Court of Appeals of Texas, Second District, Fort Worth
Richard Rogers & RRK Real Estate Investments & Holdings, LLC, Appellants
Soleil Chartered Bank, Appellee
Appeal from the 48th District Court Tarrant County, Texas
Trial Court No. 048-303257-18
Kerr, Birdwell, and Bassel, JJ.
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.
Factual and Procedural Background
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.
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.
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.
was as at a loss on how to obtain return of the $30, 000 when
a friend suggested posting about his plight on
RipOffReport.com. The friend told Rogers that reporting
matters on the website got matters resolved quickly.
According to the friend, RipOffReport.com 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.
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 RipOffReport.com. Allegedly, this
produced a threat that if a positive report were not
forthcoming, Soleil would sue.
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 RipOffReport.com 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.
sued Rogers and RRK. The core of the petition was that Rogers
and RRK had made several posts on RipOffReport.com
"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
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.
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
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.
Standard of Review
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.").
We apply the structure and procedural process of the
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,
implements these procedural mechanisms with a three-tiered
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. ...