                           NUMBER 13-17-00143-CV

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

CHRISTOPHER G. PEREZ AND
BLUE MARIACHI PRODUCTIONS, LLC.,                                       Appellants,

                                         v.

ABRAHAM QUINTANILLA, JR.,
AN INDIVIDUAL                                                            Appellee.


                  On appeal from the 148th District Court
                        of Nueces County, Texas.



                      MEMORANDUM OPINION
           Before Justices Benavides, Longoria and Hinojosa
              Memorandum Opinion by Justice Longoria

      Appellants Christopher G. Perez and Blue Mariachi Productions, LLC appeal from

an order denying their motion to dismiss appellee Abraham Quintanilla Jr.’s causes of

action pursuant to the Texas Citizens Participation Act (TCPA). See TEX. CIV. PRAC. &
REM. CODE ANN. §§ 27.001–.011 (West, Westlaw through 2017 1st C.S.). Appellants

assert that the trial court erred by denying their motion to dismiss. Specifically, the

appellants argue that the trial court erred by: (1) concluding that appellants did not

establish the applicability of the TCPA, (2) denying the motion to dismiss because

appellee did not provide clear and specific evidence establishing a prima facie case for

each element of his claims, (3) denying the motion to dismiss because appellants can

establish valid defenses, (4) overruling appellants’ evidentiary objections, and (5) denying

appellants their attorneys’ fees and expenses. We affirm.

                                   I.     BACKGROUND

       Christopher Perez and Selena Quintanilla-Perez (Selena) were married on April 2,

1992. Selena was killed on March 31,1995. Shortly after Selena’s death, in May 1995,

Abraham Quintanilla Jr., Selena’s father, presented Perez and Selena’s family members

with an “Estate Properties Agreement” (Agreement). While Perez contests the validity of

the Agreement, it contains his signature along with appellee’s. The agreement also

contains the signatures of Selena’s mother, Marcella Quintanilla, Selena’s brother,

Abraham Quintanilla, III (AB), and Selena’s sister, Suzette Quintanilla Arriaga. The

Agreement purports to grant ownership of “certain Entertainment Properties” to appellee,

including “all proprietary rights in the name, voice, signature, photograph, and likeness of

Selena.”

       In 2011, Perez authored a book by the title “To Selena, With Love,” which was

published and copyrighted in 2012. Perez later began working closely with a production




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company, Endemol Latino, 1 to develop and produce a television series based upon his

book.

        On or about December 2, 2016, appellee filed his original petition seeking a judicial

declaration that Perez violated the Agreement with the book and continued to violate the

Agreement through the exploitation of the book. Further, appellee sought a judicial

declaration that the Agreement prohibited Perez from entering into a contract with

Endemol Latino, and that the appellants “have no right to use, disseminate, exploit or

make any commercial use of the Entertainment Properties identified herein, specifically

including any adaptation of the unauthorized book into a television series, miniseries or

television movie. . . .”       The appellants moved to dismiss appellee’s claims pursuant to

the TCPA. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011. Appellee then filed

an amended petition alleging breach of contract in addition to his original claims. After a

hearing, the trial court denied the appellants’ motion to dismiss. This appeal followed.

                                             II.     THE TCPA

        The TCPA provides a mechanism for early dismissal of suits based on a party’s

exercise of the right of free speech, the right to petition, or the right of association. See

TEX. CIV. PRAC. & REM. CODE ANN. § 27.003. Section 27.003 allows a litigant to seek

dismissal of a “legal action” that is “based on, relates to, or is in response to a party’s

exercise of the right of free speech, right to petition, or right of association.”                    Id.

§ 27.003(a). A “‘legal action’ means a lawsuit, cause of action, petition, complaint, cross-

claim, or counterclaim or any other judicial pleading or filing that requests legal or

equitable relief.” Id. § 27.001(6). “The statute broadly defines ‘the exercise of the right



        1   Endemol Latino, a co-defendant in the underlying matter, is not a party to this appeal.

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of free speech’ as ‘a communication made in connection with a matter of public concern.’”

Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam) (citing TEX. CIV.

PRAC. & REM. CODE ANN. § 27.001(3)). “Under this definition, the right of free speech has

two components:      (1) the exercise must be made in a communication and (2) the

communication must be made in connection with a matter of public concern.” Id. “[T]he

statute defines ‘communication’ as ‘the making or submitting of a statement or document

in any form or medium, including oral, visual, written, audiovisual, or electronic.’” Id.

(citing TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(1)).             Thus, the statute defines

“communication” to include any form or medium—regardless of whether the

communication takes a public or private form. Id. A “matter of public concern” is defined

by the statute to include issues related to a public official or public figure, among other

things. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7); see Hicks v. Group & Pension

Administrators, Inc., 473 S.W.3d 518, 525 (Tex. App.—Corpus Christi 2015, no pet.).

       The Act imposes the initial burden on the movant to establish by a preponderance

of the evidence “that the legal action is based on, relates to, or is in response to the party’s

exercise” of the right of free speech, the right to petition, or the right of association. TEX.

CIV. PRAC. & REM. CODE ANN. § 27.005(b).            The Act then shifts the burden to the

nonmovant, allowing the nonmovant to avoid dismissal only by “establish[ing] by clear

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

question.” Id. § 27.005(c). The requirement that a plaintiff present “clear and specific

evidence” of “each essential element” means that “a plaintiff must provide enough detail

to show the factual basis for its claim.” In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015)

(orig. proceeding). “Though the TCPA initially demands more information about the



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underlying claim, the Act does not impose an elevated evidentiary standard or

categorically reject circumstantial evidence.” Id. If the nonmovant establishes a prima

facie case, the burden shifts back to the movant. In order to obtain dismissal, the movant

must establish 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); see

Deuell v. Texas Right to Life Comm., Inc., 508 S.W.3d 679, 684 (Tex. App.—Houston [1st

Dist.] 2016, pet. denied).

       When determining whether to dismiss the legal action, the court must consider “the

pleadings and supporting and opposing affidavits stating the facts on which the liability or

defense is based.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a). The court may allow

specified and limited discovery relevant to the motion on a showing of good cause, but

otherwise all discovery in the legal action is suspended until the court has ruled on the

motion to dismiss. Id. §§ 27.003, .006(b); see Hicks, 473 S.W.3d at 525–26.

       Under section 27.006 of the TCPA, the trial court may consider pleadings as

evidence. TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a). The TCPA does not require a

movant to present testimony or other evidence to satisfy the movant’s evidentiary burden.

Serafine v. Blunt, 466 S.W.3d 352, 360 (Tex. App.—Austin 2015, no pet.).

       We review de novo questions of statutory construction. 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 Act. We also review de novo a trial court’s determination of
       whether a nonmovant has presented clear and specific evidence
       establishing a prima facie case for each essential element of the challenged
       claims.

Id. at 357 (internal citations omitted).

                 III.    APPLICATION OF THE TCPA TO APPELLEE’S CLAIMS



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       In addressing appellants’ first issue, we must determine whether appellants

established by a preponderance of the evidence that the TCPA applies to the underlying

claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b). Section 27.003 provides that

a party may file a motion to dismiss if a legal action “is based on, relates to, or is in

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

association.” Id. § 27.003(a). Appellants assert that they exercised their rights of free

speech through the book “To Selena, with Love,” made in connection with a matter of

public concern, which included, in this case, issues related to a “public figure.” Id. §

27.001(3), (7)(D); see id. § 27.001(1).

       To determine whether appellee’s lawsuit is related to the exercise of free speech

under the TCPA, we begin our de novo review by looking at the pleadings. See id. §

27.006(a); Serafine, 466 S.W.3d at 357. In appellee’s original petition, he seeks a

declaration that appellants are violating the Agreement through “unauthorized exploitation

of the [b]ook.” Specifically, appellants’ intention to develop a “television series, miniseries

or television movie” violates the Agreement. Appellee argues that his claims are related

to appellants entering into an option contract, and that the option contract does not

constitute a communication. However, while appellee does claim that entering into the

option contract is a violation of the Agreement, it is clear from his pleadings that his intent

is to prevent the exploitation of the book into a televised series. The exploitation is in

reference to the development of a series related to the book. Additionally, appellee’s

original petition also states: “Defendant Perez materially breached the Estate Property

Agreement through the unauthorized exploitation of a book entitled “To Selena, with

Love,” which Books’ cover includes a photograph of Selena.”



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       The contents of the book relate to appellant Perez’s relationship and life with his

late wife, Selena. The Texas Supreme Court has noted two types of public figures:

       (1) all-purpose, or general-purpose, public figures, and (2) limited-purpose
       public figures. General-purpose public figures are those individuals who
       have achieved such pervasive fame or notoriety that they become public
       figures for all purposes and in all contexts. Limited-purpose public figures,
       on the other hand, are only public figures for a limited range of issues
       surrounding a particular public controversy.

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998) (citation omitted) (citing

Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)). Appellant Perez and Selena were

both musicians. Selena was famously well known both nationally and internationally for

her music, and as such, is a public figure.

       We conclude that appellee’s claims relate to a communication concerning a public

figure. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7)(D). Appellants met their initial

burden of showing that appellee’s claims were based on, related to, or were in response

to appellants’ exercise of the right to free speech, such that the TCPA applied to those

claims. See id. §§ 27.001(3), 27.001(7)(D), 27.005(b)(1). We sustain appellants’ first

issue to the extent that the trial court denied appellants’ motion to dismiss on the basis

that it failed to satisfy its burden.

                                    IV.   PRIMA FACIE CASE

       Having determined that appellants carried the initial burden under the TCPA, the

burden then shifted to appellee to present clear and specific evidence of a prima facie

case for each element of his claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c).

By their second issue, appellants allege that appellee does not meet the standard for a

declaratory judgment. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.004 (West, Westlaw

through 2017 1st C.S.).        A declaratory judgment is appropriate when a justiciable

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controversy exists concerning the rights and status of the parties and the controversy will

be resolved by the declaration sought. Bonham State Bank v. Beadle, 907 S.W.2d 465,

467 (Tex. 1995). But the Declaratory Judgment Act gives a court no power to decide

hypothetical or contingent situations or to determine questions not essential to the

decision of an actual controversy. City of Richardson v. Gordon, 316 S.W.3d 758, 761

(Tex. App.—Dallas 2010, no pet.); Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d 321,

324 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).

A.     Do the Pleadings and Evidence Demonstrate a Justiciable Controversy?

       Appellants argue that appellee presented no evidence of a justiciable controversy.

Specifically, appellants contend that appellee fails to explain how the book or the

derivative series are encompassed by the Agreement.          If the Agreement does not

encompass the activities complained of by appellee, appellants argue there is no

controversy. Appellee, however, argues that the controversy is actually whether the

option contract to create a series related to the book violates the Agreement. We agree

with appellee.

       We conclude that appellee adduced clear and specific evidence establishing a

prima facie case of the first element of its declaratory judgment claim: a justiciable

controversy exists as to the rights and status of the parties with respect to the Agreement

and whether the activities of appellants fall within that agreement. Also contained within

the pleadings is the counterclaim and third-party petition of appellant Perez. In his

petition, appellant Perez, while conceding that he did sign the Agreement, contends that

the Agreement is not enforceable because it was signed under duress and was




                                            8
fraudulently induced. From the pleadings it is clear that a controversy exists as to the

rights and status of the parties under the alleged Agreement.

       When we consider the evidence in a light favorable to the nonmovant, as we are

required to do, the evidence is sufficient to support a rational inference that a justiciable

controversy about the enforceability and scope of the Agreement exists. See Lipsky, 460

S.W.3d at 590 (TCPA nonmovant only required to adduce evidence to support rational

inference that allegation of fact is true); Newspaper Holdings, Inc. v. Crazy Hotel Assisted

Living, Ltd., 416 S.W.3d 71, 80 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (prima

facie case requires only minimum quantum of evidence necessary to support rational

inference that allegation of fact is true). We therefore hold that the appellee met his

burden to adduce clear and specific evidence that there is a justiciable controversy

between the parties. See Brooks v. Northglen Ass’n, 141 S.W.3d 158, 163–64 (Tex.

2004); Tex. Dep’t of Pub. Safety v. Moore, 985 S.W.2d 149, 153 (Tex. App.—Austin 1998,

no pet.).

B.     Will the Requested Declaration Resolve the Controversy?

       In his petition, appellee requests that the trial court determine the enforceability

and scope of the Agreement through the declarations sought. Appellants maintain that

appellee presented no justiciable controversy; however, they do not contend that, if such

a controversy exists, the requested declaratory judgment will not resolve it. The trial court

is left to determine whether or not to grant the declaratory relief sought. We conclude

that appellee met his burden of adducing clear and specific evidence that the controversy

would be resolved by the declarations sought. See Brooks, 141 S.W. at 163–64; see also




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Cosmopolitan Condo. Owners Ass’n v. Class A Inv’rs Post Oak, LP, No. 01-16-00769-

CV, 2017 WL 1520448, at *6 (Tex. App.—Houston [1st Dist.] Apr. 27, 2017, pet. denied).

       We overrule appellants’ second issue.

                                   V.     VALID DEFENSES

       By their third issue, appellants argue that even if appellee had met his statutory

burden under the TCPA to prove a prima facie case, the trial court erred by failing to grant

its motion to dismiss because it established by a preponderance of the evidence the

defenses of waiver and preemption under the federal copyright laws.

       Appellants did not raise a preemption argument under the federal copyright laws

in their motion to dismiss. Accordingly, they have waived that argument on appeal. See

TEX. R. APP. P. 33.1.

A.     Waiver

       In their original answer, appellants raised, among others, the affirmative defense

of waiver, it was also raised in appellants’ reply brief and argued at the hearing before the

trial court. Additionally, in its order denying appellants’ motion to dismiss, the trial court

stated that it considered the motion, responses and supplemental response, the reply,

and all of the pleadings and evidence presented. See Levinson Alcoser Associates, L.P.

v. El Pistolon II, Ltd., 513 S.W.3d 487, 493 (Tex. 2017); see also Urban Engineering v.

Salinas Construction Technologies, Ltd., No. 13-16-00451-CV, 2017 WL 2289029, at *5,

n. 4 (Tex. App.—Corpus Christi 2017, pet. denied) (mem. op.) (holding in an appeal from

denial of TCPA motion to dismiss that the appellants preserved for appellate review

application of an affirmative defense which had been raised in the pleadings, asserted in

the reply, argued in the trial court, and expressly considered by the trial court in its order).



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       Appellants contend that appellee waived his claim entirely by allowing the

publication of the book without taking any action to suggest the book violated the

Agreement or exploited the entertainment properties therein. Waiver is the intentional

relinquishment of a right actually or constructively known or intentional conduct

inconsistent with claiming that right. Ohrt v. Union Gas Corp., 398 S.W.3d 315, 329 (Tex.

App.–Corpus Christi 2012, pet. denied); see Jernigan v. Langley, 111 S.W.3d 153, 156

(Tex. 2003). The elements of waiver include: (1) an existing right, benefit, or advantage

held by a party; (2) the party’s actual or constructive knowledge of its existence; and (3)

the party’s actual intent to relinquish the right or intentional conduct inconsistent with the

right. Ohrt, 398 S.W.3d at 329 (citing Perry Homes v. Cull, 258 S.W.3d 580, 602–03 (Tex.

2008) (Johnson, J., concurring in part and dissenting in part)). Waiver is largely a matter

of intent, and for waiver to be implied through a party’s actions, intent must be clearly

demonstrated by the surrounding facts and circumstances. Crosstex Energy Servs., L.P.

v. Pro Plus, Inc., 430 S.W.3d 384, 393 (Tex. 2014); Jernigan, 111 S.W.3d at 156. Silence

or inaction, for so long a period as to clearly show an intention to yield the known right, is

also enough to prove waiver. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643

(Tex. 1996); see also Bruno Indep. Living Aids v. Yzaguirre, No. 13-15-00408-CV, 2016

WL 9000744, at *4 (Tex. App.—Corpus Christi Mar. 31, 2016, no pet.) (mem. op.).

       In this case, the first two elements of waiver are self-evident, given the nature of

the case. Appellants argue that the third element of intent was met because appellee

chose not to assert his rights when appellant Perez wrote and published his book, “To

Selena With Love.” However, appellants do not provide evidence that appellee intended

to waive his rights under the agreement in all regards merely because he allowed for the



                                             11
publication of the book. The mere acquiescence to the publishing of the book here does

not “clearly indicate” an intent to waive all claims regarding his rights under the Agreement

to prevent production of anything related to or considered a derivative of the book. See

Crosstex Energy, 430 S.W.3d at 393. Appellants did not meet their burden of establishing

each element of their affirmative defense of waiver by a preponderance of the evidence.

See Deuell, 508 S.W.3d at 684; TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d).

       We overrule appellants’ third issue.

                                VI.    EVIDENTIARY RULINGS

       In their fourth issue, appellants contend the trial court erred in denying their

evidentiary objections to appellee’s affidavits. Appellants argue that the affidavits relied

upon by appellee in his response to the motion to dismiss were “baseless opinion

testimony” that should have been disregarded. However, appellants do not provide the

objections they are challenging.      Rather, appellants conclude, without discussion or

analysis, that the affidavits are baseless opinion testimony. These conclusory statements

unsupported by relevant legal citations do not comply with appellate briefing

requirements. See TEX. R. APP. P. 38.1(i). Because these issues are inadequately

briefed, they are waived. See Bolling v. Farmers Brand Indep. Sch. Dist., 315 S.W.3d

893, 895 (Tex. App.—Dallas 2010, no pet.).

       We overrule appellants’ fourth issue.

                         VII.    ATTORNEY’S FEES AND EXPENSES

       In their fifth issue, appellants argue that they should have been awarded attorney’s

fees and expenses. However, having concluded that the trial court’s order shall be

affirmed, appellants are not entitled to such an award.



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      We overrule appellants’ fifth issue.

                                   VIII.     CONCLUSION

      The judgment of the trial court is affirmed.

                                                          NORA L. LONGORIA
                                                          Justice
Delivered and filed the
29th day of November, 2018.




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