O P I N I O N O N A P P E L L E E S ‘ M O T I O N T O D I S M I S S A P P E A LIn this cause, Nima Amini has appealed from the denial, by operation of law, of his Texas Citizens Participation Act (TCPA) motion to dismiss claims asserted against him below by appellees Spicewood Springs Animal Hospital, LLC, and Dr. Barak Benaryeh.[1] Appellees have responded with a motion to dismiss Amini’s appeal. This pre-submission motion has jurisprudential novelty beyond the norm: it includes an appellate-level TCPA motion to dismiss Amini’s appeal.[2] We conclude that the TCPA does not authorize that motion or relief.Appellees’ underlying reasoning is grounded in the TCPA’s expansively worded operative definitions, which in their view snare Amini’s appeal within the Act’s coverage as a “legal action” that “is based on, relates to, or is in response to” appellees’ “exercise of the right to petition” or “exercise of the right of free speech.”[3] From that premise, appellees dispute that Amini can meet what would be his burden to “establish by clear and specific evidence a prima facie case for each essential element” of his appeal.[4] Appellees have further requested that this Court—an appellate court—set a hearing to decide their motion, as the TCPA would presumptively require within sixty days after service of a motion under that Act.[5]The linchpin of appellees’ reasoning is the TCPA’s definition of “legal action,” which identifies the types of judicial proceedings that are subject to dismissal motions:a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.[6]An appeal, appellees insist, qualifies as a “lawsuit,” “petition,” “complaint,” and “judicial pleading or filing that requests legal or equitable relief” under what they view as the “plain” and “unambiguous” meanings of those terms. But even assuming any of these terms could conceivably bear that meaning in some abstract sense (and we do not concede this), that would not end the inquiry. We must also take account of the definition’s broader context within the TCPA as a whole.[7]Doing so confirms that the Legislature intended the TCPA’s dismissal mechanisms to operate against “legal actions” at the trial-court level and not against appeals.Among the TCPA’s features that compel that conclusion are:• an automatic stay of “all discovery in the legal action . . . until the court has ruled on the motion to dismiss”[8];a grant of discretion to “the court” to “allow specified and limited discovery relevant to the motion” upon “a showing of good cause”[9];a prescribed analysis in which “the court” is to consider whether “the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question” and whether “the moving party establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant’s claim”[10];a requirement that “the court,” “[i]n determining whether a legal action should be dismissed under this chapter,” “shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based”[11];a further requirement that “the court,” upon request by the TCPA movant, “shall issue findings regarding whether the legal action was brought to deter or prevent the moving party from exercising constitutional rights and is brought for an improper purpose”[12]; andrequirements that “the court” determine and award “reasonable attorney’s fees” to a successful movant, as well as “sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.”[13]These provisions require fact findings, discovery, and hearings that are characteristic of trial-level proceedings and foreign to appellate courts. Similarly, the “legal action” contemplated by these provisions has discovery and “essential element[s],” features unknown to appeals. These provisions thereby belie legislative intent to include appellate courts in “the court” that is directed to conduct the prescribed procedures or to include appeals within the “legal actions” that are made subject to dismissal. At the very least, we cannot conclude that the Legislature intended such a fundamental transformation of appellate courts’ jurisdiction and procedure without stronger textual support for that notion.Appellees’ remaining arguments in support of their appellate-level extension of the TCPA are unpersuasive. Appellees emphasize that the Legislature did not list appeals in the types of “legal actions” that are explicitly excluded from TCPA coverage under Section 27.010 of the Act,[14] but this merely begs the original question of whether an appeal is a TCPA “legal action” in the first place. Appellees also point to Section 27.008 of the Act, which addresses “an appeal . . . from a trial court order on a motion to dismiss a legal action under [the TCPA] or from a trial court’s failure to rule on that motion [timely].”[15] As appellees see it, Section 27.008 demonstrates that the Legislature had appeals in mind when crafting the TCPA’s “legal action” definition and not explicitly excluding them from the Act. In our view, the import of Section 27.008 is instead to confirm further that TCPA motions to dismiss and TCPA “legal actions” are proceedings before “a trial court,” as Section 27.008 references, and not a court of appeals. And Section 27.008 correspondingly prescribes a role for courts of appeals under the TCPA that is our traditional one of deciding appeals from trial-court rulings.Because appellees’ appellate-level TCPA dismissal motion is not cognizable under that statute, we deny it. We also dismiss as moot appellees’ accompanying request for a hearing on the motion.In addition to their appellate-level TCPA motion, appellees assert other grounds for dismissal that are styled as challenges to our jurisdiction over Amini’s appeal. These “jurisdictional” challenges are that the TCPA does not properly apply to and protect Amini’s lawsuit, that they have valid defenses to Amini’s TCPA motion, and that the TCPA is unconstitutional as Amini seeks to apply it against them. These arguments implicate the merits of Amini’s appeal or amount to alternative grounds for affirmance and do not demonstrate any absence of the jurisdiction the Legislature has granted us to review the deemed denial of Amini’s TCPA motion.[16] We accordingly deny these asserted grounds for dismissal, as well.Bob Pemberton, JusticeBefore Justices Puryear, Pemberton, and BourlandMotion DeniedFiled: May 16, 2018
