KOTTS LLC v. MILLS (2026)

SUBSTITUTE 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 deny the motion for rehearing as moot, withdraw our previous opinion, vacate our previous judgment, and issue this substitute opinion affirming the trial court's denial of Defendants’ motion to dismiss.

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 (TCPA). 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 new 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” in the specific context of the TCPA's effective date provision. We think they are.

We begin with the plain language of the 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 different statutes) that the common, ordinary meaning of action is “an entire lawsuit,” see id. at 563, not a claim, see Office of the Att'y Gen. of Tex. v. C.W.H., 531 S.W.3d 178, 183 (Tex. 2017).

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.” Jaster, 438 S.W.3d at 573 (Willett, J., concurring). As we have said, “identical language may convey varying content ․ 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)) (holding that “involving” has different meanings in the Federal Arbitration Act); id. at 922 n.10 (collecting cases that assign different meanings to the same word in the same statute). So, while the supreme court has recognized that action “generally” means lawsuit, In re Mem'l Hermann Hosp. Sys., 464 S.W.3d 686, 704 (Tex. 2015), we are also guided by the court's recognition that a statute's context can compel a different definition, Jaster, 438 S.W.3d at 569 n.17 (defining “complaint” to mean “petition,” contrary to its ordinary meaning).

Of course, the ordinary meaning applies when indicated by the plain text—as it did when the supreme court previously defined action to mean lawsuit. For example, action means lawsuit when accompanied by “or arbitration proceeding.” Jaster, 438 S.W.3d at 566 (interpreting Tex. Civ. Prac. & Rem. Code § 150.002(h)). So too when the statute says certain information is not confidential if it is relevant to an action—relevance only makes sense in the context of a lawsuit, not a claim. In re Mem'l Hermann Hosp. Sys., 464 S.W.3d at 704 (interpreting Tex. Occ. Code § 160.007). And when the legislature specifies which law applies when “a party is joined or designated” in an action, it must mean lawsuit; a party cannot be “joined or designated” in a claim. Acosta v. Mem'l Hermann Hosp. Sys., No. 14-07-00001-CV, 2008 WL 190052, at *2 (Tex. App.—Houston [14th Dist.] Jan. 22, 2008, pet. denied) (interpreting Act of September 1, 2003, 78th Leg., ch. 204, 2003 Tex. Sess. Law Serv., § 23.02(d) (codified in Tex. Civ. Prac. & Rem. Code § 74.001)); see Thomas v. Oldham, 895 S.W.2d 352, 355 (Tex. 1995) (same, interpreting “a judgment in an action”). These interpretations make plain that a word in a statute is judged by the company it keeps. See Jaster, 438 S.W.3d at 566. Here, action stands alone.

We therefore must look beyond “the bare meaning” of the word to the relevant “statutory scheme.” In re Facebook, Inc., 625 S.W.3d 80, 87-88 (Tex. 2021) (citing King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991)). 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 procedural action, enforcement action, and disciplinary action. These can't all mean lawsuit. 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, 734 S.W.3d 1, 20-21 (Tex. App.—Fort Worth 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).”). Instead, the court defined “action,” as used in “procedural action,” to mean a step taken in a lawsuit.

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.

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”). It expressly includes lawsuits, claims, and a host of other filings that request relief. Given that broad definition, both parties agree that action is perforce narrower than legal action; it is “a subtype of legal actions in general.” Id. Here, in the context of the TCPA's effective date, we think action means claim.

The United States Supreme Court held similarly in Jones v. Bock, 549 U.S. 199, 223 (2007). The statute under consideration provided that “[n]o action” shall be brought by a prisoner unless he has exhausted all available administrative remedies. 42 U.S.C.A. § 1997e(a). The Sixth Circuit had held below that action means lawsuit—both according to its ordinary meaning and because the statute elsewhere used the word “claims”—which meant that the entire lawsuit had to be dismissed if any one claim had not been properly exhausted. Jones, 549 U.S. at 223. Not so, said the Supreme Court. The statutory scheme dictated that action means claim: “there is no clear reason to depart from the more typical claim-by-claim approach [to exhaustion of administrative remedies].” Id. at 224.

Although the statutory schemes are different, this result informs our result here. 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 “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 from the TCPA, like fraud and legal malpractice. Tex. Civ. Prac. & Rem. Code § 27.010. But Defendants would apply the TCPA to those claims, even though they were filed six years after the legislature said it shouldn't. 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.

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. See 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. No clean break was needed for the TCPA amendments, which apply to each claim individually.¹

Defendants raise three 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”).

Second, Defendants’ motion for rehearing presses that their interpretation of the effective date language is consistent with the TCPA's other uses of “action.” Defendants are right that construing action to mean an entire lawsuit makes sense in section 27.001(6)(A), which states that “legal action” does not include “a procedural action taken or motion made in an action that does not amend or add a claim for legal, equitable, or declaratory relief.” Tex. Civ. Prac. & Rem. Code § 27.001(6)(A). The Fort Worth Court of Appeals agreed in Montoya Frazier: a motion is made in a lawsuit, so the second action in that provision must mean lawsuit. Montoya Frazier, 734 S.W.3d at 20.

But section 27.010(a)(7) points the other way: it exempts “legal actions” under the Deceptive Trade Practices Act from the TCPA except “an action governed by Section 17.49(a)”—which exempts media owners and employees from DTPA claims unless certain criteria are met. See Tex. Bus. & Com. Code § 17.49(a). An entire lawsuit wouldn't be governed by section 17.49(a); rather, if a plaintiff brought both DTPA and negligence claims against a media owner, only the DTPA claim would be governed by Section 17.49(a).

Finally, Defendants cite several cases that, they say, hold that “the amendments apply only to wholly new cases filed after September 1, 2019.” But these cases do not answer the question here: which law governs when 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.). Rather, both the lawsuits and the new claims in those cases were filed before the effective date, so no one disputed that the case and claims were governed by the prior law.²

Instead, we are guided by decisions that considered additional claims added to a lawsuit after the amendments’ effective date, including one decision from our sister court. 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) (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.) (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.) (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). Defendants distinguish these cases as having more “exotic” fact patterns than the one here, but the logic is the same; the amendments apply to new claims, whether asserted by the plaintiff through an amended petition or a defendant through a counterclaim or third party petition.

It is true that three cases have concluded to the contrary that the original version of the TCPA governs claims added after the 2019 amendments’ effective date. See Ruff v. Ruff, No. 05-21-00157-CV, 2022 WL 420353, at *1 n.1 (Tex. App.—Dallas Feb. 11, 2022, pet. denied); 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.); Carlson Law Firm, PC v. Austin Carrizales Law, PLLC, No. 07-20-00142-CV, 2021 WL 2639926, at *1 n.1 (Tex. App.—Amarillo June 25, 2021, pet. denied). But we think applying the 2019 amendments to new claims best effectuates legislative intent, as evidenced by the plain text.

The original text of the TCPA was very broad. See, e.g., Montoya Frazier, 734 S.W.3d at 12 (“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”). This breadth frequently resulted in satellite litigation that distracted from the merits and slowed resolution.

The legislature enacted the 2019 amendments to refine the TCPA's reach—as made clear by the plain text of the amendments themselves. Certain claims and procedural actions were exempted from the TCPA's dismissal procedure entirely. Tex. Civ. Prac. & Rem. Code §§ 27.010, 27.001(6). The broad “relates to” language was deleted, id. at § 27.003; ML Dev, LP v. Ross Dress for Less, Inc., 649 S.W.3d 623, 627 (Tex. App.—Houston [1st Dist.] 2022, pet. denied), and the definition of “matter of public concern” was narrowed, Tex. Civ. Prac. & Rem. Code § 27.001(7); Hayman v. Khan, 693 S.W.3d 444, 449 (Tex. App.—Houston [14th Dist.] 2023, no pet.). In short, the legislature showed its intent to limit the TCPA's reach through both the text of the amendments and statements made during the bill's passing:

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); see also Amy Bresnen, Targeting the Texas Citizen Participation Act: The 2019 Texas Legislature's Amendments to A Most Consequential Law, 52 St. Mary's L.J. 53, 55 (2020).

We may look to this legislative purpose—manifested through the plain text—as “additional support” for our construction of the amendments’ effective date. Malouf v. State ex rels. Ellis, 694 S.W.3d 712, 731 (Tex. 2024); Montoya Frazier, 734 S.W.3d at 19 (“As we construe Section 27.001(6)(A)’s double use of ‘action,’ we will keep in mind the Legislature's attempts to narrow the TCPA's scope.”). We think Defendants’ reading is contrary to the legislature's purpose.

So, while it is true that action generally means lawsuit, we do not think that is how the legislature meant the term here. Plaintiff's added claims are actions filed on or after September 1, 2019, meaning they 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 a sufficient reason 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.

FOOTNOTES

1.   Indeed, the supreme court has already explained when a petition asserts a new claim in the TCPA context. See Montelongo v. Abrea, 622 S.W.3d 290, 298 (Tex. 2021); Kinder Morgan SACROC, LP v. Scurry Cnty., 622 S.W.3d 835, 848 (Tex. 2021). Should this issue arise again, courts and parties can apply this rule in determining whether a claim was filed before or after the effective date of the TCPA.

2.   Defendants’ rehearing motion cites Booster Fuels, Inc. v. Fuel Huskey, LLC, No. 14-19-00912-CV, 2021 WL 5118486 (Tex. App.—Houston [14th Dist.] Nov. 4, 2021, pet. denied), but that case doesn't control here for two reasons. First, in Booster Fuels, the defendant's motion to dismiss challenged only the claims added to the suit before the 2019 amendments’ effective date. The plaintiff added a related conspiracy claim after the effective date, but the defendant never challenged that claim through a second or amended motion to dismiss. See id. at *2-3. There is no reason the amendments would govern when both the lawsuit and the challenged claims were filed before their effective date. Second, the amendments did not impact the Booster Fuels holding. That case did not turn on procedural differences between the two TCPA versions, like the required notice of hearing that governs the case presented today. Rather, our court affirmed the denial of the defendant's TCPA motion because the communication at issue, which related to a private business dispute, was not a matter of public concern or common interest. The amendments modified the definition of “public concern,” but not in a way that would have dictated different results for different claims arising out of the same facts.

Katy Boatman, Justice