Go to Part 3 – The Schlumberger case and employment disputes

Go to Part 2 – In Practice

Go to Part 1 – The basics of the Texas Anti-SLAPP law

tjb-seal-144Since we published Part 3 that discussed the details of an interesting case here in Houston, Schlumberger v. Rutherford, the First Court of Appeals issued its opinion on Tuesday. The best description of the decision is a punt.  The court found it does not have jurisdiction to consider a partial granting of a motion to dismiss under the Anti-SLAPP provisions or TCPA and summarily affirmed the denial of the part of the motion related to the breach of contract claim. You can read the opinion here: Schlumberger v. Rutherford

While disappointing for Schlumberger and practitioners like us, it may be the right decision.  The Anti-SLAPP statute allows for an appeal of order that “denies a motion to dismiss filed under Section 27.003.” TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12). As pointed out by the court, “[b]y contrast, no statute expressly provides for interlocutory appeal of an order that grants such a motion.”

Because the court only dismissed some of the claims and the case is still proceeding, it is considered an “interlocutory order” which is not subject to an appeal under these circumstances.  For Schlumberger to appeal, it has to proceed to trial on the parts of the case that remain, such as breach of contract, and then decide whether or not to appeal after a final trial or other resolution of the entire case.

What about the breach of contract claim?

As you may recall, the trial court denied Rutherford’s Anti-SLAPP motion to dismiss as it related to her breach of contract claim.  Because that was a denial of the motion to dismiss, the court of appeals determined it could consider only that part of the decision.

The court stated that standard that the party moving to dismiss, in this case Rutherford, had to establish that she was engaged in one of the three protected activities: (1) the right of free speech; (2) the right to petition; or (3) the right of association.  If the moving party does this, then the party trying to defeat the motion to dismiss, Sclumberger, has to establish “by clear and specific evidence a prima facie case for each essential element of the claim in question” — in this case, breach of contract.

Unfortunately, the court of appeals glossed over the important first issue – does the TCPA even apply in this case and went straight to a consideration of whether Schlumberger could provide clear and specific evidence of each element of its breach of contract claim. There was no discussion from the court as to whether Rutherford was engaged in: (1) the right of free speech; (2) the right to petition; or (3) the right of association.  Can we assume that the court of appeals found she did engage in one of those activities in light of the fact that they glossed over it and went straight to the second step of the analysis? Maybe, that’s what lawyers are likely to argue if they want a broad application of the act.

As a result, we may now have to wait to see if the case goes to trial and is then subsequently appealed to determine whether the trial court got it wrong or right. Until then, the case goes back to the trial court and the large sanction penalty related to the granting of the motion to dismiss on the misappropriation of trade secrets, conversion, breach of fiduciary duty, and violation of the Texas Theft Liability Act claims stays in tact.