What Happens after the Texas Anti-Slapp Motion is Granted or Denied? It’s Way More Complicated than You Think.

A trial court’s decision to grant or deny the Texas Anti-Slapp Motion creates a cascade effect of different scenarios that can impact the lawsuit for a year or more (and depends on the procedural posture of the case.).  This is a non-exclusive list, and I’ll address them in order of easiest to most complex.

I certainly do not envy trial courts having to work through these issues.

Scenario 1:  The Motion is Granted and all of plaintiff’s claims are dismissed and there are no counterclaims.  A final judgment exists and it’s up to the plaintiff to appeal otherwise plaintiff’s lawsuit is over and they are paying attorneys’ fees plus the sanction.

 Scenario 2:  The Motion is Denied.  Defendant now has to decide whether to take an interlocutory appeal pursuant to Tex. Civ. Prac. & Rem. Code §51.014(a)(12).  https://statutes.capitol.texas.gov/Docs/CP/htm/CP.51.htm

To pull off a timely interlocutory appeal you have to understand the Texas Rules of Appellate Procedure (“TRAP”).

·       TRAP 26.1(b) – 20 days from entry of order for accelerated appeals.

·       TRAP 28.1(a) – interlocutory appeals are accelerated appeals.

So the answer is defendant has 20 days to file a Notice of Appeal from the Denial.

But the real impact of the Notice of Appeal is found in §51.014(b)  - which states

“ . . An interlocutory appeal under Subsection (a)(3), (5), (8), or (12) also stays all other proceedings in the trial court pending resolution of that appeal.”

This means an appeal of a Denial effectively stays the entire case.  The plaintiff cannot move forward and neither can the defendant.

Scenario 3:  Plaintiff brings a defamation claim and tortious interference with contract claim (“TIC”).  The Motion is Granted in Part (dismissing the defamation claim) and Denied in Part (keeping the TIC claim alive).  The plaintiff cannot appeal the grant and will have to wait until a final judgment is entered to try and revive the defamation claim.  The defendant, however, can timely perfect an appeal as to the denial of the motion as to TIC claim.  This circles back to Scenario 2, and the stay that will be in play while the appeal progresses.

Playing that scenario out, the defendant gets a ruling (for instance six months after the Order is entered) from the COA that reverses and renders the trial court’s denial of the TIC claim.  The case goes back to the trial court for an award of attorneys’ fees because the COA has fully resolved the TIC claim. 

But, the plaintiff, having completely lost all their claims at this point, now has to decide whether to appeal the initial grant on the defamation claim.  Otherwise, the Plaintiff is stuck in Scenario 1 and is paying attorneys’ fees as to both the defamation and TIC claims.

Scenario 4:  I’ll call these permutations “Absolute Chaos.”  Take Scenario 3 and throw in a  counterclaim by the defendant (and in most disputes there is a counterclaim of some sort).  Until those counterclaims are fully resolved, the plaintiff does not have a final judgment to appeal.

There are other permutations when you factor in that the COA could deny the appeal on the TIC claim, or if you  have an intervening plaintiff or third party.  You could also have multiple parties bringing Texas Anti-Slapp motions  at different times during the litigation, including motions that need to be heard while a denial is pending before the COA.

Hat tip to my partner Jeff Hellberg https://www.wickphillips.com/professionals/hellberg-jeffrey/ who helped me work through this one.