Bacharach v. GarciaBacharach v. Garcia
OPINION
Mariann Bacharach appeals the denial of her motion to dismiss filed under Chapter 27 of the Civil Practicе & Remedies Code—also known as the Texas Citizens’ Participation Act (TCPA)—as untimely. We affirm'the trial'court’s order striking and denying the motion.
Factual and Procedural Background
On October 3, 2013, appellee Rogelio Garcia filed an application for temporary and permanent injunctive relief against appellant Mariann Bacharach, Dirty World, LLC, PissedConsumer.com, and Liars and Cheaters.com. The application .alleged that Bacharach “began an organized campaign to discredit” Garcia, harassed him, and posted “fraudulent lies, rumors, innu-endoes, and ... stories” on the other defendants’ websites. Garcia also requested damages for slander, libel, “tortuous” interference of business, breach of contract, invasion of privacy, and intentional infliction of emotional distress. The threе entities were eventually nonsuited, leaving Ba-charach as the only defendant.
On October 11, 2013, Bacharach filed her response to Garcia’s application, asking the court to deny relief and, alternatively, tо grant a continuance. In her response, Bacharach alleged that she had not been served with Garсia’s petition until the previous day—October 10, 2013. The record before us does not reflect whether the request for continuance was granted, ñor does it contain proof of service upon Bacharach. Almost one. year later, on September 18,2014, Bacharach filed a doc
Analysis
Bacharach argues that her motion to dismiss was timely filed and, therefore, the court erred in striking and denying it. A motion to dismiss under the TCPA must be filed “not later than the 60th day after the date of service of the legal action.”
Alternativеly, Bacharach argues, the 60-day deadline was extended by Garcia’s subsequent filings, meaning that she had up until 60 days after the most recent filing to file her motion to dismiss. Garcia’s most recent filing—his third amended petition and request for injunction—was filed on September 25, 2014. Bacharach filed her motion one week before that petition was filed in thе court, meaning that, in her own estimation, her motion was timely. In arguing that she had until 60 days after the most recent pleading in the case to file her motion to dismiss, Bacharach is essentially asking this court to adopt an expansive definition of the term “legal action”— one that encompasses any subsequent pleading filed in the lawsuit. We join the El Paso Court of Appeals in declining to do so and hoid that, for the purpose of a motion to dismiss filed undеr Chapter 27, the clock began running on the date on which Bacharach was served with the first pleading alleging a cause of action against her.
Notes
. Our record does not contain the second amended petition, if any.
.. Nothing in the record befоre us, aside from the trial court's order, indicates that Bachar-ach was served on October 29. Bacharаch’s answer alleges that she was served on October TO, and Garcia's motion to strike alleges that Bachаrach. was served on October. 9. Additionally, the clerk’s stamp on Bachar-ach's motion to dismiss is dated Septеmber 18, 2014, not September 1. The discrepancy in dates is of no consequence in this proceeding because the difference between any of the alleged dates of service and the filing date is well over the 60 dаys allowed by statute,
. We express no opinion regarding the situation in which new causes of action are alleged in subsequent pleadings that may trigger the protection of the TCPA. We note that the Corpus Christi Court of Appeals has held that the 60-day deadline for filing a Chapter 27 motion to dismiss may begin anew as to additional causes of action alleged in subsequent pleadings. Hicks v. Group & Pension Ad