Court of Appeals of Texas, Fourth District, San Antonio
the 408th Judicial District Court, Bexar County, Texas Trial
Court No. 2018-CI-00676 Honorable Antonia Arteaga, Judge
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa,
Justice Liza A. Rodriguez, Justice.
OPINION ON APPELLANT'S MOTION FOR
A. Rodriguez, Justice.
10, 2019, we issued an opinion and judgment in this appeal.
See Shopoff Advisors, L.P. v. Atrium Circle,
G.P., No. 04-18-00438-CV, 2019 WL 2996977 (Tex. App.-San
Antonio July 10, 2019, no pet. h.). Appellant Shopoff
Advisors, LP ("Shopoff") then filed a motion for
rehearing. After requesting a response, we grant
Shopoff's motion for rehearing, withdraw our prior
opinion and judgment, and substitute this opinion and
judgment in their place.
appeals from the trial court's interlocutory order
denying its motion to dismiss filed pursuant to the Texas
Citizens Participation Act ("TCPA"), also known as
Texas's anti-SLAPP statute. See Tex. Civ. Prac.
& Rem. Code Ann. §§ 27.001-.011. Shopoff contends
the trial court erred in denying its motion because the
claims brought by appellees (collectively referred to as
"Atrium") relate to the exercise of Shopoff's
right to petition. We reverse and render.
dispute between Shopoff and Atrium is complicated and relates
to multiple legal proceedings. It began in February 2016 when
Shopoff failed to close on a real estate transaction. Shopoff
had agreed to buy six properties from Atrium for $35, 600,
000.00 and had placed $2.5 million into an escrow account at
First American Title Co. ("First American"). After
Shopoff did not close on the transaction, Atrium argued that
Shopoff had breached their agreement and forfeited the escrow
money. The next month, March 2016, Shopoff was ready to close
and sued Atrium for specific performance, demanding Atrium
sell the properties to Shopoff. Shopoff also filed lis
pendens on the properties. Atrium counterclaimed,
and the case was referred to arbitration.
March 29, 2017, a year later, the arbitrators issued their
final award, determining that $2, 006, 100.00 of the $2.5
million on deposit with First American should be distributed
to Atrium. The rest should be distributed to Shopoff. The
arbitrators further ordered the parties to "promptly
execute all documents required by First American Title
Company to cause the release of such $2.5 million in
accordance with this Award (and in no event more than three
business days following receipt from the title company of
such documents)." Shopoff was also ordered to
"release all Notices of Lis Pendens from the real
property records where such notices were filed for record
within seven (7) calendar days from the date of this
April 3, 2017, Atrium's attorney sent a letter via email
to the escrow officer at First American demanding $2, 006,
100.00 of the escrow money be released to Atrium. Attached to
the email was the arbitrators' final award. On April 4,
2017, Shopoff's counsel sent an email to the escrow
officer stating that the "award will be challenged in
Stare [sic] District Court." Shopoff's counsel
instructed the escrow officer to "not release any funds
until you have a final, nonappealable judgment from a court
of last resort." The escrow officer then emailed
Atrium's attorney the following:
We have been advised by counsel for Shopoff that the
arbitration award will be challenged and, as such, we are not
in a position to release the funds at this time.
April 12, 2017, the trial court signed a final judgment
confirming the arbitration award. The final judgment ordered
the parties to provide a copy of the judgment to First
American within three days. It also ordered the parties to
"promptly execute all documents required by First
American Title Company to cause the release of such $2.5
million in accordance with the Final Award and this Final
Judgment, and to return such documents to First
American" within fifteen business days of receiving the
documents from First American. With respect to the notices of
lis pendens filed by Shopoff, the final judgment ordered that
the notices of lis pendens "are hereby cancelled,
released, and vacated."
April 14, 2017, Shopoff filed a "Motion to Approve
Deposit in Lieu of Supersedeas Bond," requesting that
the trial court set the amount of cash Shopoff needed to
deposit to supersede the final judgment. On April 17, 2017,
Shopoff filed its notice of appeal, stating that it intended
to appeal the trial court's final judgment. Shopoff's
appeal of the trial court's final judgment was assigned
Appeal No. 04-17-00241-CV in this court.
months later, on October 5, 2017, Atrium filed a "Motion
to Enforce and Collect Judgment, for Turnover Order, Motion
for Sanctions, and Motion to Require Supersedeas or Cash
Deposit in Lieu of Supersedeas." According to Atrium,
Shopoff had never set its motion to approve deposit in lieu
of supersedeas bond for a hearing; thus, Shopoff had never
superseded the judgment. Atrium also complained that Shopoff
had not released the notices of lis pendens on Atrium's
properties or executed the documents necessary to release the
funds in escrow. Thus, Atrium argued it was entitled to
enforcement and collection of the judgment.
November 28, 2017, Shopoff filed a "Notice of Filing
Deposit in Lieu of Supersedeas Bond," explaining that it
had filed a "Net Worth Affidavit." The affidavit
affirmed its net worth to be $218, 630.00; thus, pursuant to
Texas Rule of Appellate Procedure 24.1(a)(3), Shopoff
deposited with the trial court clerk the sum of $109, 315.00,
or one-half of its net worth.
next day, the trial court heard Atrium's motion to
enforce the judgment. After hearing testimony, the trial
court took the matter under advisement. On December 22, 2017,
the trial court signed an order granting Atrium's motion
to the extent it ordered Shopoff to execute a release of each
of the lis pendens previously filed. Five days later, Atrium
filed a motion for contempt, arguing Shopoff had not complied
with the trial court's order. That same day, the trial
court issued a show cause order, ordering Shopoff to appear
on January 9, 2018.
January 2, 2018, Shopoff filed an original mandamus
proceeding in this Court (Appeal No. 04-18-00001-CV), seeking
a writ of injunction and requesting this Court to determine
whether Shopoff's filing of its net worth affidavit and a
cash deposit was sufficient to stay execution of the judgment
pending determination of the adequacy of the supersedeas
next day, on January 3, 2018, in Appeal No. 04-17-00241-CV
(Shopoff's appeal from the trial court's judgment),
this court issued an opinion concluding that $900 of the
escrow money on deposit with First American should have been
distributed to Shopoff. Thus, this Court modified the trial
court's judgment to include $900 that was erroneously not
distributed to Shopoff and affirmed the judgment as modified.
Pursuant to this modified judgment, Atrium remained entitled
to $2, 006, 100.00 of the $2.5 million on deposit with First
American. On January 18, 2018, in Appeal No. 04-17-00241-CV
(Shopoff's appeal from the trial court's judgment),
Shopoff filed a motion for rehearing. On January 22, 2018,
this court denied the motion for rehearing.
February 7, 2018, in the mandamus proceeding filed in this
court (Appeal No. 04-18-00001-CV), this court issued an
opinion, explaining that Shopoff's cash deposit, even if
insufficient, superseded the trial court's judgment.
Thus, this court conditionally granted Shopoff's petition
for writ of mandamus. The trial court then vacated its
December 22, 2017 order.
February 14, 2018, Shopoff's attorney sent a letter to
Atrium's attorney and attached a "Tender,"
along with a proposed Agreed Order directing the trial court
clerk to pay Atrium the sum contemplated by this court's
modified judgment in Appeal No. 04-17-00241-CV. On March 5,
2018, Atrium filed in the trial court a "Motion to
Reconvene Hearing on Motion to Require Supersedeas, and
Motion to Set, Increase, or Modify Supersedeas." In its
motion, Atrium complained that Shopoff would not indicate
whether it intended to appeal this Court's decision in
Appeal No. 04-17-00241-CV to the Supreme Court and argued it
was harmed by Shopoff's appeals. In fact, Shopoff did not
file a petition for review with the Texas Supreme Court;
thus, the mandate in Appeal No. 04-17-00241-CV issued on
April 4, 2018.
on January 12, 2018, days after this court's opinion in
Appeal No. 04-17-00241-CV (Shopoff's appeal from the
trial court's judgment) was issued, First American filed
an interpleader action in the trial court, alleging that it
was holding funds in escrow that were in dispute. First
American alleged that "[a]s an innocent
stakeholder," it was entitled "to interplead those
funds into the registry of the court." Naming Shopoff
and Atrium as defendants, First American asked the trial
court to sign an order (1) accepting the tender of $2.5
million into the registry of the court, (2) discharging First
American from all liability to the defendants with regard to
the Purchase and Sale Agreement, and (3) dismissing First
American from the suit.
March 4, 2018, Atrium filed a counter-claim against First
American and a cross-claim against Shopoff. Atrium alleged
that Shopoff, together with First American, had refused to
comply with the trial court's judgment during the period
of time it had not been superseded (i.e., from April 3, 2017
to November 28, 2017), which caused substantial damage to
Atrium. Atrium further alleged that Shopoff had actually
solicited, encouraged, directed, aided and attempted to aid
First American to breach its fiduciary duties to Atrium.
Atrium also alleged that Shopoff had engaged in a conspiracy
with First American to breach First American's fiduciary
duties. Alternatively, Atrium alleged that Shopoff was
vicariously liable for First American's conduct by aiding
and abetting First American.
response to the lawsuit, on May 4, 2018, Shopoff filed an
"Anti-SLAPP Motion to Dismiss" pursuant to the
TCPA. Shopoff argued Atrium's theory of participatory
liability was based on an email Shopoff's attorney had
sent to First American, informing First American that the
arbitration award would be "challenged in Sta[t]e
District Court" and directing First American to
"not release any funds until you have a final,
nonappealable [judgment] from a court of last resort."
Thus, Shopoff argued the TCPA applied because Atrium's
claims against it related to Shopoff's right to petition.
Further, Shopoff argued that Atrium cannot meet its burden of
showing a prima facie case on the element of damages because
its claims are barred by the economic loss
rule. On July 18, 2018, the trial court denied
Shopoff's motion to dismiss pursuant to the TCPA. Shopoff
then filed this accelerated appeal.
to Dismiss Under the Texas Citizens Participation
TCPA's stated purpose 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." Tex. Civ. Prac. &
Rem. Code Ann. § 27.002. In an aim to fulfill this
purpose, the TCPA provides for dismissal of a "legal
action" that "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"
unless the plaintiff establishes "by clear and specific
evidence a prima facie case for each essential element of the
claim in question." Id. §§ 27.003(a),
27.005(c). "Legal action" is defined as "a
lawsuit, cause of action, petition, complaint, cross-claim,
or counterclaim or any other judicial pleading or filing that
requests legal or equitable relief." Id. §
27.001(6). This "broad definition appears to encompass
any procedural vehicle for the vindication of a legal
claim." State ex rel. Best v. Harper, 562
S.W.3d 1, 8 (Tex. 2018) (citation omitted).
moving for dismissal under the TCPA has 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 party's exercise" of: (1) the right of free
speech; (2) the right to petition; or (3) the right of
association. Tex. Civ. Prac. & Rem. Code Ann.
§§ 27.003(a), 27.005(b); see S & S
Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d
843, 847 (Tex. 2018). If the movant makes this showing, the
burden shifts to the respondent. See S & S, 564
S.W.3d at 847. The respondent's claims against the movant
will be dismissed unless the respondent can "establish
by clear and specific evidence a prima facie case for each
essential element of the claim in question." Tex. Civ.
Prac. & Rem. Code Ann. § 27.005(c); see S &
S, 564 S.W.3d at 847. The supreme court has explained
that "a prima facie case is the 'minimum quantum of
evidence necessary to support a rational inference that the
allegation of fact is true.'" S & S,
564 S.W.3d at 847 (quoting In re Lipsky, 460 S.W.3d
579, 590 (Tex. 2015)). "A finding that [the respondent]
has met his TCPA burden does not establish that his
allegations are true." West v. Quintanilla, 573
S.W.3d 237, 243 n.9 (Tex. 2019).
respondent satisfies his burden, then the burden shifts back
to the movant to establish "by a preponderance of the
evidence each essential element of a valid defense" to
the respondent's claim. Tex. Civ. Prac. & Rem. Code
Ann. § 27.005(d). If the movant satisfies this burden,
then the trial court must dismiss the legal action.
determining whether the parties have met their respective
burdens, the trial court does not hear live testimony; the
TCPA directs courts to "consider the pleadings and
supporting and opposing affidavits stating the facts on which
the liability or defense is based." Id. §
27.006(a). The supreme court has "recently observed that
the pleadings are 'the best and all-sufficient evidence
of the nature of the action.'" West, 573
S.W.3d at 242 n.8 (quoting Hersh v. Tatum, 526
S.W.3d 462, 467 (Tex. 2017)).
appellate court reviews issues regarding interpretation of
the TCPA de novo. S & S, 564 S.W.3d at 847.
parties dispute whether the TCPA applies to the underlying
claims brought by Atrium against Shopoff. Shopoff emphasizes
that pursuant to the TCPA, the legal action need merely to
"relate to . . . a party's exercise of the . . .
right to petition." Tex. Civ. Prac. & Rem. Code Ann.
§ 27.003(a). And, the TCPA defines the "exercise of
the right to petition" to include "a communication
in or pertaining to . . . a judicial
proceeding." Id. § 27.001(4)(A)(i)
(emphasis added). "'Communication' includes 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).
points to the allegations in Atrium's counterclaim and
cross-claim regarding the email sent by Shopoff's counsel
to the escrow officer. Shopoff argues this email is one of
the alleged wrongful acts that form the basis of Atrium's
lawsuit against Shopoff, and because the email was a
communication relating to a judicial proceeding, the TCPA
applies to Atrium's claims. In response, Atrium argues
the email does not relate to the exercise of Shopoff's
right to petition because (1) it was a communication made
"to a stranger to the suit"; (2) it was "not a
part of taking an appeal or superseding the ...