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Morales v. Barnes

Court of Appeals of Texas, Fifth District, Dallas

December 29, 2017

CARLOS MORALES, Appellant
v.
DAVID BARNES, Appellee

         On Appeal from the 301st Judicial District Court Dallas County, Texas Trial Court Cause No. DF-11-11126

          Before Justices Lang, Evans, and Schenck Opinion by Justice Evans

          MEMORANDUM OPINION

          DAVID EVANS JUSTICE

         Appellant 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.

         BACKGROUND

         Barnes 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.[1] Morales is Jennifer's attorney in the assault litigation.

         On 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.[2] Barnes later amended his petition to include Morales as a named defendant.[3]

         On 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 seclusion.[4]

         The 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 reply brief.

         Morales 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.

         ANALYSIS

         A. Texas Citizens Participation Act

         Chapter 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 ...


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