TCPA Allows Recovery of Attorney’s Fees for Even Partial Case Dismissal

Chris Hanslik

September 13, 2017

The statute du jour in Texas remains the Texas Citizens Participation Act. The TCPA allows for early case dismissal if the lawsuit is based upon a party’s exercise of their freedom of speech, freedom of association, and/or freedom to petition.

Aside from the fact that the TCPA allows for early case dismissal of the entire lawsuit, with dismissal, the TCPA movant is entitled to an award of their reasonable attorney’s fees. For more on the TCPA mechanics:

In short, using the TCPA, not only can a case against you be dismissed in its entirety, but if the court dismisses, you can recover your reasonable attorney’s fees.

Since the TCPA’s passage in early 2011, Texas courts have grappled with how to properly apply it. As of late, cases are finally percolating to the Texas Supreme Court for the final word. Recently, the Texas Supreme Court made the TCPA that much more attractive in holding that the mandatory fee award requires an award of attorney’s fees even when the TCPA motion is only granted in part.

In D Magazine v. Rosenthal, D Magazine brought a TCPA motion to dismiss when Rosenthal sued D Magazine for defamation, among other things. The underlying facts of D Magazine v. Rosenthal can be found here. When the trial court dismissed all of Rosenthal’s causes of action except for the defamation claim and declined to award D Magazine its attorney’s fees, the parties commenced an appeal on both issues.

On appeal, one of the questions before the Texas Supreme Court was whether D Magazine was entitled to an award of its attorney’s fees incurred defending against the causes of action that were dismissed by D Magazine’s TCPA motion. The Texas Supreme Court answered in the affirmative.

The TCPA states the trial court is to award reasonable attorney’s fees to the movant if the court dismisses “a legal action” pursuant to a TCPA motion. The TCPA defines “legal action” as “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.” The fee award is mandatory.

Because the TCPA requires that attorney’s fees be awarded for any dismissed “cause of action,” the Texas Supreme Court held that the trial court erred in denying D Magazine’s request for fees. The Texas Supreme Court remanded to the trial court to determine the proper amounts. In short, per the Texas Supreme Court, the dismissal of any cause of action—even if the case is not dismissed in its entirety—means an attorney’s fee award for the TCPA movant.

For lawyers, the D Magazine ruling stays on trend with Texas courts’ tendencies to be strict textualists—reading the statute as literally as possible—when it comes to interpreting the TCPA. For litigants, the D Magazine ruling again highlights how the TCPA can be used as an effective tool to quickly dismiss causes of action that infringe on the constitutional rights of the defendant or counter-defendant, and in doing so, obtain a fee award.