Court of Appeals of Texas, Third District, Austin
In re InduSoft, Inc.; Ernest T. Roland; and Marcia R. Gadbois
PROCEEDING FROM TRAVIS COUNTY
Justices Puryear, Pemberton, and Field Filed: January 10,
K. Field, Justice
original proceeding arises from litigation between relators
InduSoft, Inc., Ernest T. Roland, and Marcia R. Gadbois
(collectively InduSoft) and real parties in interest Marcos
V. Taccolini and Tatsoft, LLC (collectively Taccolini). In
response to Taccolini's Seventh Amended Petition,
InduSoft filed a plea in abatement in the trial court, which
the court denied. InduSoft then filed a petition for writ of
mandamus in this Court, contending that the trial court
abused its discretion in denying the plea because abatement
was mandated by the Defamation Mitigation Act. See
Tex. Civ. Prac. & Rem. Code § 73.062. Because we
conclude that the Defamation Mitigation Act does not apply to
the allegations in Taccolini's Seventh Amended Petition,
we will deny InduSoft's petition for writ of mandamus.
is a software company co-founded by Roland and Taccolini.
Roland's daughter Gadbois later joined InduSoft, and
Roland, Gadbois, and Taccolini became equal owners.
Taccolini's relationship with the two other partners
soured, and litigation followed in several courts.
February 2009, the parties signed a Settlement Agreement.
Section 8 of the Settlement Agreement, entitled "Future
Cooperation" and referred to by the parties as the
"Cooperation Clause, " includes the following
Both parties agree that they will engage in no conduct which
is either intended to or could reasonably "be expected
to harm the other's business pursuits" or the
other's professional reputation; however legitimate
competition within the terms specified in Section 12 herein
is explicitly permitted and is not considered to "be
expected to harm the other's business pursuits[."]
later founded a new software company, Tatsoft. Tatsoft's
main software product competed with InduSoft's product.
filed this suit against InduSoft in June 2014,  alleging, among
other things, that InduSoft violated the Cooperation Clause
by engaging "in a pattern of harassment, defamation, and
business disparagement aimed at Taccolini and Tatsoft."
In addition to a breach-of-contract claim, Taccolini also
asserted causes of action for business disparagement,
defamation, and tortious interference. In his Third Amended
Petition, Taccolini nonsuited his claims for business
disparagement, defamation, and tortious interference, but he
continued to allege that InduSoft breached the Settlement
Agreement's Cooperation Clause. In his Seventh Amended
Petition, Taccolini brought a breach-of-contract claim
against all defendants, a tortious-interference-with-contract
claim against Schneider Electric and Invensys, a conspiracy
claim against all defendants, and a fraud and
fraudulent-inducement claim against InduSoft.
Taccolini filed the Seventh Amended Petition, InduSoft filed
its plea in abatement. In its plea, InduSoft contended that
Taccolini's Seventh Amended Petition added "new
disparagement allegations to the case." According to
InduSoft, these new allegations are subject to Texas's
Defamation Mitigation Act (the Act). See generally
Tex. Civ. Prac. & Rem. Code §§ 73.051-.062. The
Act "applies to a claim for relief, however
characterized, from damages arising out of harm to personal
reputation caused by the false content of a
publication." Id. § 73.054(a). Moreover,
the Act applies not only to written publications, but also to
oral ones. Id. § 73.054(b). However, the Act
applies "only to information published on or after the
effective date of th[e] Act, " which was June 14, 2013.
See Act of May 22, 2013, 83d Leg., R.S., ch. 950,
§ 3, 2013 Tex. Gen. Laws 2344, 2347.
the Act, "[a] person may maintain an action for
defamation only if: (1) the person has made a timely and
sufficient request for a correction, clarification, or
retraction from the defendant; or (2) the defendant has made
a correction, clarification, or retraction." Tex. Civ.
Prac. & Rem. Code § 73.055(a). In addition,
"[i]f not later than the 90th day after receiving
knowledge of the publication, the person does not request a
correction, clarification, or retraction, the person may not
recover exemplary damages." Id. §
73.055(c). Finally, the statute provides that "[a]
person against whom a suit is pending who does not receive a
written request for a correction, clarification, or
retraction, as required by Section 73.055, 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).
responded that the Act does not apply to breach-of-contract
claims but only to tort claims. Taccolini also argued that
InduSoft's plea in abatement was untimely. According to
Taccolini, to the extent that the Act applies to his claims,
the Third Amended Petition "triggered" the
Act's "30-day requirement, " and, because
InduSoft did not file a plea in abatement within 30 days ...