Amy Lynn Hanson v. Carl Johnson and Patricia Johnson

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00040-CV
___________________________
AMY LYNN HANSON, Appellant
V.
CARL JOHNSON AND PATRICIA JOHNSON, Appellees
On Appeal from the 467th District Court
Denton County, Texas
Trial Court No. 22-7701-467
Before Sudderth, C.J.; Bassel and Womack, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
This is an interlocutory appeal from the denial of Appellant Amy Lynn
Hanson’s motions to dismiss under the Texas Citizens Participation Act (TCPA). See
Tex. Civ. Prac. & Rem. Code Ann. §§ 27.008(b), 51.014(a)(12). Hanson contends that
the trial court abused its discretion by (1) denying her TCPA motion to dismiss the
defamation claim against her and (2) rejecting as untimely her TCPA motion to
dismiss the invasion of privacy claim against her.1 We will affirm the first ruling and
reverse and remand the second.
I. Background
This case stems from a confrontation at a neighborhood pool between Hanson
and Appellees Carl and Patricia Johnson. The parties agree that the confrontation
occurred, but they disagree how and why it occurred.
According to Hanson, during the incident Hanson “expressed [her] concerns
about . . . the welfare of the Johnson[s’] minor children” because “the behaviors and
interactions [she] ha[d] witnessed . . . caused [her], and the community, to question
the[ir] safety.” She claims that she did not speak to or interact with the Johnsons
again after that date but that she saw the Johnsons post about the confrontation on a
neighborhood Facebook page.
1
Hanson raises a third issue as well: the trial court’s denial of her invasion of
privacy claim on the merits. But as both parties acknowledge, the trial court did not
reach this issue.
2
The Johnsons remember things differently. They allege that during the
incident, Hanson pointed her finger at them and screamed—within earshot of
approximately 25 people—“You sex-traffic your children!”
The Johnsons also dispute Hanson’s contention that she did not interact with
them after the pool incident. They claim that, after the confrontation, Hanson began
yelling and screaming at them in public, making catcalls to taunt them in public,
driving past their home while revving her engine and spinning her tires, and engaging
in similar harassing behavior.
Based on these interactions, the Johnsons sued Hanson for defamation2 and
invasion of privacy.3 Their original petition alleged that Hanson defamed them by
publicly accusing them of “engaging in the sex trafficking trade with their children”
and that Hanson invaded their privacy with her engine-revving, catcalls, and similar
harassing behavior. Hanson moved to dismiss the defamation claim under the TCPA.
See id. § 27.003(a).
2
The Johnsons pleaded their defamation claim in two forms: as defamation and
defamation per se. But in their subsequent depositions, they confirmed that they are
relying on just one defamatory statement.
3
There are two torts related to the invasion of privacy, and one of those is
intrusion upon seclusion. Roberts v. CareFlite, No. 02-12-00105-CV, 2012 WL
4662962, at *3 (Tex. App.—Fort Worth Oct. 4, 2012, no pet.) (mem. op.). “The tort
of intrusion upon seclusion has two elements: ‘(1) an intentional intrusion, physically
or otherwise, upon another’s solitude, seclusion, or private affairs or concerns, which
(2) would be highly offensive to a reasonable person.’” Id. (quoting Valenzuela v.
Aquino, 853 S.W.2d 512, 513 (Tex. 1993)).
3
Not long after Hanson filed her motion to dismiss, the Johnsons amended
their petition to add a new cause of action, several new defendants (Hanson’s alleged
coconspirators), and allegations that Hanson’s privacy-violating behavior included
making repeated calls to the police. Although Hanson had already set her motion to
dismiss for a hearing, see id. §§ 27.003(d), .004, she moved for a two-week continuance
of that hearing, in part to allow her time to conduct limited discovery on the TCPA
issues.4 The trial court granted the motion and rescheduled the hearing.
Then, six days before the rescheduled hearing, Hanson filed a self-described
“supplement[]” to her original motion to dismiss in response to the Johnsons’
amended petition. [Capitalization altered.] The document (1) attached new evidence
to support her dismissal motion related to the defamation action5 and (2) sought, for
the first time, to dismiss the Johnsons’ invasion of privacy claim under the TCPA. As
the Johnsons quickly pointed out, the latter part of this filing was not a supplement
but rather a new privacy-related motion to dismiss.
The Johnsons objected to the privacy-related motion to dismiss as untimely
because it was filed more than 60 days after Hanson had been served with the
4
Hanson’s lead counsel also candidly conceded that he had a personal
scheduling conflict on the date of the hearing.
5
The Johnsons objected to the new evidence because it was filed just six days
before the rescheduled hearing. The trial court did not rule on the objection.
Although the parties discuss this issue on appeal—arguing whether the supplemental
evidence was considered by the trial court—the issue is not dispositive so we need not
resolve it. See Tex. R. App. P. 47.1; infra note 10.
4
Johnsons’ original petition. Cf. id. § 27.003(b). They also objected to the inclusion of
this motion in the upcoming hearing because, they argued, they were entitled to 21
days’ notice and an opportunity to respond. See id. § 27.003(d), (e).
The trial court heard the Johnsons’ objections at the hearing, and at the
conclusion of that hearing, the court denied Hanson’s defamation-related dismissal
motion, and it “f[ound] that the intrusion on seclusion [i.e., privacy-related] anti-
SLAPP motion was not timely filed in this matter.” These rulings were later reduced
to writing,6 and Hanson appeals. See id. §§ 27.008(b), 51.014(a)(12).
II. Standard of Review and Governing Law
The TCPA—commonly referred to as Texas’s anti-SLAPP statute7—is
intended to “protect[] citizens who petition or speak on matters of public concern
from retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky, 460
S.W.3d 579, 584 (Tex. 2015) (orig. proceeding); see Tex. Civ. Prac. & Rem. Code Ann.
§ 27.002 (summarizing TCPA’s purpose as “encourag[ing] and safeguard[ing] the
constitutional rights of persons . . . and, at the same time, protect[ing] the rights of a
person to file meritorious lawsuits for demonstrable injury”).
6
The trial court signed an order sustaining the Johnsons’ objections to the
privacy-related motion to dismiss, and it signed a separate order denying the motions
to dismiss without specifying a basis for its judgment.
7
SLAPP stands for strategic lawsuit against public participation. See Windsor v.
Round, 591 S.W.3d 654, 658 (Tex. App.—Waco 2019, pet. denied).
5
A party who moves for dismissal under the TCPA invokes a three-step,
burden-shifting process: (1) first, the movant seeking dismissal must demonstrate that
a “legal action” has been brought against it and that the action is “based on or is in
response to” an exercise of a protected constitutional right; (2) then the burden shifts
to the party bringing the legal action to avoid dismissal by establishing, by clear and
specific evidence, a prima facie case for each essential element of the claim in
question; and (3) finally, the burden shifts back to the movant to justify dismissal by
establishing an affirmative defense or other ground on which it is entitled to judgment
as a matter of law. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)–(d); Miller v.
Schupp, No. 02-21-00107-CV, 2022 WL 60606, at *1 (Tex. App.—Fort Worth Jan. 6,
2022, no pet.) (mem. op.).
We review a trial court’s ruling on a TCPA motion to dismiss—including its
determination of the parties’ satisfaction of their respective burdens—de novo.
Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 45–46 (Tex. 2021); Miller, 2022
WL 60606, at *1–2. Our review encompasses “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,” and we
view all of these in a light most favorable to the nonmovant. Tex. Civ. Prac. & Rem.
Code Ann. § 27.006(a); see Maggret v. Ramsey’s Rods & Restoration, No. 02-20-00395-CV,
2021 WL 2253244, at *2 (Tex. App.—Fort Worth June 3, 2021, no pet.) (mem. op.).
6
III. Discussion
On appeal, Hanson challenges the trial court’s denial of her defamation-related
motion to dismiss on the merits and its rejection of her privacy-related motion to
dismiss as untimely.8
A. Defamation
Hanson contends that the trial court erred by denying her defamation-related
motion to dismiss because (1) she carried her step-one burden to show that the
Johnsons’ defamation claim was based on or in response to her exercise of her right
of free speech, (2) the evidence of self-publication undermined the Johnsons’ ability
to establish a prima facie case for each element of defamation under step two, and
(3) even if the Johnsons had established a prima facie case, Hanson satisfied step three
by conclusively proving self-publication as an affirmative defense.
1. Hanson’s alleged speech involved a matter of public concern.
To carry her burden under the first step of the TCPA analysis, Hanson was
required to establish that the Johnsons had filed “a legal action [against her] . . . based
on or . . . in response to [her] exercise of [her] right of free speech.” Tex. Civ. Prac. &
Rem. Code Ann. § 27.003(a). The parties do not dispute that the Johnsons’ lawsuit
8
Hanson also challenges the trial court’s denial of her privacy-related motion to
dismiss on the merits. But as she acknowledges, the trial court denied the privacy-
related motion as untimely, and there is no indication that the trial court ruled on the
motion’s merits.
7
constitutes a “legal action,” but they dispute whether the lawsuit is based on or in
response to Hanson’s exercise of her right of free speech.
The TCPA defines the “[e]xercise of the right of free speech” as “a
communication made in connection with a matter of public concern.” Id. § 27.001(3).
A “[m]atter of public concern,” in turn, is defined to include “a statement or activity
regarding . . . a subject of concern to the public.” Id. § 27.001(7)(C).
The Johnsons’ lawsuit is based on Hanson’s alleged statement that they
“engag[e] in the sex trafficking trade.” Sex trafficking is a criminal offense. See Tex.
Penal Code Ann. § 20A.02. And as Hanson points out, there is ample case law—
including from this court—holding that the commission of a crime is a matter of
public concern. See Miller, 2022 WL 60606, at *2 (reiterating that “[p]ublic-concern
matters include statements regarding the commission of a crime” and holding that
statement alleging physical abuse involved matter of public concern for TCPA
purposes); Kadow v. Grauerholz, No. 02-20-00044-CV, 2021 WL 733302, at *3–4 (Tex.
App.—Fort Worth Feb. 25, 2021, no pet.) (mem. op.) (holding statement that plaintiff
“[wa]s being criminally investigated for fraud, elder abuse, misappropriation of funds,
theft, and kidnapping” involved matters of public concern under TCPA); Weber v.
Fernandez, No. 02-18-00275-CV, 2019 WL 1395796, at *6 (Tex. App.—Fort Worth
Mar. 28, 2019, no pet.) (mem. op.) (holding statements involved matters of public
concern for TCPA purposes in part because statements “related to the charge and
prosecution of [the plaintiff] for the crime of theft while he was a city
8
councilmember”); Campbell v. Clark, 471 S.W.3d 615, 623–24 (Tex. App.—Dallas
2015, no pet.) (holding statements concerning child molestation and government
corruption involved matters of public concern in TCPA case); cf. Brady v. Klentzman,
515 S.W.3d 878, 884 (Tex. 2017) (recognizing that the “commission of crime,
prosecutions resulting from it, and judicial proceedings arising from the prosecutions”
are matters of public concern for purposes of defamation claim against media
defendant).
The Johnsons do not address or distinguish this case law. Instead, they argue
that because Hanson denied accusing them of sex trafficking, she offered no evidence
of the content of her defamatory statement.9
But a defendant need not admit to making the allegedly defamatory statement
to demonstrate that the defamation claim against her is based on or in response to her
exercise of her right of free speech. See Hersh v. Tatum, 526 S.W.3d 462, 463, 467
(Tex. 2017) (holding that a defendant may obtain a TCPA dismissal of a suit alleging a
communication made in connection with a matter of public concern even if the
plaintiff denies making the alleged statement). “The basis of a legal action [for TCPA
purposes] is not determined by the defendant’s admissions or denials but by the
9
The Johnsons also contend that “yelling heinous allegations in public for
neighbors and residents to hear is not speech worthy of protection partly because the
allegations are not only heinous, they are false.” But determining what speech is
“worthy” of the TCPA’s protection is a policy determination for the legislature. See
Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex. 2011) (“It is the Legislature’s prerogative
to enact statutes; it is the judiciary’s responsibility to interpret those statutes . . . .”).
9
plaintiff’s allegations.” Id. at 467. The Johnsons’ own pleadings identify the alleged
statement on which their defamation claim is based: Hanson’s “statements that [the
Johnsons] are engaged in criminal activity by engaging in the sex trafficking trade with
their children.”10 This alleged sex-trafficking statement, if Hanson made it, was a
communication involving criminal activity—a matter of public concern. See Miller,
2022 WL 60606, at *2. And again, “a communication made in connection with a
matter of public concern” is an “[e]xercise of the right of free speech” under the
TCPA. Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3).
The Johnsons’ own pleadings thus showed that their defamation claim was
covered by the TCPA, and Hanson was not required to show anything more to satisfy
step one of the TCPA analysis. See Hersh, 526 S.W.3d at 467 (“When it is clear from
Hanson also filed the Johnsons’ depositions as evidence. In the depositions,
10
the Johnsons testified that Hanson defamed them by making the statement that
“[they] put in the petition,” which they summarized as, “That we sex-traffic our
children.” They confirmed that there were no other statements that Hanson made
that they contended were defamatory.
Although the Johnsons argue that this evidence was untimely because it was
filed just six days before the hearing, the trial court did not expressly rule on the
Johnsons’ evidentiary objections, and the Johnsons do not claim that the record
reflects a clear implied ruling See Tex. R. App. P. 33.1(a)(2)(A); cf. Seim v. Allstate Tex.
Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (noting that objections to summary judgment
evidence may be implicitly ruled on if the implication is clear). Hanson thus contends
that the Johnsons’ evidentiary objections were waived. See Tex. R. App. P.
33.1(a)(2)(A).
Either way, the issue is not dispositive, so we need not resolve it. Cf. Tex. R.
App. P. 47.1 (providing that opinion need address only issues raised and necessary to
final disposition).
10
the plaintiff’s pleadings that the action is covered by the Act, the defendant need
show no more.”); see also Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)(1)(A). Unless
the Johnsons satisfied step two, Hanson was entitled to a dismissal of the defamation
claim against her. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b), (c).
2. The Johnsons established a prima facie case for defamation.
But the Johnsons did satisfy step two by establishing a prima facie case for
defamation.
Generally, plaintiffs asserting a defamation claim may avoid dismissal under the
TCPA if they offer clear and specific evidence of (1) the publication of a false fact
statement to a third party, (2) that defamed the plaintiffs, (3) that was made with the
requisite degree of fault, and (4) that caused damages. Lipsky, 460 S.W.3d at 593;
Miller, 2022 WL 60606, at *3; see Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017)
(noting that a plaintiff’s establishing “when, where, and what was said, the defamatory
nature of the statements, and how they damaged the plaintiff” is generally sufficient to
avoid TCPA dismissal). If the false statement of fact is defamatory per se, though, the
plaintiffs need not offer evidence of damages to survive dismissal. Lipsky, 460 S.W.3d
at 593; Miller, 2022 WL 60606, at *3. And accusing someone of a crime constitutes
defamation per se. Lipsky, 460 S.W.3d at 596 (giving as examples of defamation per
se “[a]ccusing someone of a crime . . . or of engaging in serious sexual misconduct”);
Miller v. Watkins, No. 02-20-00165-CV, 2021 WL 924843, at *18 (Tex. App.—Fort
Worth Mar. 11, 2021, no pet.) (mem. op.) (quoting Lipsky).
11
Here, then, because Hanson’s alleged statement accused the Johnsons of sex
trafficking—a criminal offense—the statement constituted defamation per se. See
Lipsky, 460 S.W.3d at 596. This relieved the Johnsons of the burden to offer clear
and specific evidence of damages; they were only required to offer evidence of
(1) publication (2) defamation and (3) fault. See Miller, 2022 WL 60606, at *3; Watkins,
2021 WL 924843, at *19 (“[P]rima facie proof of a viable defamation per se claim
frees the party responding to a TCPA motion to dismiss from having to present clear
and specific evidence of general damages.”).
Hanson only challenges the first element: publication. Citing Exxon Mobil Corp.
v. Rincones, Hanson argues that the Johnsons’ voluntary self-publication of the
allegedly defamatory statement on Facebook undermined the publication element of
their defamation claim. See 520 S.W.3d 572, 579–83 (Tex. 2017).
But Rincones is not on point. There, the plaintiff relied on his own (allegedly
compelled) self-disclosure to satisfy the publication element of his defamation claim.
See id. at 579. The Texas Supreme Court rejected this proposed exception to the
publication element and “expressly decline[d] to recognize a theory of compelled self-
defamation in Texas.” Id. at 579–83 (reaffirming general rule that “a defendant who
communicates a defamatory statement directly to the defamed person, who then
relays it to a third person, has not published the matter to the third person”).
The Johnsons, in contrast, do not claim that they were damaged by their own
reiteration of Hanson’s alleged sex-trafficking statement, and they do not rely on their
12
Facebook post to satisfy the publication element. In fact, their petition makes no
mention of their Facebook post. Rather, they allege that Hanson published the
statement to third parties by yelling it at the pool, and they seek to recover for
damages stemming from this alleged publication. See Stephens v. Delhi Gas Pipeline
Corp., 924 S.W.2d 765, 770 (Tex. App.—Texarkana 1996, writ denied) (holding
plaintiff’s slander claim was not barred by self-publication because plaintiff was
“seeking damages for publication of the defamatory information to third parties not
of his choosing” rather than damages for his own “publication of the information to
his own friends and confidants”).
Because Hanson does not dispute that the Johnsons established a prima face
case for the other elements of their defamation per se claim, the Johnsons carried
their burden on step two, and the trial court could not dismiss the case unless Hanson
satisfied step three of the TCPA analysis. See Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(c), (d).
3. Hanson did not conclusively establish a defense to defamation.
Hanson did not satisfy step three. To justify dismissal in the face of the
Johnsons’ prima facie case, Hanson was required to conclusively establish all elements
of an affirmative defense to defamation “or other grounds on which [she wa]s entitled
to judgment as a matter of law.” See id. § 27.005(d). On appeal, the only affirmative
defense Hanson even vaguely alludes to is self-publication.
13
In the portion of her brief dedicated to step two—not step three—Hanson
offhandedly states that “[e]ither the uncompelled self-defamation caused the Johnsons
to fail to carry their burden of proving defamation [under step two], or it is a valid
affirmative defense [under step three].” Her analysis of self-publication as an alleged
affirmative defense is limited to this single phrase of this single sentence. Cf. Kadow v.
MAA, Watermark, No. 02-22-00038-CV, 2022 WL 17841131, at *6 (Tex. App.—Fort
Worth Dec. 22, 2022, no pet.) (mem. op.) (holding appellant inadequately briefed
issue addressed in single sentence); Ellis v. Dall. Area Rapid Transit, No. 02-19-00224-
CV, 2021 WL 126370, at *5 n.9 (mem. op.) (Tex. App.—Fort Worth Jan. 14, 2021,
pet. denied) (similar); Wise Cnty. v. Mastropiero, No. 02-18-00378-CV, 2019 WL
3755766, at *8 (Tex. App.—Fort Worth Aug. 8, 2019, no pet.) (mem. op.) (similar).
She does not cite any case law recognizing self-publication as an affirmative defense,
nor does she list the elements of this alleged defense, nor does she enunciate how her
evidence conclusively established those elements. Cf. Kadow, 2022 WL 17841131, at
*6 (holding appellant inadequately briefed issue when she did not “present[] us with a
standard of review, point[] to any evidence from the record, or engage[] in substantive
analysis to support her argument”); Mastropiero, 2019 WL 3755766, at *8 (holding
appellants inadequately briefed issue when they failed to provide “any citations to the
record or to legal authority”).
Perhaps this is because self-publication is not itself an affirmative defense. See
Rincones, 520 S.W.3d at 583 (noting that court of appeals misconstrued self-defamation
14
as an independent cause of action but that “it is probably better understood as an
exception to the publication requirement of a standard defamation claim” and
“modifies a plaintiff’s burden on [that] element”); Stephens, 924 S.W.2d at 770(concluding that plaintiff’s subsequent self-publication of statement “might be
relevant to mitigation of damages” but did not bar slander suit based on defendant’s
original publication to third parties).
Either way, Hanson has failed to show that the trial court erred under step
three of the TCPA analysis. Since the Johnsons satisfied step two, the trial court did
not abuse its discretion by denying Hanson’s defamation-related motion to dismiss.
See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). We overrule Hanson’s first issue.
B. Privacy
In her second issue, Hanson argues that the trial court erred by denying her
privacy-related motion to dismiss as untimely. Specifically, the Johnsons had objected
because Hanson’s privacy-related motion to dismiss was filed more than 60 days after
Hanson was served with their original petition.11 The trial court agreed and found
The Johnsons also objected that the privacy-related motion was filed just six
11
days before the hearing, depriving the Johnsons of the 21 days’ notice to which they
were entitled. Cf. Tex. Civ. Prac. & Rem. Code Ann. § 27.003(d). Hanson raises this
issue on appeal, challenging it as an alternate basis for the trial court’s ruling that her
privacy-related motion was untimely.
But the trial court specifically stated that it was rejecting the privacy-related
motion as “not timely filed in this matter,” and the 21-day-notice requirement goes to
the timeliness of the hearing rather than the timeliness of the motion’s filing. See id.15
that “the intrusion on seclusion [i.e., privacy-related] anti-SLAPP motion was not
timely filed in this matter,” and it denied the motion on that basis.12 Hanson claims
that this was erroneous because, according to her, the Johnsons’ first amended
petition included changes that restarted the 60-day clock, making her privacy-related
motion timely.13
Generally, “[a] motion to dismiss a legal action under [the TCPA] must be filed
not later than the 60th day after the date of service of the legal action.”14 Id. at
§ 27.003(b); see Damti v. ACET Glob., LLC, No. 05-21-00907-CV, 2022 WL 4719585,
Plus, neither party has asked us to address—much less analyzed or cited any
case law regarding—a trial court’s authority to deny a TCPA motion to dismiss based
on the movant’s request for a premature hearing on less than 21 days’ notice. Cf.
Leach v. Schwartz, 645 S.W.3d 906, 912–13 (Tex. App.—El Paso 2022, no pet.) (“[T]he
failure to hold the hearing on a timely basis [i.e., before the statutory deadline] is both
a reason to deny the motion, and a reason to reverse the TCPA motion if granted.”);
Wightman-Cervantes v. Hernandez, No. 02-17-00155-CV, 2018 WL 798163, at *4 (Tex.
App.—Fort Worth Feb. 9, 2018, pet. denied) (mem. op.) (emphasizing that, to be
protected by the TCPA, “a party must comply with the statutory requirements to file a
motion to dismiss, and to obtain a hearing on that motion, within the deadlines
specified in the TCPA”).
12
The parties agree that the trial court denied the privacy-related motion based
on its untimeliness. Although portions of Hanson’s brief appear to imply that the trial
court reached the merits of the privacy-related motion as well, there is no indication
that the trial court proceeded to the merits after rejecting the motion as untimely.
13
The Johnsons do not address the 60-day issue at all in their brief.
14
“The parties, upon mutual agreement, may extend the time to file a [TCPA
dismissal] motion . . . or the court may extend the time to file a [TCPA dismissal]
motion . . . on a showing of good cause,” but Hanson does not allege that either
extension applies here. Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b).
16
at *4 (Tex. App.—Dallas Oct. 3, 2022, pet. denied) (mem. op.) (affirming denial of
untimely TCPA motion to dismiss); see also Wightman-Cervantes, 2018 WL 798163, at *4
(emphasizing that, to be protected by the TCPA, “a party must comply with the
statutory requirements to file a motion to dismiss . . . within the deadlines specified in
the TCPA”). But if an amended petition “(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,” then the amendment “asserts a new legal action [for purposes of the TCPA]
and triggers a new sixty-day period as to those new parties, facts, or claims.”
Montelongo v. Abrea, 622 S.W.3d 290, 293–94 (Tex. 2021).
The Johnsons’ first amended petition made quite a few changes,15 but Hanson’s
appeal focuses on just one: the Johnsons’ allegation that Hanson invaded their privacy
by repeatedly calling the police.
The Johnsons’ original petition said nothing regarding Hanson’s calls to the
police after the pool incident, nor did the original petition assert that such calls
invaded the Johnsons’ privacy. But the first amended petition alleged that Hanson
“ha[d] multiple times called the police on the Johnsons, even when the Johnsons were
in their backyard complying with all local, state, and federal laws”; that “the reason
15
The first amended petition added several new defendants, a new paragraph of
facts regarding the Johnsons’ backyard fire pit, a new cause of action (conspiracy), and
new details to support the Johnsons’ invasion of privacy claim.
17
[Hanson] continue[d] to call the police [wa]s to intimidate and harass [the Johnsons]”;
and that the police calls “intentionally intruded . . . upon [the Johnsons’] solitude,
seclusion, or private affairs.” In other words, the Johnsons’ first amended petition
added previously unmentioned, allegedly blameworthy conduct to the case, and the
Johnsons pleaded this previously unmentioned conduct as a new factual basis for their
invasion of privacy claim.
Because the allegations regarding Hanson’s calls to the police were “new
essential facts to support [the Johnsons’] previously asserted claim[],” Montelongo, 622
S.W.3d at 293–94, they triggered a new 60-day deadline for Hanson to challenge that
portion of the Johnsons’ invasion of privacy claim. Hanson’s privacy-related motion
to dismiss targeted these new allegations, and it is undisputed that the privacy-related
motion was filed within 60 days of Hanson receiving service of the Johnsons’ first
amended petition. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b).
Hanson’s privacy-related motion to dismiss was thus filed within the 60-day
deadline, and the trial court abused its discretion by rejecting it as untimely. We
sustain Hanson’s second issue and reverse the portion of the trial court’s order
denying Hanson’s privacy-related motion as untimely.
C. Remand
Although the parties agree that the trial court denied the privacy-related motion
to dismiss as untimely, Hanson (in her third issue) urges us to proceed to the merits of
the motion anyway.
18
But the trial court ruled without regard to the merits and before the Johnsons
had an opportunity to file a response. In such a circumstance, “the appropriate
remedy is to remand the case for further proceedings consistent with this opinion.”
Reeves v. Harbor Am. Cent., Inc., 552 S.W.3d 389, 396 (Tex. App.—Houston [14th Dist.]
2018, no pet.) (remanding case when trial court denied TCPA motion to dismiss
without addressing merits and before nonmovant responded); see Hearst Newspapers,
LLC v. Status Lounge Inc., 541 S.W.3d 881, 893–94 (Tex. App.—Houston [14th Dist.]
2017, no pet.) (remanding case when trial court denied TCPA motion to dismiss as
untimely without addressing merits). We therefore decline to review the merits of the
privacy-related motion, and we overrule Hanson’s third issue.
IV. Conclusion
We affirm the portion of the trial court’s order denying Hanson’s defamation-
related motion to dismiss, reverse the portion denying Hanson’s privacy-related
motion to dismiss as untimely, and remand the privacy-related motion to dismiss to
the trial court for further proceedings consistent with this opinion.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: May 25, 2023
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