       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-18-00504-CV



                            Woodhull Ventures 2015, L.P., Appellant

                                                v.

                                 Megatel Homes III, LLC, Appellee


   FROM THE 425TH JUDICIAL DISTRICT COURT OF WILLIAMSON COUNTY
  NO. 18-0635-C425, THE HONORABLE BETSY F. LAMBETH, JUDGE PRESIDING


                                MEMORANDUM OPINION


                This is an appeal from an order denying a motion to dismiss under the Texas

Citizens Participation Act (TCPA), Tex. Civ. Prac. & Rem. Code § 27.003.1 We will affirm the

district court’s order.


                                         BACKGROUND

                Megatel Homes III, LLC, is a Texas company that constructs custom homes and

other residential facilities.   Woodhull Ventures 2015, L.P., is a Delaware partnership that

“develops real estate for use in building homes.” In February of 2017, Woodhull and Megatel

executed a contract under which Woodhull would sell Megatel certain real estate for a “master

planned community being developed.” As part of that contract, Woodhull agreed to provide a


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           The Texas Legislature recently amended the TCPA, but those amendments do not
apply to this case, and all statutory citations refer to the law as it read in 2018.
“soil report for the Property or Subdivision signed by [Woodhull’s] geotechnical engineer” or to

advise Megatel if such a report was not feasible. In requesting this report, Megatel apparently

wanted to ensure that “applicable lots ha[d] been completed, at [Woodhull’s] expense, in

accordance with Lot Construction Plans and Block Grading Plans.” According to Megatel,

Woodhull had agreed to provide lot-by-lot soil analysis.             Woodhull, however, ultimately

provided a report that included street-specific—but not lot-specific—soil analysis.               While

Megatel asserts that this report was contractually inadequate, Woodhull maintains that the report

satisfied its contractual obligation.

                When the parties were unable to resolve their disagreement over the soil analysis,

Megatel sued Woodhull for breach of contract and fraud and sought declaratory relief regarding

its rights under the contract. Woodhull responded with a general denial and a motion to dismiss

under the TCPA, see id. § 27.003, arguing that all claims arose from its constitutionally afforded

right to freedom of speech. The trial court denied the motion and Woodhull timely appealed to

this Court. See id. § 27.008 (affording right to accelerated interlocutory appeal).


                                            DISCUSSION

                The TCPA allows a party to move for dismissal of any “legal action that is based

on, related to, or in response to [that] party’s exercise of the right of free speech, right to petition,

or right of association.” See id. § 27.003. Its purpose is to “encourage and safeguard the

constitutional rights of persons to petition, speak freely, associate freely, and otherwise

participate in government,” while still “protect[ing] the rights of a person to file meritorious

lawsuits for demonstrable injury.” See id. § 27.002. “To effectuate the statute’s purpose, the

Legislature has provided a two-step procedure to expedite the dismissal of claims brought to


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intimidate or to silence a defendant’s exercise of these First Amendment rights.” ExxonMobil

Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (citing Tex. Civ. Prac. & Rem. Code

§ 27.003). “Under the first step, a movant seeking to prevail on a motion to dismiss under the

TCPA has the burden to ‘show[ ] by a preponderance of the evidence that the [non-movant’s]

legal action is based on, relates to, or is in response to the [movant’s] exercise of (1) the right of

free speech; (2) the right to petition; or (3) the right of association.’” Grant v. Pivot Tech. Sols.,

Ltd., 556 S.W.3d 865, 872 (Tex. App.—Austin 2018, pet. filed) (quoting Tex. Civ. Prac. & Rem.

Code § 27.005(b)). In the second step, if the court “determines that the movant has met his

burden to show that the TCPA applies, the burden shifts to the non[-]movant to establish ‘by

clear and specific evidence a prima facie case for each essential element of the claim in

question.’” Id. (quoting Tex. Civ. Prac. & Rem. Code § 27.005(c)). Even where the non-movant

can do so, the court must dismiss the legal action “‘if the [movant] establishes by a

preponderance of the evidence each essential element of a valid defense to the non[-]movant’s

claim.’” Id. (quoting Tex. Civ. Prac. & Rem. Code § 27.005(c)). We review the disposition of a

motion to dismiss under the TCPA under a de novo standard of review. Serafine v. Blunt,

466 S.W.3d, 352, 357 (Tex. App.—Austin 2015, no pet.).

               Woodhull contends the district court erred by denying the motion to dismiss,

raising alternative arguments: (1) that the TCPA applies to Megatel’s claims; (2) that Megatel

cannot make out a prima facie case for the elements of its claims; and (3) that the claims do not

fall into any statutory exception. Megatel argues that even if the statute applies to its claims—a

point it does not concede—it can make out a prima facie case for each element of the claims and

the claims fall into the TCPA’s exception for commercial speech. See Tex. Civ. Prac. & Rem.

Code § 27.010(b).

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               There is no genuine dispute that Megatel’s claims are “legal actions” as that

phrase is defined by the TCPA, and the parties do not argue otherwise. See id. § 27.001(6)

(defining “legal action” to include any “cause of action”); Porter-Garcia v. Travis Law Firm,

P.C., 564 S.W.3d 75, 85 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (holding claims of

breach and fraud within purview of TCPA before holding that plaintiff would prevail on second

prong of analysis); Craig v. Tejas Promotions, LLC, 550 S.W.3d 287, 298, 303 (Tex. App.—

Austin 2018, pet. filed) (declaratory judgment). These legal actions arise from Woodhull’s

exercise of its right to free speech. The “exercise of the right of free speech” includes any

“communication made in connection with a matter of public concern.” Tex. Civ. Prac. & Rem.

Code § 27.001(7). “Matters of public concern” include issues related to “community well-being”

or “goods products or services in the market.” Id. § 27.001(3). As the Supreme Court of Texas

has explained, “[I]n the context of a small residential community . . . any allegation of

malfeasance and criminality by the developer . . . likely concerns the well-being of the

community as a whole.” See Adams v Starside Custom Builders, LLC, 547 S.W.3d 890, 896

(Tex. 2018).    In this case, Megatel’s claims of breach and fraud relate to Woodhull’s

street-by-street soil report and its alleged refusal to provide lot-specific soil analysis, which

Megatel contends undermine its ability to construct safe, stable housing.         Thus, because

Woodhull’s report and related communications affect the well-being of the community as a

whole, these claims and the related claim for declaratory relief fall within the purview of the

TCPA. See id. at 896–97; Craig, 550 S.W.3d at 303.

               Because Woodhull satisfied its burden to show the TCPA applies to Megatel’s

claim, Megatel must make a prima facie case for each element of its claims or must demonstrate

that its claims fall into a statutory exception to avoid dismissal. Tex. Civ. Prac. & Rem. Code

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§§ 27.005(c), .010; Grant, 556 S.W.3d at 872–73. As the latter question is dispositive of this

appeal, we will analyze the applicability of the commercial-speech exception, Tex. Civ. Prac. &

Rem. Code § 27.010(b), on the assumption that Megatel can meet its burden to establish a prima

facie case for its claims. See Tex. R. App. P. 47.1 (requiring courts of appeals to render opinions

“as brief as practicable”).

               The commercial-speech exception provides that the TCPA “does not apply to a

legal action brought against a person primarily engaged in the business of selling or leasing . . .

services, if the statement or conduct arises out of the sale or lease of goods, services . . . or a

commercial transaction in which the intended audience is an actual or potential buyer or

customer.” Tex. Civ. Prac. & Rem. Code § 27.010(b). A claim falls into an exception when four

conditions are met. See Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018).

First, the non-movant must have been “primarily engaged in the business of selling or leasing

goods” or services at the time the disputed statement was made. Id. Second, that party must

have “made the statement or engaged in the conduct on which the claim is based in the

defendant’s capacity as a seller or lessor of those goods or services.” Id. Third, this statement

must have “[arisen] out of a commercial transaction involving the kind of goods or services the

defendant provides.” Id. Fourth, the “intended audience of the statement or conduct” must have

been the “actual or potential customers of the defendant for the kind of goods or services the

defendant provides.” Id.

               The record before this Court confirms that each element of the exception is

satisfied here. Woodhull is primarily engaged in the business of selling services—specifically,

and as attested by one of Woodhull’s own partners, Woodhull “develops real estate for the use in

building homes within the area of Austin, Texas.” In the capacity of providing those services to

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Megatel and as part of a commercial transaction—i.e., the contract—for that service, Woodhull

agreed to provide soil analysis. And finally, it is undisputed that Megatel is an actual customer

of Woodhull’s. Megatel’s claims therefore fall into the commercial-speech exemption from the

TCPA’s dismissal mechanism. See id.

               Woodhull nevertheless contends that because Megatel’s claims relate to

omissions in the report, rather than statements made in the report, and because Woodhull hired a

third party to prepare that report, those claims cannot—as a matter of law—relate to commercial

speech. But Woodhull mischaracterizes the allegations underlying Megatel’s claims. Megatel’s

claims of breach and fraud are predicated not only on the report and any omissions, but on

statements Woodhull allegedly made while negotiating and executing the contract. Moreover,

this Court has already rejected the argument that the TCPA does not reach omitted statements in

a report. See Mustafa v. Pennington, No. 03-18-00081-CV, 2019 WL 1782993, at *3 (Tex.

App.—Austin Apr. 24, 2019, no pet.) (mem. op.). Thus, the district court did not err in holding

the TCPA’s commercial-speech exception applicable and denying Woodhull’s motion to dismiss

pursuant to Section 27.003 of that statute.


                                         CONCLUSION

       Because the district court did not err in denying the motion to dismiss pursuant to Section

27.003 of the Texas Civil Practice and Remedies Code, we affirm its order.




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                                            __________________________________________
                                            Edward Smith, Justice

Before Justices Goodwin, Baker, and Smith

Affirmed

Filed: July 24, 2019




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