In an important decision for narrowing the scope of the Texas Citizens Participation Act (Ch. 27, CPRC), the Texas Supreme Court has held that the TCPA does not apply to a motion to compel discovery and for monetary sanctions for discovery abuses. In so doing the Court reversed decisions by the San Antonio and Austin Courts of Appeals.
The opinion addresses two cases that were consolidated for oral argument, Sadok Ferchichi and Martina Coronado v. Whataburger Restaurants LLC and Crystal Krueger (No. 23-0568; May 9, 2025) and Haven at Thorpe Lane, LLC v. Perretta Pate and April Burke (No. 23-0993; May 9, 2025). In the first case, Ferchichi sued Krueger and Whataburdger for alleged injuries suffered in a motor vehicle collision. After conducting discovery, the parties went to mediation, at which Whataburger’s lawyer asked the mediator to convene a joint session to show Ferchichi an investigative video of Plaintiff taken during discovery. Plaintiff refused the joint session, and Whataburger refused to share the video. Plaintiff filed a motion to compel discovery and for an award of monetary sanctions. Whataburger filed a TCPA motion to dismiss but simultaneously shared the video with Plaintiff. Plaintiff, however, did not withdraw the motion, and after a hearing, the trial court denied it. Whataburger appealed. The court of appeals reversed and rendered judgment dismissing Plaintiff’s motion for sanctions on the basis that it was a “legal action” filed in response to Whataburger’s exercise of the right to petition. The court of appeals remanded to the trial court to award Whataburger’s costs and attorney’s fees and to consider sanctions against Plaintiff. Plaintiff appealed.
In the second case, students who signed leases for the school year with San Marcos apartment complex under construction sued Haven when the complex was not ready for move in. They asserted fraud and DPTA violations, arguing that Haven knew the complex wouldn’t be complete when promised. During discovery, Haven subpoenaed two third parties (Pate and Burke), mothers of two of the Plaintiffs. The mothers created a private Facebook group called “Haven at Thorpe is a Joke!!!” on which group members communicated and shared personal experiences with Haven. Haven wanted to depose the mothers and sought their communications with local news, local government, and Plaintiffs, as well as relevant documents. The mothers did not seek to quash the subpoenas and turned over some information but claimed that other information was privileged. Haven filed a motion to compel and requested attorney’s fees, costs, and expenses incurred in obtaining relief. The mothers filed a TCPA motion to dismiss, which the trial court denied. A divided Austin Court of Appeals reversed, holding that Haven’s motion to compel and for sanctions was a filing adding a claim to relief and thus constituted a “legal action” under the TCPA. Haven appealed.
In an opinion by Justice Lehrmann, SCOTX reversed. The central issue was the scope of the term “legal action” as defined by the TCPA. The statute defines the term as “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal, declaratory, or equitable relief.” § 27.001(6). The term expressly excludes “a procedural action taken or motion made in an action that does not amend or add a claim for legal, equitable, or declaratory relief.” Observing a split among intermediate courts of appeals on whether a motion for sanctions is a “legal action” (Beaumont and Houston [1st] said no, San Antonio and Austin said yes). Applying principles of statutory construction, the Court first examined the admittedly broad definition in terms of the ejusdem generis doctrine, under which more specific items followed by a “catchall ‘other,’” as we see in § 27.001(6) limit the scope of the catchall phrase. Here the catchall “any other judicial pleading or filing . . . should be limited to filings that are ‘like’ a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim.” Applying the definitions of these terms, the Court concluded that “[t]he enumerated filings thus include the overarching lawsuit and the pleadings encompassing the substantive claims for relief that are the basis of the suit.”
For example, Justice Lehrmann explained, a pleading to bring a third party into the lawsuit to share liability, which is expressly covered by Rule 47’s pleading requirements, would constitute a filing that comes within the catchall. So would the intervention of a third party with a justiciable interest in a pending suit and who asserts an affirmative claim for relief. By contrast, motions to compel and for sanctions “are not remotely ‘like’ a ‘lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim.’ Rather, they are ‘based on conduct ancillary to the substantive claims in the case’ and cannot stand on their own” (citation omitted). The Court rejected Whataburger’s argument that its request for monetary relief (attorney’s fees) brought its motion within the catchall. It’s not the relief sought that determines the issue, the Court observed, but the fact that the relief sought “is only available to the extent Texas law allows it. . . . As such, there is no reason to treat a motion to compel that does not seek monetary relief any differently from one that does, at least for purposes of determining whether it constitutes a legal action under the TCPA” (internal citation omitted).
The Court frowned upon the use of the TCPA “to drag out the litigation for reasons unrelated to the merits of the underlying claims,” as the Austin Court of Appeals would effect by its overly broad interpretation of “claim.” Faced with a motion to compel, a party should “simply file a response in opposition to the motion” and get a hearing and a ruling. And if the motion to compel was frivolous, the party may seek sanctions. But unlike under the TCPA, where a motion to dismiss stays all proceedings, “the litigation on the underlying claims that are the basis of the lawsuit may proceed rather than being interrupted by an interlocutory appeal regarding an ancillary dispute.” The Court thus reversed both decisions and reinstated the trial courts’ denial of Whataburger’s and the mothers’ TCPA motions.
This is a sound decision that pays heed to the Legislature’s decision to narrow the scope of the TCPA in 2019. We hope that it continues the process of narrowing the TCPA only to substantive claims that really do involve constitutional rights.
