FROM
THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-18-006382, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE
PRESIDING
Before
Chief Justice Rose, Justices Kelly and Smith
MEMORANDUM OPINION
Edward
Smith, Justice.
This is
an appeal from an order denying a motion to dismiss filed
under the Texas Citizens Participation Act (TCPA), Tex. Civ.
Prac. & Rem. Code § 27.003. We will affirm the
district court's order.
BACKGROUND
As
relevant to this appeal, Conrad Bejarano and John Dorgan
jointly own a well-established entertainment venue commonly
known as Spider House, which is located near the University
of Texas at Austin. In 2017, former Spider House employee
Jeremy Rogers[1]published a Facebook post accusing Dorgan
of engaging in years of unprofessional conduct while managing
the venue. The employee alleged that Dorgan was often
inebriated or under the influence of illegal substances, was
physically and verbally abusive to staff and customers, and
was generally incapable of managing the venue effectively.
The post asked for the community's help in "dealing
with the constant depravity of John Dorgan and his continuous
hail storm of abuse."
Shortly
thereafter, someone posted a response to the allegations on
Spider House's Facebook page. The response, signed by
Bejarano on behalf of the venue's ownership and
management, assured readers that Spider House "would
take appropriate steps to make sure our Spider House Family
feels comfortable and secure." This post further
indicated that Dorgan was "banned from the
premises" and would "now and forever [be] a silent
partner" in the enterprise. It continued:
Spider House as a whole has strived for 26 years to guarantee
our establishment is a haven for all. We do not discriminate,
or allow hateful situations to occur in our vicinity. We will
continue to do so, working to gain and keep the trust and
support from our community. The current management staff has
an open door, open dialogue policy; that goes for both our
staff and our guests. . . .
At this time we would like our supporters, staff, and anyone
currently or previously associated with Spider House to feel
free to come to us at any time with comments or concerns they
may have. Our hope is to have an open dialogue, allowing our
community to heal. We hope you will continue coming to Spider
House for shows, events, and more.[2]
Bejarano
maintains that he did not post or approve this statement, but
Dorgan alleges that Bejarano authored the statement himself
or "could have effected its retraction or
correction."
Dorgan
sued Bejarano and others, alleging libel, slander, and
business disparagement. Bejarano moved to dismiss under the
TCPA, arguing that Dorgan's claims arise from his right
to the exercise of free speech. See id. The district
court denied the motion to dismiss and Bejarano timely
perfected this appeal. See id. § 27.008(b)
(authorizing accelerated interlocutory appeal).
DISCUSSION
Bejarano
contends the district court erred by denying the motion to
dismiss, raising arguments that: (1) the TCPA applies to
Dorgan's claims against him; (2) Dorgan cannot make out a
prima facie case for the elements of his claims; and (3)
those claims do not fall into any statutory exception. Dorgan
responds that even if the statute applies to his claims, he
can make out a prima facie case for each element of the
claims and that the claims fall into the TCPA's exception
for commercial speech. See id. § 27.003, .010.
The
TCPA allows a party to move for dismissal of any "legal
action that is based on, related to, or in response to [that]
party's exercise of the right of free speech, right to
petition, or right of association." See id. Its
purpose is to "encourage and safeguard the
constitutional rights of persons to petition, speak freely,
associate freely, and otherwise participate in
government," while still "protect[ing] the rights
of a person to file meritorious lawsuits for demonstrable
injury." See id. § 27.002. "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 rights."
ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895,
898 (Tex. 2017) (per curiam) (citing Tex. Civ. Prac. &
Rem. Code § 27.003). "Under the first step, a
movant seeking to prevail on a motion to dismiss under the
TCPA has the burden to 'show[ ] by a preponderance of the
evidence that the [non-movant's] legal action is based
on, relates to, or is in response to the [movant's]
exercise of (1) the right of free speech; (2) the right to
petition; or (3) the right of association.'"
Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865,
872 (Tex.App.-Austin 2018, pet. filed) (quoting Tex. Civ.
Prac. & Rem. Code § 27.005(b)). In the second step,
once the court "determines that the movant has met his
burden to show that the TCPA applies, the burden shifts to
the non[-]movant to establish 'by clear and specific
evidence a prima facie case for each essential element of the
claim in question.'" Id. at ...