Divonne Soler v. David Tisminezky Sukerman

• Court: Court of Appeals of Texas
• Decided: June 10, 2025
• Docket: 03-24-00783-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00783-CV

Divonne Soler, Appellant

v.

David Tisminezky Sukerman, Appellee

FROM THE 480TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 23-2592-C480, THE HONORABLE TERENCE M. DAVIS, JUDGE PRESIDING

MEMORANDUM OPINION

This accelerated interlocutory appeal challenges the trial court’s denial of Appellant

Divonne Soler’s Texas Citizens Participation Act (TCPA) motion to dismiss Appellee

David Tisminezky Sukerman’s (Tisminezky’s) suit against her and others concerning money he

loaned to an Austin-based preschool. Because Soler failed to adhere to the TCPA’s statutory

deadlines for filing her motion to dismiss, we affirm.

LEGAL STANDARD

The TCPA “protects speech on matters of public concern by authorizing courts to

conduct an early and expedited review of the legal merit of claims that seek to stifle speech through

the imposition of civil liability and damages.” Lilith Fund for Reprod. Equity v. Dickson,

662 S.W.3d 355, 363 (Tex. 2023). Courts review a motion to dismiss under the TCPA using a

three-step process. Montelongo v. Abrea, 622 S.W.3d 290, 296 (Tex. 2021). The movant bears the first burden of proving that the challenged legal action is subject to the TCPA, and, if she is

successful, then the nonmovant must present clear and specific evidence establishing a prima facie

case for each essential element of his challenged claims. Szymonek v. Guzman, 641 S.W.3d 553,

564 (Tex. App.—Austin 2022, pet. denied). If the nonmovant meets that burden, the court must

still grant the motion if the movant “establishes an affirmative defense or other grounds on which

the moving party is entitled to judgment as a matter of law.” Tex. Civ. Prac. & Rem. Code

§ 27.005(d).

We review de novo the trial court’s application of the TCPA. S&S Emergency

Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018). We review the pleadings and

evidence in the light most favorable to the nonmovant. O’Rourke v. Warren, 673 S.W.3d 671, 680

(Tex. App.—Austin 2023, pet. denied).

DISCUSSION

In one issue on appeal, Soler argues that the trial court erred by denying her motion

to dismiss. Because it is dispositive, we first address her sub-issue that she timely filed both her

original and amended TCPA motions to dismiss.

“[T]he TCPA dictates compliance with the time periods in mandatory terms at each

step.” Morin v. Law Office of Kleinhans Gruber, PLLC, No. 03-15-00174-CV, 2015 WL 4999045,

at *3 (Tex. App.—Austin Aug. 21, 2015, no pet.) (mem. op.); see Venero v. Lozada,

No. 07-23-00022-CV, 2023 WL 4831611, at *2 (Tex. App.—Amarillo July 27, 2023, pet. denied)

(mem. op.) (“The deadlines for filing and setting a hearing on a motion to dismiss under the TCPA

are mandatory.”). Unless the parties agree to extend the deadline or the trial court extends the

2 deadline on a showing of good cause, a TCPA movant must file her motion to dismiss within sixty

days after service of the complained-of legal action. Tex. Civ. Prac. & Rem. Code § 27.003(b).

The record reflects that Soler was served with Tisminezky’s original petition on

December 9, 2023. However, she did not file her motion to dismiss under the TCPA until

May 31, 2024. After Tisminezky amended his petition on October 22, Soler filed an amended

motion to dismiss under the TCPA on October 28. 1

Soler contends that her original TCPA motion to dismiss was timely filed because

she first contested jurisdiction by filing a special appearance—that is, she waited to file her TCPA

motion until after the trial court denied her special appearance. See Tex. R. Civ. P. 120a. Soler

maintains that filing a special appearance was a requisite “procedural step” that “needed to be

resolved before substantive motions, including a Motion to Dismiss under the TCPA[.]”

While “[a] nonresident defendant contesting personal jurisdiction under Rule 120a

must carefully comply with the Rule’s terms in order to avoid entering a general appearance and,

consequently, waiving the jurisdictional challenge,” Rule 120a “contains what is known as the

due-order-of-hearing requirement.” Wakefield v. British Med. J. Publ’g Grp., Ltd., 449 S.W.3d 172,

179 (Tex. App.—Austin 2014, no pet.). Under that requirement, the nonresident defendant

challenging personal jurisdiction “may file other motions subsequent to a special appearance

without entering a general appearance, so long as the defendant does not set and argue the motions

before the special appearance is determined.” Id. That includes a TCPA motion to dismiss. See

id. at 180; Tex. Civ. Prac. & Rem. Code § 27.011(a) (“This chapter does not abrogate or lessen

any other defense, remedy, immunity, or privilege available under other constitutional, statutory,

1 Soler also filed a second and third amended motion to dismiss under the TCPA on November 4 and 22, respectively, though not in response to any amended pleading. 3 case, or common law or rule provisions.”). Thus, filing a special appearance does not preclude the

defendant from filing a TCPA motion to preserve her rights under that statute, and the TCPA’s

statutory sixty-day deadline is triggered by service of the legal action without regard to the trial

court’s jurisdiction over the defendant. Venero, 2023 WL 4831611, at *2 (citing In re Oak Creek

Invs., LLC, No. 05-22-00477-CV, 2023 WL 118755, at *3 (Tex. App.—Dallas Jan. 6, 2023, no

pet.) (mem. op.)); see Wakefield, 449 S.W.3d at 180. By waiting until May 31, 2024—or 174 days

after service—Soler surpassed the sixty-day statutory deadline to file her TCPA motion to dismiss

and thus forfeited any protections of the TCPA that may have applied.

Nonetheless, Soler maintains that her first amended motion to dismiss under the

TCPA was timely because it was filed on October 28, 2024, or within the sixty-day period

following Tisminezky’s first amended petition, which he filed on October 22, 2024. “[A]n

amended or supplemental pleading that asserts a new claim involving different elements than a

previously asserted claim also asserts a new legal action that triggers a new sixty-day period for

filing a motion to dismiss that new claim.” Montelongo, 622 S.W.3d at 301 (emphasis added). In

other words, Tisminezky’s first amended petition entitled Soler to a new sixty-day period to file a

TCPA motion to dismiss the newly added claim; however, it does not revive her lapsed deadline

to seek dismissal of the previously asserted claims. See id.

The only new claim added by Tisminezky’s first amended petition was common

law fraud, which, except in circumstances that are not present here, is statutorily exempted from

the TCPA. See Tex. Civ. Prac. & Rem. Code §§ 27.010(a)(12) (noting that TCPA does not apply

to “a legal action based on a common law fraud claim”); .010(b) (providing limited circumstances

to which TCPA applies to otherwise exempted claims). Thus, the trial court did not err by denying

4 Soler’s TCPA motion to dismiss Tisminezky’s common law fraud claim because that claim is

exempt from the TCPA. See id. § 27.010(a)(12).

Because Soler did not timely file her original TCPA motion to dismiss, see id.

§ 27.003(b), and because her first amended TCPA motion to dismiss applies only to a claim

exempted from the TCPA, see id. § 27.010(a)(12), the trial court did not err by denying her motion

to dismiss. We overrule Soler’s sub-issue regarding the timeliness of her TCPA motions. Because

our resolution of this sub-issue is dispositive of this appeal, we do not reach Soler’s other sub-

issues on appeal.2 See Tex. R. App. P. 47.1.

CONCLUSION

We affirm the trial court’s order denying Soler’s TCPA motion to dismiss.

__________________________________________ Rosa Lopez Theofanis, Justice

Before Justices Triana, Theofanis, and Crump

Affirmed

Filed: June 10, 2025

2 Soler’s remaining sub-issues contend that (i) she demonstrated that the TCPA applies to Tisminezky’s claims in his original and first amended petitions, and (ii) Tisminezky failed to establish with clear and specific evidence a prima facie case for each essential element of his claims. 5