(1) In the order dismissing the case, Judge Chupp indicated (and included a supporting citation) that he feels that any amendment after the filing of a TCPA motion is inappropriate.
However, that's not the result of a Ty screwup, it would just be a mistake about the law by the judge.
(3) At the hearing, the plaintiffs indicated that they had planned on amending after submitting their TCPA response, effectively forcing the defense to waste time on a reply to the TCPA response...
And that would be on Ty for not understanding that the rules frown on that.
That's on Ty for not reading the rules.
How does this work on appeal?
In order to keep the Huber, Mignogna, and Slatosch affidavits from being admitted into evidence, the defense needs to win one of those five arguments.
To get them in, the plaintiff needs to win all five - and any others I might have missed.
But the other four are entirely on Ty.
While it's unlikely that the 2AP will be admitted with its declarations, @OblivionVortex still hit the key point: bad as it is, that's still probably the best argument that Vic has on appeal.