Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 422nd Judicial District Court Kaufman County,
Texas Trial Court Cause No. 100256-422
Justices Pedersen, III, Reichek, and Carlyle
PEDERSEN, III JUSTICE
appeal is from an interlocutory order granting in part and
denying in part a motion to dismiss filed pursuant to the
Texas Citizens Participation Act (TCPA). See Tex.
Civ. Prac. & Rem. Code Ann. §§
27.001-.011. Appellant/cross-appellee Erin Walker,
the movant below, contends that the district court should
have granted her motion in its entirety.
Cross-appellants/appellees Pegasus Eventing, LLC (Pegasus),
Ellen Doughty-Hume, and Alistair Hume, the non-movants,
assert Walker forfeited her motion, and, alternatively, the
court properly denied the motion in part on its merits. We
hold the hearing on Walker's motion was untimely, which
resulted in a forfeiture of the motion. Accordingly, we
affirm in part and reverse and remand in part, as explained
Doughty-Hume and Alistair Hume own appellee Pegasus, which
provides eventing training and horse boarding. Doughty-Hume
was certified by the United States Eventing Association
(USEA) as an instructor pursuant to the Instructor
Certification Program (ICP).
April 2016, Walker sought out Doughty-Hume for eventing
training. Over the next sixteen months, Doughty-Hume trained
Walker and boarded her horses. Walker claims that,
unbeknownst to her at the time, Doughty-Hume's training
methods caused horses to over-faceand to suffer avoidable
injuries. Moreover, Doughty-Hume allegedly (i) pushed Walker
to perform jumps above her competition level and skill; and
(ii) placed a horse that she believed to be sick in the barn
near Walker's horses. In addition, while lunging a horse
named Beau, Doughty-Hume became frustrated and allegedly used
the whip to move Beau forward. Beau grew anxious and stood up
on his hind legs. This caused him to lose his balance, fall
backwards, and hit is head forcibly on the ground, thereby
suffering a fatal injury.
obtained additional lessons from other instructors and came
to the conclusion that Doughty-Hume's training was
dangerous to riders and horses. By August 2017, Walker fired
Doughty-Hume as her instructor and moved her horses from
same year, the USEA investigated Doughty-Hume after it
received complaints regarding her teaching methods and her
purported mistreatment of horses. The USEA reached an
agreement with Doughty-Hume that she could maintain her
certification if, going forward, she would (i) "instruct
and ride without use of excessive force"; (ii)
"[p]rovide humane care for all horses boarded";
(iii) "[a]void over-facing horses and/or riders,
especially when jumping"; and (iv) "[m]ount
children and amateur adults on horses appropriate to
riders' experience, disposition, [and] skills - i.e. on
horses who are not too young, not too green, [and]
Walker and another of Doughty-Hume's clients each made an
additional complaint to the USEA regarding Doughty-Hume. In
connection with the investigation of these complaints, Walker
provided a statement to the USEA. Following its
investigation, the USEA revoked Doughty-Hume's
certification based on its determination that "a greater
than preponderance of pertinent and credible evidence
support[ed] the complaints."
sued Walker and three other clients of Doughty-Hume-Stephanie
Clifford, Glendon Crain, and Kelsey Silvey. Appellees
asserted five causes of action against all defendants:
business disparagement, tortious interference with existing
contracts, tortious interference with prospective business
relations, intentional infliction of emotional distress, and
civil conspiracy. Appellees also asserted a defamation claim
against Clifford, Crain, and Silvey. The foregoing claims
were premised on defendants' purported campaign to harm
appellees through disparaging statements and allegedly false
accusations of illegal conduct.
to this appeal, Clifford was served with process on September
22, 2018. On September 24, Walker filed a motion to dismiss
appellees' claims pursuant to the TCPA. See Civ.
Prac. & Rem. § 27.003. The certificate of service on
Walker's motion reflects that the motion was served that
day on Christine Renne, who was counsel for appellees, and on
Rothwell Pool, who was counsel for Crain. Walker did not
serve Clifford with the motion.
weeks later, on October 15, Clifford filed an original answer
pro se. Clifford's answer contained a "c/o"
designation beneath her name that listed the address of
Michael Avenatti, an out-of-state attorney. However, Avenatti
did not sign the answer.
motion was set for hearing on November 13, 2018. See
id. § 27.004(a) (requiring that hearing on motion
to dismiss be set no later than sixtieth day after date of
service of motion, subject to enumerated exceptions). Prior
to the hearing date, appellees filed a motion for discovery
and for continuance of the hearing. Compare id.
§ 27.003(c) (providing that all discovery is suspended
during the pendency of a motion to dismiss) with id.
§ 27.006(b) ("On a motion by a party . . . and on a
showing of good cause, the court may allow specified and
limited discovery relevant to the motion.").
motion was set for hearing on November 1, but this hearing
never occurred. Instead, on November 1, the parties signed
and filed a Rule 11 agreement with the court. See
Tex. R. Civ. P. 11. The agreement provided that appellees
would cancel the hearing on their motion for discovery, and
the parties would allow limited discovery relevant to
Walker's motion to dismiss. In addition, Walker agreed to
cancel the hearing on her motion and to request that the
hearing instead be conducted in December 2018. See
Civ. Prac. & Rem. § 27.004(a) (permitting extension
of deadline for conducting hearing on TCPA dismissal motion,
upon agreement of parties, subject to requirement that such
hearing may not occur more than ninety days after service of
motion). Moreover, the parties agreed that the hearing on
Walker's motion would not "be set later than the
statutorily mandated time frame, which is up to 120 days
(January 22, 2019) after service of the . . . Motion."
See id. §§ 27.004(c), 27.006(b)
(permitting extension of deadline for conducting hearing on
TCPA dismissal motion, if court allows discovery, subject to
requirement that such hearing may not occur more than 120
days after service of motion). On November 16, the parties
signed a second Rule 11 agreement that set forth deadlines
for responding to each other's discovery requests. This
agreement contemplated that discovery would be completed by
December 7, 2018.
to the November 1 agreement, Walker's motion to dismiss
was set for hearing on December 18, 2018. On the day before
the hearing, the parties filed several documents with the
court, including, by Walker, a reply brief in support of her
motion, and, by appellees, a sur-reply brief and a first
amended petition. Among other new allegations, appellees'
amended petition accused Walker and the other defendants of
making false statements about appellees "and their
alleged treatment of working students, some of whom were
beginning of the December 18 hearing on Walker's motion
to dismiss, the district court asked whether Clifford had
been served with the motion or with notice of the hearing.
Walker's counsel responded he had not served Clifford
with the motion, and he served the notice of hearing only on
Avenatti. Both Crain's and appellees' counsel
concurred that, for the hearing to proceed, Clifford needed
to be served with the motion. See Tex. R. Civ. P.
21(b) (providing that notice of hearing must be served on all
parties not less than three days before time specified for
hearing). Walker's counsel argued to the contrary and
also urged that the TCPA mandated that the hearing on the
motion to dismiss occur within 120 days of service of the
motion, i.e., by January 22, 2019. The court reset the
hearing for January 11 and instructed counsel to serve
Clifford with notice of the hearing and all documents related
to Walker's pending motion.
the December 18 hearing, appellees' counsel, Renne,
stated that Walker had produced over 2, 000 pages of text
messages to appellees. Renne asked, "[i]f I find
additional information, may I still submit that as well as
some affidavits?" She also asked for an opportunity to
more thoroughly review and respond to Walker's reply
brief. Based on these requests, the court stated,
"I'm going to give you a date where you'll have
an opportunity to digest the briefs and materials
provided." The court gave counsel until January 4 to
supplement the record with any additional materials that they
wished to submit in support of, or in opposition to,
Walker's motion to dismiss.
the December 18 hearing, Walker served Clifford with the
motion to dismiss and the notice of the reset hearing. In
addition, Walker supplemented her document production to
appellees. On January 4, appellees again amended their
petition, this time to assert for the first time a defamation
claim against Walker based on the documents that she had
produced in her supplemental production. Appellees also filed
a supplemental brief that urged the upcoming January 11
hearing was untimely because it was not held within ninety
days after Walker served her motion on appellees, i.e., by
December 24, 2018. See id. § 27.004(a).
Appellees asserted that the only permissible basis for
holding the hearing beyond the ninety-day deadline-to allow
for discovery, see id. §§ 27.004(c),
27.006(b)-did not apply here. Appellees renewed their
objection at the January 11 hearing. The court overruled the
objection, stating, "I set this matter for hearing
within the 60 day period. I recessed the hearing to cure a
defect in service, and I'm reconvening the hearing
today." The court also stated that it "want[ed] the
record to be closed effective at the beginning of this
hearing because otherwise I'll never have a stopping
point . . . to make a ruling."
little over a month later, on February 8, the court denied
Walker's motion to dismiss as to appellees' business
disparagement claim and granted the motion as to
appellees' remaining claims, except for appellees'
defamation claim, which the court's order did not
reference. The court based its order on appellees'
original petition, which was their live pleading as of the
date of Walker's motion to dismiss. This petition did not
allege a defamation claim against Walker, but the parties
agree that they tried appellees' defamation claim by
consent for purposes of Walker's motion to dismiss.
Accordingly, Walker asserts that the court's order should
have included a ruling on the defamation claim.
February 12, 2019, Walker filed a motion for mandatory
attorney's fees and sanctions. See id. §
27.009. The court held a hearing on this motion ten days
later. At the hearing, appellees made another objection as an
alternative to their prior objection that the January 11
hearing was untimely. Specifically, assuming that the hearing
on Walker's motion to dismiss occurred on December 18,
appellees urged that the motion was overruled by operation of
law thirty days later, on January 18, 2019. See id.
§§ 27.005(a), 27.008(a). According to appellees,
this ruling by operation of law rendered the February 22
hearing moot. The court overruled appellees' objection,
stating, "[t]he hearing actually took place in January.
. . . [T]here had been a defect in service on one of the
parties to the lawsuit, and I recessed that matter to
reconvene in January after service on Ms. [Clifford]."
February 27, 2019, the court granted Walker's motion for
attorney's fees and sanctions, and it amended this order
on March 1. See id. § 27.009. Both the original
and amended orders awarded Walker $30, 000 in reasonable and
necessary attorney's fees and an additional $1, 000 as a
sanction against appellees. Walker appealed the court's
February 8 order, see id. § 51.014(a)(12)
(permitting appeal of interlocutory order that denies motion
to dismiss under Civil Practice and Remedies Code section
27.003), and appellees cross-appealed the February 8 and
March 1 orders, see Pickens v. Cordia, 433 S.W.3d
179, 181-82, 187-88 (Tex. App.-Dallas 2014, no pet.) (in
movant's appeal from order denying movant's TCPA