574 S.W.3d 925
Tex. App.2019Background
- Deepwell sued Aveda and individual appellees alleging misuse of confidential information to recruit employees.
- Appellees filed a Texas Citizens Participation Act (TCPA) motion to dismiss Deepwell’s lawsuit.
- Deepwell filed a written opposition and also filed a "responsive TCPA motion to dismiss" seeking dismissal of appellees’ TCPA motion.
- The trial court granted appellees’ TCPA motion and separately denied Deepwell’s responsive TCPA motion; Deepwell appealed the denial of its responsive motion (interlocutory appeal under §51.014(a)(12)).
- The appeal presents the threshold issue whether a TCPA motion to dismiss itself qualifies as a "legal action" under the TCPA and thus can be subject to a countermotion to dismiss under the Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a TCPA motion to dismiss is a “legal action” under §27.001(6) so that a party may file a responsive/counter-TCPA motion to dismiss it | Deepwell: The catch‑all phrase "or any other judicial pleading or filing that requests legal or equitable relief" is broad enough to include a TCPA motion to dismiss | Appellees: A TCPA motion is not a lawsuit, cause of action, petition, complaint, cross‑claim, or counterclaim and thus is not within the definition of "legal action" | Court: A TCPA motion to dismiss is not a "legal action" under §27.001(6); the TCPA does not authorize a countermotion to dismiss a TCPA motion |
Key Cases Cited
- Paulsen v. Yarrell, 537 S.W.3d 224 (Tex. App.—Houston [1st Dist.] 2017) (holds a TCPA motion to dismiss is not a “legal action” and rejects countermotion under the TCPA)
- Roach v. Ingram, 557 S.W.3d 203 (Tex. App.—Houston [14th Dist.] 2018) (adopts Paulsen’s reasoning; TCPA does not authorize counter‑TCPA motions)
- KBMT Operating Co. v. Toledo, 492 S.W.3d 710 (Tex. 2016) (describes the TCPA as an anti‑SLAPP statute)
- State ex rel. Best v. Harper, 562 S.W.3d 1 (Tex. 2018) (explains scope of TCPA dismissal mechanism)
- R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619 (Tex. 2011) (statutory construction reviewed de novo)
- In re Elliott, 504 S.W.3d 455 (Tex. App.—Austin 2016) (concurring opinion cited for limiting the catch‑all definition to prevent creative repleading)