In 2015, Third Court of Appeals Justice Bob Pemberton, presciently warned that the Texas Citizens Participation Act (TCPA), or the Anti-Strategic Lawsuits Against Public Participation (SLAPP) statute, was “an across-the-board game changer in Texas civil litigation.” Serafine v. Blunt, 466 S.W.3d 352, 365 (Tex. App.—Austin 2015, no pet.) (Pemberton, J., concurring).
The TCPA allows a motion to dismiss a “legal action” that is based on, relates to, or is in response to the party’s exercise of the right to free speech, right to petition, or right of association. Tex. Civ. Prac. & Rem. Code § 27.003(a). A “legal action” is a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim, or any other filing that requests legal or equitable relief. Id. § 27.001(6). The TCPA was designed “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 and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Id. § 27.002.
Increasingly, however, the TCPA is being used by litigants as a sword to combat garden variety pleadings and filings by successfully characterizing them as “legal actions” subject to the TCPA. See e.g., ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (holding that certain internal employer communications regarding employee performance are subject to the TCPA); DeAngelis v. Protective Parents Coal., 556 S.W.3d 836, 849 (Tex. App.—Fort Worth 2018, no pet.) (holding that Rule 202 petitions are subject to the TCPA); Quintanilla v. West, 534 S.W.3d 34, 46 (Tex. App.—San Antonio 2017, pet. granted) (holding that slander of title and fraudulent lien claims are subject to the TCPA); Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 205-06 (Tex. App.—Austin 2017, pet dism’d.) (holding that trade-secret misappropriation claims are subject to the TCPA).
In a case that underscores Justice Pemberton’s concern about the TCPA’s “unintentional consequences,” this list recently expanded to include a motion for sanctions for frivolous pleadings. In Hawxhurst v. Austin Boat Tours, Hawxhurst sued Austin Boat Tours (“ABT”) after Hawxhurst’s boat propeller got entangled inside a make-shift buoy’s dock line. 550 S.W.3d 220, 223 (Tex. App.—Austin 2018, no pet.). In response to Hawxhurst’s suit, alleging negligence and other claims, ABT filed a “counterclaim” under Chapter 9 of the Texas Civil Practice and Remedies Code, alleging that Hawxhurst’s suit was frivolous and seeking sanctions and attorney’s fees. Id. at 224. Hawxhurst filed a motion to dismiss the counterclaim under the TCPA on the grounds that it was filed “solely as a result of [Hawxhurst] exercising his right to petition.” Id. The district court held that ABT’s counterclaim had been mislabeled and was actually a motion for sanctions. Id. On this basis, the district court found that the TCPA did not apply and denied Hawxhurst’s motion to dismiss. Id.
A divided Third Court of Appeals disagreed and reversed. Id. at 233. Regardless of whether ABT’s requested relief was characterized as a counterclaim or motion for sanctions, the majority held that it fell within the definition of “legal action” under the TCPA because it was a “judicial pleading or filing that requests legal or equitable relief.” Id. at 226. ABT argued, among other things, that the TCPA applied only to communications that are analogous to participating in government or related to the public interest. Id. at 228. Acknowledging that the TCPA requires actions regarding the “right of free speech” to be in connection with a matter of public concern, the majority determined that there was no similar requirement for actions regarding the “exercise of the right to petition.” Id. at 228.
In addition to having its claim for sanctions dismissed, ABT was charged with paying Hawxhurst’s attorney’s fees. Citing the Texas Supreme Court’s decision in Sullivan v. Abraham, 488 S.W.3d 294 (Tex. 2016) that upon dismissal under the TCPA an award of reasonable attorney’s fees and expenses is mandatory to the successful party, the court remanded the case to the trial court for further proceedings to determine the amount of such award. Id.
Justice Pemberton filed a dissenting opinion, adding to his prior pleas in Serafine and other cases for TCPA reform. Justice Pemberton lamented that the TCPA no longer maintained the balance between its stated goal to “protect the rights of a person to file meritorious lawsuits” and the rules that permit sanctions for frivolous filings, but instead had turned into a “weapon against weapons.” Id. at 233. Justice Pemberton warned courts not to read “the Act superficially in a mistaken perception of plain-meaning textualism.” Id. Without injecting necessary and logical context, a literal reading of the TCPA would extend to a lawyer’s pet were it “humorously named ‘Lawsuit.’” Id. at 234. Implying that the majority’s holding yielded similar unintended results, Justice Pemberton observed that litigants will now be able to the use the TCPA to defeat relief sought under “[p]reexisting statutes and rules authorizing sanctions for litigation abuse—the same basic goal of the TCPA.” Id. at 235.
Justice Pemberton has been joined by a growing chorus calling for TCPA reform. Until that call is answered, by clear direction from the Supreme Court or by the legislature, litigators need to be aware of the burgeoning number of opinions that threaten to turn the TCPA into an all-purpose “weapon against weapons.” If the Hawxhurst decision is a bellwether, the TCPA may be dangerously close to reducing the available sanctions for frivolous filings to a mere “SLAPP” on the wrist. Caroline Newman Small