Nothing says Spring like top water bass fishing on Texas ponds. And nothing says not so fast like my Westlaw alert going off with a Texas Anti-Slapp opinion. So this post will be bereft of my usually astute legal dissection.
Montelongo v. Abrea, 19-1112, 2021 WL 1705210, (Tex. Apr. 30, 2021) is the Texas Supreme Court’s latest entry into odyssey that is the Texas Anti-Slapp. Practitioners in Texas know that amended petitions (which unlike almost every other State in the Union) can occur in the blink of an eye and without request for leave to amend.
So a party thinking they have escaped the Bermuda Triangle of the Texas Anti-Slapp can find themselves lost in the sea of appeals by adding new parties or new facts supporting prior plead claims, months, or even a year into a dispute.
But what about “new” claims relying on the same set of facts previously plead?
I’ve baited the hook and here’s what we caught:
We hold that an amended or supplemental pleading that asserts the same legal claims or theories by and against the same parties and based on the same essential facts alleged in a prior pleading asserts the same “legal action” to which the sixty-day period previously applied and thus does not trigger a new sixty-day period for filing a dismissal motion. But to the extent an amended or supplemental pleading either (1) adds a new party or parties, (2) alleges new essential facts to support previously asserted claims, or (3) asserts new legal claims or theories involving different elements than the claims or theories previously asserted, the new pleading asserts a new legal action and triggers a new sixty-day period as to those new parties, facts, or claims. Because the plaintiffs’ amended petition in this case asserted new legal claims, the defendants’ motion to dismiss those claims was timely. We therefore reverse the court of appeals’ judgment denying the defendants’ dismissal motion as untimely and remand the case for that court to address issues it did not reach
Here is a thought experiment. If you plead conspiracy to breach fiduciary duty and then amend six months into the litigation to add aiding and abetting breach of fiduciary duty, have you triggered a new TCPA deadline ?
I will let everyone muddy through this on their own as I’ve got a 13 year old to wake so I can beat the rain
As of the time I was selecting bates the link to the opinion has not been posted. I suggest you trust but verify. https://search.txcourts.gov/Case.aspx?cn=19-1112&coa=cossup
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