The sad story of misuses of the Texas Citizens Participation Act (Chapter 27, CPRC) has a new chapter. In C. Bryan Cantrell, As Substitute Trustee v. Monica Rae Loizos (No. 10-21-00177-CV), the Waco Court of Appeals affirmed a trial court order denying an attorney’s TCPA motion to dismiss and awarding the non-movant reasonable attorney’s fees for defending a frivolous motion. The case arose out of a divorce that turned nasty when Monica Loizos apparently didn’t move fast enough in making note payments on a home formerly owned by the couple, refinancing the home, or selling the home to get her former husband, Carlos, off the hook. Eventually, Carlos, who was the beneficiary of a deed of trust to secure assumption in the event Monica did not perform an obligation (i.e., note payments, refinancing, or sale), sued Monica under the deed of trust, alleging that her failure to make note payments “on time” threatened Carlos’s credit triggered his right of assumption and notifying her of foreclosure of the property. Monica then sued Carlos and the trustee, Carlos’s attorney, alleging, among other things, that they could not “engineer” a default or execute a nonjudicial foreclosure when she was not in default. Carlos’s lawyer, Cantrell, filed a plea to the jurisdiction and an affirmative defense of attorney immunity and a TCPA motion to dismiss. The trial court denied the motion and awarded Monica attorney’s fees. Cantrell appealed.
The court of appeals affirmed on the basis that Cantrell’s TCPA motion had no basis in law or fact because it relied on another party’s (Carlos’s) exercise of a TCPA-protected right, not his own, and the TCPA did not apply. Based on this determination, the court of appeals rejected Cantrell’s demand for mandatory attorney’s fees. Finally, the court ruled that the trial court did not abuse its discretion in awarding Monica attorney’s fees and costs after finding that Cantrell’s TCPA motion to dismiss was frivolous and without legal merit.
It is heartening to see trial and appellate courts willing to police the use of the TCPA and to sanction parties that attempt to stretch the application of the statute beyond its intended scope. We hope that the 2019 amendments narrowing the application of the statute somewhat will address future abuses without the necessity of courts stepping in, but time will tell.