Deadlines in a Texas anti-SLAPP, TCPA, Case
The deadlines in a Texas anti-SLAPP, TCPA, case are set out in the statute. Knowing those deadlines can mean the difference between winning and losing.
Below is a summary of important deadlines that may be encountered in a Texas anti-SLAPP, TCPA, case:
A petition claimed an act of defamation. No motion to dismiss under the Texas anti-SLAPP, TCPA, law was filed. About a year later, an amended petition alleged additional acts of defamation to different people at different times. Once the amended petition was filed, the movant filed a motion to dismiss under the TCPA. The court ruled that as to the first defamation claim, the motion to dismiss was untimely but was timely on the new alleged acts. Campone v. Kline, No. 03-16-00854-CV, 2018 WL 3652231, at *6 (Tex. App.-Austin Aug. 2, 2018, no pet. h.) (mem. op.).
When plaintiff makes an allegation about a specific act of defamation and also alleges that he was defamed to “other unnamed individuals”, an amended petition that names other acts of defamation to other people, does not restart the clock to file a timely motion to dismiss under the Texas anti-SLAPP, TCPA, law. Hayes v. Cavin, 03-17-00501-CV, (Tex. App. – Austin October 12, 2018 no pet.) (mem. op.).
Appeal – notice required in 20 days, not 30
Notice of appeal is required to be filed within 20 days of an order that denies the motion to dismiss or within 20 days after the motion is overruled by operation of law. Montiel v. Lechin, 01-18-00781-CV, (Tex. App. – Houston [1st], March 14, 2019 no. pet. h) (mem. op.).
Once the trial court grants a motion to dismiss, there is no time limit for awarding attorney’s fees. Leniek v. Evolution Well Services, LLC, 14-18-00954-CV, (Tex. App. – Houston [14th] February 5, 2019) (mem. op.)
Deadlines start from appearance not service
On April 4, 2018, Gremillion filed suit and asked for a TRO. No service was had on the defendants and no answer was filed but, two days later, the defendants, through their attorney, showed up at the TRO hearing where an agreed TRO was issued. The court extended the agreed TRO twice. The attorney for all the defendants signed the agreement.
On July 20, 2018, the defendants, although never served, filed an answer and a motion to dismiss under the TCPA. The court held that under Rule 120, TRCP, a general appearance starts the deadline period, not when defendants file their answer. The defendant’s motion to dismiss was untimely. Skidmore v. Gremillion & Co. Fine Art, Inc., 01-18-00829-CV, (Tex. App. – Houston [1st] March 1, 2019, no pet. h) (mem. op.)
The trial court cannot grant a motion to dismiss more than thirty days after the hearing on the motion to dismiss. Dobrott v. Jevin, Inc., 05-17-01472-CV, (Tex. App. – Dallas November 30, 2018, no pet.) (mem. op.).
When a trial court, at the same hearing, first grants a summary judgment on the same issues against which a motion to dismiss under the Texas anti-SLAPP, TCPA, law, was filed, the motion to dismiss becomes moot. Kennedy v. Harber, 05-17-01217-CV, (Tex. App. – Dallas August 7, 2018, no pet.). (note: ask the trial court to rule on the motion to dismiss first?).
Please note that the Gaskamp case cited below has been changed in an en banc reconsideration. Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2018 WL 6695810 (Tex. App.-Houston [1st Dist.] Dec. 20, 2018), withdrawn and superseded by Gaskamp, 596 S.W.3d at 457.
A motion to dismiss against a first amended petition does not become moot when a second amended petition is filed essentially non-suiting the claims. Gaskamp v. WSP USA, Inc., 01-18-00079-CV, (Tex. App. = Houston [1st] December 20, 2018).
Granting of a new trial after granting a motion to dismiss
The trial court originally granted a Texas anti-SLAPP, TCPA, motion to dismiss on February 22, 2019. On May 6, 2019, the trial court vacated that order and denied the motion to dismiss. The movant filed a writ of mandamus.
The issue before the Court in this original proceeding is whether a trial court has the statutory authority to grant a new trial on a Texas Citizens Participation Act (“TCPA”) motion to dismiss more than thirty days after the hearing on the motion. Applying this Court’s precedent, we conclude the answer is no, and we conditionally grant the writ of mandamus. In re Hartley, 05-19-00571-CV (Tex. App. – Dallas May 29, 2019, no pet. h.) (mem. op.).