Supreme Court

Ferchichi v. Whataburger Rests. LLC

consolidated for oral argument with

Haven at Thorpe Lane, LLC v. Pate

• Case numbers: 23-0568 and 23-0993
• Legal category: Texas Citizens Participation Act
• Subtype: Applicability
• Set for oral argument: December 3, 2024

Case Summary

The issue in these cases is the applicability of the Texas Citizens Participation Act to a motion to compel discovery that includes a request for attorney’s fees.

In Whataburger, Sadok Ferchichi sued Crystal Krueger after she rear ended Ferchichi while driving a Whataburger-owned vehicle. Ferchichi learned during mediation that Whataburger had evidence that it did not produce in discovery. Ferchichi moved to compel production of the evidence and to award reasonable attorney’s fees as sanctions. Whataburger and Krueger filed a TCPA motion to dismiss the motion to compel.

Pate involves a suit for common-law fraud and DTPA violations by fifty plaintiffs who signed leases to live in Haven’s student-housing apartment complex. Before the lawsuit, Jeretta Pate and April Burke, the mothers of two plaintiffs, created a Facebook group, conveyed information to media outlets who ran stories about the Haven complex, and asserted grievances with governmental authorities. Haven served subpoenas duces tecum on the nonparty mothers, seeking documents and communications about Haven and the lawsuit. The mothers objected to many requests for production and included a privilege log. Haven filed a motion to compel and for attorney’s fees, and the mothers responded by filing a TCPA motion to dismiss that motion.

In both cases, the trial court denied the motion to dismiss. And in both cases, the court of appeals reversed. Both courts of appeals held that the discovery motion before it is a “legal action” under the TCPA that was made in response to the exercise of the right to petition (Whataburger) or to “communication, gathering, receiving, posting, or processing of consumer opinions or commentary, evaluations of consumer complaints, or reviews or ratings of businesses” (Pate). Additionally, both courts held that the movant did not establish a prima facie case for sanctions so as to avoid dismissal.

Ferchici and Haven each petitioned for review. They argue that a motion to compel discovery that includes a request for attorney’s fees is not a legal action under the TCPA, that their motions were not made in response to the exercise of a protected right, and that they established their prima facie cases for sanctions. The Supreme Court granted both petitions.

Case summaries are created by the Court's staff attorneys and law clerks and do not constitute the Court’s official descriptions or statements. Readers are encouraged to review the Court’s official opinions for specifics regarding each case. Links to the full case documents are included above.