Page 24 - San Antonio Vol 1 No 2

CAROLINE NEWMAN SMALL | Litigation
Case Update: Sanctions for Frivolous Pleadings May Be Reduced to a SLAPP on the Wrist
In2015, ird Court of Ap- peals Justice Bob Pember- ton, presciently warned that the Texas Citizens Participation Act (“TCPA”), or the Anti-Strategic Law- suits Against Public Participation (“SLAPP”) statute, was “an across- the-board game changer in Texas civil litigation.” Sera ne v. Blunt, 466 S.W.3d 352, 365 (Tex. App.—Austin 2015, no pet.) (Pemberton, J., concur-
ring).
e TCPA allows a motion to dis-
miss a “legal action” that is based on, relates to, or is in response to the par- ty’s exercise of the right to free speech, right to petition, or right of associa- tion. Tex. Civ. Prac. & Rem. Code § 27.003(a). A “legal action” is a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim, or any other ling that requests legal or equi- table relief. Id. § 27.001(6). e TCPA was designed “to encourage and safe- guard the constitutional rights of persons to petition, speak freely, as- sociate freely, and otherwise partici- pate in government to the maximum
extent permitted by law and, at the same time, protect the rights of a person to le meritorious
lawsuits for demonstrable injury.” Id. § 27.002.
Increasingly, however, the TCPA is being used by litigants as a sword to combat garden variety pleadings and lings by successfully characterizing them as “legal actions” subject to the TCPA. See e.g., ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (holding that certain in- ternal employer communications re- garding employee performance are subject to the TCPA); DeAngelis v. Protective Parents Coal., 556 S.W.3d 836, 849 (Tex. App.—Fort Worth 2018, no pet.) (holding that Rule 202 petitions are subject to the TCPA); Quintanilla v. West, 534 S.W.3d 34, 46 (Tex. App.—San Antonio 2017, pet. granted) (holding that slander of title and fraudulent lien claims are subject to the TCPA); Elite Auto Body LLC v. Autocra Bodywerks, Inc., 520 S.W.3d 191, 205-06 (Tex. App.—Austin 2017, pet dism’d.) (holding that trade-secret misappropriation claims are subject to the TCPA).
In a case that underscores Justice Pemberton’s concern about the TC- PA’s “unintentional consequences,” this list recently expanded to include a motion for sanctions for frivolous pleadings. In Hawxhurst v. Austin
Boat Tours, Hawxhurst sued Austin Boat Tours (“ABT”) a er Hawxhurst’s boat propeller got entangled inside a make-shi buoy’s dock line. 550 S.W.3d 220, 223 (Tex. App.—Austin 2018, no pet.). In response to Hawx- hurst’s suit, alleging negligence and other claims, ABT led a “counter- claim” under Chapter 9 of the Texas Civil Practice and Remedies Code, alleging that Hawxhurst’s suit was frivolous and seeking sanctions and attorney’s fees. Id. at 224. Hawxhurst led a motion to dismiss the counter- claim under the TCPA on the grounds that it was led “solely as a result of [Hawxhurst] exercising his right to petition.” Id. e district court held that ABT’s counterclaim had been mislabeled and was actually a motion for sanctions. Id. On this basis, the district court found that the TCPA did not apply and denied Hawxhurst’s motion to dismiss. Id.
A divided ird Court of Appeals disagreed and reversed. Id. at 233. Re- gardless of whether ABT’s requested relief was characterized as a coun- terclaim or motion for sanctions, the majority held that it fell within the de nition of “legal action” under the TCPA because it was a “judicial plead- ing or ling that requests legal or eq-
Caroline Newman Small is an equity partner and the managing partner at Davis & Santos, P.C. Caroline represents individuals, nancial institutions, and business entities in complex business litigation, tax litigation, and bankruptcy litigation matters. Prior to joining Davis & Santos, Caroline was an Honors Program Trial Attorney in the Tax Division of the United States Department of Justice in Washington, D.C., where she litigated af rmative and defensive civil cases in federal district courts and bankruptcy courts. For more information, visit www.dslawpc.com or call Caroline at (210) 853-5882.
ATTORNEY AT LAW MAGAZINE · SAN ANTONIO · VOL. 1 NO. 2 24