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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The Texas Supreme Court Issues A New Texas Anti-Slapp Opinion, But What it Didn't Write About May Be More Important!



On Friday the Texas Supreme Court issued Dallas Morning News, Inc. v. Hall, 17-0637, 2019 WL 2063576 (Tex. May 10, 2019), reversing the Fort Worth COA, and sending the claim back to the trial court to determine the amount of attorneys’ fees, costs, and sanctions the plaintiffs must now pay the DMN.

Hall is a fascinating read that involves allegations of kickbacks, bribery, and possible federal investigations involving Rxpress Pharmacies and Xpress Compounding and its owners.  The plaintiffs, owners of Rxpress, sued the Dallas Morning News over allegations contained in a series of articles about Rxpress and the compounding pharmacy industry.  The gist of the defamation was Rxpress was (a) under federal investigation and (b) committed health care fraud (based on allegations from civil lawsuits involving Rxpress).  Predictably, the DMN filed a Texas Anti-Slapp and plaintiffs responded with   declarations that it was not under federal investigation, including an expert witness on the meaning of the search warrant. 

The TSC rejected plaintiffs’ evidence as inadmissible  on the federal investigation allegation and  determined that the DMN had properly reported on  the allegations of the civil lawsuits.  First Amendment and defamation practitioners  should pay  close attention to the nuances of this case going forward.

The timeline of the case also serves as a reminder of the impact a Texas Anti-Slapp Motion has on a lawsuit and the costs, costs which the plaintiffs now have to pay to the DMN after fighting almost thirty two (32) months.

 Timeline

September 30, 2016                TC denies Texas Anti-Slapp Motion

May 25, 2017                          Fort Worth COA Opinion upholds TC

September 27, 2017    Petition for Review filed

December 6, 2018                   TSC Oral Argument

May 10, 2019                          TSC Opinion (reverses and renders)

But more important than Hall, is the TSC’s denial of review of Kawcak v. Antero Resources Corp. At the end of February I blogged about the importance of Kawcak to “right of association” jurisprudence. The Fort Worth COA went after the expansive application of ROA to conspiracy based claims, taking head on its sister courts in Austin and Houston. I noted then that the Texas Supreme Court has yet to give its interpretation of ROA.

https://www.antislapptexas.com/blog/2019/2/23/fort-worth-coa-2019

Well, we still do not know how the TSC will interpret the ROA. It is curious that they did not accept this Petition given the split in application of the ROA among the lower COAs.

Perhaps the TSC is considering it in some other soon to be released opinion.

Or perhaps the denial is a subtle signal to the other COAs to follow the Fort Worth COAs lead.

THE FOLLOWING PETITIONS FOR REVIEW ARE DENIED

19-0281 JOHN KAWCAK v. ANTERO RESOURCES CORPORATION; from Tarrant County; 2nd Court of Appeals District (02-18-00301-CV, ___ SW3d ___, 02-21-19)

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Dallas Court of Appeals Slaps Down a Texas Anti-Slapp Appeal Based on the Plaintiff's Communications

In Encore Enterprises, Inc. v. Maresh Shetty, Ca. No. 05-18-00511 (Dallas COA 2019), the Dallas COA upheld the trial court’s denial of a Texas Anti-Slapp.

Encore’s CFO, Shetty, objected to certain acts involving a 1031 exchange and tax benefits that he felt could subject himself and Encore to criminal liability. Shortly thereafter Encore terminated Shetty. In turn, Shetty filed a wrongful termination suit in Dallas County.

Encore filed a different suit in Collin County to enjoin Shetty from disclosing confidential information. Shetty responded that his communications concerning Encore’s actions were a “matter of public concern.”

Encore attempted to bootstrap Shetty’s concession that his communications were a matter of public concern into a Texas Anti-Slapp Motion in Dallas County, seeking dismissal of Shetty’ wrongful termination claim.

The Dallas COA made short work of Encore’s appeal, quickly pointing out that Shetty’s communications to Encore are not protected by the Texas Anti-Slapp (in this procedural situation). Rather, Encore had to show that Shetty’s lawsuit pertained to Encore’s communications.

Because it did not, the appeal failed.

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Yogi Berra Makes His First Appearance in the Texas Anti-Slapp Wars as the Fort Worth Court of Appeals Goes Once More Into the Breach on a Scope of Permissible Discovery Opinion.

The Fort Worth COA issued In re SSCP Management, Inc., No. 02-19-00098-CV, 2019 WL 1758502  --- S.W.3d ---- (Ft.  Worth COA 2019), a mandamus opinion on the scope of permissible discovery under the Texas Anti-Slapp.  First, the COA found that good cause existed for discovery in accordance with Tex. Civ. Prac. & Rem. Code §27.006(b).  However, the scope of discovery sought and allowed (by the Trial Court) was enormous, and deserves quoting in full:

 It allows Sutherland fifty-nine requests for production from four of the six Defendants, fifty-eight requests for production from two of the six Defendants, eleven interrogatories from SRS Real Estate, seven interrogatories from SSCP, and at least six four-hour depositions from each of Defendants’ corporate representatives on the original, unmodified forty-three deposition topics prior to the hearing on the TCPA Motions to Dismiss.

Given that there six (6) defendants and ten (10) causes of action, it is not completely surprising as to the size of the requests.  However, the sheer breadth of the topics and the absence of limitation to targeted issues lead the COA to grant mandamus.  While the COA offered some guidance as to what it, and other sister COAs had allowed, it offered no concrete parameters for what would suffice in case of this size and complexity.

Since the COA quoted Yogi Berra at the outset, I’ll close with Yogi (one of my favorite catchers of all time).

As a warning to Texas Anti-Slapp practitioners out there: 

“We made too many wrong mistakes.”  

Quote No. 9 of his 50 greatest.   https://ftw.usatoday.com/2019/03/the-50-greatest-yogi-berra-quotes

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Eastland Court of Appeals Holds There Is No Thing as Texas Anti-Slapp on Texas Anti-Slapp Violence.

In Deepwell Energy Services, LLC v. Aveda Transportation, et al, No. 11-18-00265-CV, (Eastland COA 2019), the Eastland COA joined the 1st and 14th Houston COAs in rejecting the argument that a Texas Anti-Slapp motion triggers a corresponding Texas Anti-Slapp motion. 

 Plaintiff sued the Defendants for use of confidential information to solicit Plaintiff’s employees.  Defendants filed a Texas Anti-Slapp (“Defendants TAS”).  Plaintiff responded with its own Texas Anti-Slapp (“Plaintiff’s Responsive TAS”) arguing that Defendants TAS violated Plaintiff’s Right to Petition pursuant to Tex. Civ. Prac. & Rem. Code §27.001(6) (the “catch all” definition under Right to Petition).  On its face, acceptance of such a theory would create dueling Texas Anti-Slapp motions in every lawsuit in which the statute is invoked. 

 The trial court granted Defendants TAS (for reasons not explained in the opinion) and denied Plaintiff’s Responsive TAS, resulting in Plaintiff filing an appeal.  The Eastland COA adopted the reasoning of Paulsen v. Yarrell, 537 S.W.3d 224, 231–33 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); Roach v. Ingram, 557 S.W.3d 203 (Tex. App.—Houston [14th Dist.] 2018, pet. filed) in rejecting Plaintiff’s theory.

 First, applying statutory interpretation, the COA held that a Texas Anti-Slapp motion does not fall within the “catch all” definition of Right to Petition because it is designed to capture creative repleadings trying to avoid the protections of the statute, as opposed to Texas Anti-Slapp motions.  Second, the COA adopted the concerns of the two Houston COAs that accepting such an interpretation would “ spawn the ‘proliferation of piecemeal or seriatim motions to dismiss.’”

 Until the Texas Supreme Court rules otherwise, at least in the Houston and Eastland regions, there is no such thing as Anti-Slapp on Anti-Slapp violence.

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Guess Whose Back, Back Again? The Texas Supreme Court's Back with a Texas Anti-Slapp Opinion. Tell a Friend.

I’ve been on hiatus for a few weeks. I’ll be posting some new opinions this weekend, but nothing shocking has occurred over the last couple of weeks.

However, yesterday (April 5) the Texas Supreme Court issued West v. Quintanilla, --- S.W.3d ---- (2019) (TSC April 2019). The opinion does not delve into the specifics of whether the Texas Anti-Slapp applied to the dispute, but practitioners should focus on on the footnotes, in particular, instruction from the Court to focus on the pleadings for establishing clear and specific evidence of the challenged cause of action (Step 2 for those that follow this blog).

Short version of the underlying facts: the case is a contract interpretation dispute between two individuals. Defendant filed liens against Plaintiff’s real property. Plaintiff sued for slander of title to remove the liens, breach of contract, declaratory judgment, etc.

Defendant filled a Texas Anti-Slapp based on Free Speech and Right to Petition (lien challenges trigger right to petition - although the TSC does not delve into that issue):.

  • TC denied Anti-Slapp.

  • COA reversed applying the substantive “parole evidence” rule.

  • TSC reversed the COA and remanded to consider other legal and evidentiary points.

    • The reversal all turned on an analysis of the parole evidence rule..

Here is the footnote quote from the TSC.

The TCPA directs us to “consider the pleadings and any supporting and opposing affidavits” in “determining whether the plaintiff’s claim should be dismissed.” In re Lipsky, 460 S.W.3d 579, 587 (Tex. 2015) (citing TEX. CIV. PRAC. & REM. CODE § 27.006(a) ). We have recently observed that the pleadings are “the best and all-sufficient evidence of the nature of the action.” Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (quoting Stockyards Nat’l Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302 (Tex. Comm’n App.) ); see id. at 468 (holding that movant established application of the Act “[b]y relying on the language used in the ... pleadings”).

 

The takeaway - whether presenting or defending a Texas Anti-Slapp, focus on the factual allegations of the pleadings.

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Media Groups Come Out Swinging Against Changes to the Texas Anti-Slapp

With three Texas House Bills advocating changes to the Texas Anti-Slapp the full court press on legislators is on. https://www.antislapptexas.com/blog/2019/3/13/the-future-of-the-texas-anti-slapp-is-here

Anyone that follows this blog knows that attempting to pigeon hole the Texas Anti-Slapp into a David v. Goliath is missing the breadth in which the statute is being applied. Often times it is Goliath that is swinging the Texas Anti-Slapp hammer down onto David. There is a reason why so many COA opinions are asking for changes to the statute. What those changes may end up, and whether they resolve the criticism remain to be seen. Until then, we eagerly await the next clarifying opinion from the Texas Supreme Court.

Here are just a few articles being written (which all focus on HB 2730).

https://www.rcfp.org/new-legislation-would-imperil-texas-anti-slapp-law/

https://texasmonitor.org/heavyweight-lobby-group-tries-again-to-reduce-power-of-states-anti-slapp-law/

https://www.lubbockonline.com/news/20190307/our-view-legislature-should-refrain-from-weakening-anti-slapp-law

http://www.hillcountrynews.com/stories/free-speech-publics-right-to-know-under-attack-in-texas,79635

https://www.statesman.com/news/20190313/opponents-of-frivolous-lawsuits-back-bill-making-it-harder-to-dismiss-them

https://www.reporternews.com/story/opinion/editorials/2019/03/16/texans-right-know-and-speak-under-attack/3177754002/

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A Pair of Opinions from the Houston COA Serve as a Reminder - Timing is Everything Under the Texas Anti-Slapp

Montiel v. Eduardo, 2019 WL 1186695 (Houston COA 2019) serves as a reminder to properly calendar and pursue interlocutory appellate remedies under the Texas Anti-Slapp.  The movant properly moved for dismissal but the Court did not rule within 30 days after the hearing.  Tex. Civ. Prac. & Rem. Code §27.008(a).  This denial by operation of law triggers the 20 day deadline to file an appeal under TRAP 26.1(b).  Movant did not appeal within the 20 day deadline and the Houston COA dismissed the appeal as untimely.  

 Skidmore v. Gremillion & Co, 2019 WL 1119401 (Houston COA 2019) confirms that a voluntary appearance (in this instance it was made in the course of disputing a temporary restraining order) starts the 60 day trigger to file a Texas Anti-Slapp.  Tex. Civ. Prac.& Rem. Code § 27.003(b).  The movants made general appearances but were not served with citation.  Applying Tex. R. Civ. P. 120, the Houston COA determined that within the context of the TCPA, the clock runs when the general appearance is made, not when the movants later decide to file their answer. Therefore, the Texas Anti-Slapp motions were untimely.

 Just a reminder - calendar often, early, and err on the side of caution if you want to maintain the viability of a Texas Anti-Slapp motion.

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