Parker County Today PCT FEB 2019 | Page 13

The Texas SLAPP: Motions to Dismiss Under the TCPA By J. Brison Bursey Have you been sued? Are you considering filing a lawsuit or counterclaim? If so, you need to consider the potential rami- fications of Texas’s anti-SLAPP statute, officially known as the Texas Citizens Participation Act (“TCPA”), codified as Chapter 27 of the Texas Civil Practice and Remedies Code. In 2011, Texas enacted the TCPA to deter Strategic Lawsuits Against Public Participation, hence the acronym SLAPP. The TCPA’s purpose is to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law, and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” T ex . C iv . P rac . & R em . C ode § 27.002. It is a powerful tool that can be used to quickly dispose of claims affecting the exercise of free speech, the right to peti- tion, or the right of association. Since 2011, courts have applied the TCPA in numerous contexts, including various commercial liti- gation matters. In response to a TCPA motion to dismiss, a non-movant must prove its claims by “clear and specific” evidence—a new stan- dard of evidence under Texas law. Id. at § 27.005(c). Clear and specific evidence requires that the evidence produce, in the mind of the trier of fact, a firm belief or conviction as to the truth of the allegations. Parties should assem- ble any available evidence before filing a lawsuit or counterclaim. If a party fails to timely present its clear and specific evidence, the court may dismiss the claim. This is true even if a party could have gathered the evidence with addi- tional time. Win—the Non-Movant Pays. Lose—the Movant May Pay If a TCPA motion to dismiss is granted, a court shall award court costs, reasonable attorneys’ fees, and other expenses incurred in defending against the legal action. A court is also required to grant at least nominal sanc- tions against the non-movant. The amount of the sanction award is based on how much a court believes is necessary to deter parties from filing similar lawsuits in the future. On the other hand, if a court finds that the movant’s motion to dismiss is frivolous or solely intended to delay, the court may award court costs and attor- neys’ fees to the non-movant, and may also grant sanctions against the movant. The TCPA is a powerful litiga- tion tool. If you are considering filing a lawsuit or counterclaim, or if you have been sued, you and your attorney should discuss the TCPA and its potential effect on your claims. You must be proac- tive to comply with the TCPA’s strict deadlines. Failure to do so may result in a court dismissing your claim, ordering you to pay the opposing party’s attorney fees, or sanctions. This article is for informational purposes only and not for the purpose of providing legal advice.  You should contact an attorney to obtain advice with respect to any particular legal issue. J. Brison Bursey is an attorney with Harris, Finley & Bogle, P.C.  His practice focuses on civil and commercial litigation involving issues related to business disputes, contracts, intellectual property, product liability, and personal injury/wrongful death. He can be reached at [email protected] or at 817.550.6294. Under the TCPA, a party may file a motion to dismiss within 60 days after the date of service of a lawsuit. A motion to dismiss must be heard within 60 days after the date of service of the motion unless the docket conditions of the court require a later hearing, upon a showing of good cause, or Clear and Specific Evidence J. Brison Bursey Time is of the Essence by agreement of the parties. If a court permits discovery, the hear- ing must occur within 120 days after the service of the motion. And the court must rule on the motion within 30 days after the hearing. 11