Reversed and Remanded and Majority and Dissenting Opinions filed April 28,
2020.




                                      In The

                      Fourteenth Court of Appeals

                               NO. 14-18-00594-CV

                          WILLIAM REEVES, Appellant

                                         V.

                HARBOR AMERICA CENTRAL, INC., Appellee

                      On Appeal from the 55th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2017-25574

                            DISSENTING OPINION

      Because the movant in this case failed to establish a right of association
sufficient to trigger the protections of the Texas Citizens Participation Act (TCPA),
I respectfully dissent.

      The central issue in this case is whether the TCPA applies to Harbor
America’s counterclaims alleging breach of contract, misappropriation of trade
secrets, conversion, breach of fiduciary duty, and breach of the duty of loyalty. At
its heart, this is a case about the breach of an employment agreement. Reeves’s
motion to dismiss Harbor America’s counterclaims argued that Harbor America’s
counterclaims were filed in response to Reeves’s right of association. Holding that
this court’s decision in Abatecola v. 2 Savages Concrete Plumbing, LLC, No. 14-17-
00678-CV, 2018 WL 3118601, at *6 (Tex. App.—Houston [14th Dist.] June 26,
2018, pet. denied) (mem. op.) controls, the majority concludes that Harbor
America’s counterclaims implicate Reeves’s right of association and are governed
by the TCPA. I do not agree that our decision in Abatecola controls the disposition
in this case because the right of association protected by the TCPA more resembles
those protected by the constitutional right rather than the association existing
between employer and employee in the context of the allegations in this suit.

       The TCPA defines the “exercise of the right of association” as people joining
“together to collectively express, promote, pursue, or defend common interests.” Act
of June 17, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 961
(amended 2019) (current version at § 27.001(2) (West Supp. 2019)).1 A
communication includes “the making or submitting of a statement or document in
any form or medium, including oral, visual, written, audiovisual, or electronic.” Tex.
Civ. Prac. & Rem. Code § 27.001(1). The TCPA does not create a right of
association. Rather, the purpose of the Act is “to encourage and safeguard the
constitutional rights of persons to . . . associate freely . . . to the maximum extent


       1
         The definition of the “exercise of the right of association” was amended by the legislature
in 2019. Section 27.001(2) now defines the exercise of the right of association as meaning, “to join
together to collectively express, promote, pursue, or defend common interests relating to a
governmental proceeding or a matter of public concern.” Act of June 2, 2019, 86th Leg., R.S., ch.
378, § 1, 2019 Tex. Gen. Laws 684, 684. However, the amendment expressly provides that this
change in law applies only to a legal action filed on or after the September 1, 2019, the 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 27.001 will refer to the pre-amended
version of the statute.

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permitted by law[.]” Tex. Civ. Prac. & Rem. Code § 27.002.

      In this case Reeves contends that Harbor America’s counterclaims were
related to his alleged communications with former Harbor America employee David
Fender regarding their entering into a new business arrangement. Reeves argues,
therefore, that he met his initial burden under the TCPA to show that Harbor
America’s counterclaims related to Reeves’s exercise of the right of association. I
do not agree with such a broad construction of the scope of the TCPA.

      In determining whether Harbor America’s counterclaims related to Reeves’s
exercise of the right of association we review the statutory definition as stated above.
Peculiar to this case, we must address the plain meaning of the word “common.” “In
interpreting statutes, our primary purpose is to give effect to the legislature’s intent
by relying on the plain meaning of the text adopted by the legislature, unless a
different meaning is supplied by statutory definition or is apparent from the context,
or the plain meaning leads to absurd results.” Better Bus. Bureau of Metro. Hous.,
Inc. v. John Moore Servs., 441 S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.]
2013, pet. denied) (citing Tex. Lottery Comm’n v. First State Bank of DeQueen, 325
S.W.3d 628, 635 (Tex. 2010)).

      In Kawcak v. Antero Resources Corporation, the Fort Worth Court of Appeals
determined that, by conspiring to commit a tortious act against another party for
personal financial gain, the alleged tortfeasors had not exercised their right of
association. 582 S.W.3d 566, 569 (Tex. App.—Fort Worth 2019, pet. denied). In
addressing the right of association, the Kawcak court discussed several dictionary
definitions of the word “common” in the context of the TCPA’s stated purpose. Id.
at 575–79. The court found Webster’s definition of “common” to be the most
suitable, defining “common” as “of or relating to a community at large,” “known to
the community,” or “belonging to or typical of all mankind.” Id. at 576. The court

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stated, “Webster’s definition of ‘common’ supports a plain meaning of the word that
embraces interests broader than the narrow interest shared by two people who
engage in a conspiracy where one conspirator allegedly breaches his fiduciary duty
to profit himself and his co-conspirator.” Id. at 576. The Kawcak court held that,
because “the plain meaning of the word ‘common’ in TCPA section 27.001(2)’s
definition of ‘the right of association’ requires more than two tortfeasors conspiring
to act tortiously for their own selfish benefit,” the TCPA did not apply to the claims
in that case. Id. at 588. Because only two tortfeasors were involved in Kawcak, the
court held their alleged conduct was not protected by the right of association. Id.

      To determine whether a nonmovant’s allegations implicate a party’s exercise
of the right of association, I agree with the Kawcak court that it is necessary to
determine what definition the legislature intended to ascribe to the word “common”
in the phrase “common interests.” See Tex. Civ. Prac. & Rem. Code § 27.001(2)
(defining “exercise of the right of association” as “a communication between
individuals who join together to collectively express, promote, pursue, or defend
common interests”). Kawcak held that “common” in TCPA section 27.001(2)’s
definition of “the right of association” requires more than two tortfeasors conspiring
to act tortiously for their own selfish benefit. I would hold that the Kawcak court’s
analysis applies to the facts of this case where the claims involve two individuals
who entered into a private agreement.

      Defining “common” to include a public component is in line with the TCPA’s
statutory scheme because it corresponds to the express purpose of the TCPA to
protect constitutional rights, while at the same time protecting the rights of persons
to file meritorious lawsuits for demonstrable injury. See Tex. Civ. Prac. & Rem.
Code § 27.002. Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2020 WL
826729, at *11 (Tex. App.—Houston [1st Dist.] Feb. 20, 2020, no pet. h.). Applying

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Reeves’s construction of the right of association gives a constitutional right of
association protection to virtually any private communication between two people
about a shared private interest. See Tex. Civ. Prac. & Rem. Code § 27.001(2) (right
of association protection applies to “communication between individuals who join
together to collectively express, promote, pursue, or defend common interests”).
This interpretation is not consistent with the purposes of the TCPA, which is to curb
strategic lawsuits designed to chill public participation. See Toth v. Sears Home
Improvement Products, Inc., 557 S.W.3d 142, 149 (Tex. App.—Houston [14th Dist.]
2018, no pet.). It would be illogical for the TCPA to apply to situations where there
is no element of group participation for a public purpose. See Serafine v. Blunt, 466
S.W.3d 352, 378 (Tex. App.—Austin 2015, no pet.) (J. Pemberton, concurring) (in
which Justice Pemberton opined that such an interpretation of section 27.001(2)
would lead to the absurd result of bringing most marital communications within the
scope of the exercise of the right of association and, therefore, subject to the TCPA).

       We are to construe the TCPA liberally to fully effectuate its purpose and
intent. Tex. Civ. Prac. & Rem. Code § 27.011(b). In doing so, we may consider the
object sought to be obtained by the statute, the consequences of a particular
construction, the legislative history, and the statute’s title. Tex. Gov’t Code §
311.023. Considering the title of the TCPA (the Texas Citizens Participation Act),
the object sought to be obtained by the TCPA (curb strategic lawsuits designed to
chill public participation), and the absurdity of reading the statutory definition of
“exercise of the right to association” to include a business decision between two
parties, I believe that the legislature intended for the right of association to require
some degree of group participation involving an expression about a matter of public
interest.2


       2
           While not a consideration in reaching my conclusion, I note that the legislature’s amended
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       My conclusion that the right of association protected by the TCPA requires
participation of a group expressing a communication about a matter of public interest
is not contradicted by our decision in Abatecola. The facts in Abatecola are
distinguishable from the facts in this case in that the legal actions addressed in
Abatecola involved communications with a third party and not merely
communications between two parties involved in a business deal. 2018 WL 3118601
at *6-7. In Abatecola, the legal action was filed against a third party who, without
knowledge of the prior non-compete, allegedly interfered with a contract by hiring
the individual to compete. Id. In this case there is no third party in the legal action
filed below; this action is merely a business dispute between two parties.

       Moreover, my conclusion is supported by opinions of this court in which we
have found that a party’s exercise of the right of association is in the context of
common communications that affect more than the interests of private individuals.
See O’Hern v. Mughrabi, 579 S.W.3d 594, 602-04 (Tex. App.—Houston [14th
Dist.] 2019, no pet.) (right of association was being exercised in the context of a
meeting of a board of directors of a condominium); Roach v. Ingram, 557 S.W.3d
203, 219 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (juvenile board
communicating about procedures in a truancy court); Fawcett v. Grosu, 498 S.W.3d
650, 657 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“It is undisputed that
all of the parties, as members of Masons, have joined together to collectively
express, promote[,] or defend common interests.”).

       Because I believe Reeves failed to establish that his internal communications
are protected by the right of association under the TCPA I would hold that the TCPA

definition of the “exercise of the right of association” is now limited to a group expression,
promotion, pursuit, or defense of “common interests relating to a governmental proceeding or a
matter of public concern.” Act of June 2, 2019, 86th Leg., R.S., ch. 378, § 1, 2019 Tex. Gen. Laws
684, 684.

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does not apply to Harbor America’s counterclaims. I would therefore affirm the
order of the trial court denying Reeves’s motion to dismiss. Because the majority
does not do so, I respectfully dissent.




                                          /s/       Jerry Zimmerer
                                                    Justice



Panel consists of Justices Wise, Bourliot, and Zimmerer (J. Zimmerer, dissenting).




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