Affirmed and Memorandum Opinion filed November 4, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00912-CV
BOOSTER FUELS, INC., Appellant
V.
FUEL HUSKY, LLC D/B/A INSTAFUEL, Appellee
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 2019-57856
MEMORANDUM OPINION
Appellee Fuel Husky, LLC d/b/a Instafuel (“Instafuel”) sued Ugo Catry and
appellant Booster Fuels, Inc. (“Booster”) for misappropriation of trade secrets,
conversion, and conspiracy to commit fraud. Booster moved to dismiss Instafuel’s
claims under the Texas Citizens’ Participation Act (“TCPA”). The trial court
denied the motion and Booster filed this interlocutory appeal. See Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(a)(12). In a single issue, Booster argues that the trial
court erred by failing to grant its motion to dismiss. We affirm the trial court’s
order.
I. BACKGROUND
Instafuel and Booster each provide mobile fuel delivery services. Instafuel
was founded in 2015 by Wisam Nahhas and Nour Baki. According to Instafuel’s
live petition, Instafuel’s business model is distinctive because it has targeted
commercial fleets as its customer base, whereas Booster originally focused on
delivering fuel to individual commuters.
In the latter half of 2015, Ugo Catry approached Nahhas in Houston while
claiming to work for Total Energy Ventures International, S.A.S. (“Total Energy”)
and conveyed an interest in becoming a potential investor.1 Under the guise of
being a potential investor, Catry requested Instafuel’s business plans and trade
secrets. In November 2015, and February 2018, before Instafuel shared
information with Catry, Instafuel and Catry entered into non-disclosure agreement.
Instafuel then provided Catry with its confidential pricing strategy, revenue model,
and fleet target market. After continued communication between Catry and
Instafuel, the parties entered into a second non-disclosure agreement in February
2018, after which Instafuel sent Cary additional information, including its
customer lists and updated pitch deck.
In 2019, Instafuel discovered that Total Energy was an investor in Booster.
Instafuel additionally learned that according to Booster’s LinkedIn webpage, Catry
was either advising or directly employed by Booster at the time he approached
Nahhas about Instafuel’s trade secrets. According to Instafuel, shortly after it
disclosed its confidential customer list to Catry, Instafuel was informed by the
1
In its appellate brief, Instafuel describes Total Energy as “the venture capital arm of one
of the biggest oil and gas companies in the world.”
2
customers on that list that Booster had reached out to them and tried to “poach”
their business. Additionally, according to Instafuel’s petition, “[i]n what appears to
be a clumsy copy-and-paste project, Defendant Booster copied large swaths of
Instafuel’s distinctive pitch deck2 provided to Defendant Catry and published this
information in Defendant Booster’s sales deck to potential clients, even
erroneously claiming Instafuel’s clients as its own.”
On August 20, 2019, Instafuel sued Booster for conversion and
misappropriation of trade secrets. On September 30, 2019, Booster filed an answer,
asserting a general denial. On October 21, 2019, Booster filed a motion to dismiss
pursuant to the TCPA. On November 4, 2019, Instafuel filed its second amended
petition, wherein Instafuel alleged: “Defendant Booster Fuels has unlawfully
gained access to Instafuel’s trade secrets, either by accessing Instafuel’s secure
servers in Harris County in Houston, Texas directly or by way of Defendant Catry,
who made fraudulent representations concerning Total Energy’s intentions to
become an investor in Instafuel,” and added a claim against Booster for conspiracy
to commit fraud. A hearing on Booster’s motion was held on November 11, 2019.
The motion was denied by the trial court the same day.
Booster timely appealed.
II. ANALYSIS
A. TCPA FRAMEWORK
Codified in chapter 27 of the Civil Practice and Remedies Code, the TCPA
protects citizens from retaliatory lawsuits that seek to silence or intimidate them on
matters of public concern. In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig.
proceeding); see generally Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.011.
2
“A pitch deck is a brief presentation . . . used to provide [an] audience with a quick
overview of [a] business plan. [A business] will usually use [a] pitch deck during face-to-face or
online meetings with potential investors, customers, partners, and co-founders.” Available at
https://pitchdeck.improvepresentation.com/what-is-a-pitch-deck (last visited November 1, 2021).
3
The purpose of the statute is to identify and summarily dispose of lawsuits
designed only to chill First Amendment rights, not to dismiss meritorious lawsuits.
In re Lipsky, 460 S.W.3d at 589; see also Tex. Civ. Prac. & Rem. Code Ann.
§ 27.002.
To effectuate the statute’s purpose, the TCPA provides a three-step
decisional process to determine whether a lawsuit or claim should be dismissed
under the statute. Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d
127, 132 (Tex. 2019). Under the first step, 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 movant’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); Creative Oil & Gas, 591 S.W.3d at 132; In re
Lipsky, 460 S.W.3d at 586–87. “But under the second step, the court may not
dismiss the action if the non-moving party ‘establishes by clear and specific
evidence a prima facie case for each essential element of the claim.’” Creative Oil
& Gas, 591 S.W.3d at 132 (quoting Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(c)). “Under the third step, the movant can still win dismissal if he
establishes ‘by a preponderance of the evidence each essential element of a valid
defense to the nonmovant’s claim.’” Id. (quoting Tex. Civ. Prac. & Rem. Code
Ann. § 27.005(d)).
The evidence the trial court considers in determining whether a legal action
should be dismissed under the TCPA includes the pleadings and affidavits filed by
the parties. Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a); see also Hersh v.
Tatum, 526 S.W.3d 462, 467 (Tex. 2017).
B. STANDARD OF REVIEW
Whether the TCPA applies to a particular claim is an issue of statutory
4
interpretation that we review de novo. See Youngkin v. Hines, 546 S.W.3d 675, 680
(Tex. 2018); see also Comcast Corp. v. Hous. Baseball Partners, LLC, No.
14-20-00043-CV, 2021 WL 2470378, at *8 (Tex. App.—Houston [14th Dist.] June
17, 2021, pet. filed). We view the pleadings and evidence in the light most
favorable to the non-movant. Stallion Oilfield Servs., Ltd. v. Gravity Oilfield
Servs., LLC, 592 S.W.3d 205, 214 (Tex. App.—Eastland 2019, pet. denied);
Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214-15 (Tex. App.—Houston [1st.
Dist.] 2014, no pet.); see also Brugger v. Swinford, No. 14-16-00069-CV, 2016
WL 4444036, at *2 (Tex. App.—Houston [14th Dist.] Aug. 23, 2016, no pet.)
(mem. op.).
We also review issues of statutory construction de novo. Youngkin, 546
S.W.3d at 680. When construing a statute, our objective is to determine and give
effect to the Legislature’s intent. Youngkin, 546 S.W.3d at 680 (quoting City of San
Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)). We construe the TCPA
liberally to effectuate its purpose and intent fully. See Adams v. Starside Custom
Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018).
C. APPLICATION
In its sole issue, Booster challenges the trial court’s denial of its TCPA
motion to dismiss. In doing so, Booster raises four sub-issues:
1. the TCPA applies to Instafuel’s claims;
2. Instafuel failed to establish a prima facie case as to each essential
element of its claims;
3. the commercial speech exemption is inapplicable to this case; and
4. the 2019 TCPA amendment is inapplicable to the present case because
Instafuel’s petition was filed before September 1, 2019.
We will first briefly address the fourth sub-issue regarding which version of
5
the TCPA is applicable to the present case. The 2019 act amending the TCPA was
passed by the legislature on May 17, 2019, approved by the governor on June 1,
2019, and took effect on September 1, 2019, and the act applies only to an action
filed on or after the effective date of the act. See Act of May 17, 2019, 86th Leg.,
R.S., ch. 378, §§ 11–12, 2019 Tex. Gen. Laws 684, 687. Because Instafuel filed its
original petition on August 20, 2019, we conclude that the September 1, 2019
amendment to the TCPA is not applicable to the present case and the previous
version controls. See id.; Youngkin, 546 S.W.3d at 680. Accordingly, we will refer
to the pre-amendment version of the TCPA.
Next, we will address Booster’s first sub-issue regarding whether the TCPA
applies to Instafuel’s claims.
1. INSTAFUEL’S SUIT IS NOT BASED ON BOOSTER’S RIGHT OF FREE
SPEECH
As the movant, Booster had the burden to show by preponderance of the
evidence that Instafuel has asserted a “legal action” that is based on, relates to, or is
in response to the Booster’s exercise of one of the three rights delineated in the
statute. See Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 469 (Tex. App.—
Houston [1st Dist.] 2020, pet. dism’d) (en banc); Tex. Civ. Prac. Rem Code Ann.
§ 27.005(b). Booster argues that Instafuel’s claims are based on its rights of free
speech and association in communicating regarding investment with non-party
Total Energy.
The TCPA defines a “[l]egal action” as “a lawsuit, cause of action, petition,
complaint, cross-claim, or counterclaim or any other judicial pleading or filing that
requests legal or equitable relief.” Tex. Civ. Prac. Rem Code Ann. § 27.001(6).3
3
As of September 1, 2019, the statute provides that “legal action” does not include “a
procedural action taken or motion made in an action that does not amend or add a claim for legal,
equitable, or declaratory relief”; “alternative dispute resolution proceedings”; or “post-judgment
enforcement actions.” § 27.001(6)(A)–(C). Because this suit was filed before September 1, 2019,
6
This definition appears to encompass any “procedural vehicle for the vindication of
a legal claim.” State ex rel. Best v. Harper, 562 S.W.3d 1, 9 (Tex. 2018). “The
definition of ‘legal action’ in the statute is broad and evidences a legislative intent
to treat any claim by any party on an individual and separate basis.” Better Bus.
Bureau of Metro. Dall., Inc. v. Ward, 401 S.W.3d 440, 443 (Tex. App.—Dallas
2013, pet. denied) (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6)). We
conclude that Instafuel’s lawsuit is a “legal action” as defined under the TCPA. See
id.
The TCPA defines “exercise of the right of free speech” as “a
communication made in connection with a matter of public concern.” Tex. Civ.
Prac. & Rem. Code Ann. § 27.001(3). A “‘[c]ommunication’ includes the making
or submitting of a statement or document in any form or medium, including oral,
visual, written, audiovisual, or electronic.” Id. § 27.001(1). A “[m]atter of public
concern” is defined as “an issue related to: (A) health or safety; (B) environmental,
economic, or community well-being; (C) the government; (D) a public official or
public figure; or (E) a good, product, or service in the marketplace.” Id.
§ 27.001(7).4
the previous version of the statute controls. See Act of May 21, 2011, 82d Leg., R.S., ch. 341,
§ 2, 2011 Tex. Gen. Laws 961, 961–64 (current version at Tex. Civ. Prac. & Rem. Code Ann.
§§ 27.001–.011).
4
For cases filed on or after September 1, 2019, “Matter of public concern” is defined as:
(7) “Matter of public concern” means a statement or activity 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.
Tex. Civ. Prac. & Rem. Code Ann. § 27.001.
7
The supreme court recently explained that not every communication related
somehow to one of the broad categories set out in § 27.001(7) always regards a
matter of public concern. Creative Oil & Gas, 591 S.W.3d at 137. In Creative Oil
& Gas, Lona Ranch filed a TCPA motion to dismiss the opposing parties’
counterclaims, arguing statements to third parties regarding the lease between the
parties were an exercise of the right of free speech meriting dismissal, and
regarding the filing of the lawsuit, the action was an exercise of the right to petition
requiring dismissal under the TCPA. Id. at 130–31. The supreme court, in
concluding that the statements did not fall within the free speech prong of the
TCPA, determined the communications to third parties regarding the lease did not
involve matters of public concern. Id. at 136. In considering whether the claims at
issue are matters of public concern, the high court clarified that a matter of public
concern for purposes of the TCPA must involve more than the private pecuniary
interests of the parties, and “commonly refers to matters ‘of political, social, or
other concern to the community’” as opposed to purely private matters. Id. at 135
(citing Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017)). Further, the court
stated, “[a] private contract dispute affecting only the fortunes of the private parties
involved is simply not a ‘matter of public concern’ under any tenable
understanding of those words.” Id. at 137.
This court has previously applied the Creative Oil & Gas analysis in holding
that communications directed to an audience of existing customers and tenants
regarding a private business dispute are not a matter of public concern for purposes
of TCPA applicability. Bowman v. Fortitude Consulting Grp., Inc., No.
14-19-00686-CV, 2020 WL 3967807, at *4 (Tex. App.—Houston [14th Dist.] July
14, 2020, no pet.) (mem. op.); see also Navidea Biopharmaceuticals, Inc. v.
Capital Royalty Partners II, L.P., No. 14-18-00740-CV, 2020 WL 5087826, at *5
8
(Tex. App.—Houston [14th Dist.] Aug. 28, 2020, pet. denied) (mem. op.)
(concluding that publicly traded company failed to show by preponderance of the
evidence that the amount owed pursuant to a judgment was a matter of public
concern for purposes of the TCPA).
Booster asserts that “Instafuel’s lawsuit is expressly designed to impinge and
‘chill’ Booster’s’ right of free speech on a matter of public concern.” In its motion
to dismiss, Booster alleged:
The actions that Instafuel alleges Booster engaged in all necessarily
involve the making of “a statement or document in any form or
medium, including oral, visual, written, audiovisual, or electronic,
regardless of whether the communication is made or submitted
publicly or privately.” As alleged by Instafuel, Booster communicated
orally and in writing with potential customers and with one of its
investors, non-party Total Energy. In short, Instafuel’s Petition is
focused almost entirely on Booster’s right to speak with potential
customers, as well as the right to speak with its own investor, Total
Energy.
More specifically concerning matters of public concern, Booster argued:
Furthermore, a commercial service that provides the direct delivery of
fuel to consumers is undoubtedly a “matter of public concern” as
defined in the TCPA. The services at issue touch and concern multiple
environmental, economic, or community issues of well-being and
import to the community and concern a good, product, or service in
the marketplace. The expansion of an industry that provides direct
access to fuel for vehicles is a matter of economic well-being, as
fueling vehicles is an important economic concern. Similarly, the sale
of fuel is a highly regulated industry that has a direct effect on the
environment. In fact, to operate its business, Booster must employ
fuel delivery drivers who have a Texas Hazardous Materials
Endorsement on their driver’s license. As such, competition in this
industry is a matter of both economic and environmental concern
which thus makes it a “matter of public concern” under the TCPA.
(internal citations omitted). We disagree.
9
Booster’s communication with potential customers and employment of
drivers with a Texas Hazardous Materials Endorsement on their driver’s license is
not a matter of health, political, economic or social concern to the community at
large. See Creative Oil & Gas, 591 S.W.3d at 135. Likewise, their communication
was not “related to a matter of public concern.” Rather, Booster and the potential
customers were private parties engaged in private communications that solely
affected their private interests. Likewise, any communication between Booster and
Catry and Total Energy were private communications between private parties that
affected their private, pecuniary interests. Thus, we conclude that the alleged
communications are not a matter related to a public concern. See Creative Oil &
Gas, 591 S.W.3d at 137; see, e.g., Bowman, 2020 WL 3967807, at *4 (concluding
that allegation that party “interrupted and interfered with Tenants’ businesses” was
private communication not of public concern); see also Collaborative Imaging,
LLC v. Zotec Partners, LLC, No. 05-19-01256-CV, 2020 WL 3118614, at *3 (Tex.
App.—Dallas June 12, 2020, pet. denied) (mem. op.) (“Private communications
are indeed sometimes covered by the TCPA . . . [b]ut to be covered by the TCPA,
those communications must involve environmental, health, or safety concerns that
have public relevance beyond the pecuniary interests of the private parties
involved.”) (internal citation omitted).
We next turn to whether Instafuel’s claims relate to Booster’s exercise of its
right of association.
2. INSTAFUEL’S SUIT IS NOT BASED ON BOOSTER’S RIGHT OF
ASSOCIATION
In addition to implicating its right of free speech, Booster argues that
Instafuel’s suit is based on, relates to, or is in response to Booster’s exercise of the
right of association.
10
The applicable version of the TCPA defines an exercise of the right of
association as “a communication between individuals who join together to
collectively express, promote, pursue, or defend common interests.” Act of May
21, 2011, 82d Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 961 (amended 2019)
(current version at Tex. Civ. Prac. & Rem. Code Ann. § 27.001). We recently
examined this definition at length in Republic Tavern & Music Hall, LLC v.
Laurenzo’s Midtown Mgmt., LLC, 618 S.W.3d 118, 123 (Tex. App.—Houston
[14th Dist.] 2020, no pet.). Midtown brought tort and contract claims against
Republic and several third-party defendants in connection with a failed restaurant
venture. The Republic parties filed a TCPA motion to dismiss, arguing Midtown’s
claims implicated their right of association. Id. at 121.
Analyzing this contention, we focused on which “common interests” fall
within the TCPA’s definition of “right of association.” See id. at 125–27. Relying
on an opinion from the Fort Worth Court of Appeals, we recognized that
“common” generally is subject to a primary and secondary definition:
Primary definition: “of or relating to a community at large : generally shared or
participated in by individuals of a community: not
limited to one person or special group”
Secondary definition: “marked by or resulting from joint action of two or
more parties: practiced or engaged in by two or
more equally.”
Id. at 125 (quoting Kawcak v. Antero Res. Corp., 582 S.W.3d 566, 576 (Tex.
App.—Fort Worth 2019, pet. denied)). As we noted, the secondary definition
would broadly apply “to any interests common to at least two people.” Id.
We examined these definitions in conjunction with the TCPA’s purpose “to
encourage and safeguard the constitutional rights of persons to petition, speak
11
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.” Id. (quoting Tex. Civ. Prac. & Rem.
Code Ann. § 27.002). We concluded that “[a]pplying the primary definition of
‘common’ would serve the TCPA’s purpose, whereas defining ‘common’ to refer
to any interests shared by at least two people would not encourage or safeguard the
right to associate freely and would undermine the statute’s purpose of protecting
the right to file meritorious lawsuits.” Id. (emphasis in original).
Applying this conclusion, we noted that Midtown’s claims were premised on
the following “communications”: (1) Midtown’s contract with the Republic
parties, (2) alleged representations by the Republic parties that they would fund
construction and operation of the restaurant, and (3) disagreements about
Midtown’s accounting. Id. at 126–27. Concluding these communications did not
constitute an exercise of the right of association, we held that “[t]hese
communications concern only a private transaction between private parties, rather
than a matter of ‘common interest’ as that expression is used in the applicable
version of the TCPA.” Id. at 127; see also Bandin v. Free & Sovereign State of
Veracruz de Ignacio de la Llave, 590 S.W.3d 647, 653–54 (Tex. App.—Houston
[14th Dist.] 2019, pet. denied) (relying on Kawcak and concluding that claims
alleging defendants conspired to commit theft or conversion did not implicate the
defendant’s exercise of the right of association);5 Kawcak, 582 S.W.3d at 571, 588
5
As we noted in Republic Tavern, an argument can be made that this court’s opinion in
Reeves v. Harbor Am. Cent., Inc., No. 14-18-00594-CV, 2020 WL 2026527 (Tex. App.—
Houston [14th Dist.] Apr. 28, 2020, pet. denied), conflicts with our reasoning in Bandin. See
Republic Tavern & Music Hall, LLC v. Laurenzo’s Midtown Mgmt., LLC, 618 S.W.3d 118, 126
n.17 (Tex. App.—Houston [14th Dist.] 2020, no pet.). Assuming without deciding that such
conflict exists, we held that “Bandin, as the earlier precedent, would control over later cases that
do not distinguish or purport to apply it, absent a contrary decision by a higher court or this court
sitting en banc.” Id.
12
(concluding that the exercise of the right of association was not implicated by
claims that Kawcak and another individual conspired in tortious conduct such as a
breach of fiduciary duty).
Similarly, in Marshall v. Marshall, Nos. 14-18-00094-CV &
14-18-00095-CV, 2021 WL 208459 (Tex. App.—Houston [14th Dist.] Jan. 21,
2021, pet. filed) (mem. op.), we relied on the primary definition of “common” to
conclude that breach of fiduciary duty claims premised on the merger of two
private trusts did not implicate the TCPA’s right of association. See id. at *1–2, *8.
Holding that the TCPA’s definition of the “exercise of the right of association” did
“not encompass all communications in furtherance of a civil conspiracy or to
commit tortious acts,” we noted that applying a broader definition “would thwart a
meritorious lawsuit any time a plaintiff alleges two or more persons jointly
committed a tort.” Id. at *8.
This construction aligns with conclusions reached by several of our sister
courts of appeals, in which they held that the TCPA’s use of “common interests”
requires more than communications made as part of a private transaction. See, e.g.,
Segundo Navarro Drilling, Ltd. v. San Roman Ranch Mineral Partners, Ltd., 612
S.W.3d 489, 493–96 (Tex. App.—San Antonio 2020, pet. denied) (“Like the
Kawcak Court, we conclude that this definition of ‘common’—one that suggests a
communal or public interest, rather than a private interest shared solely by a select
few—is more congruent with both the TCPA as a whole and with our canons of
statutory construction”); Blue Gold Energy Barstow, LLC v. Precision Frac, LLC,
No. 11-19-00238-CV, 2020 WL 1809193, at *6 (Tex. App.—Eastland Apr. 9,
2020, no pet.) (mem. op.) (“[T]he term ‘common interest,’ as used in the TCPA,
means something more than allegedly tortious communications between
individuals in the pursuit of a private business endeavor.”); Gaskamp, 596 S.W.3d
13
at 476 (concluding that “the proper definition of ‘common’ in the phrase ‘common
interests’ is ‘of or relating to a community at large: public’”; therefore, claims
premised on the misappropriation of trade secrets for a competing business and
conspiring to commit related torts did not fall within this definition); Dyer v.
Medoc Health Servs., LLC, 573 S.W.3d 418, 426–27 (Tex. App.—Dallas 2019,
pet. denied) (citing Kawcak and concluding that, because the text messages
underlying the claims “were private communications related to an alleged
conspiracy between two men and did not involve public or citizen’s participation,
it would be ‘illogical’ to apply the TCPA to those communications”); see also Blue
Gold Energy Barstow, LLC, 2020 WL 1809193, at *6.
Here, Booster asserts that Instafuel’s claims are premised on associations by
Booster with its potential customers and with its investor, Total Energy. More
specifically, Booster argues that its communications with Total Energy sought to
advance their “common interest in providing and expanding Booster’s innovative
fuel delivery service.” Similarly, Booster argues its association with its customers
and potential customers was for the common interest of “collectively promot[ing]
the sale and purchase of fuel delivery services.”
However, guided by the precedents discussed above, we conclude that
Instafuel’s claims do not implicate communications that promote “common
interests” as that phrase is used in the TCPA’s definition of “right of association.”
Rather, Booster alleged communications related to a private business endeavor—
an interest shared only by a select few. These communications facilitated an
alleged conspiracy between Catry and Booster to steal trade secrets and “poach”
Instafuel’s business; the communications did not involve the public or the
community at large.6 As such, we conclude that the communications do not
6
In its reply brief, Booster argues that according to our Court’s precedent, the TCPA can
14
constitute an exercise of the right of association protected by the TCPA. See
Bandin, 590 S.W.3d at 653–54; Gaskamp, 596 S.W.3d at 476; Dyer, 573 S.W.3d at
426–27; see also Marshall, 2021 WL 208459, at *8; Republic Tavern, 2020 WL
7626253, at *6; Segundo Navarro Drilling, Ltd., 612 S.W.3d at 493–96; Blue Gold
Energy Barstow, LLC, 2020 WL 1809193, at *6.
3. SUMMARY
Because Booster failed to meet its initial burden under the TCPA to establish
that Instafuel’s claims are based on, related to, or in response to Booster’s exercise
of its right of free speech or right of association, we need not address sub-issues
two and three. See Tex. R. App. P. 47.1. We overrule Booster’s sole issue.
III. CONCLUSION
We affirm the trial court’s order denying Booster’s TCPA motion to dismiss.
apply to protect the conduct of alleged tortfeasors who have conspired together to commit
tortious conduct to advance their own business interests. See Abatecola v. 2 Savages Concrete
Pumping, LLC, No. 14-17-00678-CV, 2018 WL 3118601, at *8 (Tex. App.—Houston [14th
Dist.] June 26, 2018, pet. denied) (concluding that the TCPA applied to portions of plaintiff’s
tortious interference claims). However, we find Booster’s reliance on Abatecola unpersuasive.
As we mentioned earlier, in the time since our court issued Abatecola, the Texas Supreme
Court has clarified that “[a] private contract dispute affecting only the fortunes of the private
parties involved is simply not a ‘matter of public concern’ under any tenable understanding of
those words.” Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 135 (Tex.
2019). Despite Booster’s argument that its services implicate environmental and community
well-being, ultimately, the dispute involves private communications involving the pecuniary
interest of private parties. Furthermore, we note that in light of Creative Oil & Gas, our sister
court has disagreed with our holding in Abatecola. See Gaskamp v. WSP USA, Inc., 596 S.W.3d
457, 476 (Tex. App.—Houston [1st Dist.] 2020, pet. dism’d) (en banc). Therefore, we find
Booster’s reliance on Abatecola to be unconvincing.
15
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Spain, Hassan, and Poissant.
16