A recent ruling from Texas’s Fourteenth Court of Appeals carries a sharp warning for employers and businesses caught in long-running Texas litigation: the procedural rules governing a case can shift as claims evolve—a party’s failure to keep pace can sink an otherwise viable motion to dismiss.
TCPA Background
The TCPA is a Texas anti-SLAPP[1] statute designed to protect individuals and businesses from meritless lawsuits targeting the exercise of free speech, the right to petition, or the right of association. It provides a fast-track mechanism for dismissing covered claims. In 2019, the Texas Legislature significantly narrowed the TCPA’s reach, responding to widespread criticism that the original version swept far too broadly. Kotts v. M.A. Mills, P.C. presented the question that the 2019 amendments left open: which version of the statute governs when a plaintiff adds new claims to a lawsuit that predates the amendments?
In Kotts, the court held that the 2019 amendments govern newly added claims regardless of when the original lawsuit was filed. A party who ignores the amended statute’s procedural requirements does so at its peril. Here, the defendants’ TCPA motion failed because they gave only ten days’ notice of their hearing; instead of the twenty-one days the amended statute requires.
Case Background
In 2002, Houston investor John P. Kotts acquired Bou-Matic, LLC, a manufacturer of dairy equipment (collectively, “Defendants”). Kotts hired M.A. Mills, P.C. (“Plaintiff”) — the professional corporation of Michael “Mickey” Mills — to manage the company as its president, CEO, and general counsel pursuant to an oral agreement. Plaintiff claimed the agreement entitled it to $100,000 per month plus an annual performance bonus equal to 10% of Bou-Matic’s adjusted net operating profit.
Defendants filed a first TCPA motion to dismiss, which the trial court granted. The Fourteenth Court of Appeals reversed in 2020, holding that Plaintiff had established a prima facie case for breach of contract. Years later, in 2025, Plaintiff amended its petition to add claims for fraud and unjust enrichment. Defendants responded with a second TCPA motion to dismiss targeting those newly added claims. The trial court did not rule on the motion within the statutory deadline, causing it to be denied by operation of law. Defendants then brought this interlocutory appeal.
The Court’s Reasoning
First, the Court considered which version of the TCPA applies to newly added claims. The 2019 amendments state that they apply to “an action” filed on or after September 1, 2019. Defendants argued that “action” means an entire lawsuit and because the original suit was filed in February 2019, Defendants claimed the pre-amendment version of the TCPA should govern all claims. The Court disagreed.
The Court drew a distinction between an entire lawsuit and the individual claims within it. Because the TCPA evaluates claims individually — not lawsuits as a whole — each newly added claim is governed by the version of the statute in effect when that claim is filed. Since Plaintiff’s fraud and unjust enrichment claims were not added until 2025, the 2019 amendments applied.
Second, the Court examined whether Defendants met the amended TCPA’s procedural requirements. Under the amended statute, a party seeking dismissal must provide at least 21 days’ written notice before the hearing. See Tex. Civ. Prac. & Rem. Code § 27.003(d). Defendants conceded that they gave Plaintiff only ten days’ notice. The Court held that this notice requirement is mandatory, and Defendants’ failure to comply provided sufficient grounds to deny their motion.
Key Takeaways
Kotts v. M.A. Mills, P.C. offers three concrete lessons for any party involved in Texas litigation where the claims have evolved over time:
1. The clock restarts when new claims are added.
Under this ruling, a newly added claim is governed by the version of the TCPA in effect when that claim is filed — not the version in effect when the original lawsuit was commenced. The practical consequence is significant: a defendant relying on the original 2011 version of the TCPA to dismiss claims added years later may find itself governed by an entirely different set of rules. Courts treat the TCPA as a dismissal procedure that applies to claims on an individual and separate basis, and the Fourteenth Court of Appeals has now extended that logic to the question of which statutory version applies. Reassess the applicable version of the TCPA — and its procedural requirements — every time a plaintiff’s pleadings materially change.
2. Miss the notice deadline, lose the motion — full stop.
The amended TCPA requires at least 21 days’ written notice before a hearing on a TCPA motion to dismiss. The statute uses mandatory language — “shall” — and courts of appeals across Texas have held that a failure to comply with TCPA procedural timelines warrants outright denial of the motion. In Kotts, the defendants’ motion was defeated not on its merits but because they provided only ten days’ notice. That is a self-inflicted wound that careful docketing can prevent. Calendar TCPA hearing deadlines the moment a motion is filed, and confirm compliance before serving notice.
3. Prior rulings on procedural issues do not insulate future motions.
Defendants argued that a prior appellate ruling applying the original TCPA version was the “law of the case.” The court rejected this argument, noting that the earlier appeal addressed only the original claims — not whether the 2019 amendments would apply to claims added later — and therefore did not control the later proceeding. The lesson: do not assume that a favorable procedural ruling in an earlier phase of litigation will carry forward unchanged. When the scope of the case changes — new claims, new parties, new theories — the applicable law may change with it.
Closing
Kotts is a reminder that Texas litigation is not a static exercise. As pleadings evolve and new claims enter a case, the procedural rules governing the litigation can shift beneath a party’s feet. The defendants here lost a potentially viable dismissal vehicle — not because the motion lacked merit, but because they failed to notice a change in the procedural landscape. The lesson for employers and their counsel is simple: treat every amended pleading as an occasion to revisit, not just the substantive claims, but the procedural toolkit available to address them.
FOOTNOTES
[1] Strategic Lawsuits Against Public Participation.
