Texas Got SLAPPed and the First Court of Appeals Punted — The First Court of Appeals Declines to Review a Dismissal Pursuant to Texas Citizens Participation Act

August 27, 2015

In recent years, several state legislatures rolled out legislation seeking to outlaw strategic lawsuits against public participation (“SLAPP”). A SLAPP is a lawsuit brought for the purpose of intimidating the opposing party by requiring her to spend excessive amounts on legal fees until she abandons her opposition. Generally, the underlying merits of a SLAPP are weak, but the plaintiff’s objective in bringing the SLAPP is merely to silence her opposition—not necessarily to win the lawsuit. State legislatures across the country are attempting to curtail this practice.

In 2011, the Texas legislature passed its own anti-SLAPP statute called Texas Citizens Participation Act (“TCPA”). Since the passage of the TCPA, Texas courts—largely due to the statute’s ambiguity—have struggled with its interpretation and application. Recently, in Schlumberger Ltd. et al. v. Rutherford, the First Court of Appeals [Houston] was presented with the opportunity to limit the TCPA’s applicability, and instead punted.

The TCPA allows a defendant to file a motion to dismiss the claims asserted against her if the lawsuit “is based on, relates to, or is in response to [her] exercise of the right of free speech, right to petition, or right of association.” The stated purpose of the TCPA is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law…” A TCPA motion must be filed within 60 days after the date of service, and for the victorious TCPA movant, there is a mandatory attorney’s fee award and possibility of an award of sanctions against the plaintiff.

As of late, because the TCPA broadly defines the terms “right of association,” “right of free speech” and “right to petition,” TCPA motions to dismiss have become the motions du joir for quick dismissals of all varieties of cases—even cases not rooted in the protection of constitutional rights or governmental participation. Recently, in Rutherford, the First Court of Appeals [Houston], in declining to limit the TCPA’s scope, made the TCPA motion to dismiss even more attractive.

At the trial court level in Rutherford, Rutherford moved to dismiss all of Schlumberger’s claims pursuant to the TCPA. The trial court partially granted Rutherford’s TCPA motion dismissing some of Schlumberger’s claims. In doing so, the trial court also awarded Rutherford her attorney’s fees and issued sanctions against Schlumberger. As the trial court only partially granted Rutherford’s TCPA motion, the trial court left several of Schlumberger’s claims against Rutherford intact. Even so, Schlumberger appealed the TCPA dismissal.

On appeal, the First Court of Appeals declined to review the TCPA dismissal—as well as the propriety of the award of attorney’s fees and sanctions—on the grounds that such review would be interlocutory (meaning a final judgment has not been rendered). Noting that interlocutory appeals are the exception and not the rule, the First Court of Appeals declined to consider the trial court’s TCPA ruling absent express statutory authority to do so as an interlocutory order.

For now, if a defendant can obtain a TCPA dismissal, this means the dismissal, fee award, and any sanctions issued will stick until there is a final, appealable judgment at the trial court level. Per Rutherford, if only some of the plaintiff’s claims are dismissed pursuant to the TCPA, the remaining claims must be litigated before the TCPA ruling may be appealed.

It is worth noting that many courts disapprove of the use of TCPA motions to address claims not rooted in the protection of constitutional rights or governmental participation. For example, in the protection of free speech, courts have interpreted the TCPA as only applying to communications tantamount to participation in government. However, due to the broad definitions included in the TCPA, the legislature’s intent as to the proper use of the TCPA is unclear.

For now, courts will likely continue to disagree about the TCPA’s proper applicability, while the TCPA will remain a viable option to quickly dismiss a frivolous cause of action concerning the defendant’s “right of association,” “right of free speech” and/or “right to petition”—whatever those terms may ultimately mean.