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In re Petition of Krause Landscape Contractors, Inc.

Court of Appeals of Texas, Seventh District, Amarillo

January 2, 2020

IN RE: PETITION OF KRAUSE LANDSCAPE CONTRACTORS, INC.

          On Appeal from the 251st District Court Potter County, Texas Trial Court No. 108, 515-CV, Honorable Ana Estevez, Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.

          OPINION

          Judy C. Parker Justice

         After 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.

         Factual and Procedural Background

         Perez 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 unsuccessful.

         Upon 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.

         Hughes 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.

         On 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 appeal.

         Perez 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.

         Law and Analysis

         Does the TCPA Apply to Krause's Rule 202 Petition?

         By 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 Court.

         The 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).

         The 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.

         In the 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 ...


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