Holden Thomas, Herbert Thomas and Jackson Thomas v. Wm. Charles Bundren & Associates Law Group PLLC, 05-20-00632-CV

Bundren (law firm) sued Oak Mortgage for unpaid fees and, after Oak Mortgage counterclaimed for malpractice and breach of fiduciary duty, Bundren filed a third-party petition alleging the Thomases (father and two sons) negligently caused Oak Mortgage’s injuries and insolvency.
Bundren’s third‑party allegations were derivative of Oak Mortgage’s counterclaim and relied largely on omissions (withholding information) and some pre‑suit conduct during and before the Ameripro litigation.
The Thomases moved to dismiss the third‑party claim under the Texas Citizens Participation Act (TCPA), arguing the claim was based on their petitioning activity in the Ameripro lawsuit and asserting a limitations defense.
Bundren filed a late response and moved for limited discovery; the trial court permitted the late response, denied limited discovery, and denied the TCPA motion, concluding the TCPA did not apply and limitations was not established.
On appeal the Fifth Court of Appeals affirmed: it held the TCPA did not apply because Bundren’s claim was premised on non‑communications (withholding) and mixed protected/unprotected allegations that could not be parsed; the court did not reach the merits of limitations.

Issue	Plaintiff's Argument (Thomases)	Defendant's Argument (Bundren)	Held
Whether the TCPA applies to Bundren’s third‑party petition	Third‑party claim is based on the Thomases’ communications during the Ameripro suit (protected petitioning)	Claim is derivative, premised on omissions and pre‑suit conduct; many allegations are unprotected	TCPA does not apply — withholding is not a TCPA “communication” and pleadings mix protected/unprotected conduct that cannot be parsed
Whether the Thomases established limitations as an affirmative defense entitling them to dismissal	Statute of limitations bars third‑party claim	Limitations not established	Court affirmed trial court’s finding Thomases failed to prove limitations; appellate court did not reach merits because TCPA inapplicable
Whether trial court abused its discretion by denying Bundren’s request for limited discovery under the TCPA	Discovery needed to show damages/causation to oppose TCPA motion	Movants argued discovery unnecessary, response was late and inadequate	Issue rendered moot by disposition; appellate court did not reverse denial
Whether Bundren is entitled to attorneys’ fees for defeating the TCPA motion	Bundren sought fees for prevailing on TCPA motion	Thomases argued Bundren waived by failing to appeal fee denial	Bundren waived appellate review of fee award by not filing a notice of appeal; issue not considered on merits

Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865 (Tex. App.—Dallas 2014) (explaining TCPA is an anti‑SLAPP statute)
Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018) (party may invoke TCPA when legal action is based on exercise of protected right)
Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370 (Tex. 2019) (de novo review applies to TCPA rulings)
Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418 (Tex. App.—Dallas 2019) (legal action must be factually predicated on protected communication to trigger TCPA)
Krasnicki v. Tactical Entm’t, LLC, 583 S.W.3d 279 (Tex. App.—Dallas 2019) (withholding information is not a TCPA “communication”)
Levatino v. Apple Tree Cafe Touring, Inc., 486 S.W.3d 724 (Tex. App.—Dallas 2016) (ordinary meaning of “judicial proceeding” is an actual, pending proceeding)
Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (courts cannot judicially amend statutes)
Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021) (amended pleading restarts TCPA 60‑day period for seeking dismissal)
McDonald Oilfield Operations, LLC v. 3B Inspection, LLC, 582 S.W.3d 732 (Tex. App.—Houston [1st Dist.] 2019) (nonsuit cannot be used to avoid TCPA dismissal)
Esty v. Beal Bank S.S.B., 298 S.W.3d 280 (Tex. App.—Dallas 2009) (standing requires breach of a legal right)
Republic Tavern & Music Hall, LLC v. Laurenzo’s Midtown Mgmt., LLC, 618 S.W.3d 118 (Tex. App.—Houston [14th Dist.] 2020) (only the party who exercised a TCPA‑protected right can seek dismissal)