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Jun 15, 2020

Use of The Texas Citizen’s Participation Act to Dismiss Responsive Pleadings

By: John Faubion

The Legislature enacted the Texas Citizen’s Participation Act (the “TCPA” or the “Act”) in 2011 to protect certain First Amendment activities (e.g., the exercise of public participation rights such as free speech, petitioning, associating with others), by providing a procedural vehicle for a defendant to obtain dismissal of claims identified in the Act.  This article examines a new use of the Act by parties to dismiss responsive pleadings.

The Act provides that, on the motion of a party, a court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.  Tex. Civ. Prac. & Rem. Code § 27.005(a)-(b).  In evaluating a motion to dismiss, the court must construe the TCPA liberally to fully effectuate its purpose and intent to encourage and safeguard a defendant’s constitutional rights.  Id. § 27.002, 27.001. 

The broad language in the TCPA has arguably led to a number of unintended consequences, and the Act has generated a significant amount of appellate litigation.  Of course, the broad language of the TCPA also lends itself to use by litigants searching for another mechanism to defend and dismiss claims. 

One unique way that litigants are utilizing the TCPA is by filing a motion to dismiss under section 27.003 of the Act in response to counterclaims or motions for sanctions.  In ruling on a motion under the Act, the first step a court takes is to determine whether the challenged plea is a “legal action.”  The definition of a “legal action” under the TCPA is sweeping.  It includes “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.” Id. § 27.001(6) (emphasis added). 

Consequently, when an adverse party files a counterclaim or seeks other relief, like sanctions, such action may fall within the broad scope of “legal action” under the Act.  But, to date, Texas appellate courts are not in agreement on this point.  Compare Hawxhurst v. Austin's Boat Tours, 550 S.W.3d 220, 226 (Tex. App.—Austin 2018, no pet.) (“We need not decide whether the trial court erred in treating ABT’s ‘counterclaim’ as a ‘motion for sanctions’ because we agree that, either way, ABT’s pleading falls within in the TCPA’s definition of ‘legal action.’”), with Barnes v. Kinser, --- S.W.3d ---, No. 05-19-00481-CV, 2020 WL 1685589 (Tex. App.—Dallas Apr. 7, 2020, no pet. h.) (“Seeking sanctions for misconduct in litigation, including the filing of an allegedly frivolous or groundless lawsuit, is not a legal action under the TCPA. The dissent's reasoning in Hawxhurst is consistent with our holding in Misko and Dow Jones. Accordingly, we respectfully disagree with the majority opinion in Hawxhurst.”).  The split between the Austin and Dallas Courts of Appeal created through the Hawxhurst and Barnes opinions reveals the difficulty courts grapple with to create consistent, good law applying the TCPA. 

If the court determines the responsive pleading being challenged is a “legal action,” the next inquiry is whether the challenged plea for relief was filed in response to a party’s exercise of the right of free speech, right to petition, or right of association.  Tex. Civ. Prac. & Rem. Code >§ 27.003.  Of course, the very nature of a counterclaim suggests that it is filed “in response to a party’s right to petition.”  Likewise, other responsive pleadings that may be filed against a party, such a motion for sanctions, are necessarily rooted in the exercise of the right to petition. 

The Austin Court of Appeals remarked in its Hawxhurst opinion that “the claims asserted by ABT in its ‘counterclaim’ or ‘motion for sanctions’ were brought solely because it was forced to defend Hawxhurst’s lawsuit, which it alleged was frivolous. Thus, ABT’s claim or ‘legal action’ was directly ‘based on, relate[d] to or [was] in response to” Hawxhurst’s lawsuit.  Hawxhurst, 550 S.W.3d at 226–27 (citing Serafine v. Blunt, 466 S.W.3d 352, 360 (Tex. App.—Austin 2015, no pet.) (concluding that defendants' counterclaims were in part “based on, related to, or in response to” plaintiff’s filing of suit)); see also id. at 390 n.139 (Pemberton, J. concurring) (observing that, under “the TCPA’s broad definition of ‘legal action,’” counterclaim “would be deemed to be ‘based on, relate[d] to, or in response to’ [plaintiff’s] lawsuit” because it “would seek relief predicated on that lawsuit”).

If a party can successfully argue that a responsive pleading is a “legal action,” and that it was filed in response to the right to petition, or another right protected under the TCPA, the burden will shift and require the opposing party to either (1) establish that the challenged claim is exempt from the TCPA, or (2) establish by clear and specific evidence a prima facie case for each essential element of the challenged claim.  Tex. Civ. Prac. & Rem. Code §§ 27.005(c), 27.010.  Even if the responsive party meets this burden, “the court shall dismiss a legal action against the moving party if the moving party establishes by a preponderance of the evidence each essential element of a valid defense to the non-movant’s claim.”  Id. § 27.005(d). 

The TCPA has been law for almost 10 years, but its reach and impact are still evolving.  When evaluating the best tactic to address responsive pleadings, it is wise to consider the potential consequences of the TCPA.  As shown in the Hawxhurst and Barnes opinions, how the particular venue construes the term “legal action” likely will be the most significant issue when the TCPA is invoked in in an attempt to dismiss a responsive pleading.