                    COURT OF APPEALS
                     SECOND DISTRICT OF TEXAS
                          FORT WORTH

                        NO. 02-13-00353-CV


UNITED FOOD AND COMMERCIAL                       APPELLANTS
WORKERS INTERNATIONAL
UNION, ORGANIZATION UNITED
FOR RESPECT AT WALMART,
NORTH TEXAS JOBS WITH
JUSTICE, LESTER EUGENE
LANTZ, AND DOES 1-10

                                    V.

WAL-MART STORES, INC.; WAL-                       APPELLEES
MART REAL ESTATE BUSINESS
TRUST; WAL-MART REALTY
COMPANY; WAL-MART STORES
TEXAS, LLC; WAL-MART STORES
EAST, LP; AND SAM’S EAST, INC.


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       FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

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                             OPINION

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                                 I. INTRODUCTION

      This is an interlocutory appeal from the trial court’s order denying

Appellants’ motion to dismiss filed pursuant to the Texas Citizens’ Participation

Act (TCPA). Because Appellees established by clear and specific evidence a

prima facie case for each essential element of their trespass claim and because

Appellants failed to establish by a preponderance of the evidence each essential

element of the defense of consent, we will affirm the trial court’s denial of

Appellants’ motion to dismiss.        See Tex. Civ. Prac. & Rem. Code Ann.

§ 27.005(c), (d) (West Supp. 2013).

               II. BRIEF FACTUAL AND PROCEDURAL BACKGROUND1

      The second amended petition filed by Appellees Wal-Mart Stores, Inc.;

Wal-Mart Real Estate Business Trust; Wal-Mart Realty Company; Wal-Mart

Stores Texas, LLC; Wal-Mart Stores East, LP; and Sam’s East, Inc. (collectively

Wal-Mart) details numerous incidents in which Appellants United Food and

Commercial Workers International Union (UFCW) and Organization United For

Respect At Walmart (OURWalmart) repeatedly entered onto Wal-Mart’s private

property,   despite   posted   no-solicitation   signs,   and   engaged   in   mass

demonstrations. During the demonstrations, UFCW and OURWalmart blocked

ingress and egress to parking lots, parking spaces, vehicular traffic, and store

      1
        The approximately 1,200-page clerk record indicates that the details of the
underlying case are well-known to the parties. Because the disposition of this
interlocutory appeal does not necessitate setting forth the facts of every single
trespass incident that has occurred, we set forth only a brief summary.

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entrances; they screamed through bullhorns, paraded around with banners and

signs on sticks, conducted in-store “flash mobs,” and diverted management and

local police from their normal job functions. In addition to interfering with working

Wal-Mart associates, UFCW’s and OURWalmart’s conduct interfered with Wal-

Mart customers as they tried to shop. UFCW and OURWalmart refused to leave

when instructed by Wal-Mart management; they left only when they were forced

to leave by police or by the threat of police intervention.

      By letters dated October 14, 2011; October 8, 2012; November 15, 2012;

and April 18, 2013, Wal-Mart formally notified UFCW and OURWalmart that their

representatives were to cease and desist from trespassing on Wal-Mart’s private

property in Texas.     The letters stated that Wal-Mart revoked any license or

permission that UFCW and OURWalmart may have previously had as members

of the general public to be in or on a Wal-Mart facility, sidewalk, or parking lot if

they solicited, distributed literature, or otherwise engaged in any demonstration.

Despite the notifications, the demonstrations continued at various Wal-Mart

locations.

      Wal-Mart initiated the underlying trespass suit against Appellants UFCW,

OURWalmart, North Texas Jobs With Justice, Lester Eugene Lantz, and Does 1-

10 (collectively United Food) and sought a permanent injunction so that Wal-Mart

could manage, control, and operate its business affairs on its private property

free from United Food’s trespasses and disruptions. United Food filed a plea to



                                          3
the jurisdiction,2 special exceptions, and an answer in which United Food

pleaded the affirmative defense that Wal-Mart had consented to United Food’s

entry onto Wal-Mart’s property. United Food thereafter filed a motion to dismiss

under the TCPA.      Wal-Mart filed a response in opposition to the motion to

dismiss and attached declarations from Wal-Mart employees who had witnessed

the mass demonstrations; the declarants described the demonstrations, the

duration of the demonstrations, and the disruption the demonstrations caused in

the Wal-Mart stores.     Some of the declarations included an attached DVD

containing YouTube videos of several of the mass demonstrations. Wal-Mart

also attached to its response leases and deeds establishing its ownership of the

Wal-Mart stores and property and photographs of the posted no-solicitation signs

at various Wal-Mart stores.      Finally, Wal-Mart’s response attached the four

cease-and-desist letters sent to United Food asking that its representatives stop

trespassing on Wal-Mart property. After a hearing, the trial court denied United

Food’s motion to dismiss under the TCPA.              United Food perfected this

interlocutory appeal, raising three issues challenging the trial court’s denial of the

motion to dismiss under the TCPA.


      2
       The trial court denied United Food’s plea to the jurisdiction, and United
Food filed a petition for writ of mandamus in this court. After hearing oral
argument, this court denied United Food’s petition for writ of mandamus. In re
United Food & Commercial Workers Int’l Union, No. 02-13-00434-CV, 2014 WL
670663, at *1 (Tex. App.—Fort Worth Feb. 20, 2014, orig. proceeding) (mem.
op.). On March 27, 2014, United Food filed a petition for writ of mandamus in the
Texas Supreme Court.

                                          4
    III. TRIAL COURT PROPERLY DENIED MOTION TO DISMISS UNDER THE TCPA

      In its first and second issues, United Food argues that the trial court erred

by denying the motion to dismiss under section 27.005 of the TCPA.

                               A. Applicable Law

      The Texas Legislature enacted the TCPA “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 a person to file meritorious lawsuits for

demonstrable injury.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002 (West Supp.

2013). To achieve these ends, the legislature provided that if a legal action is

brought in response to a party’s exercise of the right of free speech, the right to

petition, or the right of association, that person may move to dismiss the action.

Id. § 27.003(a) (West Supp. 2013). The movant bears the initial burden to show

by a preponderance of the evidence that the action “is based on, relates to, or is

in response to the party’s exercise” of any of the aforementioned constitutional

rights. Id. § 27.005(b). If the movant satisfies this burden, the trial court must

dismiss the legal action unless the party who brought the action “establishes by

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

claim in question.” Id. § 27.005(b), (c). Notwithstanding whether the previous

burden is met, the trial court shall dismiss a legal action against the moving party

if the moving party establishes by a preponderance of the evidence each

essential element of a valid defense to the nonmovant’s claim. Id. § 27.005(d).

                                         5
                              B. Standard of Review

      We review de novo a trial court’s ruling on a motion to dismiss under the

TCPA. See Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 724–27 (Tex.

App.—Houston [14th Dist.] 2013, pet. denied). Accordingly, we review de novo

whether (1) the movant satisfied the initial burden imposed by section 27.005(b),

(2) the nonmovant satisfied the burden imposed by section 27.005(c), and (3) the

movant satisfied the burden imposed by section 27.005(d). In reviewing the trial

court’s determination of whether a legal action should be dismissed under

subsections (c) and (d) of section 27.005, we consider the pleadings and

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

defense is based. Accord Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a) (West

Supp. 2013) (requiring the trial court to consider these items); Sierra Club v.

Andrews Cnty., 418 S.W.3d 711, 715 (Tex. App.—El Paso 2013, pet. filed).

                                     C. Analysis

                            1. Under Section 27.005(b)

      With regard to the initial burden under section 27.005(b), we note that

courts have traditionally determined that actions such as picketing and

distributing handbills fall within the right of free speech or the right of association.

See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)(1), (3); see, e.g., Lloyd Corp.,

Ltd. v. Tanner, 407 U.S. 551, 552, 570, 92 S. Ct. 2219, 2221, 2229 (1972) (right

to distribute handbills treated as First Amendment right). For purposes of this

appeal only, we will assume that United Food met by a preponderance of the

                                           6
evidence the initial burden of showing that Wal-Mart’s claims against United

Food constitute a legal action based on, related to, or in response to United

Food’s exercise of the right of free speech or the right of association so as to fall

within the ambit of the TCPA.         See Tex. Civ. Prac. & Rem. Code Ann.

§§ 27.003(a), .005(b).

                           2. Under Section 27.005(c)

      Assuming United Food met its burden under section 27.005(b), the burden

then shifted under section 27.005(c) to Wal-Mart, as the nonmovant to United

Food’s motion to dismiss, to establish by clear and specific evidence a prima

facie case for each essential element of trespass. Id. § 27.005(c). “Trespass to

real property requires a showing of an unauthorized physical entry onto the

plaintiff’s property by some person or thing.”      Cain v. Rust Indus. Cleaning

Servs., 969 S.W.2d 464, 470 (Tex. App.—Texarkana 1998, pet. denied) (citing

R.R. Comm’n of Tex. v. Manziel, 361 S.W.2d 560, 567 (Tex. 1962)). United

Food does not dispute that its participants, for the purpose of engaging in mass

demonstrations,3 entered land that is owned or leased by Wal-Mart. Instead,

United Food contends that its representatives were invitees who were authorized


      3
       We use the term “mass demonstrations” as a shorthand to refer to all of
the behavior listed above in the background section, including, but not limited to,
blocking ingress and egress to parking lots, parking spaces, vehicular traffic, and
store entrances; screaming through bullhorns; parading around with banners and
signs on sticks; conducting in-store “flash mobs”; diverting management and
local police from their normal job functions; interfering with working Wal-Mart
associates; and interfering with Wal-Mart customers as they try to shop.

                                         7
to be on Wal-Mart’s property to engage in mass demonstrations because Wal-

Mart’s facilities are open to the public, which “is all that is required to confer

invitee status on the entrant.”

      In determining whether a particular person is an invitee or a business

visitor, “the important thing is the desire or willingness to receive that person

which a reasonable man would understand as expressed by the words or other

conduct of the possessor.” Carlisle v. J. Weingarten, Inc., 152 S.W.2d 1073,

1076 (Tex. 1941).     Also, a person lawfully on the property of another as an

invitee who uses the property on a venture in his own interests and not within the

scope of his invitation or for the purpose for which the property was reasonably

intended, loses his status as an invitee and becomes a trespasser.         Burton

Constr. & Shipbuilding Co. v. Broussard, 273 S.W.2d 598, 603 (Tex. 1954);

Mayer v. Willowbrook Plaza LP, 278 S.W.3d 901, 909 (Tex. App.—Houston [14th

Dist.] 2009, no pet.); see also Harmon v. Gen. Motors Corp., 999 F.2d 964, 965–

66 (5th Cir. 1993) (holding plaintiff/employee’s use of hoist without General

Motors’s permission rendered him a trespasser even though he was an invitee as

to the work he was assigned to perform).

      Here, although United Food’s representatives may have had invitee status

when shopping in Wal-Mart, they became trespassers when they used Wal-Mart

property on a venture for their own purposes. The words and conduct of the

possessor—Wal-Mart—established that Wal-Mart was not inviting United Food’s

representatives to perform mass demonstrations in Wal-Mart stores or on Wal-

                                        8
Mart property.    See Carlisle, 152 S.W.2d at 1076.          To the contrary, the

declarations and exhibits attached to Wal-Mart’s response to United Food’s

motion to dismiss along with Wal-Mart’s four letters—notifying UFCW and

OURWalmart that their representatives were to cease and desist from

trespassing on Wal-Mart’s private property in Texas and revoking any license or

permission that UFCW and OURWalmart may have previously had as members

of the general public to be in or on a Wal-Mart facility, sidewalk, or parking lot if

they solicited, distributed literature, or otherwise engaged in any demonstration—

all constitute clear and specific evidence that Wal-Mart had either not expressed

or had revoked any willingness to receive United Food’s representatives onto

Wal-Mart properties to engage in mass demonstrations.4 See Burton Constr. &

Shipbuilding Co., 273 S.W.2d at 603; Mayer, 278 S.W.3d at 909; see also

Harmon, 999 F.2d at 965–66.        We hold that Wal-Mart met its burden under



      4
        United Food argues that Wal-Mart’s letters were ineffective because they
were addressed to UFCW and OURWalmart instead of to the individual mass
demonstration participants. No evidence exists in the record that the mass
demonstration participants were not affiliated with UFCW or OURWalmart.
Moreover, as pointed out by Wal-Mart, all its stores had posted no-solicitation
signs, putting all entrants on notice that the invitation to enter did not extend to
solicitation activities.   United Food also argues that because the mass
demonstration participants departed with reasonable promptness after being
asked to leave, they were not trespassers. The promptness of a trespasser’s
departure does not alter his status as a trespasser for purposes of the civil tort of
trespass. Compare Burton Constr. & Shipbuilding Co., 273 S.W.2d at 603
(stating that when a person becomes a trespasser, he remains such until he has
acquired a different status), with Tex. Penal Code Ann. § 30.05(a)(2) (West
Supp. 2013) (requiring that a person receive notice to depart in order to commit
the offense of criminal trespass of certain types of property).
                                         9
section 27.005(c) to establish by clear and specific evidence a prima facie case

for each essential element of trespass.

                          3. Under Section 27.005(d)

      If the party opposing dismissal under the TCPA meets section 27.005(c)’s

burden of establishing by clear and specific evidence a prima facie case for each

essential element of the claim in question, the trial court nonetheless shall

dismiss the action if the moving party establishes 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).

      In its answer filed in the trial court, United Food pleaded consent as an

affirmative defense to Wal-Mart’s trespass claim. See Gen. Mills Rests., Inc. v.

Tex. Wings, Inc., 12 S.W.3d 827, 835 (Tex. App.—Dallas 2000, no pet.)

(recognizing that actual or apparent consent is an affirmative defense to a cause

of action for trespass). To establish actual or apparent consent, the Dallas Court

of Appeals explained,

              Apparent consent must be given by someone acting with the
      authority of the landowner or one with rightful possession. See
      Armintor v. Community Hosp., 659 S.W.2d 86, 90 (Tex. App.—
      Houston [14th Dist.] 1983, no writ); see also Carr, 893 S.W.2d at 623
      (summary judgment on issue of trespass was inappropriate unless
      defendants proved they received apparent consent of someone
      acting with authority of landowner). Consent to enter property may
      be manifested by the owner’s conduct or by the condition of the land
      itself. See Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 671 (Tex.
      1999) (O’Neill, J., dissenting).

Id.


                                          10
      On appeal, the consent that United Food contends its representatives

possessed is the consent to enter Wal-Mart as invitees.5 Here, as shown by the

temporary restraining order that Wal-Mart obtained in the trial court and which

was continued by a temporary order from this court during the pendency of the

appeal, Wal-Mart demonstrated a willingness to receive United Food’s

representatives for the purposes of “shopping for and/or purchasing merchandise

at Walmart stores.”      United Food did not present any evidence, however,

showing that its representatives were on Wal-Mart’s private property for the

purposes of shopping for and/or purchasing merchandise at Walmart stores.

Instead, Wal-Mart established by clear and specific evidence that after entering

Wal-Mart’s   property,   United   Food’s    representatives   engaged   in   mass

demonstrations and, by doing so, used Wal-Mart property on a venture in their

own interests that was not within the scope of Wal-Mart’s invitation to shop at

Wal-Mart and that was not for the purpose for which the Wal-Mart property was

reasonably intended to be used such that United Food’s representatives were

trespassers. United Food did not bring forth any evidence showing that Wal-Mart

had consented to United Food’s participants’ presence on Wal-Mart’s property for

the purpose of engaging in mass demonstrations. We hold that United Food did

not meet its burden under section 27.005(d) of establishing by a preponderance

      5
       United Food’s brief states, “As invitees, Appellants had permission to
enter Appellee’s property”; “[o]n every occasion that Appellants entered
Appellees’ property, it was done with legal authority or permission because
Appellants were invitees.”

                                       11
of the evidence its consent defense. See Tex. Civ. Prac. & Rem. Code Ann.

§ 27.005(d); accord Millmen Union, Loc. 324, AFL v. Mo.-Kan.-Tex. R.R. Co. of

Tex., 253 S.W.2d 450, 453 (Tex. Civ. App.—Waco 1952, writ ref’d n.r.e.) (holding

that picketers cannot trespass on private property of railroad).

                                   4. Summary

      Because Wal-Mart met its burden under section 27.005(c) and because

United Food did not meet its burden under section 27.005(d), the trial court was

not required to dismiss Wal-Mart’s suit against United Food. We therefore hold

that the trial court did not err by denying United Food’s motion to dismiss under

the TCPA. Based on our holding, we overrule United Food’s first and second

issues, and we overrule as moot United Food’s third issue, which is contingent

upon this court’s holding that the trial court erred by denying United Food’s

motion to dismiss.

                                 IV. CONCLUSION

      Having overruled each of United Food’s three issues, we affirm the trial

court’s order denying United Food’s motion to dismiss under the TCPA. We

further order this court’s October 22, 2013 temporary order, which continued

provisions of the trial court’s October 9, 2013 temporary restraining order “until

disposition of this interlocutory appeal or until further order of this court,”

dissolved as of 5 p.m. on April 17, 2014, and we deny as moot “Appellants’

Motion For Expedited Reconsideration Of Temporary Order.”



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                                        /s/ Sue Walker
                                        SUE WALKER
                                        JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DELIVERED: April 17, 2014




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