CROSSOVER: TCPA Shields the Courthouse Door: Collateral Tort Claims Based on Seeking a TRO Require Clear, Specific Proof

Tina Hall Montoya v. 3 Kings General Contracting LLC, 05-26-00029-CV, September 29, 2026.

On appeal from 439th Judicial District Court, Rockwall County, Texas

Synopsis

Filing a lawsuit and requesting a temporary restraining order are exercises of the right to petition under Texas Civil Practice and Remedies Code section 27.001(4). A tort claim based on that protected activity is subject to dismissal under the Texas Citizens Participation Act when the claimant fails to present clear and specific evidence establishing a prima facie case for every essential element.

Relevance to Family Law

The opinion matters when litigation arising from a divorce, custody dispute, property controversy, or post-decree proceeding expands beyond claims brought directly under the Texas Family Code. Although section 27.010 exempts specified Family Code actions from the TCPA, a collateral common-law tort claim—such as tortious interference, defamation, business disparagement, or conspiracy—may remain subject to the Act if it is based on a party’s filing of pleadings, pursuit of injunctive relief, or other communications in or pertaining to a judicial proceeding.

Family-law litigators should therefore analyze the legal basis of each claim separately. A divorce, SAPCR, or enforcement proceeding does not necessarily immunize every ancillary tort claim from TCPA scrutiny. When a collateral claim rests on an opponent’s application for a TRO, injunction, receivership, or other judicial remedy, Montoya supports treating that application as protected petitioning activity and requiring the claimant to satisfy the TCPA’s evidence-based prima facie burden.

Case Summary

Fact Summary

Tina Hall Montoya, an attorney proceeding pro se, sued a homeowners’ association and its board of directors concerning payments under a $2.1 million roofing contract between the association and 3 Kings General Contracting LLC. Montoya sought an ex parte TRO and temporary injunctive relief restricting the disbursement of association funds to 3 Kings unless an itemized invoice was provided as required by the contract.

The trial court granted a TRO restraining the association and related persons from disbursing funds to 3 Kings for the period specified in the order. Montoya later supplemented her pleadings to assert additional fiduciary-duty and declaratory claims and to request broader temporary and permanent injunctive relief concerning the association’s expenditures and governance.

Before Montoya nonsuited her claims against the association defendants, 3 Kings intervened and asserted a single tortious-interference claim against her. According to 3 Kings, Montoya had interfered with its roofing contract by filing the lawsuit and seeking the TRO.

Montoya moved to dismiss the intervention claim under the TCPA. She argued that filing suit and requesting a TRO constituted exercises of the right to petition and that 3 Kings could not establish by clear and specific evidence a prima facie case for each element of tortious interference with contract.

The parties submitted the roofing contract, affidavits, declarations, pleadings, and other materials. The trial court denied Montoya’s TCPA motion, as well as her request for attorney’s fees and sanctions, without stating the basis for its decision. Montoya pursued an accelerated interlocutory appeal.

Issues Decided

The Fifth Court of Appeals decided:

1. Whether a tortious-interference claim based on filing a lawsuit and requesting a TRO is based on or in response to an exercise of the right to petition under Texas Civil Practice and Remedies Code section 27.001(4).

2. Whether 3 Kings presented clear and specific evidence establishing a prima facie case for each essential element of tortious interference with contract, as required by section 27.005(c).

3. Whether the trial court’s denial of the TCPA motion should be reversed and judgment rendered dismissing the tortious-interference claim.

4. Whether further proceedings were required under section 27.009 concerning Montoya’s request for attorney’s fees, costs, and sanctions.

Because the TCPA’s first two steps resolved the dismissal question, the court did not need to reach Montoya’s separate judicial-proceedings affirmative-defense argument.

Rules Applied

The court applied the TCPA’s burden-shifting framework:

• Protected activity. Under section 27.005(b), the movant must demonstrate that the legal action is based on or in response to the movant’s exercise of a right protected by the TCPA.

• Right to petition. Section 27.001(4) defines the exercise of the right to petition to include specified communications in or pertaining to judicial proceedings. Filing a lawsuit and applying for a TRO fall within that statutory protection.

• Prima facie case. Once the movant establishes the Act’s application, section 27.005(c) requires the nonmovant to establish by clear and specific evidence a prima facie case for every essential element of the challenged claim.

• Tortious interference with contract. The claimant must establish the existence of a contract subject to interference, a willful and intentional act of interference, proximate cause, and actual damages or loss.

• Evidence considered. TCPA adjudication focuses on the pleadings, evidence, and supporting or opposing affidavits identifying the facts on which the claim or defense is based.

The court also relied on the evidentiary principles discussed in In re Lipsky, 460 S.W.3d 579 (Tex. 2015). “Clear and specific evidence” requires enough detail to show the factual basis for the claim and permit a rational inference that the alleged facts are true. Bare allegations, conclusory statements, and opinions unsupported by material facts do not satisfy that requirement.

The appeal was authorized and accelerated under Texas Civil Practice and Remedies Code sections 27.008(b) and 51.014(a)(12).

Application

The intervention pleading made the TCPA connection direct rather than incidental. The conduct identified as the alleged interference was Montoya’s filing of the lawsuit and pursuit of a TRO affecting payments under the roofing contract. Those acts invoked the judicial process and therefore constituted exercises of the statutory right to petition.

Because the tortious-interference claim was based on or in response to that protected activity, the burden shifted to 3 Kings. At that point, it was not enough to establish merely that a roofing contract existed or that the TRO temporarily affected the timing or conditions of payment. Section 27.005(c) required evidence supporting each element of tortious interference, including a willful and intentional act of interference, legally sufficient causation, and actual damages or loss attributable to the alleged interference.

The court concluded that the record did not contain the clear and specific evidence necessary to establish a prima facie case for each essential element. Accordingly, the statutory burden was not satisfied, and dismissal was required.

The court did not proceed to Montoya’s alternative argument that the judicial-proceedings defense independently defeated the claim. Appellate courts need not address an additional issue when another issue fully disposes of the challenged claim. The court nevertheless remanded the case because dismissal required further proceedings concerning the relief potentially available under section 27.009.

Holding

The court held that filing a lawsuit and seeking a TRO constitute exercises of the right to petition under section 27.001(4). A tortious-interference claim expressly based on those acts therefore falls within the TCPA unless an exemption or other statutory limitation applies.

The court further held that 3 Kings failed to establish by clear and specific evidence a prima facie case for each essential element of tortious interference with contract. The trial court consequently erred by denying Montoya’s TCPA motion to dismiss.

The Fifth Court of Appeals reversed the trial court’s order in relevant part and rendered judgment granting the TCPA motion. It remanded the case for further proceedings to determine Montoya’s entitlement to relief under section 27.009, including the applicable questions concerning fees, costs, and sanctions.

Practical Application

For family-law practitioners, the first question is not simply whether the dispute is pending in a family court. The correct inquiry is whether the particular “legal action” challenged by the TCPA is a Family Code claim, an exempt proceeding, or a collateral claim arising under tort or other non-Family Code law.

Consider a divorce involving a closely held business. One spouse may request a TRO prohibiting the transfer of corporate assets, payment of extraordinary compensation, or disposition of community property. If a business entity, contracting party, or other affected person later asserts tortious interference based on the filing of that application, Montoya supports the conclusion that the claim implicates the applicant’s right to petition.

The same analysis may arise when a party seeks an injunction concerning trust distributions, partnership assets, real-estate proceeds, insurance benefits, or funds held by a third party. A collateral claimant cannot avoid TCPA scrutiny merely by characterizing the economic consequences of the requested order as actionable interference. The claimant must present evidence supporting every element of the asserted tort.

In custody litigation, the Family Code claims themselves may be exempt from the TCPA. But ancillary claims based on statements in pleadings, affidavits, motions, or hearings require a claim-specific analysis. Counsel should examine the source of the cause of action, the precise communication or conduct alleged to create liability, and all potentially applicable TCPA exemptions.

The decision also underscores the difference between evidence of an injunction’s practical effect and evidence of a tort. Proof that a TRO delayed a payment or restricted a transaction does not, standing alone, establish intentional interference, proximate cause, and recoverable damages. The response to a TCPA motion should connect admissible facts to each element rather than rely on the existence or effect of the challenged court order.

Finally, counsel should account for the TCPA’s accelerated timetable from the outset. The Act imposes expedited deadlines for filing, responding to, hearing, and appealing a motion to dismiss. Evidence should be collected and organized before the response deadline, with particular attention to causation and damages.

Checklists

Evaluate Whether the TCPA Applies

• Identify the precise legal action being challenged, including each claim, counterclaim, crossclaim, or intervention claim.
• Determine whether the claim is based on or in response to a pleading, motion, affidavit, hearing statement, TRO application, or other judicial communication.
• Analyze whether the conduct falls within the statutory definition of the right to petition.
• Determine whether section 27.010 exempts the legal action from the TCPA.
• Do not assume that every claim filed in a divorce or SAPCR is exempt.
• Separate Family Code causes of action from collateral tort and commercial claims.
• Use the claimant’s live pleading to identify the conduct alleged to create liability.

Prepare a TCPA Motion in a Family-Law-Related Case

• Quote the allegations connecting the challenged claim to protected petitioning activity.
• Identify the relevant portions of section 27.001(4).
• Attach or incorporate the pleadings, TRO application, injunction request, and challenged communications.
• Address anticipated statutory exemptions.
• Challenge the claimant’s evidence element by element.
• Distinguish evidence of an order’s economic effect from evidence of tortious conduct.
• Preserve requests for costs, attorney’s fees, and sanctions under section 27.009.
• Calendar the accelerated hearing and interlocutory-appeal deadlines.

Respond to a TCPA Motion

• Prepare a separate evidentiary showing for every essential element of the cause of action.
• Authenticate contracts, payment records, invoices, correspondence, and business records.
• Use affidavits or declarations containing concrete facts rather than legal conclusions.
• Establish the alleged intentional act of interference with specificity.
• Explain the causal chain between the protected activity and the claimed injury.
• Quantify actual damages or loss and provide the supporting methodology.
• Address whether the alleged loss resulted from the litigant’s conduct, the trial court’s order, or an independent contractual or business decision.
• File the response and evidence within the statutory deadline unless the court permits otherwise.
• Obtain express rulings on evidentiary objections when possible.

Seek or Oppose Emergency Relief Without Creating an Evidentiary Gap

• Identify the contractual or property rights affected by the requested TRO.
• Draft the requested order narrowly and tie each restriction to the pleaded grounds for relief.
• Preserve the application, supporting declaration, exhibits, bond, and resulting order.
• Document whether payments were prohibited, delayed, conditioned, or merely subjected to additional procedures.
• Track later orders modifying, extending, dissolving, or replacing the TRO.
• Preserve evidence of independent reasons for any delayed payment or failed transaction.
• Avoid treating the issuance of a TRO as conclusive proof of either tort liability or immunity from suit.

Preserve the Appellate Record

• Secure a reporter’s record of the TCPA hearing whenever possible.
• Obtain written rulings on objections to affidavits, declarations, and late-filed evidence.
• Ensure the clerk’s record contains all live pleadings, responses, exhibits, notices, and orders.
• Request findings or clarification when procedurally available and strategically useful.
• File the notice of accelerated appeal within the applicable deadline.
• Confirm whether post-order weekends or legal holidays affect the filing calculation.
• Preserve fee evidence for any section 27.009 remand.

Citation

Tina Hall Montoya v. 3 Kings General Contracting LLC, No. 05-26-00029-CV, slip op. (Tex. App.—Dallas Sept. 29, 2026) (mem. op.).

Full Opinion

Read the full opinion.

Family Law Crossover

The crossover rule is procedural: when a collateral legal action is based on filing suit, requesting a TRO, or making another communication in or pertaining to a judicial proceeding, the TCPA’s right-to-petition framework may apply. The movant must first demonstrate the connection between the challenged claim and protected activity. The burden then shifts to the claimant to present clear and specific evidence of a prima facie case for every essential element, subject to any applicable statutory exemption.

In a Texas family-law matter, the issue may arise when emergency relief affects a third-party contract, business entity, trust distribution, real-estate transaction, or control of disputed funds. Although the underlying divorce, SAPCR, or Family Code enforcement action may be exempt, a separate tort claim based on the application for judicial relief requires its own TCPA analysis. If that collateral claim lacks element-specific proof, section 27.005 requires dismissal, followed by the appropriate proceedings under section 27.009.

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