On Friday I had planned to write about Pisharodi v. Columbia Valley Healthcare Sys., L.P., 13-18-00364-CV, 2020 WL 2213951 (Corpus Christi COA May 7, 2020), another “first of its kind” TCPA case.* And then along came In re. Praveen Panchakarla, and now Pisharodi is cast in a whole new light.
I’ll lead with the punchline – the Corpus Christi COA holds that the parties can demand a jury trial on the issue of TCPA attorneys’ fees.** The COA examined other statutes where attorneys’ fees are provided and analogized to prior TSC opinions determining viability of a jury trial under their respective operative grants.
If you aren’t a trial lawyer, or practice primarily in federal court, it might seem odd that the issue of attorneys’ fees gets submitted to the jury. But in Texas state court that often occurs. While there are arguments on both sides of the “should a judge or jury determine reasonable attorneys’ fees,” there are no counter-arguments against the following: trying a case to a jury is (1) more time consuming for lawyers, judges, parties (and obviously the jury); and (2) more expensive for the litigants.***
Depending on docket conditions, it can take a while to get called for a jury trial. Add COVID-19 creating statewide backlogs of jury trials (growing exponentially every week), you can expect inordinate delays in getting to a final judgment on a grant of a Texas Anti-Slapp if a jury trial is demanded.
If the goal of the TCPA is speedily dispose of cases, allowing either party to demand a jury trial turns that policy on its head.
One final thought. Under Panchakarla, the non-movant has incentive to delay getting to a final judgment on the hope that just maybe some “silver bullet” decision will come out to save them. Until the jury renders an opinion and the trial court reduces the fee award into a final order, no final judgment exists and the trial court can reconsider its early grant of the Texas Anti-Slapp.
*The Texas Supreme Court website is down. http://www.txcourts.gov/supreme/ So I cannot link the opinion.
**Interesting aside, this is the 3rd appeal involving Pisharodi and the TCPA. This may account for why a jury trial as opposed to a bench trial was requested.
*** I have personally tried two jury trials solely on the issue of attorneys’ fees. Our clients had prevailed, and the opposing parties demanded a jury trial on the attorneys’ fees now owed . In both instances, it increased the costs to all parties.