Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 429th Judicial District Court Collin County,
Texas, Trial Court Cause No. 429-01844-2013
Justices Whitehill, Molberg, and Reichek.
Texas Citizens Participation Act, Tex. Civ. Prac. & Rem.
Code Ann. §§ 27.001-.011 (the TCPA), "protects
citizens who petition or speak on matters of public concern
from retaliatory lawsuits that seek to intimidate or silence
them." In re Lipsky, 460 S.W.3d 579, 584 (Tex.
2015) (orig. proceeding). Indeed, the stated purpose of the
TCPA is 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." Tex. Civ. Prac. & Rem.
Code Ann. § 27.002.
based on the broad definitions in the statute, parties have
sought to apply the protections of the TCPA to an increasing
range of situations that do not further this purpose,
including filing motions to dismiss (1) a suit affecting the
parent-child relationship under the family code, Smith v.
Malone, No. 05-18-00216-CV, 2018 WL 6187639, at *1-2
(Tex. App.- Dallas Nov. 27, 2018, pet. denied) (mem. op.);
(2) an appeal from the denial of a motion to dismiss under
the TCPA, Amini v. Spicewood Springs Animal Hosp.,
LLC, 550 S.W.3d 843, 843-44 (Tex. App.-Austin 2018, no
pet.); (3) a post-judgment subpoena directed to a third
party, Dow Jones & Co., v. Highland Capital Mgmt.,
L.P., 564 S.W.3d 852, 854 (Tex. App.-Dallas 2018, pet.
filed); and (4) a TCPA motion to dismiss, Paulsen v.
Yarrell, 537 S.W.3d 224, 230 (Tex. App.- Houston [1st
Dist.] 2017, pet. denied).
appeal is the second interlocutory appeal in this case
concerning an order denying dismissal under the TCPA. In the
first appeal, we determined the trial court did not err by
denying Tracy Johns' TCPA motion to dismiss Karen
Misko's substantive claims. See Backes v. Misko,
486 S.W.3d 7 (Tex. App.-Dallas 2015, pet. denied). In this
second appeal, Misko, attempting to stretch the applicability
of the TCPA beyond the substantive claims at issue, contends
the trial court erred by denying a TCPA motion to dismiss a
motion for sanctions filed by Johns based on Misko's
conduct during the course of litigation.
conclude the definition of "legal action" in the
TCPA does not encompass a motion for sanctions alleging
discovery abuse by a party that is filed after, and in this
case years after, the commencement of litigation. Further,
construing the TCPA to apply to such a motion would open the
floodgates to serial motions to dismiss during the pendency
of litigation based on conduct ancillary to the substantive
claims in the case. Accordingly, we affirm the trial
court's denial of Misko's motion to dismiss.
9, 2013, Jane Backes sued Misko for tortious interference
with prospective business relations and invasion of privacy.
That same day, Johns filed a petition in intervention
alleging Misko had also tortiously interfered with Johns'
prospective business relations. On January 27, 2014, Misko
filed counterclaims against Backes and Johns. Misko alleged
Johns defamed her in postings on an internet forum and that
Backes and Johns conspired to publish the defamatory
statements with the intention of harming Misko's
reputation and business.
and Johns filed motions to dismiss Misko's claims
pursuant to the TCPA. The trial court denied the motions to
dismiss, and Backes and Johns filed an interlocutory appeal.
We affirmed the trial court's denial of Johns'
motion, but reversed its denial of Backes' motion and
rendered judgment dismissing Misko's claims against
Backes. See Backes, 486 S.W.3d at 29.
remand, Johns began conducting discovery into Misko's
substantive claims and damages. Johns filed numerous motions
complaining Misko was not adequately complying with the
discovery requests and asserting Misko had improperly
designated expert witnesses and failed to produce documents
relied upon by the designated experts. The discovery disputes
culminated in a motion for sanctions filed by Johns on March
14, 2018. In the motion, Johns alleged Misko had used false
evidence (suborned perjury) and made fraudulent filings in
the case. Johns specifically asserted Misko (1) had induced a
fact witness to sign a false affidavit and used that
affidavit, as well as a false and misleading affidavit from
an expert witness, to defeat Johns' motion to dismiss;
(2) fraudulently designated two individuals as expert
witnesses; and (3) "duped" the trial court into
making rulings based on the assumption that the designated
individuals had relevant records. Johns requested that,
pursuant to Chapter 10 of the Texas Civil Practice and
Remedies Code, Texas Rules of Civil Procedure 13 and 215, and
the trial court's inherent power, the trial court dismiss
Misko's claims and award Johns attorneys' fees and
expenses of at least $147, 290.31.
filed a TCPA motion to dismiss the motion for sanctions.
Misko argued the motion for sanctions was a legal action, as
defined by the TCPA, and was filed in response to her
exercise of the right to petition and Johns could not produce
clear and specific evidence to establish a prima facie case
for each essential element of the motion for
sanctions. Johns responded to the motion to dismiss,
attaching voluminous evidence.
motion to dismiss and Johns' motion for sanctions were
set to be heard on the same day. After the trial court denied
the motion to dismiss, Misko immediately filed a notice of
interlocutory appeal, staying all proceedings in the trial
court including Johns' motion for sanctions. See
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(12),
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