       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                        NO. 03-19-00182-CV



                                    Conrad Bejarano, Appellant

                                                   v.

                                       John Dorgan, Appellee


              FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY
                             NO. D-1-GN-18-006382,
            THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING


                              MEMORANDUM OPINION


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

Citizens Participation Act (TCPA), Tex. Civ. Prac. & Rem. Code § 27.003. We will affirm the

district court’s order.


                                          BACKGROUND

                 As relevant to this appeal, Conrad Bejarano and John Dorgan jointly own a

well-established entertainment venue commonly known as Spider House, which is located near

the University of Texas at Austin. In 2017, former Spider House employee Jeremy Rogers1

published a Facebook post accusing Dorgan of engaging in years of unprofessional conduct

while managing the venue. The employee alleged that Dorgan was often inebriated or under the


        1
            Rogers is a defendant below but is not party to this appeal.
influence of illegal substances, was physically and verbally abusive to staff and customers, and

was generally incapable of managing the venue effectively. The post asked for the community’s

help in “dealing with the constant depravity of John Dorgan and his continuous hail storm

of abuse.”

                Shortly thereafter, someone posted a response to the allegations on Spider

House’s Facebook page. The response, signed by Bejarano on behalf of the venue’s ownership

and management, assured readers that Spider House “would take appropriate steps to make sure

our Spider House Family feels comfortable and secure.” This post further indicated that Dorgan

was “banned from the premises” and would “now and forever [be] a silent partner” in the

enterprise. It continued:


       Spider House as a whole has strived for 26 years to guarantee our establishment is
       a haven for all. We do not discriminate, or allow hateful situations to occur in our
       vicinity. We will continue to do so, working to gain and keep the trust and
       support from our community. The current management staff has an open door,
       open dialogue policy; that goes for both our staff and our guests. . . .

       At this time we would like our supporters, staff, and anyone currently or
       previously associated with Spider House to feel free to come to us at any time
       with comments or concerns they may have. Our hope is to have an open
       dialogue, allowing our community to heal. We hope you will continue coming to
       Spider House for shows, events, and more.2



Bejarano maintains that he did not post or approve this statement, but Dorgan alleges that

Bejarano authored the statement himself or “could have effected its retraction or correction.”

                Dorgan sued Bejarano and others, alleging libel, slander, and business

disparagement. Bejarano moved to dismiss under the TCPA, arguing that Dorgan’s claims arise

from his right to the exercise of free speech. See id. The district court denied the motion to

       2
           Spelling and punctuation reflect those in the Facebook post.
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dismiss and Bejarano timely perfected this appeal. See id. § 27.008(b) (authorizing accelerated

interlocutory appeal).


                                            DISCUSSION

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

raising arguments that: (1) the TCPA applies to Dorgan’s claims against him; (2) Dorgan cannot

make out a prima facie case for the elements of his claims; and (3) those claims do not fall into

any statutory exception. Dorgan responds that even if the statute applies to his claims, he can

make out a prima facie case for each element of the claims and that the claims fall into the

TCPA’s exception for commercial speech. See id. § 27.003, .010.

                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. 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 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) (per curiam) (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.,


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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, once 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. at 872–73 (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.). “In determining whether a legal action should be dismissed under this chapter, the court

shall consider the pleadings and supporting and opposing affidavits stating the facts on which the

liability or defense is based.” See Tex. Civ. Prac. & Rem. Code § 27.010(b). We take these facts

as true when evaluating the motion to dismiss. Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex.

App.—Austin 2015, pet. dism’d).

               The parties do not dispute that Dorgan’s claims constitute “legal actions” as that

phrase is defined by the TCPA. Tex. Civ. Prac. & Rem. Code § 27.001(6) (defining “legal

action” to include any “cause of action”). These legal actions arise from Bejarano’s exercise of

his right to free speech, which the statute defines as any “communication made in connection

with a matter of public concern.” See id. § 27.001(7). “Matters of public concern” include

issues related to “health or safety,” “community well-being,” or “goods products or services in

the market.” Id. § 27.001(3). In this case, the disputed statement responds to allegations of

verbal and physical abuse at a popular music venue and accusations of chronic intoxication and

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illegal substance use that rendered its management “unpredictable,” “irrational,” and

“dangerous.” These are matters of health, safety, and community well-being, and they implicate

the services offered by the venue. See, e.g., Warner Bros. Entm’t, Inc. v. Jones, 538 S.W.3d 781,

797 (Tex. App.—Austin 2017, pet. granted) (mental health and individual safety); Cavin

v. Abbott, 545 S.W.3d 47, 64 (Tex. App.—Austin 2017, no pet.) (mental health and allegations

of assault); Fishman v. C.O.D. Cap. Corp., No. 05-16-00581-CV, 2017 WL 3033314, at *6 (Tex.

App.—Dallas July 18, 2017, no pet.) (mem. op.) (illegal activity).

               Because Bejarano satisfied his burden to show the TCPA applicable to Dorgan’s

claims, to avoid dismissal Dorgan must make a prima facie case for each element of those claims

or must demonstrate that his claims fall into a statutory exception. See Tex. Civ. Prac. & Rem.

Code § 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 without

evaluating Dorgan’s prima facie case. See Tex. Civ. Prac. & Rem. Code § 27.010(b); Tex. R.

App. P. 47.1 (requiring courts of appeals to render opinions “as brief as practicable”). We

express no opinion on his ability to prevail on those claims.

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

apply to a legal action brought against a person primarily engaged in the business of selling or

leasing goods or 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 the 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

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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.

               All four elements of the exception are present here.       First, as co-owner of

Spider House, Bejarano was primarily engaged in the business of selling goods and services

when the disputed statement appeared on Facebook. Dorgan’s petition for relief describes Spider

House as a popular venue for public entertainment and private events. Bejarano characterizes

Spider House as “a coffee shop, bar, and events space that offers food, beverages, and a venue

for events.” Under either party’s characterization of the business, Spider House and its owners

are primarily engaged in selling goods or services.

               Second, to the extent Bejarano made the disputed statements, he did so in his

capacity as a purveyor of those goods and services. Although Bejarano denies he made or

approved the Facebook post at issue, this Court “must assume that he did make the statement for

purposes of determining whether the statement is exempted from the TCPA’s application.”

Morrison v. Profanchik, 578 S.W.3d 676, 683 (Tex. App.—Austin, no pet. h.).            The post

appeared on Spider House’s official Facebook page and was signed by “Owner Conrad Bejarano

and Current Management.” The author of the post uses the first-person narrative voice to refer to

the venue, its management, and its staff, insisting that “we are taking the appropriate steps to

make sure our Spider House Family feels comfortable and secure,” and promising readers a

“haven for all.” In other words, the statement was made “for the purpose of securing sales in the

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goods or services of the person making the statement.” Backes v. Misko, 486 S.W.3d 7, 21 (Tex.

App.—Dallas 2015, pet. denied).

               With respect to the third element, Bejarano contends that the online statement

arose from Dorgan’s alleged misconduct and not from any commercial transaction involving the

kind of goods or services offered by Spider House. We disagree. As this Court recently

explained, “A ‘commercial transaction’ need not be consummated and can include conduct or

statements that merely ‘propose[ ] a commercial transaction.’” See Rose v. Scientific Mach.

& Welding, Inc., No. 03-18-00721-CV, 2019 WL 2588512, at *6 (Tex. App.—Austin

June 25, 2019, no pet.) (mem. op.) (quoting Castleman, 546 S.W.3d at 690, and citing Toth

v. Sears Home Improvement Prods., Inc., 557 S.W.3d 142, 154 (Tex. App.—Houston [14th

Dist.] 2018, no pet.)). Here, the disputed post encouraged the “Spider House Family” to continue

coming to the venue “for shows, events, and more.” Thus, Spider House “pursued business for

itself and stood to profit from it.”        See Staff Care, Inc. v. Eskridge Enters., LLC,

No. 05-18-00732-CV, 2019 WL 2121116, at *8 (Tex. App.—Dallas May 15, 2019, no pet.)

(mem. op.) (citing Castleman, 546 S.W.3d at 690–91).          As a co-owner of Spider House,

Bejarano also stood to profit from that business.

               And finally, the intended audience included both actual and potential Spider

House customers. The Facebook post was expressly addressed to Spider House “staff,” its

“guests,” and “anyone currently or previously associated with” the venue. Taking Dorgan’s

allegations as true, as we must, see Sloat, 513 S.W.3d at 504, we conclude his claims against

Bejarano fall within the TCPA’s exception for commercial speech. The district court therefore

did not err in denying Bejarano’s motion to dismiss, and we overrule his sole issue on appeal.



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                                       CONCLUSION

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

Civil Practice and Remedies Code Section § 27.005, we affirm its order.




                                            __________________________________________
                                            Edward Smith, Justice

Before Chief Justice Rose, Justices Kelly and Smith

Affirmed

Filed: September 18, 2019




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