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Richard Rogers & RRK Real Estate Investments & Holdings, LLC v. Soleil Chartered Bank

Court of Appeals of Texas, Second District, Fort Worth

September 26, 2019

Richard Rogers & RRK Real Estate Investments & Holdings, LLC, Appellants
Soleil Chartered Bank, Appellee

          On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048-303257-18

          Before Kerr, Birdwell, and Bassel, JJ.



         I. Introduction

         This is an interlocutory appeal from the denial of a motion to dismiss filed pursuant to the Texas Citizens Participation Act (the TCPA or the Act). This appeal brings us what has become a routine scenario: one party is dissatisfied with another's services, the dissatisfied party posts negative information on the internet, the service provider considers the posted statements defamatory and sues, and the dissatisfied party (now the defendant) invokes the TCPA. Here, the parties presented the trial court with perfunctory efforts to deal with the TCPA issues, and the trial court denied the TCPA motions to dismiss. The dissatisfied parties invoking the TCPA made a sufficient showing to bring themselves within the sweeping orbit of the TCPA. The service provider as the responding party relied almost exclusively on its petition to present the clear and specific evidence necessary to establish a prima facie case and to avoid a TCPA dismissal. That scant effort was not enough, and the underlying claims should have been dismissed. We therefore must reverse and remand.

         II. Factual and Procedural Background

         Our knowledge of the dispute's background comes mostly from the affidavits attached to the TCPA motions to dismiss filed by Appellants RRK Real Estate Investments & Holdings, LLC and Richard Rogers. The controversy has its genesis in a failed effort to finance a real estate project. RRK, acting through its manager and CEO, Rogers, worked with a broker to obtain financing for the project. That broker introduced Rogers to an intermediary that allegedly was going to obtain millions of dollars in financing from Soleil Capitale, a party that shares the initial name as Appellee and the plaintiff below, Soleil Chartered Bank. The financing required the monetization of a standby letter of credit. The broker instructed RRK to send $30, 000 to "Soleil Bank, " and RRK did so in accordance with the information contained in correspondence from the intermediary.

         RRK claims that the intermediary said that the money was sent too early but assured RRK that the deal could still be done. According to RRK, months passed, and RRK began asking questions. The intermediary laid the blame on Soleil, claiming that it had not produced the "right instrument" and that the intermediary had begun efforts to obtain return of the $30, 000 payment.

         Next, the intermediary allegedly wanted "to wash [its] hands of the situation" and gave Rogers the contact information for Soleil. Rogers claims that he received shifting excuses from Soleil. Internet research performed by Rogers also produced a concern that Soleil "might not have ever had the ability to pull off this transaction." Allegedly, at that point, Soleil threatened to sue. Rogers claimed that his position was that he wanted the $30, 000 back and that he told Soleil that if it could produce evidence that another party was at fault for the situation, he would look to that party. Soleil allegedly quit responding to Rogers, and the intermediary refused to be involved.

         Rogers was as at a loss on how to obtain return of the $30, 000 when a friend suggested posting about his plight on The friend told Rogers that reporting matters on the website got matters resolved quickly. According to the friend, allows parties to air their grievances and gives the "accused company" a chance to demonstrate that it handles disputes well. Rogers claimed that he posted "the story as it was presented to [him and RRK] and simply recounted [his and RRK's] experience with both [the intermediary] and Soleil." The posting did not produce a congenial resolution. The intermediary allegedly produced evidence placing the blame on Soleil. Soleil responded with another threat of suit.

         Rogers claimed that he again sought either (1) evidence that the intermediary was at fault or (2) the return of the $30, 000 from Soleil, and that if either occurred, he would post the positive outcome on Allegedly, this produced a threat that if a positive report were not forthcoming, Soleil would sue.

         Rogers claimed that he found "other reports of people saying that Soleil Chartered Bank had also taken their money or didn't provide a Bank Guarantee or [Standby] Letter of Credit that could actually be utilized." Also, Rogers claimed that he responded "to the man that contacted me[] and simply stated that if we could get the $30, 000 USD back from Soleil Chartered Bank, we would be more than happy to post something positive, but wouldn't allow anyone to remove reports." The pre-suit episode ended with Rogers claiming that he heard nothing else from Soleil until notice of a lawsuit was taped to his front door.

         Soleil sued Rogers and RRK. The core of the petition was that Rogers and RRK had made several posts on "containing several false statements." The petition then quoted three of the posts but did not specify which statements within the posts were false. The only other statement about the falsity of the statements concluded that "[m]any of the allegations contained in these publications are false." Based on these "allegations, " the petition asserted causes of action for defamation, business disparagement, and tortious interference with prospective advantage. The two pages of the petition asserting the specific causes of action were conclusory allegations of the elements of the various causes of action.

         Rogers responded to the suit with a special appearance and an answer. We do not find an answer on behalf of RRK in the clerk's record, but Rogers and RRK each filed an "Anti-SLAPP Motion to Dismiss." Those motions contain identical grounds: "The pleadings on file and the supporting affidavit(s) show by a preponderance of the evidence that Plaintiff's causes of action [for] slander, libel, defamation of character, intentional infliction of emotional distress, interfering with economic benefit[, ] and fraud[] are based [on] Defendant's exercise of First Amendment . . . right of free speech . . . ." [Emphasis added.] The causes of action referenced in the motions to dismiss do not align with the causes of action alleged in the petition. The affidavits from which we extracted our factual summary were attached to the motions to dismiss.

         Soleil filed briefs in response to Rogers's and RRK's motions to dismiss. Soleil's briefs made legal arguments challenging Rogers's and RRK's reliance on the TCPA. But the only evidence that Soleil attached to its brief responding to RRK's motion was a copy of its petition, and the only evidence it attached to its brief responding to Rogers's motion was a copy of the petition and an unauthenticated copy of Rogers's postings on the website.

         The trial court denied Rogers's special appearance. The trial court also denied Rogers's and RRK's motions to dismiss. Rogers and RRK perfected an appeal from the denial of these motions arguing in a single issue that the trial court erred by denying their TCPA motions to dismiss.

         III. Standard of Review

         Because we construe the language of the TCPA in this appeal, we apply a de novo standard of review. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017); see also Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018) ("In TCPA appeals, we have decided whether communications are matters of public concern under a de novo standard of review, suggesting that the determination is one of law.").

         IV. Analysis

         A. We apply the structure and procedural process of the TCPA.

         In this memorandum opinion, we will not outline the history or the purpose of the TCPA but initially quote the concurring opinion from the Austin Court of Appeals that sets forth an overview of the TCPA and describes the procedural mechanisms created by the TCPA:

[t]he specific means by which the [l]egislature sought to accomplish the TCPA's stated purposes was to provide a new set of procedural mechanisms through which a litigant may require, by motion, a threshold testing of the merits of legal proceedings or filings that are deemed to implicate the expressive interests protected by the statute, with the remedies of expedited dismissal, cost-shifting, and sanctions for any found wanting.

Serafine v. Blunt, 466 S.W.3d 352, 369 (Tex App-Austin 2015, no pet) (op on reh'g) (Pemberton, J, concurring).[1]

         The Act implements these procedural mechanisms with a three-tiered approach:

Once a motion to dismiss is filed, a burden-shifting mechanism goes into effect. [In re] Lipsky, 460 S.W.3d [579, ] 586–87 [(Tex. 2015) (orig. proceeding)]. First, a defendant moving for dismissal has the burden to show by a preponderance of the evidence that the plaintiff filed a "legal action" that is "based on, relates to, or is in response to" the defendant's exercise of the right of free speech, the right to petition, or the right of association. Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003(a), .005(b); Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018).
Second, if the defendant satisfies that burden, to avoid dismissal, a plaintiff must establish by clear and specific evidence a prima facie case for each essential element of its claim. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). The requirement for "clear and specific evidence" means the plaintiff "must provide enough detail to show the factual basis for its claim." Lipsky, 460 S.W.3d at 590–91.
Third, even if the plaintiff establishes a prima facie case, the defendant can still obtain dismissal if he "establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim." Tex. Civ. ...

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