Melanie Lake Arrington Smith v. William Arrington, Individually and as of the Estate of William L. Arrington

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________

No. 07-19-00393-CV
________________________

MELANIE LAKE ARRINGTON SMITH, APPELLANT

V.

WILLIAM M. ARRINGTON, INDIVIDUALLY AND AS EXECUTOR
OF THE ESTATE OF WILLIAM L. ARRINGTON, DECEASED, APPELLEE

On Appeal from the 223rd District Court
Gray County, Texas
Trial Court No. 38174; Honorable David L. Gleason, Presiding by Assignment

February 9, 2021

MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.

This interlocutory appeal involves a family feud spanning more than ten years.

Appellant, Melanie Lake Arrington Smith, and her brother, Appellee, William Arrington,

are involved in an ongoing legal battle over the distribution of property following the death

of their mother and later, the death of their father. In 2016, one month after their father

died, Smith sued Arrington individually and as executor of their father’s estate, over the
distribution of the estate. Three years into the dispute, Smith filed a Notice of Lis Pendens

claiming an interest in certain real properties located in Gray and Carson Counties. She

contends she was denied her equal share of those properties initially through the

misconduct of the father, in his capacity as executor of the mother’s estate, and now,

through the misconduct of her brother, in his capacity as executor of the father’s estate.

Two businesses, WL & MM Arrington Partnership One, LTD and WL & MM Arrington

Partnership Three, LTD (hereafter “the partnerships”) intervened in the underlying suit,

seeking to have the Notice of Lis Pendens removed and expunged. By their petition in

intervention, they also asserted a claim that Smith fraudulently filed the lis pendens notice,

thereby creating a cloud on the title to real property belonging to the partnerships.

As between her and the partnerships, Smith invoked the Texas Citizens

Participation Act (TCPA), 1 and filed a motion to dismiss the motion to expunge the lis

pendens notice and the claim that it was fraudulently filed. She later amended her motion.

After a hearing, the trial court entered an order denying her motion to dismiss.

By three issues, Smith appeals that order and questions whether (1) filing the filing

of a lis pendens notice is an exercise of petition and free speech rights that falls within

the protections of the TCPA; (2) the partnerships defeated her affirmative defense of

unclean hands; and (3) the hearing on her motion to dismiss was timely after the trial

court granted an extension. The partnerships contend (1) the TCPA does not apply, (2)

Smith’s motion to dismiss was not timely heard, (3) Smith waived whether they

1 The TCPA was amended by the 86th Legislature. See Act of May 17, 2019, 86th Leg., R.S., ch.
378, §§ 1-9, 2019 Tex. Gen. Laws 684. The Legislature specifically provided that chapter 27 of the Act
“applies only to an action filed on or after the effective date” of September 1, 2019. Id. at § 11. The
underlying suit was filed on December 14, 2016, prior to the effective date. Thus, we will apply the statutes
in effect at the time the underlying suit was filed.
2
established each essential element of their claims under the requisite standard of proof

under the TCPA, and (4) Smith failed to establish the affirmative defense of unclean

hands. Smith contests the partnerships’ arguments in her reply brief. We affirm.

BACKGROUND

William L. Arrington and Margareta M. Arrington had two children, the two litigants

in this case, Smith and Arrington. Over time, the parents amassed profitable oil and gas

interests and other business interests. In 2007, they created WL & MM Arrington

Partnership One, LTD, and in 2008, they created WL & MM Arrington Partnership Three,

LTD, the intervenors in the underlying suit. The partnerships (One and Three) were

designed to hold and manage the oil and gas properties of William L. and Margareta M.

Arrington, and Smith was never a limited or general partner in either of those partnerships.

The parents did, however, create the WL & MM Arrington Partnership Two, LTD, a limited

partnership for the benefit of Smith. Smith contends, however, that after the mother’s

death, the father transferred assets out of Partnership Two to her detriment.

In 2008, Margareta suffered a stroke. Smith alleged that after the stroke, the father

engaged in various business transactions that benefitted Arrington and which were

unfavorable to her. Margareta passed away on August 26, 2009, and William was

appointed independent executor of her estate. Under the terms of Margareta’s will, she

bequeathed her personal property to William if he survived and if not, then to the children

in equal shares. She also included a provision that if William survived her, she left “all of

[her] interest in all insurance policies on the life of [her] husband to [her] children in equal

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shares.” 2 The remainder of Margareta’s will gave the residue of her estate to two

separate trusts—one-half to each trust.

In 2010, William executed a handwritten will revoking all prior wills and specifically

disinheriting Smith and her descendants. The will recited “I leave nothing to our daughter

Melanie L. Arrington Smith . . . never shall anything go to our daughter.” On June 25,

2014, however, he executed a new will bequeathing Smith “the picture behind the piano,

and all of my pictures of my daughter, her husband, her children, and grandchildren,

including my daughter’s wedding picture.” The 2014 will also left her all “oil, gas and other

mineral interests located in the State of Oklahoma and all other real estate” owned in the

State of Oklahoma which were held by WL & MM Arrington Partnership Two, LTD. 3

Two years later, William passed away. His Last Will and Testament appointed

Arrington as Independent Executor of his estate. Except for the specific bequests to

Smith mentioned above, Arrington inherited the father’s estate.

Dissatisfied with the management of the father’s estate, Smith filed suit against

Arrington, individually, and as executor of the estate on December 14, 2016. By her live

pleading (third amended petition) filed on March 16, 2018, she asserts that the father and

Arrington consisted of “two generations of scheming, stealing, and self-dealing” that

2 William obtained a life insurance policy on his life for $976,000 issued by Jackson National Life
Insurance Policy naming Margareta as owner and beneficiary. On her death, one-fourth of the policy
proceeds were intended for Smith and one-fourth were intended for Arrington with the remaining one-half
intended for William. In a letter written by William on December 2, 2011, he indicated “I wanted to put my
$448,000.00 in a Trust . . . so that when I die the $488,000.00 is [Smith’s] to do whatever she wants to do
with it . . . . [Smith] has never said ‘thank you’ or ‘it’s nice of you to want to give this to me’ or anything else
to show any appreciation.” Smith learned through discovery that William allowed the policy to lapse and
that his efforts to reinstate the policy with Arrington as the sole beneficiary had failed.

3 As executor of the father’s estate, Arrington deeded the Oklahoma properties to Smith on April 1,

2018. Smith later discovered through Oklahoma drilling records that Arrington “had been unloading
plugged, abandoned and depleted wells on her, in a transparent effort to saddle her with plugging costs
and potential environmental liabilities.”
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violated the mother’s wishes to distribute certain assets to both her children in equal

shares. She alleges breach of fiduciary duty, negligence by the father for failing to

maintain the Jackson National Life Insurance Policy, as well as fraud, fraudulent

inducement, conversion, promissory estoppel, civil conspiracy, and undue influence by

Arrington on the father.

With the litigation in this cause (Cause Number 38714) ongoing, Smith filed a

Notice of Lis Pendens in Gray County, Texas, on April 1, 2019. The notice referenced this

litigation and described twenty-three properties situated in Gray and Carson Counties,

Texas. By letter, Smith’s attorney advised certain oil and gas operating companies of a

potential change in ownership and requested suspension of revenues and an accounting

of revenues and expenses. The partnerships, who are not parties to the underlying suit

between Smith and Arrington, filed their Original Petition in Intervention on June 3, 2019,

and Smith was served that same date. By their petition, the partnerships sought to

expunge and remove the lis pendens. The partnerships alleged the lis pendens was

causing financial harm by interfering with lease agreements and was also suspending

payment of royalties. The petition also alleged a claim for affirmative relief under section

12.007 of the Texas Property Code, alleging that the lis pendens was fraudulently filed.

Additionally, the partnerships claimed they were never served with a copy of the notice

as required by section 12.007(d) of the Texas Property Code. 4

On June 20, 2019, Smith filed her original Motion to Dismiss Under the TCPA

seeking dismissal of the partnerships’ attempt to expunge the lis pendens. The

4 Section 12.007(d) provides that the person filing the notice serve, within three days of the filing,

a copy on “each party to the action who has an interest in the real property affected by the notice.” TEX.
PROP. CODE ANN. § 12.007(d) (West 2014). (Emphasis added). At the time of the filing of the lis pendens,
the partnerships were not parties to the underlying suit.
5
partnerships were served that same date. Her First Amended Motion to Dismiss Under

the TCPA was filed on August 2, 2019, and the partnerships were served that same date.

The partnerships responded to Smith’s amended motion on October 15, 2019, alleging it

was moot because Smith had failed to obtain a hearing within sixty days of service of her

original motion as required by the TCPA. The trial court held a hearing on Smith’s

amended motion to dismiss on October 17, 2019.

At the hearing, Smith argued that the TCPA applied to her filing of the lis pendens

and that her amended motion to dismiss was timely heard. Smith presented an affirmative

defense of unclean hands using a sword and shield analogy—the partnerships, who are

represented by the same law firm as Arrington, who has been thwarting discovery, cannot

now assert arguments based on facts resisted in the discovery process to establish their

prima facie case.

In response to Smith’s arguments, the partnerships claimed that a hearing should

have been held within sixty days of Smith’s original motion to dismiss served on June 20,

2019, and that the delay divested the trial court of jurisdiction to rule on the amended

motion to dismiss served on August 2, 2019. Regarding the lis pendens, the partnerships

asserted it was fraudulently filed because they are not parties to the suit between Smith

and Arrington and because Smith did not assert any real property claims in her suit to

support the filing of a lis pendens. As for the sword and shield analogy, the partnerships

argued it was a red herring.

After arguments from counsel concluded, the trial court took the motion under

consideration. It later issued its written order denying Smith’s motion to dismiss under

the TCPA from which Smith has pursued this interlocutory appeal.
6
 APPLICABLE LAW

The Texas Citizens Participation Act is often characterized as an “anti-SLAPP”

(Strategic Lawsuits Against Public Participation) statute. See KBMT Operating Co. LLC

v. Toledo, 492 S.W.3d 710, 713 n.6 (Tex. 2016); Serafine v. Blunt (Serafine I), 466

S.W.3d 352, 365-67 (Tex. App.—Austin 2015, no pet.). Although the TCPA was

amended effective September 1, 2019, 5 to narrow its application, its stated purpose

remains to “encourage and safeguard the constitutional rights of persons to petition,

speak freely, associate freely, and otherwise participate in government to the extent

permitted by law and, at the same time, protect the rights of a person to file meritorious

lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002 (West

2020); ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017). To

effectuate the purpose of the TCPA, the Legislature included an expedited manner of

dismissing claims brought to intimidate or to silence a movant’s exercise of certain

enumerated First Amendment rights. § 27.003. See Coleman, 512 S.W.3d at 898.

A party moving to dismiss must show by a preponderance of the evidence 6 that

another’s “‘legal action’ is based on, relates to, or is in response to” the party’s exercise

of: (1) the right of free speech, (2) the right to petition, or (3) the right of association. §

27.005(b). “Legal action” is defined 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.” § 27.001(6). If the movant demonstrates that the nonmovant’s “legal

5 See supra n.1.

6 Preponderance of the evidence means the greater weight and degree of credible evidence that
would create a reasonable belief in the truth of the matter. Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex.
App.—San Antonio 2014, no pet.). The 2019 amendments to the TCPA eliminated the “preponderance of
the evidence” standard and now require a moving party to “demonstrate” that a legal action is “based on or
is in response to” a party’s exercise of certain enumerated First Amendment rights. See supra n.1.
7
action” implicates one of these rights, the burden shifts to the nonmovant to establish by

clear and specific evidence 7 a prima facie case 8 for each essential element of the claim

in question. § 27.005(c). Even when the nonmovant meets the burden, the trial court still

must dismiss the lawsuit if the movant “establishes by a preponderance of the evidence

each essential element of a valid defense to the nonmovant’s claims.” § 27.005(d). 9 In

determining whether to dismiss a suit, the trial court shall consider the pleadings and

supporting and opposing affidavits stating the facts on which the liability or defense is

based. § 27.006; Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017).

STANDARD OF REVIEW

We review de novo a trial court’s denial of a motion to dismiss and whether the

parties met or failed to meet their respective burdens of proof under section 27.005. See

Cox Media Group, LLC v. Joselevitz, 524 S.W.3d 850, 859 (Tex. App.—Houston [14th

Dist.] 2017, no pet.) (reviewing de novo the denial of a motion to dismiss under the TCPA).

7 The TCPA does not define “clear and specific” evidence. Thus, the words “clear” and “specific”
are given their plain or common meaning. In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015). Proof by clear
and specific evidence is “more than mere notice pleading.” Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex.
2017) (citing In re Lipsky, 460 S.W.3d at 590). A party must “provide enough detail to show the factual
basis for its claim.” In re Lipsky, 460 S.W.3d at 591. The TCPA does not impose an elevated evidentiary
standard or categorically reject circumstantial evidence. Id. It does not impose a higher burden of proof
than that required of the plaintiff at trial. Id. We note that the 2019 amendments did not alter the requirement
of section 27.005(c) for the nonmovant to establish by clear and specific evidence a prima facie case for
each essential element of its claim.

8 The legal meaning of a prima facie case is “evidence sufficient as a matter of law to establish a
given fact if it is not rebutted or contradicted.” In re Lipsky, 460 S.W.3d at 590 (citing Simonds v. Stanolind
Oil & Gas Co., 134 Tex. 348, 136 S.W.2d 207, 209 (1940)). It is the “minimum quantum of evidence
necessary to support a rational inference that the allegation of fact is true.” In re Lipsky, 460 S.W.3d at 590
(citing In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)). Under the TCPA, a prima
facie case requires “element-by-element, claim-by-claim exactitude.” Elite Auto Body LLC v. Autocraft
Bodywerks, Inc., 520 S.W.3d 191, 206 (Tex. App.—Austin 2017, pet. dism’d). “Conclusory statements are
not probative and accordingly will not suffice to establish a prima facie case.” Better Bus. Bureau of Metro.
Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 355 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied).

9 The 2019 amendments to the TCPA eliminated the preponderance of the evidence standard and

added that a moving party establish “an affirmative defense or other grounds on which the moving party is
entitled to judgment as a matter of law.” See infra n.1.
8
See also Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019) (reviewing

de novo whether the parties satisfied their respective burdens of proof). In determining

whether the nonmovant presented a prima facie case, we consider all the pleadings and

the evidence in the light most favorable to the nonmovant. See Warner Bros. Entm’t, Inc.

v. Jones, 538 S.W.3d 781, 800 (Tex. App.—Austin 2017), aff’d, No. 18-0068, 2020 Tex.

LEXIS 397 (May 8, 2020). But see Fawcett v. Grosu, 498 S.W.3d 650, 661 (Tex. App.—

Houston [14th Dist.] 2016, pet. denied) (considering only the pleadings and evidence in

favor of the nonmovant’s case).

ISSUE ONE—DOES THE TCPA APPLY?

The first step in a TCPA analysis under the former version is determining whether

a movant demonstrated by a preponderance of the evidence that the TCPA applies to its

claims. Warner Bros. Entm’t Inc., 538 S.W.3d at 800-01. A “communication” is the critical

component of the First Amendment rights implicated in the TCPA. A “communication” is

“the making or submitting of a statement or document in any form or medium, including

oral, visual, written, audiovisual, or electronic.” § 27.001(1). The “exercise of the right to

petition” is defined as a communication involving a judicial proceeding. § 27.001(4)(A)(i).

The “exercise of the right of free speech” means a communication made in connection

with a matter of public concern. § 27.001(3).

The former version of the TCPA casts a wide net. See Adams v. Starside Custom

Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018). “Almost any imaginable form of

communication, in any medium is covered.” Id. (citing § 27.001(1)). In the underlying

case, Smith filed a lis pendens—a communication related to a judicial proceeding.

Smith’s filing implicated the exercise of her right to petition. In response, the partnerships

9
filed their Original Petition in Intervention and Motion to Expunge Lis Pendens—a legal

action. Thus, Smith established that the TCPA applied to the exercise of her right to

petition and that she had authority to file a motion to dismiss under the TCPA. §

27.003(a). We agree with Smith that the TCPA applies. Our conclusion renders moot a

discussion of whether her right of free speech was also implicated.

ISSUE TWO—DID THE PARTNERSHIPS MEET THEIR BURDEN UNDER THE TCPA?

The next step in a TCPA analysis (under the former and current version) is to

determine whether the nonmovants (the partnerships) met their burden to establish by

clear and specific evidence a prima facie case for each essential element of the claim in

question. 10 See Jetall Cos. v. Van Dyke, No. 14-19-00104-CV, 2019 Tex. App. LEXIS

3847, at *10-11 (Tex. App.—Houston [14th Dist.] May 14, 2019, no pet.) (mem. op.). See

also James v. Calkins, 446 S.W.3d 135, 147-48 (Tex. App.—Houston [1st Dist.] 2014,

pet. denied). As the nonmovants, the partnerships were burdened with establishing a

prima facie case of the elements of a claim of a fraudulent lis pendens under the requisite

burden of proof. The Property Code permits a lis pendens to be filed by a party “during

the pendency of an action involving title to real property, the establishment of an interest

in real property, or the enforcement of an encumbrance against real property.” TEX. PROP.

CODE ANN. § 12.007 (West 2014). In their response to Smith’s motion to dismiss, the

partnerships contend that Smith knew she had filed a fraudulent lis pendens. By their

intervention, the partnerships sought expungement of the lis pendens under section

12.0071 of the Texas Property Code. § 12.0071(a) (West Supp. 2020). That statute

provides that “a party to an action in connection with which a notice of lis pendens has

10 The partnerships assert that Smith waived this issue by failing to address it in the trial court and

on appeal. We discuss the partnerships’ burden of proof as it provides a comprehensive understanding of
the merits of this proceeding.
10
been filed may: (1) apply to the court to expunge the notice; and (2) file evidence,

including declarations, with the motion to expunge the notice.” Id.

Generally, a lis pendens protects the filing party’s alleged rights to real property

that is in dispute and puts those interested in the property on notice of a lawsuit. David

Powers Homes, Inc. v. M.L. Rendleman Co., Inc., 355 S.W.3d 327, 336 (Tex. App.—

Houston [1st Dist.] 2011, no pet.). By their response to Smith’s amended motion to

dismiss, the partnerships produced overwhelming evidence that established that

Partnership One owns the surface of the tracts of real property in Gray County and Carson

County described in the lis pendens and Partnership Three owns the mineral interests

underneath those same tracts of real property. They included Arrington’s affidavit. He

serves as the managing member and general partner of those partnerships and averred,

among other facts, that the partnerships own the properties in question. He also averred

that Smith has never been in the chain of title for those properties and she owns no

interest in them. Deeds conveying the properties to the partnerships were also provided

to establish ownership.

It is undisputed that Smith was disinherited by the father from any interest in the

Gray County and Carson County properties. The partnerships presented a copy of a

handwritten will from Smith and Arrington’s father specifically disinheriting Smith, which

he later revoked. They also produced the father’s Last Will and Testament executed

subsequent to the handwritten will which showed that Smith inherited, in addition to

certain photographs, only certain oil, gas, mineral interests, and real estate in Oklahoma.

Those properties were deeded to Smith and are not in dispute in the underlying suit.

11
 The partnerships also offered a copy of Smith’s live pleading in which she asserts

claims for breach of fiduciary duty, negligence for the father’s failure to maintain the

Jackson National Life Insurance Policy, as well as fraud, fraudulent inducement,

conversion, promissory estoppel, civil conspiracy, and undue influence by Arrington on

the father. Nowhere in her live pleading does Smith assert a direct claim of ownership in

the Gray County or Carson County properties which she encumbered by filing the lis

pendens. See In re Collins, 172 S.W.3d 287, 293 (Tex. App.—Fort Worth 2005, orig.

proceeding) (noting that the suit on which the lis pendens is based must claim a direct

interest in real property, not a collateral one). As such, the partnerships presented clear

and specific evidence of a prima facie case for each essential element of their claim of a

fraudulent lis pendens sufficient to avoid dismissal of their legal action.

The final step in a TCPA case is the denial of a motion to dismiss unless the

movant (Smith) establishes by a preponderance of the evidence each essential element

of a valid defense to the nonmovants’ (the partnerships’) claim. Notwithstanding that the

partnerships met their burden to establish a prima facie case, the trial court still had

authority to dismiss their legal action if Smith satisfied her burden to establish by a

preponderance of the evidence each essential element of a valid defense to the

partnerships’ claim. § 27.005(d). 11 In this case, Smith contends the partnerships’ claim

of a fraudulent lis pendens is barred by the defense of unclean hands. By her amended

motion to dismiss, Smith asserted, through a sword and shield analogy, that the

11 The 2019 amendments to the TCPA eliminated the “preponderance of the evidence” standard

for establishing an affirmative defense and added that the moving party must establish an “affirmative
defense or other grounds on which the moving party is entitled to judgment as a matter of law.” See supra
n.1.
12
partnerships should be denied affirmative relief because they have unclean hands.

Unfortunately, however, her motion is not supported by any affidavits or evidence.

“Unclean hands” may bar a party from obtaining equitable relief. Davis v.

Grammar, 750 S.W.2d 766, 768 (Tex. 1988). “‘Unclean hands’ is an affirmative defense

available when a plaintiff is seeking an equitable remedy.” In re Nolle, 265 S.W.3d 487,

494 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Generally, however, the equitable

defense of unclean hands is not applicable in an action for damages. Id.

Relying on this court’s opinion in Brecheisen v. Brecheisen, No. 07-14-00105-CV,

2016 Tex. App. LEXIS 1814, at *16 (Tex. App.—Amarillo Feb. 22, 2016, pet. denied)

(mem. op.), 12 Smith maintains that her motion to dismiss should have been granted. She

contends that because the partnerships and Arrington are represented by the same law

firm and because Arrington is “the decisionmaker for [the partnerships],” the partnerships

have unclean hands. She also argues that the partnerships did not “meaningfully engage”

her defense of unclean hands. 13

The substance of Smith’s argument rests on Arrington’s successful efforts to resist

her discovery requests in the underlying suit. She claims that she is being denied

discovery of relevant information needed to support her case and that the partnerships

now seek relief on their claim due to “alleged shortcomings of proof” on her part. The

partnerships, however, are not involved in Smith and Arrington’s discovery disputes.

12In Brecheisen, this court noted that the doctrine of “unclean hands” applies to “one whose conduct
in connection with the same matter or transaction has been unconscientious, unjust, or marked by a want
of good faith . . . .” 2016 Tex. App. LEXIS 1814, at *16.

13 Smith argues the trial court should have granted her motion to dismiss because the partnerships

failed to negate her affirmative defense of unclean hands. However, the TCPA does not require a
nonmovant to negate a movant’s affirmative defense. The nonmovant’s burden in resisting a motion to
dismiss is to establish a prima facie case of its claim. § 27.005(c)
13
Smith has not presented any evidence to support the elements of a valid defense of

unclean hands by the partnerships. Thus, the trial court did not err in denying her motion

to dismiss. § 27.005(d). Issue two is overruled.

ISSUE THREE—WAS THE AMENDED MOTION TO DISMISS TIMELY HEARD?

Section 27.004(a) of the TCPA provides that a hearing on a motion to dismiss must

be set not later than the sixtieth day after the date of service of the motion unless certain

exceptions apply. § 27.004(a). One of those exceptions is if the docket conditions of the

trial court require a later hearing. Id. The deadline for setting a hearing on a motion to

dismiss under the TCPA is mandatory and failure to comply is a proper basis for denial

of the motion. Grubbs v. ATW Invs., Inc., 544 S.W.3d 421, 424 (Tex. App.—San Antonio

2017, no pet.) (citing Morin v. Law Office of Kleinhans Gruber, No. 03-15-00174-CV, 2015

Tex. App. LEXIS 8799, at *9-11 (Tex. App.—Austin Aug. 21, 2015, no pet.) (mem. op.)).

In the underlying case, the partnerships served their Original Petition in

Intervention and Motion to Expunge Lis Pendens on Smith on June 3, 2019. Smith filed

her original motion to dismiss on June 20, 2019, however, a hearing on that motion was

never set. Instead, on August 2, 2019, the sixtieth day after the filing of the partnerships’

original petition, Smith filed her Amended Motion to Dismiss Under the TCPA and served

it on the partnerships that same date. A hearing on the amended motion was held on

October 17, 2019, seventy-six days after service of the amended motion to dismiss. The

partnerships contend Smith’s amended motion was filed in order to avoid having that

motion overruled by operation of law. They contend that her original motion filed on June

20, 2019, triggered the beginning of the sixty-day deadline in which to set a hearing,

making the October 17 hearing untimely. We disagree.

14
 Smith, relying on Rule 65 of the Texas Rules of Civil Procedure, 14 maintains that

her amended motion to dismiss filed on August 2, 2019, replaced her original motion and

restarted the sixty-day period in which to hold a hearing. We agree with Smith that her

amended motion to dismiss completely replaced her original motion, and even though it

was filed on the sixtieth day after original service of their petition, it was timely filed

because it was filed within sixty days after the date of service. § 27.003(b) (providing that

a “motion to dismiss a legal action under [section 27.003] must be filed not later than the

60th day after the date of service of the legal action”). While the TCPA is silent on whether

a motion to dismiss may be amended, it clearly provides a sixty-day window in which to

file a motion to dismiss. We interpret that window as permitting an amended motion to

be filed, so long as it is filed on or before the sixtieth day following service of the legal

action.

Additionally, the only deadline in the TCPA for extending a hearing date is that “in

no event shall the hearing occur more than 90 days after service of the motion . . . .” §

27.004(a). At the commencement of the hearing, the trial court announced “this is not

within 60 days from the date of [service] of the motion; however it’s not the fault of any

party, and it’s rather a scheduling problem for the Court, and I appreciate you-all waiting

until today to hear it.” Because the August 2 filing of the amended motion to dismiss was

within sixty days of the date of the service of the intervention pleadings, it was timely.

Therefore, the sixtieth day following the filing of the amended motion to dismiss was

October 1, and the October 17 hearing extended that deadline by only sixteen days. We

conclude that because the trial court found that the hearing was delayed beyond the sixty-

14 Rule 65 provides that generally, a substituted instrument takes place of the original. TEX. R. CIV.
P. 65.
15
day period due to conditions of the court’s docket and not through the fault of any party

and that the hearing occurred within ninety days from the date of service of the amended

motion, the hearing was timely held. § 27.004(a). Issue three is overruled.

CONCLUSION

We find that the TCPA applies to Smith’s Notice of Lis Pendens and that her First

Amended Motion to Dismiss Under the TCPA was timely filed and heard. We also find

that the partnerships established by clear and specific evidence each essential element

of their claim and that Smith did not establish by a preponderance of the evidence each

essential element of her defense of unclean hands. Accordingly, we conclude the trial

court did not err in denying her motion to dismiss the Original Petition in Intervention and

Motion to Expunge Lis Pendens filed by WL & MM Arrington Partnership Three, LTD and

WL & MM Arrington Partnership One, LTD. The trial court’s order is affirmed.

Patrick A. Pirtle
Justice

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