681 S.W.3d 805
Tex. App.2023Background
- Nathan and Kristi Long divorced; decree awarded Kristi a $3,000,000 promissory note with scheduled payments beginning Jan. 1, 2022.
- After Nathan’s July 5, 2021 arrest (misdemeanor public intoxication), Nathan alleges Kristi sent threatening texts and anonymously mailed packages (mug shots, arrest reports, nightclub photos) to people on a private list, harming his reputation and business.
- Nathan sued for intentional infliction of emotional distress, intrusion upon seclusion, and public disclosure of private facts; Kristi filed motions to dismiss under the TCPA and Texas Rule of Civil Procedure 91a.
- The trial court’s docket produced conflicting and vacated orders: a December 15, 2021 entry (variously granting or denying the TCPA motion), a December 28 vacatur, a January 18, 2022 Rule 91a dismissal, and a February 15, 2022 order that vacated the December denial and purported to grant the TCPA motion 75 days after the hearing.
- The trial court later (May 23, 2022) awarded Kristi $15,003.68 in TCPA attorney’s fees; Nathan appealed challenging dismissal and the fee award.
- The court of appeals reversed and rendered in part and remanded: it held the trial court could vacate prior rulings but lacked authority to grant the TCPA motion after the 30-day statutory period, reversed the TCPA fee award, and held the Rule 91a dismissal was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Whether trial court lost jurisdiction and TCPA motion was denied by operation of law (30-day rule) | Trial court’s untimely February 15 order could not grant the TCPA motion; denial occurred by operation of law after 30 days | Trial court can vacate prior orders and legitimately rule after vacatur | Court: trial court may vacate prior orders but may not grant a TCPA dismissal more than 30 days after the hearing; vacatur allowed, post-deadline grant invalid |
| 2) Validity of award of attorney’s fees under TCPA | Fees improper because the TCPA motion was deemed denied by operation of law and no interlocutory appeal was taken | Fees proper because court ultimately granted dismissal and prevailing party is entitled to fees | Court: fee award reversed and rendered; Kristi takes nothing on TCPA fees (no authority to award after deemed denial) |
| 3) Whether dismissal under Rule 91a was warranted (merits) | Nathan: petition meets fair-notice and factual-plausibility standards for IIED, intrusion, and public-disclosure claims | Kristi: pleading fails essential elements (extreme/outrageous conduct; specific intrusion; matters are of public concern) | Court: Rule 91a dismissal improper; claims have basis in law and fact; reversed |
| 4) Whether trial court lost plenary jurisdiction to address Rule 91a-related issues and fees months later | Nathan: trial court’s delays divested it of authority to act on dismissal/fees | Kristi: 91a timing is not jurisdictional; court could later address attorney’s fees and enter orders | Court: 91a 45-day rule is not jurisdictional and court retained authority to address fees, but TCPA-fee award was nonetheless improper given deemed denial |
Key Cases Cited
- Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127 (Tex. 2019) (standard of review for TCPA dismissal)
- In re Panchakarla, 602 S.W.3d 536 (Tex. 2020) (trial court may vacate prior TCPA ruling; effect of vacatur analyzed)
- BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76 (Tex. 2017) (statutory interpretation principles)
- City of Dallas v. Sanchez, 494 S.W.3d 722 (Tex. 2016) (Rule 91a four‑corners factual‑plausibility standard)
- Sullivan v. Abraham, 488 S.W.3d 294 (Tex. 2016) (TCPA fee‑award obligation upon dismissal)
- Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017) (elements of intentional infliction of emotional distress)
- Indus. Found. of the S. v. Tex. Indus. Acc. Bd., 540 S.W.2d 668 (Tex. 1976) (publicity and public‑concern element for public‑disclosure tort)