In an opinion by Justice Goldstein, the Dallas Court of Appeals said out loud what virtually every other trial and appellate court judge or justice might on occasion think themselves: the TCPA’s aspiration may be “laudable, its application has been stretched to the ethical limits of lawyers’ creative litigation tactics. The tortured history of TCPA judicial opinions, disparate and split among the intermediate appellate courts, reflects that the TCPA occupies a shifting position in an ever-changing landscape of Texas jurisprudence.” (The court appended a footnote to this statement alluding to the Legislature’s 2019 amendments to “limit the expansive nature of the TCPA” and that “to date, over 900 appellate decisions have addressed challenges under the TCPA and trial courts are still counting, with blogs and CLE tracking the latest in litigation trends.”
The Dallas Court of Appeals has taken shots at “the expansive nature” of the TCPA before, but this opinion in Todd Dyer, et al v. Medoc Health Service, LLC and Total RX Case, LLC (No. 05-21-00433-CV) indicates just how fed up the court must be with having to contend with TCPA issues in so many contexts. (We believe that the 2019 amendments will help mitigate this problem, but we probably won’t know the full extent of its effect until we have a few more years of case authority.) The fact that this case was before the court of appeals a second time on the TCPA may have contributed to its attitude, but in any event it seems ridiculous that a statute designed to reduce “frivolous” litigation should be the cause of so much of it. In Dyer I, the court affirmed the trial court’s denial of a TCPA motion to dismiss on the basis that the TCPA did not apply to private communications between co-conspirators in a misappropriation of trade secrets case. Although the court recognized that other appellate courts have held otherwise, it refused to follow suit, and SCOTX ended up denying Dyer’s petition for review.
In Dyer II the issue before the court of appeals was the trial court’s award of $261,000 of attorney’s fees to Medoc based on its determination that Dyer’s TCPA motion was frivolous because it was made solely to delay the proceedings. The court reversed the award, reasoning that since other appellate courts had applied the TCPA to claims similar to Dyer’s, Dyer’s claim had some basis in law and it would not be appropriate to sanction Dyer for giving it a try. The court further found that the trial court made no express findings “to substantiate a determination that the motion had no basis in law or fact or lacked legal basis or legal merit. We decline the opportunity to add to the TCPA morass with a determination or intimation that appellate affirmation of the denial of a TCPA motion, without more express findings, supports or establishes frivolity.”
“Frivolity” aside, there is no question that the use of the TCPA in this lawsuit caused delay. The case commenced in January 2018. Dyer filed a TCPA motion to dismiss in February 2018, which the trial court denied in April. Dyer appealed the denial, which the court of appeals affirmed in Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418 (Tex. App.—Dallas 2019, pet. denied). Medoc filed the motion for attorney’s fees in November 2020, which the trial court granted in April and incorporated into a June 2021 final judgment. The court of appeals finally rendered judgment in December 2022, almost five years after the lawsuit was filed and, apparently, without ever reaching the merits. Again, we hope that the 2019 amendments will substantially cut down on the sheer number of lawsuits with TCPA issues so that cases like this one don’t keep stopping up the works.
