Deepwell Energy Services, LLC v. Aveda Transportation and Energy Services, Jared Brown, Linda Clark, Tom Halliday, and Mickey Sims

Opinion filed April 18, 2019

In The

Eleventh Court of Appeals
__________

No. 11-18-00265-CV
__________

DEEPWELL ENERGY SERVICES, LLC, Appellant
V.
AVEDA TRANSPORTATION AND ENERGY SERVICES,
JARED BROWN, LINDA CLARK, TOM HALLIDAY, AND
MICKEY SIMS, Appellees

On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CV54356

OPINION
This is an interlocutory appeal brought under the Texas Citizens Participation
Act (the TCPA). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011 (West
2015), § 51.014(a)(12) (West Supp. 2018) (authorizing an interlocutory appeal of
denial of a TCPA motion to dismiss).1 Deepwell Energy Services appeals the denial

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An interlocutory appeal of the denial of a TCPA motion to dismiss “stays all other proceedings in
the trial court pending resolution of that appeal.” CIV. PRAC. & REM. § 51.014(b).
of its “Responsive Texas Citizens Participation Act Motion to Dismiss.” Deepwell
filed this motion in response to a TCPA motion to dismiss filed by Aveda
Transportation and Energy Services, Jared Brown, Linda Clark, Tom Halliday, and
Mickey Sims (Appellees). Deepwell alleged in its responsive motion to dismiss that
Appellees’ TCPA motion to dismiss violated the same act.
This appeal presents a threshold question: Is a TCPA motion to dismiss
subject to dismissal by a responsive or countermotion to dismiss brought under the
Act? Two of our sister courts of appeals have answered this question in the negative.
See Paulsen v. Yarrell, 537 S.W.3d 224, 231–33 (Tex. App.—Houston [1st Dist.]
2017, pet. denied); Roach v. Ingram, 557 S.W.3d 203 (Tex. App.—Houston [14th
Dist.] 2018, pet. filed). As set forth herein, we agree with the First and Fourteenth
Courts of Appeals that a party may not seek the dismissal of a TCPA motion to
dismiss by filing a responsive or countermotion to dismiss under the Act. We affirm
the order denying Deepwell’s responsive TCPA motion to dismiss.
Background Facts
Deepwell sued Appellees under numerous legal theories, alleging that
Appellees used Deepwell’s confidential information to lure away Deepwell’s
employees. Appellees filed a motion under the TCPA to dismiss Deepwell’s lawsuit.
Deepwell filed a lengthy written response to Appellees’ TCPA motion to dismiss.
Deepwell also filed its own TCPA motion to dismiss Appellees’ TCPA motion to
dismiss. Deepwell referred to this motion as a “responsive TCPA motion to
dismiss.”
The trial court entered separate written orders granting Appellees’ motion to
dismiss and denying Deepwell’s responsive motion to dismiss. Deepwell filed a
notice of appeal from the order denying its responsive motion to dismiss. Thus, the
trial court’s order granting Appellees’ motion to dismiss is not at issue in this appeal.

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 Analysis
The TCPA is an anti-SLAPP law; “SLAPP” is an acronym for “strategic
lawsuits against public participation.” KBMT Operating Co. v. Toledo, 492 S.W.3d
710, 713 n.6 (Tex. 2016). The TCPA is intended “to encourage and safeguard the
constitutional rights of persons to petition, speak freely, associate freely, and
otherwise participate in government to the maximum extent permitted by law and,
at the same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.” CIV. PRAC. & REM. § 27.002.
Deepwell asserts in its first issue that Appellees’ motion to dismiss under the
TCPA could be challenged by a responsive or countermotion to dismiss filed under
the same act. Deepwell’s first issue involves the construction of a statute, which
courts review de novo. See R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future &
Clean Water, 336 S.W.3d 619, 624 (Tex. 2011); Paulsen, 537 S.W.3d at 231. We
note that we also review a trial court’s ruling denying a motion to dismiss under the
TCPA de novo. Paulsen, 537 S.W.3d at 231.
The TCPA allows a defendant to obtain expedited dismissal of certain legal
actions for which the party bringing the action does not establish prima facie support.
State ex rel. Best v. Harper, 562 S.W.3d 1, 4–5 (Tex. 2018). “The TCPA permits a
party to file a motion to dismiss a ‘legal action’ if the action ‘is based on, relates to,
or is in response to a party’s exercise of the right of free speech, right to petition, or
right of association.’” Id. at 8 (quoting CIV. PRAC. & REM. § 27.003(a)). The TCPA
defines a “[l]egal action” as “a lawsuit, cause of action, petition, complaint, cross-
claim, or counterclaim or any other judicial pleading or filing that requests legal or
equitable relief.” CIV. PRAC. & REM. § 27.001(6).
Deepwell asserts that Appellees’ TCPA motion to dismiss was a legal action
that was based on, related to, or in response to Deepwell’s exercise of its right to
petition. Deepwell contends that the legislature defined the term “legal action” “very
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broadly.” Deepwell focuses its analysis on the words “or any other judicial pleading
or filing that requests legal or equitable relief” contained at the end of
Section 27.001(6). Deepwell contends that this phrase “greatly expands the scope
of a ‘legal action’ beyond traditional ‘actions’” to include a motion to dismiss under
the TCPA.
Paulsen v. Yarrell
In Paulsen, the First Court of Appeals addressed the same issue presented in
this appeal—whether a TCPA motion to dismiss is a “legal action” under the TCPA
that would authorize the filing of a countermotion to dismiss under the TCPA.
Paulsen, 537 S.W.3d at 233. The court in Paulsen determined that a TCPA dismissal
motion is not itself a TCPA “legal action” subject to a TCPA dismissal motion. Id.;
see Harper, 562 S.W.3d at 8 (noting the holding in Paulsen). The court in Paulsen
reached this determination by examining the definition of “legal action” in the
TCPA:
(6) “Legal action” means a lawsuit, cause of action, petition,
complaint, cross-claim, or counterclaim or any other judicial pleading
or filing that requests legal or equitable relief.

CIV. PRAC. & REM. § 27.001(6) (emphasis added).
As is the case in this appeal, the appellant in Paulsen asserted that the words
“any other judicial pleading or filing that requests legal or equitable relief” are broad
enough to include a TCPA motion to dismiss. Paulsen, 537 S.W.3d at 233. The
court in Paulsen described the last phrase as a “catch-all following a list of other
covered ‘legal actions.’” Id. Relying upon the doctrine of ejusdem generis, the court
noted that, when more specific items are followed by a catch-all “other,” the latter
must be limited to things like the former. Id. (citing Ross v. St. Luke’s Episcopal
Hosp., 462 S.W.3d 496, 504 (Tex. 2015)). The court in Paulsen characterized the
definition’s inclusion of “lawsuit,” “cause of action,” “petition,” “complaint,”

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“cross-claim,” and “counterclaim” as a class of procedural vehicles for the
vindication of a legal claim. Id. The court concluded that a TCPA motion to dismiss
is not a procedural vehicle for the vindication of a legal claim and that it is therefore
not included in the catch-all provision at the end of the definition. Id.
The court in Paulsen stated as follows:
Were we to conclude otherwise, the proliferation of “piecemeal or
seriatim ‘motions to dismiss’ attacking myriad ‘legal actions’ that
consist merely of individual filings within or related to a lawsuit, as
opposed to the underlying lawsuit and substantive claims that are the
Act’s core focus” would result in application of the TCPA that “strays
from—and, indeed, undermines through cost and delay—its manifest
purpose to secure quick and inexpensive dismissal of meritless ‘legal
actions’ that threaten expressive freedoms.”

Id. at 233–34 (quoting In re Elliott, 504 S.W.3d 455, 480 (Tex. App.—Austin 2016,
orig. proceeding) (Pemberton, J., concurring)).2 The court in Paulsen also expressed
concern that permitting a TCPA countermotion to dismiss could allow a plaintiff to
defeat a motion to dismiss under the TCPA while avoiding the requirement to show
that his claim has merit in response to the defendant’s TCPA motion to dismiss. Id.
at 234. The court further noted that a TCPA countermotion to dismiss would
frustrate the attorney’s fees provision of the TCPA in a manner that finds no support
in the Act. Id.; see CIV. PRAC. & REM. § 27.009(b). Accordingly, the court held that
the TCPA’s dismissal mechanism does not authorize a countermotion to dismiss as
a substitute for a standard response in opposition. Id.

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The court in Paulsen also cited Justice Pemberton’s concurring opinion in In re Elliott for the
proposition that the catch-all portion of the “legal action” definition functions “primarily as a safeguard
against creative repleading of what are substantively lawsuits, causes of action, petitions, complaints,
counterclaims, or cross-claims so as to avoid the TCPA’s dismissal mechanisms.” Paulsen, 537 S.W.3d at
233 n.2 (quoting In re Elliott, 504 S.W.3d at 477–78 (Pemberton, J., concurring)).

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 Roach v. Ingram
In Roach, the Fourteenth Court of Appeals addressed the same question.
Roach, 557 S.W.3d at 217. The court focused its analysis on its sister court’s holding
in Paulsen. The court in Roach agreed with Paulsen’s interpretation of the TCPA’s
definition of “legal action” under the doctrine of ejusdem generis. Id. at 217–18.
The court in Roach also noted the concerns raised in Paulsen if a countermotion to
dismiss is permitted under the TCPA. Id. at 218. The court in Roach held as follows:
“We agree with the Paulsen court’s reasoning and similarly hold that a TCPA
motion to dismiss is not a “legal action” under section 27.001(6) and, accordingly,
the TCPA does not authorize [a] counter-TCPA motion in response to [a] TCPA
motion to dismiss.” Id.
Our Interpretation of the TCPA
When construing the TCPA, our objective is to give effect to the legislature’s
intent. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam).
We must “look to the statute’s plain language” to give effect to the legislature’s
intent as expressed through the statutory text. Id. “Plainly, a motion to dismiss is
not a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim.”
Roach, 557 S.W.3d at 217. Thus, Deepwell’s argument succeeds only if the phrase
“or any other judicial pleading or filing that requests legal or equitable relief” is
construed to include a motion to dismiss. See id.
We agree with Paulsen’s construction of the “catch-all” phrase under the
doctrine of ejusdem generis in that it “must be limited to things like the former.”
Paulsen, 537 S.W.3d at 233. We hold that a TCPA motion to dismiss is not included
as a “legal action” under the phrase “or any other judicial pleading or filing that
requests legal or equitable relief” because it is not a procedural vehicle for the
vindication of a legal claim like a “lawsuit,” “cause of action,” “petition,”
“complaint,” “cross-claim,” or “counterclaim.” Id. (quoting Section 27.001(6)); see
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Roach, 557 S.W.3d at 217–18. In reaching this holding, we share the same concerns
expressed in Paulsen—that permitting a TCPA countermotion to dismiss would
spawn the “proliferation of piecemeal or seriatim motions to dismiss.” Paulsen, 537
S.W.3d at 233–34 (internal quotation marks omitted). Furthermore, we agree with
Justice Pemberton’s conclusion that the catch-all provision serves the purpose of
being a safeguard against creative repleading of what are substantively lawsuits,
causes of action, petitions, complaints, counterclaims, or cross-claims so as to avoid
the TCPA’s dismissal mechanisms. In re Elliott, 504 S.W.3d at 477–78 (Pemberton,
J., concurring).
We overrule Deepwell’s first issue. Because of our disposition of Deepwell’s
first issue, we do not reach its second and third issues addressing the merits of its
responsive TCPA motion to dismiss.
This Court’s Ruling
We affirm the trial court’s “Order Denying Plaintiff’s Responsive TCPA
Motion to Dismiss,” and we remand this cause for further proceedings consistent
with this opinion.

April 18, 2019 JOHN M. BAILEY
Panel consists of: Bailey, C.J., CHIEF JUSTICE
Stretcher, J., and Wright, S.C.J.3

Willson, J., not participating.

3
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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