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Deepwell Energy Services, LLC v. Aveda Transportation and Energy Services

Court of Appeals of Texas, Eleventh District

April 18, 2019

DEEPWELL ENERGY SERVICES, LLC, Appellant
v.
AVEDA TRANSPORTATION AND ENERGY SERVICES, JARED BROWN, LINDA CLARK, TOM HALLIDAY, ANDMICKEY SIMS, Appellees

          On Appeal from the 385th District Court Midland County, Texas Trial Court Cause No. CV54356

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.[3]

          OPINION

          JOHN M. BAILEY CHIEF JUSTICE

         This is an interlocutory appeal brought under the Texas Citizens Participation Act (the TCPA). See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (West 2015), § 51.014(a)(12) (West Supp. 2018) (authorizing an interlocutory appeal of denial of a TCPA motion to dismiss).[1] Deepwell Energy Services appeals the denial of its "Responsive Texas Citizens Participation Act Motion to Dismiss." Deepwell filed this motion in response to a TCPA motion to dismiss filed by Aveda Transportation and Energy Services, Jared Brown, Linda Clark, Tom Halliday, and Mickey Sims (Appellees). Deepwell alleged in its responsive motion to dismiss that Appellees' TCPA motion to dismiss violated the same act.

         This appeal presents a threshold question: Is a TCPA motion to dismiss subject to dismissal by a responsive or countermotion to dismiss brought under the Act? Two of our sister courts of appeals have answered this question in the negative. See Paulsen v. Yarrell, 537 S.W.3d 224, 231-33 (Tex. App.-Houston [1st Dist.] 2017, pet. denied); Roach v. Ingram, 557 S.W.3d 203 (Tex. App.-Houston [14th Dist.] 2018, pet. filed). As set forth herein, we agree with the First and Fourteenth Courts of Appeals that a party may not seek the dismissal of a TCPA motion to dismiss by filing a responsive or countermotion to dismiss under the Act. We affirm the order denying Deepwell's responsive TCPA motion to dismiss.

         Background Facts

         Deepwell sued Appellees under numerous legal theories, alleging that Appellees used Deepwell's confidential information to lure away Deepwell's employees. Appellees filed a motion under the TCPA to dismiss Deepwell's lawsuit. Deepwell filed a lengthy written response to Appellees' TCPA motion to dismiss. Deepwell also filed its own TCPA motion to dismiss Appellees' TCPA motion to dismiss. Deepwell referred to this motion as a "responsive TCPA motion to dismiss."

         The trial court entered separate written orders granting Appellees' motion to dismiss and denying Deepwell's responsive motion to dismiss. Deepwell filed a notice of appeal from the order denying its responsive motion to dismiss. Thus, the trial court's order granting Appellees' motion to dismiss is not at issue in this appeal.

         Analysis

         The TCPA is an anti-SLAPP law; "SLAPP" is an acronym for "strategic lawsuits against public participation." KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 713 n.6 (Tex. 2016). The TCPA is intended "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." Civ. Prac. & Rem. § 27.002.

         Deepwell asserts in its first issue that Appellees' motion to dismiss under the TCPA could be challenged by a responsive or countermotion to dismiss filed under the same act. Deepwell's first issue involves the construction of a statute, which courts review de novo. See R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011); Paulsen, 537 S.W.3d at 231. We note that we also review a trial court's ruling denying a motion to dismiss under the TCPA de novo. Paulsen, 537 S.W.3d at 231.

         The TCPA allows a defendant to obtain expedited dismissal of certain legal actions for which the party bringing the action does not establish prima facie support. State ex rel. Best v. Harper, 562 S.W.3d 1, 4-5 (Tex. 2018). "The TCPA permits a party to file a motion to dismiss a 'legal action' if the action 'is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association.'" Id. at 8 (quoting Civ. Prac. & Rem. § 27.003(a)). The TCPA defines a "[l]egal action" as "a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief." Civ. Prac. & Rem. § 27.001(6).

         Deepwell asserts that Appellees' TCPA motion to dismiss was a legal action that was based on, related to, or in response to Deepwell's exercise of its right to petition. Deepwell contends that the legislature defined the term "legal action" "very broadly." Deepwell focuses its analysis on the words "or any other judicial pleading or filing that requests legal or equitable relief" contained at the end of Section 27.001(6). Deepwell contends that this phrase "greatly expands the scope of a 'legal action' beyond traditional 'actions'" to include a motion to dismiss under the TCPA.

         Paulsen ...


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