In a case stemming from a highly publicized dispute between a dozens of Texas State University students and an apartment complex in San Marcos, the Austin Court of Appeals has reversed a Hayes County trial court’s denial of the complex’s motion for TCPA sanctions against the mothers of two of the students.
Jerretta Pate and April Burke v. Haven at Thorpe Lane, LLC (No. 03-22-00404-CV; filed October 26, 2023) arose from a lawsuit filed by students who signed leases based on the complex’s guarantee that it would be ready for occupancy by the beginning of the 2019-2020 school year. Unfortunately, the complex didn’t make the date, leaving the students out in the cold. The mothers of two of the students went ballistic and made their displeasure known to local media outlets. They also organized other students and parents, made complaints to local government authorities, created a Facebook page, and traded information and commentary about alleged nefarious practices of the complex. The complex responded by subpoenaing the non-party moms for documents related to the underlying lawsuit. The moms provided some documents and filed objections to the subpoena. The complex argued that the moms failed to comply with the subpoena and filed a motion for an order from the trial court ordering them to comply under TRCP 176.6. At the same time, the complex filed a motion for sanctions, which the trial court was not authorized to grant against nonparties. The right way to go would have been a motion for contempt if the moms still refused to comply, but the complex didn’t do that. The moms struck back by filing a TCPA motion to dismiss. The court of appeals took this to mean that the moms intervened in the lawsuit and became parties for all purposes (citations omitted). The trial court denied the motion. The moms filed an interlocutory appeal.
A split panel of the court of appeals reversed. The first question was whether the complex’s motion for sanctions constituted a legal action under the TCPA. The court held that it did. Next, the court turned to whether the motion for sanctions fell under a 2019 TCPA amendment, which excepted from the definition of “legal action” a “procedural action taken of motion made in an action that does not amend or add a claim for legal, equitable, or declaratory relief.” The court found that the motion for sanctions “constituted a ‘claim’ for relief within the meaning of the TCPA” on the basis that that “a ‘claim’ does not need to have existed before the suit is filed” (unlike a cause of action). The court then had to determine whether the complex’s motion for sanctions “amend[ed] or add[ed] a claim for legal, equitable, or declaratory relief.” Another 2019 amendment to the TCPA narrowed the definition of “legal action” to exclude motions that do not add such claims. Relying primarily on Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021), the court reasoned that a motion for monetary sanctions “sought relief from new parties, i.e., parties from whom [the complex] had not previously sought relief and, indeed, who were not then parties at all. In addition, the motion was based on an entirely new set of ‘essential factual allegations’ from what had previously been alleged, i.e., that the mothers had failed to comply with a subpoena []. It follows that [the complex’s] motion sought relief on the basis of a new legal claim or theory—an alleged violation of discovery rules.”
Having determined that the complex’s motion for sanctions added a new claim for relief, the court had no difficulty in finding that the mothers’ TCPA motion was “based on or in response to a party’s exercise of the right of free speech,” specifically “a legal action against a person related to the communication, gathering, receiving, posting, or processing of consumer opinions or commentary, evaluations of consumer complaints, or reviews or ratings of businesses.” § 27.010(b)(2), CPRC. It further determined that the motion to dismiss “arose from” the mothers’ actions “in furtherance of [their] communication or conduct described by § 27.010(b).” § 27.003(a), TCPA. Here the court decided that the statutory term “arises from” means but-for causation “at most” (whatever that means). Turning to whether the complex made a prima facie case for its motion for sanctions, the court found that it presented no evidence that the mothers failed to comply with the terms of the subpoena. The trial court thus erred in denying their motion, and the court of appeals remanded for a determination of costs and attorney’s fees, as well as whether sanctions against the complex should be imposed.
Justice Baker filed a dissenting opinion. He argued that a motion for sanctions “is the exact type of ‘procedural action’ the legislature sought to exclude in its [2019] amendments. This is especially true when the Texas Rules of Civil Procedure do not authorize the imposition of sanctions against a non-party, but, instead, require the party seeking discovery to either obtain an order requiring the objecting party to produce the objected-to discovery or enforce the subpoena by contempt.” In other words, an “improper[]” motion for sanctions against a non-party “cannot reasonably be construed as a ‘claim for legal, equitable, or declaratory relief’ for the simple reason that there exists no such ‘claim’—no entitlement to a sanctions award under these circumstances—as a matter of law.” Justice Baker further took issue with the majority’s conclusion that even if the complex’s claim constituted a “legal action,” it had nothing to do with the mothers’ free speech rights in the first place. Instead, the complex’s “motion [was] based on and [was] in direct response to the non-party mothers’ alleged violation of discovery rules, not anything else.” It also failed the “arises from” test because, again, it had only to do with the mother’s “resistance towards and objections to” discovery requests and was not in any way “in furtherance of” their communications.
As part of the advocacy team for the 2019 legislative amendments, we agree with Justice Baker. The majority’s opinion bootstraps a procedural motion into the TCPA that the Legislature sought to exclude from the previously overbroad definition of “legal action.” In view of the dissent in this case and a Beaumont Court of Appeals reaching the same conclusion as Justice Baker on similar facts involving a motion for sanctions [Thuesen v. Scott, 667 S.W.3d 467 (Tex. App.—Beaumont 2023, no pet.)], we hope SCOTX gets a chance to review this decision.
