its mind.

The underlying facts are straightforward:

  • On Feb. 22, 2019, the trial court granted the defendants Texas Anti-Slapp motion;

  • On March 22, 2019. plaintiffs filed a motion for new trial;

  • On May 6, 2019, the trial court vacated its Order granting the motion, well outside the 30 day window the trial court has to issue a ruling (TCAP § 27.005(a)):; and

  • Defendants filed a motion for writ of mandamus.

On May 24, 2019, the Dallas COA issued a ruling holding that the May 6, 2019 Order was void. While it is well settled (at least in the Dallas COA) that a trial court cannot grant or deny an Anti-Slapp motion outside the 30 day window, the TCPA is silent on the issue of the trial court changing its mind more than after 30 days have run from the hearing.

Relying on prior decisions addressing rulings outside the 30 day window, the COA determined that a trial court cannot reverse a prior grant of a Texas Anti-Slapp order.

Congrats to

Rusty O’Kane https://www.wickphillips.com/professionals/name-search/o/

and

Jeff Hellberg https://www.wickphillips.com/professionals/hellberg-jeffrey/

of Wick Phillips on the victory for our client!

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Texas Anti-Slapp - Strongest Anti-Slapp Statute in the United States No More?

Well sports fans, it appears the Texas Anti-Slapp is destined for some significant changes. HB 2730 passed out of the Senate and is now headed to Gov. Abbott for signature. If signed, the new changes will only apply to cases beginning on Sept. 1, 2019. Once signed, the Courts may see a slow down of cases that might get bogged down in Anti-Slapp battles, with a flood of commercial cases filed on or after September 1.

There are some things to cheer in this bill for Texas practictioners, including:

  • Timing components related to the hearing and filing a response

  • Cleans up the affirmative defense standard

  • Clarifies the evidentiary standard - now it is the same as under a Tex. R. Civ. P. 166a standard

I’ll withhold a more in depth discussion until it’s signed, but there are a significant number of new exemptions, for example Texas Anti-Slapp will not apply to Deceptive Trade Practice claims, lawyer discipline cases, misappropriation, trade secret, or non-compete claims, and common law fraud claims, just to name a few.

Two of the bigger changes in my opinion, are to the definitions of “right of association” and “matter of public concern. As consistent readers know, the Texas Supreme Court has not weighed in on what ROA means, and ROA is where a lot of the expansive application of the Texas Anti-Slapp has occurred.

The new definitions are:

(2)"Exercise of the right of association" means to join together to collectively express, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of public concern.

(7) Matter of public concern" means a statement or activity regarding: (A) public official, public figure, or other person who has drawn substantial public attention due to the person ’s official acts, fame, notoriety, or celebrity; (B) a matter of political, social, or other interest to the community; or (C) a subject of concern to the public

I’m not sold that the COAs or the TSC are going to be wild about defining what is of “interest to the community” or of “concern to the public.” Expect commercial fights to focus on the exemptions going forward, at least with regard to ROA.

But ambiguity is grist for the mill of a Texas Anti-Slapp blogger.

https://capitol.texas.gov/BillLookup/History.aspx?LegSess=86R&Bill=HB2730

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Half-way Through May and Texas Anti-Slapp Motions Go 0 for 5 before the Dallas Court of Appeals.

Readers may recall I raised the question of how changes in the makeup of the Dallas COA would affect Texas Anti-Slapp Motions.

https://www.antislapptexas.com/blog/2019/2/13/how-will-the-texas-anti-slapp-fare-under-the-new-dallas-coa

I blogged about substantive opinions that came out on March 8, 2019

https://www.antislapptexas.com/blog/2019/3/9/bam-the-dallas-court-of-appeals-comes-out-with-its-first-substantive-opinion-on-the-texas-anti-slapp

and April 29, 2019

https://www.antislapptexas.com/blog/2019/4/30/dallas-court-of-appeals-slaps-down-a-texas-anti-slapp-appeal-based-on-the-plaintiffs-communications

Here are three more, and while lawyers are not typically math adept, this math is pretty easy.

On May 1, 2019, in Misko v. Johns, No. 05-18-00487, the Dallas COA upheld the denial of a Texas Anti-Slapp Motion targeted at discovery sanctions.  As an aside, this is the second trip to the Dallas COA on this long running dispute.  Relevant to this opinion, Johns sought discovery abuse sanctions against Misko, which included dismissal of Misko’s claims and attorneys’ fees totaling $147,290.31.  Misko countered with a Texas Anti-Slapp Motion arguing that the discovery abuse sanctions was a “legal action” subject to the TCPA.  The Dallas COA responded succinctly:

  We conclude the definition of “legal action” in the TCPA does not encompass a motion for sanctions alleging discovery abuse by a party that is filed after, and in this case years after, the commencement of litigation. Further, construing the TCPA to apply to such a motion would open the floodgates to serial motions to dismiss during the pendency of litigation based on conduct ancillary to the substantive claims in the case. Accordingly, we affirm the trial court’s denial of Misko’s motion to dismiss

 The takeaway – discovery abuse sanctions do not trigger the Texas Anti-Slapp.

 http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=4936729e-44f2-4acd-b924-00c8714f2abe&coa=coa05&DT=Opinion&MediaID=abef7ed8-ff34-4839-8fd8-a03edb640758

On May 1, 2019, in Stroud v. Clearview, 05-18-00729-CV, the Dallas COA upheld the denial of a Texas Anti-Slapp motion against claims of fraud, breach of fiduciary duty, and breach of a non-solicitation clause.  Stroud, a then former employee of Clearview, asserted that an email she sent to Clearview was an exercise of her right of free speech and raised issues of public concern concerning Clearview’s ability to provide electricity to its consumer.  Through a painstaking analysis, the Dallas COA rejected this contention and upheld the trial court’s denial of Stroud’s Texas Anti-Slapp motion.

 The takeaway is carefully consider whether the claims implicate a matter of public concern.

http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=45715a88-faa4-4778-a1f3-619eadae0b38&coa=coa05&DT=Opinion&MediaID=198f61a0-a1d6-4ca6-965b-c4569281568e

On May 6, 2019, in Vodicka v. Tobolowsky, No. 05-17-00727-CV, the Dallas COA did not rule on the alleged failure of the trial court to set a hearing on defendant’s Texas Anti-Slapp Motion.  Because the defendant adduced no evidence in the record that the trial court “denied setting”  the hearing and defendant did not object to the lack of a timely hearing there was nothing for the COA to review.

 The take away is set your hearing.

 http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=29ce9a20-0697-405d-9c6f-6bc1574246c1&coa=coa05&DT=Opinion&MediaID=f0066a3d-59ee-49f9-81a3-cec23c39e189

On May 15, 2019, in Staff Care, Inc. v. Eskridge Enterprises, LLC, Ca. No. 05-18-00732-CV, upheld the denial of Texas Anti-Slapp motion against Eskridge’s counterclaims of tortious interference and DTPA violations.  The underlying business dispute involved a locum tenems contract where Staff Care provided physicians to Eskridge and Eskridge placed the physicians typically within the Veterans Administration facilities. 

Staff Care argued that complaints it made to Eskridge were (a) the basis of Eskridge’s counterclaims, and (b) protected under right of free speech and right of association.  Meticulously, the Dallas COA parsed through the various communications to conclude that most of them, while mentioning the healthcare industry, were little more than a business dispute.  And because this was simply a business dispute, the tortious interference claim was not protected under right of free speech or right of association.

However, one set of communications by Staff Care, allegedly to physicians in the marketplace, was a communication about Staff Care’s services in the marketplace.  Therefore, those communications (the basis for the DTPA claim), were protected under the Step 1 analysis of the Texas Anti-Slapp. 

But those same set of communications about Staff Care’s services in the marketplace also triggered the “commercial speech exemption” (what I call the Step  1 ½ analysis).  Thus, Staff Care’s Texas Anti-Slapp motion failed.

 For a refresher on the  3 ½ steps  of a Texas Anti-Slapp click on this link.

https://www.antislapptexas.com/forlawyers

For refresher on the “commercial speech exemption, click on this link.

https://www.antislapptexas.com/blog/2019/1/10/texas-supreme-court-2018-year-in-review-part-3-of-5-castleman-and-the-commercial-speech-exemption

 http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=1a8cf4eb-25b0-4d7d-b26c-c0e069638431&coa=coa05&DT=Opinion&MediaID=04abcd87-3bd9-4276-88a5-8198db06eb1c

 On May 16, 2019, in Krasnicki v. Tactical Entertainment, LLC, No. 05-18-00463-CV, the Dallas COA upheld the denial of a Texas Anti-Slapp Motion against claims of fraudulent inducement, DTPA, and negligent misrepresentation.  Krasnicki asserted three communications were protected under Free Speech and Right of Association.  The Dallas COA dispensed with the first two communications because they were not the basis for the claim.  The third communication failed to trigger the TCPA because it was based on a failure to communicate with the plaintiff.

 The take away is that absence of a communication (i.e. claims based on non-disclosure of information) are not protected by the Texas Anti-Slapp.

 http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=edfe6b27-5702-4a49-8065-03fc4a195ffd&coa=coa05&DT=Opinion&MediaID=dac0ad2d-d9ac-46bf-ae5b-6499fb7c6528

(This post was edited on May 17, 2019 at 5:25 p.m. thanks to some loyal readers who reminded me of Stroud and Staff Care, which I had read, but forgot to include).

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Application of Texas Anti-Slapp to Tex. R. Civ. P. 202 Petition Called into Question.

In Cares  v. Fortier, NO. 01-18-00071-CV, 2019 WL 2041325 (Houston COA May 2019) the Houston COA [1st District] held that the Texas Anti-Slapp does not apply to a Tex. R. Civ. P. 202 Petition.  This is the first opinion I am aware of that has reached this decision, and stands in opposition to the Fort Worth COA.  See DeAngelis v. Protective Parents Coal., 556 S.W.3d 836, 849 (Tex. App.—Fort Worth 2018, no pet.).  Neither the Dallas COA nor Texas Supreme Court have addressed the issue. Readers may recall the Texas Supreme Court passed on an opportunity to settle the issue in Glassdoor, Inc., Doe 1, and Doe 2 v. Andra Group, LP, Ca. No. 17-0463. 

https://www.antislapptexas.com/blog/2019/1/26/texas-supreme-court-passes-on-answering-whether

 My suspicion is the Texas Supreme Court will never weigh in on the issue..

Whether a Texas Anti-Slapp Motion can apply to Tex. R. Civ. P. 202 will thus depend on the jurisdiction in which a party elects to file.

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