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Interplay Between the Texas Anti-SLAPP Statute and the Principle of “Law Of The Case”

Texas Anti-slapp and law of the case

Written by Robert Ray

I am a Texas attorney. I am Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. My principle office is in Lantana, Texas in the DFW area. I am a past chair of the Texas State Bar Computer & Technology Section. I was appointed by the Chief Justice to serve one year as and ex-officio member on the Judicial Committee on Information Technology.


In Cummins v. Lollar, 07-16-00337-CV, Tex. App. – Fort Worth May 3, 2018, pet. denied) the court determined that the facts in a new lawsuit were substantially similar to the facts in a prior law suit involving the same parties. The prior court’s determination that animal cruelty, as alleged by Cummins, was not a matter of public concern was the law of the case in the new lawsuit that prevented the Texas Anti-SLAPP law from applying.


Lollar is President of Bat World Sanctuary, Inc., (BWS) a non-profit corporation located in Mineral Wells, Texas, dedicated to the rehabilitation of bats. 

Cummins was a pro se litigant from California who champions herself as an animal advocate and an investigator of animal cruelty. 

In 2000, BWS began offering internships for people to learn about bat rescue and rehabilitation. In June 2010, Cummins accepted a two-week internship at BWS and entered into an internship contract with BWS. Cummins left BWS before completing her internship and returned to California.

Disenchanted with her internship, Cummins sought out information from government agencies about whether BWS had a permit to operate and she reported the “less than optimal” conditions she had witnessed while at BWS to certain local, state, and federal organizations. She complained that Lollar was mistreating her dogs and the bats at BWS. She made online accusations that Lollar failed to treat two dogs for specific ailments. One of the dogs, who was nineteen years old and in poor health, was eventually euthanized, an act Cummins characterized as cruel.

In the first defamation suit, which was tried without a jury, Lollar obtained a multimillion-dollar judgment in actual and exemplary damages against Cummins. Cummins appealed the judgment to the Second Court of Appeals. In a lengthy opinion, that court affirmed the award of actual and exemplary damages for defamation, affirmed that potion of the trial court’s judgment ordering Cummins to remove from the Internet the web pages and defamatory statements specified in the judgment… See Cummins v. Bat World Sanctuary, No. 02-12-00285-CV, 2015 Tex.App. LEXIS 3472, at *36, *90 (Tex. App.-Fort Worth April 9, 2015, pet. denied).

After that lawsuit became final, Cummins began posting again. She posted:

… statements, videos, and photographs accusing Lollar of animal cruelty, practicing veterinary medicine without a license, fraud, violations of laws, rules, regulations, or standards, and illegal possession of a controlled substance. Non-criminal accusations further portrayed Lollar as uneducated and unintelligent. Cummins also posted negative statements on a blog about Lollar’s attorney.

Lollar, with Pro Bono representation (volunteer lawyers), again filed suit against Cummins for defamation and breach of the internship agreement. In the new lawsuit, Cummins, representing herself, filed a Texas Anti-SLAPP motion to dismiss Lollar’s claims. The trial court denied Cummins’ motion to dismiss and entered judgment in favor of Lollar. Cummins appealed.

Court of Appeals

The appeals court in the new lawsuit discussed the issue of “matter of public concern.” Whether speech is a matter of public concern is a question of law (meaning that the judge and not a jury decides the issue.)  Under the Texas Anti-SLAPP law, “exercise of the right of free speech means a communication made in connection with a matter of public concern.” If the speech did not involve a matter of public concern, the Texas Anti-SLAPP law would not apply. The appeals court stated:

The “law of the case” doctrine mandates that when a question of law is decided on appeal by a court of last resort, that decision governs the case throughout any subsequent proceedings… (t)he doctrine is ordinarily applicable only where the prior appellate decision was rendered in the same case in which the subsequent appeal is pending; however, it has been applied where the facts in the second trial are substantially the same as in the first trial, or so nearly aligned that they do not materially affect the legal issues involved in the second trial. The public policy underlying the doctrine is to prevent useless relitigation of issues already decided between the parties, to ensure consistency, and to promote judicial economy. Under this doctrine, matters of law disposed of in an earlier proceeding will not be revisited in a subsequent proceeding.

The court ruled that the issues, facts and parties between the two lawsuits were so similar that the “law of the case” would apply; meaning that the prior court’s ruling that in this instance, animal cruelty as pled, was not a matter of public concern would prevent the Texas Anti-SLAPP law from applying. The court went on to say that even if the law of the case did not apply, the trial court’s judgment in favor of Lollar would still be upheld.

Even if we were to assume arguendo that Cummins could have shown by a preponderance of the evidence that her right to free speech was implicated and that the TCPA applied, the trial court’s denial of the motion to dismiss would still prevail because Lollar established by clear and specific evidence a prima facie case of defamation, and Cummins did not establish by a preponderance of the evidence a valid defense to those claims. Defamation is “the invasion of a person’s interest in her reputation and good name…” (t)o establish a defamation claim, a plaintiff must show the defendant: (1) published a false statement of fact to a third party, (2) that defamed the plaintiff, (3) with the requisite degree of fault (actual malice if the plaintiff is a public official or a public figure or with negligence if the plaintiff is a private individual) regarding the truth of the statement, and (4) the statement caused damages, unless the statements were defamatory per se.

Conclusion and Disposition

The original lawsuit was ruled on in 2015 before the Texas Anti-SLAPP law had been fully developed by the courts. The original court’s ruling that animal cruelty as pled was not a matter of public concern would probably not be upheld today. However, since that ruling became final, the law of the case applied and the issue could not be relitigated. 

Moral: Don’t represent yourself.


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