Mattress Firm, Inc. v. Bruce Levy and Terra Consulting II, LLC, Madison Development Group LLC, Oldacre McDonald, LLC and Mark McDonald, Ryan Vinson, Win-Development LLC, Owen C. Ewing and Jesse McInerny, Quattro Development, LLC and Michael Liyeos, Colliers International- Atlanta, LLC, Alexander Deitch, Preferred Realty, LLC, Chase Ventures, LLC and ABR Investment, LLC ( 2020 )

Opinion issued August 6, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00867-CV
———————————
MATTRESS FIRM, INC., Appellant
V.
ALEXANDER DEITCH, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Case No. 2017-73196
OPINION
In this case, which arises out of an alleged multiyear fraudulent scheme
involving bribes and kickbacks, Mattress Firm, Inc., sued Alexander Deitch, among
multiple other defendants who are not parties to this interlocutory appeal, for fraud,
civil conspiracy, and aiding and abetting breach of fiduciary duty. It alleged that
Deitch had been unjustly enriched, and it sought the imposition of a constructive
trust. Deitch filed counterclaims against Mattress Firm for tortious interference with
employment contract, tortious interference with prospective contracts and business
relations, and quantum meruit. Mattress Firm moved to dismiss Deitch’s tortious
interference claims under the Texas Citizens Participation Act (TCPA). The trial
court denied Mattress Firm’s motion to dismiss.
On appeal, Mattress Firm challenges the trial court’s order denying its motion
to dismiss Deitch’s counterclaims under the TCPA. Mattress Firm first argues that
the TCPA applies to Deitch’s counterclaims because his counterclaims are based on,
relate to, or are in response to Mattress Firm’s exercise of its right to free speech and
its right to petition. Mattress Firm next argues that Deitch failed to demonstrate a
prima facie case on each element of his counterclaims. Finally, Mattress Firm argues
that it established a valid defense to Deitch’s counterclaims by a preponderance of
the evidence because it was legally privileged in making the communications that
formed the basis of Deitch’s counterclaims.
We affirm.
2
Background
A. Mattress Firm’s Initial Lawsuit
Mattress Firm operates retail stores that sell mattresses and other bedding
products. Typically, Mattress Firm does not own the real property on which its retail
stores are located. Instead, independent real estate developers own the real property
and lease the premises to Mattress Firm to operate a retail store. All decisions
regarding leases for retail stores are made by Mattress Firm’s Real Estate Committee
(the Committee), which meets on a monthly basis.
In 2009, Mattress Firm began an aggressive campaign to expand its retail-
store presence nationwide. To assist in this endeavor, Mattress Firm employees
Bruce Levy and Ryan Vinson recommended that Mattress Firm engage real estate
brokerage firm Colliers International—Atlanta, LLC (Colliers Atlanta), and one of
its employees, Alexander Deitch, as a “Master Broker.” Deitch worked closely with
Levy and Vinson, and his responsibilities included “evaluating and recommending
to senior management at [Mattress Firm] which stores to open, what leases to sign,
the terms of those leases, the construction budgets to approve, what stores to renew,
and what stores to close.” Mattress Firm engaged Deitch as a broker until March 1,
2016.
In 2017, Mattress Firm sued numerous defendants, including Deitch and
Colliers Atlanta—as well as Levy, Vinson, and multiple real estate development
3
companies and their principals—alleging that the defendants had engaged in a multi-
year fraudulent scheme that involved the payment of bribes and kickbacks in an
effort to induce Mattress Firm to enter into dozens of lease agreements with
unfavorable conditions, such as above-market rental rates and long lease terms. With
respect to Deitch specifically, Mattress Firm alleged that he paid bribes and
kickbacks to Levy and Vinson in exchange for being retained as a Master Broker,
that he charged fraudulent “development fees” and “brokerage fees” to development
companies that were payable to him or entities controlled by him, and that he
received bribes and kickbacks directly from development companies. Mattress Firm
also alleged that Deitch created at least two entities that he used to purchase
properties and enter into leases with Mattress Firm, without informing the
Committee of his ownership interest in these entities. Mattress Firm alleged that, as
a result of this purportedly fraudulent scheme, Mattress Firm paid “significantly
above market rents” and “agree[d] to other unfavorable lease terms” for hundreds of
leases and that the scheme caused Mattress Firm “to misallocate resources by
opening unnecessary stores, thereby harming the sales of existing stores nearby.”
Mattress Firm asserted causes of action against Deitch for fraud, civil
conspiracy, and aiding and abetting breach of fiduciary duty. It alleged that Deitch,
along with Levy and Vinson:
knowingly made material misrepresentations and omissions to
[Mattress Firm], including but not limited to misrepresenting material
4
information about the deals under consideration by failing to disclose
the existence of the hidden kickbacks, operating through a network of
single purpose LLCs, partnerships, or other entities intended to conceal
the unlawful activity, and by falsely representing they were not paying
kickbacks, which served to increase the rents [Mattress Firm] would
pay, providing inaccurate comparable lease information, and by hiding
their ownership interests and self-dealing in multiple [Mattress Firm]
store developments.
It also alleged that Deitch and the other defendants “knowingly, willingly, and
unlawfully did conspire, combine, confederate, and agree together to defraud”
Mattress Firm. Mattress Firm further alleged that Levy and Vinson, as Mattress Firm
employees, held “positions of trust and confidence” at Mattress Firm and owed
fiduciary duties to the company, and Deitch and the other defendants “illegally
capitalized on the positions of authority held by Levy and Vinson for their own
personal gain” and aided Levy and Vinson in breaching their duties. Mattress Firm
also sought the imposition of a constructive trust and disgorgement of ill-gotten
gains, in the form of commissions and above-market rent payments to entities
controlled by Deitch, under a theory of unjust enrichment.
B. Deitch’s Counterclaims Against Mattress Firm
Deitch filed counterclaims against Mattress Firm in March 2018. He alleged
that although Mattress Firm had engaged him as a broker and labeled him as a
“Master Broker,” he had no written or verbal “Master Broker” agreement with
Mattress Firm, he was never employed by Mattress Firm, and Mattress Firm never
paid him. Deitch’s counterpetition included details concerning Mattress Firm’s
5
expansion strategy—including its acquisitions of competing mattress retailers and
its opening of new retail stores—and alleged that the purportedly fraudulent scheme
described in Mattress Firm’s lawsuit was emblematic of Mattress Firm’s corporate
culture.
Deitch asserted three counterclaims against Mattress Firm.1 He asserted a
counterclaim for tortious interference with employment contract, alleging that
Colliers Atlanta employed him under an at-will “Qualified Real Estate Agent
Agreement.” He alleged that Mattress Firm terminated his services on March 1,
2016, but as a result of its “continued investigation of Deitch and Colliers [Atlanta]
and threats of litigation,” Colliers Atlanta terminated his employment on November
2, 2017. Deitch alleged that Mattress Firm willfully and intentionally interfered with
Deitch’s employment contract with Colliers Atlanta to “scapegoat Deitch for
Mattress Firm’s reckless growth strategy.”
Deitch also asserted a counterclaim for tortious interference with prospective
contracts and business relations, alleging that Mattress Firm made “false statements
1
In addition to his two tortious interference counterclaims, Deitch also asserted a
counterclaim for quantum meruit, alleging that there was no express contract
governing his relationship with Mattress Firm and that Mattress Firm never paid
him for his brokerage services. Mattress Firm did not move to dismiss Deitch’s
quantum meruit claim under the TCPA, and both parties agree that the quantum
meruit counterclaim is not at issue in this interlocutory appeal.
6
about Deitch and [broadcast] those false statements and accusations to as wide a net
as possible.” Specifically, Deitch alleged:
On or about March 31, 2016, Mattress Firm directed its executives
and/or employees to send an email to multiple individuals, including
brokers, real estate developers, and the like, stating, in part, that “Alex
Deitch and Colliers International are no longer authorized as master
brokers[.] We understand many of you worked with these folks on a
regular basis and want to assure you that we don’t expect an
interruption in the way we conduct business. . . . Due to an ongoing
investigation, we are not in a position to provide any more details
around this news. . . . If you have any questions, please reach out to me
or Karrie Forbes . . . and refrain from discussions with anyone else.”
True and correct copies of at least two such emails are attached hereto
as Exhibit “A”.
Mattress Firm carefully sculpted the notice to cause the maximum harm
to Deitch.
Mattress Firm’s reference to an “ongoing investigation” is intentionally
vague and is reasonably calculated to imply a criminal or regulatory
investigation.
Mattress Firm’s email blast sought to maximize the negative impact on
Deitch by distributing it to many recipients who had no need to receive
it.
It was reasonably foreseeable that anyone receiving the email blast
would reasonably infer that the worst possible conduct had occurred.
It was reasonably foreseeable that the email blast would present Deitch
in a false light and that Deitch would suffer business, reputational, and
economic harm.
He alleged that, in June 2016, the largest real estate investment trust in the United
States fired him and Colliers Atlanta “as a result of the aforementioned email” and
that “[t]here was a reasonable probability that Deitch would reach an agreement or
7
business relationship with countless other clients but for Mattress Firm’s tortious
interference.”
C. The TCPA Proceedings
Mattress Firm moved to dismiss Deitch’s two tortious interference
counterclaims under the TCPA. Mattress Firm argued that the TCPA applied to both
of Deitch’s tortious interference counterclaims, as both counterclaims were based
upon, related to, or were in response to Mattress Firm’s exercise of its right to
petition and its right of free speech. It argued that the communications made by
Mattress Firm to Colliers Atlanta during the course of its investigation of the alleged
fraudulent scheme and while attempting to settle Mattress Firm’s underlying
lawsuit2 related to Mattress Firm’s right to petition the trial court for relief and
related to a matter of public concern—Deitch’s brokerage services in the
marketplace. It argued that the March 31, 2016 email described in Deitch’s
counterclaim was made to its vendors to give notice that Deitch—along with Levy,
Vinson, and Colliers Atlanta—were no longer authorized to act on Mattress Firm’s
behalf and to “facilitate a smooth transition to a new team of real estate
professionals.” It argued that any specific statements concerning Deitch also related
2
Neither Mattress Firm nor Deitch have identified, with any specificity, what
statements Mattress Firm purportedly made to Colliers Atlanta during the
investigation and settlement negotiations.
8
to his services in the marketplace and thus constituted an exercise of Mattress Firm’s
right of free speech.
Mattress Firm also argued that Deitch could not demonstrate, by clear and
specific evidence, a prima facie case for each essential element of his tortious
interference claims. Specifically, with respect to Deitch’s tortious interference with
employment contract claim, Mattress Firm argued that Deitch could not establish
that Mattress Firm committed any willful or intentional act that interfered with
Deitch’s employment with Colliers Atlanta. Nor could Deitch present evidence
establishing that Mattress Firm’s actions caused his termination from Colliers
Atlanta or that he sustained any damages as a result of Mattress Firm’s conduct.
With respect to Deitch’s tortious interference with prospective business
relations claim, Mattress Firm argued that Deitch could not establish that a
reasonable probability existed that he would have entered into a particular contract,
noting that Deitch only alleged in a conclusory fashion that he had been fired from
a real estate investment trust and had lost other clients, without identifying specific
relationships that he lost as a result of Mattress Firm’s March 31, 2016 email. It also
argued that Deitch could not establish that the March 31, 2016 email was
independently tortious or unlawful, stating that Deitch could not identify anything
in the email that was false or defamatory. Mattress Firm also asserted that it sent the
March 31, 2016 email to notify its vendors that Deitch no longer worked with
9
Mattress Firm, and it did not know or intend for its email to cause Deitch to lose any
particular future business prospects. Mattress Firm also argued that Deitch could
present no evidence that the email caused him any actual losses, and thus he could
not establish damages.
Finally, Mattress Firm argued that even if Deitch could establish a prima facie
case on each essential element of his tortious interference claims, the trial court still
should dismiss the counterclaims because Mattress Firm could establish a valid
defense to the claims. Specifically, Mattress Firm argued that its conduct was legally
privileged because, in Texas, employers “are privileged in investigating reasonably
credible allegations of dishonesty of their employees.” It argued:
Deitch claims that [Mattress Firm] interfered with his employment
contract with Colliers [Atlanta] by continuing its investigation and
threatening litigation. [Mattress Firm], however, has a legal right to
investigate reasonably credible allegations of wrongdoing by its
employees. Almost all of Deitch’s wrongdoing in this case also
involved [Mattress Firm] employees Levy and Vinson. In investigating
Levy and Vinson, [Mattress Firm] was simply exercising its rights in
good faith. Its conduct was therefore privileged.
Mattress Firm also argued that it had a constitutional right to pursue its claims in
court and that its “discussions about and decision to pursue litigation against”
Deitch, among others, “was a valid exercise of [Mattress Firm’s] constitutional
rights, not a tortious interference with Deitch’s existing and prospective contracts.”
As supporting evidence, Mattress Firm attached two emails sent on March 31,
2016 (“the March 31 emails” or “the Emails”). One email was from Sammy Butera,
10
Mattress Firm’s Vice President of Construction & Facilities, and the other email was
from Adam Benigni, Mattress Firm’s Vice President of Real Estate & Lease
Administration. Both of these emails were sent to an undisclosed list of recipients.
Butera’s email stated:
I’m writing today to let you know [of] a senior leadership change in our
Real Estate & Construction department. Bruce Levy & Ryan Vinson
are no longer employees of Mattress Firm. Additionally, Alex Deitch
and Colliers International are no longer authorized as master brokers[.]
We understand many of you worked with these folks on a regular basis
and want to assure you that we don’t expect an interruption in the way
we conduct business. We have a talented and committed team of real
estate & construction professionals who are still here and we expect
them to shine during this rebuilding. This department will now report
up through Karrie Forbes, our Chief Business Officer. Karrie and I will
work closely with our real estate leadership, Adam Benigni, Mike
Foster[,] and others to help ensure continuity and a quick rebuilding
process for this function.
Due to an ongoing investigation, we are not in a position to provide any
more details around this news. However, as soon as we have more
details around what the new structure of this function looks like, we
will pass those along.
If you have any questions, please reach out to me or Karrie
Forbes . . . and refrain from discussions with anyone else.
Benigni’s email was substantively identical to Butera’s email, but in Benigni’s
email, the paragraph referencing “an ongoing investigation” included the following
sentence at the end: “We may require your assistance with this investigation and we
expect your full cooperation.”
Mattress Firm also attached as evidence an affidavit from Butera and an
affidavit from Maurice Edwards, who worked as Senior Vice President of Enterprise
11
Risk for Mattress Firm during the 2015–2017 time period. Butera averred that the
purpose of the Emails was “to advise vendors in the field of a leadership change in
the real estate and construction department at Mattress Firm.” Butera stated:
The purpose of the communication was twofold. First, we wanted to
facilitate a smooth transition to the new real estate professionals who
would be conducting the real estate and construction business of
Mattress Firm on a going forward basis. Second, we wanted to make
sure that those working on our behalf knew that the identified
individuals were no longer authorized to act on our behalf.
Moreover, at this time, we were receiving a lot of inquiries as to the
reason for the departure of our former employees. We did not want to
discuss the details of their departure, and therefore I advised the
recipients of these emails that due to our ongoing investigation, we
would not be able to provide any more details concerning the news.
Edwards averred that he was involved in investigating the facts relating to Mattress
Firm’s underlying lawsuit. He stated that, in March 2017, Mattress Firm’s counsel
advised Colliers Atlanta that Mattress Firm had authorized filing a lawsuit against
Colliers Atlanta. Edwards participated in a meeting with representatives from
Colliers Atlanta “to explore settlement” that occurred in Toronto in June 2017, but
“we were unable to reach a settlement and I had no further communications with
representatives of Colliers.”
In response, Deitch argued, first, that the TCPA did not apply to his tortious
interference counterclaims. Deitch argued that the communications that formed the
basis of his counterclaims did not address “matters of public concern,” but were
instead connected to a business dispute that did not implicate the TCPA. He
12
contended that it was inconsistent for Mattress Firm to argue that the Emails were a
communication on a matter of public concern while also stating, in Butera’s
affidavit, that the purpose of the Emails was simply to notify its vendors of an
internal leadership change. Deitch pointed to deposition testimony from Butera, in
which he testified that the Emails were “what we would normally do in the course
of business” to communicate with vendors and that he did not “have an opinion about
how good of a job [Deitch] did.” Butera testified that he was not involved with the
investigation mentioned in the Emails, and at the time he sent his email, he did not
know what kind of investigation was occurring or any specifics about the
investigation. Butera was not familiar with Deitch’s work for Mattress Firm, and he
had no opinion on the quality of Deitch’s work.
Deitch also pointed to the deposition testimony of Karrie Forbes, who became
Mattress Firm’s Chief Operating Officer on April 1, 2016, and who was involved in
drafting the language of the Emails. She testified that she had no personal knowledge
concerning the quality of Deitch’s brokerage work for Mattress Firm and that the
Emails were necessary for Mattress Firm to let its “core partners” know of the
organizational change so they would know that they “should not call [Deitch] or
Colliers.” With respect to the “investigation” mentioned in the Emails, Forbes
testified that Mattress Firm was investigating “internal changes,” specifically the
“change with Bruce [Levy] and Ryan [Vinson].” She stated, “We knew something
13
was wrong [in the real estate department], so we knew that we needed to make some
changes,” but she also stated that she did not know specific information about the
investigation.
Deitch also argued that Mattress Firm’s argument that Deitch’s counterclaims
implicated its right to petition, as defined by the TCPA, was unmeritorious. He
argued that Mattress Firm’s conduct that formed the basis of his counterclaims
occurred “approximately a year and a half before Mattress Firm even initiated its
lawsuit.” He also argued that Mattress Firm’s emails about an “ongoing
investigation” and its communications to Colliers Atlanta could not be used to bring
Mattress Firm’s conduct within the definition of “right to petition” because only
communications pertaining to pending judicial proceedings, not potential judicial
proceedings, fell within the statutory definition of “right to petition.”
Next, Deitch argued that Mattress Firm’s motion to dismiss should be denied
because he could establish a prima facie case on each element of his tortious
interference claims. With respect to his tortious interference with employment
contract claim, Deitch pointed to Mattress Firm’s own motion to dismiss
acknowledging that it continued investigating Deitch for more than a year after it
had ended the brokerage relationship. He also pointed to Edwards’s affidavit and
deposition testimony indicating that Mattress Firm terminated its relationship with
Deitch and Colliers Atlanta on March 1, 2016, that Mattress Firm continued its
14
investigation, that Mattress Firm discussed potential litigation and engaged in
settlement discussions with Colliers Atlanta, and that Colliers Atlanta terminated
Deitch’s employment soon after Mattress Firm filed suit. Deitch also relied upon his
own affidavit, in which he averred that Mattress Firm wrongfully pressured Colliers
Atlanta into terminating his employment. Attached to this affidavit was a letter,
dated November 2, 2017, that Deitch received from the president and CEO of
Colliers Atlanta concerning the termination of his employment contract. The letter
stated:
You have refused to comply with our request that you appear on
November 2, 2017, and participate in [Colliers Atlanta’s] internal
investigation of Mattress Firm’s allegations and related threat of
litigation. Based upon the information currently available to us,
Colliers . . . is terminating your [employment agreement] and
association with Colliers for cause . . . .”
Deitch averred that “it was exactly Mattress Firm’s interference and nothing else that
lead to [his] termination.”
With respect to his tortious interference with prospective business relations
claim, Deitch pointed to the allegations in his counterclaim and the Emails
themselves, which acknowledged that many of the recipients “worked with these
folks [i.e., Levy, Vinson, Deitch] on a regular basis.” He also attached emails that
Butera received in response to the March 31, 2016 email, including one in which the
sender expressed surprise over the news and asked what had happened, and another
in which the sender recommended “a really good (honest) young [real estate] broker”
15
who was familiar with Mattress Firm and some of its personnel. He attached another
email sent to Edwards in June 2016 in which the sender informed Edwards that
Deitch had tried to get in touch with him, but the sender would no longer
communicate with Deitch. Deitch also relied upon his affidavit, in which he averred
that he lost numerous contracts and business opportunities as a result of the Emails,
including employment with a real estate investment trust “due to [Colliers Atlanta’s]
previous involvement with Mattress Firm.” Deitch identified five other clients who
terminated their relationships with Deitch or refused to engage in further contact
with Deitch after March 31, 2016.
After a hearing, the trial court denied Mattress Firm’s motion to dismiss
without stating the basis for the denial. Mattress Firm then filed this interlocutory
appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.008; id. § 51.014(a)(12)
(providing that person may appeal from interlocutory order that denies TCPA
motion to dismiss).
Texas Citizen’s Participation Act
In three issues on appeal, Mattress Firm contends that the trial court erred in
denying its motion to dismiss Deitch’s counterclaims under the TCPA because
(1) the TCPA applies to Deitch’s counterclaims; (2) Deitch failed to establish a
prima facie case on each element of his counterclaims; and (3) Mattress Firm
16
demonstrated a valid defense to the counterclaims by a preponderance of the
evidence.
A. Standard of Review
We review de novo a trial court’s ruling on a TCPA motion to dismiss. Jordan
v. Hall, 510 S.W.3d 194, 197 (Tex. App.—Houston [1st Dist.] 2016, no pet.). In
conducting our review, we review the pleadings and the evidence in a light favorable
to the nonmovant. Id.
Whether the TCPA applies to a particular claim is an issue of statutory
interpretation that we review de novo. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex.
2018); Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 213 (Tex. App.—Houston
[1st Dist.] 2014, no pet.). When construing a statute, our objective is to determine
and give effect to the Legislature’s intent. Youngkin, 546 S.W.3d at 680 (quoting
City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)). In
determining legislative intent, we look to the plain meaning of the statute’s words,
which is the best expression of legislative intent “unless a different meaning is
apparent from the context or the plain meaning leads to absurd or nonsensical
results.” Cheniere Energy, 449 S.W.3d at 213 (quoting Molinet v. Kimbrell, 356
S.W.3d 407, 411 (Tex. 2011)); see Youngkin, 546 S.W.3d at 680 (stating that
“enacted language of the statute” is “[t]he ‘surest guide to what lawmakers
intended’”) (quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 463
17
(Tex. 2009)). “We must endeavor to read the statute contextually, giving effect to
every word, clause, and sentence.” In re Office of Attorney Gen., 422 S.W.3d 623,
629 (Tex. 2013) (orig. proceeding); Cheniere Energy, 449 S.W.3d at 213 (stating
that we must not interpret statute in manner that renders any part of it meaningless
or superfluous) (quoting Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271
S.W.3d 238, 256 (Tex. 2008)). Although we must “adhere to legislative definitions
of terms when they are supplied,” we must also “construe individual words and
provisions in the context of the statute as a whole.” Youngkin, 546 S.W.3d at 680–
81.
B. TCPA Statutory Framework
The Texas Legislature enacted the TCPA to “encourage and safeguard the
constitutional rights of persons to petition, speak freely, associate freely, and
otherwise participate in government to the maximum extent permitted by law and,
at the same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.”3 TEX. CIV. PRAC. & REM. CODE ANN. § 27.002. The TCPA
3
In the 2019 legislative session, the Texas Legislature amended several provisions of
the TCPA. These amended provisions became effective on September 1, 2019, and
apply to legal actions filed on or after that date. Act of May 17, 2019, 86th Leg.,
R.S., ch. 378, § 12, 2019 Tex. Sess. Law Serv. 684, 687. For actions filed before
September 1, 2019, the action “is governed by the law in effect immediately before
that date, and that law is continued in effect for that purpose.” Id. This action was
filed before September 1, 2019. All citations to the TCPA in this opinion are to the
prior version of the Act.
18
“protects citizens from retaliatory lawsuits that seek to intimidate or silence them on
matters of public concern.” In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015).
A defendant in a legal action that is based on, related to, or in response to the
defendant’s exercise of the right of free speech, right to petition, or right of
association, as those rights are statutorily defined, may file a motion to dismiss the
action. TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a); Dallas Morning News, Inc.
v. Hall, 579 S.W.3d 370, 376 (Tex. 2019). The TCPA defines “[e]xercise of the right
of free speech” as a “communication made in connection with a matter of public
concern,” which includes an issue related to, among other things, a good, product,
or service in the marketplace. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3), (7).
The Act defines “[e]xercise of the right to petition” as including, among other things,
“a communication in or pertaining to” a judicial proceeding and “any other
communication that falls within the protection of the right to petition government
under the Constitution of the United States or the constitution of this state.” Id.
§ 27.001(4)(A)(i), (E). “Communication” is broadly defined as including “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).
Under the TCPA’s burden-shifting framework, the movant bears the initial
burden to establish, by a preponderance of the evidence, that the legal action is based
on, related to, or in response to the party’s exercise of the right of free speech, right
19
to petition, or right of association. Id. § 27.005(b); Hall, 579 S.W.3d at 376. If the
movant makes that showing, the burden shifts to the nonmovant—the party who
brought the action—to establish, by clear and specific evidence, a prima facie case
for each essential element of the claim in question. TEX. CIV. PRAC. & REM. CODE
ANN. § 27.005(c); Hall, 579 S.W.3d at 376. Even if the nonmovant meets his burden
to establish a prima facie case, the trial court must dismiss the action if the movant
establishes, by a preponderance of the evidence, each essential element of a valid
defense to the nonmovant’s claim. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d);
Hall, 579 S.W.3d at 376. When determining the motion to dismiss, the trial court
considers the pleadings and any supporting and opposing affidavits. TEX. CIV. PRAC.
& REM. CODE ANN. § 27.006(a); D Magazine Partners, L.P. v. Rosenthal, 529
S.W.3d 429, 434 (Tex. 2017). The trial court may also allow, upon a showing of
good cause, “specified and limited discovery relevant to the motion.” TEX. CIV.
PRAC. & REM. CODE ANN. § 27.006(b); Lane v. Phares, 544 S.W.3d 881, 889 n.1
(Tex. App.—Fort Worth 2018, no pet.) (considering defendant’s deposition after
trial court allowed discovery relevant to TCPA motion to dismiss).
Although the TCPA defines neither “prima facie case” nor “clear and specific
evidence,” the Texas Supreme Court has held that “prima facie case” means
“evidence that is legally sufficient to establish a claim as factually true if it is not
countered.” S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847
20
(Tex. 2018); Lipsky, 460 S.W.3d at 590. That is, a prima facie case is the “minimum
quantum of evidence necessary to support a rational inference that the allegation of
fact is true.” Elliott, 564 S.W.3d at 847 (quoting Lipsky, 460 S.W.3d at 590). “Clear”
means “unambiguous, sure, or free from doubt,” and “specific” means “explicit or
relating to a particular named thing.” Id. (quoting Lipsky, 460 S.W.3d at 590). In
establishing a prima facie case, the nonmovant may rely on circumstantial evidence
“unless ‘the connection between the fact and the inference is too weak to be of help
in deciding the case.’” Hall, 579 S.W.3d at 377 (quoting Lipsky, 460 S.W.3d at 589).
Conclusory statements, however, are not probative and will not suffice to establish
a prima facie case. Serafine v. Blunt, 466 S.W.3d 352, 358 (Tex. App.—Austin 2015,
no pet.) (quoting Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs.,
Inc., 441 S.W.3d 345, 355 (Tex. App.—Houston [1st Dist.] 2013, pet. denied)). The
nonmovant need not present direct evidence of damages, “but the evidence must be
sufficient to allow a rational inference that some damages naturally flowed from the
defendant’s conduct.” Elliott, 564 S.W.3d at 847.
C. Analysis
1. Whether the TCPA applies to Deitch’s counterclaims
Mattress Firm first contends that the TCPA applies to Deitch’s counterclaims
because both of his tortious interference claims are based on, related to, or in
response to Mattress Firm’s exercise of its right of free speech. Mattress Firm also
21
contends that Deitch’s tortious interference with employment contract claim is based
on, related to, or in response to Mattress Firm’s exercise of its right to petition.
Deitch asserted two counterclaims against Mattress Firm. With respect to his
tortious interference with employment contract claim, Deitch alleged that, “[d]ue to
Mattress Firm’s continued investigation of Deitch and Colliers [Atlanta] and threats
of litigation, Deitch was ultimately terminated by Colliers on November 2, 2017.”
With respect to his tortious interference with prospective contracts and business
relations, Deitch alleged that Mattress Firm made “false statements about Deitch and
[broadcast] those false statements and accusations to as wide a net as possible.”
Specifically, Deitch alleged that on March 31, 2016, Mattress Firm personnel sent
two emails to an undisclosed list of recipients, including vendors, brokers, and real
estate developers, that stated, among other things, that Deitch and Colliers Atlanta
were “no longer authorized as master brokers” and that there would be a leadership
change and a transition period in Mattress Firm’s real estate department. The Emails
further stated, “Due to an ongoing investigation, we are not in a position to provide
any more details around the news.” Deitch alleged that Mattress Firm’s statement
about an “ongoing investigation” was deliberately vague and implied “a criminal or
regulatory investigation,” thus making it reasonably foreseeable that recipients of
the Emails would “infer that the worst possible conduct had occurred” and that the
Emails would “present Deitch in a false light.”
22
a. Exercise of right of free speech
We first address whether Mattress Firm established, by a preponderance of
the evidence, that Deitch’s claims were based on, related to, or in response to
Mattress Firm’s exercise of its right of free speech. As stated above, the TCPA
defines “[e]xercise of the right of free speech” as “a communication made in
connection with a matter of public concern” and defines “[m]atter of public concern”
as including “an issue related to”:
(A) health or safety;
(B) environmental, economic, or community well-being;
(C) the government;
(D) a public official or public figure; or
(E) a good, product, or service in the marketplace.
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3), (7). In arguing that Deitch’s
counterclaims involve a communication made in connection with a matter of public
concern, Mattress Firm focuses on the fifth subpart of the definition of “matter of
public concern”—“a good, product, or service in the marketplace.”
Private communications made in connection with a matter of public concern
fall within the statutory definition of “exercise of the right of free speech.” Lippincott
v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam); Dyer v. Medoc
Health Servs., LLC, 573 S.W.3d 418, 427–28 (Tex. App.—Dallas 2019, pet. denied).
The TCPA does not require the communication to specifically mention concerns
23
about a service in the marketplace, nor does it require more than a tangential
relationship to such an issue. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d
895, 900 (Tex. 2017) (per curiam). “[R]ather, TCPA applicability requires only that
the defendant’s statements are ‘in connection with’” issues related to “identified
matters of public concern chosen by the Legislature.” Id.; Fawcett v. Rogers, 492
S.W.3d 18, 25 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (stating that “private
nature of the communications” that were basis of plaintiff’s defamation suit “does
not affect the applicability of” TCPA to plaintiff’s claims). However, this is not the
end of the inquiry into the applicability of the TCPA to private communications.
In Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, the Texas Supreme
Court recently construed the “good, product, or service in the marketplace” category
of “matters of public concern,” focusing on the “in the marketplace” modifier and
its impact on the TCPA’s applicability to disputes and transactions that are
essentially private in nature. 591 S.W.3d 127 (Tex. 2019). In that case, Lona Hills
Ranch entered into an oil and gas lease with Creative Oil & Gas, and a related entity,
Creative Oil & Gas Operating, LLC, operated a producing well on the lease. See id.
at 130. Lona Hills Ranch sued both Creative entities for trespass and trespass to try
title, arguing that the lease had been terminated due to cessation in production. Id.
The Creative entities counterclaimed, asserting that (1) Lona Hills Ranch had falsely
told third-party purchasers of production from the lease that the lease had expired
24
and payments on the purchases should stop, and (2) Lona Hills Ranch had breached
the lease by filing suit and bringing an administrative action relating to the lease
before the Texas Railroad Commission. Id. Lona Hills Ranch moved to dismiss the
counterclaims under the TCPA, but this motion was denied by operation of law. Id.
The Austin Court of Appeals reversed the denial, holding, in relevant part, that the
TCPA applied because Lona Hills Ranch’s communications to third-party
purchasers were “an exercise of the right of free speech.” Id. at 130–31. The Texas
Supreme Court granted the Creative entities’ petition for review.
Before the Texas Supreme Court, Lona Hills Ranch argued that the TCPA
applied to its communications to third parties regarding the alleged termination of
the lease because the communications involved the lease and oil and gas products
produced pursuant to the lease that were “a good, product, or service in the
marketplace.” Id. at 134. The Texas Supreme Court noted that “nearly all contracts
involve ‘a good, product, or service,’” but the TCPA “refers to a ‘good, product, or
service in the marketplace,’” and thus the statute “does not encompass every ‘good,
product, or service,’ but only those ‘in the marketplace.’” Id. (quoting TEX. CIV.
PRAC. & REM. CODE ANN. § 27.001(7)). The court then recited well-established
canons of statutory construction, namely, that phrases in a statute, if possible, must
not be treated as surplusage and that, if reasonable and possible, every word in a
statute is presumed to have a purpose and should be given effect. Id. (citing Coleman,
25
512 S.W.3d at 899, Cont’l Cas. Ins. Co. v. Functional Restoration Assocs., 19
S.W.3d 393, 402 (Tex. 2000), and Tex. Workers’ Comp. Ins. Fund v. Del Indus.,
Inc., 35 S.W.3d 591, 593 (Tex. 2000)). The court also noted that “marketplace” is
defined, albeit not in the TCPA itself, as “[t]he business environment in which goods
and services are sold in competition with other suppliers.” Id. (quoting BLACK’S LAW
DICTIONARY (11th ed. 2019)).
The Texas Supreme Court stated:
The “in the marketplace” modifier suggests that the communication
about goods or services must have some relevance to a wider audience
of potential buyers or sellers in the marketplace, as opposed to
communications of relevance only to the parties to a particular
transaction.
Given the “in the marketplace” modifier, the TCPA’s reference to “a
good, product, or service” does not swallow up every contract dispute
arising from a communication about the contract. By referring to
communications made in connection with goods, products, or services
“in the marketplace,” the definition confirms that the right of free
speech involves communications connected to “a matter of public
concern.”
Id. The phrase “good, product, or service in the marketplace” does not
“paradoxically enlarge the concept of ‘matters of public concern’ to include matters
of purely private concern.” Id. at 135. The Texas Supreme Court also pointed out
that the phrase “good, product, or service in the marketplace” does not appear in
isolation in the TCPA, but it instead appears “as part of the statute’s explanation of
what is meant by ‘matter of public concern.’” Id. The court stated that, in construing
26
“good, product, or service in the marketplace,” courts must not ignore the ordinary
meaning of “matter of public concern,” which “commonly refers to matters ‘of
political, social, or other concern to the community,’ as opposed to purely private
matters.” Id. (quoting Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017)).
Applying this construction of “good, product, or service in the marketplace”
to the case before it, the Texas Supreme Court concluded that the Creative entities’
counterclaims did not fall within the protections of the TCPA. Id. at 135–36. The
counterclaims in that case were “based on private business communications to third-
party purchasers of a single well’s production,” which allegedly caused the third-
party purchasers to refuse to pay the Creative entities “their share of the proceeds
from this production.” Id. at 136. The court stated:
The record is devoid of allegations or evidence that the dispute had any
relevance to the broader marketplace or otherwise could reasonably be
characterized as involving public concerns. On the contrary, the alleged
communications were made to two private parties concerning modest
production at a single well. These communications, with a limited
business audience concerning a private contract dispute, do not relate
to a matter of public concern under the TCPA.
Id. The court also distinguished that case from Coleman and Lippincott, both of
which involved private communications, but private communications that involved
“environmental, health, or safety concerns that had public relevance beyond the
pecuniary interests of the private parties involved.” Id. (citing Coleman, 512 S.W.3d
at 898, 901, and Lippincott, 462 S.W.3d at 509–10). The court concluded by stating,
27
“A private contract dispute affecting only the fortunes of the private parties involved
is simply not a ‘matter of public concern’ under any tenable understanding of those
words.” Id. at 137.
Creative Oil & Gas controls here. Mattress Firm’s communications with
Colliers Atlanta that form the basis of Deitch’s tortious interference with
employment contract claim are never identified with any specificity beyond Deitch’s
allegation in his counterpetition that “[d]ue to Mattress Firm’s continued
investigation of Deitch and Colliers [Atlanta] and threats of litigation, Deitch was
ultimately terminated by Colliers [Atlanta] on November 2, 2017” and Edwards’s
affidavit, in which he averred that, in March 2017, Mattress Firm’s counsel advised
Colliers Atlanta that Mattress Firm had authorized the filing of a lawsuit against it
and that Mattress Firm had engaged in settlement negotiations with Colliers Atlanta
that were unsuccessful. Presumably, during the investigation and during the
settlement negotiations, Mattress Firm and Colliers Atlanta discussed Deitch’s
allegedly fraudulent conduct and any conduct of Colliers Atlanta in furtherance of
the allegedly fraudulent scheme.4 However, these communications would have
4
In Staff Care, Inc. v. Eskridge Enters., LLC, No. 05-18-00732-CV, 2019 WL
2121116, at *4 (Tex. App.—Dallas May 15, 2019, no pet.) (mem. op.), the
defendant, in its counterclaims, set out several communications by the plaintiff that
allegedly formed the basis of its causes of action, including the following allegation:
“66. Plaintiff’s communication with existing physicians, prospective doctors, and
Eskridge is a form of commercial advertising.” The Dallas Court of Appeals noted
that “Communication number 66 (Staff Care engaging in commercial advertising)
28
occurred within the context of attempting to resolve a private business dispute with
no connection to the broader marketplace for real estate brokerage services. See id.
Similarly, Mattress Firm personnel sent the March 31 emails to an undisclosed
list of recipients. Sammy Butera, Mattress Firm’s Vice President of Construction
and Facilities, averred that he sent his email to “various vendors who provided real
estate and construction management services to Mattress Firm.” Among other
things, Butera’s email and Benigni’s substantively identical email notified the
recipients that Levy and Vinson no longer worked for Mattress Firm and that Deitch
and Colliers Atlanta were no longer authorized to act as “master brokers.” The
Emails also stated, “Due to an ongoing investigation, we are not in a position to
provide any more details around this news.” Benigni’s email further stated, “We may
require your assistance with this investigation and we expect your full cooperation.”
fails to identify the contents of the communication.” Id. at *5 n.3. The court stated,
“Without such information, a court cannot determine whether the alleged
communication falls under the statutory definitions of the TCPA.” Id.; see also
Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 477 (Tex. App.—Houston [1st Dist.]
2020, pet. filed) (en banc) (“We note that the First Amended Petition mentions that
Sinz and Appellants engaged in ‘off-book projects.’ However, the pleading does not
provide any additional information from which it can be determined whether the
conduct involved communications protected by Appellants’ right of free speech.”);
Rossa v. Mahaffey, 594 S.W.3d 618, 626 (Tex. App.—Eastland 2019, no pet.)
(“Rossa’s petition in this case does not contain any specific allegations about when,
where, and to whom the allegedly defamatory statements were made. Therefore,
Rossa’s petition, viewed ‘holistically,’ does not demonstrate that the defamation
claim falls within the TCPA because the claim is based on, related to, or in response
to Mahaffey’s exercise of the right to petition.”).
29
Butera averred that “the purpose of the [email] communication was to advise
vendors in the field of a leadership change in the real estate and construction
department at Mattress Firm.” He further averred:
The purpose of the communication was twofold. First, we wanted to
facilitate a smooth transition to the new real estate professionals who
would be conducting the real estate and construction business of
Mattress Firm on a going forward basis. Second, we wanted to make
sure that those working on our behalf knew that the identified
individuals were no longer authorized to act on our behalf.
Moreover, at this time, we were receiving a lot of inquires as to the
reason for the departure of our former employees. We did not want to
discuss the details of their departure, and therefore I advised the
recipients of these emails that due to our ongoing investigation, we
would not be able to provide any more details concerning the news.
In his deposition, Butera testified that he did not draft the language in the Emails,
but he was instructed to send his email “out to folks that we worked with closely.”
He stated that he was not involved with the investigation mentioned in the Emails,
and at the time he sent his email, he did not know what kind of investigation was
occurring or any specifics about the investigation. Butera testified in his deposition,
as he did in his affidavit, that the purpose of the Email was to let vendors know about
the change in Mattress Firm’s real estate department and that Levy, Vinson, and
Deitch were no longer authorized to work on Mattress Firm’s behalf. Butera agreed
that he was not familiar with Deitch’s work for Mattress Firm and that he did not
“have an opinion about how good of a job he did.”
30
Karrie Forbes testified in her deposition that, after discussing the matter with
Mattress Firm’s legal department, she instructed Butera to send the March 31 email,
but she did not direct him to send the email to specific individuals. She stated that
the Emails were sent because Mattress Firm “needed to let people know that there
was a change in the organization.” When asked what the “investigation” mentioned
in the Emails referred to, Forbes testified, “[t]he internal changes were what we were
investigating . . . the change with Bruce [Levy] and Ryan [Vinson].” She stated,
“We knew something was wrong [in the real estate department], so we knew that we
needed to make some changes,” but she also stated that she did not know specific
information about the investigation. Forbes testified that the Emails were necessary
because Mattress Firm’s partners needed to know that they “should not call [Deitch]
or Colliers.” She further testified that she had never met Deitch and she had never
interacted with him.
Mattress Firm sent two relevant emails to an undisclosed list of vendors on
March 31, 2016—one by Butera, and a substantively identical one by Benigni—and
both Emails addressed a leadership change that had occurred at Mattress Firm. The
Emails informed the recipients that Levy and Vinson were no longer employees of
Mattress Firm and that Deitch and Colliers Atlanta were no longer authorized as
“master brokers.” Although the Emails mentioned that “an ongoing investigation”
was occurring, the Emails did not state what kind of investigation was occurring or
31
the subject matter of the investigation. Two Mattress Firm employees testified, in an
affidavit and by deposition, that the purpose of the Emails was to notify Mattress
Firm’s close partners of the personnel change, to provide assurances during a
transition period, and to head off inquiries about the departures. The Emails did not
mention any specific conduct by Deitch, such as specific allegedly wrongful acts,
nor did the Emails express an opinion on the quality of Deitch’s work as a broker
for Mattress Firm.
We agree with Deitch that the content of the Emails is not related to his
brokerage services in the marketplace. The Emails do not explicitly discuss any of
Deitch’s conduct or his brokerage services, nor do the Emails contain an opinion
concerning the quality of his services. This is not a situation in which Mattress Firm
directed its communications to an audience of those seeking commercial brokerage
services. See, e.g., John Moore Servs., 441 S.W.3d at 353–54 (stating, in case
involving Better Business Bureau’s publicly-accessible rating of local business, that
“[t]he exercise of the right of free speech as contemplated by the TCPA includes a
person’s right to communicate reviews or evaluations of services in the
marketplace”). Instead, Mattress Firm made the communications for the purposes of
making its partners who had closely worked with Deitch, Levy, and Vinson in the
past aware that they were no longer affiliated with or employed by Mattress Firm
and that the partners should not contact Deitch, Levy, or Vinson for future Mattress
32
Firm business. These communications were therefore made and intended for a
narrow audience of people who had previously worked with Deitch, Levy, and
Vinson on a regular basis for Mattress Firm-related projects. See Creative Oil &
Gas, 591 S.W.3d at 134 (“The ‘in the marketplace’ modifier suggests that the
communication about goods or services must have some relevance to a wider
audience of potential buyers or sellers in the marketplace, as opposed to
communications of relevance only to the parties to a particular transaction.”).
As Butera’s and Forbes’s testimony makes clear, Mattress Firm’s Emails were
sent for a limited purpose to a limited group of recipients to address an internal
change in the structure of Mattress Firm’s real estate department. We conclude that
these Emails do not relate to “a good, product, or service in the marketplace” and
therefore do not relate to a matter of public concern. See id. at 136 (“These
communications, with a limited business audience concerning a private contract
dispute, do not relate to a matter of public concern under the TCPA.”); see also
Forget About It, Inc. v. BioTE Med., LLC, 585 S.W.3d 59, 68 (Tex. App.—Dallas
2019, pet. denied) (“[A] private communication made in connection with a business
dispute is not a matter of public concern under the TCPA.”); Erdner v. Highland
Park Emergency Ctr., LLC, 580 S.W.3d 269, 277 (Tex. App.—Dallas 2019, pet.
denied) (“Construing the statute to denote that all private business discussions are a
‘matter of public concern’ if the business offers a good, service, or product in the
33
marketplace or is related to health or safety is a potentially absurd result that was not
contemplated by the Legislature.”). We further conclude that Mattress Firm has not
demonstrated by a preponderance of the evidence that Deitch’s tortious interference
counterclaims are based on, related to, or in response to Mattress Firm’s exercise of
its right of free speech.
As the exercise of the right of free speech was the only basis for applicability
of the TCPA asserted by Mattress Firm with respect to Deitch’s counterclaim for
tortious interference with prospective business relations, we hold that the trial court
did not err when it denied Mattress Firm’s motion to dismiss this counterclaim. We
now turn to whether Mattress Firm demonstrated by a preponderance of the evidence
that Deitch’s tortious interference with employment contract claim was based on,
related to, or in response to Mattress Firm’s exercise of the right to petition.
b. Exercise of the right to petition
The TCPA broadly defines “exercise of the right to petition” and sets out
several ways in which a communication can implicate this right. Dyer, 573 S.W.3d
at 429; Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 283 (Tex. App.—Dallas 2015,
pet. denied). Under the TCPA, “exercise of the right to petition” includes a
communication in or pertaining to “a judicial proceeding” as well as “any other
communication that falls within the protection of the right to petition government
under the Constitution of the United States or the constitution of this state.” TEX.
34
CIV. PRAC. & REM. CODE ANN. § 27.001(4)(A)(i), (E); see U.S. CONST. amend. I
(“Congress shall make no law . . . abridging . . . the right of the people . . . to
petition the Government for a redress of grievances.”); TEX. CONST. art. I, § 27 (“The
citizens shall have the right . . . [to] apply to those invested with the powers of
government for redress of grievances or other purposes, by petition, address or
remonstrance.”). Mattress Firm, in its motion to dismiss, asserted that the
communications with Colliers Atlanta satisfied both of these statutory definitions of
“exercise of the right to petition.”
With respect to the first definition, a communication “in or pertaining to a
judicial proceeding,” courts have held that “the ordinary meaning of ‘a judicial
proceeding’ is an actual, pending judicial proceeding.” Dyer, 573 S.W.3d at 429;
QTAT BPO Sols., Inc. v. Lee & Murphy Law Firm, G.P., 524 S.W.3d 770, 778 (Tex.
App.—Houston [14th Dist.] 2017, pet. denied); Levatino v. Apple Tree Café
Touring, Inc., 486 S.W.3d 724, 728–29 (Tex. App.—Dallas 2016, pet. denied) (also
noting that Black’s Law Dictionary defines “judicial proceeding” as “any proceeding
initiated to procure an order or decree, whether in law or in equity”) (quoting Judicial
proceeding, BLACK’S LAW DICTIONARY (10th ed. 2014)). In Levatino, the Dallas
Court of Appeals refused to construe the phrase “pertaining to” as “expand[ing] the
ordinary meaning of ‘a judicial proceeding’ to include anticipated or potential future
judicial proceedings.” 486 S.W.3d at 729. Thus, to establish applicability of the
35
TCPA using this definition of “exercise of the right to petition,” courts have required
the movant to present evidence that a pending judicial proceeding existed at the time
of the communication and that the communication was made in connection with such
a proceeding. See Dyer, 573 S.W.3d at 429.
Mattress Firm presented no evidence that a judicial proceeding was pending
at the time it made the alleged communications to Colliers Atlanta. On appeal,
Mattress Firm provides no argument that the communications to Colliers Atlanta
were in or pertaining to a pending judicial proceeding. Instead, it focuses on the
second definition of “exercise of the right to petition” that it raised in its motion to
dismiss—a communication “that falls within the protection of the right to petition
government under the Constitution of the United States or the constitution of this
state.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4)(E).
In Long Canyon Phase II & III Homeowners Ass’n, Inc. v. Cashion, the Austin
Court of Appeals addressed whether a pre-suit demand letter sent by a homeowner’s
association to two homeowners implicated the association’s right to petition under
subsections 27.001(4)(A)(i) and (E). See 517 S.W.3d 212, 220–21 (Tex. App.—
Austin 2017, no pet.). The Austin Court, following Levatino, first concluded that
because the letter was a pre-suit demand letter, it was necessarily sent before a
judicial proceeding was initiated, the letter did not pertain to a judicial proceeding
and did not fall within the definition of “exercise of the right to petition” contained
36
in subsection 27.001(4)(A)(i). Id. at 220. The court then addressed whether the
demand letter fell within subsection 27.001(4)(E). The court stated:
Subsection (E) reflects legislative intent that the definition be consistent
with and incorporate the nature and scope of the “right to petition” that
had been established in constitutional jurisprudence. The established
understanding under First Amendment jurisprudence, both now and at
the time of the TCPA’s enactment, was that presuit demand letters
generally fall within the “right to petition,” although there is a federal
circuit court case holding otherwise in the view that the petition right
embraces only communications made to or toward government and not
those between private parties. While the majority rule indeed appears
to be founded on a policy-laden notion of courts providing “breathing
space” for the underlying right as opposed to specific support in
constitutional text, we must presume that the Legislature intended this
view of the protection’s scope to control nonetheless.
Id. at 220–21; see Moricz v. Long, No. 06-17-00011-CV, 2017 WL 3081512, at *4
(Tex. App.—Texarkana July 20, 2017, no pet.) (following Austin Court’s analysis
in Long Canyon).
The homeowners in Long Canyon argued that the allegations in the
association’s demand letter were meritless and made in bad faith, and thus the letter
was an act of “sham petitioning,” which is a “category of speech that falls outside
First Amendment protection.” Long Canyon, 517 S.W.3d at 221. The Austin Court
concluded that the homeowners had not demonstrated that the allegations in the
demand letter were “objectively baseless,” such that “no reasonable litigant could
realistically expect success on the merits.” Id. As a result, the court held that the trial
court “could only conclude” that the demand letter “sufficed as the ‘exercise of the
37
right to petition.’” Id.; Moricz, 2017 WL 3081512, at *4 (holding that pre-suit
demand letters were “an exercise of [the defendant’s] right to petition”).
This case—unlike Long Canyon and Moricz, in which the demand letters at
issue were made part of the record—does not involve a pre-suit demand letter.
Indeed, the record in this case contains no evidence of what Mattress Firm’s alleged
communications to Colliers Atlanta actually were. In his counterclaim for tortious
interference with employment contract, Deitch alleged that “[d]ue to Mattress Firm’s
continued investigation of Deitch and Colliers and threats of litigation, Deitch was
ultimately terminated by Colliers on November 2, 2017.” Maurice Edwards averred
that “[i]n March of 2017, Mattress Firm’s counsel advised Colliers International
Group Inc. and Colliers—Atlanta (“Colliers”) that we had authorized the filing of a
lawsuit against Colliers based on the facts alleged in the above matter.” Edwards
further averred that, in June 2017, he participated in a meeting with representatives
of Mattress Firm and Colliers to “explore settlement,” but the parties were unable to
reach a settlement.
The record does not contain specific statements made by Mattress Firm during
the course of its investigation or its settlement discussions with Colliers Atlanta.
Edwards averred that Mattress Firm “advised” Colliers Atlanta that litigation had
been authorized. During his deposition, Edwards testified that he “had no
involvement” in Mattress Firm’s “advising” of Colliers Atlanta and that he did not
38
know how Mattress Firm advised Colliers Atlanta. There is no indication in the
record of who made the communications on behalf of Mattress Firm and what their
role was in the investigatory and settlement-negotiation process. Without evidence
of specific communications made by Mattress Firm to Colliers Atlanta concerning
litigation—such as a demand letter—there is only Deitch’s conclusory allegation
that Mattress Firm made unspecified “threats of litigation” to Colliers Atlanta.
Mattress Firm, as the TCPA movant, bears the burden to establish by a
preponderance of the evidence that Deitch’s counterclaim is based on, related to, or
in response to Mattress Firm’s exercise of its right to petition. See TEX. CIV. PRAC.
& REM. CODE ANN. § 27.005(b).
Moreover, we note that section 27.001(4)(E) provides that “exercise of the
right to petition” includes “any other communication that falls within the protection
of the right to petition government . . . .” Id. § 27.001(4)(E) (emphasis added).
Statements made between parties during an internal investigation of alleged
misconduct and during potential settlement negotiations in advance of any litigation
being filed are “purely private matters” and do not implicate a party’s constitutional
right to petition the government for redress of grievances. See Creative Oil & Gas,
591 S.W.3d at 135 (stating that, when construing TCPA’s list of “matter[s] of public
concern” relevant to right of free speech, courts “should not ignore the meaning of
the words being defined” and should take into account that “phrase ‘matter of public
39
concern’ commonly refers to matters ‘of political, social, or other concern to the
community,’ as opposed to purely private matters”). We cannot agree that the
unspecified communications by Mattress Firm, presumably made during Mattress
Firm’s internal investigation of the alleged misconduct and during its private
settlement discussions with Colliers Atlanta, fall within Mattress Firm’s protected
constitutional right to petition the government. See Youngkin, 546 S.W.3d at 680–
81 (stating that courts should “construe individual words and provisions in the
context of the statute as a whole”); see also Lipsky, 460 S.W.3d at 586 (stating that
TCPA “protects citizens from retaliatory lawsuits that seek to intimate or silence
them on matters of public concern).
We conclude that, in the absence of evidence of the specific content of the
communications that, according to Mattress Firm, form the basis of Deitch’s tortious
interference with employment contract claim, Mattress Firm has not met its burden
to show by a preponderance of the evidence that its communications fell within the
definition of “exercise of the right to petition.” See Staff Care, Inc. v. Eskridge
Enters., LLC, No. 05-18-00732-CV, 2019 WL 2121116, at *5 n.3 (Tex. App.—
Dallas May 15, 2019, no pet.) (mem. op.) (noting that allegation in counterclaim
concerning plaintiff’s communications “fails to identify the contents of the
communication” and stating that “[w]ithout such information, a court cannot
determine whether the alleged communication falls under the statutory definitions
40
of the TCPA”); see also Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 477 (Tex.
App.—Houston [1st Dist.] 2020, pet. filed) (en banc) (“We note that the First
Amended Petition mentions that Sinz and Appellants engaged in ‘off-book projects.’
However, the pleading does not provide any additional information from which it
can be determined whether the conduct involved communications protected by
Appellants’ right of free speech.”); Rossa v. Mahaffey, 594 S.W.3d 618, 626 (Tex.
App.—Eastland 2019, no pet.) (“Rossa’s petition in this case does not contain any
specific allegations about when, where, and to whom the allegedly defamatory
statements were made. Therefore, Rossa’s petition, viewed ‘holistically,’ does not
demonstrate that the defamation claim falls within the TCPA because the claim is
based on, related to, or in response to Mahaffey’s exercise of the right to petition.”).
We therefore hold that Mattress Firm has not met its burden to establish that the
TCPA applies to Deitch’s tortious interference claim.
Because we hold that Mattress Firm has not demonstrated the applicability of
the TCPA to either of Deitch’s challenged counterclaims, we need not address
whether Deitch presented clear and specific evidence of a prima facie case on each
element of his counterclaims, nor must we address whether Mattress Firm
established a defense to Deitch’s counterclaims. See TEX. CIV. PRAC. & REM. CODE
ANN. § 27.005(c)–(d). We overrule Mattress Firm’s issues on appeal.
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Conclusion
We affirm the order of the trial court denying Mattress Firm’s motion to
dismiss Deitch’s tortious interference counterclaims under the TCPA.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Goodman, and Countiss.
42