Better Business Bureau of Metropolitan Dallas, Inc. v. BH DFW, Inc.

REVERSE, RENDER, and REMAND; and Opinion Filed May 15, 2013.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00587-CV

BETTER BUSINESS BUREAU OF METROPOLITAN DALLAS, INC., Appellant
V.
BH DFW, INC., Appellee

On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-12-00921

OPINION
Before Justices Moseley, Fillmore, and Myers
Opinion by Justice Fillmore
This accelerated interlocutory appeal arises from a breach of contract action brought by

BH DFW, Inc. against the Better Business Bureau of Metropolitan Dallas, Inc. (the BBB). The

BBB moved to dismiss the action pursuant to the Texas Citizens Participation Act (TCPA) which

provides a means for dismissal of actions involving the exercise of certain constitutional rights.

See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011 (West Supp. 2012). In a written order,

the trial court denied the motion to dismiss.

In one issue, the BBB argues the trial court erred by denying the BBB’s motion to

dismiss. In its brief, BH DFW also challenges this Court’s jurisdiction over this appeal. We

conclude we have jurisdiction over this appeal and that the trial court erred by denying the

BBB’s motion to dismiss. We reverse the trial court’s order, render judgment granting the
BBB’s motion to dismiss pursuant to the TCPA, and remand this case to the trial court for further

proceedings consistent with section 27.009(a) of the civil practice and remedies code.

Background

The BBB, a nonprofit corporation founded in 1920, states that its goal and primary

mission is to promote ethical business practices through voluntary self-regulation by businesses.

The BBB provides several services to the public, including publication of consumer alerts,

publication of business reviews that may contain a rating of the business on a scale from “A+” to

“F,” and complaint processing.

A business may also become “accredited” by the BBB if the business meets and

maintains the standards developed by the Council of Better Business Bureaus (CBBB). An

accredited business pays a fee to the BBB for accreditation review and monitoring and support of

BBB services to the public. According to Christopher Burgess, the vice president and chief

compliance officer of the BBB, the fee paid by a business does not entitle it to be accredited and

a business may not buy accreditation.

The accreditation standards include eight principles, one of which is to “advertise

honestly,” with “adherence to established standards of advertising” as set out in the CBBB’s

Code of Advertising. The Code of Advertising, according to Burgess, is designed to promote

truth, honesty, and accuracy in business selling practices, inform the public on matters of

advertising and selling practices, and enhance customer trust and confidence in business.

Further, the Code of Advertising indicates it is intended to provide guidance for advertisers to

help ensure effective self-regulation in the public interest. According to Burgess, although the

BBB applies the Code of Advertising to both accredited and non-accredited businesses,

compliance with the Code of Advertising is one requisite for acquiring and maintaining

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accreditation. Further, the BBB publishes business reviews to the public on both accredited and

non-accredited businesses.

As relevant to this appeal, the CBBB’s Code of Advertising provides that the advertiser

bears primary responsibility to ensure its advertisements are truthful and non-deceptive. The

Code of Advertising specifically addresses the subject of “Superlative Claims – Puffery,”

distinguishing objective, or factual, claims from subjective, or puffery, claims. It defines

objective claims as those relating to “tangible qualities and performance values of a product or

service which can be measured against accepted standards or tests.” Because objective claims

are statements of fact, “such claims can be proved or disproved and the advertiser should possess

substantiation.” Subjective claims, on the other hand, are “expressions of opinion or personal

evaluation of the intangible qualities of a product or service.” If such statements express

individual opinions, statements of corporate pride, and promises, the statements may “sometimes

be considered puffery and not subject to test of their truth and accuracy.” However, according to

the Code of Advertising, “[s]ubjective superlatives which tend to mislead should be avoided.”

According to Burgess, compliance with the CBBB’s Code of Advertising and other BBB

accreditation standards is voluntary. However, the BBB conducts advertising reviews by

monitoring local advertising for compliance with the Code of Advertising. When the BBB

challenges an advertisement, it asks the advertiser to substantiate, modify, or discontinue the

challenged advertising claims. If the advertiser does not comply with one of these requests, the

BBB includes that information in its published review of that business. When an accredited

business fails to substantiate, modify, or discontinue a challenged advertising claim, its

accreditation can be suspended and revoked.

BH DFW builds residential swimming pools in the Dallas/Fort Worth area and is part of

the Blue Haven Pool & Spa franchise group (Blue Haven). Between 1981 and December 13,
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2010, BH DFW was designated an accredited business by the BBB. As an accredited business,

BH DFW paid an annual fee of $1,000 to the BBB. It is undisputed that, for a number of years,

BH DFW received an “A+” business rating from the BBB.

In the summer of 2010, BH DFW advertised its business in the Dallas Morning News.

On July 19, 2010, Phylissa Landix, a business standards analyst for the BBB, sent a letter to BH

DFW challenging several of the statements made in the advertisement. Landix requested BH

DFW substantiate the challenged statements. If BH DFW could not do so, Landix requested that

the claims be modified or discontinued. At issue in this appeal is the BBB’s challenge to the

statement that BH DFW is the “World’s Largest!”

BH DFW responded by providing data from an industry trade journal, Pool & Spa News,

indicating that Blue Haven had been the largest builder of residential swimming pools in the

United States for a number of years and was one of only two companies that operated

nationwide. BH DFW also asserted the scale of swimming pool construction in the United States

is much larger than in any other country. BH DFW pointed out various factors, including

climate, disposable income, access to financing, and availability of detached family homes on

adequate-size plots of land, that limited a “swimming pool culture” from flourishing in other

countries. BH DFW argued that a “world-wide comparison is not needed to show that there are

no international builders of the scale of Blue Haven.”

Landix disagreed that such a comparison was unnecessary. According to Landix, the

term “World’s Largest!” is an objective claim that can be measured against accepted standards or

tests. She requested that BH DFW “provide a list of five countries known to have a significant

pool-building presence and identify what you believe to be the largest pool company within each

of the five countries, citing the source. Then identify how Blue Haven is larger.”

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 BH DFW responded that Blue Haven had used “World’s Largest!” as a logo for many

years. It asserted the confirmation the BBB was demanding to support the logo “does not exist

(trying to prove a negative).” It pointed out that no one had disputed Blue Haven’s claim that it

was the “World’s Largest!” and there was no evidence to the contrary. It asserted it had “no way

of confirming the pool building activities and business structure of all the nations of the world.”

On December 13, 2010, the BBB revoked BH DFW’s “Accredited Business” status and

modified its business review of BH DFW, changing its rating from an “A+” to an “F.” The

reason given by the BBB on its website for the “F” rating was:

Factors that lowered Blue Haven Pools’ rating include: Advertising issues(s)
found by BBB. BBB Accreditation was revoked because the business failed to
honor its accreditation agreement with BBB.

(emphasis in original).

On January 25, 2010, BH DFW sued the BBB for breach of contract and sought a

temporary injunction requiring the BBB to restore BH DFW’s pre-dispute rating of “A+” and

status as a BBB accredited business or, in the alternative, requiring the BBB to remove the “F”

rating from its website and prevent the BBB from making any public mention of the “F” rating

or the advertising dispute that led to the “F” rating. The BBB filed a motion to dismiss under the

TCPA. The BBB argued it was entitled to dismissal because (1) BH DFW’s claim is based on,

related to, or in response to the BBB’s exercise of its right of free speech, and (2) BH DFW

could not establish by clear and specific evidence a prima facie case for each and every element

of its claim. BH DFW responded that the BBB’s business review constituted commercial speech

and, therefore, was exempt from the TCPA and that it had established a prima facie case for each

element of its breach of contract claim and its request for a temporary injunction. Both parties

attached affidavits and other evidence to their pleadings.

At the hearing on the BBB’s motion, the trial court orally denied the motion, stating:
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 I think [chapter] 27 fairly clearly is related to the participation in government and
I don’t find that that is impacted by the suit by BH DFW, Inc., against the Better
Business Bureau, and that is my ruling.

The trial court’s written order denying the motion to dismiss, however, does not provide a basis

for the ruling.

Motion to Dismiss

In its sole issue on appeal, the BBB argues the trial court erred by denying the BBB’s

motion to dismiss under the TCPA because the BBB was exercising its right to free speech by

communicating the BH DFW business review to the public. BH DFW responds that this Court

has no jurisdiction over this interlocutory appeal. As to the merits of BBB’s complaint, BH

DFW argues the TCPA does not apply to the BBB’s business review because (1) the

communication was not in connection with government participation, and (2) as commercial

speech, the review is exempt from the TCPA. BH DFW argues, in the alternative, that if the

TCPA applies to the BBB’s business review, BH DFW established by clear and specific

evidence a prima facie case for each essential element of its claim.

Standard of Review

The issue in this case is whether the TCPA applies to business ratings made by the BBB.

We review questions of statutory construction de novo. Molinet v. Kimbrell, 356 S.W.3d 407,

411 (Tex. 2011). When construing a statute, our primary objective is to ascertain and give effect

to the Legislature’s intent. TEX. GOV’T CODE ANN. § 312.005 (West 2005); Molinet, 356 S.W.3d

at 411. “We look first to the statute’s language to determine that intent, as we consider it ‘a fair

assumption that the Legislature tries to say what it means, and therefore the words it chooses

should be the surest guide to legislative intent.’” Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.

2008) (quoting Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.

1999)); see also Molinet, 356 S.W.3d at 411. We consider the statute as a whole rather than
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focusing upon individual provisions. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,

439 (Tex. 2011). If a statute is unambiguous, we adopt the interpretation supported by its plain

language unless such an interpretation would lead to absurd results. Id. (citing Tex. Dep’t of

Protective & Regulatory Servs. v. Mega Child Care, 145 S.W.3d 170, 177 (Tex. 2004)).

Applicable Law

The purpose of the TCPA 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.

The TCPA is to be “construed liberally to effectuate its purpose and intent fully.” Id.

§ 27.011(b).

The TCPA provides a means for a defendant, early in the course of a lawsuit, to seek

dismissal of certain claims identified in the Act, including a legal action based on, relating to, or

in response to a party’s exercise of the right to free speech. Id. § 27.003(a). “Exercise of the

right of free speech” is defined as “a communication made in connection with a matter of public

concern.” Id. § 27.001(3). “Matter of public concern” includes an issue related to (1) health or

safety; (2) environmental, economic, or community well-being; (3) the government; (4) a public

official or public figure; or (5) a good, product, or service in the marketplace. Id. § 27.001(7).

Certain activities, however, are exempt from the statute. Id. § 27.010. As relevant to this case,

the TCPA:

[D]oes not apply to a legal action brought against a person primarily engaged in
the business of selling or leasing goods or services, if the statement or conduct
arises out of the sale or lease of goods, services, or an insurance product or a
commercial transaction in which the intended audience is an actual or potential
buyer or customer.

Id. § 27.010(b).
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 A motion to dismiss under the TCPA must be filed not later than the sixtieth day after the

date of service of the legal action unless the court extends the time for filing on a showing of

good cause. Id. § 27.003(b). On the filing of a motion to dismiss pursuant to section 27.003(a),

except as provided by section 27.006(b), all discovery in the legal action is suspended until the

trial court has ruled on the motion to dismiss. Id. §§ 27.003(c), 27.006(b). 1

A hearing on a motion to dismiss under section 27.003 must be set not later than the

thirtieth day after the date of service of the motion unless the docket conditions of the trial court

require a later hearing. Id. § 27.004. The trial court must rule on the motion not later than the

thirtieth day following the date of the hearing. Id. § 27.005(a). The trial court must dismiss the

action if the moving party shows, 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 the right of free speech, the right

to petition, or the right of association, and the party bringing the legal action fails to establish by

clear and specific evidence a prima facie case for each essential element of the claim in question.

Id. § 27.005(b)–(c). In determining whether a legal action should be dismissed under the TCPA,

“the court shall consider the pleadings and supporting and opposing affidavits stating the facts on

which the liability or defense is based.” Id. § 27.006(a). As discussed more fully below, section

27.008 addresses the right to appeal a trial court’s ruling on a motion to dismiss under the TCPA.

See generally, id. § 27.008.

Finally, where a court orders dismissal of a legal action under the TCPA, the court shall

award to the moving party (1) court costs, reasonable attorney’s fees, and other expenses

incurred in defending against the legal action as justice and equity may require, and (2) sanctions

1
Section 27.006(b) provides that “[o]n a showing of good cause, the court may allow specified and limited discovery relevant to the
motion.” Id. § 27.006(b).

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against the party who brought the legal action as the court determines sufficient to deter the party

who brought the legal action from bringing similar actions. Id. § 27.009(a).

Jurisdiction

We begin by addressing BH DFW’s contention that we do not have jurisdiction over this

interlocutory appeal. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.

2004) (“[A] court must not proceed on the merits of a case until legitimate challenges to its

jurisdiction have been decided.”); Jain v. Cambridge Petroleum Grp., Inc., No. 05-12-00677-

CV, 2013 WL 1277888, at *1 (Tex. App.—Dallas Mar. 1, 2013, no pet.). Generally, courts of

appeals have jurisdiction only over appeals from final judgments. Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 195 (Tex. 2001); Jain, 2013 WL 1277888, at *1. Further, the appellate courts

have jurisdiction over interlocutory orders only when that authority is explicitly granted by

statute. Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Statutes

authorizing interlocutory appeals are strictly construed because they are a narrow exception to

the general rule that interlocutory orders are not immediately appealable. CMH Homes v. Perez,

340 S.W.3d 444, 447 (Tex. 2011).

Section 27.008 of the TCPA, entitled “Appeal,” provides:

(a) If a court does not rule on a motion to dismiss under Section 27.003 in the
time prescribed by Section 27.005, the motion is considered to have been
denied by operation of law and the moving party may appeal.

(b) An appellate court shall expedite an appeal or other writ, whether
interlocutory or not, from a trial court order on a motion to dismiss a legal
action under Section 27.003 or from a trial court’s failure to rule on that
motion in the time prescribed by Section 27.005.

(c) An appeal or other writ under this section must be filed on or before the 60th
day after the date the trial court’s order is signed or the time prescribed by
Section 27.005 expires, as applicable.

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TEX. CIV. PRAC. & REM. CODE ANN. § 27.008. Relying on Jennings v. Wallbuilder

Presentations, Inc., 378 S.W.3d 519 (Tex. App.—Fort Worth 2012, pet. filed), BH DFW argues

the statute does not provide for an interlocutory appeal from a trial court’s written ruling on a

motion to dismiss. We disagree.

In Jennings, the trial court held a hearing and expressly denied a motion to dismiss under

the TCPA in a written interlocutory order. Id. at 522. “Relying on the plain language of section

27.008(a) as expressing legislative intent,” the Fort Worth Court of Appeals concluded section

27.008(a) authorizes an interlocutory appeal only when the trial court fails to rule on the motion

to dismiss, resulting in the motion being denied by operation of law. Id. at 524. Because the

trial court in Jennings timely held a hearing and timely ruled on the motion to dismiss, the

appellate court concluded section 27.008(a) did not provide for an interlocutory appeal. Id.

The Fort Worth Court of Appeals then considered whether section 27.008(b) provided for

an interlocutory appeal from a written order by the trial court ruling on a motion to dismiss under

the TCPA. It determined that section 27.008(b) mandates that an appellate court expedite an

appeal or writ, whether interlocutory or not, but “does not contain language expressly creating a

right of interlocutory appeal from a trial court’s timely ruling denying a motion to dismiss.” Id.

at 524–25. Based on its determination that neither section 27.008(a) nor section 27.008(b)

authorizes an interlocutory appeal from a timely ruling by the trial court denying the motion to

dismiss, the Fort Worth Court of Appeals dismissed the appeal.

The Fourteenth District Court of Appeals, in a published order, declined to follow

Jennings. See Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, No. 14-12-00896-

CV, 2013 WL 407029 (Tex. App.—Houston [14th] Jan. 24, 2013, order). The Beacon Hill

Estates court noted that section 27.008(b) requires an appellate court to “expedite an appeal or

other writ, whether interlocutory or not, from a trial court order on a motion to dismiss . . . or
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from a trial court’s failure to rule.” Id. at *3. The court concluded that, “[i]f no interlocutory

appeal is available when the trial court expressly rules on a motion to dismiss by signing an

order, then the phrase ‘from a trial court order on a motion to dismiss’ appearing after the phrase

‘whether interlocutory or not’ is rendered meaningless.” Id. at *3. The court further concluded

the most natural reading of the phrase “whether interlocutory or not” is to read it as modifying

both of the subsequent references to “a trial court order” and “a trial court’s failure to rule.” Id.

Finally, the court noted that section 27.008(c) states an appeal “must be filed on or before the

60th day after the date the trial court’s order is signed or the time prescribed by section 27.005

expires, as applicable.” 2 Id. at *4. “If no signed order can be the subject of an interlocutory

appeal, then the reference to the date on which ‘the trial court’s order is signed’ also is

superfluous.” Id. 3

We find the reasoning of the Fourteenth Court of Appeals in Beacon Hill Estates to be

persuasive. Accordingly, we conclude this Court has jurisdiction under chapter 27 of the civil

practice and remedies code over this interlocutory appeal of the trial court’s order denying the

BBB’s motion to dismiss.

Applicability of TCPA to the BBB’s Business Review

As relevant to this appeal, to be entitled to a dismissal under the TCPA, the BBB was

required to establish by a preponderance of the evidence that BH DFW’s breach of contract

claim is based on, relates to, or is in response to the BBB’s exercise of the right of free speech.

2
Section 27.005(a) provides that a court must rule on a motion to dismiss under section 27.003 “not later than the 30th day following the
date of the hearing on the motion.” See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(a).

3
In San Jacinto Title Services of Corpus Christi, LLC v. Kingsely Properties, LP, No. 13-12-00352-CV, 2013 WL 1786632, at *4–5 (Tex.
App.—Corpus Christi, Apr. 25, 2013, no pet. h.), the Corpus Christi Court of Appeals adopted the analysis in Beacon Hill Estates and concluded
it had jurisdiction over an interlocutory appeal from the trial court’s order denying a motion to dismiss under the TCPA.

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Specifically, the BBB was required to establish by a preponderance of the evidence that its

business review, including the “F” rating, was a communication made in connection with a good,

product, or service in the marketplace. TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(3),

27.001(7)(E).

The BBB offered evidence that its business reviews, including ratings, are made to assist

the public in selecting reliable companies with which to transact business. BBB’s business

review of BH DFW indicated that BH DFW received an “F” rating based on “advertising

issues(s)” found by the BBB. It specifically set out the challenges BBB had made to BH DFW’s

advertisement, the fact that three of the four challenges were resolved, and that BH DFW had

failed to substantiate or modify the “World’s Largest” claim to adhere to the BBB’s advertising

standards. The communication related to a good, product, or service in the marketplace and,

therefore, under the statutory definition, related to a matter of public concern. Accordingly, the

BBB established by a preponderance of the evidence that it was exercising its right to free speech

by communicating to the public its business review of BH DFW that included the “F” rating.

BH DFW first argues the TCPA does not apply to the BBB’s business review because the

statute was not intended to protect activities that are not related to participation in government.

BH DFW asserts the purpose of the TCPA is “to encourage and safeguard the constitutional

rights of persons to petition, speak freely, associate freely, and otherwise participate in

government . . . .” Id. § 27.002. BH DFW contends the use of the conjunctive “and” limits the

applicability of the statute to only those covered activities that are exercised by a citizen while

participating in government.

We are, however, required to read the statute as a whole and cannot focus on isolated

provisions. See TGS-NOPEC Geophysical Co., 340 S.W.3d at 439. While the statutory purpose

stated in section 27.002 indicates one of the Legislature’s purposes in enacting the TCPA was to
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protect certain activities related to participation in government, it defined the protected activity

of “exercising the right of free speech” to encompass much broader activity. Under the statute,

the “exercise of the right of free speech” is defined as a communication made in connection with

a matter of public concern. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3). A “matter of

public concern” is statutorily defined to encompass five different subjects including, without any

limitation to participation in government, an issue related to a good, product, or service in the

marketplace. Id. § 27.001(7)(E). The Legislature could have limited the protection provided by

the TCPA to the exercise of free speech relating to participation in government, but did not do

so. Because the statutory definition of issues representing a “matter of public concern” is not

ambiguous, we must enforce it as written. TGS-NOPEC Geophysical Co., 340 S.W.3d at 439.

Accordingly, we conclude the BBB’s business review of the BH DFW that contained the “F”

rating was a communication relating to an issue of public concern and was an exercise of the

BBB’s right to free speech as defined by the TCPA. See Avila v. Larrea, 394 S.W.3d 646, 657

(Tex. App.—Dallas 2012, pet. filed) (applying TCPA to defamation claim brought by attorney

against television station and reporter); Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living,

Ltd., No. 01-12-00581-CV, 2013 WL 1867104, at *7 (Tex. App.—Houston [1st Dist.] May 2,

2013, no pet. h.) (applying TCPA to claims for defamation, business disparagement, and tortious

interference with contract against newspaper and source for information contained in newspaper

articles).

BH DFW next asserts the BBB failed to establish that the business review, including the

“F” rating, was not exempt from the TCPA as commercial speech under section 27.010(b).

Generally, “[t]he burden of proving a statutory exception rests on the party seeking the benefit

from the exception.” City of Houston v. Jones, 679 S.W.2d 557, 559 (Tex. App.—Houston [14th

Dist.] 1984, no writ) (citing Franklin v. Pietzsch, 334 S.W.2d 214, 219–20 (Tex. Civ. App.—
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Dallas 1960, writ ref’d n.r.e.)); see also Peachtree Constr., Ltd. v. Head, No. 07-08-00020-CV,

2009 WL 606720, at *3 (Tex. App.—Amarillo Mar. 10, 2009, no pet.) (mem. op.). Therefore,

after the BBB established that the business review, including the “F” rating, fell within the

exercise of free speech as defined by the TCPA, BH DFW had the burden to establish the

communication was exempt from the statute. See Newspaper Holdings, Inc., 2013 WL 1867104,

at *12 (concluding plaintiff had burden to show commercial speech exception under TCPA

applied to suit against defendant).

As relevant to this appeal, the TCPA does not apply to a legal action brought against a

person primarily engaged in the business of selling or leasing goods or services, if the statement

or conduct arises out of the sale or lease of goods or services or a commercial transaction in

which the intended audience is an actual or potential buyer or customer. TEX. CIV. PRAC. &

REM. CODE ANN. § 27.010(b). BH DFW argues the exemption applies because (1) the BBB was

primarily engaged in the business of selling accreditation services; (2) the legal action arose

because of a commercial transaction, the fee paid by BH DFW to the BBB; and (3) the intended

audience was an actual or potential customer of both BH DFW and the BBB. However, BH

DFW offered no evidence the BBB’s business review, including the “F” rating, arose out of the

designation of BH DFW as an accredited business, and the BBB offered evidence that it

publishes business reviews of both accredited and non-accredited businesses. Further, the BBB

offered evidence that the intended audience of the business review was the general public, not an

entity seeking business accreditation from the BBB. We conclude BH DFW failed to establish

the exemption in section 27.010(b) of the civil practice and remedies code applied to the BBB’s

business review of BH DFW.

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 No Evidence of a Contract

Because the BBB established that the business review fell within the scope of the TCPA,

BH DFW had the burden of establishing 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 TCPA

provides no guidance as to the quantum of proof necessary to constitute clear and specific

evidence of a prima facie case for each essential element of a claim. BH DFW asserts it was

required only to meet “an extremely light evidentiary burden, i.e., the level of evidence which is

sufficient to show the existence of a valid cause of action if all testimony to the contrary is

disregarded.” BH DFW’s proffered standard appears to conflict with the statute’s requirement

that the trial court “shall consider the pleadings and supporting and opposing affidavits stating

the facts on which the liability or defense is based.” Id. § 27.006(a). However, we need not

consider in this case the quantum of proof necessary to constitute clear and specific evidence of a

prima facie case for each essential element of a claim because BH DFW failed to offer any

evidence of the existence of its alleged contract with the BBB.

The elements of a breach of contract cause of action are: (a) a valid contract; (b) the

plaintiff performed or tendered performance; (c) the defendant breached the contract; and (d) the

plaintiff was damaged as a result of that breach. Thornton v. AT&T Adver., L.P., 390 S.W.3d

702, 707 (Tex. App.—Dallas 2012, no pet.). To be enforceable, a contract must define its

essential terms with sufficient detail to allow a court to determine the obligations of the parties.

T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992); Sadeghi v. Gang,

270 S.W.3d 773, 776 (Tex. App.—Dallas 2008, no pet.). “To create an enforceable contract, the

minds of the parties must meet with respect to the subject matter of the agreement and all its

essential terms.” In re C.H.C., No. 05-10-01375-CV, 2013 WL 600204, at *9 (Tex. App.—

Dallas, Jan. 3, 2013, no pet. h.) (quoting Principal Life Ins. Co. v. Revalen Dev., LLC, 358
–15–
S.W.3d 451, 455 (Tex. App.—Dallas 2012, pet. denied)). “The parties must agree to the same

thing, in the same sense, at the same time.” Principal Life Ins. Co., 358 S.W.3d at 455.

On appeal, BH DFW’s entire argument about whether it provided clear and specific

evidence of the existence of a contract between itself and the BBB is:

As pointed out in its Response to the Motion to Dismiss, [BH DFW] submitted
competent evidence by affidavit which provided clear and specific factual
statements, establishing its prima facie case that the [BBB] breached its
agreement with [BH DFW].

Although we question whether BH DFW has adequately briefed its contention that a contract

existed between it and the BBB, we have reviewed its response and its sur-reply to the BBB’s

motion to dismiss that were filed in the trial court. In its response, BH DFW submitted the

affidavit of Mark Dana, BH DFW’s general manager, in which he stated that BH DFW had been

an accredited business since 1981, “a privilege for which it paid [the BBB] $1,000 annually.”

Dana described this as the “Accreditation Contract.” In its response, BH DFW argued it had

established a prima facie case that a contract existed between the parties because:

[BH DFW] has submitted evidence that, at the time the present dispute arose in
2010, [BH DFW] had paid the [BBB] $1,000 to be listed as a “BBB Accredited
Business,” a status it had paid to maintain since 1981. See Paragraphs 8-9 of the
Affidavit of Christopher Burgess, attached to the Dallas BBB’s Motion, which
admits that Plaintiff was an accredited BBB business. Finally, see Exhibit B-7, an
excerpt from the Dallas BBB website entitled “About BBB Accreditation,” which
likewise states that “BBB accredited businesses pay a fee for accreditation
review/monitoring and for support of BBB services to the public[.]” Accordingly,
a valid Accreditation Contract existed between the parties, under which [BH
DFW] paid money in return for being given the status of a “BBB Accredited
Business.”

BH DFW reiterated in its sur-reply in the trial court that “it paid [the BBB] $1,000 to become an

Accredited Business, and [the BBB] admits on its website that becoming an Accredited Business

requires such a payment.” It also, however, raised an additional argument that the BBB’s

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“website likewise makes clear that to become or remain an Accredited Business, such Business

must comply with certain standards formulated and enforced solely by [the BBB].”

BH DFW’s main argument in the trial court appears to have been that an “Accreditation

Contract” existed under which BH DFW paid $1,000 annually for the “privilege” of being

designated an accredited business by the BBB. However, BH DFW did not produce a contract

with the BBB. Further, Dana did not state he was employed by BH DFW in 1981 when the

alleged contract was entered into and provided no basis for his knowledge of the alleged

contract. The portion of the BBB’s website relied upon by BH DFW states that “accredited

businesses pay a fee for accreditation review/monitoring and for support of BBB services to the

public.” This statement does not support BH DFW’s contention that, in exchange for payment of

the annual fee, the BBB was required to designate BH DFW as an accredited business.

Finally, the excerpt from the BBB’s website relied upon by BH DFW also indicates that,

to be accredited, a business must meet the standards in the Code of Business Practices and

complete certain application procedures. BH DFW attached to its response to the motion to

dismiss a copy of the BBB’s “Code of Business Practices (BBB Accreditation Standards).”

These standards provide that, in order to achieve and maintain accredited status, a business must

meet and abide by the following principles: (1) build trust, (2) advertise honestly, (3) tell the

truth, (4) be transparent, (5) honor promises, (6) be responsive, (7) safeguard privacy, and

(8) embody integrity. The principles incorporate a number of specific requirements, including

that the business has been operational in the area for at least the most recent twelve months, has

fulfilled all licensing and bonding requirements of the applicable jurisdictions, and is free from

government action that demonstrates a significant failure to support the BBB’s ethical principles

in marketplace transactions. These requirements affirmatively demonstrate the BBB does not

confer “accredited business” status based solely on the payment of an annual fee.
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 BH DFW produced no evidence that, in 1981 when it became an accredited business,

there was a meeting of the minds between it and the BBB that, in exchange for payment of an

annual fee of $1,000, the BBB would designate BH DFW an accredited business. 4 Accordingly,

we conclude BH DFW failed to establish by clear and specific evidence a prima facie case for

each element of its claim.

BH DFW also argues that it produced clear and specific evidence of a prima facie case on

its request for a temporary injunction. The TCPA applies to a legal action based on, relating to,

or in response to a party’s exercise of the right of free speech, right to petition, or right of

association. TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a). A “legal action” is 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). The definition of “legal action”

in the statute is broad enough to encompass a request for injunctive relief. However, a temporary

injunction is a remedy that is available only if a probable right to relief has been established in

connection with a cause of action. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.

2002) (to obtain temporary injunction, applicant must plead and prove (1) a cause of action

against defendant, (2) probable right to relief sought, and (3) probable, imminent, and irreparable

injury in interim); Alliance Royalties, LLC v. Boothe, 313 S.W.3d 493, 496 (Tex. App.—Dallas

2010, no pet.). In this case, to be entitled to a temporary injunction, BH DFW was required to

establish a probable right to relief on its breach of contract claim against the BBB. Accordingly,

4
Although not relied upon by BH DFW in the trial court to support a prima facie case that a contract existed between the parties, we note
the BBB’s business review of BH DFW states that “BBB Accreditation was revoked because the business failed to honor its accreditation
agreement with BBB.” This statement by the BBB could be some evidence of an agreement between the BBB and BH DFW regarding BH
DFW’s obligations to maintain its accredited status. However, it does not establish the terms of the agreement and is not evidence that the BBB
agreed to designate BH DFW as an accredited business in exchange for an annual fee. Further, the business review read as a whole clearly
indicates BH DFW failed to comply with the BBB’s Code of Advertising. This was not an essential element of the “Accreditation Contract”
described by Dana.

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BH DFW’s right to maintain its request for a temporary injunction was dependent on its

establishing through clear and specific evidence a prima facie case for each element of its breach

of contract claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c). Because BH DFW

failed to do so, it also failed to establish a prima facie case that it was entitled to injunctive relief.

Because the TCPA applied to BH DFW’s breach of contract claim against the BBB and

because BH DFW failed to establish by clear and specific evidence a prima facie case that the

alleged contract existed between BH DFW and the BBB, the trial court erred by denying the

BBB’s motion to dismiss under the TCPA.

Conclusion

We conclude we have jurisdiction over this interlocutory appeal. Additionally, we

resolve the BBB’s sole issue in its favor. We reverse the trial court’s order, render judgment

dismissing this case pursuant to the TCPA, and remand this case to the trial court for further

proceedings consistent with section 27.009(a) of the civil practice and remedies code. See id.

§ 27.009(a).

/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE

120587F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

BETTER BUSINESS BUREAU OF On Appeal from the 14th Judicial District
METROPOLITAN DALLAS, INC., Court, Dallas County, Texas
Appellant Trial Court Cause No. DC-12-00921.
Opinion delivered by Justice Fillmore,
No. 05-12-00587-CV V. Justices Moseley and Myers participating.

BH DFW, INC., Appellee

In accordance with this Court’s opinion of this date, we REVERSE the trial court’s order
denying the Better Business Bureau of Metropolitan Dallas, Inc.’s motion to dismiss, RENDER
judgment dismissing this case pursuant to the Texas Citizens Participation Act, and REMAND
this case to the trial court for further proceedings consistent with section 27.009(a) of that act.
See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a) (West Supp. 2012).

It is ORDERED that appellant Better Business Bureau of Metropolitan Dallas, Inc.
recover its costs of this appeal from appellee BH DFW, Inc.

Judgment entered this 15th day of May, 2013.

/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE

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