Dojo Bay House, LLC v. Tom Pickford ( 2021 )

Reversed and Remanded and Memorandum Opinion filed December 21, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00237-CV
DOJO BAYHOUSE, LLC, Appellant
V.
TOM PICKFORD, Appellee
_________________________
TOM PICKFORD, Appellant
V.
DOJO BAYHOUSE, LLC, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2019-60692-A
MEMORANDUM OPINION
Appellant DOJO Bayhouse, LLC, appeals a final order dismissing its legal
action against Tom Pickford under the Texas Citizens Participation Act
(“TCPA”).1 DOJO contends the trial court erred because the TCPA does not apply
for two independent reasons: (1) Pickford failed in his initial burden to show by a
preponderance of the evidence that the act applies; and (2) DOJO’s claims fall
under the act’s commercial-speech exemption.
We conclude that the TCPA does not apply to DOJO’s legal action because
none of its claims are based on, related to, or in response to Pickford’s exercise of
the right to petition, association, or free speech under the TCPA. This is so
because DOJO did not allege, and there is no evidence of, a “communication” by
Pickford as defined by the applicable version of the act. Based on our holding, we
need not address DOJO’s alternative argument that the commercial-speech
exemption applies. We reverse and remand for further proceedings.
Background
In its petition, DOJO alleged that an entity known as CKR Property
Management, LLC, acted as DOJO’s agent in managing the Bay House
Apartments. CKR presented two tenants with a notice of lease termination, which
stated that their lease would terminate in five days and required them to vacate
their apartment within that period.2
The tenants’ attorney mailed CKR a letter, which advised of the tenants’
intent to sue DOJO for breach of contract and fraud. A CKR representative
emailed the letter to Patrick Drake, an attorney then working for the law firm
Hoover Slovacek. In the email, CKR noted that it attached a copy of the letter and
a copy of the lease. CKR’s representative concluded the email by stating, “[p]lease
let me know what I need to do from here on.” According to DOJO, Drake
1
Tex. Civ. Prac. & Rem. Code §§ 27.001-.011.
2
According to evidence presented with Pickford’s TCPA motion to dismiss, management
deemed the unit uninhabitable due to a recent natural disaster or catastrophe.
2
responded that he would render legal services on DOJO’s behalf and Drake agreed
to draft a response to the letter.
Several months after CKR emailed the tenants’ letter to Drake, the tenants
sued DOJO in Harris County District Court.3 DOJO filed a third-party petition
against CKR and Hoover Slovacek, and the trial court severed those claims into a
separate action.4 Appellee Pickford, another of Hoover Slovacek’s lawyers,
represented Hoover Slovacek in the severed proceeding. DOJO later dismissed its
claims against Hoover Slovacek in that action. DOJO settled the tenants’ claims.
DOJO then filed the present lawsuit against Drake, Hoover Slovacek, and
Pickford. DOJO contended that Drake, by representing he would take legal action
on DOJO’s behalf with respect to the tenants’ claims, created an implied attorney-
client relationship with DOJO “via DOJO’s agent, CKR.” DOJO alleged that
Drake, Hoover Slovacek, and Pickford failed to provide timely notice to DOJO of
the tenants’ claims despite having received the tenants’ notice letter and a demand
letter stating they would sue DOJO. Further, DOJO alleged that neither Pickford
nor Drake took affirmative steps to correct DOJO’s understanding regarding the
agreement to provide legal services on DOJO’s behalf regarding the tenants’
claims.
DOJO asserted claims for breach of contract and professional negligence. In
support of its contract claim, DOJO alleged that “Patrick Drake contracted with
DOJO to be its registered agent of service. As such, Drake had an affirmative duty
to forward all notices and demands to DOJO.” Further, DOJO contended that all
three defendants “breached their contractual duties by failing to send all notices
3
Cause number 2017-63226, Moises Penaloza and Maria Sepulveda Ramos v. DOJO
Bay House, LLC, in the 151st Judicial District Court.
4
Cause number 2017-63226-A, DOJO Bay House, LLC v. Hoover Slovacek, LLP, in the
151st Judicial District Court.
3
and demands to DOJO.” According to DOJO, the defendants’ breach caused
DOJO to incur legal expenses to defend the tenants’ lawsuit, including a settlement
“at a value much greater than that of the lawsuit, pre-litigation.”
In support of its professional negligence claim, DOJO alleged that all three
defendants “committed professional malpractice and violated the State Bar of
Texas professional standards.” Again, the only damage alleged is DOJO’s cost of
defense and a settlement at an amount allegedly greater than it would have been
had the defendants timely notified DOJO of the tenants’ pre-suit letter.
Though DOJO sued Drake, Hoover Slovacek, and Pickford, this appeal
concerns only the claims against Pickford. In his motion to dismiss under the
TCPA, Pickford argued that all of DOJO’s claims against him were not based on
the tenants’ lawsuit but rather emanated from another lawsuit arising out of
DOJO’s termination of its management agreement with CKR.5 As Pickford
argued, “all of DOJO’s claims against Pickford emanate directly and solely from
his legal representation of his clients, CKR (in the unrelated Lawsuit against
Longoria), and [Hoover Slovacek] (in the Prior Lawsuit).” This legal
representation, according to Pickford, constituted an exercise of his rights to free
speech, association, and petition under the TCPA. Pickford asserted that “[t]he
allegations made in CKR’s Lawsuit against Longoria, and the communication of
said allegations between CKR and its lead counsel Pickford . . . constitute an
‘exercise of the right of free speech’ of CKR and Pickford[,] which right was
exercised between CKR’s [sic] and attorney Pickford.” Pickford also contended
that his representation of CKR in the Longoria suit was an exercise of his “right to
5
While the tenants’ suit was pending, DOJO terminated its contract with CKR and hired
a new management company. DOJO retained several former CKR employees, including one
named Denise Longoria. CKR sued Longoria for breach of her employment agreement.
Pickford represented CKR in that suit, which was submitted to arbitration.
4
associate with CKR” and that “the Lawsuit against Longoria itself invokes the
right to petition.”
Pickford attached his affidavit and other evidence to his motion to dismiss.
In his affidavit, Pickford denied an attorney-client relationship with DOJO,
particularly during the time the tenants’ attorney first mailed the notice letter to
CKR. Pickford averred that he had never performed legal work on DOJO’s behalf;
that CKR never asked him to perform legal work on DOJO’s behalf; and that he
had no knowledge of the tenants identified in the tenants’ lawsuit, or of their
claims, or of the lawsuit itself, until December 2017—which was approximately
nine months after the date the tenants’ first notice letter was emailed to Drake.
DOJO responded to Pickford’s motion to dismiss and argued that the TCPA
did not apply. DOJO asserted that Pickford’s motion mischaracterized DOJO’s
petition by focusing on the “completely irrelevant” Longoria and Hoover Slovacek
lawsuits, when DOJO’s claims against Pickford instead were based on his alleged
failure to timely provide notice of the tenants’ claims. DOJO did not attach any
evidence to its response.
The trial court granted Pickford’s motion to dismiss and then severed
DOJO’s claims against Pickford from the remaining claims, thus creating a final
judgment. In the final judgment, the court dismissed DOJO’s claims against
Pickford with prejudice and awarded Pickford attorney’s fees. The court did not
assess sanctions against DOJO. DOJO appeals the dismissal, and Pickford appeals
the failure to award sanctions.
Issues Presented
In the first part of its argument, DOJO argues that the TCPA does not apply
to its claims against Pickford because they fall within the act’s commercial-speech
5
exemption. Alternatively, DOJO contends that Pickford did not demonstrate the
act’s applicability because he failed to show that DOJO’s action is based on,
relates to, or is in response to Pickford’s exercise of the right of free speech, the
right of association, or the right to petition. We address only DOJO’s second issue
because we conclude it is dispositive. See Tex. R. App. P. 47.1.
Analysis
A. Relevant law and standard of review
The TCPA contemplates an expedited dismissal procedure applicable to
claims brought to intimidate or silence a defendant’s exercise of the rights to
petition, speak freely, associate freely, and otherwise participate in government to
the maximum extent permitted by law. See Creative Oil & Gas, LLC v. Lona Hills
Ranch, LLC, 591 S.W.3d 127, 132 (Tex. 2019); ExxonMobil Pipeline Co. v.
Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam). The TCPA establishes a
three-step process for resolving a motion for expedited dismissal. Castleman v.
Internet Money Ltd., 546 S.W.3d 684, 691 (Tex. 2018) (per curiam). But we can
dispose of today’s case without proceeding beyond the first step. Under the
TCPA’s former version, applicable here, a party invoking the act to dismiss a legal
action must meet an initial burden to show by a preponderance of the evidence that
the action “is based on, relates to, or is in response to” the moving party’s exercise
of the right of free speech, right to petition, or right of association.6 Tex. Civ. Prac.
& Rem. Code §§ 27.003(a); 27.005(b); see also Coleman, 512 S.W.3d at 898.
6
The legislature amended the TCPA in 2019. See Act of May 17, 2019, 86th Leg., R.S.,
ch. 378, 2019 Tex. Gen. Laws 684. The 2019 amendments do not apply to this case, which was
filed prior to the effective date of the amendments. See id. §§ 11-12, 2019 Tex. Gen. Laws at
687 (providing that amendments apply to actions filed on or after September 1, 2019). We refer
to the TCPA version applicable to this dispute.
6
As formerly defined, the exercise of a protected right includes:
• a communication between individuals who join together to collectively
express, promote, pursue, or defend common interests, Tex. Civ. Prac. &
Rem. Code § 27.001(2) (association);
• a communication made in connection with a matter of public concern, id.
§ 27.001(3) (speech); and
• a communication in, or pertaining to, or in connection with, certain
statutorily identified legislative, executive, judicial, or other
governmental proceedings, id. § 27.001(4) (petition).
All of these rights are predicated on a “communication,” which means “the
making or submitting of a statement or document in any form or medium,
including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). The
Supreme Court of Texas has held that the TCPA may protect both public and
private communications. See Coleman, 512 S.W.3d at 899 (discussing Lippincott
v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam)).
We construe the TCPA liberally to effectuate its purpose and intent fully.
See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018);
Enterprise Crude GP LLC v. Sealy Partners, LLC, 614 S.W.3d 283, 293-94 (Tex.
App.—Houston [14th Dist.] 2020, no pet.); Tex. Civ. Prac. & Rem. Code
§ 27.011(b). A court’s determination of whether claims fall within the TCPA’s
framework is subject to de novo review. See Adams, 547 S.W.3d at 894. We must
consider the relevant pleadings and any supporting or opposing affidavits “stating
the facts on which the liability or defense is based.” Tex. Civ. Prac. & Rem. Code
§ 27.006(a). We review these materials in the light most favorable to the
nonmovant. See Enterprise Crude GP, 614 S.W.3d at 294.
7
B. Application
In his motion to dismiss, Pickford argued that DOJO’s claims are based on,
related to, or in response to his exercise of all three TCPA-protected rights.
Pickford asserted that DOJO’s lawsuit was prompted by Pickford’s involvement in
the Longoria and Hoover Slovacek suits.
1. The pleadings
We begin by examining the allegations in DOJO’s petition, which are the
“best, and all sufficient evidence of the nature” of the claim. Hersh v. Tatum, 526
S.W.3d 462, 467 (Tex. 2017). “When it is clear from the plaintiff’s pleadings that
the action is covered by the Act, the defendant need show no more.” Id.In the “background” section of its petition, DOJO alleged that CKR gave the
notice of lease termination to the tenants on March 9, 2017, and that the tenants’
attorney mailed a letter to CKR the next day. In the letter, the tenants’ attorney
stated his clients’ intent to sue based on the lease termination. According to
DOJO, CKR’s agent emailed a copy of the attorney’s letter to Drake on March 28,
2017, and asked Drake to provide legal assistance. DOJO’s key allegation is that
Drake, Hoover Slovacek, and Pickford failed “to provide notice to DOJO of the
Tenants’ claims despite having received the Tenants’ notice letter and a demand
letter stating they would sue DOJO.” DOJO contended an attorney-client
relationship existed with Hoover Slovacek and that neither Pickford nor Drake
took steps to correct DOJO’s and CKR’s understanding “regarding the agreement
to provide legal services on behalf of DOJO with respect to the Tenants’ claims.”
Under the statement of its breach of contract claim, DOJO asserted that the
defendants, including Pickford, breached contractual duties by “failing to send all
notices and demands to DOJO.” DOJO did not base its contract claim on any other
8
alleged breach of duty. Additionally, DOJO alleged that the defendants committed
professional malpractice. As damages, DOJO alleged that the defendants’ breach
of duties caused it to incur legal expenses in defending the tenants’ lawsuit,
including the cost to settle the suit at an amount greater than what otherwise could
have been achieved had the defendants provided timely notice of the attorneys’
letter.
DOJO’s petition does not allege that Pickford made a “communication”
concerning the tenants’ claims or the notice letter. Rather, it alleges that Pickford
and the other defendants failed to communicate when they had a duty to do so.
DOJO’s claims are predicated on Pickford’s alleged failure to communicate. As
this court has determined, the TCPA rights to petition and of association and free
speech are not implicated when the plaintiff-nonmovant’s claims do not allege
“communications.”7 Other courts are in accord.8 The TCPA defines a
7
See Allied Orion Grp., LLC v. Pitre, No. 14-19-00681-CV, 2021 WL 2154065, at *3-4
(Tex. App.—Houston [14th Dist.] May 27, 2021, no pet.) (mem. op.) (because nonmovant’s
lawsuit did not assert “any claims based upon the making or submitting of any statement or
document,” TCPA did not apply); see also Neely v. Allen, No. 14-19-00706-CV, 2021 WL
2154125, at *8-10 (Tex. App.—Houston [14th Dist.] May 27, 2021, no pet. h.) (mem. op.)
(holding TCPA did not apply because alleged conduct was not a communication); Sanchez v.
Striever, 614 S.W.3d 233, 246 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (same).
8
See White Nile Software, Inc. v. Carrington, Coleman, Sloman & Blumenthal, LLP, No.
05-19-00780-CV, 2020 WL 5104966, at *6 (Tex. App.—Dallas Aug. 31, 2020, pet. denied)
(mem. op.) (“White Nile’s claims based on Carrington Coleman’s alleged failure to
communicate are not subject to the TCPA.”); Clayton Mountain, LLC v. Ruff, No. 11-20-00034-
CV, 2021 WL 3414754, at *7 (Tex. App.—Eastland Aug. 5, 2021, no pet.) (mem. op.); Clinical
Pathology Labs., Inc. v. Polo, No. 08-19-00067-CV, 2020 WL 4519803, at *5 (Tex. App.—El
Paso Aug. 6, 2020, no pet.); Krasnicki v. Tactical Ent., LLC, 583 S.W.3d 279, 283 (Tex. App.—
Dallas 2019, pet. denied) (because “Tactical did not allege any oral, written, audiovisual, or
electronic communications in its claims against Krasnicki” and “[t]he basis of Tactical’s claims
against Krasnicki rests solely on its assertion that Krasnicki failed to communicate with
Tactical,” claims did not fall under TCPA); see also SSCP Mgmt. Inc. v. Sutherland/Palumbo,
LLC, No. 02-19-00254-CV, 2020 WL 7640150, at *3 (Tex. App.—Fort Worth Dec. 23, 2020,
pet. denied) (mem. op. on reh’g); Ray v. Fikes, No. 02-19-00232-CV, 2019 WL 6606170, at *3
(Tex. App.—Fort Worth Dec. 5, 2019, pet. denied) (mem. op.).
9
communication as “the making or submitting of a statement or document in any
form or medium, including oral, visual, written, audiovisual, or electronic.” Tex.
Civ. Prac. & Rem. Code § 27.001(1). This definition does not include a failure to
communicate. E.g., Ray, 2019 WL 6606170, at *3.
As Pickford correctly observes, DOJO alleged in the petition’s factual
background section that “Drake and Pickford provided legal advice and other
services to CKR, and both Pickford and Drake participated in the events of which
the Tenants complain.” Homing in on those assertions, Pickford says they allege
communications and that all of his “alleged liability to DOJO is based on, relates
to, or is in response to Pickford’s provision of legal advice and services to CKR.”
While giving legal advice would typically constitute a communication, we
conclude for several reasons that these particular allegations do not show that
DOJO’s legal action is covered by the TCPA. The petition does not reference the
Longoria or Hoover Slovacek matters at all, so there is no connection from the face
of the pleading between any legal advice by Pickford and the Longoria and Hoover
Slovacek lawsuits. Moreover, even though DOJO alleged that Pickford gave legal
advice, the contract and negligence claims asserted do not reference the advice
allegedly given, nor did DOJO allege that Pickford (or anyone else) gave bad or
negligent advice. Instead, DOJO’s claims referenced only the defendants’ failure
to provide timely notice of the tenants’ claims. Further, DOJO’s alleged damages
are not linked in any way to legal advice by Pickford, but rest on the proposition
that Pickford failed to communicate the letter regarding the tenants’ potential
claims.
At this stage of the litigation, to credit Pickford’s belief that DOJO’s suit is
retaliatory would require this court to assume that DOJO filed the present suit in
response to Pickford’s involvement in the Longoria or Hoover Slovacek matters
10
simply because DOJO’s action was later-filed. But “[t]here are myriad reasons for
deciding if and when to bring a legal action against a person.” Beving v. Beadles,
563 S.W.3d 399, 408 (Tex. App.—Fort Worth 2018, pet. denied). Pickford’s
argument essentially asks that we “ignore the factual predicate as alleged in
[DOJO’s] petition and instead engage in pure speculation . . . in order to divine that
[DOJO] has artfully pleaded causes of action against [Pickford] to retaliate and
punish” Pickford for his legal representation of CKR and Hoover Slovacek. Id.We cannot simply disregard the pleaded allegations or engage in speculation,
especially considering that, at this preliminary stage, we must view DOJO’s
petition in the light most favorable to DOJO.9 See, e.g., Enterprise Crude GP, 614
S.W.3d at 294.
Pickford also suggests that we cannot accept DOJO’s petition as true
because to do so is to elevate unsworn allegations over Pickford’s evidence even
though DOJO presented no evidence supporting its claims. We have stated that a
TCPA non-movant cannot rely solely on the allegations in its petition when
meeting its prima facie burden in response to a motion to dismiss. See Buzbee v.
Clear Channel Outdoor, LLC, 616 S.W.3d 14, 28-29 (Tex. App.—Houston [14th
9
To be sure, one cannot evade the TCPA’s mechanisms by artful pleading. See Smith v.
Crestview NuV, LLC, 565 S.W.3d 793, 798 (Tex. App.—Fort Worth 2018, pet. denied).
Nevertheless, courts cannot blindly accept attempts by a TCPA movant to characterize the
plaintiff’s claims as implicating protected expression. Cook v. Simmons, No. 05-19-00091-CV,
2019 WL 5884426, at *4 (Tex. App.—Dallas Nov. 12, 2019, pet. denied) (mem. op.). This is
not an instance where the plaintiff alleges a communication but does not reveal its content, in
which case the burden is on the TCPA movant to provide evidence of its content sufficient to
demonstrate the act’s applicability. See Cook v. Kyser, No. 05-19-00311-CV, 2019 WL
5884429, at *3 (Tex. App.—Dallas Nov. 12, 2019, pet. denied) (mem. op.) (when the plaintiff-
nonmovant’s pleadings and evidence do not reference the communication or its content and the
defendant-movant does not plead or show the content of the particular communication it alleges
is protected, courts are unable to conclude that the plaintiff-nonmovant’s claims are in response
to a protected communication and subject to the TCPA); see also Simmons, 2019 WL 5884426,
at *3; Smith, 565 S.W.3d at 798; Bacharach v. Doe, No. 14-14-00947-CV, 2016 WL 269958, at
*3 (Tex. App.—Houston [14th Dist.] Jan. 21, 2016, no pet.) (mem. op.).
11
Dist.] 2020, no pet.). But Buzbee involved the evaluation of evidence at the
TCPA’s second step, after the court already determined that the TCPA applied.
We are concerned here with the act’s first step, where the supreme court has said
that the pleadings are the “best, and all sufficient evidence of the nature” of the
claim. Hersh, 526 S.W.3d at 467. Of course, this case is not like Hersh, where the
TCPA’s applicability was clear from the plaintiff’s pleading alone. Id. Here,
DOJO’s petition does not demonstrate the act’s applicability because DOJO does
not allege that Pickford made a “communication” regarding the tenants’ claims and
does not articulate damages related in any way to a communication by Pickford.
So, it was Pickford’s burden to prove the act’s applicability by a preponderance of
the evidence. See Tex. Civ. Prac. & Rem. Code §§ 27.003(a); 27.005(b). For the
reasons explained in section 2 below, we conclude he did not do so. In short,
although Pickford presented evidence of communications, he did not present
evidence that DOJO’s claims are based on, related to, or in response to the
communications he identified.
Accordingly, we first conclude that, looking solely to the petition, DOJO’s
articulated claims are not based on, related to, or in response to Pickford’s exercise
of any TCPA-protected right because DOJO did not allege that Pickford made a
communication regarding the tenants’ notice letter. Thus, we turn to whether
Pickford presented evidence with his motion to dismiss showing that he in fact
exercised his TCPA-protected rights based on communications, and that DOJO’s
claims against him are based on, related to, or in response to his exercise of those
rights.
2. The evidence
In his motion to dismiss, Pickford limited his argument and evidence to his
communications with CKR in the Longoria and Hoover Slovacek lawsuits. In
12
arguing that the TCPA applies to those communications, Pickford provided the
statutory definitions of the three protected rights and then posited that: “the
allegations made in CKR’s Lawsuit against Longoria, and the communication of
said allegations between CKR and its lead counsel Pickford, therefore, constitute
an ‘exercise of the right of free speech’”; Pickford’s role as lead counsel for CKR
in the Longoria suit “constitute[s] an ‘exercise of the right of association’ of CKR
and Pickford with each other”; and “[i]t goes without saying that the filing of the
Lawsuit against Longoria itself invokes the right to petition.”
In his affidavit, Pickford denied providing any legal advice or services to
DOJO and disavowed any attorney-client relationship with DOJO altogether.
Moreover, according to Pickford, he did not learn of the tenants’ claims until
December 2017, and the tenants’ attorney never forwarded to him any notice,
demand, or claim until April 2018. Thus, he did not identify any communication
he made regarding the tenants’ notice letter. Pickford’s affidavit and supporting
exhibits relate to communications that necessarily occurred after the events
forming the basis of DOJO’s present suit—i.e., CKR’s eviction of the tenants, the
tenants’ subsequent demand letter, and Pickford’s alleged failure to notify DOJO
of the tenants’ potential claims.10
Pickford also presented affidavits from Drake and a CKR representative,
Caroline Kane. But neither affiant identified or described a communication by
Pickford regarding the tenants’ notice letter that would be germane to DOJO’s
10
The tenants’ attorney sent CKR the demand letter in March 2017 and filed suit against
DOJO in September 2017, so any failure by Pickford to send the notice or demand to DOJO
necessarily would have occurred, if it occurred at all, between March and September 2017. CKR
sued Longoria in October 2017 and DOJO filed its third-party claim against Hoover Slovacek in
February 2018. Pickford has consistently denied having any knowledge of the tenants’ issues
with CKR until 90 days after the tenants’ lawsuit was filed and thus has provided no evidence of
any communications occurring during the relevant time period described in DOJO’s petition.
13
pleaded claims against Pickford. Significantly, neither Drake nor Kane even
mention Pickford in their respective affidavits.
Presuming the truth of all of Pickford’s evidence, his motion did not
establish that any communication occurred between him and DOJO or CKR
regarding the tenants’ claims or notice letter.
Even presuming that Pickford’s legal advice in the Longoria or Hoover
Slovacek lawsuits constituted “communications” under the TCPA, we still could
not say that DOJO’s present legal action is based on, related to, or in response to,
those communications when they did not occur until months after the tenants’
notice letter was first sent to Drake and after the tenants filed suit. See, e.g., Pierce
v. Stocks, No. 01-18-00990-CV, 2019 WL 3418513, at *5 (Tex. App.—Houston
[1st Dist.] July 30, 2019, no pet.) (mem. op.) (rejecting argument that underlying
lawsuit filed by surgeon against former administrator was filed in response to
administrator’s federal lawsuit because claims were premised on conduct that
occurred well before administrator filed her federal lawsuit); Beving, 563 S.W.3d
at 408 (rejecting argument that third-party petition was based on defendant’s
affidavit and deposition testimony because causes of action in third-party petition
arose out of facts occurring well before her affidavit and deposition). Pickford’s
evidence does not establish the necessary connection between DOJO’s claims and
Pickford’s communications.
In a footnote, Pickford asserts that he also met his evidentiary burden under
the TCPA’s third step to show by a preponderance of the evidence each element of
a valid defense to DOJO’s breach of contract and legal negligence claims. See
Tex. Civ. Prac. & Rem. Code § 27.005(d). But he does not ask this court to review
that issue, and he does not brief it. Based on our holding, we would not have cause
to address whether his contention is correct in any event because if the TCPA does
14
not apply, then we would not reach its third step. Of course, nothing about our
opinion precludes Pickford from pursuing his defenses via available procedural
mechanisms.
We thus conclude, in accordance with the controlling standard of review,
that Pickford has failed to demonstrate by a preponderance of the evidence that
DOJO’s claims are based on, related to, or are in response to Pickford’s exercise of
the right to petition, association, or free speech under the TCPA. See Marrujo v.
Wisenbaker Builder Servs., Inc., No. 01-19-00056-CV, 2020 WL 7062318, at *9-
11 (Tex. App.—Houston [1st Dist.] Dec. 3, 2020, no pet.) (mem. op.).
Accordingly, the TCPA does not apply, and the trial court erred in granting the
motion to dismiss.
Conclusion
For the above reasons, we sustain DOJO’s second issue, reverse the trial
court’s judgment, and remand the case for further proceedings. Due to our
disposition, we need not address DOJO’s first issue, in which DOJO argues that
the TCPA does not apply to its claims because of the commercial-speech
exemption. Nor need we address Pickford’s appeal seeking sanctions under
section 27.009 of the act. See Tex. R. App. P. 47.1.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Spain, and Wilson.
15