A steady stream of cases about the scope of the TCPA (as well as the third dissent of 2019 by Justice Whitehill) continued in Erdner v. Highland Park Emergency Center. The appeal was from the denial of a TCPA motion about the alleged usurpation of the opportunity to build an emergency-care facility in Fort Worth; the majority (Justice Molberg, joined by Justice Reichek) affirmed, holding:

• Association. “The communications between Erdner and the Arizona investors were private communications relating to establishing a business . . . [and] did not involve public or citizen’s participation . . . .”
• Speech. The majority rejected the dissent’s “wispy” approach to the term “related to” in the TCPA, reasoning: “The fact that the communications could result in healthcare service being offered to the public at some location at some point in the future is not enough to bring them within the scope of the TCPA.”

The dissent joined the majority’s conclusion about the right of association, based on Fifth Court precedent, but differed as to interpretation of the phrase “related to”: “[D]iscussions about starting a new emergency room are at least tangentially related to the current and future health of people in the area and to the surrounding community’s well-being.” No. 05-18-00654-CV (May 22, 2019).

The resolution of the TCPA motion in In re Hartley unfolded as follows:

• Radix Realty sued the Hartleys. Panchakarla the intervened on the side of Radix.
• The Hartleys moved to dismiss under the TCPA. The trial court had a hearing on that motion on February 18, 2019.
• The trial court granted the motion on February 22, well ahead of the March 20 statutory deadline.
• Panchakarla moved for a new trial on March 22.
• On May 6, 2019, the trial court vacated its February 22 order and issued a new order denying the Hartleys’ motion to dismiss.

The Hartleys sought a writ of mandamus against the May 6 rulings, and the Fifth Court agreed: “The trial court was statutorily prohibited from granting Panchakarla’s motion for reconsideration and for new trial more than thirty days after the hearing on the TCPA motion and, as such, the trial court’s May 6, 2019 order is void.” No. 05-19-00571-CV (May 24, 2019) (mem. op.)

“Edes asserts there is sufficient lay evidence of causation and directs us to testimony by himself and a co-worker that he developed symptoms immediately after the accident that he did not have before the accident. But evidence of an event followed closely by manifestation of or treatment for conditions which did not appear before the event raises only suspicion that the event at issue caused the conditions and is not legally sufficient to support a finding of legal causation.” Edes v. Arriaga, No. 05-17-01278-CV (May 24, 2019) (mem. op.) (applying Guevara v. Ferrer, 247 S.W.2d 662, 668 (Tex. 2007) (emphasis added)).

In In re: Rohrich, the relator sought “a writ of mandamus directing the trial court to vacate a May 2, 2019 show cause order and a March 4, 2019 order compelling production of data referenced in an April 2018 article written by relator.”

“Due to the extraordinary nature of the remedy, the right to mandamus relief generally requires a predicate request for action by the respondent, and the respondent’s erroneous refusal to act.” (quoting In re: Coppola, 535 S.W.3d 506, 510 (Tex.2017) (orig. proceeding) (emphasis added)).

Because “relator ha[d] not presented his arguments to the trial court regarding compliance with the order compelling production or regarding objections to the production,” he was “therefore, not entitled to mandamus relief.” No. 05-19-00578-CV (May 20, 2019) (mem. op.)

Applying Dyer v. Medoc Health Services LLC, No. 05-18-00472-CV (March 8, 2019), the Fifth Court declined to apply the TCPA to certain business-related communications, even though they related to the generally-important topic of health care.  The Court also found that the TCPA’s commercial speech exemption applied to a DTPA counterclaim. Staff Care v. Eskridge Enterprises, No. 05-18-00732-CV (May 15, 2019) (mem. op.)

Daigrepont v. Preuss reversed a default judgment for failure to comply with an order authorizing substituted service under Tex. R. Civ. P. 106(b).

• “The trial court’s order required ‘the Citation, First Amended Petition, initial discovery requests, and this Order’ be left with a person over the age of 16 or by leaving the documents on the front door of Daigrepont’s residence. It further required ‘a copy of the Citation, Petition, initial discovery requests, and this Order’ be mailed by certified mail, return receipt requested and by regular mail.”
• However: “The return of service affidavits indicate the process server posted the citation, plaintiff’s original petition, civil case information sheet, and order granting plaintiff’s motion for substitute service to his front door and mailed the
  aforementioned documents per the court’s order.”

“By failing to strictly follow the order, Preuss violated rule 106(b). Violation of rule 106(b) makes service of process invalid and of no effect.” No. 05-18-01271-CV (May 17, 2019) (mem. op.)

Tactical Communications alleged that Krasnicki failed to make certain technical disclosures to it; Krasnicki moved to dismiss under the TCPA: But “Tactical did not allege any oral, written, audiovisual,or electronic communications inits claims against Krasnicki. The basis of Tactical’s claims against Krasnicki rests solely on its assertion that Krasnicki failed to communicate with Tactical.” (emphasis added) Accordingly, the Fifth Court affirmed denial of the motion with a straightforward observation: “[C]onstruing the definition of ‘communications’ to include non-communications would lead to an absurd result as nothing would be outside the scope of the TCPA.” Krasnicki v. Tactical Entertainment, LLC, No. 05-18-00463-CV (May 16, 2019).

“Appellants did not request an evidentiary hearing on their motion for attorney’s fees even though Denney stated in her response that an evidentiary hearing is required before sanctions may be imposed. Her attorney stated at the hearing that he was prepared to offer testimony in response to appellants’ request for sanctions.  Appellants, however, never offered any evidence at the hearing and never objected to  the lack of an evidentiary hearing on their motion. . . .  On appeal, Dallas Metro and Net Worth’s rely on documents and portions of Denney’s deposition attached to their motion for attorney’s fees as evidence to support their claim. However, the documents and deposition testimony were never admitted into evidence. As a result, the documents were not before the trial court and cannot be considered as evidence on appeal.” Net Worth Realty USA v. Denney, No. 05-18-00336-CV (March 6, 2019) (mem. op.) (citations omitted, emphasis added).

Ghidoni, the plaintiff in a legal-malpractice case involving the handling of a lawsuit about the noise caused by water wells, offered Anderson as an expert witness. Anderson was a trial lawyer of thirty years’ experience, but had not handled matters involving the specific water-law problem at issue in the underlying case. The Fifth Court affirmed the decision to exclude Anderson:

“By way of analogy, ‘there is no validity . . . to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question.’ Extending this principle to the topic of legal malpractice, ‘that a person may be a licensed attorney . . . who holds years of experience in the practice of law, standing alone, will not qualify him or her to give an opinion on every conceivable legal question, including legal malpractice issues.” While the record in this case shows that Anderson has handled several malpractice cases as an attorney and has testified as an expert witness in two such cases, it contains no evidence about the particular issues that Anderson handled or addressed in these capacities. Nor did Ghidoni offer evidence regarding the specific water law issues that Anderson has handled. Absent such proof, we cannot say that the district court abused its discretion in excluding Anderson’s testimony.”

Ghidoni v. Skeins. No. 05-18-00355-CV (May 10, 2019) (mem. op.) (citations omitted).

On May 16 at the Belo Mansion, the DBA Appellate Section presents a panel discussion among the eight newly-elected Justices of the Fifth Court of Appeals (a/k/a, the “Slate of Eight“), moderated by Justice Lana Myers, a 20-year veteran of the Fifth Court.. The Section’s announcement of the program goes on to say: “If you have a question you would like the panel to answer, please send it to DBAAppellateChair@gmail.com. The panel will try to answer pre-submitted questions during the presentation as time permits.”

The appellant in Sumner v. Harbor Owners Ass’n disputed the conditioning language used in an award of attorneys’ fees against him, arguing that an award of “$10,000 in attorneys’ fees if [appellant] unsuccessfully appeals to the Texas Supreme Court” failed to ” set out the steps in an appeal to the Texas Supreme Court.” The Fifth Court found that this level of detail was unnecessary, and “[b]ecause the award of appellate fees is conditioned on [Appellant]’s unsuccessful appeal, we conclude the trial court’s award
is not in error.” No. 05-18-00580-CV (May 1, 2019) (mem. op.)

LaFrance argued that he was not personally liable for a contract debt. But – “LaFrance signed his name on the agreement’s signature line labeled Borrower’s Signature.’ He did not indicate a representative capacity. In the section titled ‘Liability,’ the agreement states, ‘Although this agreement may be signed below by more than one person, each of the undersigned understands that they are each as individuals responsible and jointly and severally liable for paying back the full amount.’ Because the agreement’s language can be given a definite legal meaning and is not reasonably susceptible to more than one interpretation, the agreement is unambiguous.” EcoFriendly Water Co. v. Mercer, No. 05-18-00763-CV (May 2, 2019) (mem. op.).

“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.” Misko v. Johns, No. 05-18-00487-CV (May 1, 2019).

Clark sued Phillips, his former competitor in an an election for Kaufman County Commissioner, for defamation in campaign materials. Phillips lost a summary judgment motion and sought one of the many interlocutory appeals available under Texas’s Byzantine interlocutory-appeals statute; specifically, section 51.014(a)(6). The result is the second split in recent weeks between a Democratic majority and a Republican dissenter, as follows.

Justice Reichek, joined by Justice Molberg, held that the Fifth Court lacked jurisdiction: “The record before us shows that Phillips was a candidate for public office who  allegedly provided information that was published in mailers and on a website. Nothing in the record shows Phillips has ever engaged in professional news reporting or any other form of journalism or professional investigation and commentary about matters of public concern. Accordingly, Phillips does not qualify as a ‘member of the media (emphasis added),'” and thus could not avail himself of this statute.

Justice Whitehill, invoking Occam’s Razor, agreed with the majority’s conclusion but disagreed with the path of its reasoning: “In short, whether we have jurisdiction over Phillips’s appeal from the denial of his summary judgment motion in this defamation case depends on whether he asserted a ground based on the First Amendment, its Texas equivalent, or Civil Practice and Remedies Code Chapter 73. He didn’t. Enough said. That should end the appeal. . . . Because there is a straightforward answer to this case without exploring in the first instance the boundaries of what constitutes the electronic media, we should follow the straightforward path and wait until when defining the electronic media is necessary to decide the case then before us (emphasis added).” Phillips v. Clark (links to both opinions above), No. 05-18-00556-CV (May 3, 2019).

Celebrate the Cinco de Mayo with 5 key Dallas court of appeals cases from 2019!

A significantly limited new version of the TCPA has passed the Texas House; a similar version is still pending in the Senate.The bill addresses several aspects of the statute’s application in business cases.