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Krasnicki v. Tactical Entertainment, LLC

Court of Appeals of Texas, Fifth District, Dallas

May 16, 2019

MICHAEL KRASNICKI, Appellant
v.
TACTICAL ENTERTAINMENT, LLC, Appellee

          On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-03246-2017

          Before Justices Bridges, Partida-Kipness, and Carlyle

          OPINION

          ROBBIE PARTIDA-KIPNESS JUSTICE

         Appellee Tactical Entertainment, LCC filed a petition against appellant Michael Krasnicki alleging claims for fraudulent inducement, deceptive trade practices, and negligent misrepresentation. Krasnicki filed a motion to dismiss pursuant to the Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Code §§27.001-.011 (the "TCPA"). Krasnicki asserts that the trial court erred in denying the motion to dismiss. We affirm the trial court's denial of the motion to dismiss.

         BACKGROUND

         Tactical created an application for smart phones, "The Art of Combat," which is a game that uses players' GPS-determined locations in order for them to launch "attacks" against each other. In August 2015, Tactical entered into a Master Consulting Agreement ("MCA") with Krasamo, Inc. in order to create a Statement of Work ("SOW"). The purpose of this SOW was to establish parameters for software developers to create a software application for the game (the "initial SOW"). The initial SOW was prepared for various software developers to bid on the project.[1] However, Tactical later decided to hire Krasamo, instead of a third party, to do the actual development work on the project. George Carter, the manager and principal of Tactical, testified in his affidavit that he engaged Krasamo "to develop the Project made the basis of this lawsuit in large part because of their idea for using two separate servers. My understanding was, and still is, that the Project would use two separate physical servers to perform two different functions: one to handle all account data, and another to relay in-game activity in real time." Thus, the parties entered into another Statement of Work on April 14, 2016 ("SOW A"). SOW A provided that the scope of the project was to develop an app and server back-end for "The Art of Combat." SOW A contained a provision stating that the project would utilize "two servers that provide different types of API's" and that the relay server would handle all of the real time communications required to play the game and the account server would handle user account information, archive scores, and other functions in the "two-server architecture."

         Tactical and Krasamo later entered into three additional SOWs-SOW B, SOW C, and SOW D. SOW B addressed the "missing features and defects resulting from work done by Krasamo" on SOW A. The fifth item on the SOW B checklist specifically describes the two-server feature: "Krasamo will deploy both the account and game servers to a Google Cloud Engine server chosen by Tactical Entertainment LLC. Two instances of these servers will be provided - QA and Production." Both SOW C and SOW D were signed in 2016 and provided additional hours for Krasamo to address problems and make improvements in the project.

         In 2017, Tactical filed a lawsuit against Krasamo and later amended its petition to include claims against Krasnicki.[2] In its petition, Tactical alleged as follows:

At some point during its work under SOW A, Defendant Krasamo made the conscious decision to deviate from the two-server architecture. Instead of using an account server and a relay server, Defendant Krasamo developed the Project to utilize just one server. This fact was never communicated to Plaintiff's representatives, including Mr. Carter. Making matters worse, Plaintiff repeatedly asked direct questions about the two-server architecture to both representatives of Defendant Krasamo and Defendant Krasnicki, individually, such as "Is this being handled by the account server or the relay server?" and "When does this get handed off to the relay server?" Such questions clearly implied that Plaintiff believed that there were two different servers performing two different functions.
Yet at no time did Defendant Krasnicki or representatives of Defendant Krasamo inform Mr. Carter or other representatives of Plaintiff that they were indeed not using a two-server architecture despite knowing that said architecture was material to Plaintiff's continued support of the project. If they had revealed the derivation [sic] from the promised server architecture, the Plaintiff would not have agreed to go forward signing all the Agreements and subsequent SOW's.

         Krasnicki filed a motion to dismiss pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code. Following a hearing, the trial court denied the motion to dismiss. Krasnicki then filed this accelerated appeal.

         ANALYSIS

         In four sub-issues, Krasnicki argues that the trial court erred in denying his motion to dismiss. Krasnicki first argues that Tactical's lawsuit against him is based on or related to his exercise of free speech or association. Krasnicki next argues that the commercial speech exception does not apply. Krasnicki then argues that Tactical did not show by clear and specific evidence a prima facie case for each essential element of its claims against him. Finally, Krasnicki alleges that he proved, by a preponderance of the evidence, each essential element of a valid defense to Tactical's DTPA claim.

         A. Texas Citizens ...


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