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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The Future of the Texas Anti-Slapp is Here! But What Will it Be?

Here are the 3 House Bills that are proposing amendments to the Texas Anti-Slapp. I’ve also created a table (using my short hand) to show major suggested changes to Texas Anti-Slapp. While there is some overlap between the bills, they all appear to address different perceived weaknesses in the statute.

I have already notice a hard push within the media community to protest any changes that are perceived as weakening the Texas Anti-Slapp.

It will be interesting to see what happens next.

Leach (2730)

https://capitol.texas.gov/tlodocs/86R/billtext/pdf/HB02730I.pdf#navpanes=0

Burrows (4575)

https://capitol.texas.gov/tlodocs/86R/billtext/pdf/HB04575I.pdf#navpanes=0  

Moody (3547)

https://capitol.texas.gov/tlodocs/86R/billtext/pdf/HB03547I.pdf#navpanes=0

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BAM!!!! The Dallas Court of Appeals Comes Out With Its First Substantive Opinion on the Texas Anti-Slapp

Greetings from The Big Texan in Amarillo, where I’ve stopped to have lunch!

Texas Anti-Slapp practitioners need to know the newly constituted Dallas COA has weighed in on Right of Association, siding with the narrow reading issued two weeks ago by the Fort Worth COA.

The trial court denied a Texas Anti-Slapp Motion concerning conspiracy and misappropriation of trade secrets.

There is more to unpack here and I’ll be back to discuss the 3 competing bills that are up for discussion in the Texas legislature.

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TLR Comes Out Swinging Against the Texas Anti-Slapp

TLR has come out swinging about the breadth of the Texas Anti-Slapp, circulating an 18 page paper to Texas legislators. The paper certainly raises important issues, many identified on this blog. What the paper doesn’t address is exactly what those changes would look like.

Until any proposed changes are released, it’s impossible to determine whether they will solve the concerns expressed by courts and practitioners.

https://www.tortreform.com/for-the-record/analyzing-texas-anti-slapp-law/

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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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Will the Atomic Bomb the Ft. Worth COA Just Dropped on Texas Anti-Slapp’s Right of Association Definition be the Tail that Wags the Dog up to the Texas Supreme Court?

Thethird 2019 Texas COA opinion comes from the Fort Worth COA in Kawcak v. Antero Resources Corporation,  Ca. No. 02-18-00301-CV (Ft. Worth COA 2019) and it takes on the issue of whether the Right of Association (“ROA”) definition  under the Texas Anti-Slapp covers conspiracy claims.  To get the references to “atomic bomb” and dog tail references you will have to read the opinion in full.  But it might be the first time those two references are contained in the same COA opinion.

             Readers of this blog know that the Texas Supreme Court has yet to address how far the ROA reaches under the definition of the Texas Anti-Slapp statute, which states: 

 "Exercise of the right of association" means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.

  The Fort Worth COA, in what is truly an issue of first impression, proceeds through a scholarly analysis of the dictionary definition of “common” along with an analysis of other COAs that have addressed “right of association” to determine that:

 “In a matter of first impression, we interpret the word “common” to have a plain meaning that implicates more than the narrow selfish interests of persons who act jointly to commit a tort. Because Kawcak concedes that his interest is shared only by himself and his alleged co-conspirator, we conclude that the TCPA does not apply to this lawsuit and affirm the trial court’s denial of the motion to dismiss.”

  Undoubtedly, this decision will get appealed to the TSC and perhaps we will finally get their take on the scope of ROA.  More importantly, will other COAs adopt this rationale in the interim?

 Subscribe here to be the first to find out!

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Home Developer's $10 Million Tortious Interference Lawsuit Derailed (for now) by Texas Anti-Slapp.

Back in March 2018, a Dallas home builder filed a $10 million lawsuit in Megatel Homes III LLC v. United Development Funding LP et al., case number DC-18-04147, in the 298th District Court of Dallas County. In October, Megatel filed its 3rd Amended Petition (the article below is based on the Original Petition), alleging five separate tortious interference with contract claims (four of which appear to be based on new allegations). The gist of the new claims is that defendants (who are lenders) caused their borrowers to prematurely repay loans, interfering with contracts between the borrowers and Megatel (based on a lack of money).

In December, defendants filed a Texas Anti-Slapp against the four new claims based on a Right to Free Speech theory. Upon request by Megatel, the trial court allowed limited discovery and the hearing is currently set in April 2019 (one year after the lawsuit started).

Regardless of the trial court’s decision, this case appears destined for the Dallas COA (which has yet to issue a 2019 opinion on Texas Anti-Slapp).

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Is a Hospital Lien Dispute Subject to Texas Anti-Slapp - Personal Injury Attorneys Get Guidance from the Tyler COA in 2019.

The Tyler COA is on the board early in 2019 with an interesting opinion that could have ripple effects on 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) provides some insight.

Defendant hospital filed a Texas Anti-Slapp against the plaintiff’s declaratory judgment claim concerning (a) the limitations on the hospital’s lien under Tex. Prop. Code §55.004(d)(1) and; (b) what is the reasonable amounts owed under the statute.  While I do not practice in personal injury law, I assume this dispute must occur fairly regularly in the personal injury context.

First, the Tyler COA determined the hospital filing a lien falls within the Right of Free Speech under the Texas Anti-Slapp.  The Tyler COA did not reach the issue of whether the lien also would trigger protection under the Right of Petition.

Second, the Tyler COA held that both the personal injury exemption (§27.010(c)) and commercial speech exemption (§27.010(b)) applied to exclude plaintiff’s claim from the ambit of the Texas Anti-Slapp.  Because the hospital lien is designed to attach to judgments or settlement of a personal injury action it fell within the personal injury exemption.  Further, because the lien related to medical services provided by the hospital to the underlying injured party it fell within the commercial speech exemption.

Third, the Tyler COA took the somewhat unusual step of addressing whether the plaintiff met her burden concerning the declaratory judgment claim.  Even though the Tyler COA could have stopped its analysis after holding that two exemptions apply, it went on to conclude plaintiff established the elements of a justiciable controversy that will be resolved by the declaration sought.  Interestingly, the Tyler COA did not adopt the hospital’s position that the plaintiff had to establish the amount of the lien that is recoverable (arguably a difficult proposition that early in the dispute) but only that the declaration sought would resolve the controversy.

(As a side note, if the Texas Supreme Court takes the issue up, by addressing whether plaintiff met her elements prevents a delay in sending the case back to the Tyler COA if the TSC disagreed with the exemption analysis).

Lastly, the Tyler COA also rejected the affirmative defenses brought by the hospital because quasi-estoppel and estoppel by contract do address whether a justiciable controversy is resolved by the declaratory judgment claim.

(Another side note – the Tyler COA did point out that the hospital did not argue that the declaration sought would not resolve the controversy.  If the hospital argued that the dispute was already ripened there may have been a different outcome, but that is a debate for another day).

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While We Wait for the Fifth Circuit's Ruling on Whether Texas Anti-Slapp Applies in Federal Court, What is the 2018/19 Trend in Texas Federal District Courts?

One of my first blog posts dealt with application of the Texas Anti-Slapp in the Fifth Circuit. https://www.antislapptexas.com/blog/2018/12/30/the-texas-anti-slapp-and-federal-courts

The Fifth Circuit has at least two cases fully submitted that may finally decide the issue. Until then, a look at twelve 2018/19 District Court opinions shows it depends on the district you are in and the judge you draw as to whether the TCPA will be applied.

Off the cases I located, here’s the score card:

7 times Court’s held the TCPA does not apply in federal court.

3 times the Court held the TCPA did apply.

2 times were effectively no decisions where the Court assumed, without deciding, it applied.

SD TX — 2 apply, 1 no decision, 1 does not apply

ED TX — 3 does not apply,

WD TX — 2 does not apply

ND TX — 1 apply, 1 no decision, 1 does not apply

Make sure to vet your Judge’s opinions on Texas Anti-Slapp, there are clear patterns for certain courts.

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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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