Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 429th Judicial District Court Collin County,
Texas Trial Court Cause No. 429-03198-2018
Justices Whitehill,  Partida-Kipness, and Pedersen, III
an interlocutory appeal from the denial of appellants'
dismissal motion under the Texas Citizens Participation Act
(TCPA). See Tex. Civ. Prac. & Rem. Code
§§ 27.001-.011. A pivotal question before us is
whether allegations that a person engages in animal abuse and
killing implicate a matter of public concern and thus
constitute an exercise of the right of free speech as defined
by the TCPA. In light of well-known public concerns over
animal welfare issues, we answer that question yes.
this and other reasons discussed below, we affirm in part,
reverse in part, and remand for further proceedings.
otherwise noted, we draw these allegations from
plaintiffs-appellees' amended petition, which was the
live petition when the trial court denied appellants'
dismissal motion. For purposes of appeal on this record, we
accept these allegations as true and as describing the nature
of appellees' claims.
December 2014, appellant Andrew Duncan became chief officer
of operations for appellee ACIUS Group, LP.
Maxwell was ACIUS's limited partner. Maxwell was also the
only member of the other appellee, Survivor Outreach
Services, LLC (SOS).
gave himself raises and bonuses without approval from any
authorized ACIUS personnel. He also gave unapproved bonus
payments to another ACIUS employee and used ACIUS's
credit card to pay personal expenses.
2018, ACIUS terminated Duncan's employment.
original petition included additional allegations. It alleged
that after ACIUS fired Duncan, his wife, Hayley
Morris-Duncan, published some defamatory statements about
Maxwell. These statements included calling him a
"pathological liar" and accusing him of
"abusing and/or killing his cherished horses, cattle and
dogs." The original petition further alleged, on
information and belief, that Duncan aided and abetted these
and SOS originally sued both Duncan and Morris-Duncan for
defamation, alleging that Morris-Duncan defamed Maxwell and
Duncan aided and abetted her. They also sued Duncan alone for
fraud, common-law and statutory theft, and declaratory
timely filed a TCPA dismissal motion seeking dismissal of the
entire lawsuit, costs, attorneys' fees, and sanctions.
then filed the amended petition that was their live pleading
when the trial court denied appellants' dismissal motion.
The amended petition dropped Morris-Duncan from the lawsuit
entirely. It also dropped the defamation claim, leaving only
the claims against Duncan for fraud, common-law and statutory
theft, and declaratory judgment. Appellees also responded to
the dismissal motion.
trial court conducted a hearing and took the motion under
days later, appellees filed a supplemental response to the
dismissal motion. Appellants moved to strike the supplemental
response as untimely.
trial judge did not issue an order on the dismissal motion
within thirty days after the hearing, so the motion was
denied by operation of law. See Civ. Prac. §
timely perfected this interlocutory appeal from the denial of
their dismissal motion. See id. §§
raise three issues on appeal, which we summarize as follows:
1. Did the trial court err by denying their motion to
2. Did the trial court err by denying their motion to
strike certain affidavits?
3. Did the trial court err by considering the supplemental
response appellees filed after the ...