Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 417th Judicial District Court Collin County,
Texas Trial Court Cause No. 417-02850-2018
Justices Myers, Osborne, and Nowell
Ronald Simmons sued appellant Byron Curtis Cook alleging
securities fraud. The trial court denied Cook's motion to
dismiss under the Texas Citizens Participation Act. Tex. Civ.
Prac. & Rem. Code §§ 27.001-27.011
("TCPA"). Because Simmons's legal action is not
factually predicated on Cook's protected activity, we
affirm the trial court's order.
2013, Simmons invested $74, 000 in Cypress Income Fund,
L.L.C. ("CIF"). In 2018, he brought suit against
Cook, CIF, and Legacy Income Properties, L.L.C.
("Legacy"), alleging claims for fraud, breach of
fiduciary duty, and violations of the Texas Securities Act in
connection with his investment. He alleged that Cook was
jointly and severally liable with Legacy and CIF
"because of his direct control of Legacy or CIF as the
issuer or offeror or because of his material aid to
Defendants Legacy or CIF with intent to deceive or defraud or
with reckless disregard for the truth or the law."
Simmons's operative petition added allegations that Cook
was the alter ego of Legacy and CIF.
filed a TCPA motion to dismiss Simmons's claims. He
argued that Simmons filed suit "in bad faith at the
behest of his friend Ken Paxton as part of an intimidation
and disparagement campaign" against Cook, in
"retaliation for Cook's cooperation and
participation in the criminal investigation and prosecution
of Paxton for securities fraud." Texas Attorney General
Paxton had solicited Cook's investment in Servergy, Inc.
(an entity that is not a party to this case), and the Texas
Rangers interviewed Cook in connection with an investigation
of Paxton and Servergy. Paxton was subsequently indicted on
charges including securities fraud in connection with the
solicitation, and the Securities and Exchange Commission
filed a civil action against him. Cook argued that in
cooperating with law enforcement's investigation, he was
exercising protected speech rights, so that Simmons's
suit "relates to or is in response to" Cook's
exercise of the right of free speech. He also contended that
his statements to law enforcement "regarding possible
criminal activity" were an exercise of his right to
petition. Cook also argued that Simmons could not show clear
and specific evidence to support his prima facie case, and
that in any event Simmons's claims were barred by
trial court permitted limited discovery at the parties'
request. After a hearing, the trial court denied Cook's
motion to dismiss. This appeal followed. In three issues,
Cook argues that the TCPA applies, Simmons failed to
establish a prima facie case on each element of his claims by
clear and specific evidence, and Simmons's claim for
securities fraud was barred by limitations.
review de novo the trial court's ruling on a motion to
dismiss under the TCPA. Dyer v. Medoc Health Servs.,
573 S.W.3d 418, 424 (Tex. App.-Dallas 2019, pet. denied).
"In conducting this review, we 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." Fishman v. C.O.D.
Capital Corp., No. 05-16-00581-CV, 2017 WL 3033314, at
*5 (Tex. App.-Dallas July 18, 2017, no pet.) (mem. op.);
see also TCPA § 27.006(a). Whether the TCPA
applies to Simmons's claims is an issue of statutory
interpretation that we also review de novo. Dyer,
573 S.W.3d at 424.
Riggs & Ray, P.C. v. State Fair of Texas, this
In 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
the right of free speech, petition, or association. If this
nexus is missing, then the statute does not apply.
No. 05-17-00973-CV, 2019 WL 4200009, at *4 (Tex. App.-Dallas
Sept. 5, 2019, no pet. h.) (mem. op.) (internal quotations
and emphasis omitted). In his first issue ("Does the
[TCPA] apply to bar a meritless lawsuit brought in
retaliation for a defendant's cooperation in a criminal
investigation and prosecution, even when the plaintiff's
pleadings do not specifically reference the defendant's
participation in the criminal proceedings?"), Cook
acknowledges that Simmons's petition says nothing about
the criminal investigation. But Cook explained in his motion
to dismiss that "this suit seeks ...