JOHN KOTTS AND BOU MATIC LLC v. MILLS (2026)

OPINION

The primary question in this case is whether the 2019 amendments to the Texas Citizens Participation Act apply to claims added in 2025 to a pre-2019 case. We hold that they do and that Defendants therefore did not give Plaintiff adequate notice of the hearing. We affirm.

BACKGROUND

Kotts is a Houston investor who buys and sells companies. He acquired Bou-Matic, LLC, a manufacturer of dairy equipment, in 2002, and hired Plaintiff to manage it as the company's president, CEO, and general counsel. The parties had only an oral agreement, and Plaintiff claims—and Kotts disputes—that Kotts promised to pay Plaintiff $100,000 per month plus an annual performance bonus equal to 10% of Bou-Matic's adjusted net operating profit. Plaintiff claims that Kotts didn't pay him the required bonus in 2016, 2017, and 2019, even though he alleges that Bou-Matic was profitable for those years.

Plaintiff sued Defendants in 2019, asserting breach of contract stemming from the unpaid performance bonuses. The trial court granted Defendants' first motion to dismiss under the Texas Citizens Participation Act. This court reversed, holding that Plaintiff established a prima facie case for his breach of contract claim. See M.A. Mills, P.C. v. Kotts, 640 S.W.3d 323, 327-29 (Tex. App.—Houston [14th Dist.] 2020, pet. denied).

Defendants filed a second TCPA motion to dismiss after Plaintiff amended its petition to add claims for fraud and unjust enrichment and seek equitable remedies. Defendants' second motion was denied by operation of law. See Tex. Civ. Prac. & Rem. Code §§ 27.005(a), 27.008(a). Defendants timely filed this interlocutory appeal. See id. § 51.014(a)(12).

ANALYSIS

I. Which version of the TCPA applies?

The threshold issue in this appeal is whether Plaintiff's claims are governed by the original version of the TCPA enacted in 2011 or by its subsequent amendments enacted in 2019. See Act of May 21, 2011, 82nd Leg., R.S., ch. 341, §§ 1-4, 2011 Tex. Gen. Laws 961-64, amended by Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1-12, 2019 Tex. Gen. Laws 684-87. The amendments apply only to “an action” that is “filed on or after” September 1, 2019 (the effective date). See Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 11-12, 2019 Tex. Gen. Laws 687. Plaintiff filed his original petition in February 2019, before the TCPA was amended later that year, and added new claims in 2025. We must decide, therefore, if Plaintiff's newly added claims are “actions.” We think they are.

We begin with the plain language of the effective date provision, which we interpret de novo. See In re G.R.B., 582 S.W.3d 483, 485 (Tex. App.—San Antonio 2018, pet. denied). “When a statute uses a word that it does not define,” such as action here, “our task is to determine and apply the word's common, ordinary meaning”—unless the context indicates another meaning. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563, 566 (Tex. 2014). The supreme court has held (in interpreting a different statute) that the common, ordinary meaning of action is “an entire lawsuit.” See id. at 563.

But each word does not mean the same thing every time it is used. “[W]ords in statutes may take on unique or varying shades of meaning depending on the context and the purpose for which they are used.” Id. at 573 (Willett, J., concurring). As we have said, “identical language may convey varying content when used in different statutes, sometimes even in different provisions of the same statute.” SJ Med. Ctr., LLC v. Anozie, 694 S.W.3d 915, 922 (Tex. App.—Houston [14th Dist.] 2024, no pet.) (quoting Yates v. United States, 574 U.S. 528, 537 (2015) (plurality opinion)).

The TCPA uses the term action dozens of times—usually as part of the term legal action, but also on its own and as part of cause of action, procedural action, enforcement action, and disciplinary action. Surely it doesn't mean “an entire lawsuit” each time it is used. To that end, the Fort Worth court of appeals interpreted action to mean two different things even when used in the same subsection of the TCPA—one use was the common meaning, but one wasn't. Montoya Frazier v. Maxwell, No. 02-23-00103-CV, 2025 WL 494699, at *15 (Tex. App.—Fort Worth Feb. 13, 2025, pet. denied) (interpreting Tex. Civ. Prac. & Rem. Code § 27.001(6)(A)) (“We conclude that the Legislature intended two different uses of ‘action’ in Section 27.001(6)(A).”).

Defendants also contrast the amendments' effectiveness language—keyed off of the filing of “an action”—with the TCPA's use of the broadly defined “legal action.” See Tex. Civ. Prac. & Rem. Code § 27.001(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, declaratory, or equitable relief.”). This difference, Defendants say, indicates that the Legislature intended the term action to have its common meaning: an entire lawsuit. See Jaster, 438 S.W.3d at 563 (“The common meaning of the term ‘action’ refers to an entire lawsuit or cause or proceeding.”).

We disagree. Legal action is defined so broadly that, as the supreme court has noted, “[i]t would be difficult to write a more capacious definition,” and “even more so to conceive one for an undefined term.” State ex rel. Best v. Harper, 562 S.W.3d 1, 12 (Tex. 2018) (interpreting “enforcement action” as a narrower category of “legal action”). As such, action must perforce be a narrower term than legal action; it must be “a subtype of legal actions in general.” Id. Here, we think action means claim.

We also contrast the TCPA amendments' effective date language with the language the legislature used in creating the business courts: “The changes in the law made by this Act Apply to civil actions commenced on or after September 1, 2024.” Act of May 25, 2023, 88th Leg., R.S., ch. 380, § 8, 2023 Tex. Sess. Law Serv. 919, 929 (H.B. 19). This language has been interpreted to mean an entire lawsuit, and that makes sense: a newly added claim is not “commenced,” but a lawsuit is. Synergy Glob. Outsourcing, LLC v. Hinduja Glob. Sols., Inc., 705 S.W.3d 221, 225 (Tex. Bus. Ct. 2024), appeal dismissed, No. 15-24-00127-CV, 2025 WL 582314 (Tex. App. [15th Dist.] Feb. 21, 2025). That interpretation also furthers the legislature's intent: it needed a clean break for the business courts' jurisdiction; it would be inefficient to have some claims in the same lawsuit adjudicated in the business courts and some in the district courts.

But no clean break was needed for the TCPA amendments: courts treat the TCPA as a dismissal procedure that applies to claims on an individual basis. See Judwin Props. Inc. v Lewis, 615 S.W.3d 338, 343 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (the TCPA's definition of legal action “is broad and evinces a legislative intent to treat any claim by any party on an individual and separate basis”); Better Bus. Bureau of Metro. Dallas, Inc. v. Ward, 401 S.W.3d 440, 443 (Tex. App.—Dallas 2013, pet. denied) (same). Indeed, the amendments themselves carve out certain types of claims, like fraud and legal malpractice. Tex. Civ. Prac. & Rem. Code § 27.010. It is easy enough to apply those amendments to claims added to a lawsuit after the effective date. Newly added claims should be analyzed under the version of the TCPA in effect when they are filed without harkening back to a legislative scheme that has been found wanting.

Defendants raise two additional arguments to support their contention that the original version of the TCPA governs Plaintiff's 2025 claims. First, they assert that application of the original version is the “law of the case,” citing a statement made by this court in the appeal from the denial of their first TCPA motion. See Mills, 640 S.W.3d at 326 (“The TCPA was amended in 2019, but the prior version continues to govern cases, including this one, that were filed before the amendments' effective date.”). That case is inapposite: no additional claims had been added to the case at that point, so we were not asked to decide whether the 2019 amendments apply to claims added after 2019. It does not control our disposition of this issue. See Wagner v. Exxon Mobil Corp., 654 S.W.3d 613, 636 (Tex. App.—Houston [14th Dist.] 2022, pet. denied) (the law of the case doctrine does not apply when either the issues or the facts presented are “not substantially the same as those involved in the first appeal”).

Finally, Defendants cite several cases for the holding that “the amendments apply only to wholly new cases filed after September 1, 2019.” But these cases do not consider the facts here, where the original suit was filed before the amendments' effective date but additional claims were added afterwards. See Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 129 (Tex. 2019); Bailey v. Peavy, No. 14-20-00777-CV, 2023 WL 4196819, at *2 (Tex. App.—Houston [14th Dist.] 2023, pet. denied) (mem. op.).

Instead, we are guided by decisions that considered additional claims added to a lawsuit after the amendments' effective date. The majority of these cases have concluded that the newly added claims are governed by the 2019 amendments even though the original lawsuit preceded the amendments' effectiveness. See, e.g., Zidan v. Zidan, No. 05-20-00786-CV, 2022 WL 17335693, at *2-3 (Tex. App.—Dallas Nov. 30, 2022, pet. denied) (mem. op.) (the amendments applied to counterclaims asserted after the effective date); Ark Sand Co. v. Bradley Demolition & Constr., LLC, No. 01-21-00710-CV, 2022 WL 2920018, at *4 n.9 (Tex. App.—Houston [1st Dist.] July 26, 2022, no pet.) (mem. op.) (the amendments applied to claims in a third-party petition filed after the effective date); Sinkin & Barretto, P.L.L.C. v. Cohesion Props., Ltd., No. 04-20-00106-CV, 2021 WL 1649525, at *3 n.3 (Tex. App.—San Antonio Apr. 28, 2021, no pet.) (mem. op.) (the amendments applied to counterclaims asserted after the effective date); Straub v. Pesca Holding LLC, 621 S.W.3d 299, 305 (Tex. App.—San Antonio 2021, no pet.) (the amendments applied to claims asserted against a new defendant after the effective date).

It is true that two cases have concluded to the contrary that the original version of the TCPA governs claims added after the 2019 amendments' effective date. See Clayton Mountain Dev., LLC v. Ruff, No. 11-20-00114-CV, 2021 WL 3413644, at *1 n.3 (Tex. App.—Eastland Aug. 5, 2021, no pet.) (mem. op.); Ruff v. Ruff, No. 05-21-00157-CV, 2022 WL 420353, at *1 n.1 (Tex. App.—Dallas Feb. 11, 2022, pet. denied) (mem. op.). But we think applying the 2019 amendments to new claims best effectuates legislative intent. The original version of the TCPA was very broad. See, e.g., Montoya Frazier, 2025 WL 494699, at *8 (“Before the 2019 amendments, the TCPA's broad language overwhelmed the courts.”); Bandin v. Free & Sovereign State of Veracruz de Ignacio de la Llave, 590 S.W.3d 647, 650 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (“Interpreting the [TCPA] has presented challenges to the courts of appeals because of the breadth of its plain language.”); Serafine v. Blunt, 466 S.W.3d 352, 365 (Tex. App.—Austin 2015, no pet.) (Pemberton, J., concurring) (“the TCPA is less an ‘anti-SLAPP’ law than an across-the-board game changer in Texas civil litigation”). The 2019 amendments were intended to refine its reach:

It has been suggested that certain statutory provisions relating to expedited dismissal procedures for lawsuits involving the exercise of free speech, the right of association, and the right to petition may lend themselves to unexpected applications because they are overly broad or unclear. [The 2019 amendments] seek to remedy this issue by clarifying the scope and applicability of those provisions.

House Comm. on Judiciary & Civ. Juris., Bill Analysis, Tex. H.B. 2730, 86th Leg., R.S. (2019). Limiting overreach stemming from the TCPA's original version (especially with respect to claims asserted years after the amendments' effective date) best serves this legislative purpose.

Therefore, we conclude that Plaintiff's added claims are properly governed by the version of the TCPA as modified by the 2019 amendments.

II. Defendants failed to comply with the amended TCPA's procedural requirements.

Application of the amendments to Defendants' TCPA motion ordains the result here: we affirm. The amended TCPA requires more notice than the original did: it states that the moving party “shall provide written notice of the date and time of the hearing ․ not later than 21 days before the date of the hearing unless otherwise provided by agreement of the parties or an order of the court.” Tex. Civ. Prac. & Rem. Code § 27.003(d). Defendants agree that they did not comply with this requirement, instead providing Plaintiff only ten days' notice of the hearing.

Defendants' untimely hearing notice is sufficient to affirm the denial of their TCPA motion. The supreme court has held that statutes using the word “shall” are generally understood as mandatory creating a duty or condition. See Image API, LLC v. Young, 691 S.W.3d 831, 840-41 (Tex. 2024) (“A statute requiring that an act be performed within a certain time, using words like shall or must, is mandatory.”). And several courts of appeal have held that the failure to comply with other TCPA procedural requirements warrants denial of the motion. See, e.g., In re Giles, 675 S.W.3d 376, 384 (Tex. App.—Corpus Christi 2023, orig. proceeding) (the trial court erred in granting the TCPA motion because the hearing “was not concluded within the time period allowed by the TCPA”); Leach v. Schwartz, 645 S.W.3d 906, 907 (Tex. App.—El Paso 2022, no pet.) (reversing grant of TCPA motion because the hearing was held outside “the timeline commanded by the TCPA statute”); Grubbs v. ATW Invs., Inc., 544 S.W.3d 421, 425-26 (Tex. App.—San Antonio 2017, no pet.) (affirming the denial of a TCPA motion where the moving party failed to set a hearing within 90 days as required by statute). Therefore, Defendants' failure to provide Plaintiff with 21 days' notice of the hearing warranted denial of their TCPA motion. See Tex. Civ. Prac. & Rem. Code § 27.003(d).

CONCLUSION

We affirm the denial of Defendants' TCPA motion.

Katy Boatman Justice