Here’s an analysis of the Supreme Court of Texas decision in Ferchichi v Whataburger, et al. (No. 23-0568 & 23-0993, issued May 9, 2025). The text of the court's opinion is available by clicking here.
Core Issue The main question was whether a motion to compel discovery and for monetary sanctions in a lawsuit counts as a “legal action” under the Texas Citizens Participation Act (TCPA), making it subject to a TCPA motion to dismiss.
Case Backgrounds
- Ferchichi v. Whataburger: After a car accident, Ferchichi sued Whataburger for negligence. Ferchichi later filed a motion to compel Whataburger to produce a video and sought sanctions for alleged discovery abuse. Whataburger responded with a TCPA motion to dismiss the sanctions request, arguing it targeted their right to petition.
- Haven at Thorpe Lane v. Pate & Burke: Students and their families sued an apartment complex (Haven) for fraud after their units weren’t ready. During discovery, Haven filed a motion to compel two mothers (non-parties) to produce Facebook group communications, seeking attorney’s fees as sanctions. The mothers filed a TCPA motion to dismiss Haven’s sanctions request, claiming it targeted their protected speech.
Both courts of appeals ruled that a motion for sanctions seeking monetary relief is a “legal action” under the TCPA, and that the movants failed to establish a prima facie case, so the sanctions requests should be dismissed.
Supreme Court’s Holding The Supreme Court of Texas disagreed and sided with the original trial courts. It held that motions to compel and for sanctions are not “legal actions” under the TCPA unless they add or amend a substantive claim for legal, equitable, or declaratory relief.
Key Analysis
- The TCPA is meant to protect constitutional rights (free speech, petition, association) and the right to file meritorious lawsuits.
- The statutory definition of “legal action” focuses on pleadings that assert substantive claims—lawsuits, causes of action, petitions, complaints, cross-claims, counterclaims—or similar filings.
- The 2019 amendment to the TCPA specifically excludes “procedural action[s]” or motions that don’t add or amend a substantive claim.
- Motions for sanctions or to compel, even when seeking money, are procedural—they don’t initiate or amend a substantive claim. They’re ancillary to the main dispute and can’t stand alone.
- The Court reasoned that expanding “legal action” to cover these motions would bog down litigation with unnecessary TCPA proceedings and appeals, contrary to the TCPA’s purpose.
Result
- The Supreme Court reversed the appellate courts. The TCPA does not apply to motions to compel and for sanctions (unless those motions add a substantive claim).
- The cases go back to the trial courts for regular proceedings on the motions to compel and for sanctions.
Practical Impact
- Parties can’t use the TCPA to short-circuit discovery disputes in Texas courts just because a motion seeks attorney’s fees or monetary sanctions.
- TCPA’s expedited dismissal procedures remain focused on substantive claims, not on procedural fights over discovery or sanctions.
- If a motion for sanctions or to compel is meritless or frivolous, the proper response is to oppose it on the merits or seek sanctions, not to invoke the TCPA.
Bottom Line The Texas Supreme Court clarified and narrowed the reach of the TCPA, emphasizing its role as a shield for constitutional rights against abusive lawsuits, not as a tool for resolving garden-variety discovery disputes.
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