Candice Jackson v. Kell Auto Sales, Inc. and Robert I. Harmon
02-21-00106-CV
| Tex. App. | Nov 18, 2021Background
- In Sept. 2019 Jackson bought a used truck “as is” from Kell Auto; Kell’s salesman Harmon told her the truck would go to Texoma Fleet for inspection/repairs but Jackson took immediate possession.
- Jackson took the truck to Dearmond’s, it failed inspection; Kell told her repairs would be at its expense if she took it to Texoma Fleet and she made but missed that appointment.
- Jackson sued Kell and Harmon (June 2020) for DTPA violations, fraud, and negligent supervision.
- Kell amended its answer to seek declaratory relief (lack of timely DTPA notice) and asserted a breach-of-contract counterclaim alleging Jackson breached the sale condition requiring inspection/repairs at Texoma Fleet.
- Jackson moved to dismiss Kell’s breach-of-contract counterclaim under the TCPA; the trial court denied the motion, and Jackson appealed the denial interlocutorily.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kell’s breach-of-contract counterclaim is “based on or in response to” Jackson’s exercise of the right to petition (TCPA applicability) | Jackson: counterclaim is retaliatory to her suit and therefore falls under the TCPA | Kell: counterclaim arises from pre-suit contract facts (failure to take truck to Texoma Fleet) and is unrelated to her later suit | Court: TCPA does not apply—Kell’s counterclaim concerns pre-suit conduct and is not based on Jackson’s right to petition |
| Whether the timing of Kell’s counterclaim (late in discovery/after MSJ) shows retaliatory motive sufficient to trigger the TCPA | Jackson: late filing and proximity to her summary-judgment motion show improper retaliatory motive | Kell: timing is speculative; the substance of the pleadings shows the claim is contract-based | Court: timing alone is speculative and insufficient to bring the claim within the TCPA |
Key Cases Cited
- S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843 (Tex. 2018) (TCPA procedural/review framework)
- Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018) (standards for considering pleadings and evidence under the TCPA)
- Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017) (pleadings as primary evidence of claim nature)
- Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127 (Tex. 2019) (counterclaims filed in response to litigation may be subject to the TCPA)
- Stockyards Nat’l Bank v. Maples, 95 S.W.2d 1300 (Tex. Comm’n Op. 1936) (historical support for treating pleadings as evidence)