THE TCPA’S FINAL FRONTIER? COURT OF APPEALS DECLINES TO ADDRESS WHETHER TCPA APPLIES TO FAMILY LAW CASE

Smith v. Malone
Dallas Court of Appeals, No. 05-18-00216-CV (November 27, 2018)
Justices Myers, Evans (Opinion, linked here), and Brown

Brent Rubin

Recently, Texas courts have applied the Texas Citizens Participation Act (TCPA) to cases far afield from the defamation claims typically targeted by anti-SLAPP statutes. For instance, the TCPA has been wielded in commercial disputes to secure expedited dismissal of fraud and misappropriation-of-trade-secrets claims. In Smith v. Malone, the Dallas Court of Appeals was asked to apply the TCPA in an even more unexpected context: a family law dispute.

Malone and Smith had a son together. Several years later, Malone filed a suit requesting that both parents be named joint managing conservators of the child, with Malone having the right to designate the child’s primary residence. Smith moved to dismiss under the TCPA, alleging that Malone filed the suit in response to her request that the Texas Attorney General assist her in obtaining child support from Malone (an alleged exercise of her “right to petition,” protected by the TCPA). Smith provided text messages purporting to show that when she told Malone she was seeking child support, Malone responded that he would seek custody of their son. The trial court denied Smith’s motion, and Smith brought an interlocutory appeal, as the TCPA permits.

Although the Court of Appeals acknowledged that the TCPA does not contain an express exception preventing its application to custody proceedings or family matters (as it does for other types of claims), the Court declined to address whether the TCPA applied to Malone’s suit. Instead, the Court concluded that even if the TCPA applied, dismissal would be inappropriate because Malone established a prima facie case on the challenged claim, as the TCPA requires for a plaintiff to avoid dismissal. As the undisputed father of the child, Malone was entitled to an order determining conservatorship without proving any more. Evidence about what would be in the child’s best interest—the standard used to determine the substance of the conservatorship order—was not necessary to establish Malone’s prima facie case. The Court therefore affirmed the denial of Smith’s TCPA motion to dismiss.