Three New Opinions on Texas Anti-Slapp, including the Dallas COA finally getting on the board in 2019.

The week of February 25, 2019 was relatively busy for Texas Anti-Slapp opinions, but no new ground was broken.

First up, Judge David Godbey of the US. NDTX weighed in on his view that the Texas Anti-Slapp does not apply in federal court for similar reasons discussed in prior posts. See William Noble Rare Jewels, L.P. v. Sky Global L.L.C. & Ryan Rich, 2019 WL 935954 (NDTX Feb 2019)..

Second, the Tyler COA issued another opinion applying Texas Anti-Slapp to a hospital lien dispute but determining the commercial speech exemption applied. See Keantae Berry v. ETX Successor Tyler F/KA Texas Medical Center, NO. 12-18-00095-CV (Tyler COA Feb. 2019).  This is the second opinion following the same analysis and the second loss for the same hospital trying to use the Texas Anti-Slapp to defeat hospital lien disputes.  ETX Successor Tyler f/k/a East Texas Medical Center v. Terrie Pridgeon, as Guardian of the Person and Estate of Jason C. Dubos, NO. 12-18-00083-CV, 2019 WL 623603 (Tyler COA 2019).

Lastly, the Dallas COA rejected an appeal of the grant of a Texas Anti-Slapp motion dismissing IIED and defamation claims.  See Keisha Pope-Nixon v. Jeanine Howard and Alvin Green, DC-18-02907 (Dallas COA 2019). The trial court had not yet determined the issue of attorneys’ fees when the non-movant filed the appeal.  On a request for briefing from the parties, the non-movant took the position that the trial court’s order resolved the dispute in its entirety and failed to rule on the attorneys’ fees during the thirty (30) day statutory window.  While I did not pull the briefing, my educated guess is the non-movant was trying to argue (or set up an argument for later use) that the attorneys’ fees should be denied based on the lack of a timely ruling.

This is not the first time I’ve seen this argument on the timing of the ruling on attorneys’ fees raised and rejected.  It appears that non-movants are trying to use this as a tactic neutralize potential fee awards.  Nonetheless, the Dallas COA did not take the bait and determined that it lacked jurisdiction because the issue of attorneys’ fees remained outstanding.

Not only has non-movant potentially increased the amount of fees she will ultimately be responsible for, this trip to the COA has caused a further delay in a final resolution (and potentially set up another trip to the Dallas COA, and perhaps beyond).

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How will the Texas Anti-Slapp fare Under the New Dallas COA?

This past November eight new judges (all Democrats) were elected to the Dallas Court of Appeals. While the Dallas COA has yet to issue a Texas Anti-Slapp opinion in 2019, we may have a glimpse of how at least one of the new justices views its application to trade secrets claims. Law 360 reports the following questions from newly elected Justice Ken Molberg:

“Justice Molberg described the TCPA as “a statutory enactment stepping on a constitutional right to be in court,” and questioned how it could possibly apply in a case where Dyer is accused of wrongdoing. “Say I have a case where two thieves conspire to steal someone’s property,” Justice Molberg said. “And then the thieves enjoy the benefit of using the TCPA to shut down the case. That’s what you’re saying to me.”

In 2017, the Austin COA issued Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 2017 WL 1833495, Tex.App. – Austin, May 5, 2017) which dismissed a trade secret misappropriation claim under the Texas Anti-Slapp. Elite Auto Body relied upon ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017), which reversed the Dallas COA’s refusal to apply the Texas Anti-Slapp to an employment dispute case. The Austin COA determined that Coleman stands for the proposition that the broad definitions of the Texas Anti-Slapp covers claims that otherwise would not fall within the typical understanding of constitutional rights. This analysis is consistent with the Texas Supreme Court’s analysis in Youngkin v. Hines, 546 S.W.3d 675 (2018) that the Texas Anti-Slapp is broader than constitutional safeguards. (See my earlier blog post on the TSC 2018 Year in Review).

How the case will turn out remains to be seen. But we may see a dissent or concurrence that joins a growing list of jurists that are issuing opinions( in dissents or concurrences) that request legislative change to the Texas Anti-Slapp.

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And One to Grow On - Updating the 2018 Dallas COA chart to 19 Opinions

A reader emailed me to point out I missed Vodicka v. A.H. Belo Corporation, No. 05-17-00728-CV (Dallas COA 2018), where the Dallas COA upheld the trial court’s dismissal of a defamation claim under the Texas Anti-Slapp. Updated data points and chart below.

UPDATE

The Dallas COA issued nineteen (19) opinions involving Texas Anti-Slapp, one of which was withdrawn and superseded.  Demonstrating the complexity of the statute, the TC’s results were a mixed bag, with TC’s being upheld slightly more than they were reversed.  Two of the opinions were the result of reversals by the TSC, remanding the issue back to the Dallas COA for further determination.

·       In seven  (7) opinions the trial court’s (“TC”) decision was completely upheld.

·       In four (4) opinions the TC was completely reversed. 

·       Six (6) other opinions were either split (upheld in part, reversed in part), did not reach the main issue of whether the Texas Anti-Slapp should have been granted, or were not addressing the merits of a grant or denial of the motion.

 ·       Six (6) opinions dealt with the grant of a Texas Anti-Slapp dismissal  (3 upheld, 2 reversed, and 1 split decision).

·       Six (6) opinions dealt with the denial of a Texas Anti-Slapp dismissal (2 upheld, 2 reversed, and 2 split decisions).

·       Three (3) opinions dealt with attorneys’ fee issues.

·       Two (2) opinions were on remand from the TSC.

·       One (1) dealt with the breadth of discovery.

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How did Trial Court Rulings on the Texas Anti-Slapp do in the Dallas Court of Appeals in 2018?

The Dallas COA issued eighteen (18) opinions involving Texas Anti-Slapp, one of which was withdrawn and superseded.  Demonstrating the complexity of the statute, the TC’s results were a mixed bag, with TC’s being upheld slightly more than they were reversed.  Two of the opinions were the result reversals by the TSC, remanding the issue back to the Dallas COA for further determination.

·       In six  (6) opinions the trial court’s (“TC”) decision was completely upheld. 

·       In four (4) opinions the TC was completely reversed. 

·       Six (6) other opinions were either split (upheld in part, reversed in part), did not reach the main issue of whether the Texas Anti-Slapp should have been granted, or were not addressing the merits of a grant or denial of the motion.

 ·       Five (5) opinions dealt with the grant of a Texas Anti-Slapp dismissal  (2 upheld, 2 reversed, and 1 split decision).

·       Six (6) opinions dealt with the denial of a Texas Anti-Slapp dismissal (2 upheld, 2 reversed, and 2 split decisions).

·       Three (3) opinions dealt with attorneys’ fee issues.

·       Two (2) opinions were on remand from the TSC.

·       One (1) dealt with the breadth of discovery.

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How Long Does it Take to Wind Through the Texas Anti-Slapp Appeal Process? The Starside Case Odyssey.

Adams v. Starside Custom Builders, LLC (547 S.W.3d 890) will be the Fifth (and last) TSC opinion of 2018 that I’ll cover (in a later blog post).  But from a timing perspective it provides a case study on how the Texas Anti-Slapp can extend the life of a dispute.

The lawsuit began on March 20, 2015, was met quickly with a Texas Anti-Slapp motion, which was denied by operation of law (because the trial court did not timely rule) on September 14, 2015.  After a timely filed appeal and briefing, the Dallas COA entered an opinion on June 28, 2016.  The TSC accepted the petition for review and rendered an opinion on April 20, 2018.

In other words, the Texas Anti-Slapp motion created a 15 month span until the Dallas COA ruled, and a 3 year span from filing of the lawsuit until the TSC ruled. That’s 3 years and one month.

And the Starside battle continues as the Dallas COA recently issued an opinion December 7, 2018, in response to the TSC’s opinion.  I’ll leave the excitement of how it came down (at least so far) for your reading pleasure.

 http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9443fd5f-f844-4bbf-acbf-d841a3c080b7&coa=coa05&DT=Opinion&MediaID=ba244be9-17f8-4d64-8dc6-51554826feec

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Timing is Everything in the Texas Anti-Slapp

The Texas Anti-Slapp has specific timing components that a practitioner should strictly follow.  First, you have 60 days to file a motion to dismiss from the date of service.  You can ask to file late, but given the purpose of the statute is create a quick dismissal mechanism, better not to take the risk.  Second, you need to promptly set the hearing and it needs to be heard within 60 days of service of the motion.  Under certain circumstances it can be extended to 90 days, with a maximum of 120 days (but only if the trial court allows a party to conduct discovery).  See §27.003 -004.

In Evelyn Mancilla and Sales Tax International, LLC v. Taxfree Shopping, Ltd, (No. 05-18-00136-CV), the Dallas COA recently upheld the denial of an Anti-Slapp motion targeting a misappropriation of trade secrets claim because it was untimely filed.    Although it did not apply in this case, the Dallas COA also pointed out a pitfall for the unwary, if a plaintiff amends to add new claims or a new party a new Anti-Slapp motion can be filed by the new party or against the new claim.

Not only do you need to understand the timing components to preserve Anti-Slapp rights, amendments to claims or counterclaims can trigger additional Anti-Slapp motions.  Given the liberal amendment rules in Texas state courts (something that is unique to our rules of civil procedure) practitioners need to carefully consider the risks associated with such amendments.

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Texas Supreme Court 2018 Year in Review (Part 1 of 5) S&S Emergency Training

In 2018, the TSC issued five opinions on the Texas Anti-Slapp and I’ll address them in reverse order of issuance over the next week.

In S&S Emergency Training Solutions, Inc. v. Elliot, 2018 WL 6711322  (Tex. Dec. 21, 2018), the TSC sided with the trial court which had denied an Anti-Slapp motion brought by the defendant against plaintiff’s claim for breach of a non-disclosure contract. Reversing the trial court, the Dallas COA determined the plaintiff failed to establish enough facts concerning damages.  Relying on past precedent, the TSC reversed the Dallas COA and reaffirmed that an exact calculation of lost profits is not required to meet the clear and specific standard of prima facie evidence for each element of a claim (here the focus was on damages).  Rather, the amount of evidence necessary must only “support a rational inference that [defendant’s] actions caused [plaintiff] to lose some specific, demonstrable profits.”

As noted in the last post, ten days later the Dallas COA would rely on S&S to revive a dismissed tortious interference claim in Linda Dickens v. Jason C. Webster, P.C,  05-17-00423-CV, 2018 WL 6839568  (Tex. App.—Dallas Dec. 31, 2018, no pet. h.).

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The Dallas Court of Appeals Weighs in on New Year's Eve by Reviving a Tortious Interference Claim Dismissed under the Texas Anti-Slapp

Working hard on New Year’s Eve, the Dallas Court of Appeals issued a Texas Anti-Slapp opinion in Linda Dickens v. Jason C. Webster, P.C,  05-17-00423-CV, 2018 WL 6839568  (Tex. App.—Dallas Dec. 31, 2018, no pet. h.), bringing the December 2018 total for Anti-Slapp opinions up to fourteen.  The Dallas COA reversed the trial court’s dismissal of a tortious interference with contract claim because the counter-plaintiff raised enough facts to meet the clear and specific test under Step 2 of the Texas Anti-Slapp. 

 Notably, the Dickens Opinion references the recent S & S Emergency Training Sols., Inc. v. Elliott, 17-0628, 2018 WL 6711322 (Tex. Dec. 21, 2018) on the issue of the amount of facts/evidence necessary for a claim to survive..