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TCPA Cases after the 2019 Amendments
Fourth Court Update
By Justice Luz Elena D. Chapa
Despite the challenges of the pandemic, the Fourth Court of Appeals issued 212 opinions in criminal cases and 408 opinions in civil cases in the last fiscal year, including three cases for which mandate has issued involving the 2019 amendments to the Texas Citizens Participation Act (TCPA).
The TCPA provides a movant with the right to file a motion to dismiss a legal action if the legal action is based on, or is in response to, the exercise of the movant’s right to petition or certain other constitutional rights enumerated in the Act. Tex. Civ. Prac. & Rem. Code §§ 27.003(a), 27.005(b). If the movant carries its burden, the TCPA applies and the burden shifts to the nonmovant to establish by clear and specific evidence a prima facie case for each essential element of the legal action. Id. § 27.005. If the nonmovant carries that burden, the movant can still show it is entitled to dismissal if it establishes an affirmative defense or other grounds entitling it to judgment as a matter of law. Id. We briefly review cases applying this burden-shifting framework under the 2019 amendments to the TCPA, effective September 1, 2019, which narrowed the Act’s application by, among other things, altering definitions and adding additional exemptions.
In Straub v. Pesca Holding LLC, the court considered whether the new common law fraud exemption in the TCPA’s 2019 amendments applied to a party who was added as a defendant on fraud claims after the amendments’ effective date. 621 S.W.3d 299 (Tex. App.—San Antonio 2021, no pet.). The action commenced prior to the 2019 TCPA amendments. After the 2019 amendments became effective, the plaintiff added the new defendant and fraud claims. The newly added defendant moved to dismiss under the TCPA. The trial court denied the TCPA motion, and the new defendant appealed. The parties disagreed about whether the new “common law fraud” exemption—which provides the TCPA does not apply to a legal action for common law fraud—applied because the original lawsuit was filed before the 2019 amendments. The court affirmed the trial court’s denial of the motion and held the newly added defendant, and the fraud claim, were separate and apart from the rest of the already pending lawsuit, and the fraud claims were exempt from the TCPA’s coverage under the TCPA’s 2019 amendments.
In Sinkin & Barretto, P.L.L.C. v. Cohesion Properties, Ltd, the Fourth Court considered whether a TCPA motion was timely filed. No. 04-20-00106-CV, 2021 WL 1649525 (Tex. App.—San Antonio Apr. 28, 2021, no pet.) (mem. op.). The appellant sued the appellee for failure to pay for legal services. After the appellee answered and counterclaimed, it amended and added new counterclaims for wrongful garnishment and theft under the Texas Theft Liability Act. The appellant moved to dismiss the new counterclaims under the TCPA, and the motion was denied by operation of law. Explaining that the TCPA’s sixty-day deadline to file a motion to dismiss is reset when a party files amended pleadings asserting new claims based on new factual allegations, the court held the TCPA motion was timely. After concluding the claims constituted legal actions subject to the TCPA, the court applied the TCPA’s burdenshifting framework and held that the appellant established affirmative defenses to each of the counterclaims, and that the claims should have been dismissed.
Finally, in KB Home Lone Star Inc. v. Gordon, the court addressed whether a motion for $5,000 in monetary sanctions, filed in response to a motion to compel arbitration, was a “legal action” under the 2019 amendments to the TCPA. No. 04-20-00345-CV, 2021 WL 1760318 (Tex. App.—San Antonio May 5, 2021, no pet.) (mem. op.). The plaintiffs sued a home builder, which moved to compel arbitration under the parties’ agreement. In response, the plaintiffs moved for $5,000 in monetary sanctions, arguing the arbitration clause was unenforceable. The defendant filed a TCPA motion to dismiss the sanctions motion, and the TCPA motion was denied by operation of law. Applying the broad definition of “legal action” in section 27.001(6) of the Texas Civil Practice & Remedies Code, the court concluded the sanctions motion was a legal action subject to the TCPA because it was filed in response to an exercise of the right to petition—the motion to compel—and sought legal or monetary relief. After concluding the entire lawsuit was not exempt from the TCPA based on plaintiffs’ DTPA claim in their original petition, the court held the plaintiffs failed to present clear and specific evidence of a prima facie case of each essential element of their motion for sanctions and reversed the denial of the TCPA motion.
There will no doubt be continued litigation regarding the meaning and effect of the 2019 amendments to the TCPA, and attorneys filing or defending cases in the trial courts should keep abreast of new appellate decisions interpreting the statute.
Justice Luz Elena D. Chapa has served on the Fourth Court of Appeals since January 1, 2013. Justice Chapa is a dual graduate of St. Mary’s University and practiced civil trial law with a concentration in products liability for twelve years prior to her election to the court.
