Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 116th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-16070
Justices Whitehill, Partida-Kipness, and Pedersen, III
PEDERSEN, III JUSTICE.
& Ray, P.C. (R & R), the plaintiff in the suit below,
appeals an order granting a motion to dismiss filed by
appellee State Fair of Texas (SFT), the defendant, pursuant
to the Texas Citizens Participation Act (TCPA). See
Tex. Civ. Prac. & Rem. Code Ann. §§
27.001-.011. The critical issue in this appeal is
whether R & R's suit "is based on, relates to,
or is in response to" SFT's exercise of its
"right of free speech" or "right to
petition." Id. §§ 27.003(a),
27.005(b)(1)- (2). We hold that it is not, and we therefore
reverse and remand.
March 2015, R & R, on behalf of an anonymous client, sent
a letter to SFT requesting sixty-one categories of records
under the Texas Public Information Act (TPIA). See
Tex. Gov't Code Ann. §§ 552.021,
.221. SFT filed a declaratory judgment
action against R & R. SFT's petition sought a
declaration that it is not a governmental body subject to the
TPIA, and, therefore, it had no obligation to comply with, or
to respond to, R & R's requests. R & R filed (i)
a plea to the jurisdiction, and (ii) an answer, motion to
transfer venue, and motion to dismiss under the TCPA. The
district court dismissed SFT's suit for want of
jurisdiction and under the TCPA. The court also awarded R
& R attorney's fees and sanctions under the statute.
SFT appealed. This Court reversed and remanded on the basis
that (i) SFT's petition was sufficient to invoke the
district court's subject-matter jurisdiction, and (ii)
the court erred in granting R & R's motion to
dismiss. See State Fair of Tex. v. Riggs & Ray,
P.C., No. 05-15-00973-CV, 2016 WL 4131824, at *1-5 (Tex.
App.-Dallas Aug. 2, 2016, no pet.) (mem. op.).
October 2016, SFT filed a notice of nonsuit. The notice
stated that, based on subsequent developments, including the
Texas Supreme Court's decision in Greater Houston
Partnership v. Paxton, 468 S.W.3d 51 (Tex. 2015), SFT no
longer saw the need to prosecute its action. Thereafter, the
district court signed an order of nonsuit dismissing
SFT's suit without prejudice.
months later, R & R sued SFT. R & R's petition
sought a judgment (i) declaring its rights, status, and legal
relations with regard to SFT and (ii) concerning the
applicability of the TPIA to SFT. See Gov't
§ 552.3215(b) ("An action for a declaratory
judgment or injunctive relief may be brought . . . against a
governmental body that violates this chapter."); Civ.
Prac. & Rem. §§ 37.001-.011 (Declaratory
Judgments Act). Namely, R & R requested a declaration
that (i) "SFT is a governmental body for purposes of the
[TPIA]," (ii) "the information sought by R & R
is public information not exempt from disclosure," and
(iii) "SFT has a duty to promptly release the requested
information to R & R." R & R also requested a
writ of mandamus based on SFT's "refusal to produce
the requested public information as required by the
[TPIA]." See Gov't § 552.321(a). R
& R sought an order compelling SFT to produce the
answering R & R's petition, SFT filed two motions to
dismiss, the first made under Rule 91a of the Texas Rules of
Civil Procedure, see Tex. R. Civ. P. 91a, and the
second urged pursuant to the TCPA, see Civ. Prac.
& Rem. § 27.003. Around this same time, R & R
filed a motion for discovery. On May 10, 2017, the court
granted R & R's motion "with respect to limited
requests for production" and ordered that SFT produce
certain of the documents that R & R had requested.
21, 2017, the district court held a hearing on SFT's
motion to dismiss under the TCPA. One week later, on July 28,
the court signed an order granting the motion. R & R
appealed the July 28 order, which at the time was an
interlocutory order, in an abundance of
caution.Meanwhile, the case continued in the
district court while the appeal was pending. On September 22,
2017, the court held an evidentiary hearing regarding
SFT's attorney's fees and costs. See id.
§ 27.009(a)(1) (requiring, in event of TCPA dismissal,
award to moving party of its costs and reasonable
attorney's fees). Nearly one month later, on October 18,
the court signed an order awarding SFT $161, 239.25 in
attorney's fees, $16, 967.34 in "[o]ther
expenses," and $90, 000 in conditional attorney's
fees in the event of an appeal to this Court and/or to the
Texas Supreme Court. The court also ordered that R & R
pay SFT $30, 000 as a sanction, which, when paid, was to be
deposited into, and used exclusively by, the State Fair of
Texas Youth Scholarship Program. See id. §
27.009(a)(2) (requiring "sanctions against the party who
brought the legal action as the court determines sufficient
to deter [such party] from bringing similar actions").
The October 18 order notes that it "is a final judgment
that disposes of all remaining claims and parties."
November 6 and 7, 2017, R & R and SFT filed cross-appeals
of the foregoing orders.Specifically, R & R appeals the
July 28 dismissal order, a September 28, 2017 order denying R
& R's requests for findings of fact and conclusions
of law, and the October 18 fee order. SFT appeals the fee
November 17, 2017, the district court held a hearing on a
motion to reconsider, which R & R had filed nearly two
months prior, with respect to the July 28 dismissal order.
Following the hearing, the court signed an order dismissing
the motion to reconsider on the ground that the court lacked
authority under the TCPA to entertain the
motion. The court's order alternatively
denied the motion to reconsider on the merits.
purpose of the TCPA "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." Civ. Prac. & Rem. §
27.002. The statute establishes a motion to dismiss procedure
to accomplish this purpose. See ExxonMobil Pipeline Co.
v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam)
("To effectuate the statute's purpose, the
Legislature has provided a two-step procedure to expedite the
dismissal of claims brought to intimidate or to silence a
defendant's exercise of these First Amendment
"[i]f a legal action 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," the
TCPA provides that such party "may file a motion to
dismiss the legal action." Civ. Prac. & Rem. §
27.003(a). The movant bears the initial 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 . . . the right of free
speech," "the right to petition," or "the
right of association." Id. § 27.005(b);
Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418,
424 (Tex. App.-Dallas 2019, pet. denied). We review the trial
court's ruling de novo. Dyer, 573 S.W.3d at 424.
R's first issue argues that the district court erred by
dismissing R & R's claims and awarding SFT fees,
expenses, and sanctions pursuant to the TCPA. Related to this
contention, R & R's second issue urges that the TCPA
does not apply to its claims. SFT counters that R &
R's suit "is based on, relates to," or "is
in response to" SFT's exercise of its "right to
petition" and "right of free speech," and,
therefore, the statute applies. See Civ. Prac. &
Rem. §§ 27.003(a), 27.005(b)(1)-(2).
of the Right to Petition"
TCPA defines "exercise of the right to petition" as
"a communication in or pertaining to," among other
listed items, "a judicial proceeding." Id.
§ 27.001(4)(A)(i). "Communication," in turn,
is defined as "includ[ing] 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). In applying these provisions,
therefore, we must determine whether SFT "ma[de] or
submitt[ed] . . . a statement or document," id.
§ 27.001(1), "pertaining to . . . a judicial
proceeding," id. § 27.001(4)(A)(i), and,
if so, whether R & R's lawsuit "is based on,
relates to, or is in response to" such statement or
document, id. §§ 27.003(a), .005(b)(2).
undisputed that SFT's declaratory judgment petition was a
"communication" as defined by the
TCPA. We agree based on the plain language
of section 27.001(1). See Coleman, 512 S.W.3d at 899
("Our objective in construing a statute is to give
effect to the Legislature's intent, which requires us to
first look to the statute's plain language."
(citation and internal quotation marks omitted)). However,
the parties dispute whether SFT's declaratory judgment
action, which it nonsuited before R & R filed this
lawsuit, was a "judicial proceeding" at the time R
& R filed suit. See Levatino v. Apple Tree
Café Touring, Inc., 486 S.W.3d 724, 726, 728
(Tex. App.-Dallas 2016, pet. denied) (concluding that
"ordinary meaning of 'a judicial proceeding' is
an actual, pending judicial proceeding"). We need not
decide this question. Even if SFT's declaratory judgment
action remained a "judicial proceeding" after it
was nonsuited, we agree with R & R that its "legal
action" is not "based on," does not
"relate[ ] to," and is not "in response
to" SFT's exercise of its "right to
petition," see Civ. Prac. & Rem.
§§ 27.003(a), .005(b)(2).
on, relates to, or is in response to"
order to trigger the TCPA's protection, the 'legal
action' must be factually predicated on the
alleged conduct that falls within the scope of [the]
TCPA's definition of exercise of the 'right of free
speech,' petition, or association." Dyer,
573 S.W.3d at 428 (emphasis added) (citation and internal
quotation marks omitted). If this nexus is missing, then the
statute does not apply. See Sloat v. Rathbun, 513
S.W.3d 500, 504 (Tex. App.-Austin 2015, pet. dism'd)
(concluding that any activities by the movant "that are
not a factual predicate for [the non-movant's] claims are
simply not pertinent to the inquiry"). We consider the
pleadings and any supporting and opposing affidavits in the
light most favorable to the non-movant, Dyer, 573
S.W.3d at 424, favoring the conclusion that the
non-movant's claims are not predicated on protected
expression, Damonte v. Hallmark Fin. Servs., Inc.,
No. 05-18-00874-CV, 2019 WL 3059884, at *5 (Tex. App.-Dallas
July 12, 2019, no pet. h.) (mem. op.); cf. Civ.
Prac. & Rem. § 27.011(a) (stating that TCPA
"does not abrogate or lessen any other . . . remedy . .
. available under the constitutional, statutory, case, or
common law or rule provisions"). "We cannot
'blindly accept' attempts by the movant to
characterize the claims as implicating protected
expression." Damonte, 2019 WL 3059884, at *5
(citing Sloat, 513 S.W.3d at 504). Any activities by
the movant that are not a factual predicate for the
non-movant's claims are not pertinent to our inquiry
regarding whether the TCPA applies. Id. R & R
contends that its claims are not factually predicated on
SFT's declaratory judgment action. Upon reviewing the
pleadings and evidence in light of the foregoing standard, we
agree with R & R. Nothing in R & R's petition
suggests that its claims are predicated on anything other
than SFT's noncompliance with R & R's records
requests. See id. at *5 (concluding that nothing in
non-movant's suit suggested its claims were predicated on
anything other than movant's alleged involvement in
scheme to misappropriate and use non-movant's
confidential information); Misko v. Johns, 575
S.W.3d 872, 878 n.5 (Tex. App.-Dallas 2019, pet. filed)
("In this case, [intervenor's] motion for sanctions
was based on alleged discovery abuse by [defendant] during
the litigation. Discovery abuse is not a right protected by
the TCPA."); Dyer, 573 S.W.2d at 430 (holding
that plaintiffs' claims were based on defendants'
alleged misappropriation of plaintiffs' proprietary
software and confidential information with intent to sell or
use such property). Although SFT communicated this
noncompliance through its declaratory judgment suit, the
noncompliance itself, not the communication, is the basis of
R & R's claims. See Kawcak v. Antero Res.
Corp., No. 02-18-00301-CV, 2019 WL 761480, at *17 (Tex.
App.-Fort Worth Feb. 21, 2019, pet. denied) ("[S]imply
alleging conduct that has a communication embedded within it
does not create the relationship between the claim and the
communication necessary to invoke the TCPA.").
sister court's decision in Dolcefino v. Cypress Creek
EMS is instructive in this regard. 540 S.W.3d 194 (Tex.
App.-Houston [1st Dist.] 2017, no pet.). That case arose from
a journalist's document requests, issued under sections
22.353 and 22.354 of the Business Organizations Code,
to a non-profit corporation.
Id. at 196. The corporation filed a declaratory
judgment action and sought a determination as to whether
section 22.353 required it to provide the requested
documents. Id. at 196-97. The journalist moved to
dismiss based on the TCPA, claiming that (i) his document
requests were an exercise of his right of free speech, and
(ii) the corporation's declaratory judgment action was
"harassment" in retaliation for the requests and
was based on, related to, or filed in response to the
journalist's exercise of his free-speech right.
Id. at 197. The motion to dismiss was denied by
operation of law, id. at 197 (citing Civ. Prac.
& Rem. §§ 27.005(a), .008(a)), and our sister
court affirmed on appeal, id. at 197, 202. The court
noted that the corporation's pleadings "sought a
declaration from the trial court concerning its own
conduct, i.e., what its duties and obligations were upon its
receipt" of the subject document requests. Id.
at 200 (emphasis in original). Moreover, the corporation did
not seek to prohibit any conduct or speech by the journalist,
it did not allege the subject requests contained any tortious
communications, and it did not seek any damages related to
such requests. Id. Under these circumstances, the
trial court reasonably could have determined that the
corporation's suit was "'based on, relates to,
or is in response to' the triggering of its own duties or
obligations to comply with Business Organizations Code
section 22.353-a subject matter that does not fall within the
TCPA's purview." Id.
plaintiff in Dolcefino was the recipient of the
subject requests, whereas in this case the plaintiff (R &
R) is the requestor. Nevertheless, in both suits the
plaintiff sought (or, in the case of R & R, seeks) a
determination of whether the applicable statute obligated
(or, in the case of SFT, obligates) the recipient of the
requests to produce the sought-after documents. Moreover, R
& R's mandamus claim is based on the TPIA's
mechanism for enforcing compliance with the statute.
See Gov't § 552.321(a); cf. Retzlaff v.
Klein, No. 04-16-00675-CV, 2017 WL 3270368, at *5 (Tex.
App.-San Antonio Aug. 2, 2017, pet. denied) (mem. op.)
(holding that defendants' motion for contempt against
vexatious litigant under chapter 11 of Civil Practice and
Remedies Code was not a retaliatory lawsuit under TCPA;
"[b]y filing the motion for contempt, [defendants] were
simply invoking the enforcement mechanism set forth in
chapter 11"). R & R's "legal action"
is not "based on, relate[d] to, or . . . in response
to" SFT's exercise of its "right to
of the Right of Free Speech"
the TCPA, "exercise of the right of free speech" is
defined as "a communication made in connection with a
matter of public concern." Civ. Prac. & Rem. §
27.001(3). Accordingly, we must determine whether SFT
"ma[de] or submit[ted] . . . a statement or
document," id. §§ 27.001(1), "in
connection with a matter of public concern,"
id. § 27.001(3), and, if so, whether R &
R's lawsuit "is based on, relates to, or is in
response to" such statement or document, id.
§§ 27.003(a), .005(b)(1).
parties dispute whether SFT's silence in response to R
& R's records requests was a
"communication" under the TCPA. We recently
concluded that "the TCPA, as written, does not include
the withholding of a statement or document as a
'communication.'" Krasnicki v. Tactical
Entm't, LLC, No. 05-18-00463-CV, 2019 WL 2136155, at
*4 (Tex. App.-Dallas May 16, 2019, pet. denied). To construe
the definition otherwise "would lead to an absurd result
as nothing would be outside the scope of the TCPA."
Id. SFT attempts to distinguish Krasnicki
on the basis that, unlike this case, Krasnicki did
not involve a refusal to speak in the face of a statutorily
based request for documents. We need not assess this
purported distinction because, as noted previously, it is
undisputed that SFT's declaratory judgment petition was a
"communication" as defined by the TCPA.
See Civ. Prac. & Rem. § 27.001(1). Thus,
whether SFT's silence was also a
"communication" is of no consequence to our
resolution of this appeal. See Tex. R. App. P. 47.1
(providing that opinion must address every issue "raised
and necessary to final disposition of the
appeal" (emphasis added)).
of public concern"
R does not dispute that SFT's declaratory judgment
petition was "in connection with a matter of public
concern." Civ. Prac. & Rem. § 27.001(3);
see also id. § 21.001(7)(A)-(E) (defining
"matter of public concern" as "includ[ing] an
issue related to" "health or safety,"
"environmental, economic or community well-being,"
"the government," "a public official or public
figure," or "a good, product, or service in the
marketplace"); Adams v. Starside Custom Builders,
LLC, 547 S.W.3d 890, 896 (Tex. 2018) (describing the
foregoing "statutory list" as
"non-exclusive"); Coleman, 512 S.W.3d at
900 ("The TCPA does not require that the statements
specifically mention health, safety, environmental, or
economic concerns, nor does it require more than a tangential
relationship to the same." (internal quotation marks
omitted)). Accordingly, we need not decide this question,
see Tex. R. App. P. 47.1, and we will assume that
SFT's declaratory judgment petition so qualifies.
on, relates to, or is in response to"
discussed previously, R & R's "legal
action" is not "based on, relate[d] to, or . . . in
response to" SFT's exercise of its rights under the
TCPA, including its "exercise of the right of free
speech." Civ. Prac. & Rem. §§ 27.003(a),
that the TCPA does not apply to R & R's suit. We
sustain R & R's first and second issues. Given this
holding, we need not consider R & R's remaining
issues, nor need we consider SFT's cross-appeal.
See Tex. R. App. P. 47.1.
to the Dissent
dissent begins by paying perfunctory deference to the test
conducted in step one of the analysis required by the TCPA.
The test requires this Court to read the petition in the
manner most sympathetic to the TCPA's non-applicability.
"[W]e consider, in the light most favorable to the
non-movant, the pleadings and any supporting and opposing
affidavits stating the facts on which the claim or defense is
based." Dyer, 573 S.W.3d at 424 (citation and
internal quotation marks omitted). The dissent then
immediately jettisons any pretense of observing that test. It
instead focuses on the purported nexus between R &
R's suit and SFT's direct or indirect
communications, while ignoring the plain language in the
petition that R & R seeks relief from "SFT's
refusal to produce the requested public information as
required by the Texas Public Information Act."
dissent also mischaracterizes R & R's allegation that
it "now brings this suit . . . [b]ecause the court of
appeals has already determined that the applicability of the
TPIA to SFT constitutes a justiciable controversy and invokes
subject matter jurisdiction under the [Declaratory Judgments
Act]." This allegation simply demonstrates the
availability of a lawsuit to remedy SFT's purported
noncompliance with the TPIA. Contrary to the dissent's
characterization, the allegation does not establish that the
we must review R & R's petition and any supporting
and opposing affidavits in the light most favorable to
non-coverage. Adams v. Starside Custom Builders,
LLC, 545 S.W.3d 572, 578 (Tex. App.-Dallas 2016),
rev'd on other grounds, 547 S.W.3d 890 (Tex.
2018). The dissent's failure (or refusal) to do so leads
it to erroneously conclude that the ...