REVERSE; RENDER and REMAND and Opinion Filed November 29, 2023 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-00589-CV 

NATHAN LONG, Appellant 

V. 

DR. KRISTI LARSON LONG, Appellee 

On Appeal from the County Court at Law No. 5 

Dallas County, Texas 

Trial Court Cause No. CC-21-03491-E 

OPINION 

Before Justices Pedersen, III, Goldstein, and Smith 

Opinion by Justice Goldstein 

Nathan Long appeals the trial court’s order awarding Dr. Kristi Larson Long 

attorney’s fees in connection with her motion to dismiss under the Texas Citizens 

Participation Act (TCPA).1

 In five issues, Nathan argues the trial court erred in (1) 

dismissing his claims under the TCPA; (2) acting untimely in attempting to vacate a 

December 15, 2021 order; (3) dismissing his claims because Kristi failed to meet her 

burden under the TCPA; (4) dismissing his claims because he satisfied the minimal 

1

 The Notice of Appeal advises of the desire to appeal from the final order, which is an “amalgam of 

several orders” including the last order issued on May 23, 2022, relative to attorneys’ fees. Those orders 

are identified and addressed below. 
 –2– 

pleading obligations under Rule 91a; and (5) awarding attorney’s fees to Kristi 

pursuant to the TCPA. We reverse and render in part and reverse and remand for 

further proceedings. 

FACTUAL BACKGROUND 

In August 2021, Nathan filed his original petition against Kristi in which he 

alleged the following facts. He and Kristi were married for eighteen years and had 

seven children. They divorced in April 2021, “after many months of acrimonious 

litigation,” Nathan and Kristi divorced. Among other things, the final divorce decree 

awarded Kristi a $3,000,000 promissory note to compensate her in the division of 

the parties’ estate. The note had a term of eight years and called for an initial 

payment of $500,000, which Nathan prepaid, and eight subsequent annual 

installments of $312,500 payable commencing on January 1, 2022, and thereafter on 

January 1 each year until January 1, 2029. 

The petition alleged that, in the early morning hours of July 5, 2021, Nathan 

and a date were arrested after falling asleep in his SUV where they had been parked 

at the top of a tower garage watching Fourth of July fireworks. The two were 

arrested for misdemeanor public intoxication although neither Nathan nor his date 

had been driving an automobile or walking around in public, and neither one was 

intoxicated. Further, no breathalyzer test was performed on either Nathan or his 

date. 
 –3– 

The next day, Nathan began receiving “oblique but threatening” texts from 

Kristi. The first text stated, “Wait until you see what’s coming for you! I always 

suspected but I finally have proof. [Eldest child] will run scared from you.” On or 

about July 20, 2021, Kristi texted Nathan screen shots of partially unclothed male 

dancers from advertisements for La Bare Dallas, a nightclub in Dallas. Kristi also 

attached a screen shot of the parking lot at La Bare Dallas. In a series of texts, Kristi 

said Nathan “paid the men” in the photographs “in cash” and told Nathan to “stop 

texting teenagers.” 

On or about July 29, 2021, Nathan’s divorce lawyer reached out to Kristi in 

an attempt to negotiate a present value discount to pay off the entire remaining 

balance of the note. Kristi immediately responded that she would agree to the very 

first discount being considered, but she conditioned her acceptance on the entire 

transaction being closed and funded within a period of hours. Given that no 

documents were yet drafted and because of the history between the parties, Kristi’s 

response was “at best suspicious,” according to Nathan. Kristi was told that several 

days would be required to fund the transaction and generate the necessary 

documentation. 

That same day, “within minutes” of the contact with Kristi, multiple envelopes 

that had been deposited in the United States postal system on July 27, 2021, began 

arriving at the homes and businesses of Nathan’s close friends, relatives, and close 

business associates. The envelopes were mailed anonymously from various zip 
 –4– 

codes near Italy, Texas, and they all contained an identical package of materials 

including a copy of Nathan’s and his date’s July 5, 2021 arrest reports; their mug 

shots; a photocopied photograph of La Bare Dallas; and a photograph of the La Bare 

parking lot with the typed legend, “Woman’s Club that also caters to bisexual and 

gay males.” 

The petition alleged that the recipients of the packages were not random. 

Instead, each recipient was targeted from a private mailing list to which only Nathan 

or Kristi had access, and only Nathan or Kristi had knowledge of each recipient’s 

significance to Nathan and his businesses and an understanding of the harm delivery 

of such a package would inflict on Nathan and his businesses. 

Based on these allegations, Nathan accused Kristi of sending the packages and 

asserted claims of intentional infliction of emotional distress, invasion of privacy: 

intrusion on seclusion, and public disclosure of private facts. Specifically, the 

petition asserted Nathan suffered and continues to suffer severe emotional distress 

and humiliation because of Kristi’s “purposeful and ongoing attack upon him.” The 

petition contains nearly two pages alleging intentional and malicious actions taken 

by Kristi in sending the packages to the targeted recipients. Regarding invasion of 

privacy, the petition asserted Kristi invaded Nathan’s privacy by intruding on his 

solitude, seclusion, and private affairs or concerns. 
 –5– 

PROCEDURAL BACKGROUND 

On September 20, 2021, Kristi filed motions to dismiss under both the TCPA 

and Texas Rule of Civil Procedure 91a. Kristi’s TCPA motion alleged she “had no 

role in the dissemination of these alleged mailings.” Even assuming for the sake of 

argument that Nathan’s account was true, Kristi argued, Nathan’s legal action was 

based on, “related to,” or in response to Kristi’s exercise of her right of free speech, 

right to petition, and right of association, and Nathan could not establish by clear 

and convincing evidence a prima facie case for each and every element of his causes 

of action. The motion attached the mug shots of Nathan and his date and a Farmers 

Branch arrest summary and asserted that all the matters that Nathan alleged were 

publicized were of legitimate public concern and publicly available. Further, the 

motion alleged the mailings consisted of public records, establishing a “clear bar” to 

Nathan’s recovery for invasion of privacy, and Nathan’s intrusion upon seclusion 

claim failed as a matter of law because he could not establish an intrusion or, 

alternatively, because any alleged intrusion was not highly offensive to a reasonable 

person. 

On October 1, 2021, the parties’ attorneys entered the following Rule 11 

agreement: 

I am writing to memorialize our Rule 11 Agreement. Plaintiff agrees 

to waive any argument that Defendant Dr. Long has not or did not file 

her motions timely or has not or did not timely have the motions heard, 

or that the Court’s ruling was not timely pursuant to the Texas Rules of 

Civil Procedure, in exchange for Defendant’s consent to move her 
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hearings on her Motion to Dismiss and Anti-Slapp that are scheduled 

for October 15, 2021 to October 29, 2021. 

On December 3, 2021, the trial court held a hearing on both of Kristi’s motions 

to dismiss. On December 15, 2021, the trial court signed two conflicting orders: (1) 

an order granting Kristi’s TCPA motion to dismiss but awarding no attorney’s fees 

and (2) an order denying the TCPA motion with the request for attorney’s fees to be 

considered at a subsequent setting. On December 28, 2021, the trial court signed an 

order vacating the order granting Kristi’s TCPA motion to dismiss; thus, only the 

trial court’s order denying Kristi’s TCPA motion to dismiss remained in effect. 

On January 18, 2022, the trial court signed an order granting Kristi’s 91a 

motion and dismissing Nathan’s causes of action with prejudice. The trial court 

crossed out the paragraph in the order providing for an award of attorney’s fees and 

added the handwritten notation “NEED separate order + hearing” in the margin. 

On February 15, 2022, the trial court signed an “order vacating order denying 

defendant’s motion to dismiss TCPRC chapter 27” in which it stated the order 

denying relief under the TCPA was “inadvertent error,” vacated that order in all 

respects, granted Kristi’s motion to dismiss, and dismissed the case. The order 

further provided “[a]ny relief not GRANTED, is specifically denied” with the caveat 

that “[a]ny remaining issues regarding attorney’s fees must be set for a hearing 

before the Court.” 

Nathan filed a motion for new trial, or alternatively a motion to reconsider on 

February 17, 2022, thirty days from the order granting Kristi’s 91a motion and 
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dismissing the case with prejudice. The trial court did not rule on the motion for 

new trial, which was denied by operation of law.2

On May 13, 2022, the trial court conducted a hearing on attorney’s fees at 

which Nathan’s attorney stated his belief that Kristi put on her entire case at the 

December 3, 2021 hearing and “closed it” without meeting her burden. Counsel 

noted that the trial court had not entered a “final, final order yet” but asserted that 

there was finality on Kristi’s TCPA claims, which were denied. Counsel argued that 

Kristi could therefore not get fees for a claim on which she did not prevail. Finally, 

counsel complained that Kristi’s counsel failed to segregate his attorney’s fees. In 

response, Kristi’s counsel argued Rule 91a did not require the trial court to rule on 

the attorney’s fees issue within any allotted time, and counsel for the prevailing party 

was not required to segregate attorney’s fees where discrete legal services advanced 

both recoverable and unrecoverable claims. 

On May 23, 2022, the trial court entered an order awarding Kristi $15,003.68 

in attorney’s fees on her TCPA motion to dismiss and ordering “that the Court will 

not award Defendant’s reasonable and necessary attorneys’ fees and costs incurred 

through the filing and prosecution of her 91a Motion to Dismiss.” This appeal 

followed. 

2

 We note that March 16, 2022, was thirty days from the granting of Kristi’s TCPA motion. 
 –8– 

ANALYSIS 

We review de novo a trial court’s ruling on a TCPA motion to dismiss. 

Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 132 (Tex. 

2019); Goldberg v. EMR (USA Holdings) Inc., 594 S.W.3d 818, 827 (Tex. App.—

Dallas, pet. denied) (citing Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018)). 

We review the merits of a Rule 91a motion de novo because the availability of a 

remedy under the facts alleged is a question of law and the rule’s factual-plausibility 

standard is akin to a legal-sufficiency review. City of Dallas v. Sanchez, 494 S.W.3d 

722, 724 (Tex. 2016) (per curiam). 

Issues 1 and 2: TCPA Motion

Whether the court erred in dismissing Plaintiff’s claims under TCPA 

given it had already twice, timely denied the motion, it lost subject 

matter jurisdiction and subsequently entered its Order No. 5, 73 days 

after its TCPA hearing took place. 

Whether the court’s untimely effort to vacate its December 15, 2021, 

Order No. 1 was an error or was void given (i) its untimeliness and its 

(ii) failure to vacate its December 28, 2021, Order No. 3 and (iii) the 

TCPA’s express language denying, by operation of law, motions not 

ruled on timely. 

We first address Nathan’s argument relative to proceedings under the TCPA 

and his assertion that the trial court erred in “trying to vacate” its December 15, 2021 

order denying Kristi’s TCPA motion to dismiss with its “untimely February 15, 

2022, Order.” Nathan argues that, even if the trial court was able to vacate its 

December 15, 2021, order, Kristi’s TCPA motion to dismiss was denied by operation 
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of law. The trial court’s February 15, 2022, order shows that, in addition to vacating 

its December 15, 2021, order, the trial court granted Kristi’s TCPA motion to 

dismiss, dismissed the case, and ordered that the issue of attorney’s fees had to be 

set for a hearing. We understand Nathan to contend that the trial court lost 

jurisdiction to take further action with respect to Kristi’s TCPA motion 30 days after 

the December 3, 2021, hearing on the motion. As explained below, on this record 

we disagree that the trial court lost plenary jurisdiction to vacate the order but agree 

that the trial court had no authority to enter an order granting the TCPA motion more 

than 30 days after the hearing. 

When a motion to dismiss pursuant to the TCPA is filed, the trial court must 

rule on the motion not later than the 30th day following the date the hearing on the 

motion concludes. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(a). If a court does 

not rule on a motion to dismiss under the TCPA in the time prescribed by Section 

27.005, the motion is considered to have been denied by operation of law, and the 

moving party may appeal. TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(a). Nathan 

argues that, on January 2, 2022, the thirtieth day after the hearing on Kristi’s TCPA 

motion to dismiss, jurisdiction under the TCPA expired. See TEX. CIV. PRAC. &

REM. CODE ANN. § 27.005(a). 

The Supreme Court of Texas has held the TCPA does not impose a 30-day 

restriction on a trial court’s authority to vacate a ruling on a TCPA motion to dismiss, 

concluding: 
 –10– 

While the TCPA imposes myriad deadlines, no statutory provision 

speaks to this issue. See id. §§ 27.001–.011. Section 51.014 of the 

Civil Practice and Remedies Code constrains the trial court’s authority 

to act on a prior ruling, but only when an interlocutory appeal is 

pending. Section 27.005(a) requires a timely ruling, but says nothing 

about a trial court’s power to vacate such a ruling outside the statute’s 

30-day deadline. To hold that the trial court had no power to vacate the 

dismissal order based on new precedent, as occurred here, would 

require us to “judicially amend” the TCPA “by adding words that are 

not contained in the language of the statute.” Lippincott v. Whisenhunt, 

462 S.W.3d 507, 508 (Tex. 2015). But we cannot do so because the 

statute’s “text is the alpha and the omega of the interpretive process.” 

BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86 

(Tex. 2017). 

Put simply, nothing in the statutory scheme prohibits trial courts from 

vacating their own orders when they otherwise have plenary power to 

do so. Here, once the trial court vacated its February 22 order, as it had 

authority to do, no ruling on the dismissal motion was in place. 

Accordingly, the motion to dismiss was either overruled by operation 

of law for want of a timely ruling, see TEX. CIV. PRAC. & REM. CODE § 

27.008(a), or denied by the trial court in a new trial. In this procedural 

posture, we need not consider whether the trial court’s order granting a 

new trial restarted the trial clock and permitted a new hearing and ruling 

on the dismissal motion, because even if it did not, the same result 

ensues. Whether the trial court properly denied the defendants’ TCPA 

motion or whether it was overruled by operation of law on vacatur of 

the prior order, the defendants can seek relief by interlocutory appeal 

as the Legislature contemplated. 

In re Panchakarla, 602 S.W.3d 536, 540–41 (Tex. 2020) (orig. proceeding) (per 

curiam). 

We follow Panchakarla’s lead, applying the rules of statutory construction: 

The proper construction of a statute is a question of law we review de 

novo. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). When a 

statute’s language is unambiguous, “we adopt the interpretation 

supported by its plain language unless such an interpretation would lead 

to absurd results.” TGS-NOPEC Geophysical Co. v. Combs, 340 
 –11– 

S.W.3d 432, 439 (Tex. 2011). “We presume the Legislature included 

each word in the statute for a purpose and that words not included were 

purposefully omitted.” Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 

(Tex. 2015). We construe statutes and related provisions as a whole, 

not in isolation, Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 

2001), and as a general proposition, we are hesitant to conclude that a 

trial court’s jurisdiction is curtailed absent manifestation of legislative 

intent to that effect, cf. City of DeSoto v. White, 288 S.W.3d 389, 393 

(Tex. 2009). In construing the TCPA, we are also mindful that it “does 

not abrogate or lessen any other defense, remedy, immunity, or 

privilege available under other constitutional, statutory, case, or 

common law or rule provisions,” and it must be “construed liberally to 

effectuate its purpose and intent fully.” TEX. CIV. PRAC. & REM. CODE

§ 27.011. 

 

In TCPA cases, the Legislature has expressly constrained trial-court 

authority over TCPA orders in a very limited way: by making 

interlocutory orders denying TCPA dismissal motions immediately 

appealable and automatically staying all trial court proceedings until a 

perfected interlocutory appeal has been concluded. See id. § 

51.014(a)(12), (b). But the TCPA is silent about a trial court’s authority 

to reconsider either a timely issued ruling granting a TCPA motion to 

dismiss or a timely order denying such a motion when no interlocutory 

appeal is pending. Construing the statutory scheme as a whole, and 

giving weight to the language the Legislature included and excluded, 

we hold that the TCPA does not impose a 30-day restriction on a trial 

court’s authority to vacate a ruling on a TCPA motion to dismiss. 

Id. at 540. 

In this case of first impression, we answer a question left open by 

Panchakarla: whether a trial court with authority to vacate an order when it has 

plenary power to do so can thereafter affirmatively rule on the TCPA motion more 

than 30 days after the hearing. See TEX. CIV. PRAC. & REM. CODE § 27.005 (court 

must rule not later than 30th day following date of hearing concludes). In construing 

the statutory language and consistent with the Panchakarla court’s analysis, we 
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conclude that the trial court had no authority to grant the TCPA motion 75 days after 

the hearing. 

The trial court retained plenary power when, by order dated February 15, 

2022, it vacated its order denying Kristi’s TCPA motion to dismiss. In accordance 

with Panchakarla, this put the case back in the procedural posture wherein the 

motion was deemed denied by operation of law. In this case, unlike Panchakarla, 

procedurally, the order vacating a denial of the TCPA motion is a distinction without 

a substantive difference. See Panchakarla, 602 S.W.3d at 541. Rather than being 

an express denial, the motion is deemed denied by operation of law. This presents 

the procedural posture of a failure to rule. Id at 540–41. 

We must, however, address that portion of the February 15, 2022, order that 

granted Kristi’s TCPA motion and dismissed the case. The TCPA is clear that the 

trial court has the authority to rule on a motion within 30 days after the hearing; 

otherwise it is deemed denied. To permit the trial court to grant the motion after 30 

days have passed is directly contrary to the express statutory language. Section 

27.005(a) requires a timely ruling, with consequences for a failure to rule, and 

permitting an immediate interlocutory appeal from the deemed denial. To hold that 

the trial court had power to rule, i.e. grant a motion 75 days after the hearing would 

require us to “judicially amend” the TCPA “by adding words that are not contained 

in the language of the statute.” Lippincott, 462 S.W.3d at 508. But we cannot do so 

because the statute’s “text is the alpha and the omega of the interpretive process.” 
 –13– 

BankDirect Capital Fin., 519 S.W.3d at 86. While the trial court has plenary power 

to vacate its ruling, thereby in this context putting it in the procedural posture of a 

deemed denial, we conclude that does not provide the concomitant power to enter 

an order granting a dismissal after the statutory 30-day deadline from the hearing 

date.3

 

We have concluded the trial court had authority to vacate the December 15, 

2021 order, which had the effect of the motion to dismiss being deemed denied. We 

have determined the trial court had no authority to thereafter grant the TCPA motion; 

therefore, we sustain Nathan’s first and second issues to that extent. In all other 

respects, we overrule Nathan’s first and second issues. 

Nathan’s third issue is rendered moot by our disposition of his first issue.4

 As 

no timely interlocutory appeal was taken, we address the ramifications of the deemed 

denial relative to the May 23, 2022, final order and the award of attorney’s fees under 

the TCPA under Nathan’s fifth issue. 

3

 To conclude otherwise could lead to absurd results. While the timeline on this record reflects a 

wholesale failure to faithfully promote the expeditious resolution under two separate dismissal proceedings, 

it was at least less than six months from the hearing. Any interpretation that would permit a trial court to 

take affirmative action, other than to vacate a ruling after 30 days, could lead the trial court, sua sponte or 

at the behest of the parties, to reconsider its ruling on the eve of trial. That is well beyond what the 

Legislature contemplated in its statutory construct. 

4

 Nathan’s third issue is whether, “alternatively, the court erred in dismissing Plaintiff[‘]s claims as 

Defendant failed and he satisfied any burdens the TCPA may have placed on them.” 
 –14– 

Issue 5: Whether the court erred in awarding any attorney fees to 

Defendant pursuant to the TCPA. 

In his fifth issue, Nathan complains that the trial court erred in awarding Kristi 

attorney’s fees under the TCPA. The TCPA requires that, “if the court orders 

dismissal of a legal action under this chapter, the court: (1) shall award to the moving 

party court costs and reasonable attorney’s fees incurred in defending against the 

legal action.” TEX. CIV. PRAC. & REM. CODE § 27.009(a)(1); see also Sullivan v. 

Abraham, 488 S.W.3d 294, 299 (Tex. 2016). The procedural posture after the 

February 15, 2022 order vacating the order to dismiss is that no ruling was signed 

within 30 days of the hearing; therefore, the TCPA motion was deemed denied by 

operation of law. As we have determined that the trial court had no authority to 

grant the dismissal, it concomitantly had no authority to award attorney’s fees on 

May 23, 2022, for a motion deemed denied by operation of law, for which no 

interlocutory appeal was taken. We sustain Nathan’s fifth issue to the extent we 

conclude Kristi is not entitled to attorney’s fees and reverse and render judgment 

that Kristi take nothing on her claim for attorney’s fees.5

Issue 4: Whether, alternatively, the court erred in dismissing Plaintiff’s 

claims as Plaintiff fully satisfied the minimal, pleading obligations TRCP 

91a placed on him requiring the motion be denied. 

5

 We note that when the court denied the motion on December 15, 2021, it was to consider an award of 

costs and attorney’s fees at a subsequent setting. “If the court finds that a motion to dismiss filed under this 

chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney's 

fees to the responding party.” See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(b). As the procedural 

posture is deemed denied by operation of law, and the record reflects no prior finding by the court that the 

motion was frivolous or solely intended for delay, we reverse and render as opposed to reverse and remand. 
 –15– 

We first note that the trial court’s January 18, 2022 order dismissing Nathan’s 

causes of action under Rule 91a was not a final order because it clearly reflected the 

trial court’s notation “NEED separate order + hearing” indicating an intention to 

address the issue of attorney’s fees in a separate order following a hearing. See 

Carroll v. Metro Off. Equip., Inc., No. 02-22-00087-CV, 2022 WL 1682156, at *1 

(Tex. App.—Fort Worth May 26, 2022, no pet.) (mem. op.) (dismissal order under 

Rule 91a not final where claim for attorney’s fees remained pending). A motion to 

dismiss under Rule 91a must be granted or denied within 45 days after the motion is 

filed. TEX.R. CIV. P. 91a.3(c). However, the 45-day deadline for ruling on a motion 

to dismiss under Rule 91a is not jurisdictional. In re Joel Kelley Ints., Inc., No. 05-

19-00559-CV, 2019 WL 2521725, at *1 (Tex. App.—Dallas June 19, 2019, orig. 

proceeding) (mem. op.). 

Four months after issuing its order dismissing Nathan’s causes of action under 

Rule 91a, the trial court entertained Kristi’s request for attorney’s fees and entered 

the May 23, 2022 order denying attorney’s fees under Rule 91a and disposing of all 

issues. Nathan timely appealed from that order. To the extent Nathan argues the 

trial court lost jurisdiction to act prior to the issuance of its May 23, 2022 order as to 

Rule 91a dismissal, we reject his argument. 

We therefore address that portion of Nathan’s fourth issue in which he asserts 

dismissal was not warranted under Rule 91a. Texas Rule of Civil Procedure 91a 
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provides that a party “may move to dismiss a cause of action on the grounds that it 

has no basis in law or fact.” TEX. R. CIV. P. 91a.1. 

In ruling on a Rule 91a motion, a court “may not consider evidence . . . and 

must decide the motion based solely on the pleading of the cause of action, together 

with any pleading exhibits permitted by Rule 59.” Id. 91a.6; see also TEX. GOV’T 

CODE ANN. § 22.004(g) (“The supreme court shall adopt rules to provide for the 

dismissal of causes of action that have no basis in law or fact on motion and without 

evidence. The rules shall provide that the motion to dismiss shall be granted or 

denied within 45 days of the filing of the motion to dismiss.”). We review de novo 

a trial court’s ruling on a Rule 91a motion to dismiss. Bethel v. Quilling, Selander, 

Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020). 

Nathan argues the trial court erred in granting the Rule 91a motion because 

he “satisfied all notice, pleading and legal burden(s)” asserting three causes of 

action: intentional infliction of emotional distress, invasion of privacy by intrusion 

upon seclusion, and invasion of privacy by public disclosure of private facts. In 

averring that the trial court properly dismissed Nathan’s claims under Rule 91a, 

Kristi does not challenge the existence of each of the causes of action under Texas 

law; rather, Kristi challenges the factual allegations as pled as failing to satisfy one 

element of each cause of action and asserts “the allegations taken as true 

affirmatively demonstrate that [Nathan’s] claims have no basis in law.” In doing so, 

Kristi conflates the grounds for obtaining dismissal under Rule 91a with the grounds 
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for granting a motion for summary judgment, and we decline to follow Kristi’s 

reasoning in this regard. 

Rule 91a provides a harsh remedy and should be strictly construed. Davis v 

Homeowners of Am. Ins. Co., No. 05-21-00092-CV, 2023 WL 3735115 at *2 (Tex. 

App.—Dallas May 31, 2023, no pet.) (mem. op.); Renate Nixdorf GmbH & Co. KG 

v. TRA Midland Props., LLC, No. 05-17-00577-CV, 2019 WL 92038, at *10 (Tex. 

App.—Dallas Jan. 3, 2019, pet. denied) (mem. op.); In re RNDC Tex., LLC, No. 05-

18-00555-CV, 2018 WL 2773262, at *1 (Tex. App.—Dallas June 11, 2018, orig. 

proceeding) (mem. op.). Rule 91a is not a substitute for special exception practice 

under rule 91 or summary judgment practice under rule 166a, both of which come 

with protective features against precipitate summary dispositions on the merits. 

Royale v. Knightvest Mgmt., LLC, No. 05-18-00908-CV, 2019 WL 4126600, at *4 

(Tex. App.—Dallas Aug. 30, 2019, no pet.) (mem. op.). 

A cause of action has no basis in fact “if no reasonable person could believe 

the facts pleaded.” TEX. R. CIV. P. 91a.1. The “no basis in fact” prong of Rule 91a.1 

relates to the believability of the facts alleged by a plaintiff in pleading a cause of 

action and, thus, seldom rises to a point of contention in the case law. The “no basis 

in fact” prong is a “factual plausibility standard.” Sanchez, 494 S.W.3d at 724; 

Davis, 2023 WL 3735115, at *2. A cause of action alleged by a claimant has no 

basis in law “if the allegations, taken as true, together with inferences reasonably 

drawn from them, do not entitle the claimant to the relief sought.” TEX. R. CIV. P. 
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91a.1. In assessing whether the non-movant’s pleading has no basis in law, we apply 

a fair-notice pleading standard to determine whether the allegations of the petition 

are sufficient to allege a cause of action. Thomas v. 462 Thomas Fam. Props., LP, 

559 S.W.3d 634, 639 (Tex. App.—Dallas 2018, pet. denied); Davis, 2023 WL 

3735115, at *3. A petition is sufficient if it gives fair and adequate notice of the 

facts upon which the pleader bases his claim. Thomas, 559 S.W.3d at 639–40. 

“Even the omission of an element is not fatal if the cause of action may be reasonably 

inferred from what is specifically stated.” Id. at 640 (quoting In re Lipsky, 460 

S.W.3d 579, 590 (Tex. 2015) (orig. proceeding)). 

We limit our review to the four corners of the live pleading, the First Amended 

Petition, and the exhibits attached thereto. See TEX. R. CIV. P. 91a.6. A de novo, 

four-corners review shows that all of Nathan’s causes of action have a basis in law 

as well as a basis in fact. Specifically, a claim for intentional infliction of emotional 

distress has four elements: (1) the defendant acted intentionally or recklessly; (2) its 

conduct was extreme and outrageous; (3) its actions caused the plaintiff emotional 

distress; and (4) the emotional distress was severe. Hersh v. Tatum, 526 S.W.3d 

462, 468 (Tex. 2017). Kristi challenges element number two, averring that Nathan 

cannot meet the high standard for extreme and outrageous conduct. To establish an 

actionable invasion of privacy of the type Nathan alleges—intrusion upon 

seclusion—a plaintiff must show (1) an intentional intrusion, physically or 

otherwise, upon another’s solitude, seclusion, or private affairs or concerns, which 
 –19– 

(2) would be highly offensive to a reasonable person. Valenzuela v. Aquino, 853 

S.W.2d 512, 513 (Tex. 1993); Moore v. Bushman, 559 S.W.3d 645, 649 (Tex. 

App.—Houston [14th Dist.] 2018, no pet.). Kristi challenges the first element 

asserting Nathan’s failure to articulate in what manner Kristi accessed his “private 

data” whether by physical invasion or otherwise. Finally, a plaintiff alleging public 

disclosure of private facts must show (1) publicity was given to matters concerning 

his private life; (2) the publication of such matter would be highly offensive to a 

reasonable person of ordinary sensibilities; and (3) the matter publicized is not of 

legitimate public concern. Indus. Found. of the S. v. Tex. Indus. Acc. Bd., 540 

S.W.2d 668, 682–83 (Tex. 1976); Robinson v. Brannon, 313 S.W.3d 860, 867 (Tex. 

App.—Houston [14th Dist.] 2010, no pet.). Kristi challenges the third element, 

asserting that criminal matters are of public record and therefore a matter of 

legitimate public concern. 

We agree with Nathan that, on this record, he satisfied the fair notice standard 

of his claims and allegations and satisfied the basis-in-fact component. Kristi’s 

single element challenge does not overcome the factual plausibility standard, and, 

upon reviewing the live pleading, we conclude it is possible a reasonable person 

could believe the facts as pleaded. Further, Nathan’s causes of action do not meet 

the two circumstances wherein a court may determine there is no basis in law under 

Rule 91a: (1) where the plaintiff fails to plead a legally cognizable cause of action 

or (2) where the allegations in the plaintiff’s own pleading establish a complete legal 
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bar to the plaintiff’s claims by affirmatively negating entitlement to the relief 

requested. See Reaves v. City of Corpus Christi, 518 S.W.3d 594, 608 (Tex. App.—

Corpus Christi–Edinburg 2017, no pet.). Kristi’s single element challenge does not 

implicate either circumstance. As Nathan’s causes of action each had a basis in fact 

and law, we conclude his claims were therefore improperly dismissed under Rule 

91a. See TEX. R. CIV. P. 91a.1. We sustain Nathan’s fourth issue to the extent he 

asserts dismissal was not warranted under Rule 91a. 

We reverse the trial court’s judgment dismissing Nathan’s claims under the 

TCPA and Rule 91a and awarding attorney’s fees under the TCPA, render judgment 

that Kristi take nothing on her claims under the TCPA, and remand for further 

proceedings consistent with this opinion. 

220589F.P05 

 

/Bonnie Lee Goldstein/

BONNIE LEE GOLDSTEIN 

JUSTICE 
 –21– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

NATHAN LONG, Appellant 

No. 05-22-00589-CV V. 

DR. KRISTI LARSON LONG, 

Appellee 

 On Appeal from the County Court at 

Law No. 5, Dallas County, Texas 

Trial Court Cause No. CC-21-03491-

E. 

Opinion delivered by Justice 

Goldstein. Justices Pedersen, III and 

Smith participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court dismissing Nathan Long’s claims under the TCPA and Rule 91a and 

awarding attorney’s fees under the TCPA is REVERSED, and judgment is 

RENDERED that Dr. Kristi Larson Long take nothing on her claims under the 

TCPA. We REMAND this cause to the trial court for further proceedings 

consistent with this opinion. 

 It is ORDERED that appellant NATHAN LONG recover his costs of this 

appeal from appellee DR. KRISTI LARSON LONG. 

Judgment entered this 29th day of November 2023.