                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                     No. 07-19-00175-CV


                   JASON CASEY, ON BEHALF OF THE ESTATE OF
                    JO KAREN GLOVER, DECEASED, APPELLANT

                                              V.

                             KRYSTEL STEVENS, APPELLEE

                          On Appeal from the 251st District Court
                                   Randall County, Texas
                 Trial Court No. 75,000-C, Honorable Ana Estevez, Presiding

                                       April 2, 2020

                                         OPINION
                     Before QUINN, C.J., and PIRTLE and PARKER, JJ.


       Jason Casey, appellant, filed this interlocutory appeal of the trial court’s overruling,

by operation of law, his motion to dismiss Krystal Stevens’s counterclaims for tortious

interference with existing and prospective business relations and injunctive relief.

Concluding that the Texas Citizens Participation Act does not apply to the claims asserted

by Stevens in her counterclaim, we affirm the ruling of the trial court.
                           Factual and Procedural Background


       Casey and Stevens are brother and sister, respectively. They, along with another

sibling, are beneficiaries in an Edwards Jones investment account established by their

mother, Jo Glover. Glover died on September 2, 2018. Before the payable on death

benefits could be paid, Casey began contacting Edward Jones seeking to prevent

Stevens from receiving any distributions from the account.          As a result of these

communications, Edward Jones froze the Glover account and notified the parties that no

distributions would be made from the account until the pending dispute was resolved.


       Casey filed a lawsuit for conversion and money had and received which alleged

that Stevens had borrowed funds from the Glover account that remain outstanding and

that, if not repaid, should affect the amount of any distribution to Stevens. Casey obtained

a temporary restraining order and injunction that prohibited Edward Jones from making

any distributions. Stevens answered and filed a counterclaim for tortious interference

with contract and prospective business relations. Stevens also sought injunctive relief by

her counterclaim. Casey filed a motion to dismiss Stevens’s counterclaim pursuant to

provisions of the Texas Citizens Participation Act (TCPA). After holding a hearing on

Casey’s motion, the trial court overruled the motion by operation of law. Casey timely

filed the instant interlocutory appeal challenging the trial court’s failure to dismiss

Stevens’s counterclaim.


       By his appeal, Casey contends that the trial court erred by failing to grant his

motion to dismiss because Stevens’s claims are based on, related to, and in response to




                                             2
Casey’s exercise of his rights of free speech and to petition and Stevens failed to produce

any evidence to demonstrate the essential elements of her claims.


                            The Texas Citizens Participation Act


       In reviewing a ruling on a motion to dismiss filed under the TCPA, we must begin

by examining the scope of the Act as expressed by its language. The TCPA is popularly

known as the Texas Anti-SLAPP statute, which is designed to prevent strategic lawsuits

against public participation. Kawcak v. Antero Res. Corp., 582 S.W.3d 566, 571 (Tex.

App.—Fort Worth 2019, pet. denied). The stated purpose of the TCPA is 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 persons to file meritorious lawsuits for

demonstrable injuries. TEX. CIV. PRAC. & REM. CODE ANN. § 27.002 (West 2015);1 see In

re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding) (TCPA provides a

mechanism to summarily dispose of lawsuits designed with the sole purpose of chilling

First Amendment rights). To accomplish these purposes, the legislature codified a new

set of procedural mechanisms through which a litigant may require, by motion, a threshold

testing of claims that are deemed to implicate the expressive interests protected by the

statute. Kawcak, 582 S.W.3d at 572 (citing Serafine v. Blunt, 466 S.W.3d 352, 369 (Tex.

App.—Austin 2015, no pet.) (op. on reh’g) (Pemberton, J., concurring)).




       1  Further reference to provisions of the Texas Civil Practice and Remedies Code will be by
reference to "section __" or "§ __."

                                                3
        This procedural mechanism includes a zig-zagging burden of proof that works as

follows:


        Once a motion to dismiss is filed, a burden-shifting mechanism goes into
        effect. [In re Lipsky, 460 S.W.3d at 586-87.] First, a defendant moving for
        dismissal has the burden to show by a preponderance of the evidence that
        the plaintiff filed a “legal action” that is “based on, relates to, or is in response
        to” the defendant’s exercise of the right of free speech, the right to petition,
        or the right of association. [] §§ 27.003(a), 27.005(b) [(West Supp. 2019)];
        Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018).

        Second, if the defendant satisfies that burden, to avoid dismissal, a plaintiff
        must establish by clear and specific evidence a prima facie case for each
        essential element of its claim. [] § 27.005(c). The requirement for “clear
        and specific evidence” means the plaintiff “must provide enough detail to
        show the factual basis for its claim.” [In re] Lipsky, 460 S.W.3d at 590-91.

        Third, even if the plaintiff establishes a prima facie case, the defendant can
        still obtain dismissal if he “establishes by a preponderance of the evidence
        each essential element of a valid defense to the nonmovant’s claim.” [] §
        27.005(d).2


Kawcak, 582 S.W.3d at 572 (quoting Beving v. Beadles, 563 S.W.3d 399, 404 (Tex.

App.—Fort Worth 2018, pet. denied)).


        The TCPA also sets deadlines for the filing of the motion to dismiss, the hearing

on the motion to dismiss, and the time in which the trial court must rule. §§ 27.003(b),

.004 (West 2015), .005(a). The filing of a motion to dismiss suspends discovery unless

the trial court orders specific and limited discovery upon the showing of good cause.

§§ 27.003(c), .006(b) (West Supp. 2019). In considering a motion to dismiss, the trial



        2  Amended by Act of June 2, 2019, 86th Leg., R.S., ch. 378, § 3, 2019 Tex. Gen. Laws 684, 685.
This amendment removed the preponderance of the evidence standard and replaced it with language
requiring the movant to “establish[] an affirmative defense or other grounds on which the moving party is
entitled to judgment as a matter of law.” However, the amendment expressly provides that this change in
law applies only to a legal action filed on or after the September 1, 2019 effective date of the amendment.
See Act of June 2, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex. Gen. Laws 684, 687. Consequently,
further references to section 27.005 will refer to the pre-amended version of the statute.

                                                    4
court considers “the pleadings and supporting and opposing affidavits stating the facts on

which the liability or defense is based.” § 27.006(a).3


         An accelerated interlocutory appeal is permitted from a trial court order denying a

motion to dismiss under the TCPA but not from an order granting the motion to dismiss.

Moricz v. Long, No. 06-17-00011-CV, 2017 Tex. App. LEXIS 6678, at *8 (Tex. App.—

Texarkana July 20, 2017, no pet.) (mem. op.) (citing §§ 27.008(a) (West 2015), and

51.014 (West Supp. 2019)). The trial court shall award the moving party both fees and

sanctions “if the court orders dismissal of [the] legal action.” § 27.009(a) (West Supp.

2019).


                                        Standard of Review


         We review questions of statutory construction de novo. Serafine, 466 S.W.3d at

357 (citing Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011)). We consider de novo

the legal question of whether the movant has established by a preponderance of the

evidence that the challenged legal action is covered under the TCPA. Id. In conducting

this review, we review the pleadings and affidavits in the light most favorable to the non-

movant, favoring the conclusion that the claims are not predicated on protected

expression. Reed v. Centurion Terminals, LLC, No. 05-18-01171-CV, 2019 Tex. App.




         3
         Amended by Act of June 2, 2019, 86th Leg., R.S., ch. 378, §§ 4, 5, 2019 Tex. Gen. Laws 684,
685. This amendment added the requirement that a trial court shall consider evidence the court could
consider under Texas Rule of Civil Procedure 166a in addition to pleadings and affidavits. However, the
amendment expressly provides that this change in law applies only to a legal action filed on or after the
September 1, 2019 effective date of the amendment. See Act of June 2, 2019, 86th Leg., R.S., ch. 378,
§ 11, 2019 Tex. Gen. Laws 684, 687. Consequently, further references to section 27.006 will refer to the
pre-amended version of the statute.

                                                   5
LEXIS 5631, at *12 (Tex. App.—Dallas July 3, 2019, pet. denied) (mem. op.) (citing Sloat

v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.—Austin 2015, pet. dism’d)).


                         Application of the TCPA to Appellees’ Claims


        As previously identified, the first step in analyzing a motion to dismiss filed under

the TCPA is to determine whether the defendant met its burden to show by a

preponderance of the evidence that the plaintiff’s legal action is “based on, relates to, or

is in response to” the defendant’s exercise of the right of free speech, the right to petition,

or the right of association. §§ 27.003(a),4 27.005(b); Kawcak, 582 S.W.3d at 572. In his

motion to dismiss, Casey asserted that Stevens’s tortious interference claims and request

for interlocutory relief are based on, relate to, or are in response to Casey’s exercise of

his rights of free speech and to petition. As such, we begin our analysis by determining

whether Casey met his initial burden to prove such a connection.


        We construe the language of the TCPA and review the issue of whether the

defendant meets this initial burden de novo. Kawcak, 582 S.W.3d at 571; ExxonMobil

Pipeline Co. v. Coleman, 464 S.W.3d 841, 845 (Tex. App.—Dallas 2015), rev’d on other

grounds, 512 S.W.3d 895, 901-02 (Tex. 2017) (per curiam). In interpreting a statute, our

primary objective is to give effect to the legislature’s intent in enacting the statute. City of

Houston v. Bates, 406 S.W.3d 539, 543 (Tex. 2013). We start by reviewing the text of

the statute and presume the legislature intended what it enacted. In re Elliott, 504 S.W.3d


          4 Amended by Act of June 2, 2019, 86th Leg., R.S., ch. 378, § 2, 2019 Tex. Gen. Laws 684, 685.

The amendment, inter alia, removed the “relates to” language from the description of legal actions covered
by the TCPA. However, the amendment expressly provides that this change in law applies only to a legal
action filed on or after the September 1, 2019 effective date of the amendment. See Act of June 2, 2019,
86th Leg., R.S., ch. 378, § 11, 2019 Tex. Gen. Laws 684, 687. Consequently, further references to section
27.003 will refer to the pre-amended version of the statute.

                                                    6
455, 464 (Tex. App.—Austin 2016, orig. proceeding). The plain meaning of the text is the

best indication of the legislature’s intent, unless a different meaning is supplied by

legislative definition or is apparent from the context, or the plain meaning would lead to

absurd results. Id. at 463.


Casey’s Right of Free Speech


        The TCPA defines the “exercise of the right of free speech” as a communication

made in connection with a matter of public concern. § 27.001(3); Adams v. Starside

Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018). A communication “includes the

making or submitting of a statement or document in any form or medium, including oral,

visual, written, audiovisual, or electronic.” § 27.001(1). A communication about a “matter

of public concern” relates to health or safety; environmental, economic, or community

well-being; the government; a public official or figure; or a good, product, or service in the

marketplace. § 27.001(7);5 Coleman, 512 S.W.3d at 899. The TCPA does not require

that communications specifically “mention” a matter of public concern or have more than

a “tangential relationship” to such a matter. Coleman, 512 S.W.3d at 900. The purpose

of the Act, as applicable to this analysis, is “to encourage and safeguard the constitutional

rights of persons to . . . speak freely . . . to the maximum extent permitted by law.”

§ 27.002.




        5
          Amended by Act of June 2, 2019, 86th Leg., R.S., ch. 378, § 1, 2019 Tex. Gen. Laws 684, 684-
85. The amendment defines a matter of public concern to relate to a “public official, public figure, or other
person who has drawn substantial public attention due to the person’s official acts, fame, notoriety, or
celebrity; a matter of political, social, or other interest to the community; or a subject of concern to the
public.” However, the amendment expressly provides that this change in law applies only to a legal action
filed on or after the September 1, 2019 effective date of the amendment. See Act of June 2, 2019, 86th
Leg., R.S., ch. 378, § 11, 2019 Tex. Gen. Laws 684, 687. Consequently, further references to subsection
27.001(7) will refer to the pre-amended version of the statute.

                                                     7
      Casey contends that Stevens’s claims are based on, relate to, or are in response

to Casey’s exercise of his right of free speech because Stevens’s claims seek to restrict

Casey’s communications with Edward Jones regarding distributions of the Glover

investment account. Casey contends that these communications are a matter of public

concern because the Glover investment account is a good, product, or service in the

marketplace. We do not agree that Casey’s communications here were about or related

to a good or service in the marketplace that would make the communications about a

matter of public concern.


      The TCPA does not protect every conceivable communication. One exception that

has been recognized by Texas courts is that private communications made in connection

with a private business matter that only address private economic interests are not

communications related to a matter of public concern. Reed, 2019 Tex. App. LEXIS 5631,

at *8-9; Erdner v. Highland Park Emergency Ctr., LLC, 580 S.W.3d 269, 276 (Tex. App.—

Dallas 2019, pet. filed); Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 428 (Tex.

App.—Dallas 2019, pet. denied); Brugger v. Swinford, No. 14-16-00069-CV, 2016 Tex.

App. LEXIS 9155, at *8 (Tex. App.—Houston [14th Dist.] Aug. 23, 2016, no pet.) (mem.

op.); Lahijani v. Melifera Partners, LLC, No. 01-14-01025-CV, 2015 Tex. App. LEXIS

11290, at *10-12 (Tex. App.—Houston [1st Dist.] Nov. 3, 2015, no pet.) (mem. op.); I-10

Colony, Inc. v. Chao Kuan Lee, Nos. 01-14-00465-CV, 01-14-00718-CV, 2015 Tex. App.

LEXIS 4136, at *13-14 (Tex. App.—Houston [1st Dist.] Apr. 23, 2015, no pet.) (mem. op.).

This Court recently agreed with this approach in the context of a TCPA challenge involving

the right of association. Tex. Custom Wine Works, LLC v. Talcott, No. 07-19-00186-CV,

2020 Tex. App. LEXIS 1737, at *11 (Tex. App.—Amarillo Feb. 27, 2020, no pet. h.) (“[T]o


                                            8
trigger the TCPA’s protections, [the communication] must involve more than a handful of

individuals communicating about a private business deal.”). In the present case, Casey’s

communications that Stevens seeks to restrict are private communications, between he

and Edward Jones, about a private business matter, the distribution of Glover’s account,

that address the private economic interests of Casey and Stevens. Consequently, we

conclude that these communications do not relate to a matter of public concern.

Essentially, the communications were nothing more than Casey unilaterally notifying

Edward Jones of a dispute regarding the distribution of the Glover account.


      We believe that the present case is similar to the Staff Care, Inc. and I-10 Colony,

Inc. cases. In Staff Care, Inc., the communications that supported Eskridge’s tortious

interference claims were about Staff Care’s restrictions on employment and did not

involve or relate to Staff Care’s services in the marketplace, which led the court to

conclude that the communications were not made in connection with a matter of public

concern. Staff Care, Inc. v. Eskridge Enters., LLC, No. 05-18-00732-CV, 2019 Tex. App.

LEXIS 3936, at *14 (Tex. App.—Dallas May 15, 2019, no pet.) (mem. op.). In I-10 Colony,

Inc., the court concluded that communications made by an attorney were not

communications about a matter of public concern because the communications were not

about the lawyer’s services in the marketplace. I-10 Colony, Inc., 2015 Tex. App. LEXIS

4136, at *13 (“Because the subject of this communication is not I-10’s lawyer’s services,

the communication is not related to a ‘service in the marketplace,’ and the communication

therefore was not one made in connection with a matter of public concern.”). In the

present case, Casey’s communications with Edward Jones were not communications

about the goods or services provided by Edward Jones.                Rather, they were


                                           9
communications about a private dispute regarding how the funds in the Glover account

were to be distributed. As such, we conclude that Casey’s communications are not

related to a service in the marketplace and, therefore, are not communications made in

connection with a matter of public concern. Consequently, we conclude that Casey has

failed to meet his burden to show by a preponderance of the evidence that Stevens’s

counterclaim is “based on, relates to, or is in response to” Casey’s exercise of his right of

free speech.


       Casey cites three cases in support of his position but each of these cases are

distinguishable from the present case. In Adams, the subject of the communications was

the developer’s services. Adams, 547 S.W.3d at 894-95. Likewise, in Lippincott, the

communications were about the services of the nurse anesthetist and involved a matter

of health and safety. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509-10 (Tex. 2015). In

Coleman, the communications were about a private business matter but one that was a

matter of public concern because it impacted the environment and the public’s health and

safety. Coleman, 512 S.W.3d at 901.


Casey’s Right to Petition


        Under the TCPA, a defendant exercises his right to petition when he makes, inter

alia, (1) a communication in or pertaining to a judicial proceeding, (2) a communication in

connection with an issue under consideration or review by a legislative, executive, judicial,

or other governmental body, (3) a communication that is reasonably likely to encourage

consideration or review of an issue by a legislative, executive, judicial, or other

governmental body, and (4) any other communication that falls within the protection of



                                             10
the right to petition government under the United States or Texas constitutions.

§ 27.001(4)(A)(i). As above, a communication “includes the making or submitting of a

statement or document in any form or medium, including oral, visual, written, audiovisual,

or electronic.” § 27.001(1). We must remain mindful that the purpose of the Act, as

applicable to this analysis, is “to encourage and safeguard the constitutional rights of

persons to petition . . . and otherwise participate in government to the maximum extent

permitted by law.” § 27.002.


       Casey contends that Stevens’s claims are based on, relate to, or are in response

to Casey’s exercise of his right to petition because the communications which Stevens

seeks to restrict, Casey’s communications with Edward Jones regarding distribution of

the Glover account, relate to the same subject matter as the temporary injunction

obtained by Casey in this case. Casey argues that, construing the TCPA liberally, these

allegations fall within the scope of the TCPA’s protections because they are based on,

related to, or in response to a communication by Casey in exercise of his right to petition.


       We note that the communications expressly addressed in Stevens’s counterclaim

were made prior to Casey filing suit.      Stevens’s claims are based on Casey, with

knowledge of Stevens’s claim of right to a distribution from the Glover account, willfully

and intentionally interfering with Stevens’s interest by contacting Edward Jones to prevent

it from making any such distributions. Nothing in Stevens’s counterclaim references any

pending litigation filed by Casey. In reviewing rulings under the TCPA, courts view

pleadings and evidence in the light most favorable to the non-movant and are not to draw

an inference against the non-movant to conclude that the TCPA applies to the non-

movant’s claims. Cook v. Simmons, No. 05-19-00091-CV, 2019 Tex. App. LEXIS 9833,

                                            11
at *9 (Tex. App.—Dallas Nov. 12, 2019, no pet. h.); Cheniere Energy v. Lofti, 449 S.W.3d

210, 214-15 (Tex. App.—Houston [1st Dist.] 2014, no pet.). In fact, Casey indicates in

his appellate brief that “Stevens served a counterclaim based on Casey’s alleged phone

calls and other communications that Stevens alleges Casey and his attorney made to

Edward Jones.” Based on our review of Stevens’s pleading, we conclude that Stevens

alleges that Casey tortiously interfered with Stevens’s contract and prospective business

relations when he contacted Edward Jones and that these allegations are not in any way

attempting to restrict Casey’s right to seek redress from the courts. Thus, our review will

be limited to Stevens’s claims relating to Casey’s pre-suit communications with Edward

Jones.


         We believe that pre-suit communications such as those between Casey and

Edward Jones are not the types of communications covered by the TCPA’s protection of

the right to petition. The Dallas Court of Appeals held that a pre-suit demand letter was

not a communication in or about a judicial proceeding. Levatino v. Apple Tree Café

Touring, Inc., 486 S.W.3d 724, 729 (Tex. App.—Dallas 2016, pet. denied). The court

explained that the ordinary meaning of “judicial proceeding” is an actual, pending

proceeding and the TCPA’s use of the phrase “pertaining to” does not expand the ordinary

meaning of “judicial proceeding” to include anticipated or potential future proceedings. Id.

at 728-29. This approach was followed by the Fourteenth Court of Appeals when it

determined that pre-suit communications between a client and its lawyers were not

communications in or about a judicial proceeding because no judicial proceeding had

been initiated at the time of the communications. QTAT BPO Sols., Inc. v. Lee & Murphy




                                            12
Law Firm, G.P., 524 S.W.3d 770, 777-78 (Tex. App.—Houston [14th Dist.] 2017, pet.

denied).


       Casey relies on Serafine, 466 S.W.3d 352, to support his claim that Stevens’s

claims impacted his right to petition. The court in Serafine found that the appellee’s

counterclaim for tortious interference was “in part based on, related to, or in response to

[appellant’s] filing of the suit . . .” and, as such, found that counterclaim to be based on

appellant’s exercise of his right to petition. Id. at 360. However, the court in Serafine

distinguished between tortious interference claims that were expressly related to a

pending lawsuit and those that were based on communications occurring before suit was

filed. Id. Those claims that were based on appellant’s filing of the suit were determined

to have been based on appellant’s exercise of the right to petition and were, therefore,

covered by the TCPA.        Id.   However, as to those claims that were based on

communications made prior to the filing of the suit, the court concluded that appellant did

not meet his burden to show that these counterclaims were subject to the TCPA. Id.


       Casey contends that evidence was submitted to the trial court that indicated that

Casey continued to communicate with Edward Jones after he filed suit. However, these

communications are not addressed by Stevens’s counterclaim. Simply because evidence

establishes that Casey continued to communicate with Edward Jones does not establish

that Stevens’s counterclaim was related to these communications, especially when these

communications are not addressed in Stevens’s pleading. Likewise, that Stevens sought

injunctive relief on the same basis utilized by Casey does not mean that Stevens’s

counterclaims are based on Casey’s filing of suit or obtaining injunctive relief. Rather, it



                                            13
simply indicates that she feels entitled to injunctive relief for the same reasons that the

trial court granted Casey a temporary injunction.


       Because Stevens’s claims are limited to Casey’s pre-suit communications with

Edward Jones, we conclude that these communications were not made in or pertaining

to a judicial proceeding and, therefore, Casey has failed to establish that these claims are

subject to the TCPA.


Stevens’s Claims for Injunctive Relief


       Casey did not specifically address Stevens’s claims for injunctive relief in his initial

brief. After this omission was identified by Stevens in her response, Casey included the

following as his entire argument concerning this point in his reply brief:


       Stevens filed her claim for injunctive relief because Casey had obtained the
       same relief against her, and according to her used “exactly the same basis.”
       For the reasons discussed above [addressing Stevens’s tortious
       interference claims], his acts were protected under the TCPA. The
       injunctive relief and related communications clearly form the basis of
       Stevens’[s] counterclaim for injunctive relief and Stevens’[s] assertions
       otherwise are nonsense.


Thus, Casey asserts the same arguments addressed above to attempt to establish that

the TCPA applies to Stevens’s request for injunctive relief. As such, we have already

rejected Casey’s arguments and concluded that the trial court did not err in denying

Casey’s motion to dismiss.




                                              14
                                        Conclusion


       Concluding that Casey failed to meet his burden to establish by a preponderance

of the evidence that the TCPA applies to Stevens’s counterclaims, we overrule Casey’s

sole issue and affirm the trial court’s denial of Casey’s motion to dismiss.




                                                        Judy C. Parker
                                                           Justice




                                             15
