Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 44th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-08711
Justices Myers, Osborne, and Nowell
Ruth Torres files this interlocutory appeal of the trial
court's denial of her motion to dismiss under the Texas
Citizens Participation Act (TCPA). See
Tex. Civ. Prac. & Rem. Code Ann. §§ 27.008,
51.014(a)(12). Torres brings six issues on appeal, four
concerning the motion's untimeliness, one addressing its
merits, and one questioning whether an automatic stay was in
place at the time the motion was denied. We affirm the trial
court's denial of Torres's motion to dismiss.
underlying dispute in this case concerns a contract in which
Torres was to provide human resources consulting services to
appellee, Pursuit of Excellence (POE). Due to the nature of
the agreement, Torres received access to a broad range of
POE's confidential and proprietary information. Appellee
alleged Torres prematurely terminated her contract with the
company and transmitted POE's confidential and
proprietary information to her personal electronic storage
device. On July 20, 2016, POE filed suit against Torres for
breach of contract, breach of fiduciary duty,
misappropriation of trade secrets, unjust enrichment,
tortious interference with contract and business
relationships, and commercial disparagement. Torres filed an
answer, denying allegations and asserting claims against POE
and other parties. On February 7, 2018 POE filed its first
amended petition, containing no new causes of action. POE
filed a second amended petition adding violations of the
Texas Finance Code and the Texas Harmful Access by Computer
Act on March 14, 2018.
15, 2018 Torres filed a motion to dismiss POE's claims
against her pursuant to the TCPA. POE filed a response,
objecting that the motion was untimely because it was filed
over two years after the inception of all claims except two,
and sixty-two days after those claims, and also objecting
that Torres failed to meet her burden of proof under the
TCPA. Torres responded, seeking leave to file her motion on
the basis that she was "pro se and was unaware of this
statute." The trial court held a hearing on Torres's
motion to dismiss, and the court denied that motion on June
6, 2018. The next day, Torres filed a notice of appeal
challenging the order denying her motion to dismiss, among
CITIZENS PARTICIPATION ACT
review a trial court's denial of a TCPA motion to dismiss
de novo. Dyer v. Medoc Health Servs., LLC, No.
05-18-00472-CV, 2019 WL 1090733, at *3 (Tex. App.-Dallas Mar.
8, 2019, pet filed). A party triggers the TCPA's
dismissal procedure by filing a motion to dismiss.
See Tex. Civ. Prac. & Rem. Code Ann. §
27.003(a). A motion to dismiss must be filed not later than
the 60th day after the date of service of the legal action.
Id. § 27.003(b). If the motion is not filed
within the statutory deadline, the movant forfeits the
early-dismissal protections of the statute. See,
e.g., Braun v. Gordon, No. 05-17-00176, 2017 WL
4250235, at *1, 3 (Tex. App.- Dallas Sept. 26, 2017, no pet.)
(mem. op.). But, the trial court may extend the time to file
a motion on a showing of good cause. Tex. Civ. Prac. &
Rem. Code Ann § 27.003(b).
Torres's Motion Was Untimely
first four issues concern the timeliness of her TCPA motion
to dismiss. First, Torres asks whether the petitions and
pleadings of the parties are sufficient to support dismissal
under the TCPA without Torres explicitly invoking the Act.
Both parties agree that Torres did not mention the TCPA in
anything she filed prior to May 15. Relief under the TCPA
requires the filing of a motion to dismiss under the Act.
See Tex. Civ. Prac. & Rem. Code §
27.003(a), (b). Until Torres filed her motion to dismiss
under the Act, the trial court had no motion before it on
which it was empowered to rule in accordance with the TCPA.
The Act empowers the court to rule on a motion pending before
it; it does not empower the court to apply the TCPA sua
sponte. Tex. Civ. Prac. & Rem. Code § 27.005. The
trial court could not have granted this relief without a
pending motion. See Tex. Civ. Prac. & Rem. Code
§ 27.003(c). We decide against Torres on this issue.
second issue, Torres asks whether her TCPA Motion to Dismiss
was "considered filed timely if one day late due to
technical difficulty per [Tex. R. Civ. P. 21(f)(6)]."
Torres filed her motion to dismiss on May 15, 2018. The
parties do not dispute that this was more than sixty days
after she was served with the second amended petition.
See Tex. Civ. Prac. & Rem. Code Ann §
27.003(b). In defense of her late filing, Torres argues to
this Court that she was unable to file timely due to a
"technical difficulty" in the e-filing system. In
the trial court, however, she justified her untimeliness with
different explanations, arguing first that "the record
did not show service of the citation" for POE's
amended February 7, 2018 pleading; second, that the record
did not show "service of the citation for POE's
March 14, 2018 pleading"; and third, that she "is
pro se and unaware [of the TCPA]."
Texas law, POE's certificates of service for both
pleadings create a presumption of service because they
constitute prima facie evidence of service. Mathis v.
Lockwood, 166 S.W.3d 743, 745 (Tex. 2005). The record
shows that Torres was served with both of POE's amended
pleadings. Torres did not argue or attempt to rebut such a
presumption. Also, she provided no evidence at trial to
support her claim of technical difficulty. Because she
provided no evidence of her alleged technical difficulty in