Court of Appeals of Texas, Fourth District, San Antonio
MISSION WRECKER SERVICE, S.A., INC., Alanis Wrecker Service, Alanis Wrecker Service, Inc., Alejandro L. Alanis, Eric Wilhite, and Jim Champion, Appellants
ASSURED TOWING, INC., Appellee
the 224th Judicial District Court, Bexar County, Texas Trial
Court No. 2015-CI-18598 Honorable Gloria Saldaña,
Sitting: Marialyn Barnard, Justice Rebeca C. Martinez,
Justice Luz Elena D. Chapa, Justice
Marialyn Barnard, Justice.
Mission Wrecker Service, S.A., Inc., Alanis Wrecker Service,
Alanis Wrecker Service, Inc., Alejandro L. Alanis, Eric
Wilhite, and Jim Champion appeal the trial court's order
denying their motions to dismiss filed pursuant to the Texas
Citizens Participation Act also known as the anti-SLAPP
statute. Appellants contend the trial court erred in denying
their motions because the claims asserted by appellee Assured
Towing, Inc. against them were based on, related to, or were
in response to the Appellants' exercise of the right of
free speech or the right to petition.
further contend Assured Towing failed to establish by clear
and specific evidence a prima facie case for each essential
element of its claims or, alternatively, the Appellants
established by a preponderance of the evidence each essential
element of their justification defense. We reverse the trial
court's order, dismiss Assured Towing's claims
against the Appellants,  and remand the cause for further
both the trial court and this court are required to consider
the pleadings and evidence in the light most favorable to
Assured Towing, the following summarizes facts from Assured
Towing's pleadings. See Watson v. Hardman, 497
S.W.3d 601, 609 (Tex. App.-Dallas 2016, no pet.); Hicks
v. Group & Pension Administrators, Inc., 473 S.W.3d
518, 526 (Tex. App.- Corpus Christi 2015, no pet.);
Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881, 892
(Tex. App.- Houston [1st Dist.] 2015, no pet.); Serafine
v. Blunt, 466 S.W.3d 352, 369 n.28 (Tex. App.- Austin
2015, no pet.); see also Rio Grande H2O Guardian v.
Robert Muller Family P'ship Ltd., No.
04-13-00441-CV, 2014 WL 309776, at *3 (Tex. App.-San Antonio
Jan. 29, 2014, no pet.) (mem. op.) (noting "[u]nlike
other types of cases where pleadings are not considered
evidence, section 27.006 . . . expressly provides" that
"we may consider the pleadings as evidence").
Towing and the City of San Antonio were parties to a
Municipal Wrecker Services Agreement pursuant to which
Assured Towing provided towing services for the City. After
Assured Towing sought a rate review pursuant to the terms of
the agreement, Assured Towing began receiving complaints from
the City; however, Assured Towing continued providing
services under the agreement.
the terms of its agreement with the City, Assured Towing was
required to have workers' compensation coverage for its
employees. To satisfy this requirement, Assured Towing
contracted with Unique Staff Leasing III, Ltd. to provide
employee payroll services, including the provision of the
required workers' compensation coverage.
Staff subsequently sued Assured Towing on a past debt after
Unique Staff's president was informed by Mike Slater and
Jim Champion that the City intended to suspend its agreement
with Assured Towing. Slater was the broker who referred
Assured Towing to Unique Staff and who received a commission
on the payments Assured Towing made to Unique Staff. Slater
learned Assured Towing's agreement with the City was in
jeopardy from Eric Wilhite during a meeting with Wilhite and
Alejandro L. Alanis. Wilhite informed Slater that a City
employee informed him that Assured Towing's agreement
with the City was likely to be suspended due to
nonperformance. Both Wilhite and Alanis are associated with
Alanis Wrecker Service. Champion is an employee of Mission
Wrecker Service, S.A., Inc. Slater or Champion also provided
Unique Staff with the name of the attorney who represented
Unique Staff in its lawsuit against Assured Towing.
addition to suing Assured Towing, Unique Staff also
retroactively terminated its contract with Assured Towing,
immediately eliminating its workers' compensation
coverage. Assured Towing was current with its payment
obligations under the contract but was in arrears on an
agreement the parties had entered into requiring Assured
Towing to retire a past debt it owed to Unique Staff.
lawsuit, Unique Staff sought and obtained a temporary
restraining order requiring the City to deposit all payments
made to Assured Towing under the terms of their agreement
into the registry of the court. Champion obtained a copy of
the TRO and delivered it to the City. Around the same time, a
City employee demanded that Assured Towing provide the City
with proof of its workers' compensation coverage. When
Assured Towing was unable to provide proof, the City
suspended its agreement with Assured Towing. While the
agreement was suspended, Alanis Wrecker Service provided the
towing services Assured Towing would otherwise have provided
until Assured Towing provided proof of coverage to the City
and the agreement was reinstated.
Towing sued the Appellants for tortious interference with its
contracts with Unique Staff and the City and for conspiracy.
As previously noted, the Appellants filed motions to dismiss
pursuant to the Texas Citizens Participation Act.
Approximately fifteen minutes before the hearing scheduled on
the motions, Assured Towing filed a response to which it
attached additional evidence. At the hearing, the Appellants
objected to the evidence attached to the response as being
untimely and inadmissible. The trial court ...