Background

In Hearst Newspapers, et. al. v. Status Lounge Incorporated, No. 14-17-00310-CV, (Tex. App. – Houston [14th], December 19, 2017, the court discussed the interplay between the Texas Anti-Slapp or the Texas Citizens Participation Act, TCPA, and its deadlines and the Defamation Mitigation Act and its deadlines.

Defamation Mitigation Act

The Texas Defamation Mitigation Act can be found at Tex. Civ. Prac. & Rem. Code, §73.051, et. seq.

The statute provides that a person may not “maintain an action for defamation” unless “the person has made a timely and sufficient request for a correction, clarification, or retraction from the defendant,” or “the defendant has made a correction, clarification, or retraction.” Tex. Civ. Prac. & Rem. Code § 73.055(a). A defendant in a suit to which the DMA applies who does not receive a timely and sufficient written request for correction, clarification, or retraction “may file a plea in abatement not later than the 30th day after the date the person files an original answer in the court in which the suit is pending.” Id. § 73.062(a).

Texas Anti-Slapp or TCPA

The Texas Anti-Slapp motion to dismiss must be filed not later than the 60th day after the date of service of the legal action.

Lawsuit

Status Lounge, a corporation, filed suit against Hearst, et. al., asserting claims for libel and business disparagement after appellants published articles based on a police report of a shooting at Status Lounge.

Two of the appellants filed an answer that included a verified plea in abatement under the Defamation Mitigation Act (DMA). Appellee did not challenge the plea in abatement by filing a controverting affidavit; consequently, the suit was automatically abated “in its entirety” without a court order and “[a]ll statutory and judicial deadlines under the Texas Rules of Civil Procedure” other than those provided in the DMA were stayed.

After the abatement period (60 days) ended, Hearst, et. al. moved to dismiss under the Texas Anti-Slapp or TCPA statute. This was 120 days after the earliest date Hearst, et. al. were served with Status Lounge’s lawsuit. Since the Texas Anti-Slapp or TCPA statute requires that a motion to dismiss must be filed not later than sixty days after service, the court had to decide how the two statutes intertwined. It was undisputed that if the DMA abatement applied to the Texas Anti-Slapp or TCPA motion to dismiss, the motion was timely filed.

On appeal, we address an issue of first impression in a Texas appellate court: whether the DMA’s abatement period applies to toll the TCPA’s deadline to file a motion to dismiss. We conclude, based on the plain language and complementary purposes of the two statutory schemes, that the Legislature intended the DMA and TCPA to work in tandem to provide plaintiffs the opportunity to mitigate any perceived defamation damages at an early stage in the dispute and then, should the dispute remain unresolved, to permit a defendant to test the merits of the plaintiff’s case though a TCPA motion to dismiss.

That the Legislature intended the DMA’s abatement period to apply to the TCPA’s sixty-day deadline to file a motion to dismiss is … confirmed by section 73.062(d), which specifically instructs that an abatement stays “[a]ll statutory and judicial deadlines under the Texas Rules of Civil Procedure” other than those provided in the DMA. See id. § 73.062(d). Although this provision is awkwardly phrased, we conclude from the context and the words used that the abatement stays not only all “judicial deadlines under the Texas Rules of Civil Procedure” but also all “statutory deadlines”—which would include the TCPA’s sixty-day filing deadline. We reach this conclusion because the Texas Rules of Civil Procedure do not contain statutes, and therefore the reference to “statutory and judicial deadlines under the Rules of Civil Procedure” must mean both statutory deadlines and judicial deadlines under the Texas Rules of Civil Procedure.