Court of Appeals of Texas, Seventh District, Amarillo
IN RE: PETITION OF KRAUSE LANDSCAPE CONTRACTORS, INC.
Appeal from the 251st District Court Potter County, Texas
Trial Court No. 108, 515-CV, Honorable Ana Estevez, Presiding
QUINN, C.J., and PIRTLE and PARKER, JJ.
C. Parker Justice
appellee, Krause Landscape Contractors, Inc., filed a
"petition requesting depositions to investigate
potential claim or suit," see Tex. R. Civ. P.
202, appellants, Pasqual Perez and Shannon Hughes, moved to
dismiss the petition under the Texas Citizens Participation
Act (TCPA). See Tex. Civ. Prac. & Rem. Code Ann.
§§ 27.001-011 (West 2015). The trial court denied
the motion to dismiss and authorized Krause's pre-suit
depositions. Perez and Hughes filed this interlocutory
appeal. See id. § 51.014(a)(12) (West Supp.
2018) (authorizing interlocutory appeal of denial of TCPA
motion to dismiss). Concluding that pre-suit depositions
under Rule 202 are legal actions within the scope of the TCPA
and that Krause failed to establish its prima facie case by
clear and convincing evidence, we reverse the judgment of the
trial court and remand for further proceedings.
and Procedural Background
and Hughes are both former employees of Krause. In early
2019, Perez, a maintenance foreman, and Hughes, Director of
Human Resources, called in sick to work. On that same day,
Krause was informed by an existing customer that Perez had
approached him about acquiring his landscaping services from
Perez's newly formed landscaping company. After learning
of this information, Krause contacted other customers, many
of whom indicated that they had been approached by Perez
about moving their business from Krause to Perez's new
company. Krause attempted to contact Perez but was
discovering that Perez had started his own landscaping
company, Krause sent employees to recover the work vehicle
assigned to Perez. When Krause's employees arrived at
Perez's residence and acquired the truck, they found that
it was emptied of tools and personal property belonging to
Krause. Upon this discovery, Krause employed an attorney to
send a letter to Perez demanding the return of Krause's
property. After receiving the letter, Perez returned a
portion of the property. However, Krause contends that its
records reflect that Perez maintains possession of certain
equipment and items purchased by Perez using his Krause
company credit card.
went multiple consecutive days without attending her job with
Krause at the same time that Perez left his. She did not
return any of Krause's numerous attempts to contact her.
As a result, Krause determined that Hughes had abandoned her
job. After discovering that certain information was missing
from Hughes's computer, Krause had her computer analyzed
to determine whether Hughes had deleted any information from
her company computer before abandoning her position. The
analysis revealed that Hughes had deleted numerous files and
other data from her work computer in the days leading up to
the abandonment of her job.
April 4, 2019, Krause filed its petition requesting
depositions of Perez and Hughes to investigate potential
claims or suit. Appellants responded by filing a motion to
dismiss under the TCPA. After holding a hearing, the trial
court denied appellants' motion to dismiss and granted
Krause's petition to depose Perez and Hughes. It is from
this order that appellants timely filed their interlocutory
and Hughes present three issues by their appeal. In their
first issue, appellants contend that the trial court
committed reversible error by concluding that Krause's
Rule 202 petition is not a "petition" under the
TCPA. By their second issue, appellants contend that the
trial court committed reversible error by failing to apply
the TCPA's procedures to Krause's Rule 202 petition.
By their third issue, appellants contend that, even if the
TCPA does not apply, the trial court erred in granting
Krause's petition under the standards of Rule 202.
the TCPA Apply to Krause's Rule 202 Petition?
their first issue, appellants argue that the trial court
committed reversible error when it concluded that
Krause's Rule 202 petition is not a "petition"
under the TCPA. This is an issue of first impression in this
TCPA is "sometimes referred to as an anti-SLAPP law-the
acronym standing for strategic lawsuit against public
participation." Hughes v. Giammanco, 579 S.W.3d
672, 676-77 (Tex. App.-Houston [1st Dist.] 2019),
reh'g granted and appeal dism'd as moot by,
No. 01-18-00771-CV, 2019 Tex.App. LEXIS 6395 (Tex.
App.-Houston [1st Dist.] July 25, 2019) (quoting KBMT
Operating Co. v. Toledo, 492 S.W.3d 710, 713 n.6 (Tex.
2016)). The TCPA was designed "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; see In re Lipsky, 460
S.W.3d 579, 586-87 (Tex. 2015). To effectuate this purpose,
the Act establishes a procedure that enables a party to seek
an expeditious dismissal of frivolous claims and recover
attorney's fees and sanctions. Tex. Civ. Prac. & Rem.
Code Ann. § 27.003; Dow Jones & Co. v. Highland
Capital Mgmt., L.P., 564 S.W.3d 852, 855 (Tex.
App.-Dallas 2018, pet. denied).
process established by the TCPA involves a shifting burden.
The first step requires the party moving for dismissal 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 the right of free speech, right to petition, or
right of association,' as those rights are statutorily
defined." Hughes, 579 S.W.3d at 677 (citing
Tex. Civ. Prac. & Rem. Code Ann. §§
27.001(2)-(4), .003(a), .005(b)). If the movant meets this
initial burden, 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." Tex. Civ. Prac. & Rem. Code Ann. §
27.005(c); DeAngelis v. Protective Parents Coal.,
556 S.W.3d 836, 848 (Tex. App.-Fort Worth 2018, no pet.).
When assessing a motion to dismiss under the TCPA, the court
must consider pleadings, evidence, and supporting and
opposing affidavits that state the facts upon which the
liability or defense is based. Tex. Civ. Prac. & Rem.
Code Ann. § 27.006(a). If the court dismisses the legal
action, it is required to award court costs and reasonable
attorney's fees to the movant and may award sanctions
against the party who filed the legal action. Id.
§ 27.009(a); DeAngelis, 564 S.W.3d at 848.
present case, the threshold inquiry is whether a Rule 202
petition is a "legal action" subject to the TCPA.
See Tex. Civ. Prac. & Rem. Code Ann. §
27.005(b). In making this determination, we must construe the
statute. We review issues of statutory construction de novo.
Hughes, 579 S.W.3d at 677; In re Elliott,
504 S.W.3d 455, 463 (Tex. App.-Austin 2016, orig.
proceeding). As a reviewing court, we must enforce the
statute "as written" and "refrain from
rewriting text that lawmakers chose." Dow Jones
& Co., 564 S.W.3d at 854 (quoting Entergy Gulf
States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex.
2009)). The plain meaning of the text used in a statute is
the best expression of legislative intent, unless a different
meaning is provided by legislative definition or is apparent
from the context, or the plain meaning would lead to an
absurd result. Hughes, 579 S.W.3d at 677; In re