NUMBER 13-19-00555-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ARMANDO GAMBOA,
ANITRIA M. CARRASCO GAMBOA,
AND KEITH LIVESAY, Appellants,
v.
TESSA VARGAS AND
CHRISTOPHER VARGAS, Appellees.
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Justice Longoria
Appellees Tessa Vargas and Christopher Vargas brought suit against appellants
Armando Gamboa and Anitria M. Carrasco Gamboa for breach of contract and various
other torts related to a real estate purchase agreement. The Vargases later added claims
for fraudulent transfer and civil conspiracy against the Gamboas’ attorney, appellant Keith
Livesay, related to the Gamboas transferring one-half of the real estate to Livesay.
Appellants filed a motion to dismiss the Vargases’ claims pursuant to the Texas Citizens
Participation Act (TCPA), which was overruled by operation of law. In what we construe
as a single issue, appellants argue that the trial court erred by failing to grant their motion
to dismiss. 1 We affirm.
I. BACKGROUND
The Vargases contacted Armando, Tessa’s cousin, to inquire about investing
money in a rental property. The Gamboas agreed to sell a rental property they owned to
the Vargases. Instead of hiring a real estate attorney, the parties downloaded a form from
“Rocket Lawyer,” a legal self-help website, to carry out the transaction. Under the
agreement, which was executed on October 13, 2014, the Vargases agreed to transfer a
portion of the monthly rental income they received to the Gamboas to be paid towards
the mortgage, which was still under the Gamboas’ name.
According to Tessa, the mortgage company sent a notice to the property address
advising that no mortgage payments were made for the months of June, July, August, or
September of 2015. Tessa asserts that when she confronted Armando about this, he
admitted to not paying the mortgage. At this point, Tessa stopped forwarding payments
to Armando. Tessa additionally asserted that she paid $4,400 to the Gamboas to have
1 Appellants’ brief does not contain an enumerated “Issues Presented” section. Instead, appellants’
brief simply lists twenty-two questions, many of which relate to the trial court’s failure to grant the motion to
dismiss. Many other questions, such as, “Does constitute [sic] tortious interference with a contract require
an actual contract, or a mere expectancy of a contract?” are relevant only to appellants’ motion for summary
judgment but then never mentioned again or elaborated on. Appellants do not challenge the trial court’s
ruling on their motion for summary judgment. Because appellants’ sole prayer is to have their TCPA motion
to dismiss granted, we treat that as their sole issue.
2
the property painted and repaired. However, Tessa claims that the Gamboas simply
pocketed the money and never repaired or painted the property. On May 13, 2016, the
Vargases brought suit against the Gamboas for fraud, breach of contract, and money had
and received.
According to appellants, litigation devolved into an “unmitigated blood bath,”
resulting in both parties seeking sanctions. The Gamboas filed a no-evidence motion for
summary judgment, arguing that the Vargases failed on thirty-three of the thirty-six
elements of their causes of action. The Gamboas also filed a motion for summary
judgment asserting that the Vargases could not recover punitive damages. The trial court
denied both motions.
At this point, the Gamboas still had not conveyed the property to the Vargases as
originally agreed upon. Instead, while the litigation was ongoing, the Gamboas conveyed
a one-half interest in the rental property to Livesay. Upon learning of the transaction, the
Vargases amended their petition on May 15, 2019, to include tort claims against Livesay,
including claims for fraudulent transfer and civil conspiracy. The Vargases alleged that
the Gamboas transferred one-half of the subject property to Livesay “with the intention of
preventing [the Vargases] from recovering the subject property from [the Gamboas]
pursuant to the contract and obstructing the pending suit regarding the subject property.”
The Vargases additionally filed a motion to disqualify Livesay, alleging that he was a
witness, an advocate, and a litigant in the present suit.
In response, on May 21, 2019, appellants filed a TCPA motion to dismiss, asserting
that the Vargases’ new causes of action violated appellants’ right to petition, right to
3
associate, and right of free speech. Appellants also sought sanctions against the
Vargases. In their response, the Vargases argued that the TCPA motion was untimely
filed as to the claims raised in their original petition. Additionally, the Vargases argued
that even if it was timely filed, the TCPA statute did not apply. The Vargases also sought
additional sanctions from appellants, arguing that appellants’ TCPA motion to dismiss
was frivolous.
The trial court denied appellants’ motions for sanctions. Appellants’ TCPA motion
to dismiss was overruled by operation of law. This interlocutory appeal ensued. See TEX.
CIV. PRAC. & REM. CODE ANN. § 51.014(a)(12).
II. MOTION TO DISMISS PURSUANT TO THE TCPA
In their first issue, appellants argue that the trial court erred by failing to grant their
motion to dismiss. More specifically, appellants assert that they met their initial burden
under the TCPA and that the Vargases failed in their respective burden.
A. Standard of Review
“The Texas Citizen’s Participation Act (TCPA) protects citizens who [associate],
petition or speak of matters of public concern from retaliatory lawsuits that seek to
intimidate or silence them.” In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig.
proceeding); see TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011. 2 That protection
comes in the form of a special motion to dismiss, subject to an expedited review, for “any
2 Appellants filed this action prior to September 1, 2019, the date upon which the recent
amendments to the TCPA went into effect. The prior, pre-amendment version of the TCPA therefore applies
to appellants’ claims and this appeal. See Act of May 20, 2019, 86th Leg., R.S., ch. 378, §§ 11–12, 2019
Tex. Sess. Law Serv. 684, 687. All of our citations and analyses are to the TCPA as it existed prior to
September 1, 2019, unless otherwise noted. Nothing in this opinion should be read to express an opinion
regarding the proper construction or application of any amended provision of the TCPA.
4
suit that appears to stifle the defendant’s” exercise of those rights. In re Lipsky, 460
S.W.3d at 584.
We review a trial court’s ruling on a TCPA motion to dismiss de novo. Lane v.
Phares, 544 S.W.3d 881, 886 (Tex. App.—Fort Worth 2018, no pet.). Specifically, we
consider de novo whether each party has met its respective burden under the Act’s
dismissal mechanisms. Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 873 (Tex.
App.—Austin Aug. 3, 2018, pet. denied). To the extent that resolution of the appeal turns
on construction of the TCPA, we review that de novo as well. Lippincott v. Whisenhunt,
462 S.W.3d 507, 509 (Tex. 2015) (per curiam). When construing the TCPA, as with any
other statute, our objective is to give effect to the legislative intent, looking first to the
statute’s plain language. Id. If that language is unambiguous, “we interpret the statute
according to its plain meaning.” Id. Also, we construe the TCPA “liberally to effectuate its
purpose and intent fully.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.011(b).
B. Applicable Law
The TCPA is an anti-SLAPP law; “SLAPP” is an acronym for “Strategic Lawsuits
Against Public Participation.” Fawcett v. Grosu, 498 S.W.3d 650, 654 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied) (op. on reh’g). The TCPA is intended “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; Cox Media
Grp., LLC v. Joselevitz, 524 S.W.3d 850, 859 (Tex. App.—Houston [14th Dist.] 2017, no
5
pet.).
Section 27.003 of the TCPA provides that a party may move to dismiss a legal
action that “is based on, relates to, or is in response to [that] party’s exercise of” one of
three rights: free speech, petition, or association. TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.003(a). Reviewing a TCPA motion to dismiss requires a three-step analysis.
Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). As a threshold matter, the moving
party must show by a preponderance of the evidence that the TCPA properly applies to
the legal action against it. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b); Kassab v. Pohl,
__ S.W.3d__, __, 2020 WL 5552459, *3 (Tex. App.—Houston [1st Dist.] Sept. 17, 2020,
no pet.). If the moving party meets that burden, then the nonmoving party must establish
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); In re E.I. DuPont de Nemours & Co, 136
S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (per curiam). If the nonmoving party
satisfies that requirement, then the burden finally shifts back to the moving party to prove
each essential element of any valid defenses by a preponderance of the evidence. TEX.
CIV. PRAC. & REM. CODE ANN. § 27.005(d).
This appeal concerns the right of association, the right of free speech, and the right
to petition. The act states that the exercise of the right of association “means to join
together to collectively express, promote, pursue, or defend common interests relating to
a governmental proceeding or a matter of public concern.” Id. § 27.001(2). The act states
that the exercise of the right of free speech “means a communication made in connection
with a matter of public concern.” Id. § 27.001(3). The act’s definition of the “exercise of
6
the right to petition” is far more extensive:
“Exercise of the right to petition” means any of the following:
(A) a communication in or pertaining to:
(i) a judicial proceeding;
(ii) an official proceeding, other than a judicial proceeding, to
administer the law;
(iii) an executive or other proceeding before a department of the
state or federal government or a subdivision of the state or
federal government;
(iv) a legislative proceeding, including a proceeding of a
legislative committee;
(v) a proceeding before an entity that requires by rule that public
notice be given before proceedings of that entity;
(vi) a proceeding in or before a managing board of an educational
or eleemosynary institution supported directly or indirectly
from public revenue;
(vii) a proceeding of the governing body of any political subdivision
of this state;
(viii) a report of or debate and statements made in a proceeding
described by Subparagraph (iii), (iv), (v), (vi), or (vii); or
(ix) a public meeting dealing with a public purpose, including
statements and discussions at the meeting or other matters of
public concern occurring at the meeting;
(B) a communication in connection with an issue under consideration or
review by a legislative, executive, judicial, or other governmental
body or in another governmental or official proceeding;
(C) a communication that is reasonably likely to encourage consideration
or review of an issue by a legislative, executive, judicial, or other
governmental body or in another governmental or official proceeding;
7
(D) a communication reasonably likely to enlist public participation in an
effort to effect consideration of an issue by a legislative, executive,
judicial, or other governmental body or in another governmental or
official proceeding; and
(E) any other communication that falls within the protection of the right
to petition government under the Constitution of the United States or
the constitution of this state.
Id. § 27.001.
C. Discussion
We first examine whether appellants, as movants, met their initial burden to show
by a preponderance of the evidence that the Vargases asserted a “legal action” that is
based on, relates to, or is in response to the movants’ exercise of one of the three rights
delineated in the TCPA: the right of free speech, the right to petition, or the right of
association. See id. § 27.005(b); Youngkin, 546 S.W.3d at 679; Kawcak v. Antero Res.
Corp., 582 S.W.3d 566, 571 (Tex. App.—Fort Worth 2019, pet. denied).
In their motion to dismiss, appellants matter-of-factly assert:
This matter involves [appellants’] freedom of speech and right to associate.
Likewise, this matter involves [appellants’] exercise of the right to petition;
under the statute, the right to petition includes a communication in or
pertaining to a judicial proceeding. Because [the] TCPA applies to Plaintiffs’
claims, to continue, Plaintiffs possess the burden to present clear and
specific evidence of each and every element of their causes of action.
(internal citations and quotations omitted). Attached to this motion was the affidavit of
Livesay. In his “opinion as an expert,” Livesay stated that the Vargases only added him
as a party to the suit to “intimidate [him]” and to “prevent the effective prosecution of the
case.” According to Livesay, the tactic of adding causes of action against a party’s
attorney, in conjunction with filing a motion to disqualify said attorney, “is designed to
8
prevent a party from petitioning a court for relief.” Thus, appellants argue that the
Vargases’ actions are clearly designed to interfere with appellants’ rights of free speech,
association, and petition.
The Vargases argue that appellants failed in their initial burden to demonstrate that
their asserted legal action is based on, related to, or was made in response to the
appellants’ exercise of one of the three rights delineated in the TCPA. According to the
Vargases, their newly added causes of actions against Livesay were not related to
appellants’ ability to communicate with or access the court. Rather, their causes of action
were based on the commission of torts unrelated to those activities. Additionally, the
Vargases argue that the Gamboas’ transfer of the property to Livesay in violation of the
Texas Uniform Fraudulent Transfer Act is not covered by the TCPA. See TEX. CIV. PRAC.
& REM. CODE ANN. § 24.005. We agree with the Vargases.
Regarding the right to petition, appellants assert that the Vargases, by adding the
new causes of action against Livesay, sought to “prevent [appellants] from making any
intelligent communication with the trial court, because they would be forced to represent
themselves pro se.” In other words, appellants claim that the Vargases added causes of
actions against Livesay simply as a means to bankrupt appellants and prevent them from
being able to afford legal representation moving forward. However, the only support for
these allegations come from Livesay’s own affidavit, which is conclusory and self-serving.
More importantly, according to their petition, the Vargases’ new causes of actions were
related to the allegedly fraudulent transfer of the rental property to Livesay, not appellants’
right to petition the court. See Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017)
9
(observing that the plaintiff’s petition is the “best and all-sufficient evidence of the nature
of the action” to determine whether the TCPA applies). Moreover, we note that appellants’
argument would lead to absurd results. If we followed appellants’ reasoning, a party might
be exposed to an anti-SLAPP motion to dismiss any time the legal fees to the other party
became disagreeable.
Regarding the right of association, appellants have failed to demonstrate that the
Vargases’ causes of action were related to their right to “join together to collectively
express, promote, pursue, or defend common interests relating to a governmental
proceeding or a matter of public concern.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(2).
There is no common interest in committing civil wrongs, engaging in criminal behavior, or
inflicting injury upon others. See Kawcak, 582 S.W.3d at 583. The court in Kawcak further
warned that an overly broad reading of the TCPA would cause parties to suffer vexatious
delays because “it would result in giving constitutional right of association protection to
virtually any private communication between two people about a shared interest. That is
an absurd result that does not promote the purpose of the Act.” Id. In the present case,
the Vargases’ causes of action against Livesay relate to alleged torts committed by
appellants in transferring half of the property that is the subject of the underlying suit to
Livesay. The private association and conspiring of individuals to commit a fraudulent
transfer is not covered by the TCPA. See id. More importantly, appellants have completely
failed to demonstrate that their actions, which were allegedly the basis of the Vargases’
claims, were related to a governmental proceeding or a matter of public concern. See id.
Transferring half of the property to Livesay was a purely private affair and was not related
10
to a governmental proceeding.
Regarding the appellants’ right of free speech, appellants have likewise failed to
demonstrate that the Vargases’ actions were related to “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” means a statement regarding: “(A) a public
official, public figure, or other person who has drawn substantial public attention due to
the person's official acts, fame, notoriety, or celebrity; (B) a matter of political, social, or
other interest to the community; or (C) a subject of concern to the public.” Id. § 27.007.
Appellants claim that an attorney’s legal services are a matter of public concern and cite
Avila v. Larrea, 394 S.W.3d 646, 655 (Tex. App.—Dallas 2012, pet. denied) to support
that proposition. However, Avila is distinguishable from the present case.
In Avila, a lawyer brought suit against a group of television companies for allegedly
false and defamatory statements they had broadcasted concerning his legal services.
See id. The television companies filed a motion to dismiss pursuant to the TCPA, arguing
that the lawyer’s lawsuit related to the companies’ right of free speech. See id. The court
of appeals concluded that the broadcasts were made in connection with the lawyer’s legal
services, which is an issue of public concern, and the broadcasts were the basis for the
lawyer’s lawsuit. See id. Therefore, the TCPA applied. See id. By contrast, in the present
case, the basis for the Vargases’ newly added causes of action was not a communication
made in connection with Livesay’s general legal services. Instead, the basis was the
private communications between the appellants resulting in the transfer of one-half of the
rental property to Livesay, which is hardly a subject of concern to the public.
11
Appellants additionally argue, without much elaboration, that their communications
involved a matter of public concern because the rental property was a product in the
marketplace. Prior to the 2019 amendment, the TCPA included issues related to “a good,
product, or service in the marketplace” in its definition of matters of public concern. See
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7)(E). However, as the Supreme Court of
Texas has observed:
Given the “in the marketplace” modifier, the TCPA's reference to “a good,
product, or service” does not swallow up every contract dispute arising from
a communication about the contract. By referring to communications made
in connection with goods, products, or services “in the marketplace,” the
definition confirms that the right of free speech involves communications
connected to “a matter of public concern. . . . The words “good, product, or
service in the marketplace,” however, do not paradoxically enlarge the
concept of “matters of public concern” to include matters of purely private
concern. As explained above, the “in the marketplace” modifier suggests
that the communication must have some relevance to a public audience of
potential buyers or sellers.
Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 134 (Tex. 2019). In
rare cases, private conversations have been held to be covered by the TCPA. See
ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017); Lippincott v.
Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (per curiam). However, these cases dealt with
communications that held some “public relevance beyond the pecuniary interests of the
private parties involved.” Creative Oil, 591 S.W.3d at 136. Appellants have not
demonstrated how any of the communications in the present case extend beyond the
pecuniary interests of the private parties involved or how the transfer of half of the rental
property to Livesay has any relevance to other potential buyers or sellers. See id.
12
In summary, under the zig-zagging burden of proof under the TCPA, appellants
failed their initial burden to show by a preponderance of the evidence that the Vargases
have asserted a “legal action” that is based on, relates to, or is in response to the
appellants’ exercise of the right of free speech, the right to petition, or the right of
association. See Tex. Custom Wine Works, LLC v. Talcott, 598 S.W.3d 380, 383 (Tex.
App.—Amarillo 2020, no pet.). Accordingly, the trial court did not err by failing to grant
appellants’ motion to dismiss pursuant to the TCPA. See Lane, 544 S.W.3d at 886. We
overrule appellants’ sole issue.
Because we conclude that appellants failed in their initial burden under the TCPA
scheme, the burden never shifted to the Vargases to establish by clear and specific
evidence a prima facie case for each essential element of their claims. See id. Therefore,
we do not need to address appellants’ arguments relating to whether the Vargases met
their burden or whether appellants established an affirmative defense. See TEX. R. APP.
P. 47.1.
III. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Delivered and filed on the
15th day of April, 2021.
13