TCPA Does Not Cover Private Disclosure Claims | Flatt v. Tornow (2026)

Flatt v. Tornow, 01-24-00901-CV, June 18, 2026.

On appeal from 80th District Court, Harris County, Texas

Synopsis

The First Court of Appeals held that the TCPA did not apply to privacy-based claims arising from the alleged disclosure of intimate photographs and private information in a personal dispute. Allegations that a party publicized intimate images or accessed private communications, even against the backdrop of a divorce case and related subpoenas, do not trigger TCPA protection unless the claims are actually based on or in response to protected petitioning activity or speech on a matter of public concern.

Relevance to Family Law

This opinion matters in divorce litigation because family cases routinely involve attempts to reframe intensely personal misconduct as litigation-related speech or petitioning activity. Flatt v. Tornow is a useful appellate marker that the TCPA is not a catch-all defense for conduct occurring near, around, or during a divorce proceeding. If the gravamen of the claim is private disclosure, privacy invasion, or dissemination of intimate material in a domestic dispute, the movant still must show the claims are truly based on protected petitioning conduct or speech on a matter of public concern. For family lawyers handling divorce, SAPCR, and property fights involving affair evidence, phone contents, private messaging, or revenge-porn allegations, this case narrows the reflexive use of TCPA motions and reinforces the need to separate discovery conduct from extra-judicial disclosure conduct.

Case Summary

Fact Summary

The dispute arose out of a divorce-adjacent factual setting. Ryann Tornow had sent intimate photographs of herself to the then-husband of Janelle Alexis Flatt. Tornow later alleged that Flatt accessed private personal communications and disclosed intimate visual material depicting Tornow to several third parties. Based on that conduct, Tornow sued Flatt for public disclosure of private facts, intrusion on seclusion, and unlawful disclosure of intimate visual material.

The procedural context mattered because Flatt attempted to tie Tornow’s suit to petitioning activity in the divorce. Before Tornow filed suit, Flatt had subpoenaed Tornow for deposition in the divorce proceeding between Flatt and her husband. Tornow moved to quash in the divorce case and then filed this separate lawsuit. Flatt responded with a TCPA motion to dismiss, arguing the suit was filed in response to her exercise of the right to petition through subpoenas and deposition practice, and also implicated her right of free speech because she was speaking about her marriage, her husband’s affair, and evidence of that affair.

The trial court did not rule, so the motion was denied by operation of law. Flatt pursued interlocutory appeal.

Issues Decided

• Whether Tornow’s claims for public disclosure of private facts, intrusion on seclusion, and unlawful disclosure of intimate visual material were “based on or in response to” Flatt’s exercise of the right to petition under the TCPA because Flatt had issued subpoenas and pursued deposition discovery in the underlying divorce.
• Whether those same claims were “based on or in response to” Flatt’s exercise of the right of free speech under the TCPA because the alleged communications concerned Flatt’s marriage, her husband’s affair, and proof of that affair.
• Whether the appellate court needed to reach prima facie proof and affirmative-defense arguments once it concluded the TCPA did not apply at step one.

Rules Applied

The court worked from the modern TCPA framework emphasized by the Texas Supreme Court in McLane Champions, LLC v. Houston Baseball Partners LLC, 671 S.W.3d 907 (Tex. 2023): the movant bears the initial burden to show the legal action is based on or in response to protected activity under the statute. If that showing fails, the analysis ends.

Key authorities and statutory provisions included:

• TEX. CIV. PRAC. & REM. CODE § 27.002, stating the TCPA’s purpose.
• TEX. CIV. PRAC. & REM. CODE § 27.005(b), requiring the movant to show the action is based on or in response to the exercise of a protected right.
• TEX. CIV. PRAC. & REM. CODE § 27.001(4)(A)(i), defining exercise of the right to petition to include a communication in or pertaining to a judicial proceeding.
• TEX. CIV. PRAC. & REM. CODE § 27.001(1), defining “communication.”
• McLane Champions, LLC v. Houston Baseball Partners LLC, 671 S.W.3d 907 (Tex. 2023), for the threshold applicability burden and for ending the analysis when TCPA applicability is not established.
• Pierce v. Brock, No. 01-18-00954-CV, 2019 WL 3418511 (Tex. App.—Houston [1st Dist.] July 30, 2019, no pet.) (mem. op.), rejecting a purely temporal, post hoc ergo propter hoc theory of TCPA applicability.
• Other intermediate appellate cases rejecting the proposition that a later-filed suit is necessarily “in response to” an earlier protected communication merely because of sequence in time.

The court also referenced Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021), in a footnote on amended pleadings and TCPA timing, confirming that an amended petition asserting the same legal claims based on the same essential facts does not restart the TCPA deadline or moot the motion.

Application

The court approached the case exactly where TCPA fights should begin after McLane Champions: not with prima facie proof, not with defenses, but with applicability. Flatt tried to characterize Tornow’s lawsuit as a retaliatory response to her divorce discovery efforts. The subpoenas themselves could qualify as communications in or pertaining to a judicial proceeding, so the court did not resist the proposition that some divorce-related discovery conduct may fall within the statutory definition of petitioning activity. The problem for Flatt was the next step.

The court focused on the factual predicate of Tornow’s claims. Those claims were not premised on the issuance of subpoenas, on deposition notices, or on statements made in court filings. They were premised on alleged access to private communications and alleged disclosure of intimate images and private information to third parties. In other words, the wrongful conduct asserted in the petition was disclosure and invasion of privacy, not use of judicial process.

Flatt’s principal response was timing. Tornow sued shortly after being subpoenaed, and more than a year after she allegedly learned that Flatt had disseminated the photographs. Flatt argued that this chronology showed the suit was “in response to” her divorce-case subpoenas. The court rejected that as insufficient. Sequence alone does not establish TCPA applicability. The court treated that argument as a version of post hoc ergo propter hoc reasoning and reiterated that a movant cannot satisfy the statute merely by showing protected activity happened first and the lawsuit came later.

The free-speech theory fared no better. Flatt argued she had a right to speak about her marriage, the affair, and proof of the affair. But the court framed the suit as a private dispute involving the alleged dissemination of intimate photographs and private information, not speech on a matter of public concern. The domestic and emotionally charged nature of the subject matter did not transform it into TCPA-protected speech. Under the court’s reasoning, discussing marital misconduct in one’s personal sphere is not enough; the movant must connect the complained-of communications to the TCPA’s protected categories as the statute now stands.

Because Flatt failed at the threshold step, the court did not need to examine whether Tornow had established a prima facie case or whether Flatt could conclusively negate any claim element.

Holding

The court held that the TCPA did not apply because Tornow’s privacy-based claims were not based on or in response to Flatt’s exercise of the right to petition. Although subpoenas in a divorce case are communications pertaining to a judicial proceeding, Tornow’s causes of action were not factually predicated on those subpoenas or other litigation conduct. A later-filed suit is not “in response to” protected petitioning activity merely because it follows that activity in time.

The court also held that the TCPA did not apply under the right-of-free-speech prong. Claims arising from the alleged disclosure of intimate photographs and private information in a private dispute do not constitute speech on a matter of public concern simply because the subject touches on marriage or adultery. The complained-of conduct remained private disclosure, not protected public-concern speech.

Having found TCPA inapplicable at the first step, the court affirmed the denial of the motion to dismiss and did not reach the movant’s remaining arguments concerning prima facie proof or merits-based defenses.

Practical Application

For family-law litigators, this case should recalibrate when to file a TCPA motion and when not to. If the claim is rooted in alleged dissemination of intimate photos, screenshots, affair communications, private emails, cloud-stored images, or device contents to friends, family, children, or community members, the mere existence of a divorce, modification, or custody case will not automatically create TCPA protection. The movant must identify the actual communication being sued upon and show that it is protected petitioning activity or speech on a matter of public concern.

This distinction will matter in several recurring scenarios. A spouse who attaches affair communications to a filed motion, affidavit, or discovery response may have a stronger petitioning argument than a spouse who forwards the same material to relatives, school parents, church members, or business associates. Likewise, a litigant who uses discovery tools to obtain information is not necessarily protected from a later tort suit if the complained-of conduct is what she allegedly did with the information outside the proceeding.

For plaintiffs in family-law-adjacent privacy suits, Flatt offers a roadmap: plead the factual predicate carefully. Anchor the claims to extra-judicial disclosure, access, dissemination, or misuse of private material rather than to the opponent’s filing activity. The more clearly the petition isolates the wrongful conduct from court process, the harder it will be for the defense to force the case into TCPA procedure.

For defendants, the lesson is strategic restraint. Do not assume that because a dispute arose during a divorce, every related communication is protected. A weak TCPA motion can educate the plaintiff, delay the merits, and generate interlocutory appellate expense without meaningful upside. If the communication at issue was private gossip, revenge disclosure, or circulation of intimate images, a Rule 91a, special exceptions, evidentiary objections, or traditional merits defenses may be the better path.

In custody and conservatorship litigation, counsel should be especially careful where one parent circulates salacious material claiming it relates to moral fitness. Even if the information might be relevant in court, its dissemination outside the judicial process can create exposure that is not insulated by the TCPA. Relevance in a SAPCR does not equal protected speech for all purposes.

Checklists

Evaluate TCPA Applicability Before Filing

• Identify the exact communication or conduct the plaintiff is suing over.
• Separate litigation conduct from extra-judicial conduct.
• Ask whether the factual predicate of the claim is a subpoena, pleading, motion, affidavit, testimony, or other judicial-proceeding communication.
• If relying on free speech, analyze whether the communication truly involves a matter of public concern under current TCPA standards.
• Do not rely solely on chronology to argue the suit was filed “in response to” protected activity.
• Assess whether a TCPA motion advances the client’s broader family-law objectives or simply creates cost and delay.

Plead Privacy-Based Claims to Avoid TCPA Detours

• Describe the alleged disclosure conduct with specificity.
• Allege who received the information or images, to the extent known.
• Distinguish between discovery activity in the family case and later dissemination outside the case.
• Frame the injury as invasion of privacy, unauthorized access, and disclosure of intimate material.
• Avoid pleading in a way that suggests the injury arises from the opponent’s subpoenas, testimony, or filed papers unless that is genuinely the claim.
• Preserve injunctive-relief theories where ongoing dissemination is a risk.

Handle Affair Evidence Carefully in Family Cases

• Limit circulation of affair-related material to counsel, experts, and necessary litigation participants.
• Use protective orders where intimate or highly personal material may be exchanged in discovery.
• Consider in camera review for explicit or sensitive material.
• Avoid sending screenshots, nude images, or private communications to family members or third parties.
• Advise clients in writing that “proof” relevant to divorce does not become safe to publish.
• Build a record showing any sensitive use of materials was confined to the judicial process.

Build or Defeat the “Right to Petition” Argument

• For movants, tie the plaintiff’s claims to a communication made in or pertaining to the judicial proceeding.
• Show that the protected communication itself, not merely surrounding events, is the basis of the legal action.
• For respondents, emphasize the factual predicate of the pleaded tort.
• Point out when the alleged wrongful act is disclosure to nonparticipants rather than use in court.
• Use McLane Champions to keep the analysis at step one if applicability is missing.
• Cite authorities rejecting post hoc ergo propter hoc reasoning where the defense rests on timing alone.

Client Counseling in High-Conflict Divorce Cases

• Warn clients that forwarding intimate images can create civil and potentially criminal exposure.
• Explain that emotional justification does not create a litigation privilege.
• Instruct clients not to access accounts, devices, or cloud storage without clear legal authority.
• Create a document-retention and evidence-preservation plan that does not involve redistribution.
• Route all potentially sensitive evidence through counsel for review before use.
• Revisit social-media and electronic-communications protocols at the outset of the case.

Citation

Flatt v. Tornow, No. 01-24-00901-CV, ___ S.W.3d ___, 2026 WL ___ (Tex. App.—Houston [1st Dist.] June 18, 2026, no pet. h.).

Full Opinion

Read the full opinion here

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