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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Texas Supreme Court- 2018 Year in Review (Part 3 of 5): Castleman, the Commercial Speech Exemption, and Abatecola.

Castleman v. Internet Money Limited, 546 S.W.3d 684 (Tex. 2018) is arguably the most important decision by the TSC on the Texas Anti-Slapp in 2018 because it provided clarity to the commercial speech exemption. 

 §27.010(b) states “This chapter does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.

 

The TSC established a four factor test that negates a defendant’s ability to bring a Texas Anti-Slapp claim when: “(1) the defendant was primarily engaged in the business of selling or leasing goods, (2) the defendant made the statement or engaged in the conduct on which the claim is based in the defendant's capacity as a seller or lessor of those goods or services, (3) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services the defendant provides, and (4) the intended audience of the statement or conduct were actual or potential customers of the defendant for the kind of goods or services the defendant provides.”

 Abatecola v. 2 Savages Concrete Pumping, LLC, 2018 WL 3118601 (Tex. App.—Houston [14th Dist.] June 26, 2018) (mem. op.) provides an example of the application of the commercial speech exemption.

 http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=fe6d5ad2-48e2-49fc-af43-ffa3edb60983&coa=coa14&DT=Opinion&MediaID=ebcef764-829c-4e67-a867-167a106999d3

 In Abatecola, Defendants were accused of tortiously interfering with plaintiff’s customers.  The Houston COA determined that defendants’ statements to customers were about Defendants’ services (i.e. “buy my services”) to potential customers of such services.  Thus, the exemption applied and Defendants could not use the Texas Anti-Slapp against that particular tortious interference claim.

 The Defendants are trying to appeal but (as of this post) have not filed their brief.  If the Abatecola decision holds, this type tortious interference claim will have a safe harbor from the Texas Anti-Slapp.

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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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