Court of Appeals of Texas, Second District, Fort Worth
In re SSCP Management, Inc.; SDharod Enterprises, Inc.; Apple Texas Restaurants, Inc.; Texas Apple, LLC; SRS Real Estate Partners, LLC; and SRS National Net Lease Group, LP, Relators
Original Proceeding Trial Court No. CV18-1720
Pittman, Birdwell, and Womack, JJ.
Justice Womack concurs without opinion.
T. PITTMAN, JUSTICE
deja vu all over again" as this court journeys
on its latest foray through the ever evolving battlefields of
the Texas Citizens Participation Act (TCPA). See Yogi
Berra, The Yogi Book: I Really Didn't Say Everything
I Said! 45 (1999). In our latest quest, we are tasked
with exploring the amount of discovery allowed once a motion
to dismiss under the TCPA has been filed but not yet ruled
upon by the trial court.
in three issues in their petition for writ of mandamus,
Relators SSCP Management, Inc. (SSCP); SDharod Enterprises,
Inc. (SDharod); Apple Texas Restaurants, Inc. (Apple Texas);
Texas Apple, LLC (Texas Apple); SRS Real Estate Partners, LLC
(SRS Real Estate); and SRS National Net Lease Group, LP (SRS
National) (collectively, Defendants) complain that the trial
court abused its discretion when it ordered them to respond
to numerous discovery requests during the pendency of their
TCPA motions to dismiss. They contend that "good
cause" was not shown justifying such discovery, the
permitted discovery was not "specified and limited"
or "relevant to the motion[s to dismiss]" as
required by the TCPA, see Tex. Civ. Prac. & Rem.
Code Ann. § 27.006(b), and their appellate remedy is
inadequate. Defendants ask us to vacate the trial court's
March 1, 2019 Discovery Order allowing Real Party In Interest
Sutherland/Palumbo, LLC ("Sutherland") to conduct
extensive discovery. Because such expansive discovery runs
afoul of the express language of the TCPA, with the
reservations stated herein, we conditionally grant relief.
Shotgun Blasts Are Exchanged: Sutherland Files a
Multi-Cause of Action Lawsuit and Defendants Return Fire with
Omnibus Motions to Dismiss Under the TCPA.
commercial real-estate transaction went awry, Sutherland
filed its original petition against Defendants on November
20, 2018. On January 22, 2019, Sutherland amended its
petition seeking money damages with a volley of ten unique
causes of action, including breach of contract, fraud, fraud
by nondisclosure, fraudulent inducement, fraud in a
real-estate transaction, negligent misrepresentation,
conspiracy, violations of the Texas Deceptive Trade Practices
Act, and common-law and statutory false advertising. Along
with the amended petition, Sutherland served Defendants with
a bevy of written discovery requests, including:
• Plaintiff's First Set of Interrogatories to
Defendant SRS National, containing 13 interrogatories, some
of which included multiple subparts;
• Plaintiff's First Set of Interrogatories to
Defendant SSCP, containing 23 interrogatories, some of which
included multiple subparts;
• Plaintiff's First Request for Production to
Defendants SSCP, SDharod, Apple Texas, and Texas Apple, which
included 110 requests for production; and
• Plaintiff's First Request for Production to SRS
Defendants, which included 87 requests for production to SRS
Real Estate and SRS National.
response to the amended petition, on January 28, 2019,
Defendants returned fire by filing motions to dismiss
Sutherland's claims under the dismissal provisions of the
TCPA (the TCPA Motions to Dismiss). See Tex. Civ. Prac.
& Rem. Code Ann. § 27.003. Defendants contended the
lawsuit is subject to dismissal under the TCPA because it
affects the exercise of their constitutional rights of
freedom of speech and association. The day after Defendants
filed their TCPA Motions to Dismiss, Sutherland countered
with a motion to conduct discovery (Motion to Conduct
Discovery). The Motion to Conduct Discovery did not include
any specific discovery requests but attached copies of the
comprehensive written discovery served with the amended
petition on January 22, 2019, as well as the correspondence
from Sutherland's attorney to Defendants' attorneys
requesting corporate representative depositions from each
Defendant on forty-three distinct deposition topics. The
trial court conducted a hearing on the Motion to Conduct
Discovery on February 4, 2019, and granted the motion without
limitation on February 6, 2019, allowing Sutherland to
proceed with its requested discovery.
The Battle Lines are Drawn: Defendants File Their First
Petition for Writ of Mandamus.
swords now unsheathed, on February 18, 2019, Defendants filed
an emergency motion with the trial court requesting that all
discovery be stayed pending the resolution of a petition for
writ of mandamus that it intended to file in this court. Two
days later, on February 20, 2019, Defendants filed their
first petition for writ of mandamus in this court challenging
the order on the Motion to Conduct Discovery. The same day,
Sutherland filed a response to Defendants' emergency
motion to stay in the trial court indicating that it would
voluntarily remove or modify some of the previously granted
discovery requests (Modified Motion to Conduct Discovery). On
February 21, 2019, the trial court granted the emergency
motion to stay all discovery pending the resolution of the
first petition for writ of mandamus.
hearing was conducted on February 27, 2019 on
Sutherland's Modified Motion to Conduct Discovery, and on
March 1, 2019, the trial court entered an order granting the
motion (the Discovery Order). As a result, on that same day,
this court dismissed Defendants' first petition for writ
of mandamus as moot.
the record before the Court is somewhat muddled, it appears,
by a conservative count, that the Discovery Order entered by
the trial court on March 1 is only slightly less
comprehensive than the original order. It allows Sutherland
fifty-nine requests for production from four of the six
Defendants, fifty-eight requests for production from two of
the six Defendants, eleven interrogatories from SRS Real
Estate, seven interrogatories from SSCP, and at least six
four-hour depositions from each of Defendants' corporate
representatives on the original, unmodified forty-three
deposition topics prior to the hearing on the TCPA Motions to
The Battle Continues: Defendants File Their Second ...