Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 301st Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-11-11126
Justices Lang, Evans, and Schenck Opinion by Justice Evans
Carlos Morales asserts that the trial court erred in denying
his motion to dismiss pursuant to chapter 27 of the Texas
Civil Practice & Remedies Code. Morales also asserts that
the trial court abused its discretion in granting appellee
David Barnes's motion to disregard Morales's reply to
Barnes's response to motion to dismiss. We affirm in part
and reverse in part.
and Jennifer Lancashire (Lancashire) divorced on August 20,
2012. Following the divorce, Jennifer remarried. Jennifer and
her current husband, David Lancashire, filed separate
lawsuits against Barnes for assault. Morales is Jennifer's
attorney in the assault litigation.
September 26, 2014, Morales-on behalf of Lancashire-sent
Credit Suisse, Barnes's employer, a "preservation of
evidence" letter regarding the assault cases
("first communication"). In 2016, Barnes left
Credit Suisse and went to work for UBS. Shortly thereafter on
April 6, 2016, Morales sent a cease and desist letter to UBS
("second communication")-on behalf of
Lancashire-alleging that Barnes had "maliciously and
purposefully contacted third parties making false, misleading
and/or defamatory statements about [Lancashire]."
Following these letters, Barnes filed a lawsuit against
Lancashire. Barnes later amended his petition to
include Morales as a named defendant.
January 5, 2017, Morales filed a motion to dismiss
Barnes's lawsuit pursuant to chapter 27 of the Texas
Civil Practice and Remedies Code. In his motion to dismiss,
Morales argued that he was entitled to a dismissal of the
petition because his actions were based on the exercise of
free speech. Barnes filed a response on February 24, 2017. On
February 24, 2017, Barnes also filed a third amended petition
which added factual information and a claim for intrusion on
trial court set a hearing on the motion to dismiss for March
3, 2017. Morales filed a reply brief immediately preceding
the hearing. On March 3, 2017, Barnes made oral objections
and argued that the reply included "new grounds"
for a dismissal, all new evidence supporting these
"grounds, " and all new legal authority. The trial
court indicated its awareness of and concern about the time
constraints in the TCPA for her to rule. By her questions,
the trial court indicated her inclination to exercise her
discretion to use the three-day civil local rule because the
case was a civil case filed in county court at law before it
was transferred to family court. Because of time constraints,
the trial court, with agreement of counsel, set March 8 for
completion of the hearing. Later on March 3, Barnes filed
written objections to the reply and requested that the trial
court disregard and not consider Morales's late-filed
reply. On March 8, 2017, the trial court finished the hearing
and entered an order denying the motion to dismiss. The trial
court also granted Barnes's objections and request that
the trial court disregard and not consider Morales's
then filed a notice of appeal regarding the trial court
orders which (1) deny his motion to dismiss and (2) grant
Barnes's objections to and request for the court to
disregard his reply brief.
Texas Citizens Participation Act
27 of the Texas Civil Practice & Remedies Code, also
known as the Texas Citizens Participation Act, is an
anti-SLAPP statute. See Tex. Civ. Prac. & Rem.
Code §§ 27.001-27.011 (West 2015); Serafine v.
Blunt, 466 S.W.3d 352, 356 (Tex. App.-Austin 2015, no
pet.). "SLAPP" is an acronym for "Strategic
Lawsuits Against Public Participation."
Serafine, 466 S.W.3d at 356. The TCPA's purpose
is to identify and summarily dispose of lawsuits designed
only to chill First Amendment rights, not to dismiss
meritorious lawsuits. See Tex. Civ. Prac. & Rem.
Code § 27.002; In re Lipsky, 460 S.W.3d 579,
589 (Tex. 2015). The legislature has instructed that the TCPA
"shall be construed liberally to effectuate its purpose
and intent fully." See Tex. Civ. Prac. &
Rem. Code § 27.011(b); ExxonMobil Pipeline Co. v.
Coleman, 512 S.W.3d 895, 898 (Tex. 2017).
B.Order Denying Motion ...