In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-21-00314-CV
AMYN GILANI, Appellant
V.
‘THOMAS WAYNE RIGNEY AND RIGNEY FINANCIAL SERVICES, LLC,
Appellees
On Appeal from the 48th District Court
Tarrant County, Texas
Trial Court No. 048-324371-21
Before Kerr, Birdwell, and Walker, J].
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
After appellant Amyn Gilani sent a demand letter to appellees Thomas Wayne
Rigney and Rigney Financial Services, LLC (RES), Rigney and RES filed suit against
Gilant seeking declarations to clarify their conduct in relation to several statutory
violations that Gilani had raised in his letter. Gilani moved to dismiss Rigney and
RFS’s suit under the Texas Citizens Participation Act (the TCPA), arguing that the
suit was based on or in response to Gilani’s First Amendment free-speech and
petition rights. The trial court denied the motion. Because we conclude that Rigney
and REFS’s suit was not based on or related to Gilant’s exercising his First Amendment
rights, we affirm the trial court’s denial.
I. BACKGROUND
A. THE DOMAIN NAMES
Rigney is the principal of and a financial advisor at RFS; his wife, Callie Rigney,
is a councilmember on the Colleyville City Council. On February 4, 2021, Gilani filed
as a candidate for Rigney’s wife’s seat on the council. For reasons we need not
discuss, Rigney admitted in an affidavit that he “caused Mrs. Rigney’s campaign .. . to
purchase with a personal credit card” two domain names using Gilani’s name—
amynforcolleyville.com and gilaniforcolleyville.com—on February 5. RES was listed
as the owner of these domain names. Rigney and RES did not activate or use either
domain name. Gilani soon switched to run for a different seat on the council held by
Chuck Kelley, “an open|] ally of Ms. Rigney.” Although not cleat from the record, it
appears that Callie Rigney and Kelley won election to the City Council.
B. THE DEMAND LETTER
On March 16, 2021, Gilant’s attorney sent a demand letter to Rigney and RES
regarding the domain names and asserted that Rigney and RFS had begun a
“disinformation campaign” directed to voters that “alleged false and harmful
information about Mr. Gilant and his Campaign.” Gilani asserted that he had
“unequivocal” evidence that Rigney and RES had violated “various state and federal
laws”—the Anti-Cybersquatting Consumer Protection Act (the ACPA), the Deceptive
Trade Practices Act (the DTPA) for the spread of misinformation, and the “Anti-
Dilution Statute” (the ADS).' Gilant “commanded” that Rigney and RFS tmmediately
turn overt ownership and control of the domain names to Gilani and that Rigney and
RFS tmmediately institute a “LITIGATION DOCUMENT HOLD.” The hold
was to be focused on documents that Gilani asserted were “potentially relevant to
impending litigation”: “[A]ll correspondence, records, files, receipts, voicemails, texts,
and messages related to the Domains, messages from the Domains, acquisition and
utilization of the Domains, the Gilani Campaign, the Kelley Campaign, the Rigney
"See 15 U.S.C.A. § 1125(d) (the ACPA); Tex. Bus. & Com. Code Ann.
§§ 16.103, 17.46 (the ADS and the DTPA). Gilani also raised several claims he
asserted arose under common law: misappropriation of likeness, violation of the right
to publicity, defamation, and business disparagement.
Campaign, and any other circumstances related to the matters described in [the
demand letter].”
RES’s counsel responded to Gilani’s demand letter and requested copies of the
evidence supporting Rigney and RFS’s alleged statutory and common-law violations.
Gilant did not reply. Rigney and RFS preserved all documents “related to the
Domains, including registration and purchase records.” But they asserted that
“li|ndefinite maintenance of a ‘Litigation Hold’ regarding Mr. Gilani’s allegations will
impose a significant cost” mainly because of Rigney’s “voluminous texts and email
communications with [his] wife regarding her campaign” and because the hold
“anterferes with [Rigney’s] and [RFS’s] businesses and ordinary document retention
ptactices and procedures.”
C. THE DECLARATORY-JUDGMENT SUIT
On March 30, Rigney and RES filed suit against Gilani, seeking nine
declarations under the Uniform Declaratory Judgments Act (the UDJA) regarding
theit conduct:
1. Rigney and RFS “are entitled to remove the Litigation Hold” and may
“restore their ordinary document retention practices and procedures”;
2. Rigney and RFS are not “obligated to transfer” the domain names to Gilani;
3. Rigney and RFS have not engaged in deceptive and false use of Gilant’s
likeness by the domain names;
4. Rigney and RES have not violated the ACPA because Gilan1’s name is not a
protectable mark, the mark is not distinctive or famous, or Rigney and RFS did
not have a bad-faith intent to profit from the mark;
5. In the alternative to the fourth requested declaration, Rigney and RES did
not violate the ACPA because they believed or had reasonable grounds to
believe that the alleged use of the domain names was a fair use ot otherwise
law ful;
6. Rigney and RFS did not violate the DTPA because Gilani cannot establish
that he 1s a consumer under the DTPA, that the alleged act or practice was
committed in connection with a purchase or lease of a good or service, that
Rigney or RFS committed a wrongful act, or that their actions were a
producing cause of Gilani’s damages;
7. Rigney and RES did not violate the ADS because Gilani’s name is not a
protectable mark or because Gilani cannot establish that the mark is distinctive
ot famous or that the use of the mark is likely to cause dilution;
8. In the alternative to the seventh requested declaration, Rigney and RPS did
not violate the ADS because any use of Gilani’s name was a fair use, was a
noncommercial use, or constituted news reporting or commentary; and
9. Rigney and RES are entitled to recover their attorneys’ fees.
D. THE MOTION TO DISMISss
On June 4, Gilani filed a partial motion to dismiss most of the declaratory-
judement action under the TCPA, arguing that the suit was based on or in response to
his First Amendment tights to free speech and to petition.2 See Tex. Civ. Prac. &
Rem. Code Ann. § 27.003(a). Gilani also asserted that the trial court did not have
subject-matter jurisdiction over Rigney and RFS’s UDJA suit because the suit sought
an advisory opinion on uncertain, contingent future claims. Gilani’s motion was
*In addition to his TCPA arguments, Gilani sought dismissal based on his
assertion that the trial court lacked subject-matter jurisdiction over the sutt.
partial because he did not seek dismissal of Rigney and RES’s ninth requested
declaration regarding attorneys’ fees.
Rigney and RFS responded that the TCPA did not apply because their
requested declarations were not directed to Gilani’s conduct, but rather to their own
conduct, and because Gilani’s presutt demand letter was not an exercise of his free-
speech or petition rights. In short, they argued that there was no connection between
their suit and Gilant’s exercising his First Amendment rights. Even if the TCPA
applied, Rigley and RFS asserted that they had established a prima facie case for their
UDJA suit.
In reply, Gilani asserted that eight of the requested declarations were “directly
connected to a statement in Gilani’s letter’ and included an illustration of the
argument:
Statements in Gilani’s Demand Letter Declaratory Relief Sought in
Plaintiff's Original Petition
Services LLC, for Place 6; subsequently, Mr. Gilani switched to ran for Place 5 against an openly a . a
ally of Ms Risney Mr ¢ hue Kelley . ENE LAD ILE TELS opens a) Plaintiffs are entitled to remove the [ jon Hold demanded by Mr. Gilani and restore their
“ . ‘ , ordinary dacurment retention practices and procedures;
Regardless of the reasons, however, the conduct here is vielative of variaus state amd
federal laws, including bui not limited to: b) PlaintilTs are net oblipatesd to transfer the Domains to Mir. Gilani;
(1) AntiiCybersquating Comeumer Protection Act as codified under Federal law ar 13.0.8. ey Plaintiffs have not engaged in deceptive and false use of Mr. Gilani’s likeness via the Domains to
Code § 1125 (False designations of erigim, false descriptions. and dilution forbiddem isscimittate false infelnation;
which can make the violating party subject to statutory damages of up to $100,000 for e
donrain; PlaintilTs have not jiglated the AntiaCybersuatting Consumer Protection Act cmlified at 13 15.0
$1123 (the SACRA") Specitically, Mr, Gilami's name docs not constitute a protectable mark. Even
if ilani’ i t le mark, he could not establish that ihe mark is
distinctive or fgtmous or that Plaintiffs had a bad faith intent wo peofit from chat mark, as required by
the statute;
(2) misappropriation of likeness and a violation of the ight of publicity under Texas
common law;
4
ialations af the Deeemtive Trade Practicgs Act for the spread of misinformad.
codified mn Chapter 07 of the Texas Business and Commerce Code, which autharcecs tre She,
damages:
In the alt
ated haxd r
lawful,
tive, Plaincitts did not have 2 bad faith intent te violate the ACPA because they beliewed
asitiable ground to beliewe that the alleged use of the Domains was a fair use or otherwise
(4) defamation by libel and business disparagement wider Texas cormmoan law, and
Plaingltfs have net violated ihe Texas pop Trade Pro 8 Act codified in Chapter 17 of the
ni “eiditiona lly, ir ni cammet
e he cannat
(5) Asti-Dilution Stomte a5 codified under Texas law is Chapter 16 of the Texas Business
and Cort ce Code, whech authorises oyumchwe relic,
Auud aside from unlawful in the ways described above, this yee of underhanded, disgustim:
conduct to impact a local clectiae—and againat a U.S, military veteran—s simply un-American
OF SELWICES, Aalditionalty, Mr. Gilani cannot establish that Plaintit’s
under the DTPA of thai any action by Plaintiffs was a producing cause
Purchasing or leasing
committed amy WroM,
of Mr, Gilani's damage
Thomas Wayne Rigney and Rigney Financial Services LIC, you are each hereby
commended to cease and desist all unlawful conduct against Mr. Gilanl amd bis Campaign,
including bat not limited to ceasing:
Plaintiffs have net violated the Anti-Dilution Statute codified in Chapter 16 of the Texas Husin
and Commence Code, Specific Mr. Gilani’s name does pot constitule a pretectable mark,
if Mr. Gilani’s name constituted a protectable mack, he cowki mot establish that ihe mark is
distinctive or famous or that Plaintiffs use of the mack is likely to cavse the dilution of the mark;
ated
(a) the improper ownership, maintenance, and atilization of the website domains
“amyoforcolleyvillecom” aid “gilaniforeolleyvilke.com" (collectively, the
“Domains™), which constinites “cybersquating”;
i
lisel and business disperagement of Mr. Gilani via online messaging and
eonespondence to voters in the City of Colleyville, which have been clearly intended
hi nthe alternative, Mr, Gilani may mot bring an action under Tex, Bus, & Com, Code § 16.103 for
Ip miainform, mislead, aril wlimately negmtively inact Mr, Cillani's candidacy; 4 ‘ 4 é . . ee
violation of the Anti-Dilution Statute because any use of Plaintiffs’ use of Mr. Gilani’s mame
. - + . constituted a fair use, a noncommercial use of the name, or use for news reporting or commentary.
te) deceptive and false use of the likeness of Mr Gilani via the Domains te dissemimaye Porting ary
falee information; and
ia
illicit M-Kind amd other financial support of Candidates Chuck Kelley fewrrent
opponent for Place 5) and Callic Rigney (Candidate's former opponent for Place 6)
To further show the close connection between the exercise of his First Amendment
rights and Rigney and RES’s suit, Gilani relied on the fact that the declaratory-
judgment suit was filed only fourteen days after he sent his demand letter.
At the July 21 hearing on the dismissal motion, the trial court urged the parties
to attempt to settle, and the parties agreed to continue the hearing until September 15
to allow them to conduct “informal” discovery. See zd. §§ 27.004(c), 27.006(b). When
the parties notified the court that they could not come to an agreement, the trial court
issued a letter to the parties on September 15 stating its decision to deny the motion
and directing Rigney and RES’s counsel to prepare a proposed order, which the trial
court signed on September 29.° Gilani filed a notice of accelerated appeal. See id.
§§ 27.008(b), 51.014 (a) (12).
Il. THE TCPA
A. REVIEW STANDARDS
A defendant-movant seeking the protection of the TCPA must nitially
demonstrate that the claim 1s based on or is in response to the defendant’s exercise of
the right of free speech, to petition, or of assoctation.* See éd. §§ 27.003(a), 27.005(b).
If the TCPA movant does so, the burden shifts to the plaintiffs-nonmovants to
produce clear and specific evidence of a prima facie case for each element of each
asserted claim. See zd. § 27.005(c). If the nonmovants meet their burden, the movant
may still be entitled to dismissal if he establishes an affirmative defense or other
ground on which he is entitled to judgment as a matter of law. See zd. § 27.005(d).
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 zd. § 27.006(a); S ¢ S Emergency Training Sols, Inc. v. Elhott,
°A visiting judge signed the denial order.
*The Legislature recently narrowed the applicability of the TCPA, which
informs our decision today. See, eg., ML Dev, LP v. Ross Dress for Less, Inc, No. 01-20-
00773-CV, 2021 WL 2096656, at *2-3 (Tex. App.—Houston [1st Dist.] May 25, 2021,
no pet.); Amy Bresnen et al., Targeting the Texas Citizen Participation Act: The 2019 Texas
Legislature’s Amendments to a Most Consequential Law, 52 St. Mary’s L.J. 53, 122-23
(2020).
564 S.W.3d 843, 847 (Tex. 2018); Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018).
However, Rigney and RES’s pleadings are “the best and all-sufficient” evidence of the
nature of their claims against Gilani. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017)
(quoting Szockyards Nat'l Bank v. Maples, 95 SW.2d 1300, 1302 (Tex. [Comm’n Op.]
1936)).
B. FIRST INQUIRY: BASED ON ORIN RESPONSE TO FIRST-AMENDMENT RIGHTS
1. Right to Petition
Regarding the right to petition, Gilani argued that the demand letter fell under
the TCPA’s catch-all definition of the right: “[A]ny 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.” Tex. Ctv. Prac. & Rem. Code
Ann. § 27.001(4)(E). The established understanding of the constitutional right to
petition includes presutt demand letters. See Long Canyon Phase II ¢» IT Homeowners
Alss’n, Inc. v. Cashion, 517 S.W.3d 212, 220-21 (Tex. App.—Austin 2017, no pet.); see
also Morice v. Long, No. 06-17-00011-CV, 2017 WL 3081512, at *4 (Tex. App.—
Texarkana July 20, 2017, no pet.) (mem. op.).
Even so, Gilani bore the burden to demonstrate that Rigney and RFS’s UDJA
suit was based on or in response to his right to petition. Gilani argues that he
demonstrated a sufficient connection or nexus between the demand letter and the
requested declarations in Rigney and RFS’s suit. See Tex. Civ. Prac. & Rem. Code
Ann. § 27.005(b); Cheniere Energy, Inc. v. Lotfi, 449 SW.3d 210, 216-17 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (op. on reh’g). The demonstration of a connection
between Gilani’s demand letter and Rigney and RFS’s UDJA suit is an integral part of
our consideration of the applicability of the TCPA. See Mark C. Walker, The Essential
Guide to the Texas Anti-SLAPP Law, the Texas Defamation Mitigation Act, and Ruk 971A,
91 The Advoc. (Tex.) 280, 298 (2020). Indeed, a failure to closely examine this
requirement could lead to an “absurdly broad application” of the TCPA. Id. at 297—
98.
The UDJA permits a person whose tights, status, or other legal relations are
affected by a statute to obtain a declaration of those rights, status, or other legal
telations thereunder in order “to settle and to afford relief from uncertainty and
insecurity.” ‘Tex. Civ. Prac. & Rem. Code Ann. §§ 37.002(b), 37.004(a). The UDJA
“4s to be liberally construed and administered.” Id. § 37.002(b). Here, Rigney and
RES sought declarations from the trial court regarding their own conduct surrounding
the purchase of the domain names, not Gilant’s. In other words, they solely requested
a determination of their duties and obligations under the ACPA, the DTPA, and the
ADS. See Laura Lee Prather & Robert T. Sherwin, The Changing Landscape of the Texas
Citizens Participation Act, 52 ‘Tex. Tech L. Rev. 163, 193-94 (2020) (opining that the
applicability of the TCPA to a UDJA sutt, filed after presuit correspondence, should
be determined by focusing on whether UDJA plaintiff seeks only a declaration of
tights raised by the correspondence or whether coercive, affirmative relief from
injuries is sought). Rigney and RES’s requested relief did not seek to prohibit Gilani
10
from constitutionally protected petitioning activity. See Wells v. Crowell, No. 05-20-
01042-CV, 2021 WL 5998002, at *4-5 (Tex. App.—Dallas Dec. 20, 2021, no pet.)
(mem. op.); Dokefino v. Cypress Creek EMS, 540 SW.3d 194, 200-02 (Tex. App.—
Houston [1st Dist.]| 2017, no pet.). The TCPA does not create a right for a TCPA
movant to usurp the UDJA protections, which are given to anyone whose own tights
ate affected by a statute. See Dokefino, 540 S.W.3d at 201-02. To conclude otherwise
would ignore the TCPA’s recognition that it “does not abrogate or lessen any other
defense, remedy, immunity, or privilege available under other constitutional, statutory,
case, of common law or tule provisions,” such as the UDJA. Tex. Cty. Prac. & Rem.
Code Ann. § 27.011(a); see Dolcefino, 540 S.W.3d at 200-01. It would also ignore one
of the TCPA’s purposes: to “protect the rights of a person to file meritorious lawsuits
for demonstrable injury.” Tex. Ctv. Prac. & Rem. Code Ann. § 27.002.
Thus, although Rigney and RFS’s UDJA suit partially tracked the demand
letter’s asserted statutory violations, as shown in Gilant’s illustration, the clatms were
not based on or in response to Gilani’s exercise of the right to petition. See Sxymonek
v. Guzman, No. 03-20-00569-CV, 2022 WL 406363, at *10 (Tex. App.—Austin
Feb. 10, 2022, no pet. h.); Wells, 2021 WL 5998002, at *4-5; Choudhri v. Lee, No. 01-
20-00098-CV, 2020 WL 4689204, at *3 (Tex. App.—Houston [1st Dist.] Aug. 13,
2020, pet. dented) (mem. op.); Youngblood v. Zaccaria, 608 SW.3d 134, 138-41 (Tex.
App.—San Antonio 2020, pet. dented); Rzges ¢» Ray, P.C. v. State Fair of Tex., No. 05-
17-00973-CV, 2019 WL 4200009, at *3-4 (Tex. App.—Dallas Sept. 5, 2019, pet.
11
denied) (mem. op.); of Jackson v. Kell Auto Sales, Inc, No. 02-21-00106-CV, 2021 WL
5367846, at *2 (Tex. App.—Fort Worth Nov. 18, 2021, no pet.) (mem. op.)
(concluding auto seller’s breach-of-contract counterclaim was not based on or in
tesponse to auto buyer’s right to petition for redress for alleged DTPA and fraud
violations against seller). In other words, Rigney and RFS’s UDJA clatms seek a
determination of the legal principles that the parties should apply in resolving their
various legal disputes; they are not based on or in response to Gilant’s petition rights.
See Choudhri, 2020 WL 4689204, at *3; Riges ¢ Ray, 2019 WL 4200009, at *4. Gilant’s
reliance on the timing of Rigney and RFS’s UDJA suit does not change this
conclusion. See Jackson, 2021 WL 5367846, at *2.
2. Right to Free Speech
Gilant also contends that the demand letter was an exercise of his free-speech
tights and that Rigney and RFS’s UDJA sutt was based on or in response to the letter.
However, for the same reasons we previously discussed regarding Gilant’s petition
tights, Rigney and RFS’s UDJA suit was not based on or in response to Gilant’s
exercising his free-speech rights. ‘Their suit was based on or in response to their own
conduct surrounding the domain names, not Gilani’s conduct in sending the demand
letter. Thus, the TCPA does not apply to the UDJA suit, and we need not address the
other steps in the TCPA analysis. See Riggs e» Ray, 2019 WL 4200009, at *5—6;
Dokefino, 540 S.W.3d at 201-02.
12
II. TRIAL COURT’S JURISDICTION
Gilani asserts, as he did tn the trial court, that Rigney and RPS’s UDJA suit
must be dismissed because of “fatal flaws of subject matter jurisdiction and standing.”
These issues go beyond the limited nature of the permitted interlocutory appeal here.
We have interlocutory appellate jurisdiction solely over a review of the trial court’s
denial of Gilant’s motion to dismiss filed under the TCPA. See Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(12). Gilani’s dismissal arguments that are not based on
the TCPA fall outside this narrow grant of appellate jurisdiction and we may not
address them in this appeal. See, eg., Sasano v. Niemela-Waller, No. 02-20-00378-CV,
2021 WL 3679242, at *2 (Tex. App.—Fort Worth Aug. 19, 2021, no pet.) (mem. op.);
Faweett v. Rogers, 492 S.W.3d 18, 29 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
(op. on teh’g). See generally CMH Homes v. Perez, 340 SW.3d 444, 447 (Tex. 2011)
(“We strictly apply statutes granting interlocutory appeals because they are a narrow
exception to the general rule that interlocutory orders are not tmmeduiately
appealable.”); Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985) (“Unless
there 1s a statute specifically authorizing an interlocutory appeal, the Texas appellate
courts have jurisdiction only over final judgments.”’).
13
IV. CONCLUSION
Because Rigney and RFS’s UDJA claims were not based on or in response to
Gilant’s exercise of his free-speech or petition rights, the T'CPA did not apply.? Thus,
the trial court did not err by denying Gilani’s motion to dismiss under the TCPA. We
cannot address Gilani’s alternative dismissal arguments that do not implicate the
TCPA. We overrule Gilant’s appellate issues and affirm the trial court’s order denying
Gilant’s partial motion to dismiss under the TCPA. See Tex. R. App. P. 43.2(a).
/s/ Brian Walker
Brian Walker
Justice
Delivered: March 10, 2022
"We recognize that the TCPA includes UDJA suits in its definition of a legal
action. Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6). We are not holding that
Rigney and RFS’s UDJA suit is not a legal action subject to the TCPA; we are holding
that their UDJA suit is not based on or in response to Gilani’s demand letter even if
the letter were an exercise of his First Amendment rights. See generally id. § 27.003(a)
(conferring right to file TCPA motion to dismiss if “a legal action is based on or 1s in
response to a party’s exercise of the right of free speech [or] right to petition’).
14