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
Before Kerr, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Walker
Concurring Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Appellant Candice Jackson appeals from the trial court’s order denying her
motion to dismiss appellee Kell Auto Sales, Inc.’s breach-of-contract counterclaim
under the Texas Citizens Participation Act (the TCPA). Because Kell Auto’s
counterclaim was not based on or in response to Jackson’s right to petition, the TCPA
does not apply; thus, we affirm the trial court’s denial.
I. BACKGROUND
On September 4, 2019, Jackson bought a used truck “as is” from Kell Auto.
Appellee Robert I. Harmon was the primary salesman that sold the truck to Jackson.1
Harmon told Jackson that the truck would be taken to Texoma Fleet the next day for
an inspection and for any needed repairs. Jackson wanted immediate possession of
the truck and stated that she would arrange to have the truck inspected and repaired
by Texoma Fleet. But Jackson instead took the truck to Dearmond’s Service Center,
where the truck failed the inspection. Jackson returned to Kell Auto and asked for
the return of her purchase money. Harmon told Jackson that if she would take the
truck to Texoma Fleet, the needed repairs would be made at Kell Auto’s expense.
Jackson made an appointment with Texoma Fleet, but she did not show up for the
appointment.
Harmon died during this appeal. See Tex. R. App. P. 7.1(a)(1).
1
2
On June 16, 2020, Jackson sued Kell Auto and Harmon for violations of the
Deceptive Trade Practices Act (DTPA) and for fraud; she raised a negligent
supervision claim against Kell Auto. Kell Auto and Harmon answered, specially
excepted to the petition, and raised affirmative defenses. Jackson then filed a no-
evidence motion for summary judgment regarding Kell Auto and Harmon’s
affirmative defenses. Shortly thereafter, Kell Auto and Harmon amended their
answer to additionally seek declaratory relief on Jackson’s DTPA claim because she
had not given timely written notice of her claim before filing suit. Kell Auto also
raised a breach-of-contract counterclaim against Jackson based on her alleged failure
to take the truck to Texoma Fleet for inspection and any needed repairs.2 Kell Auto
and Harmon responded to Jackson’s summary-judgment motion and attached four
affidavits as proof. The trial court denied Jackson’s no-evidence motion.
Jackson then moved to dismiss Kell Auto and Harmon’s declaratory-relief
counterclaim under Rule 91a and to dismiss Kell Auto’s breach-of-contract
counterclaim under the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a);
Tex. R. Civ. P. 91a. Kell Auto and Harmon filed a response to the dismissal motions
and moved for summary judgment on Jackson’s claims on the basis that she had failed
to mitigate her damages. The trial court denied Jackson’s “Motion to Dismiss.”
2
Jackson repeatedly states that the breach-of-contract counterclaim was alleged
by Kell Auto and Harmon. However, only Kell Auto raised the breach-of-contract
counterclaim against Jackson.
3
Jackson filed a motion to modify, correct, or reform the order to clarify which
motion to dismiss had been ruled on—the motion based on Rule 91a or the motion
based on the TCPA. The trial court entered an amended order, specifying that it was
denying both Jackson’s motion to dismiss Kell Auto’s breach-of-contract
counterclaim under the TCPA and Jackson’s motion to dismiss Kell Auto and
Harmon’s declaratory-relief counterclaim under Rule 91a. Jackson then noticed her
interlocutory appeal of the trial court’s TCPA denial. See Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(a)(12).
II. THE TCPA
A. REVIEW STANDARDS
A counterdefendant seeking the protection of the TCPA must initially
demonstrate that the counterclaim is based on or is in response to the
counterdefendant’s exercise of the right of free speech, to petition, or of association.3
See id. § 27.005(b). If the TCPA movant does so, the burden shifts to the
counterplaintiff-nonmovant to produce clear and specific evidence of a prima facie
case for each element of the counterclaim. See id. § 27.005(c). If the nonmovant
meets its burden, the movant may still be entitled to dismissal if she establishes an
affirmative defense or other ground on which she is entitled to judgment as a matter
of law. See id. § 27.005(d).
Because Jackson filed her petition after September 1, 2019, the current version
3
of the TCPA applies. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11.
4
We review the trial court’s interpretation of this statutory framework de novo
and must consider the pleadings, any evidence that a court could consider on
summary judgment, and any submitted affidavits stating the facts on which liability or
a defense is based. See id. § 27.006(a); S & S Emergency Training Sols., Inc. v. Elliott,
564 S.W.3d 843, 847 (Tex. 2018); Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018).
However, Kell Auto’s pleadings are “the best and all-sufficient” evidence of the
nature of its counterclaim against Jackson. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex.
2017) (quoting Stockyards Nat’l Bank v. Maples, 95 S.W.2d 1300, 1302 (Tex. [Comm’n
Op.] 1936)).
B. FIRST INQUIRY: BASED ON OR IN RESPONSE TO THE RIGHT TO PETITION
On appeal, Jackson asserts she initially demonstrated that Kell Auto’s
counterclaim was based on her exercising the right to petition. The TCPA defines the
right to petition as a communication “in or pertaining to a judicial proceeding.” Tex.
Civ. Prac. & Rem. Code Ann. § 27.001(4)(A)(i). A communication is defined as “the
making or submitting of a statement or document.” Id. § 27.001(1). Jackson
contends that Kell Auto’s counterclaim was retaliatory to prevent her from seeking
relief from the court for Kell Auto’s fraud, DTPA violations, and negligent
supervision. Jackson posits that Kell Auto’s retaliatory motive is shown by the fact
that it raised the breach-of-contract counterclaim at the end of discovery and shortly
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after Jackson had filed a summary-judgment motion directed to Kell Auto and
Harmon’s affirmative defenses.4
Kell Auto alleged that a condition of its immediate-possession sale to Jackson
was the requirement that Jackson take the truck to Texoma Fleet for inspection and
any needed repairs. Because Jackson failed to do so, Kell Auto contended that she
had breached the purchase contract, resulting in damages and attorney’s fees. Kell
Auto did not mention Jackson’s claims against it in its statement of the counterclaim.
Kell Auto’s factual allegations were solely concerned with communications occurring
before, outside of, and unrelated to Jackson’s later claims against Kell Auto; thus,
Jackson did not demonstrate that Kell Auto’s counterclaim was based on or related to
her right to petition for redress. See Howard v. Matterhorn Energy, LLC, 628 S.W.3d
319, 330 (Tex. App.—Texarkana 2021, no pet.) (op. on reh’g); Republic Tavern & Music
Hall, LLC v. Laurenzo’s Midtown Mgmt., LLC, 618 S.W.3d 118, 124–25 (Tex. App.—
Houston [14th Dist.] 2020, no pet.); Marrujo v. Wisenbaker Builder Servs., Inc., No. 01-19-
00056-CV, 2020 WL 7062318, at *9 (Tex. App.—Houston [1st Dist.] Dec. 3, 2020, no
pet.) (mem. op.); cf. Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127,
137 (Tex. 2019) (concluding counterclaim alleging plaintiff had breached lease by
commencing litigation was in response to plaintiff’s exercise of the right to petition
4
Jackson also argues that the improper motive is shown by Kell Auto’s failure
to request damages in its counterclaim. However, Kell Auto clearly pleaded for
damages: “Jackson[’]s breach of contract has caused damages to Kell Auto in excess
of the minimum jurisdictional amounts of this Court.”
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and was subject to TCPA dismissal). In other words, Kell Auto’s counterclaim was
not directed to Jackson’s right to file a meritorious lawsuit for demonstrable injury
and, thus, falls outside the purpose of the TCPA protection. See Tex. Civ. Prac. &
Rem. Code Ann. § 27.002. Jackson’s contention that the timing of Kell Auto’s
counterclaim demonstrates that it was based on or in response to her suit is too
speculative to disturb our conclusion. See Beving v. Beadles, 563 S.W.3d 399, 408–09
(Tex. App.—Fort Worth 2018, pet. denied); cf. Youngblood v. Zaccaria, 608 S.W.3d 134,
141 (Tex. App.—San Antonio 2020, pet. denied) (“To conclude under this record that
the declaratory action was filed in response to statements made during the mediation
would expand the TCPA’s application to all lawsuits where the parties engage in a pre-
suit mediation.”). We need not address the remaining steps of the TCPA analysis.
III. CONCLUSION
Jackson did not demonstrate that Kell Auto’s breach-of-contract counterclaim
was based on or in response to her right to petition the courts for Kell Auto’s alleged
fraud, DTPA violations, and negligent supervision. Thus, the trial court did not err by
denying Jackson’s motion to dismiss. We overrule Jackson’s appellate issue and
affirm the trial court’s amended order denying Jackson’s motion to dismiss Kell
Auto’s breach-of-contract counterclaim under the TCPA. See Tex. R. App. P. 43.2(a).
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/s/ Brian Walker
Brian Walker
Justice
Delivered: November 18, 2021
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Candice Jackson v. Kell Auto Sales, Inc. and Robert I. Harmon
Combined Opinion