Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
URBAN ENGINEERING AND MURRAY F. HUDSON P.E., Appellants,
SALINAS CONSTRUCTION TECHNOLOGIES, LTD., Appellee.
appeal from the 117th District Court of Nueces County, Texas.
Chief Justice Valdez and Justices Rodriguez and Hinojosa
LETICIA HINOJOSA, JUSTICE
Salinas Construction Technologies, Ltd. (Salinas) filed suit
against appellants Urban Engineering and Murray F. Hudson
P.E. (collectively Urban) alleging causes of action for
defamation and business disparagement. Urban filed motions to
dismiss under the Texas Citizens Participation
Act (TCPA), see Tex. Civ.
Prac. & Rem. Code Ann. ch. 27 (West, Westlaw through 2015
R.S.), and chapter 150 of the Texas Civil Practice and
Remedies Code. See id. ch. 150 (West, Westlaw
through 2015 R.S.). Urban brings this interlocutory appeal
from the trial court's denial of both motions.
See Tex. Civ. Prac. & Rem. Code Ann.
§§ 51.014(a)(12), 150.002(f) (West, Westlaw through
issues, Urban argues: (1) the trial court erred in denying
its TCPA motion to dismiss because Salinas failed to present
clear and specific evidence establishing a prima facie case
for its claims and because Urban established the
qualified-privilege defense by a preponderance of the
evidence; and (2) the trial court abused its discretion in
denying Urban's chapter 150 motion to dismiss because
Salinas's certificate of merit does not support a
business-disparagement claim. We reverse and remand.
pleadings and evidence pertinent to the motions to dismiss
reflect the following:
Salinas Submits Bid for Road Project
was retained by the City of Corpus Christi (Corpus Christi or
the City) to serve as the engineer on a public-construction
project to repair Waldron Road. As part of its duties under
the contract, Urban was required to "analyze bids,
evaluate, prepare bid tabulation, and make recommendations
concerning award of the contract." Potential bidders for
the project were required to provide a "Statement of
Experience." The City notified bidders that it would
assess whether they were "responsible" based on
interviews with references and consideration of the
bidder's past projects. The City also instructed bidders
that "[b]y listing reference contact information, [the
bidder] indicates its approval . . . to contact the
individuals listed as a reference."
four companies who submitted bids for the project, Salinas
submitted the lowest bid. Salinas's bid was accompanied
by the required "Statement of Experience" which set
out information on construction projects completed within the
last five years as well as all past projects completed with
Corpus Christi. Salinas also provided that it was in current
litigation with the City of Seguin.
letter dated March 5, 2015, Urban recommended to Corpus
Christi that the City not award the project to Salinas based
on the following:
1. Demonstrated lack of performance in maintaining schedule
on an ongoing project with the City of Corpus Christi and
2. Non-performance and current disbarred status with another
municipality due to current litigation.
3. Lack of experience with proposed construction techniques.
informed the City that Salinas's current projects with
Corpus Christi and the Texas Department of Transportation
(TxDOT) were behind schedule. Urban also stated that Salinas
"does not have or has not committed the necessary
resources to put the projects back on schedule." Urban
informed the City that another municipality was forced to
file a "failure to perform" complaint with the
bonding company and that the "project was currently in
[l]itigation." Urban stated that the last project
completed by Salinas for the City was completed behind
schedule. Urban also represented that multiple projects with
TxDOT were completed behind schedule. Finally, Urban stated
that Salinas "does not have [the] demonstrated resources
or capacity to accomplish required work within mandated
schedules nor does it have requisite experience working with
and in the materials particular to this project location and
design." Urban ultimately recommended that the City
award the contract to the second-lowest bidder.
response to Urban's March 5 letter, Salinas's
attorney sent correspondence to the City alleging that
Urban's letter was "misleading, inaccurate, or
false, as it relates to Salinas[.]" Salinas disputed
that it had a "demonstrated lack of performance in
maintaining schedule on an on-going project with the City of
Corpus Christi." Salinas explained that the project was
behind schedule because of "several City utility
conflicts." Salinas also stated that another project
with the City was extended from 210 to 645 days as a result
of the City's change orders for additional work.
maintained that the allegation it was in "disbarred
status" with another municipality
was inaccurate. Salinas explained that it was in litigation
with the City of Seguin because it had completed work but had
not received payment. Salinas disputed that the suit was
filed for "non-performance."
Salinas maintained that Urban's statement that it lacked
"experience with proposed construction techniques"
was false. Salinas asserted that it had completed projects
within a close proximity to the Waldron Road ...