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Lis Pendens and Texas Anti-Slapp

Texas Anti-SLAPP, TCPA law

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.

Lis Pendens and Texas Anti-Slapp

The Amarillo court of appeals dealt with the issue of whether the Texas Citizens Participation Act, Texas Anti-Slapp, applies in the context of a Lis Pendens. Smith v. Arrington, 07-19-00393-CV, (Tex. Civ. App. – Amarillo, Feb. 9, 2021 no pet. h.) (mem. op.).

Background

A brother and sister were fighting over inheritance issues involving their parent’s estates. The brother received most of the estates and was the managing member and general partner of several limited partnerships that had been set up. The sister was suing her brother individually and as executor over the distribution of the estates. In that process, she filed a Lis Pendens over several properties owned by the partnerships. The partnerships intervened and sought to expunge and remove the lis pendens. The sister filed a Texas Anti-Slapp motion to dismiss the claims. The trial court refused and the sister filed an interlocutory appeal.

Does the Anti-Slapp apply?

It does held the court of appeals.

In the underlying case, Smith filed a lis pendens—a communication related to a judicial proceeding. Smith’s filing implicated the exercise of her right to petition. In response, the partnerships filed their Original Petition in Intervention and Motion to Expunge Lis Pendens—a legal action. Thus, Smith established that the TCPA applied to the exercise of her right to petition and that she had authority to file a motion to dismiss under the TCPA. § 27.003(a).

Was the amended motion timely?

The original intervention was served on June 3, 2019. The sister filed her original motion to dismiss on June 20, 2019, within 60 days of the intervention. No hearing was had but on the 60th day after the intervention was served, the sister amended her motion to dismiss under the Texas Anti-Slapp statute. A hearing was held on October 17, 2019, seventy-six days after the service of the intervention. The court ruled that the hearing was timely:

Smith, relying on Rule 65 of the Texas Rules of Civil Procedure, maintains that her amended motion to dismiss filed on August 2, 2019, replaced her original motion and restarted the sixty-day period in which to hold a hearing. We agree with Smith that her amended motion to dismiss completely replaced her original motion, and even though it was filed on the sixtieth day after original service of their petition, it was timely filed because it was filed within sixty days after the date of service. § 27.003(b) (providing that a “motion to dismiss a legal action under [section 27.003] must be filed not later than the 60th day after the date of service of the legal action”).

While the TCPA is silent on whether a motion to dismiss may be amended, it clearly provides a sixty-day window in which to file a motion to dismiss. We interpret that window as permitting an amended motion to be filed, so long as it is filed on or before the sixtieth day following service of the legal action.

Affirmative defenses

After ruling that the intervenors had proved their case by clear and specific evidence, it turned to the affirmative defense of “clean hands” raised by the sister.

“Unclean hands” may bar a party from obtaining equitable relief. Davis v. Grammar, 750 S.W.2d 766, 768 (Tex. 1988). “`Unclean hands’ is an affirmative defense available when a plaintiff is seeking an equitable remedy.” In re Nolle, 265 S.W.3d 487, 494 (Tex. App.-Houston [1st Dist.] 2008, no pet.). Generally, however, the equitable defense of unclean hands is not applicable in an action for damages.

Smith argues the trial court should have granted her motion to dismiss because the partnerships failed to negate her affirmative defense of unclean hands. However, the TCPA does not require a nonmovant to negate a movant’s affirmative defense. The nonmovant’s burden in resisting a motion to dismiss is to establish a prima facie case of its claim. § 27.005(c).

Since the sister did not produce any affidavits or other evidence of her affirmative defense, the trial court was correct in denying her motion to dismiss.

Takeaways

  1. Lis Pendens is subject to the Texas Anti-Slapp statute.
  2. An amended motion to dismiss restarts the time-limits for a hearing?
  3. A party has to prove their affirmative defenses and can’t rely on the other side not putting on evidence against the affirmative defense.

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