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Duncan v. Acius Group, LP

Court of Appeals of Texas, Fifth District, Dallas

September 13, 2019

ANDREW DUNCAN AND HAYLEY MORRIS-DUNCAN, Appellants
v.
ACIUS GROUP, LP AND SURVIVOR OUTREACH SERVICES, LLC, Appellees

          On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-03198-2018

          Before Justices Whitehill, [1] Partida-Kipness, and Pedersen, III

          MEMORANDUM OPINION

          BILL WHITEHILL JUSTICE

         This is 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.

         For this and other reasons discussed below, we affirm in part, reverse in part, and remand for further proceedings.

         I. Background

         A. Factual Allegations

         Unless 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.

         In December 2014, appellant Andrew Duncan became chief officer of operations for appellee ACIUS Group, LP.

         Tom Maxwell was ACIUS's limited partner. Maxwell was also the only member of the other appellee, Survivor Outreach Services, LLC (SOS).

         Duncan 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.

         In June 2018, ACIUS terminated Duncan's employment.

         Appellees' 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 publications.

         B. Procedural History

         ACIUS 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 judgment.

         Appellants timely filed a TCPA dismissal motion seeking dismissal of the entire lawsuit, costs, attorneys' fees, and sanctions.

         Appellees 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.

         The trial court conducted a hearing and took the motion under advisement.

         A few days later, appellees filed a supplemental response to the dismissal motion. Appellants moved to strike the supplemental response as untimely.

         The 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. § 27.008(a).

         Appellants timely perfected this interlocutory appeal from the denial of their dismissal motion. See id. §§ 27.008(a), 51.014(a)(12)

         II. Issues

         Appellants raise three issues on appeal, which we summarize as follows:

1. Did the trial court err by denying their motion to dismiss?
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 ...

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