In Sullivan v. Tex. Ethics Comm’n, 03-17-00392-CV, (Tex. App. – Austin May 17, 2018), the appeals court had to decide whether the winning non-movant in a Texas Anti-Slapp Law case could recover their attorney’s fees.

The court of appeals first upheld the denial of the Texas Anti-Slapp motion to dismiss. As to the award of attorney’s fees to the Commission because the motion was frivolous and solely intended to delay the appeals court reversed that part of the judgment. The Texas Anti-Slapp law provides that if the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney’s fees to the responding party. Tex. Civ. Prac. & Rem. Code § 27.009(b).

Frivolous

The TCPA does not define “frivolous,” but the word’s common understanding contemplates that a claim or motion will be considered frivolous if it has “no basis in law or fact,” see Webster’s Third New Int’l Dictionary (2002) 913, and “lack[s] a legal basis or legal merit,” see Black’s Law Dictionary (9th ed. 2009) 739. On this record and in accordance with our discussion above, in which we conclude that Sullivan’s motion might be argued to technically fit the act’s broad definition of a “legal action,” we conclude that the trial court abused its discretion in concluding that Sullivan’s TCPA motion was frivolous.

Solely Intended To Delay

The appeals court held that the non-movant had to show that the motion to dismiss was only for delay in order to recover its attorney’s fees. Showing that delay was a factor is not enough.

On this record and in accordance with our discussion above, in which we conclude that Sullivan’s motion might be argued to technically fit the act’s broad definition of a “legal action,” we conclude that the trial court abused its discretion in concluding that Sullivan’s TCPA motion was frivolous.

We also consider Sullivan’s complaint that the court’s other finding in support of the award—that Sullivan’s motion was “solely intended to delay”—was not supported by legally sufficient evidence. The Commission alleges the following in support of that finding: (1) Sullivan’s initial filing of this appeal in Denton County, an improper venue; (2) the implicit fact that Sullivan was “well aware” that the Commission would be able to meet its prima facie burden with respect to all elements of its allegations due to his involvement in the administrative proceedings; and (3) the fact that Sullivan’s counsel drafted the TCPA motion four months before the Commission filed its amended pleading as realigned plaintiff, indicating that Sullivan intended to use the TCPA as a fee-shifting “sword” rather than a speech-protecting “shield.” While these circumstance might support a finding that delay was a factor in Sullivan’s decision to file the motion, they do not support a reasonable finding that delay was the only factor, in light of the entire record and our conclusion that his motion was not frivolous. Another plausible factor for Sullivan’s filing of the motion was to posit an arguably meritable legal theory about the applicability of the TCPA—”arguably meritable” based on our conclusion above that the Commission’s pleading might very well fit the broad definition of a “legal action.”

In a Texas Anti-Slapp motion to dismiss, a non-movant can recover his cost and attorney’s fees if the court finds that the motion was frivolous or solely intended to delay. (In this case, the trial court found that the motion was frivolous AND solely intended to delay.)

Notes:

In Miller v. Talley Dunn Gallery, LLC, No. 05-15-00444-CV, 2016 Tex. App. LEXIS 2280, *516 (Tex. App.—Dallas Mar. 3, 2016, no pet.), the trial court found that the movant’s motion to dismiss was frivolous and awarded the nonmovant attorney’s fees. The movant appealed that ruling but did not provide any analysis or citations so the appeals court said he waived the issue.