3/26/2018 Crone Hawxhurst Secures Important Texas Citizens Participation Act Victory

The Firm recently obtained a significant victory in the Texas Court of Appeals, Third District, on the scope of the Texas Citizens Participation Act (TCPA), also known as an Anti-SLAPP statute. The case, Hawxhurst v. Austin’s Boat Tours, et al., No. 03-17-00288-CV, concerned a breach of contract and tort case brought against Austin’s Boat Tours, the largest party boat tour operator in Central Texas. The issue before the court was the scope and application of the TCPA.

After the Firm announced ready for trial, Austin’s Boat Tours filed an amended answer and counterclaim seeking sanctions under Chapter 9 of the Texas Civil Practices and Remedies Code, alleging that the claims against it were “frivolous.” The counterclaim sought sanctions and attorneys’ fees against the Firm and its client.

In response, the Firm filed a TCPA motion, seeking to have the counterclaim dismissed because it was “based on” and “in response to” our client’s “exercise of the right to petition” and therefore barred by the TCPA. The trial court denied the TCPA motion, finding that the TCPA did not apply to the counterclaim because the counterclaim, supposedly, was essentially a mislabeled motion for sanctions, which the trial court held was not subject to TCPA motions to dismiss. Orders denying TCPA motions are appealable, and that’s what the Firm did.

In a 21-page decision, the Texas Court of Appeals, Third District, reversed the trial court, siding with the Firm on every major appellate point. The court of appeals first held that even if the counterclaim was a mislabeled motion for sanctions, the TCPA applied. The court of appeals also held that Austin’s Boat Tours could not moot the TCPA motion or appeal by amending its counterclaim, and further found that the Firm had demonstrated the claims against Austin’s Boat Tours were not frivolous and Austin’s Boat Tours had no evidence showing otherwise.

The court of appeals remanded the case with instructions for the trial court to determine the amount of attorneys’ fees and costs to be awarded to the Firm’s client, emphasizing that a fee and cost award are mandatory.

The decision has a detailed explanation of the scope of the TCPA and how its burden-shifting rules are to be applied when determining TCPA motions. The opinion has already been the subject of several CLE seminars in Texas. To read the opinion, please click here.