Nathan Long v. Dr. Kristi Larson Long (No. 05-22-00589-CV; filed November 29, 2023) arose from a nasty marital breakup and divorce that occurred in April 2021. The following July, ex-husband and a date were arrested for falling asleep in a parked SUV while watching July 4 fireworks. The next day he began receiving threatening texts from ex-wife, and two weeks later she texted him screen shots of partially nude male dancers from advertisements for a Dallas nightclub. In a series of texts, she accused him of hiring the men in the photo and warned him to “stop texting teenagers.” Shortly after that, mailed envelopes began showing up at the homes of ex-husband’s family, friends, and business associates. They identical materials regarding ex-husband’s arrest, mug shots, a photo of the nightclub, and a photo of the nightclub parking lot with a typed legend, “Woman’s Club that also caters to bisexual and gay males.” The understandably upset ex-husband filed suit against ex-wife, asserting intentional infliction of emotional distress, invasion of privacy, intrusion on seclusion, and public disclosure of private facts. Ex-wife filed motions to dismiss under the Texas Citizens Participation Act and Rule 91a, TRCP.
After much procedural maneuvering, the trial court held a hearing on ex-wife’s motions to dismiss on December 3, 2021. On December 15 the trial court signed two orders, one granting the TCPA motion to dismiss but without awarding attorney’s fees, and the other denying the TCPA motion with the request for attorney’s fees to be considered at a subsequent setting. On December 29 the trial court signed another order vacating the order granting ex-wife’s TCPA motion to dismiss, leaving the order denying the motion in effect. On January 18, the trial court signed yet another order granting ex-wife’s Rule 91a motion and dismissing ex-husband’s claims with prejudice. The court also indicated that it needed a separate order and hearing for Rule 91a attorney’s fees. To add further to the confusion, on February 18, more than two months after the hearing on ex-wife’s TCPA motion, the trial court signed an order vacating its December 15 order denying that motion, granted the motion, and dismissed the case. Eventually, on May 13 the trial court held a hearing on attorney’s fees and on May 23 entered an order awarding ex-wife more than $15,000 in fees on the TCPA motion but not on the Rule 91a motion. Ex-husband appealed.
The court of appeals reversed. The question before the court involved the operation of § 27.005(a), CPRC, which requires a trial court to rule on a TCPA motion to dismiss not later than the 30th day following the date the hearing on the motion concludes. If the court does not rule in the 30-day window, the motion is considered denied by operation of law. However, as SCOTX held in In re Panchakarla, 602 S.W.3d 536, 540-41 (Tex. 2020) (orig. proceeding) (per curiam), nothing in the statute limits a trial court’s power to vacate such a ruling outside the 30-day window. SCOTX did not, however, reach the question of “whether a trial court with authority to vacate an order when it has plenary power to do so can thereafter affirmatively rule on a TCPA motion more than 30 days after the hearing.
Here the trial court retained plenary power when on February 15 it vacated its order denying ex-wife’s TCPA motion to dismiss. “In accordance with Panchakarla,” the court went on, “this put the case back in the procedural posture wherein the motion was denied by operation of law,” i.e., a failure to rule. Observing that the TCPA clearly requires a trial court to rule within 30 days after the hearing, allowing the court to grant the motion 75 days after the hearing “is directly contrary to the express statutory language.” Indeed, “[t]o hold that the trial court had power to rule … would require us to ‘judicially amend’ the TCPA ‘by adding words that are not contained in the language of the statute’” (quoting Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015)). It then followed that the trial court had no authority to award ex-wife’s attorney’s fees under the TCPA, either, so the court reversed the award and rendered judgment that ex-wife take nothing on her attorney’s fees claim.
As to the trial court’s January 18 order granting ex-wife’s Rule 91a motion to dismiss and subsequent May 23 order denying attorney’s fees, the court held that the trial court did not lose jurisdiction to act on attorney’s fees when it waited about four months to hear that issue. Rule 91a requires the court to rule on a motion to dismiss within 45 days after the motion is filed, but, as the court noted, that deadline is not jurisdictional.
The court turned finally to whether the trial court erred by granting ex-wife’s Rule 91a motion. Noting that the rule specifies that a cause of action has no basis of fact “if no reasonable person could believe the facts pleaded,” and no basis in law “if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought,” the court applied a fair-notice pleading standard to determine whether the allegations of the petition were sufficient to allege a cause of action. The court then stated the elements of each cause action pleaded by ex-husband: intentional infliction of emotional distress, invasion of privacy, and public disclosure of private facts and determined that ex-husband satisfied the fair notice pleading standard and basis-in-fact standard. Further, his causes of action met the basis-in-law standard because he plead legally cognizable causes of action and the allegations in his pleading did not establish a complete legal bar to his claims by affirmatively negating entitlement to the relief requested (citations omitted). The trial court thus erred in granting ex-wife’s Rule 91a motion to dismiss. The court of appeals reversed the trial court on both the TCPA and Rule 91a rulings and rendered a take-nothing judgment for ex-husband on ex-wife’s TCPA attorney’s fees.
The takeaway from this case is that a TCPA movant better get the trial court to rule one way or the other within the 30-day post-hearing window.
