Candice Jackson v. Kell Auto Sales, Inc. and Robert I. Harmon

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00106-CV
___________________________

CANDICE JACKSON, Appellant

V.

KELL AUTO SALES, INC. AND ROBERT I. HARMON, Appellees

On Appeal from the 89th District Court
Wichita County, Texas
Trial Court No. DC89-CV2020-1237

Concurring Memorandum Opinion by Justice Wallach
 CONCURRING MEMORANDUM OPINION

I concur with the majority in affirming the trial court’s judgment. I also concur

with the rationale of the majority opinion about why the TCPA does not apply to the

counterclaim in question, but I believe that there is another reason that it does not

apply: this lawsuit and counterclaim are matters of purely private concern and

therefore do not fall within the protected right to petition under the TCPA.

It has long been recognized that

The Texas Citizens Participation Act (TCPA) protects citizens who
petition or speak on matters of public concern from retaliatory lawsuits that
seek to intimidate or silence them. Tex. Civ. Prac. & Rem. Code Ann.
§§ 27.001–.011. The protection consists of a special motion for an
expedited consideration of any suit that appears to stifle the defendant’s
communication on a matter of public concern. Id. § 27.003.

In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding) (emphasis added)

(cleaned up); see also Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018) (“The TCPA

protects citizens who associate, petition or speak on matters of public concern from

retaliatory lawsuits that seek to intimidate or silence them.”) (emphasis added)

(cleaned up) (quoting Lipsky, 460 S.W.3d at 584).

Courts have struggled with the scope of right-to-association and right-to-free-

speech claims encompassed by the broad language of the TCPA. Before the TCPA

was amended to clarify that the exercise of the right of association pertains to

“common interests relating to a governmental proceeding or a matter of public

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concern,”1 this court held that the right to association protected under the TCPA

must include “common” interests “shared by the public or at least a group,” excluding

the interests of two tortfeasors conspiring to act for their own selfish benefit. Kawcak

v. Antero Res. Corp., 582 S.W.3d 566, 576, 588 (Tex. App.—Fort Worth 2019, pet.

denied). In so holding, this court reasoned that it was necessary to harmonize the

purpose of the TCPA with its protected rights:

The definition of common that we apply brings the right of association
into harmony with the other rights defined by the Act. The other
exercises of rights defined in the TCPA have some public component
(though they may not be coextensive with First Amendment
constitutional rights), and this makes it incongruous to conclude that the
word common does not embrace at least some public or at least group
component. For example, the exercise of the right to free speech
requires a communication made in connection with a matter of public
concern. Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3). The exercise of the
right to petition requires a communication that pertains to governmental or at a
minimum, public proceedings. Id. § 27.001(4)(A)–(E).

1
See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(2). The legislature amended
the definition of the exercise of the right of association in 2019. See Act of May 17, 2019,
86th Leg., R.S., ch. 378, § 1, H.B. 2730, § 1 (amending Tex. Civ. Prac. & Rem. Code
Ann. § 27.001(2)). The former version provided that the “exercise of the right of association
means a communication between individuals who join together to collectively express,
promote, pursue, or defend common interests.” Citizens Participation Act, 82nd Leg.,
R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 961 (cleaned up) (current version at Tex.
Civ. Prac. & Rem. Code Ann. § 27.001(2)). For cases filed on or after September 1,
2019, “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.” See Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1,
11–12, H.B. 2730, §§ 1, 11–12 (cleaned up); see also Reeves v. Harbor Am. Cent., Inc.,
No. 14-18-00594-CV, 2020 WL 2026527, at *3 n.5 (Tex. App.—Houston [14th Dist.]
Apr. 28, 2020, pet. denied).

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Kawcak, 582 S.W.3d at 579 (emphasis added) (cleaned up); cf. TotalGen Servs., LLC v.

Thomassen Amcot Int’l, LLC, No. 02-20-00015-CV, 2021 WL 210845, at *4, *5 (Tex.

App.—Fort Worth Jan. 21, 2021, no pet.) (mem. op.) (holding that the

communications at issue, which were between private businesses on private business

matters and not public matters, did not implicate the right to association protected by

the TCPA).

In its en banc opinion in Gaskamp v. WSP USA, Inc., the First Court of Appeals

in Houston addressed the same issues that this court addressed in Kawcak. 596 S.W.3d

457, 474 (Tex. App.—Houston [1st Dist.] 2020, pet dism’d) (op. on reh’g en banc). In

requiring the common-interest element of the exercise of the right of free association

under the prior version of the TCPA to include a public component, the Houston

court similarly stated,

Defining common to include a public component is in line with the
TCPA’s statutory scheme because it corresponds to the express purpose
of the TCPA to protect constitutional rights, while at the same time
protecting the rights of persons to file meritorious lawsuits for
demonstrable injury. See Tex. Civ. Prac. & Rem. Code Ann. § 27.002.
Requiring a public component also harmonizes the definition with the
other two exercises of rights—right of free speech and right to
petition—defined in the TCPA, which both have some public
component. The exercise of the right of free speech requires a
communication made in connection with a matter of public concern. Id.
§ 27.001(3). And the exercise of the right to petition requires a
communication that pertains to governmental or at a minimum, public,
proceedings. Id. § 27.001(4). It would be incongruous to conclude that
the word common, as used in the definition of exercise of the right of
association, does not require a public component.

Gaskamp, 596 S.W.3d at 474 (cleaned up).

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 The Dallas court addressed these issues regarding the former version of the

TCPA in a similar fashion in its Goldberg v. EMR (USA Holdings) Inc., stating,

Exercise of the right of association means a communication between
individuals who join together to collectively express, promote, pursue, or
defend common interests.[2] Tex. Civ. Prac. & Rem. Code Ann.
§ 27.001(2). Exercise of the right of association requires that the nature
of the communication between individuals who join together must
involve public or citizen’s participation.

Exercise of the right of free speech means a communication made in
connection with a matter of public concern. Id. § 27.001(3). Matter of
public concern includes an issue related to health or safety;
environmental, economic, or community well-being; or a good, product,
or service in the marketplace. Id. § 27.001(7)(A), (B), (E).[3] The phrase
matter of public concern commonly refers to matters of political, social, or
other concern to the community, as opposed to purely private matters.
Not all communications made in connection with a matter related to
health or safety, environmental, economic, or community well-being, or
a good, product, or service in the marketplace will constitute the exercise
of the right of free speech under the TCPA. The communications
themselves must relate to a matter of public concern. A communication
related to a good, product, or service in the marketplace must have some
2
See supra note 1.
3
Citizens Participation Act, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws
961, 962 (cleaned up) (current version at Tex. Civ. Prac. & Rem. Code Ann.
§ 27.001(7)). The legislature amended the definition of a matter of public concern in 2019.
See Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 1, H.B. 2730, § 1. The current
version of the TCPA defines matter of public concern as 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)(A)–(C).

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 relevance to a public audience of potential buyers or sellers and not be
simply a communication between private parties of matters of purely
private concern.

594 S.W.3d 818, 827–28 (Tex. App.—Dallas 2020, pet. denied) (op. on reh’g) (cleaned

up); see also Martin v. Hutcheson, No. 06-19-00093-CV, 2020 WL 6788243, at *7, *10,

*14 (Tex. App—Texarkana Nov. 19, 2020, pet. denied) (mem. op.) (holding TCPA

did not apply because (1) communications were not public but were private and about

private matters and therefore did not implicate plaintiffs’ exercise of freedom of

speech and (2) the interests involved were not common but private and therefore

plaintiffs’ exercise of the freedom of association was not implicated); Crossroads Cattle

Co. v. AGEX Trading, LLC, 607 S.W.3d 98, 104 (Tex. App.—Austin 2020, no pet.)

(holding particular transaction involving buying and selling cattle did not involve a

group’s common interest, did not amount to exercising the right of association, and

did not trigger the TCPA); Tex. Custom Wine Works, LLC v. Talcott, 598 S.W.3d 380,

386 (Tex. App.—Amarillo 2020, no pet.) (holding communications that related only

to private business transactions affecting only the private parties did not implicate a

public interest and therefore the right of association was not impacted and the TCPA

did not apply); Perlman v. EKLS Firestopping & Constr., LLC, No. 05-18-00971-CV,

2019 WL 2710752, at *3 (Tex. App.—Dallas June 28, 2019, no pet.) (mem. op.)

(holding (1) communications involved in private business transaction did not involve

public or citizen participation and therefore did not relate to exercise of right of

association and (2) even though the contract was for the performance of services at an

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assisted living facility, the plaintiffs did not show that the communications were

related to health and safety sufficiently to tie them to the exercise of free speech).

At least with respect to the rights of free speech and association, purely private

disputes did not fall within the scope of the former TCPA. As concluded by the

Supreme Court in Creative Oil & Gas, “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, 137 (Tex. 2019) (cleaned up).

In this case, which involves purely private matters, not matters of public

concern, Jackson contends in her brief that she is entitled to the benefit of the TCPA

right to dismissal of Kell Auto’s counterclaim. Why? Because she exercised her right

to petition by filing her lawsuit, and Kell Auto filed a counterclaim for breach of

contract: “Kell Auto[’s] . . . counterclaim is being used in response to retaliate and

intimidate Ms. Jackson from asserting her right to petition the court under the

Deceptive Trade Practices Act.” Jackson contends that because the counterclaim was

filed after she filed suit against Appellees and after she had filed certain dispositive

motions against Appellees’ affirmative defenses, the filing of the counterclaim was “in

response to” the exercise of her right to petition and therefore the counterclaim

should have been dismissed. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a).

This is an alleged “plain language” reading of the TCPA, and I recognize that it

is consistent with some courts’ applications of this provision of the TCPA. See

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Hawxhurst v. Austin’s Boat Tours, 550 S.W.3d 220, 226–28 (Tex. App.—Austin 2018, no

pet.) (holding nonmovant Austin’s Boat Tours’ counterclaims “were brought solely

because it was forced to defend Hawxhurst’s lawsuit” and were therefore based on,

related to, or in response to his suit, which was an exercise of his right to petition);

Serafine v. Blunt, 466 S.W.3d 352, 359–60 (Tex. App.—Austin 2015, no pet.) (maj. op.

on reh’g) (holding the Blunts’ fraudulent-lien counterclaim and part of their tortious

interference counterclaim were based on, related to, or in response to Serafine’s

filings, which were exercises of her right to petition under the former TCPA).

However, I do not believe those cases provide sufficient analyses.

Justice Pemberton penned a telling concurring opinion in Serafine. 466 S.W.3d

at 377–82 (concurring op. on reh’g). In it, he exposed the flaws in this type of

superficial analysis of the TCPA as it relates to the infringement of the right to

petition:

We must, in short, look beyond what may initially seem to be the plain
or obvious import of the phrase “communication in or pertaining
to . . . a judicial proceeding” as it appears when read in isolation. We
must instead determine its meaning against a broader contextual
backdrop of the TCPA read as a whole and in light of background law.

Id. at 380. Justice Pemberton contended that the right to petition under the TCPA

does not exist in a vacuum but instead must be defined by relying on the more

familiar constitutional right to petition:

In sum, the established understanding of the right to petition in
constitutional jurisprudence must inform the nature of “a
communication in or pertaining to . . . a judicial proceeding” that would

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 qualify as the “exercise of the right to petition” as defined in the TCPA.
The phrase was not intended to be read in the abstract or isolation so as
to cause the TCPA’s definition of the “exercise of the right to petition”
to depart materially from the common and long-familiar understanding
of what the right to petition means. Against its constitutional backdrop and
the TCPA read as a whole, “communication in or pertaining to . . . a
judicial proceeding” necessarily refers to the sorts of “communications”
“in” or “pertaining to” a “judicial proceeding” that would be protected
under the First Amendment right to petition.

Id. at 382 (cleaned up).

As Justice Pemberton also noted, the Supreme Court has cautioned against

plucking statutes from their surrounding context before construing them:

When construing statutes, or anything else, one cannot divorce text from
context. The meaning of words read in isolation is frequently contrary to
the meaning of words read contextually in light of what surrounds them.
Given the enormous power of context to transform the meaning of
language, courts should resist rulings anchored in hyper-technical
readings of isolated words or phrases. The import of language, plain or
not, must be drawn from the surrounding context, particularly when
construing everyday words and phrases that are inordinately content-
sensitive.

Id. at 379.
If the courts interpret the TCPA’s protection of the right to petition literally, as

Jackson advocates, then in any non-exempt cases, Tex. Civ. Prac. & Rem. Code Ann.

§ 27.010, where there is a potential counterclaim, the statute will be transformed from

a statute that “protects citizens who petition or speak on matters of public concern from

retaliatory lawsuits that seek to intimidate or silence them,” Lipsky, 460 S.W.3d at 584

(emphasis added), into one that protects the first party to win the race to the

courthouse. Since any counterclaim is going to at least be “in response to” the

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plaintiff’s exercise of the right to petition by filing suit, the loser in the race to the

courthouse is at substantial risk of dismissal. This outcome is hardly consistent with

the TCPA’s express purpose of protecting “the rights of a person to file meritorious

lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002. Justice

Pemberton astutely observed the effect of bringing this type of private dispute within

the ambit of the TCPA:

Perhaps the most obvious take-away point is that the TCPA is less an
“anti-SLAPP” law than an across-the-board game-changer in Texas civil
litigation if a lawsuit like Serafine’s—which arises from a boundary
dispute and personality conflicts between neighboring homeowners—is
elevated to the status of the “exercise of the right to petition” protected
by the Act and unremarkable defensive measures like the Blunts assert
are made subject to dismissal as “legal actions” “based on, related to, or
in response to” that “exercise.”

Serafine, 466 S.W.3d at 365 (Pemberton, J., concurring) (cleaned up).

The obvious way to avoid this type of unintended “game-changer” is to

harmonize the “right to petition” protection of the TCPA with its intended purpose,

which puts that provision in proper context, just like courts have done with the right

to association and the right to free speech. In other words, where the right to petition

involves a matter of public concern, then the TCPA will apply. Otherwise, the TCPA

does not apply. Since this case does not involve a matter of public concern, but only

involves private business matters, the TCPA does not apply, and the trial court’s

denial of Jackson’s motion to dismiss was proper and should be affirmed.

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 /s/ Mike Walach

Mike Wallach
Justice

Delivered: November 18, 2021

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