Buy This Entire Record For
Schmidt v. Crawford
Court of Appeals of Texas, First District
August 20, 2019
DAVID GORDON SCHMIDT D/B/A ABC BONDING COMPANY AND GREENBRIER EQUITIES, LLC, Appellants
BRENDA CRAWFORD, CARLOS PEREZ, ANTHONY WILLIAMS, ANNIE J. BUTLER, ANTHONY FRANCO, AMBRIA FIKE, DEBRA JOHNSON, VICTORIA WELLS, MILDRED ENGLISH, OTTIS WILLIAMS, RANDY L.LASTER, PABLE MURILLO, EMMA MURILLO, CRAIG COOPER, NELSON MARTIN ARMSTRONG, MAZEN BREIR, BENITO MARTINEZ, TANYA PEDROZA, SERGIO PEDROZA, CAROLYN ETHERIDGE, LOUISE SEALS, TERRY MOORE, MARIA RAMIREZ, PETE GARCIA, DENISE BALDWIN, WILLIAM T. ETHERTON, PATRICIA ETHERTON, SHARON WILLIAMS, HELEODORA CRUZ, HATTIE HEMPHILL, AGUSTINA ROBERTS, LOUIS ROBERTS, EMILY JOHNSON, IRIS EDITH SEGUNDO, JOANNA LOAEZA, KEVIN WILLIAMS, RITA WILLIAMS, YOLANDA CARRIERE, ANTHONY CITTI, JUAN CISNEROS, BRANDY JOHNSON, JOHN GHOLSTON, ANSON FURMAN, IVIE BELL, LAURA DIAZ, DARLENE ALEJANDRO, JESSE DELEON, CYNTHIA DELEON, JESUS VEGA, BEVERLY VEGA, RAY PERFECTO, BRIDGET NWOKO, NEMIAH CLARK, EARLEAN WILLIAMS, LAKESHEA CLARK, PETE GONZALES, PAT LEE, MARY VICTORIAN, TIFFANY JOHNSON, ELIAS GAMINO, TIFFANY CHENIER, MURALINE PETER, VICTOR REYES, VERONICA SMITH, JIMMIE ENGLETT, VELVET HILTON, STEPHEN LACY, LEROY VANTERPOOL, PATRICIA WESLEY, SAMMIE L. ABRAHAM, EDITH M. ABRAHAM, BRENDA BROWN, JESUS SILVESTRE, FELICITA AGUILAR, GABINO SALAZAR, JOSEFINA M. NOWLIN, SANDRA DORRON, JESUS VELAZQUEZ, BONNIE CEPHUS, JOSEPHINE ROCHA, LEON JACOBSON, LINDA JACOBSON, OLIVIA SIMS, CONSTANCE GAY, ENSLEY CLINTON, LLEWEL WALTERS, MAURO REYNERIO FERNANDEZ CRUZ, ANTHONY THOMPSON, JUAN CARLOS RIOS RAMIREZ, PHILLIP C. CLARK, BEATRICE PENA, CAROL ASKEW, BRIAN CORMIER, STEVEN CRUZ, LEROY WELLS, HAROLD KINNARD, PLUSHATTE DAVIS, DEIDRE DOBBINS, DAVID SPAULDING, MICHAEL KOSSA, DIANA KOSAS, SERAFIN LUNA, DEBORAH BERRYHILL, O'KEEFE ALLEN, CHRISTOPHER P. VANA, SR., GRACE HAMILTON, BELINDA SPENCER, RENORA RIGGINS, IVONNE JACKSON, EDITH ORDONEZ, WILBER ORDONEZ, TESSIE LYNCH, KATHERINE SANDERS, CHARLES MOURNING, ILIANA PEREZ, TIBURCIA ZAYALA, CHRISTOPHER GREEN, DONALD SHELTON, DONALD CREDEUR, AVIS BATTLE, GRACE PHILLIPS, DAROLYN LEWIS, RAYMOND LEWIS, JR., MICHAEL MILLER, ESTHER DOUBLIN, MARCOS ORTIZ, ROBERT SANCHEZ, ROSALINDA SANCHEZ, TIFFANY SHANNON, ALTHA DAVIS, HERMAN DAVIS, NELSON HEBERT, MELVIN HERRERA, JUANITA CANO, PATRICE BOYCE, EDSON DRONBERGER, CHARLOTTE WYNN, JACQUELINE HILL, ATANACIO RUIZ, ELOISA RUIZ, ROBERTO HERNANDEZ, CLEMENTINA HERNANDEZ, JIM SILVA, LUZ BATALLA, ISMAEL MEDINA, HORTENCIA RODRIGUEZ, ALFRED WATSON, JERRY ESCALANTE, LLOYD CASTILOW, LUIS PENA, CAREY MURRAY, LUZ WILDMAN, CARL EARL, ISMAEL AVELLANEDA, KENDALIA DAVIS, GAIL FRITZ, LEE CARTWRIGHT, ORFILIA MIRANDA, JAINELL LETRYCE VELAZQUEZ BUTLER, COURTNEY MITCHELL, TRAVIS WATERS, DEBBIE WATERS, ANTHONY NORRIS, SHARON A. NORRIS, ADELMIRA SALINAS, SARAH LANDRY, GLORIA GARCIA, JOEL ZAMARRIPA, GERARDO ROMO, PHILLIP ROSS, LAKEISHA ROSS, EARLINE DURANT WATKINS, GERARDO MARQUEZ, NILZA RODRIGUEZ, JANNETTE BROWN, VICTOR H. ESTRADA, BLANCA A. ESTRADA, ANNE CLARE, JAMES CLARE, CHARLENE TALBOTT, MARIA VELEZ, GREG HILLIGIEST, RANDY WILSON, SAUL AGUILERA, HARLENE BRADY, MARY FLOWERS, JIMMIE SMITH, BETTY R. SMITH, CYNTHIA JENKINS, CLARENCE MCDADE, CHARLES O. MCDONALD, LARS WESTERBERG, ETHEL O'QUINN, JEFFREY GLOVER, KATRINA GLOVER, LAURA LIGGETT, BRENDA TRUSSEL, DALE TRUSSELL, CECELIA ROSE, VANESSA BOURDA, FRANCISCO CAMPOS, CONNIE CAMPOS, SAMMY J. COLLINS, FELICIA BOWMAN, KENDALL WILKINS, TYRONSA WILKINS, ANDREW TAYLOR, MARQUE JOHNSON, BEVERLY HENSLEY, YVONNEYA BROWN, COURTNEY HERNANDEZ, ALBERT ROWAN, TONI OWENS, JIMMY KIRKENDOLL, JOAN L. KIRKENDOLL, MARY ANN EDJEREN, THELMA HOUSLEY, KENNETH JOHNSON, JUDITH ANN WALKER, LESLIE BROWN, DEBORAH EATON, STUART WILLETT, JOSE TORRES, DIANA SALINAS, ERSKINE VANDERBILT, CAROLINE TUNSEL, CATHY JONES, GAIL UDOSEN, REGINA FULTON, HECTOR REYES, LUCIO TORRES, JR., ERNESTO LARA, JACKIE THORNTON, ALFREDO DIMAS, NANCY TAYLOR, REGINALD COLE, CATHLYN COLE, GERALD SMITH FOR THE ESTATE OF EARNEST D. SMITH, FAUCINDA VENCES, THUYVI VINH, MAIDA KHATCHIKIAN, CARL EARL, TROY KING, DIANA ROMERO, SANDRA PYLE, GARY DIAL, MARIA MENDEZ, ANTHONY HARRIS, KEENA HARRIS, KATHERINE STEWART, MARY CURRIE, SIVERAND STERLING, JR., LARRY TANKERSLEY, LESLIE JONES, GONZALO PENA, JOHN LONG, BEVERLY LONG, TERRY RANDLE, AND FELICIA FRANK, Appellees
Appeal from the 55th District Court Harris County, Texas
Trial Court Case No. 2018-31381
consists of Chief Justice Radack and Justices Goodman and
of plaintiffs sued David Gordon Schmidt, doing business as
ABC Bonding Company, and Greenbrier Equities, LLC, contending
that Schmidt and Greenbrier filed illegal liens on the
plaintiffs' homesteads. Schmidt and Greenbrier moved to
dismiss the plaintiffs' claims under the Citizens
Participation Act. The trial court denied the motion on the
ground that the Act did not apply to the plaintiffs'
claims. We affirm in part, reverse in part, and remand for
plaintiffs allege multiple causes of action. The gravamen of
their claims is that Schmidt and Greenbrier had the
plaintiffs sign deeds of trust as to their homes as security
for bail bond loans, fraudulently altered these deeds to
inflate the amount of indebtedness, and later filed the deeds
in Harris County's real property records, thereby
creating illegal liens on the plaintiffs' homesteads.
Among other relief, the plaintiffs sought statutory damages
of at least $10, 000 per illegal lien. See Tex. Civ.
Prac. & Rem. Code §§ 12.001-.007. They also
sought to quiet title and a declaration that the liens are
invalid because they violate various provisions of article
XVI, section 50 of the Texas Constitution.
and Greenbrier filed general denials. They also moved to
dismiss the suit under the Citizens Participation Act.
See Tex. Civ. Prac. & Rem. Code §§
27.001-.011. In their motion, Schmidt and Greenbrier stated
that the plaintiffs represented in the deeds of trust they
signed that the homes they pledged as security were not
homesteads. Schmidt and Greenbrier contended that the
plaintiffs' claims should be dismissed under the Act
because the claims were based on, related to, or were made in
response to Schmidt and Greenbrier's exercise of their
right to free speech or right to petition-specifically, the
filing of the deeds of trust in Harris County's real
trial court denied the motion to dismiss. The court reasoned:
The Plaintiffs' claims do not impact a matter of public
concern as defined in CPRC 27.001(7) simply because they
relate to public filings, or because those filings may be
"false." Imagine the havoc if every routine public
filing was "a matter of public concern" simply
because it was a public filing. Further, if filing suit under
Chapter 12 of the CPRC implicates the anti-SLAPP statute,
then Chapter 12 is essentially abrogated.
and Greenbrier contend that the trial court erred in denying
their motion to dismiss under the Act. The plaintiffs respond
with three counterarguments. First, they argue that their
claims fall outside the scope of the Act because their claims
are not based on, related to, or made in response to Schmidt
and Greenbrier's exercise of their right to free speech
or right to petition. Second, they contend that even if their
claims did come within the scope of the Act, their claims
come within a statutory exemption for commercial speech.
Third, the plaintiffs contend that application of the Act to
their claims abrogates their rights under article XVI,
section 50 of the Texas Constitution, which governs homestead
of Review and Applicable Law
review de novo a trial court's denial of a motion to
dismiss under the Citizens Participation Act. Holcomb v.
Waller Cty., 546 S.W.3d 833, 839 (Tex. App.-Houston [1st
Dist.] 2018, pet. denied). We likewise interpret the Act and
decide whether it applies to a suit de novo. See Youngkin
v. Hines, 546 S.W.3d 675, 680 (Tex. 2018); Better
Bus. Bureau of Metro. Houston v. John Moore Servs., 500
S.W.3d 26, 39 (Tex. App.-Houston [1st Dist.] 2016, pet.
assessing whether a suit or challenged claim comes within the
Act's scope, we rely on the Act's language,
interpreting it as a whole rather than reading its individual
provisions in isolation from one another. Youngkin,
546 S.W.3d at 680. We interpret the Act according to the
plain, common meaning of its words, unless a contrary purpose
is evident from the context or a plain reading of its text
leads to absurd results. Id. We cannot judicially
amend the Act by imposing requirements that the Act does not
or by narrowing its scope contrary to its terms. Cadena
Comercial USA Corp. v. Tex. Alcoholic Beverage
Comm'n, 518 S.W.3d 318, 337 (Tex. 2017); see
ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899
(Tex. 2017) (per curiam) (court presumes that Legislature
purposely omitted words that are not included in Act). Nor
can we substitute the words of the Act to give effect to what
we think the Act should say. ExxonMobil, 512 S.W.3d
directs us to liberally interpret its provisions to fully
effectuate its purpose, which "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." Tex. Civ. Prac. &
Rem. Code §§ 27.002, 27.011(b). To accomplish this
purpose, the Act provides a summary procedure in which a
party may move for dismissal on the basis that the claims
made against it are based on, relate to, or are in response
to the party's exercise of the right of free speech,
right to petition, or right of association. Tex. Civ. Prac.
& Rem. Code § 27.003(a); see In re Lipsky,
460 S.W.3d 579, 589-90 (Tex. 2015). This summary procedure
requires a trial court to dismiss a suit, or particular
claims within a suit, that demonstrably implicate these
rights, unless the non-moving party can at the threshold make
a prima facie showing that its claims have merit.
Sullivan v. Abraham, 488 S.W.3d 294, 295 (Tex.
motion to dismiss made under the Act generally entails a
three-step analysis. Youngkin, 546 S.W.3d at 679.
The movant first must prove by a preponderance of the
evidence that the challenged claims are based on, relate to,
or are in response to its exercise of the right of free
speech, right to petition, or right of association. Tex. Civ.
Prac. & Rem. Code § 27.005(b). The non-movant's
pleading is the best evidence of the nature of its claims.
Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017).
When it is clear from the non-movant's pleadings that the
claims are covered by the Act, the movant need not show more.
Adams v. Starside Custom Bldrs., 547 S.W.3d 890, 897
defines the rights of free speech, petition, and free
association. Tex. Civ. Prac. & Rem. Code §
27.001(2)-(4). We are bound by these statutory definitions.
Youngkin, 546 S.W.3d at 680. Relevant to this
appeal, the exercise of free-speech rights is defined as
"a communication made in connection with a matter of
public concern." Tex. Civ. Prac. & Rem. Code §
27.001(3). Communications include statements or documents
made or submitted in any form or medium. Id. §
27.001(1). Matters of public concern include issues relating
to health or safety; environmental, economic, or community
well-being; the government, a public official or figure; or a
good, product, or service in the marketplace. Id.
§ 27.001(7). Taken together, these statutory definitions
safeguard an expansive right to free speech. See
Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex.
2015) (per curiam) (Act "broadly defines" free
speech); see also Adams, 547 S.W.3d at 896
(Act's list of matters of public concern is
movant carries its burden by showing that the challenged
claims are based on, relate to, or are in response to the
exercise of its rights to speak, petition, or associate, the
trial court must dismiss the claims unless the non-movant
makes by clear and specific evidence a prima facie case for
each element of the challenged claims. Tex. Civ. Prac. &
Rem. Code § 27.005(c); Youngkin, 546 S.W.3d at
679. A prima facie case is the minimum evidence necessary to
support a rational inference that a factual allegation is
true; in other words, a prima facie case requires the non-
movant to come forward with evidence that, if uncontradicted,
is legally sufficient to establish that a claim is true.
S & S Emergency Training Sols. v. Elliott, 564
S.W.3d 843, 847 (Tex. 2018). Mere notice pleading is not
sufficient to satisfy the prima facie standard. Bedford
v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per
non-movant makes a prima facie case in support of the
challenged claims, the burden then shifts back to the movant
to prove by a preponderance of the evidence each element of a
valid defense to these claims. Tex. Civ. Prac. & Rem.
Code § 27.005(d); Youngkin, 546 S.W.3d at
679-80. If the movant carries this burden, the trial court
must dismiss the claims. Youngkin, 546 S.W.3d at
Schmidt and Greenbrier did not waive their arguments
under the Citizens Participation Act as to any of the
plaintiffs initially contend that Schmidt and Greenbrier
waived the right to seek dismissal of the plaintiffs'
claims to quiet title and for declaratory judgment by not
separately addressing these claims in their appellate brief.
trial court, Schmidt and Greenbrier moved to dismiss the
entire suit, and they appeal from the trial court's
denial of their motion. The same allegations underlie all of
the plaintiffs' claims. Assuming that the Citizens
Participation Act applies, the plaintiffs have not explained
how the Act could apply to some of their claims but not
we reject the plaintiffs' waiver argument. See
Tex. R. App. P. 38.1(f) (statement of issue or point in brief
covers every subsidiary question fairly included); see
also Adams, 547 S.W.3d at 896-97 (defendant who
contended in trial court that it was entitled to dismissal
under Act because its speech was on a matter of public
concern preserved subsidiary issues for appeal).
The plaintiffs' claims were made in response to
Schmidt and Greenbrier's exercise of their right to free
speech, and the plaintiffs have not made a prima facie case
in support of their claims.
Schmidt and Greenbrier's exercise of the right to
and Greenbrier's filing of the deeds of trust and the
resulting liens form the underlying factual basis for all of
the plaintiffs' claims. The relief the plaintiffs seek
similarly concerns the liens; they seek removal of the liens,
recovery of lien payments, and $10, 000 in statutory damages
per lien. The claims made against Schmidt and Greenbrier
therefore are based on, relate to, or are in response to
their filing of the deeds of trust and resulting liens. The
dispositive question as to whether the plaintiffs' claims
come within the Act's scope therefore is whether these
filings constitute the exercise of free speech under the Act.
and Greenbrier contend that instruments filed in a
county's real property records constitute the exercise of
free speech because they are "a communication made in
connection with a matter of public concern." Tex. Civ.
Prac. & Rem. Code § 27.001(3). These filings are
"communications," as that term "includes the
making or submitting of a statement or document in any form
or medium, including oral, visual, written, audiovisual, or
electronic." Id. § 27.001(1). Schmidt and
Greenbrier contend that these communications are made in
connection with a matter of public concern because they are
intended to inform the public of encumbrances affecting the
transferability of real property and thus concern goods and
services in the marketplace as well as economic or community
well-being. See id. § 27.001(7)(B), (E)
("matter of public concern" includes issues related
to "environmental, economic, or community
well-being" or "a good, product, or service in the
marketplace"); Tex. Prop. Code § 13.002(1)
(properly recorded instruments provide "notice to all
persons of the existence of the instrument").
and Greenbrier rely in part on the Fourth Court's
application of the Citizens Participation Act to financing
statements in Quintanilla v. West, 534 S.W.3d 34
(Tex. App.-San Antonio 2017), rev'd on other
grounds, 573 S.W.3d 237 (Tex. 2019). In that case, the
court of appeals held that a defendant's filing of
financing statements in the real property records to perfect
a security interest fell within the scope of the Act's
definition of the exercise of free speech. Id. at
37-38. The court thus held that the plaintiff's claims
for slander of title and fraudulent liens were subject to
dismissal. See id. The court reasoned that the
financing statements related to real property sellable in the
marketplace and therefore qualified as a matter of public
concern under subsection (7)(E)'s provision for issues
relating to goods in the marketplace. See id. at
disagree that the plain, common meaning of "good"
is broad enough to embrace real property. "Goods"
ordinarily refer to tangible or moveable personal property,
as opposed to realty. See Goods, New Oxford American
Dictionary (3d ed. 2010) (defining term as "merchandise
or possessions"); Goods, Black's Law
Dictionary (11th ed. 2019) (defining term to include tangible
or moveable personal property other than money, particularly
merchandise, and referring to "goods and services"
as an illustration of the term's ordinary usage); see
also Realty, Black's Law Dictionary (11th ed. 2019)
(defining "realty" or "real property" as
"land and anything growing on, attached to, or erected
on it"). The Legislature has included real property
within the definition of "goods" in at least one
other context; under the Deceptive Trade Practices Act, both
tangible chattels and real property are "goods."
See Tex. Bus. & Com. Code § 17.45(1). But
the Deceptive Trade Practices Act is an instance in which the
Legislature intentionally and explicitly defined
"goods" beyond its ordinary usage. See Aetna
Cas. & Sur. Co. v. Martin Surgical Supply Co., 689
S.W.2d 263, 268 (Tex. App.-Houston [1st Dist.] 1985, writ
ref'd n.r.e.) (noting that DTPA initially defined
"goods" as "tangible chattels" but was
later amended to include real property). The Citizens
Participation Act, in contrast, does not expand the
definition of "good" beyond its ordinary usage, and
we cannot judicially amend its language to give the term a
more expansive meaning than it ordinarily bears. See
ExxonMobil, 512 S.W.3d at 901. Thus, we reject
Quintanilla's holding that real-property filings
relate to goods in the marketplace.
court has held on different facts that communications
affecting the sale or transferability of real property were
on a matter of public concern, as they came within subsection
(7)(B)'s issues relating to economic or community
well-being. See Schimmel v. McGregor, 438 S.W.3d
847, 859 (Tex. App.-Houston [1st Dist.] 2014, pet. denied).
In Schimmel, the plaintiffs, who were trying to sell
their hurricane-damaged homes to the city, sued an attorney
who represented their homeowners association, alleging that
he tortiously interfered with their prospective business
relations with the city by making misrepresentations about
the proposed sale. See id. at 849-50. The attorney
filed a motion to dismiss under the Act, which the trial
court denied. Id. at 851, 854. We reversed the trial
court, holding that the attorney's statements related to
economic or community well-being and thus were an exercise of
free speech covered by the Act. Id. at 859. We held
that the attorney's statements qualified as speech
relating to economic and community well-being because his
statements concerned the city's possible purchase of
homes within a small subdivision, which allegedly would have
lowered the value of neighboring properties and impaired the
revenue of the homeowners association. Id.
contrast, the deeds of trust filed by Schmidt and Greenbrier
do not have any apparent bearing on economic well-being. The
plaintiffs allege that Schmidt and Greenbrier's
fraudulent communications-filings in the real property
records- affected their own financial
well-being-specifically, by subjecting them to double the
amount of indebtedness ostensibly owed on the bail bond loans
and the corresponding possibility of foreclosure and wrongful
eviction for non-payment. But that is not enough to bring
Schmidt and Greenbrier's filings in the real property
records within subsection (7)(B)'s provision for economic
well-being. If it were, then any plaintiff who alleged
damages based on another's communications would find
their claims swept up by the Act. The common meanings of
"economic" are not so all-encompassing as that.
See Economic, New Oxford American Dictionary (3d ed.
2010) (defining term as "of or relating to economics or
the economy"); Economics, New Oxford American
Dictionary (3d ed. 2010) (defining term as "the
condition of a region or group as regards material
prosperity"); Economy, New Oxford American
Dictionary (3d ed. 2010) (defining term as "the wealth
and resources of a country or region," especially
"in terms of the production and consumption of goods and
services"); see also Economics, Black's Law
Dictionary (11th ed. 2019) ("The social science dealing
with the production, distribution, and consumption of goods
and services."); Economy, Black's Law
Dictionary (11th ed. 2019) ("management or
administration of the wealth and resources of a community
(such as a city, state, or country)" or
"sociopolitical organization of a community's wealth
plaintiffs, however, do allege that Schmidt and
Greenbrier's conduct adversely impacts many people other
than themselves. They allege that Schmidt and Greenbrier have
engaged in an ongoing scheme to defraud their customers for
decades. According to the plaintiffs, the Harris County
property records reveal more than 5, 300 instances of this
fraudulent scheme. They further allege that Schmidt and
Greenbrier have foreclosed on some illegal liens and
wrongfully evicted some homeowners, not necessarily all of
whom are plaintiffs. In other words, the plaintiffs
themselves allege that Schmidt and Greenbrier's filings
have adversely affected the well-being of Harris County at
large or at least the subset of its residents who require
bail bond loans. Accordingly, we conclude that subsection
(7)(B)'s provision for statements relating to community
well-being is satisfied. See Community, New Oxford
American Dictionary (3d ed. 2010) ("a group of people
living in the same place or having a particular
characteristic in common" or "a particular area or
place considered together with its inhabitants");
Community, Black's Law Dictionary (11th ed.
2019) ("neighborhood, vicinity, or locality" or
"society or group of people with similar rights or
interests"); see also Cadena, 518 S.W.3d at 327
("If an undefined word used in a statute has multiple
and broad definitions, we presume-unless there is clear
statutory language to the contrary-that the Legislature
intended it to have equally broad applicability.").
hold that the trial court erred in ruling that the
plaintiffs' claims were outside the scope of the Act.
Because Schmidt and Greenbrier proved by a preponderance of
the evidence that their filings were communications made in
connection with a matter of public concern, the Act applies
to the plaintiffs' claims.
plaintiffs try to avoid this holding by arguing that the
deeds of trust are not communications made by Schmidt and
Greenbrier even though they filed them. The plaintiffs reason
that because they filled out the deed forms, the deeds are
communications made by themselves, not Schmidt and
Greenbrier. But the definition of "communication"
encompasses both "the making or submitting of"
documents. See Tex. Civ. Prac. & Rem. Code
§ 27.001(1). Whoever made the deeds, the plaintiffs
agree that Schmidt and Greenbrier filed them in the
county's real property records, which qualifies as
submitting them. See File, New Oxford American
Dictionary (3d ed. 2010) (defining "file" to
include submission of legal documents); File,
Black's Law Dictionary (11th ed. 2019) (term's
meanings include "to deliver a legal document to the
court clerk or record custodian for placement into the
official record" and "to record or deposit
something in an organized retention system or container for
preservation and future reference"). Moreover, the
plaintiffs complain of material alterations-specifically,
misrepresentations as to the loan amounts-that Schmidt and
Greenbrier allegedly made to the deeds of trust before filing
them in the real property records. These alleged alterations
are Schmidt and Greenbrier's speech, not the
plaintiffs' speech. We therefore reject the
plaintiffs' argument that the communications at issue
were not made by the defendants.
Plaintiffs' failure to make a prima facie case as
to their claims
the plaintiffs' pleading shows that their claims are
based on, related to, or are in response to Schmidt and
Greenbrier's exercise of their right to free speech, the
burden shifted to the plaintiffs to make by clear and
specific evidence a prima facie case in support of each
element of their claims. Tex. Civ. Prac. & Rem. Code
§ 27.005(c); Youngkin, 546 S.W.3d at 679. They
did not do so.
their appellate brief, the plaintiffs implicitly concede that
they did not make a prima facie case. They argue that they
"can show" and "will show" that their
claims have merit by making a prima facie showing. But they
did not do so in the trial court. The record is devoid of
clear and specific evidence supporting each element of their
several claims, and the portion of their brief dedicated to
the issue of prima facie evidence contains a single record
citation-to their petition. That is not enough, as notice
pleading does not make out a prima facie case. See
Bedford, 520 S.W.3d at 904. Instead of citing clear and
specific evidence supporting their claims in their appellate
brief, the plaintiffs' devote their argument about prima
facie evidence to the legal significance of the proof that
they say they eventually will produce.
plaintiffs have included several documents as attachments to
their appellate brief: three bail bonds, respectively
purchased by Brenda Crawford, Carlos Perez, and Anthony
Williams; three foreclosure notices, respectively sent to
Randy Laster, Pablo Murillo, and Altha Davis; and a
foreclosure deed relating to a property owned by Earnest
Smith. These documents concerning disparate persons cannot be
cobbled together to support any one plaintiff's claims;
nor would a mere bail bond, foreclosure notice, and
foreclosure deed be prima facie evidence of any claim even if
these documents all related to the same person or property.
Of the hundreds of plaintiffs, not one has submitted an
affidavit substantiating his or her claims.
Schmidt and Greenbrier have moved to strike the documents
attached to the plaintiffs' appellate brief on the basis
that they are not in the record. The defendants are correct
that submission of documents with an appellate brief does not
make them part of the record on appeal and that we cannot
consider such documents unless they also are in the record.
Tex.R.App.P. 34.1; Tex. Windstorm Ins. Ass'n v.
Jones, 512 S.W.3d 545, 552 (Tex. App.-Houston [1st
Dist.] 2016, no pet.). Accordingly, even if these documents
sufficed to make a prima facie case as to the plaintiffs'
claims, we could not credit them. Tex. Windstorm,
512 S.W.3d at 552. We deny Schmidt and Greenbrier's
motion, however, because the documents in question are not
part of the appellate record and thus cannot be stricken from
that the plaintiffs have not made a prima facie case
supporting each element of their claims. Because Schmidt and
Greenbrier have shown that their speech is covered by the Act
and the plaintiffs have not responded by making a prima facie
showing that their claims have merit, we do not need to
consider whether Schmidt and Greenbrier have proved any
defenses to the plaintiffs' claims.
The plaintiffs' claims do not fall within the
Citizen Participation Act's exemption
for commercial speech, and their claims therefore remain
subject to dismissal under the Act.
plaintiffs also argue that the Act's exemption for
commercial speech applies to Schmidt and Greenbrier's
filings. We disagree that the exemption applies.
Citizens Participation Act does not apply to a suit against a
defendant who is "primarily engaged in the business of
selling or leasing goods or services, if the statement or
conduct arises out of the sale or lease of goods, services,
or an insurance product, insurance services, or a commercial
transaction in which the intended audience is an actual or
potential buyer or customer." Tex. Civ. Prac. & Rem.
Code § 27.010(b). This exemption applies if four
elements are met:
(1) the defendant was primarily engaged in the business of
selling or leasing goods or services;
(2) the defendant made the communication on which the claim
is based in its capacity as a seller or lessor of ...