Court of Appeals of Texas, Fifth District, Dallas
On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. 11-08382-A
Before Justices Bridges, FitzGerald, and Myers
KERRY P. FITZGERALD, JUSTICE
Appellant Wholesale TV and Radio Advertising, LLC (Wholesale) sued appellee Better Business Bureau of Metropolitan Dallas, Inc. (BBB). BBB filed a motion to dismiss pursuant to the Texas Citizens Participation Act (TCPA). The trial judge granted the motion, dismissed the case, and awarded BBB its attorneys' fees. Wholesale raises five issues on appeal. We affirm.
Wholesale alleged the following facts in its live petition. Wholesale is engaged in the business of selling television and radio advertising at discounted prices. BBB solicited Wholesale to seek BBB accreditation, and in or about December 2009 Wholesale submitted its application fee and "all relevant documents requested" by BBB. BBB requested additional information from Wholesale to substantiate Wholesale's claims that it provided television and radio advertising at wholesale costs. Although Wholesale provided "all the necessary responses to [BBB's] questions, " BBB rejected Wholesale's application by letter dated February 16, 2010. BBB stated that the reason for the denial was Wholesale's failure to substantiate that it sells advertising at "wholesale prices." BBB later refunded Wholesale's application fee.
In March 2010, Wholesale noticed that BBB had given Wholesale an "F" rating on BBB's website. Wholesale sent BBB additional information in an attempt to prove Wholesale's status as a wholesale advertising provider. BBB sent Wholesale a letter dated August 20, 2010, in which BBB refused to take down the "F" rating. In that letter, BBB asserted that Wholesale failed to meet BBB's definition of "wholesale" or "wholesale pricing." In a phone call, a representative of BBB told a representative of Wholesale that Wholesale's business was not acceptable to BBB because of its brand name. The "F" rating has significantly harmed Wholesale's business.
B. Procedural history
Wholesale sued BBB in July 2011, asserting claims for violations of the Deceptive Trade Practices Act and business disparagement. BBB answered. On August 10, 2011, Wholesale filed its first amended petition, which was its live pleading at the time of judgment. In the first amended petition, Wholesale added claims for fraud and negligent misrepresentation. On August 12, 2011, BBB filed a motion to dismiss based on the TCPA, Chapter 27 of the Texas Civil Practice and Remedies Code. In that motion, BBB attacked Wholesale's claims for DTPA violations, business disparagement, and fraud, but not its claim for negligent misrepresentation. Wholesale filed a response.
The trial judge held a hearing on BBB's motion to dismiss, and at the end of the hearing the judge orally stated his intention to grant the motion. The judge and the attorneys discussed the fact that BBB had not attacked Wholesale's negligent-misrepresentation claim in its motion. In the interest of efficiency, the judge decided that that claim would be handled "by submission, " and that Wholesale would have three days to submit any additional evidence it wanted to submit on that claim. Wholesale timely filed a supplemental response addressing negligent misrepresentation, and BBB filed a reply brief addressing that supplemental response. The trial judge thereafter signed a final judgment in which he dismissed all of Wholesale's claims and awarded BBB $15, 999 in attorneys' fees. Wholesale timely filed its notice of appeal.
A. Issues presented
Wholesale presents five issues on appeal. In its first issue, Wholesale argues that BBB was not entitled to dismissal under the TCPA because the conduct at issue was false commercial speech not protected by the First Amendment. In its four remaining issues, Wholesale argues that it adduced sufficient evidence ...