Justin Jordan v. Benjamin Hall, III

Opinion issued December 6, 2016

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-16-00430-CV
———————————
JUSTIN JORDAN, Appellant
V.
BENJAMIN HALL III, Appellee

On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2015-64275

OPINION

In this interlocutory appeal, Justin Jordan challenges the trial court’s denial,

as untimely, of Jordan’s motion to dismiss under the Texas Citizens’ Participation

Act (TCPA). Benjamin Hall III sued Jordan alleging that Jordan placed a

defamatory and illegal political radio advertisement about Hall during Hall’s
mayoral campaign. Three days later, and without service of the petition, Jordan filed

an answer with special exceptions. Jordan moved to dismiss the suit under the TCPA

five months later, and the trial court denied the motion as untimely. On appeal,

Jordan contends the trial court erred by denying his motion as untimely because

(1) the 60-day deadline to file a TCPA motion does not expire if a defendant is not

served with process, and (2) the 60-day deadline is tolled by the trial court’s order

requiring Hall to replead in response to Jordan’s special exceptions. We affirm.

Background

In October 2015, Hall was running for mayor of Houston. On October 25,

2015, Houston radio station Majic 102.1 FM aired a political radio ad stating:

Ben Hall, this message is for you. You can no longer lie to the voters
of Houston. You can no longer make up stories about owning a radio
station that just aren’t true. We will not allow you to use Wayne
Dolcefino to do your dirty work and you can’t hide your association
with Confederate sympathizer Steve Hotze. We know you took his
money. And you know Wayne Dolcefino has a history of attacking our
black leaders. Ben Hall, exactly what does that say about you?
Hall believed that Jordan, a former campaign manager, placed the ad. Two

days after the ad aired, Hall sued Jordan in Harris County district court for

“telecommunications and wire fraud, money laundering, election code violations

and fraud, defamation and declaratory judgment relief.” Hall alleged that Jordan

and several political entities that he controlled had conspired to unlawfully influence

the election.

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 Jordan did not await service of the lawsuit. Instead, on October 30, 2015,

three days after the suit was filed, Jordan filed a general denial and special

exceptions. Jordan specially excepted to Hall’s defamation cause of action for

failure to plead all the elements, and specially excepted to the telecommunications,

wire and mail fraud, money laundering, and election law violations causes of action

on the grounds that they were not recognized causes of action under Texas law.

On December 11, 2015, the trial court granted Jordan’s special exceptions and

ordered Hall to replead his causes of action. On December 21, 2015, Hall filed his

“First Supplement to Plaintiff’s Original Petition.” The supplement more

specifically set forth elements of claims for mail fraud, telecommunications fraud,

and money laundering.

Three months later, on March 21, 2016, Jordan filed a motion to dismiss under

the TCPA, arguing that the suit should be dismissed because it related to his

placement of a political radio ad, which was an exercise of his free speech rights.

Hall objected to the motion on the grounds that it was untimely because section

27.003(b) of the TCPA requires a motion to be filed by the 60th day after the date

of service of the legal action. Jordan responded and argued that the deadline in

section 27.003(b) had yet to expire because he voluntarily appeared. In other words,

Jordan argued that there had been no “service of the legal action” due to his voluntary

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appearance and, therefore, the clock on the 60-day deadline in section 27.003(b)

never began to run.

The trial court entered an order denying Jordan’s motion as untimely. Jordan

appealed.

Discussion

In his first and second issues, Jordan argues that the trial court erred by

denying his motion to dismiss as untimely. He argues that the 60-day deadline for

filing a TCPA motion has not yet begun to run because he was never served with the

legal action and instead voluntarily appeared. Alternatively, he argues that the 60-

day deadline was tolled because Hall was ordered to replead and the supplemental

petition was insufficient to satisfy Hall’s pleading burden.

A. Standard of Review and Applicable Law

A party may file a motion to dismiss a legal action based on, related to, or in

response to a party’s exercise of the right of free speech, right to petition, or right of

association. TEX. CIV. PRAC. & REM. CODE § 27.003(a). Section 27.003(b) sets forth

the deadline to file such a motion: “A motion to dismiss a legal action under this

section must be filed not later than the 60th day after the date of service of the legal

action.” Id. § 27.003(b). The trial court may extend the time to file a motion on a

showing of good cause. Id.

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 We review de novo a trial court’s ruling on a motion to dismiss under the

TCPA. Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441

S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). In conducting

this review, we review the pleadings and evidence in a light favorable to the

nonmovant. Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416

S.W.3d 71, 80–81 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

Our primary concern when interpreting a statute is the express statutory

language. See Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867

(Tex. 2009). We apply the plain meaning of the text unless a different meaning is

supplied by legislative definition or is apparent from the context or the plain meaning

leads to absurd results. Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 663

(Tex. 2010). “We generally avoid construing individual provisions of a statute in

isolation from the statute as a whole[,]” R.R. Comm’n of Tex. v. Tex. Citizens for a

Safe Future and Clean Water, 336 S.W.3d 619, 628 (Tex. 2011), and we must

consider a provision’s role in the broader statutory scheme, 20801, Inc. v. Parker,

249 S.W.3d 392, 396 (Tex. 2008).

B. Analysis

Jordan argues that his motion was timely because he was never served with

the legal action and instead voluntarily appeared. More specifically, Jordan argues

that section 27.003(b)’s 60-day deadline runs from the date of service and because

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he was never served, the 60-day clock never began to run. Jordan argues that a

voluntary appearance without service waives service of citation but not “service of

[a] legal action” under section 27.003(b), and Hall was required to serve him with

the petition in order to trigger the 60-day deadline in section 27.003(b).

The Fourteenth Court of Appeals considered a similar argument in Bacharach

v. Garcia, 485 S.W.3d 600 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Garcia

sued Bacharach for slander and libel, and Bacharach voluntarily appeared and

answered. Id. at 601. Eleven months after she answered, Bacharach moved to

dismiss the suit pursuant to the TCPA, and the trial court denied the motion as

untimely. Id. at 601–02.

On appeal, Bacharach argued that the trial court erred by denying her motion

as untimely because she had never been personally served with the suit and the 60-

day deadline in section 27.003(b) never began to run. Id. at 602. The Fourteenth

Court of Appeals rejected this argument, holding that Bacharach waived her right to

formal service by voluntarily filing an answer, and this triggered the 60-day deadline

in section 27.003(b). See id. (citing TEX. R. CIV. P. 121 (“An answer shall constitute

an appearance of the defendant so as to dispense with the necessity for the issuance

or service of citation upon him.”)).

We agree with our sister court’s analysis in Bacharach. It is well-settled that

the purpose of the TCPA is “‘to allow a defendant early in the lawsuit to dismiss

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claims that seek to inhibit a defendant’s constitutional rights to petition, speak freely,

associate freely, and participate in government as permitted by law.’” Paulsen v.

Yarrell, 455 S.W.3d 192, 197 (Tex. App.—Houston [1st Dist.] 2014, no pet.)

(quoting In re Estate of Check, 438 S.W.3d 829, 836 (Tex. App.—San Antonio 2014,

no pet.), superseded by statute on other grounds as stated in Schlumberger Ltd. v.

Rutherford, 472 S.W.3d 881, 887–88 (Tex. App.—Houston [1st Dist.] 2015, no

pet.); see also Pickens v. Cordia, 433 S.W.3d 179, 183 (Tex. App.—Dallas 2014, no

pet.) (TCPA provides for “expedited dismissal of unmeritorious suits”); Summersett

v. Jaiyeola, 438 S.W.3d 84, 86 (Tex. App.—Corpus Christi 2013, pet. denied)

(TCPA “provides for the early dismissal of legal actions”). It is also well-settled

that a defendant may waive the requirement of service by voluntarily appearing. See

TEX. R. CIV. P. 121, 124; James v. Calkins, 446 S.W.3d 135, 142 (Tex. App.—

Houston [1st Dist.] 2014, pet. denied). To interpret section 27.003(b) as permitting

a voluntarily appearing defendant to file a TCPA motion at any time, including

several months or years after answering, would run counter to the purpose of the

TCPA. See Paulsen, 455 S.W.3d at 197; Check, 438 S.W.3d at 837. Following

Bacharach, we hold that Jordan’s 60-day window in which to file his TCPA motion

began to run on the date on which he voluntarily appeared by filing an answer,

October 30, 2015, and his deadline expired 60 days later. See Bacharach, 485

S.W.3d at 602.

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 Jordan argues, however, that even if we conclude the TCPA’s 60-day clock

started when he voluntarily filed his answer, the deadline was tolled when the trial

court sustained his special exceptions on December 11, 2015. Jordan argues that the

supplemental petition that Hall filed on December 21, 2015, in response to the trial

court’s order sustaining the special exceptions, did not cure the problems with Hall’s

pleading, and therefore the TCPA dismissal deadline remains tolled, making his

TCPA motion timely.

Although an amended petition asserting claims based upon new factual

allegations may reset a TCPA deadline as to the newly-added substance, see James,

446 S.W.3d at 146, the deadline for a TCPA motion is not reset when a plaintiff files

an amended petition that adds no new claims and relies upon the same factual

allegations underlying an original petition. See Paulsen, 455 S.W.3d at 198. That

is what happened here. The factual allegation underlying Hall’s causes of action in

his original petition, and in his supplemental petition, is Jordan’s purportedly illegal

placement of the radio advertisement. Likewise, the claims asserted in the

supplemental petition are a subset of those asserted in the original petition.

Accordingly, Jordan’s 60-day deadline to file his TCPA motion was not tolled or

reset by the filing of the supplemental petition or the trial court’s order granting

special exceptions. See id. (plaintiff’s amended petition relying on same factual

allegations as original petition did not reset TCPA deadline; defendant’s

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subsequently-filed TCPA motion was therefore untimely); cf. James, 446 S.W.3d at

146 (claims added in amended petition that were based upon substantively different

factual allegations than previous petitions were subject to TCPA).

For the foregoing reasons, we hold that the trial court did not err by denying

Jordan’s TCPA motion as untimely. See Bacharach, 485 S.W.3d at 602; Paulsen,

455 S.W.3d at 198.

We overrule Jordan’s first and second issues.

Conclusion

We affirm the trial court’s order.

Rebeca Huddle
Justice

Panel consists of Justices Massengale, Brown, and Huddle.

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