               In the
          Court of Appeals
  Second Appellate District of Texas
           at Fort Worth
      --------------------------------------------
              No. 02-17-00223-CV
      --------------------------------------------

       CYNTHIA BEVING, Appellant

                          v.

  JOHN F. BEADLES, INDIVIDUALLY AND AS
INDEPENDENT EXECUTOR OF THE ESTATE OF
      DUDLEY D. BEADLES, Appellee



    On Appeal from the 96th District Court
           Tarrant County, Texas
       Trial Court No. 096-283896-16


    Before Gabriel, Pittman, and Birdwell, JJ.
          Opinion by Justice Pittman
      Gabriel, J., concurs without opinion.
                                      OPINION

      Once again, this court must don its legal pith helmet and face the task of

exploring the farthest reaches of the Texas Citizens Participation Act (TCPA).1

Specifically, this court must address whether the trial court correctly denied Appellant

Cynthia Beving’s TCPA motion to dismiss the third-party action filed against her by

Appellee John F. Beadles, individually and in his capacity as executor of the estate of

Dudley D. Beadles (Beadles). For the reasons set forth herein, we affirm the trial

court’s denial of Beving’s motion to dismiss and remand the case for further

proceedings.

                                  BACKGROUND

      This appeal involves a litigious and rancorous break-up of a business owned

and operated by four attorneys. Although the clerk’s record is voluminous and the

parties’ briefs are unnecessarily verbose, the sole issue in this appeal is fairly simple

and the background of the underlying litigation straightforward.

      The law firm Beadles, Newman & Lawler, PC (BNL) was formed in 1990 by

attorneys and founding shareholders Dudley Beadles, Charles Newman, and Frank

Lawler. Later, Dudley’s son, John Beadles, became a shareholder. BNL’s business


      1
        See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.011 (West 2015). The
TCPA is commonly referred to as Texas’s “Anti-SLAPP” statute, so-called because
the TCPA seeks to limit “Strategic Lawsuit[s] Against Public Participation.” See In re
Lipsky, 411 S.W.3d 530, 536 n.1 (Tex. App.—Fort Worth 2013, orig. proceeding),
mand. denied, 460 S.W.3d 579 (Tex. 2015).


                                           2
focused on preparing closing documents for title companies, bankers, and realtors.

BNL asserts that because of the nature of this business, it developed and relied upon

certain proprietary software that provided BNL a competitive advantage.

         Beving was hired by BNL on November 16, 2005, to act as the firm’s

comptroller, and she later became the firm’s director of human resources. It appears

that Beving’s tasks as comptroller also included managing payroll. Shortly after

joining BNL, Beving began assisting Dudley with various personal tasks—i.e., paying

personal bills and managing medical concerns—that she completed during work

hours.

         Charles and Frank eventually became dissatisfied with the structure and

operation of BNL; in short, they believed they were doing most of the work to

generate business but Dudley and John were making more money than Frank. Thus,

Charles and Frank began considering forming a new firm. When Charles met with

Dudley to discuss these issues, Beving was present to take notes. As the men

continued to discuss their options for restructuring, Beving often served as a liaison

passing correspondence between them.

         Negotiations broke down and Charles and Frank formed the new firm.

However, in the transition, Beving alleges that Charles instructed her not to inform

Dudley that the new firm had in fact been formed. Beving further alleges that when

Charles announced the new firm to BNL’s employees, he instructed all of the

employees who wished to leave with Charles and Frank to tender resignation letters,

                                          3
which Beving did.     Beving states that Charles tasked her with investigating and

completing all necessary steps for getting the new firm up and running, and that at all

relevant times during the transition, she acted pursuant to Charles’s direction and

authorization.

      Although Dudley seemingly had no objections to the transition, only weeks

after the new firm commenced operations, it received a letter demanding that it cease

and desist using certain software and assets purportedly owned by BNL. Charles

responded by filing the underlying lawsuit against BNL, Dudley, John, and American

Document Systems, LLC, seeking, inter alia, injunctive relief to continue using the

software. Beving contends that she was asked to sign an affidavit to serve as evidence

in support of Charles’s lawsuit and request for injunctive relief. After Charles filed his

lawsuit, Beving was deposed.

      Shortly after Beving’s deposition, BNL, Dudley, and John filed counterclaims

against Charles and Frank, and although they did not file suit against Beving, their

counterclaim asserted that Beving was a co-conspirator who had helped Charles and

Frank destroy BNL. Several months later, Beving received a letter from BNL’s

attorney who alleged that “[i]t is clear from your own testimony . . . that you have

encouraged, aided, participated and have benefitted by the wrongs that you and others

have committed,” and demanded payment of $17,020,971 in damages.




                                            4
      Litigation progressed, but Beving was not added as a party. However, about six

months after receiving the demand letter, BNL, Dudley, and John2 filed an amended

pleading and added Beving as a third-party defendant, with Dudley asserting claims

against her for breach of fiduciary duties, tortious interference with contract, tortious

interference with prospective relations, fraud, fraud by nondisclosure, aiding and

abetting, conspiracy, and unjust enrichment, and John asserting claims against her for

fraud, fraud by nondisclosure, aiding and abetting, conspiracy, and unjust enrichment.

The amended pleading asserted, in part, that

      [i]nstead of spending time doing what they had promised (negotiating
      the purchase of the company’s assets and returning the company’s
      documents), [Beving and other defendants] started planning and then
      executed a “preemptive strike” against the company by filing a fictitious
      lawsuit with false allegations.

             . . . Beving signed an affidavit that contained false allegations of
      fact and purposely failed to disclose other material facts with the
      intention of misleading the company and the court to allow these
      Defendants to continue misappropriating the company’s property.
      Beving . . . knew that the statements were and are false and knew that
      the affidavit failed to disclose other material information.

The allegations notwithstanding, the thirteen specific causes of action are all based on

facts occurring during the dissolution of BNL and formation of the new firm and not

from statements made in Beving’s affidavit or deposition.




      2
       Dudley passed away during this lawsuit, and his claims were brought by John
as independent executor of his estate.


                                           5
      Beving filed a TCPA motion to dismiss. Beadles filed a response. After

Beving filed her motion to dismiss but before the hearing on the motion, Beadles

amended again to remove the allegations that Beving had provided false testimony in

her affidavit to support a “fictitious lawsuit with false allegations.” After the parties

appeared for a hearing, the trial court denied Beving’s motion to dismiss. This appeal

followed.

      Beving raises a single issue and asserts that the trial court erred by denying her

motion to dismiss because she established that Beadles’s third-party claims fell within

the scope of the TCPA, because Beadles failed to establish a prima facie case to

support his claims by clear and specific evidence, and because Beving established by a

preponderance of the evidence her defenses to Beadles’s claims.

                                 APPLICABLE LAW

I.    The TCPA

      The TCPA was passed to “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; see D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d

429, 433–35 (Tex. 2017) (explaining that the TCPA seeks to balance the tension

between protecting First Amendment freedoms and preserving the rights of

individuals to file meritorious lawsuits); see also Lipsky, 460 S.W.3d at 584. Thus, at an

                                            6
early stage in litigation, a defendant may file a motion to dismiss a legal action

pursuant to the TCPA. Tex. Civ. Prac. & Rem. Code Ann. § 27.003.

      Once a motion to dismiss is filed, a burden-shifting mechanism goes into

effect. Lipsky, 460 S.W.3d at 586–87. First, a defendant moving for dismissal has the

burden to show by a preponderance of the evidence that the plaintiff filed a “legal

action” that is “based on, relates to, or is in response to” the defendant’s exercise of

the right of free speech, the right to petition, or the right of association. Tex. Civ.

Prac. & Rem. Code Ann. §§ 27.003(a), .005(b); Youngkin v. Hines, 546 S.W.3d 675, 679

(Tex. 2018). Second, if the defendant satisfies that burden, to avoid dismissal, a

plaintiff must establish by clear and specific evidence a prima facie case for each

essential element of its claim. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). The

requirement for “clear and specific evidence” means the plaintiff “must provide

enough detail to show the factual basis for its claim.” Lipsky, 460 S.W.3d at 590–91.

Third, even if the plaintiff establishes a prima facie case, the defendant can still obtain

dismissal if he “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).

II.   Standard of Review

      We review a trial court’s ruling on a TCPA motion to dismiss de novo.

DeAngelis v. Protective Parents Coal., No. 02-16-00216-CV, 2018 WL 3673308, at *9 (Tex.

App.—Fort Worth Aug. 2, 2018, no pet.); Lane v. Phares, 544 S.W.3d 881, 886 (Tex.

                                            7
App.—Fort Worth 2018, no pet.). Specifically, we review 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 TCPA. Serafine v. Blunt, 466 S.W.3d 352,

357 (Tex. App.—Austin 2015, no pet.) (op. on reh’g). In our review, we 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); Campbell

v. Clark, 471 S.W.3d 615, 623 (Tex. App.—Dallas 2015, no pet.).

                   THE TCPA’S APPLICABILITY VEL NON

      The threshold question we must resolve is whether the TCPA applies to this

case. Youngkin, 546 S.W.3d at 680. When the trial court denied Beving’s motion to

dismiss, it did not expressly determine whether she met this burden. Thus, we begin

our de novo review by considering whether Beving set forth a preponderance of the

evidence to establish that Beadles’s third-party claims are subject to the TCPA. See

Serafine, 466 S.W.3d at 357.

I.    Beving’s Affidavit and Deposition Testimony Constituted an Exercise of
      her Right to Petition as Defined by the TCPA

      “[W]hen interpreting any statute, we should begin with the statutory language.”

Holder v. Hall, 512 U.S. 874, 914, 114 S. Ct. 2581, 2603 (1994) (Thomas, J.,




                                         8
concurring). The TCPA broadly3 defines the “exercise of the right to petition” to

mean any of the following:

             (A) a communication in or pertaining to:

                    (i) a judicial proceeding;

                    (ii) an official proceeding, other than a judicial proceeding,
                    to administer the law;

                    (iii) an executive or other proceeding before a department
                    of the state or federal government or a subdivision of the
                    state or federal government;

                    (iv) a legislative proceeding, including a proceeding of a
                    legislative committee;

                    (v) a proceeding before an entity that requires by rule that
                    public notice be given before proceedings of that entity;

                    (vi) a proceeding in or before a managing board of an
                    educational or eleemosynary institution supported directly
                    or indirectly from public revenue;

                    (vii) a proceeding of the governing body of any political
                    subdivision of this state;

                    (viii) a report of or debate and statements made in a
                    proceeding described by Subparagraph (iii), (iv), (v), (vi), or
                    (vii); or

                    (ix) a public meeting dealing with a public purpose,
                    including statements and discussions at the meeting or
                    other matters of public concern occurring at the meeting;



      3
       See Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 283 (Tex. App.—Dallas 2015,
pet. denied) (“‘Exercise of the right to petition’ is defined broadly under the TCPA.”).


                                            9
               (B) a communication in connection with an issue under
               consideration or review by a legislative, executive, judicial, or
               other governmental body or in another governmental or official
               proceeding;

               (C) a communication that is reasonably likely to encourage
               consideration or review of an issue by a legislative, executive,
               judicial, or other governmental body or in another governmental
               or official proceeding;

               (D) a communication reasonably likely to enlist public
               participation in an effort to effect consideration of an issue by a
               legislative, executive, judicial, or other governmental body or in
               another governmental or official proceeding; and

               (E) any other communication that falls within the protection of
               the right to petition government under the Constitution of the
               United States or the constitution of this state.

Tex. Civ. Prac. & Rem. Code Ann. § 27.001(4).                  The TCPA defines a

“communication” as “the making or submitting of a statement or document in any

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

§ 27.001(1).

      At least one of our sister courts has recognized an apparent dissonance

between the understanding of the “exercise of the right to petition” as defined by the

TCPA and the understanding of the “exercise of the right to petition” as a First

Amendment right. See Jardin v. Marklund, 431 S.W.3d 765, 772–73 (Tex. App.—

Houston [14th Dist.] 2014, no pet.) (op. on reh’g) (discussing a movant’s argument

that simply filing a pleading in a lawsuit between private parties invokes the TCPA as

protecting the right to petition “despite . . . the particular meanings of the


                                           10
constitutional rights at issue”). That is, despite the TCPA’s express purpose to

protect constitutional rights, the TCPA’s definition of “the right to petition” is far

broader. Tex. Civ. Prac. & Rem. Code Ann. § 27.002.4

      Yet, taking the TCPA’s enacted language as the “surest guide to what

lawmakers intended,” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 463 (Tex.

2009) (op. on reh’g) (Willett, J., concurring), and remaining mindful that “when

interpreting a statute, ‘[t]he text is the alpha and the omega of the interpretive

process[,]’” Bosque Disposal Sys., LLC v. Parker Cty. Appraisal Dist., No. 17-0146, 2018

WL 2372810, at *2 (Tex. May 25, 2018) (quoting BankDirect Capital Fin., LLC v. Plasma

Fab, LLC, 519 S.W.3d 76, 86 (Tex. 2017)), we agree with Beving that her deposition

and affidavit testimony provided in the underlying lawsuit constitute a communication


      4
          In a concurring opinion on a case before the Austin Court of Appeals, Justice
Pemberton compellingly explored the TCPA’s expansive definition of the right to
petition by positing a hypothetical morning communication between him and his wife
as falling within the TCPA’s scope of protection. Serafine, 466 S.W.3d at 378
(Pemberton, J., concurring). Justice Pemberton concluded, and we agree, that to
apply the TCPA’s plain meaning based on the literal, unambiguous definition of the
statute, “the right to petition” could be unintentionally exercised by numerous Texans
“even before their feet hit the floor each morning.” Id. at 378–79. However, as
Justice Joseph Story observed many decades ago, courts cannot disregard “the plain
meaning of a [statutory] provision, not contradicted by any other provision . . .
because we believe the framers of that instrument could not intend what they say.” 1
JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 411
(Boston, Hilliard, Gray Co. 1833); see Mitchell v. Great Works Milling & Mfg. Co., 17
F. Cas. 496, 499 (C.C.D. Me. 1843) (Story, J.) (“We are bound to interpret the act as
we find it, and to make such an interpretation as its language and its apparent objects
require. We must take it to be true, that the legislature intend precisely what they
say . . . .”).


                                          11
made in a judicial proceeding—that is, an exercise of Beving’s right to petition, which

is protected by the TCPA.5 See Tervita, LLC, 482 S.W.3d at 284; cf. Conn. Nat’l Bank v.

Germain, 503 U.S. 249, 253–54, 112 S. Ct. 1146, 1149 (1992) (“We have stated time

and again that courts must presume that a legislature says in a statute what it means

and means in a statute what it says there.”). Indeed, at oral argument, Beadles’s

counsel conceded that Beving’s actions in providing affidavit and deposition

testimony are covered by the TCPA.




      5
         Again, we note our agreement with Justice Pemberton’s observation that “[i]f
read literally, what would initially seem to be the plain meaning of ‘communication in
or pertaining to . . . a judicial proceeding’ (and, in turn, the ‘exercise of the right to
petition’) would, standing alone, encompass a virtually limitless range of writings and
statements related to a court case.” Serafine, 466 S.W.3d at 378 (Pemberton, J.,
concurring) (emphasis added). Although we see his point that courts “may have
faltered into a ‘blindly narrow and out-of-context reading[] of statutory language[,]’”
id. at 379, we are disinclined to apply any extratextual tool of interpretation to a clear,
unambiguous statute, or to invoke the absurdity doctrine to avoid an unambiguous
statute simply because its application brings about a peculiar result. See BankDirect
Capital Fin., LLC, 519 S.W.3d at 85 (affirming that although the Code Construction
Act expressly permits judges to consider a host of extrinsic statutory construction
aids, regardless of whether the statute is ambiguous, “we have resolutely refused the
Act’s entreaties to disregard plain language” because an unambiguous statute “forbids
open-ended improvisation, including the nontextual purposivism and
consequentialism winked at in the Code Construction Act”); Combs v. Health Care Servs.
Corp., 401 S.W.3d 623, 630 (Tex. 2013) (refusing to invoke the absurdity doctrine
when applying an unambiguous statute brings about a peculiar result because “mere
oddity does not equal absurdity”); see also Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ.,
550 U.S. 81, 117, 127 S. Ct. 1534, 1556 (2007) (Scalia, J., dissenting) (“Thus, what
judges believe Congress ‘meant’ (apart from the text) has a disturbing but entirely
unsurprising tendency to be whatever judges think Congress must have meant, i.e.,
should have meant.” (emphasis in original)).


                                            12
      Therefore, we conclude that Beving’s affidavit and deposition testimony

constituted “the exercise of the right to petition” as defined by the TCPA.

II.   Beadles’s Lawsuit Against Beving is not “based on, relate[d] to,” or “in
      response to” Beving’s Right to Petition

      Having concluded that Beving’s affidavit and deposition testimony are a

protected exercise of her right to petition, to determine if Beving satisfied step one,

we still must consider whether she set forth a preponderance of evidence that

Beadles’s third-party claims are “based on, relate[] to, or [are] in response to” her

exercise of said right. Tex. Civ. Prac. & Rem Code Ann. § 27.003(a). Beving alleges

that “[h]ad she not provided an affidavit and her subsequent deposition[,] she would

not have been sued.”

      A.     Beadles’s Factual Allegations Do Not Implicate the TCPA

      During oral argument, Beving’s counsel conceded that Beadles had not

“hooked” the allegations that Beving provided false testimony in her affidavit and

deposition to the specific thirteen causes of action actually alleged against her but

nonetheless maintained that Beadles’s allegations in his superseded pleadings

demonstrate that Beving was sued because of her affidavit and deposition testimony. 6


      6
        After Beving filed her TCPA motion to dismiss, BNL, Dudley, and John
amended their pleading to remove the factual allegation that Beving had signed a false
affidavit. During oral argument, there was significant discussion concerning our
scope of review and whether a trial court and reviewing court could consider factual
allegations in a superseded pleading. Beving argued that courts could consider
statements in a superseded pleading and that it was some evidence that she had been
sued because of her exercise of the right to petition. Beadles argued that a superseded

                                          13
Our review of Beadles’s pleading likewise reveals that none of the claims are “based

on, relate[d] to,” or “in response to” Beving’s affidavit or deposition testimony in any

ordinary sense of the terms. See Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017)

(explaining in a TCPA motion-to-dismiss analysis, “[t]he basis of a legal action is not

determined by the defendant’s admissions or denials but by the plaintiff’s

allegations”); Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.—Austin 2015, pet.

dism’d) (recognizing that implicit in a TCPA analysis is that “we do not blindly accept

attempts by the . . . [d]efendants to characterize [plaintiff’s] claims as implicating

protected expression” but instead we “view the pleadings in the light most favorable

to [plaintiff]; i.e., favoring the conclusion that her claims are not predicated on

protected expression”); see also Ghrist v. MBH Real Estate LLC, No. 02-17-00411-CV,

2018 WL 3060331, at *5 n.9 (Tex. App.—Fort Worth June 21, 2018, no pet.) (mem.

op.) (rejecting wholesale approach to TCPA application).

      B.     Beving’s Evidence that Beadles’s Claims are “based on,”
             “relate[d] to,” or “in response to” her Protected Activity is not a
             Preponderance

      The allegation in Beadles’s superseded pleading regarding Beving’s allegedly

false affidavit testimony is some—albeit slight—direct evidence that the third-party

pleading could not be considered as TCPA evidence. At our request, Beadles filed a
post-submission letter with two cases in support of his position.

       Because our analysis does not turn on the statements in the superseded
pleading, we consider the allegations without resolving whether statements in
superseded pleadings are within the scope of our review.


                                          14
claims are “based on, relate[d] to,” or “in response to” Beving’s affidavit and

deposition testimony. The only other evidence Beving directs us to is two lines of

circumstantial evidence: (1) the fact that Beving was sued after her affidavit and

deposition but not before Beadles conducted extensive discovery that they would

purportedly not otherwise have been entitled to, and (2) the fact that Beving is the

only non-attorney who is being sued.7

       Circumstantial evidence is proper for us to consider in a TCPA review. See

Lipsky, 460 S.W.3d at 589, 591 (stating that “[a]ll evidentiary standards . . . recognize

the relevance of circumstantial evidence” and thus holding that circumstantial

evidence is appropriate to consider in a TCPA motion to dismiss). Although “[b]y its

very nature, circumstantial evidence often involves linking what may be apparently

insignificant and unrelated events to establish a pattern,” Browning-Ferris, Inc. v. Reyna,

865 S.W.2d 925, 927 (Tex. 1993), the inferences drawn from circumstantial evidence

must be reasonable. See COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 671 (Tex.

App.—Dallas 2004, pet. denied) (“Only reasonable inferences drawn from the known

circumstances establish a material fact.”).

       7
        Beving also refers to Beadles’s counsel’s demand letter, in which Beadles’s
counsel asserts that Beving’s liability was made “clear from [Beving’s] own
testimony.” However, that letter was on behalf of BNL—not Beadles. And BNL has
not filed any claims against Beving. Therefore, the letter is not evidence that is
relevant to determining whether Beadles’s claims against Beving are in response to
Beving’s affidavit or deposition testimony. Cf. Jardin, 431 S.W.3d at 774 (refusing to
grant movant’s TCPA motion to dismiss when a third-party rather than movant had
exercised the right to petition).


                                              15
      Beving’s inferences from her circumstantial evidence are unreasonable because

they are speculative and conclusory; there is simply too great an analytical gap for us

to traverse. First, as explained above, all thirteen causes of action arise out of facts

occurring well before Beving’s affidavit and deposition testimony, and the false-

affidavit allegation in the superseded pleading was not used to support any of the

thirteen causes of action. See Hersh, 526 S.W.3d at 467; Sloat, 513 S.W.3d at 504.

      Second, Beving’s contention that Beadles waited ten months to add her as a

party in order to obtain discovery to which he would not otherwise be entitled is

purely speculative and conclusory. There are myriad reasons for deciding if and when

to bring a legal action against a person. For example, it appears that Beadles obtained

additional information—i.e., certain e-mails from Beving on a backup server—which

may have led to filing the third-party claims against Beving.

      Finally, that Beving is the only non-attorney at BNL who was sued does not

create an inference that Beadles’s third-party petition was brought in response to her

affidavit and deposition testimony. Instead, the third-party petition asserts that she

was sued because she allegedly committed tortious conduct during the dissolution of

BNL and formation of the new law firm. See Sloat, 513 S.W.3d at 504.

      What Beving really asks us to do is to ignore the factual predicate as alleged in

the third-party petition and instead engage in pure speculation based on a few lines of

circumstantial evidence in order to divine that Beadles has artfully pleaded causes of

action against Beving to retaliate and punish her for providing affidavit and deposition

                                           16
testimony. This court cannot engage in such a speculative exercise. This does not

meet the preponderance-of-the-evidence standard necessary to show that Beadles’s

third-party claims are in response to her exercise of the right to petition.8 See Fieldtech

Avionics & Instruments, Inc. v. Component Control.Com, Inc., 262 S.W.3d 813, 833 (Tex.

App.—Fort Worth 2008, no pet.) (“Speculation is not evidence.”).

       C.     To the Extent Beadles’s Claims are, in Part, “based on, relate[d]
              to,” or “in response to” Beving’s Protected Activity, Dismissal
              Would Still be Improper Because the Claims are Also Based, in
              Part, on Unprotected Activity

       But even if Beving is correct that Beadles’s third-party claims against her are, in

part, “based on, relate[d] to,” or “in response to” her affidavit and deposition

testimony, the claims are still also based on, related to, or in response to other activity

unprotected by the TCPA—i.e., Beving’s actions during the break-up of BNL and the

formation of the new firm. “When a legal action is in response to both expression

protected by the TCPA and other unprotected activity, the legal action is subject to

dismissal only to the extent that it is in response to the protected conduct, as opposed to being

subject to dismissal in its entirety.” Walker v. Hartman, 516 S.W.3d 71, 81 (Tex.

       8
        In so concluding, we do not foreclose the possibility that Beving’s theory is
correct and that Beadles’s third-party claims are simply an attempt to punish or harass
her. Indeed, it seems likely that such a rancorous background would at least tempt
the parties to employ litigation out of sheer malevolence. But if this were the case,
Beving has more appropriate remedies such as a Rule 13 dismissal and sanctions
against both Beadles and his counsel for claims the evidence shows were brought in
bad faith or to harass. See Tex. R. Civ. P. 13. The TCPA is not a Swiss army knife, a
tool always ready to obtain the early dismissal of every objectionable case or
controversy.


                                               17
App.—Beaumont 2017, pet. denied) (emphasis added). Because, at best, Beadles’s

third-party claims are based on a mix of protected and unprotected activity, and

because Beving does not provide us guidance for how to determine which claims are

in response to protected rather than unprotected conduct, nor are we able to identify

a means to accomplish the task, the trial court did not err by denying her motion. See

id.

       Having survived our latest trek into the TCPA jungle, we hold that Beving has

not satisfied her initial burden of establishing by a preponderance of evidence that

Beadles’s claims are “based on, relate[d] to,” or “in response to” protected activity

covered by the TCPA.         See Serafine, 466 S.W.3d at 360 (holding to the extent

counterclaims were based on threats made outside of context of lawsuit, TCPA

movant did not satisfy initial burden to show that these portions of counterclaims

were subject to TCPA); Herrera v. Stahl, 441 S.W.3d 739, 744 (Tex. App.—San

Antonio 2014, no pet.) (holding trial court did not err by denying TCPA motion to

dismiss because movant only set forth conclusory statements that plaintiff’s claims

were based on, related to, or in response to defendants’ exercise of their right to

petition, and conclusory statements are not probative evidence). Accordingly, we

overrule her sole issue. 9


       9
        Because we hold that Beadles’s claims are not covered by the TCPA, we do
not address Beving’s arguments concerning the next steps in the TCPA’s burden-
shifting mechanism. See Tex. R. App. P. 47.1; Herrera, 441 S.W.3d at 745–46.


                                          18
                                 CONCLUSION

      Having overruled Beving’s sole issue, we affirm the trial court’s order and

remand the case for further proceedings.



                                                 /s/ Mark T. Pittman
                                                 Mark T. Pittman
                                                 Justice

Delivered: October 18, 2018




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