IN THE
TENTH COURT OF APPEALS
No. 10-18-00100-CV
JOSHUA AREY AND ROGINA KIMMONS,
Appellants
v.
THE SHIPMAN AGENCY, INC.,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 17-002869-CV-85
MEMORANDUM OPINION
Joshua Arey and Rogina Kimmons were sued by their former employer, The
Shipman Agency, Inc., (Shipman), after Kimmons filed a claim for unemployment. Arey
and Kimmons filed a motion to dismiss the lawsuit under the Texas Citizens Participation
Act (TCPA). TEX. CIV. PRAC. & REM. CODE ANN. § 27.001, et sec. (West 2014). After a
hearing, the motion was denied. Because the trial court erred in denying the motion, the
trial court’s order is reversed and this appeal is remanded for further proceedings
consistent with this opinion.
THE TCPA
The TCPA protects citizens who associate, petition, or speak on matters of public
concern from legal actions that seek to intimidate or silence them. See State ex rel. Best v.
Harper, 562 S.W.3d 1, 13 (Tex. 2018); Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018); In
re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015). That protection comes in the form of a special
motion to dismiss, subject to expedited review, for any suit that appears to stifle a
defendant's exercise of those rights. Youngkin, 546 S.W.3d at 679; Lipsky, 460 S.W.3d at
584. The TCPA casts a wide net and is to be construed liberally to fully effectuate its
purpose and intent. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex.
2018); ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017). In determining
whether a plaintiff's legal action should be dismissed, the TCPA requires the trial court
to consider the pleadings and supporting and opposing affidavits stating the facts on
which the liability or defense is based. TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a)
(West 2014); Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 892 (Tex. 2018).
Entitlement to a TCPA motion to dismiss requires the completion of a two-, and
possibly three-, step process. See Castleman v. Internet Money Ltd., 546 S.W.3d 684, 691
(Tex. 2018). Under the first step, the burden is on the movant, typically a defendant, to
show "by a preponderance of the evidence" that a legal action by the non-movant,
typically a plaintiff, "is based on, relates to, or is in response to” the defendant'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. § 27.005(b) (West 2014); see Lipsky, 460 S.W.3d at 586-87.
The statute defines what it means to exercise those rights, and courts must adhere to these
Arey v. The Shipman Agency, Inc. Page 2
supplied legislative definitions. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). A
preponderance of the evidence means that the evidence presented is more likely than not
true. See Lipsky, 460 S.W.3d at 589; In the Interest of C.H., 89 S.W.3d 17, 25 (Tex. 2002).
If a defendant is able to demonstrate that a plaintiff's legal action implicates one of
these rights, the second step shifts the burden to the plaintiff 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) (West 2014); see In re Lipsky, 460 S.W.3d at
587. Although the statute does not define "clear and specific,” "clear" means
unambiguous, sure, or free from doubt, and "specific" means explicit or relating to a
particular named thing. S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 2018
Tex. LEXIS 1312, at *8 (Tex. 2018) (internal quotes omitted); In re Lipsky, 460 S.W.3d at 590.
"Prima facie case" as used in the statute means a "minimum quantum of evidence
necessary to support a rational inference that the allegation of fact is true." Id. Direct
evidence of damages is not required, but the evidence must be sufficient to allow a
rational inference that some damages naturally flowed from the defendant's conduct.
S&S Emergency Training Sols., 564 S.W.3d 843 at *8.
If the plaintiff satisfies that requirement, the burden shifts back, in step three, to
the defendant to prove each essential element of any valid defenses by a preponderance
of the evidence. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d) (West 2014); Youngkin v.
Hines, 546 S.W.3d 675, 679-80 (Tex. 2018).
On appeal, our review of the trial court’s ruling on a TCPA motion to dismiss is
de novo. See Holcomb v. Waller Cty., 546 S.W.3d 833, 839 (Tex. App.—Houston [1st Dist.]
Arey v. The Shipman Agency, Inc. Page 3
2018, pet. denied); Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 282 (Tex. App.—Dallas 2015,
pet. denied); Johnson-Todd v. Morgan, 480 S.W.3d 605, 609 (Tex. App.—Beaumont 2015,
pet. denied). See also Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441
S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).
Step One
As required, we first decide whether Shipman’s lawsuit was based on, related to,
or in response to Arey’s and Kimmons’s exercise of their right of free speech, right to
petition, or right of association. In conducting our de novo determination under any of
the steps, we consider the pleadings and supporting and opposing affidavits stating the
facts on which the liability or defense is based as the trial court was required to consider.
See TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a) (West 2014); Adams v. Starside Custom
Builders, LLC, 547 S.W.3d 890, 892 (Tex. 2018); Johnson-Todd, 480 S.W.3d at 609. And when
it is clear from the plaintiff's pleadings that the action is covered by the TCPA, the
defendant need show no more. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017).
Arey and Kimmons each signed employment agreements when they began
working for Shipman. Kimmons’ agreement required her “never to legally sue” Shipman
“for any reason what so ever within the Universe.” Arey’s agreement included a similar
provision wherein he agreed “that all rights to claims, lawsuits, or allegation, shall be
waived forever….” When Kimmons refused to sign a new employment agreement,
Shipman terminated Kimmons’ employment, but required Kimmons to finish all the
assigned tasks for the day. Shipman also told Kimmons that “’if [Arey] or I said or did
anything or made any disgruntled statements[,] she would come down on me,
Arey v. The Shipman Agency, Inc. Page 4
[Arey],…and anybody else.’” Shortly thereafter, Kimmons filed for unemployment
benefits with the Texas Workforce Commission.
On November 1, 2017, about a month after Kimmons filed her complaint with the
TWC, Shipman sued both Arey and Kimmons, alleging in the “Facts” portion of its
petition that Arey and Kimmons executed valid confidentiality and non-compete
agreements and that:
Defendants have made statements on social media about Shipman’s
confidential information. Defendants have disclosed and continue to
disclose Shipman’s confidential information…Defendants have contacted
employees, contractors, sponsors, vendors, or goods and service providers
of Shipman to terminate their association with Shipman.
It is clear from Shipman’s petition that her legal action is covered by the TCPA, in that it
is based on, relates to, or is in response to Arey’s and Kimmons’s exercise of the right of
free speech because Shipman alleges communications by Arey and Kimmons in
connection with a matter of public concern.1 See TEX. CIV. PRAC. & REM. CODE ANN. §
27.001(3) (The “exercise of the right of free speech” means a communication made in
connection with a matter of public concern); § 27.001(7)(E) (a “matter of public concern”
includes an issue related to: a good, product, or service in the marketplace). The first
step is met. See Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (when it is clear from the
1Shipman contends that Arey and Kimmons did not prove retaliation. Retaliation is not a requirement the
statute imposes. The statute only requires a demonstration that the action is based on, relates to, or is in
response to a party's exercise of the right of free speech. TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a).
Shipman’s argument, therefore, constitutes an improper effort to narrow the scope of the TCPA by reading
language into the statute that is not there and will not be followed. See ExxonMobil Pipeline Co. v. Coleman,
512 S.W.3d 895, 901 (Tex. 2017). See also Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018) (injecting
requirement that the Act’s safeguard of certain First Amendment rights only applies to constitutionally
guaranteed activities is disloyal to the Act’s text).
Arey v. The Shipman Agency, Inc. Page 5
plaintiff's pleadings that the action is covered by the TCPA, the defendant need show no
more).
Step Two
Next, we determine whether Shipman established by clear and specific evidence a
prima facie case for each essential element of the claims alleged in the petition. Clear and
specific evidence includes relevant circumstantial evidence and the rational inferences
that may be drawn therefrom. Lipsky, 460 S.W.3d at 584, 591. Shipman sued both Arey
and Kimmons for breach of contract, conversion, and theft under the Theft Liability Act.
Shipman also sued Kimmons for fraud.
Breach of Contract
A breach of contract action requires proof of four elements: (1) formation of a valid
contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) "the
plaintiff sustained damages as a result of the breach." S&S Emergency Training Sols., Inc.
v. Elliott, 564 S.W.3d 843, 2018 Tex. LEXIS 1312 at *9 (Tex. 2018). Thus, Shipman needed
to establish by clear and specific evidence a prima facie case that the nondisclosure
agreement was a valid contract, that Shipman performed by providing information
covered by the agreement, that Arey and Kimmons disclosed information covered by the
agreement, and that Shipman sustained damages as a result of the disclosure. Arey and
Kimmons each signed a “CONFIDENTIALITY/NON COMPETE and AGENCY
AGREEMENT.” Even assuming without deciding that these agreements were valid
contracts, there is no clear and specific evidence in the record that Shipman performed
under the contract, that Arey and Kimmons breached the contracts, or that Shipman was
Arey v. The Shipman Agency, Inc. Page 6
damaged as a result of the alleged breach.2 Accordingly, Shipman did not establish by
clear and specific evidence a prima facie case for each essential element of the breach of
contract claim.
Conversion
To establish a claim for conversion, a plaintiff must prove that (1) the plaintiff
owned or had possession of the property or entitlement to possession; (2) the defendant
unlawfully and without authorization assumed and exercised control over the property
to the exclusion of, or inconsistent with, the plaintiff's rights as an owner; (3) the plaintiff
demanded return of the property; (4) the defendant refused to return the property; and
the plaintiff was injured. Lawyers Title Co. v. J.G. Cooper Dev., Inc., 424 S.W.3d 713, 718
(Tex. App.—Dallas 2014, pet. denied).
Shipman asserted in an affidavit in response to the motion to dismiss that: 1)
Shipman owned, possessed, or had the right to immediate possession of a cookbook,
merchandise, a Corral purse, a pair of Corral boots, cowboy shirts, Corral girl shirts, and
belts; 2) Arey and Kimmons physically took and unlawfully appropriated the property
without Shipman's consent and deprived Shipman of its free use and enjoyment; 3) Arey
and Kimmons have withheld the property from Shipman; 4) Shipman seeks the return of
the property; and 5) alternatively, Shipman seeks damages for the lost value of the
property, at least $6,000.00. Although some of the essential elements of conversion may
2Objections to Shipman’s affidavit regarding these elements were sustained by the trial court at the hearing
on the motion to dismiss. Shipman complains that the trial court erred in sustaining the objections to the
affidavit, but provides no authority for its complaints.
Arey v. The Shipman Agency, Inc. Page 7
be supported by this conclusory affidavit, the affidavit is not clear and specific evidence
that Shipman demanded the return of the property or that Arey and Kimmons refused
to return the property. Accordingly, Shipman did not establish by clear and specific
evidence a prima facie case for each essential element of its conversion claim.
Theft Liability Act
According to the Theft Liability Act, a person who commits theft is liable for the
damages resulting from the theft. TEX. CIV. PRAC. & REM. CODE ANN. § 134.003(a) (West
2011). A person commits theft if the person unlawfully appropriates property with the
intent to deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03(a) (West 2011).
Appropriation of property is unlawful if it is without the owner's effective consent. Id.
(b)(1). “Intent to deprive" is the person's intent at the time of the taking and can be
inferred from the words and acts of the person. McCullough v. Scarbrough, Medlin &
Assocs., 435 S.W.3d 871, 906, 907 (Tex. App.—Dallas 2014, pet. denied).
The same affidavit evidence offered to support Shipman’s claim for conversion
was offered to support its claim under the Theft Liability Act. Reviewing that evidence,
there is nothing to indicate that Arey or Kimmons intended to deprive Shipman of any
property. No words or actions evidenced Arey’s or Kimmons’s intent at the time
property was allegedly taken. Accordingly, Shipman did not establish by clear and
specific evidence a prima facie case for each essential element of its claim under the Theft
Liability Act.
Arey v. The Shipman Agency, Inc. Page 8
Fraud
Common-law fraud requires a material misrepresentation, which was false, and
which was either known to be false when made or was asserted without knowledge of
its truth, which was intended to be acted upon, which was relied upon, and which caused
injury. Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015).
An objection to the paragraph in Shipman’s affidavit regarding its fraud claim
against Kimmons was sustained. The only “evidence” of Shipman’s fraud claim against
Kimmons appears to be 30 pages of documents which are attached to the affidavit. These
appear to be timesheets which are filled out and signed by Kimmons. Certain times on
each of these timesheets are circled and numbers are written at the top of each page. At
the top of the first page, the written number, 6.5, is circled. Next to that number is the
notation:
total
97 Hours
20 mins,
total Fraud or
padded Hours
There is nothing to show who circled the times, made the notation on the first page, or
wrote the numbers on the remaining pages.
These documents do not indicate that the representations made by Kimmons in
the documents were false or that she knew they were false. Further, these documents do
not indicate Shipman was injured. Accordingly, Shipman did not establish by clear and
specific evidence a prima facie case for each essential element of its fraud claim.
Arey v. The Shipman Agency, Inc. Page 9
Conclusion
Based on this record, the TCPA applies to Shipman’s legal action. Further,
Shipman did not establish by clear and specific evidence a prima facie case for each
essential element of each of its claims as required to avoid dismissal under the Act.
Because it did not, the trial court erred in failing to grant Aery’s and Kimmons’s motion
to dismiss. Accordingly, Aery’s and Kimmons’s first and second issues are sustained.3
ATTORNEY’S FEES
Section 27.009 mandates that if an action is dismissed under the TCPA, the trial
court "shall award to the moving party court costs, reasonable attorney's fees, and other
expenses incurred in defending against the legal action as justice and equity may require,"
as well as sanctions "sufficient to deter" future "similar actions." TEX. CIV. PRAC. & REM.
CODE ANN. § 27.009(a).
Because the trial court did not grant Arey’s and Kimmons’s motion to dismiss, it
has not had the opportunity to determine the amount of trial court costs, reasonable
attorney's fees, and other expenses that justice and equity require be awarded to Arey
and Kimmons or the amount of sanctions sufficient to deter Shipman from bringing
similar actions in the future. Accordingly, we sustain Arey’s and Kimmons’s fourth issue
and remand the case to the trial court to make these determinations. See Sullivan v.
Abraham, 488 S.W.3d 294, 299-300 (Tex. 2016).
3 Because Shipman did not sustain its burden, we need not review the third step in the TCPA process:
whether Arey and Kimmons proved by a preponderance of the evidence a valid defense to Shipman’s
claims.
Arey v. The Shipman Agency, Inc. Page 10
CONCLUSION
Having sustained each issue necessary to the disposition of the appeal, we reverse
the trial court’s “ORDER OF DISMISSAL UNDER TEXAS CITIZENS PARTICIPATION
ACT,”4 which actually denied Arey’s and Kimmons’s motion to dismiss rather than
granted it as the title of the order suggests on February 21, 2018, and remand this case to
the trial court to grant Arey’s and Kimmons’s motion to dismiss under the TCPA and to
determine the amount of court costs, reasonable attorney's fees, and other expenses that
justice and equity require be awarded to Arey and Kimmons and the amount of sanctions
sufficient to deter Shipman from bringing similar actions in the future.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins5
Reversed and remanded
Opinion delivered and filed May 1, 2019
[CV06]
4 It appears that the trial court signed a draft order prepared by Arey and Kimmons to grant the motion to
dismiss but altered the disposition from “granted” to “denied” and blacked out several other paragraphs
in the order.
5The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the
Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003 (West 2013).
Arey v. The Shipman Agency, Inc. Page 11