the 85th District Court Brazos County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Scoggins
GRAY CHIEF JUSTICE
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
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).
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).
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
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).
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.
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.
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
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