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Stroud v. Clearview Energy

Court of Appeals of Texas, Fifth District, Dallas

May 1, 2019


          On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-05580

          Before Justices Myers, Osborne, and Nowell



         Tammi Stroud appeals the trial court's denial of her motion under the Texas Citizens Participation Act (TCPA) to dismiss Clearview Energy's legal action against her. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001-.011. Stroud brings two issues on appeal contending (1) the trial court erred by not applying the TCPA to this case because the evidence shows she engaged in speech on a matter of public concern, she was terminated, and she was sued within five weeks in response to her speech; and (2) the trial court erred by denying her motion to dismiss because Clearview failed to present clear and specific evidence for each element of its causes of action against Stroud. We conclude Stroud failed to show by a preponderance of the evidence that Clearview's lawsuit against her was based on, related to, or in response to her exercise of the right of free speech, and we affirm the trial court's order denying her motion to dismiss.


         Stroud was an employee of Clearview from at least 2012 to March 29, 2018. In 2013, Clearview suspected that Stroud was setting up a company to compete with Clearview. Clearview required her to sign a "Non-Compete Agreement," and the company paid her $500 for signing the agreement.

         In 2016, Stroud, purportedly on Clearview's behalf, entered into a marketing agreement with Opsolve LLC.[1] Opsolve is based in Georgia. According to Frank McGovern, Clearview's president and CEO, Stroud lacked authority to authorize a contract without review and approval of the contract by him, the legal department, and the chief financial officer. However, Stroud presented Opsolve's invoice to Clearview's accounting department and represented that she had obtained the appropriate approvals and that the invoice should be paid. In July 2017, Stroud executed an amendment to the Opsolve agreement. She also made trips to Opsolve's offices, but she told Clearview she went to events in other states or that she was working from home. In November 2017, Clearview's officers told Stroud to terminate the Opsolve contract because it cost more than it was worth. They also told her they had learned she had executed the contract instead of the appropriate officers and that the contract had not received the required reviews and approvals. Stroud did not cancel the contract but instead signed a second amendment to it. McGovern testified the purpose of this amendment was to increase the payments to Opsolve without adding any value to Clearview. On March 7, 2018, McGovern sent an e-mail to Opsolve terminating the contract.

         On March 26, 2018, Stroud and McGovern had a meeting about Stroud's concerns for the company. They then engaged in an e-mail dialogue that included, amongst other topics, Stroud's request that Clearview release her from the non-compete agreement. In Stroud's final e-mail, in which she complained to McGovern about her working conditions and the management of the company, she stated, "I do not want to walk away from Clearview, but I have a deepening need to do what's right. . . . If you have no intention of releasing me from my non-compete contract, we should discuss the terms of my separation from Clearview." Three days later, McGovern wrote her back and said Clearview would not release her from the non-compete agreement and that he accepted her resignation from Clearview.

         On April 18, 2018, lawyers for Opsolve in Georgia sent a letter to Clearview demanding that Clearview pay Opsolve $1, 123, 697 in damages, attorney's fees, and costs for breach of contract. The letter requested a response from Clearview within ten business days. On April 27, nine days after Opsolve's demand letter, Clearview filed this lawsuit against Opsolve and Stroud. Clearview alleged Opsolve breached the contract by failing to perform the promised services, and Stroud breached her fiduciary duty to Clearview by acting in bad faith. Clearview alleged Stroud received kickbacks "for sham vendor contracts to which no performance was intended." Clearview also alleged she violated her non-compete agreement by soliciting business from Opsolve. Clearview alleged Stroud and Opsolve defrauded it and that they engaged in a conspiracy to defraud it.

         Stroud timely filed a motion to dismiss Clearview's claims against her, asserting the suit was based on, related to, or in response to one of her e-mails on March 26 and that the e-mail discussed matters of public concern. After a hearing, the trial court denied Stroud's motion to dismiss.


         The TCPA permits a defendant to move for dismissal of a legal action that is "based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association." Civ. Prac. § 27.003(a). Its purpose "is 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." Id. § 27.002.

         Determination of a motion to dismiss under the TCPA is a three-step process. In step one, the movant for dismissal has the burden of showing by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the movant's exercise of one of those rights. Id. § 27.005(b). If the movant does so, then the procedure moves to step two, and the burden of proof shifts to the plaintiff to "establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). If the plaintiff meets this burden, then the procedure moves to step three, and the burden of proof shifts back to the movant to "establish[] by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim." Id. § 27.005(d). If the plaintiff does not meet the burden in step two, or if the movant meets its burden in step three, then the trial court must dismiss the legal action, award the movant court costs, reasonable attorney's fees, and expenses incurred in defending against the legal action, and impose sanctions against the party who brought the legal action sufficient to deter the party from bringing similar actions. Id. §§ 27.005(b), (d), 27.009(a).

         The evidence considered by the trial court in determining a motion to dismiss includes "the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a). However, the plaintiffs' pleadings are "the best and all-sufficient evidence of the nature of the action." Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (quoting Stockyards Nat'l Bank v. Maples, 95 S.W.2d 1300, 1302 (Tex. 1936)).


         In her first issue, Stroud contends the TCPA applies to Clearview's suit because the suit was a legal action based on, related to, or in response to Stroud's exercise of the right of free speech. See Civ. Prac. § 27.005(b)(1). To be entitled to the protections of the TCPA for an exercise of the right of free speech, Stroud had to prove by a preponderance of the evidence that Clearview's lawsuit against her was a "legal action" based on, related to, or in response to a communication made in connection with a matter of public concern, meaning, in this case "an issue related to: (A) health or safety; (B) environmental, economic, or community well-being; . . . or (E) a good, product, or service in the marketplace." See id. §§ 27.001(3), (7), 27.003, 27.005(b). The parties do not dispute that Clearview's lawsuit is a "legal action" or that Stroud's e-mail was a "communication." The parties disagree on whether Stroud's e-mail contained a "matter of public concern" and whether Clearview's lawsuit was based on, related to, or in response to a matter of public concern raised in the e-mail.

         The E-mails

         Stroud asserts her exercise of the right of free speech was one of the e-mails she sent to McGovern on March 26. That e-mail was the third in a string of e-mails the parties exchanged. The e-mails appear to show Stroud and McGovern had met that morning to discuss Stroud's complaints including her working conditions and salary. In the first e-mail, Stroud attached a draft of an agreement mutually releasing Clearview's and Stroud's claims against each other and including a termination of Stroud's non-compete agreement.[2] In the second e-mail, McGovern expressed surprise that the agreement attached to Stroud's first e-mail was drafted so soon after their meeting, and McGovern stated Stroud "seem[ed] to be looking for the moon."[3] The third e-mail is the one Stroud asserts is her exercise of the right of free speech. That e-mail is a series of complaints about the management of the company and McGovern's treatment of her, and the e-mail ends with Stroud stating they should discuss her separation if Clearview will not terminate her non-compete agreement.

Frank, per the letter that I printed and gave to you, and let pur [sic] conversation this morning, I'm summarizing my intent and the rationale for my need to not feel handcuffed and held down.
For whatever reason, it has been hard for us to have this conversation in person with the many issues going on in the office and the busy travel schedules. I think that you do know that I have a deepening need to do what's right. I love my career; the opportunity to grow this business and the relationships that have resulted from that has given me some of the best years of my life.
As a result of your recent actions, I very much feel that you are indirectly holding my non-compete over my head. Your text to me on my personal phone on Wednesday night last week at 11pm accusing me of being dishonest was completely over the line. The previous week, twice, you paraded me in front of my team via email, insinuating that I'm making bad business decisions and attacking my character. You've driven the company into the ground AGAIN, despite my very profitable and very hard to manage business unit. Your actions to correct this expense issue have almost solely affected my department and my sales vendors.
Last week while I was on PTO, I had several of my vendors call me upset about phone calls that they received from you and emails that they received from our internal team. My team stayed confused and I was forced to go into repair mode to salvage everyone's sanity, and my relationships. Again.
This is causing me serious stress, coupled with everything else going on at Clearview, and causing anxiety and problems in the rest of my life; vendor relations, employee relations, my reputation, etc. I get anxiety just seeing an email in my inbox with your name on it, because these emails do not at all reflect the conversations that we are having. They very much appear to be ...

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