Legal Action

Johns filed a motion for sanctions alleging discover abuse.

Communication

Not discussed because there was no “legal action.”

Right Involved

Not discussed because there was no “legal action.”

Background

Statute

Texas Citizens Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 et. seq. 

Case

Misko v. Johns, 15-18-00487-CV (Tex. App. – Dallas May 1, 2019, no p. h.)

Facts

Texas anti-SLAPP does not encompass a motion for sanctions alleging discovery abuse

This appeal is the second interlocutory appeal in this case concerning an order denying dismissal under the TCPA. In the first appeal, we determined the trial court did not err by denying Tracy Johns’ TCPA motion to dismiss Karen Misko’s substantive claims… In this second appeal, Misko, attempting to stretch the applicability of the TCPA beyond the substantive claims at issue, contends the trial court erred by denying a TCPA motion to dismiss a motion for sanctions filed by Johns based on Misko’s conduct during the course of litigation.

The Texas Anti-SLAPP law or TCPA has a three step process. In step one, the movant bears the burden of establishing by a preponderance of the evidence that the nonmovant’s claim is a legal action in response to the movant’s exercise of his right of association, his exercise of his right of free speech or his exercise of his right to petition. §27.003 (a).

…Johns’ motion for sanctions is based solely on Misko’s alleged discovery misconduct during the course of this litigation, not on any of Misko’s substantive claims. The denial of Misko’s motion to dismiss Johns’ motion for sanctions has led to this second interlocutory appeal, causing the resolution of Misko’s substantive claims to “grind to a halt” and multiplying the litigation surrounding those substantive claims. On this record, we cannot conclude the Legislature intended that a motion based on conduct within litigation that is ancillary to the substantive claims in the case, such as Johns’ motion for sanctions, should fall within the catch-all provision of “other judicial pleading or filing.”

In reaching this conclusion, we are unpersuaded that Hawxhurst v. Austin’s Boat Tours, 550 S.W.3d 220 (Tex. App.—Austin 2018, no pet.), upon which Misko relies, mandates a different result. In Hawxhurst, the plaintiff sued for gross negligence, negligence, and breach of contract for damages to his boat arising from an incident on Lake Travis. Id. at 223. The defendant responded with a counterclaim for sanctions under Chapter 9 of the Texas Civil Practice and Remedies Code alleging the plaintiff had filed a frivolous pleading. Id. The plaintiff filed a TCPA motion to dismiss the counterclaim. Id. The Austin Court of Appeals concluded that, whether characterized as a counterclaim or a motion for sanctions, the request for sanctions was a “legal action” as defined by the TCPA and was filed in response to the plaintiff’s exercise of the right to petition. Id. at 226-28.

Even if we assume Hawxhurst was decided correctly, the motion for sanctions in that case was filed in response to the plaintiff’s petition and attacked the plaintiff’s substantive claims. We do not read Hawxhurst to stand for the proposition that each individual filing within pending litigation that is ancillary to the substantive claims at issue constitutes a separate “legal action” for purposes of the TCPA.

Conclusion and Disposition

The Texas anti-SLAPP, TCPA, does not apply to a motion for sanctions.

We conclude the definition of “legal action” in the TCPA does not encompass a motion for sanctions alleging discovery abuse by a party that is filed after, and in this case years after, the commencement of litigation. Further, construing the TCPA to apply to such a motion would open the floodgates to serial motions to dismiss during the pendency of litigation based on conduct ancillary to the substantive claims in the case. Accordingly, we affirm the trial court’s denial of Misko’s motion to dismiss.

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