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Arey v. The Shipman Agency, Inc.

Court of Appeals of Texas, Tenth District

May 1, 2019

JOSHUA AREY AND ROGINA KIMMONS, Appellants
v.
THE SHIPMAN AGENCY, INC., Appellee

          From the 85th District Court Brazos County, Texas Trial Court No. 17-002869-CV-85

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins [5]

          MEMORANDUM OPINION

          TOM GRAY CHIEF JUSTICE

         Joshua Arey and Rogina Kimmons were sued by their former employer, The Shipman Agency, Inc., (Shipman), after Kimmons filed a claim for unemployment. Arey and Kimmons filed a motion to dismiss the lawsuit under the Texas Citizens Participation Act (TCPA). Tex. Civ. Prac. & Rem. Code Ann. § 27.001, et sec. (West 2014). After a hearing, the motion was denied. Because the trial court erred in denying the motion, the trial court's order is reversed and this appeal is remanded for further proceedings consistent with this opinion.

         The TCPA

         The TCPA protects citizens who associate, petition, or speak on matters of public concern from legal actions that seek to intimidate or silence them. See State ex rel. Best v. Harper, 562 S.W.3d 1, 13 (Tex. 2018); Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018); In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015). That protection comes in the form of a special motion to dismiss, subject to expedited review, for any suit that appears to stifle a defendant's exercise of those rights. Youngkin, 546 S.W.3d at 679; Lipsky, 460 S.W.3d at 584. The TCPA casts a wide net and is to be construed liberally to fully effectuate its purpose and intent. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018); ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017). In determining whether a plaintiff's legal action should be dismissed, the TCPA requires the trial court to 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) (West 2014); Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 892 (Tex. 2018).

         Entitlement to a TCPA motion to dismiss requires the completion of a two-, and possibly three-, step process. See Castleman v. Internet Money Ltd., 546 S.W.3d 684, 691 (Tex. 2018). Under the first step, the burden is on the movant, typically a defendant, to show "by a preponderance of the evidence" that a legal action by the non-movant, typically a plaintiff, "is based on, relates to, or is in response to" the defendant's exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b) (West 2014); see Lipsky, 460 S.W.3d at 586-87. The statute defines what it means to exercise those rights, and courts must adhere to these supplied legislative definitions. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). A preponderance of the evidence means that the evidence presented is more likely than not true. See Lipsky, 460 S.W.3d at 589; In the Interest of C.H., 89 S.W.3d 17, 25 (Tex. 2002).

         If a defendant is able to demonstrate that a plaintiff's legal action implicates one of these rights, the second step shifts the burden to the plaintiff to establish by "clear and specific evidence a prima facie case for each essential element of the claim in question." Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c) (West 2014); see In re Lipsky, 460 S.W.3d at 587. Although the statute does not define "clear and specific," "clear" means unambiguous, sure, or free from doubt, and "specific" means explicit or relating to a particular named thing. S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 2018 Tex. LEXIS 1312, at *8 (Tex. 2018) (internal quotes omitted); In re Lipsky, 460 S.W.3d at 590. "Prima facie case" as used in the statute means a "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Id. Direct evidence of damages is not required, but the evidence must be sufficient to allow a rational inference that some damages naturally flowed from the defendant's conduct. S&S Emergency Training Sols., 564 S.W.3d 843 at *8.

         If the plaintiff satisfies that requirement, the burden shifts back, in step three, to the defendant to prove each essential element of any valid defenses by a preponderance of the evidence. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d) (West 2014); Youngkin v. Hines, 546 S.W.3d 675, 679-80 (Tex. 2018).

         On appeal, our review of the trial court's ruling on a TCPA motion to dismiss is de novo. See Holcomb v. Waller Cty., 546 S.W.3d 833, 839 (Tex. App.-Houston [1st Dist.] 2018, pet. denied); Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 282 (Tex. App.-Dallas 2015, pet. denied); Johnson-Todd v. Morgan, 480 S.W.3d 605, 609 (Tex. App.-Beaumont 2015, pet. denied). See also Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.-Houston [1st Dist.] 2013, pet. denied).

         Step One

         As required, we first decide whether Shipman's lawsuit was based on, related to, or in response to Arey's and Kimmons's exercise of their right of free speech, right to petition, or right of association. In conducting our de novo determination under any of the steps, we consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based as the trial court was required to consider. See Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a) (West 2014); Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 892 (Tex. 2018); Johnson-Todd, 480 S.W.3d at 609. And when it is clear from the plaintiff's pleadings that the action is covered by the TCPA, the defendant need show no more. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017).

         Arey and Kimmons each signed employment agreements when they began working for Shipman. Kimmons' agreement required her "never to legally sue" Shipman "for any reason what so ever within the Universe." Arey's agreement included a similar provision wherein he agreed "that all rights to claims, lawsuits, or allegation, shall be waived forever…." When Kimmons refused to sign a new employment agreement, Shipman terminated Kimmons' employment, but required Kimmons to finish all the assigned tasks for the day. Shipman also told Kimmons that "'if [Arey] or I said or did anything or made any disgruntled statements[, ] she would come down on me, [Arey], …and anybody else.'" Shortly thereafter, Kimmons filed for unemployment benefits with the Texas Workforce Commission.

         On November 1, 2017, about a month after Kimmons filed her complaint with the TWC, Shipman sued both Arey and Kimmons, alleging in the "Facts" portion of its petition that Arey and Kimmons executed valid confidentiality and non-compete agreements and that:

Defendants have made statements on social media about Shipman's confidential information. Defendants have disclosed and continue to disclose Shipman's confidential information…Defendants have contacted employees, contractors, sponsors, vendors, or goods and service ...

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