The Dallas COA upheld the denial of a Texas Anti-Slapp in Equine Holdings, LLC v. Michael Jacoby, 05-19-00758-CV, 2020 WL 2079183 (Tex. App.—Dallas Apr. 30, 2020, no pet. h.).  The underlying suit was a breach of contract claim for indemnity under an LLC operating agreement.  The LLC filed a Texas Anti-Slapp under RFS and RTP.  The Dallas COA side stepped the application of the TCPA (Step 1) and moved to Step 2, did the non-movant establish the elements of a breach of contract claim for indemnity. It should shock no one, absent something unique to the language of an indemnity clause, that the non-movant met all his elements.

Equine is interesting for two reasons: (1) the COA noted that evidentiary objections typically found in a Rule 166a(c) dispute, such as hearsay or best-evidence rule, do not apply in TCPA disputes (however personal knowledge and conclusion objections do); and (2) the award of attorneys’ fees by the trial court was reversed and remanded because of a lack of a finding that the TCPA motion “was frivolous or solely intended to delay” (as required under Section 27.009(b).

Practitioners in the Dallas COA will need to address the evidentiary objection issue as to cases under the Old TCPA (pre-Sept. 2019).  New TCPA cases throughout the state are unaffected because the statute now defines “Proof” to include that which is admissible under Tex. R. Civ. P. 166a.

Sec. 27.006. PROOF. (a) In determining whether a legal action is subject to or should be dismissed under this chapter, the court shall consider the pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil Procedure, and supporting and opposing affidavits stating the facts on which the liability or defense is based.

The TCPA, like many Texas statutes in civil disputes, is a boomerang on attorneys’ fees.  The sanction issue is notable because if you have followed TCPA cases you know that trial courts within the Dallas COA t are awarding non-movants attorneys’ fees and the Dallas COA is upholding those determinations. 

How that will play out under the New TCPA remains to be seen, but thrower beware. 

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