In Borderline Mgmt. v. Ruff, 11-19-00152-CV, (Tex. App. – Eastland 2020, no pet.) (mem. op.), the appeals court had to decide if a sustained special exception had an effect on the time limits under the Texas Citizens Participation Act (TCPA), often referred to as the Texas Anti-Slapp statute.

Ruff originally sued her son, Michael. An arbitration panel awarded her $49,000,000.00 and imposed a constructive trust on his interest in any property over which she had, at any time, an interest.

Ruff filed a second amended petition on February 14, 2018 which added several defendants including another son, Mark, as well as some entities including Borderline where she “asserted a claim for conspiracy and knowing participation in Michael’s breach of fiduciary duty against “[a]ll of the entity [d]efendants” and specifically alleged that Mark and Borderline were “now also participating in ongoing breaches.”  Boaderline filed special exceptions and Ruff re-pleaded. She later filed several additional amended petitions including the 6th amended petition filed on Feb. 14, 2019.

On March 11, 2019, within 60 days of the 6th amended petition but more than a year after it was served with the second amended petition, Borderline file a motion to dismiss under the Texas Anti-Slapp statute. The trial court denied the motion as untimely and awarded Ruff attorney’s fees for Borderline filing a frivolous motion. Borderline  appealed asserting that the trial court:

“erred when it determined that the motion to dismiss was untimely, that Borderline failed to demonstrate good cause to extend the time to file the motion to dismiss, and that Borderline failed to establish that the TCPA applies to Suzann’s claims. In its fourth issue, Borderline requests that this court “render a dismissal as a matter of law in Borderline’s favor” because Suzann failed to establish by clear and specific evidence a prima facie case for each essential element of her claims. In its final issue, Borderline argues that the trial court erred when it awarded attorney’s fees to Suzann because the motion to dismiss was neither frivolous nor solely intended to delay and because Suzann failed to provide sufficient evidence of reasonable attorney’s fees.”

Borderline contends that the service of the sixth amended petition restarted the time period in which to file the motion to dismiss because the trial court granted Borderline’s special exceptions, because Suzann did not plead “any coherent, legally recognizable causes of action against Borderline” prior to the claims asserted in the sixth amended petition, and because the sixth amended petition asserted an additional cause of action against Borderline.

The appeals court did not agree with Borderline.

A petition that gives fair notice of a claim starts the time period in which to file a TCPA motion to dismiss…An amended pleading that does not add new parties or claims does not restart the statutory deadline for filing a motion to dismiss…However, if a party files an amended petition that contains claims based upon new factual allegations, the TCPA deadline may be restarted as to the newly added substance…”[A]dditional factual details in an amended petition ‘do not restart the time for filing a motion to dismiss if the same essential factual allegations as to the claim were presented in an earlier petition.”

Borderline asserts that, because the trial court granted one of Borderline’s special exceptions, it did not have fair notice of Suzann’s claims before she filed the sixth amended petition and was not required to file a motion to dismiss until Suzann sufficiently pleaded her claims.

The appeals court stated that the only special exception granted by the trial court was dealing with the breach of fiduciary duty claim, a claim that Ruff did not bring against Borderline. The claim asserted against Borderline was conspiracy and knowing participation in breach of fiduciary duty. Therefore, there was no need to consider Borderline’s argument on special exceptions.

We cannot conclude that the trial court’s grant of a special exception that leads only to a clarification that a claim is not being asserted against a TCPA movant tolls the time period in which to file a TCPA motion to dismiss…”the time period in which to file a TCPA motion to dismiss is not tolled by the trial court’s grant of special exceptions when the petition filed in response to the trial court’s order does not add new claims and relies upon the same factual allegations underlying the original petition.”

Since the 2nd amended petition alleged knowing participation in breach of fiduciary duty against “all of the entity defendants”, and since the factual allegations were nothing more that “more detailed” allegations, the motion to dismiss based on the Texas Anti-SLAPP statute after the 6th amended petition was untimely.

We hold that the sixth amended petition did not assert a new claim against Borderline and did not contain new factual allegations that changed the essential nature of the existing claims. Therefore, the sixth amended petition did not reset the time period in which Borderline could file a motion to dismiss under the TCPA, and the trial court did not err when it determined that Borderline’s motion to dismiss was untimely.

This case has some good information for those making and for those opposing motions to dismiss under the TCPA. There is a good discussion of when and how special exceptions affect the time-lines and there is a good discussion about factual allegations and how they can help or hurt.

For the movant, it gives some ideas on situations where the deadline has  been missed and what you can do about it.

For the nonmovant, it gives some ideas about pleading your case. If you have more than one defendant, make sure your factual allegations about your cause of action are out there at the beginning.