Opinion issued July 20, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00543-CV
———————————
VSMSQ STRUCTURAL ENGINEERS, LLC, STEPHAN P. VOSS, RORY A.
STARLING, MARTIN R. MAINGOT, AND JAY MARTIN, Appellants
V.
STRUCTURAL CONSULTANTS ASSOCIATES, INC., Appellee
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Case No. 2022-19896
OPINION
Appellants—VSMSQ Structural Engineers, LLC (VSMsq), Stephan P. Voss,
Rory A. Starling, Martin R. Maingot, and Jay Martin—filed a motion under the
Texas Citizens Participation Act (TCPA)1 to dismiss the common-law
misappropriation claim filed against them by appellee Structural Consultants
Associates, Inc. (SCA). In its response, SCA argued that, under the commercial-
speech exemption, its misappropriation claim was exempt from the TCPA’s
protections. Appellants asserted that the artistic-work exception to the commercial-
speech exemption applied, thereby excluding the misappropriation claim from the
commercial-speech exemption.
The trial court signed an order denying Appellants’ TCPA motion to dismiss,
citing, inter alia, the commercial-speech exemption as a basis for the denial.
Appellants filed this interlocutory appeal challenging the order.2 Because SCA met
its burden to show that the commercial-speech exemption applied to its
misappropriation claim, and Appellants did not prove that the artistic-work
exception applied, we affirm the trial court’s order denying Appellants’ TCPA
motion to dismiss.
Background
On April 22, 2022, SCA filed suit against Appellants. In its original petition,
SCA described itself as “a structural engineering firm located in Sugar Land, Texas,
1
See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011.
2
TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12) (permitting interlocutory appeal of
order denying TCPA motion to dismiss).
2
who has become an industry leader in structural design and engineering services for
both national and international clients.” Appellants Voss, Starling, Maingot, and
Martin were previously employed by SCA. Voss, Martin, and Maingot were hired
by SCA as engineers, and Starling was hired as a drafter. SCA later appointed Voss
and Martin to be executives of SCA. Martin resigned from SCA in March 2020, and
Voss, Starling, Maingot resigned in March 2022.
SCA alleged that it discovered that Voss, Starling, Maingot, and Martin had
formed VSMsq—an engineering services company—in January 2022, before Voss,
Starling, and Maingot resigned. SCA described VSMsq as “a market competitor.”
SCA asserted that Voss, Starling, and Maingot took “highly valuable
confidential and proprietary information” from SCA to use for VSMsq’s benefit.
SCA alleged that Voss, Starling, and Maingot had met with SCA’s clients while
employed by SCA to secure business for VSMsq. SCA claimed that Voss, Starling,
and Maingot had “approached dozens of SCA employees to lure them away from
[SCA] by making outlandish and fraudulent misrepresentations that SCA was going
[out of business].” SCA further alleged that, shortly after Voss, Starling, and
Maingot resigned, SCA learned that its “most consistent client, Hanover Company,
had entered into agreements with Voss and VSMsq whereby Hanover Company
hired VSMsq to perform engineering consulting services.” SCA alleged that the
3
“timing of these agreements show[ed] that negotiations between [Appellants] and
Hanover had occurred prior to” the resignations of Voss, Starling, and Maingot.
According to SCA, its discovery of the Hanover agreements led it to VSMsq’s
website. There, SCA saw that Appellants were posting images of buildings that had
been engineered by SCA. SCA claimed that Appellants were using the images of the
buildings “to promote [VSMsq’s] engineering services on its website: VSMsq.com.”
SCA included a screenshot from VSMsq’s website in its petition. The screenshot
showed an image of a building engineered by SCA with the label “Project Types
Engineered by VSM[sq].” SCA asserted that Appellants were representing that the
buildings depicted in the image had been engineered by VSMsq. SCA alleged that
“VSMsq’s use of the above referenced building projects was done with the intention
of deceiving the public and potential clients into falsely believing that Defendant
VSMsq was the entity who developed and created the building projects.” SCA
claimed that “VSMsq ha[d] gained special advantage in its competition with [SCA]
through the use of these building projects and engineering design[s], because
Defendant VSMsq [was] burdened with little or none of the expense incurred by
Plaintiff SCA in creating the respective building plans.” SCA asserted that “VSMsq
knew that these building projects were created by Plaintiff SCA at the time the
images were placed on [VSMsq’s] website [because] Defendants Voss, Starling,
4
Maingot, and Martin, the owners and agents of Defendant VSMsq, worked on the
above referenced building projects for SCA during their employment with [SCA].”
SCA asserted 11 causes of action against Appellants. Of those, the only cause
of action relevant here is SCA’s common-law misappropriation claim.3 The
misappropriation claim arose from Appellants’ posting of the images of buildings
engineered by SCA on VSMsq’s website for the purpose of promoting Appellants’
engineering services. SCA asserted that Appellants had “used [SCA’s] building
projects knowingly and willfully, with the intent to mislead the public and cause
confusion and mistake and have actively deceived customers in doing so.” SCA
alleged that Appellants “specifically attempted to pass off [SCA’s] services as its
own” and that those “actions are known as ‘reverse-passing off’ and constitute[]
unfair competition.” SCA claimed that, as a result of those actions, it had “incurred
and will continue to incur substantial monetary damages in the form of lost business,
profit, and revenue.” SCA also sought injunctive relief.
On May 6, 2022, Appellants filed their “Original Answer and Counterclaims.”
They generally denied SCA’s claims, raised several affirmative defenses, and
counterclaimed for back-wages and unpaid vacation.
3
SCA also asserted a cause of action for “statutory misappropriation of trade secret
and confidential information,” but any reference to SCA’s misappropriation cause
of action or claim refers to its common-law misappropriation cause of action.
5
On May 11, 2022, SCA filed an application for a temporary restraining order
(TRO) based on its common-law misappropriation claim. SCA asked the trial court
“to issue a temporary restraining order ordering Defendant VSMsq to remove
references of SCA projects, products, and services from VSMsq.com.” The next day,
the parties entered into a Rule 11 agreement in which SCA agreed to forgo the TRO
hearing, and Appellants agreed “to remove any and all depictions of, or references
to, the SCA Building Projects from VSMsq.com within forty-eight (48) hours of the
execution of this Rule 11 Agreement.”
On May 27, 2022, Appellants filed a TCPA motion to dismiss SCA’s
common-law misappropriation cause of action. Appellants asserted that SCA’s
“claim for common law misappropriation should be dismissed because it is based on
or is in response to defendants’ exercise of their right of free speech.” They argued
that the TCPA applied to the misappropriation claim because it was “based on or
[was] in response to a communication made by [them] in connection with a matter
of public concern.” Appellants further asserted that SCA could not establish a prima
facie case for each essential element of SCA’s common-law misappropriation claim.
On June 21, 2022, SCA filed its first amended petition. Although SCA added
some additional language, the operative facts regarding the common-law
misappropriation claim remained the same in the amended pleading.
6
In support of the first amended petition, SCA attached the affidavit of its Chief
Executive Officer, Mark Shepard. That same day, SCA filed its response to
Appellants’ TCPA motion. Among its supporting evidence, SCA offered its first
amended petition and Shepard’s affidavit.
SCA asserted that its misappropriation claim was exempt from the TCPA’s
application based on several statutory exemptions, including the commercial-speech
exemption. SCA also asserted that Appellants had failed to show that the TCPA
applied to its misappropriation claim because Appellants’ “pursuit of their new
business [was] not a matter of . . . public concern.” And SCA claimed that
Appellants’ motion should be denied because SCA offered clear and specific
evidence to establish a prima facie case for each element of its misappropriation
claim.
At the hearing on the TCPA motion, Appellants continued to assert that the
TCPA applied to SCA’s common-law misappropriation claim because the claim was
based on or in response to the exercise of their free-speech rights. They argued that
the subject matter of the claim was a matter of public concern. They also asserted
that the commercial-speech exemption did not apply based on the artistic-work
exception to that exemption found in TCPA subsection 27.010(b)(1). Appellants
pointed out that SCA had mistakenly argued in its response that the artistic-work
exception was an exemption to the TCPA rather than an exception to the exemption.
7
The trial court denied Appellants’ TCPA motion to dismiss SCA’s common-
law misappropriation claim. In its order, the trial court stated that, “[a]lthough [SCA]
did not present prima facie evidence of its common law misappropriation claim,”
the court found that the TCPA did not apply based on the commercial-speech
exemption. The trial court also indicated that Appellants had not met the public-
concern requirement necessary to establish that the misappropriation claim had been
based on or in response to the exercise if their free-speech rights.
This interlocutory appeal followed. Appellants raise three issues challenging
the trial court’s order denying their TCPA dismissal motion.
Denial of TCPA Motion
Because it is dispositive, we begin with Appellants’ second issue in which
they contend that “SCA fail[ed] to show that its common law misappropriation claim
is exempt from the TCPA” under the commercial-speech exemption.
A. Standard of Review
The TCPA “protects speech on matters of public concern by authorizing
courts to conduct an early and expedited review of the legal merit of claims that seek
to stifle speech through the imposition of civil liability and damages.” Lilith Fund
for Reprod. Equity v. Dickson, 662 S.W.3d 355, 363 (Tex. 2023). “That protection
comes in the form of a special motion to dismiss . . . for any suit that appears to stifle
8
the defendant’s exercise of those rights.” Youngkin v. Hines, 546 S.W.3d 675, 679
(Tex. 2018) (internal quotation marks omitted).
We review de novo the denial of a TCPA motion to dismiss. Holcomb v.
Waller Cnty., 546 S.W.3d 833, 839 (Tex. App.—Houston [1st Dist.] 2018, pet.
denied). We likewise interpret the TCPA and decide whether it applies to a legal
action de novo. See Youngkin, 546 S.W.3d at 680. When determining “whether a
legal action is subject to or should be dismissed” under the TCPA, we “consider the
pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil
Procedure, and supporting and opposing affidavits stating the facts on which the
liability or defense is based.” TEX. CIV. PRAC. & REM. CODE § 27.006(a). We view
the pleadings and evidence in the light most favorable to the nonmovant. Kassab v.
Pohl, 612 S.W.3d 571, 577 (Tex. App.—Houston [1st Dist.] 2020, pet. denied).
B. The Commercial-Speech Exemption Applies
The TCPA provides a mechanism for dismissal of a “legal action” that is
“based on or is in response to” a party’s exercise of one of the rights listed in TCPA
section 27.005(b), including the party’s exercise of its right of free speech. See TEX.
CIV. PRAC. & REM. CODE §§ 27.003(a), 27.005(b)(1)(A). A party may also file a
motion to dismiss a legal action “aris[ing] from any act of that party in furtherance
of the party’s communication or conduct described by Section 27.010(b),” which
includes subsection 27.010(b)(1), a provision discussed below. See id. § 27.003(a).
9
The TCPA defines “legal action” to include a cause of action. Id. § 27.001(6).
However, the TCPA expressly exempts qualifying commercial speech from its
application. Specifically, the TCPA does not apply to
a legal action brought against a person primarily engaged in the
business of selling or leasing goods or services, if the statement or
conduct arises out of the sale or lease of goods, services, or an insurance
product, insurance services, or a commercial transaction in which the
intended audience is an actual or potential buyer or customer[.]
Id. § 27.010(a)(2).
The Supreme Court of Texas has identified four elements that must be met for
the commercial-speech exemption to apply:
(1) the defendant was primarily engaged in the business of selling or
leasing goods or services;
(2) the defendant made the statement or engaged in the conduct on
which the claim is based in its capacity as a seller or lessor of those
goods and services;
(3) the statement or conduct at issue arose out of a commercial
transaction involving the kind of goods or services that the
defendant provides; and
(4) the intended audience of the statement or conduct were actual or
potential customers of the defendant for the kind of goods or
services the defendant provides.
Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018).
As the party asserting the commercial-speech exemption, SCA had the burden
to prove the exemption’s application. See Schmidt v. Crawford, 584 S.W.3d 640,
653 (Tex. App.—Houston [1st Dist.] 2019, no pet.). If the commercial-speech
10
exemption applied, the trial court “ha[d] no choice but to deny the motion.” See N.
Cypress Med. Ctr. Operating Co. GP v. Norvil, 580 S.W.3d 280, 284 (Tex. App.—
Houston [1st Dist.] 2019, pet. denied). The trial court stated in its order that the
commercial-speech exemption was a basis for its denial of the motion.
Regarding the first Castleman element, the TCPA record showed that
Appellants were primarily engaged in the business of selling or leasing goods or
services, namely, engineering services. See Castleman, 546 S.W.3d at 688. In his
affidavit, Shepard testified that he had “discovered that Defendant Stephan P. Voss,
Defendant Rory A. Starling, Defendant Martin R. Maingot, and Defendant Jay
Martin had founded VSMsq, an engineering firm in competition with SCA,” which
Shepard described as structural engineering firm. “Notably, the exemption’s plain
text requires the defendant to be primarily engaged in the business of selling goods
or services, not primarily engaged in the act of selling.” Rose v. Scientific Mach. &
Welding, Inc., No. 03-18-00721-CV, 2019 WL 2588512, at *4 (Tex. App.—Austin
June 25, 2019, no pet.) (mem. op.). Because they were involved in the founding of
VSMsq, and worked for the company, it is reasonable to conclude that Voss,
Starling, Maingot, and Martin were also “primarily engaged” in VSMsq’s business
of providing engineering services. See Hieber v. Percheron Holdings, LLC, 591
S.W.3d 208, 212 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (“[T]he
exemption can apply even though the movant is just an employee.”); Rose, 2019 WL
11
2588512, at *5 (concluding that “high-level executive of a company that primarily
designs and sells manufactured items to customers is also ‘primarily engaged’ in that
type of business”).
The second Castleman element requires that Appellants engaged in the
complained-of conduct in their capacity as sellers of VSMsq’s services. See
Castleman, 546 S.W.3d at 688. To determine whether Appellants engaged in the
conduct in this capacity, we consider the context in which the conduct was
performed. See Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 481 (Tex. App.—
Houston [1st Dist.] 2020, pet. dism’d). In both its original and first amended
petitions, SCA alleged that VSMsq, was a “market competitor,” which had “used
images of SCA building projects to promote the company’s engineering services on
its website: VSMsq.com.” SCA alleged that Appellants had “intentionally used” the
building projects on VSMsq’s website “to deceive the public and potential clients
into falsely believing that Defendant VSMsq was the entity who developed and
created the building projects.” Because the allegations concern Appellants’ conduct
in marketing their services and securing customers, we conclude Appellants engaged
in the complained-of conduct as sellers of VSMsq’s engineering services. See
Panton Inc. v. Bees360, Inc., No. 01-20-00267-CV, 2021 WL 3868773, at *11 (Tex.
App.—Houston [1st Dist.] Aug. 31, 2021, no pet.) (mem. op.) (determining that
12
second Castleman element was satisfied where defendants were marketing services
allegedly using plaintiff’s “confidential material” on defendants’ company website).
The third Castleman element requires that the complained-of statement or
conduct arise out of a commercial transaction involving the kind of goods or services
the defendant provides. See Castleman, 546 S.W.3d at 688, 690; see also Giri v.
Estep, No. 03-17-00759-CV, 2018 WL 2074652, at *4 (Tex. App.—Austin May 4,
2018, pet. denied) (mem. op.) (noting requirement that statement or conduct at issue
“arose out of” commercial transaction means that it “results, issues, or proceeds”
from sale or commercial transaction). As alleged by SCA in its pleadings, Appellants
were “us[ing] images of SCA building projects to promote [VSMsq’s] engineering
services on [VSMsq’s] website” for the purpose of obtaining customers and luring
away SCA’s customers. See Panton, 2021 WL 3868773, at *11 (determining that
third Castleman element was met where pleadings alleged that defendants were
“allegedly . . . using [plaintiff’s] misappropriated confidential information as part of
their marketing efforts to siphon off [plaintiff’s] business for [defendants’] financial
benefit”). These allegations sufficiently established that the complained-of conduct
arose out of a commercial transaction involving the kind services Appellants
provide, satisfying the third Castleman element. See 546 S.W.3d at 688; see also
Rose, 2019 WL 2588512, at *6 (stating “commercial transaction” need not be
13
consummated and can include conduct or statements that merely propose
commercial transaction).
The last element requires that “the intended audience of the statement or
conduct were actual or potential customers of the defendant for the kind of goods or
services the defendant provides.” Castleman, 546 S.W.3d at 688. As mentioned,
SCA alleged in its pleadings that Appellants used images of SCA’s building projects
on its website along with the caption “Project Types Engineered by VSM[sq]” to
promote the company’s engineering services. SCA also alleged that Appellants were
targeting “potential clients” to make them falsely believe that VSMsq had
“developed and created the building projects.” SCA alleged that Appellants’ use of
the images had caused “consumers of [SCA’s] services”—which were the same type
of services offered by VSMsq—“to become confused.” Thus, the TCPA record
sufficiently established the last Castleman element—that the intended audience of
the images of SCA’s building projects on VSMsq’s website were Appellants’ actual
or potential customers of its engineering services. See id.
On appeal, Appellants argue that the commercial-speech exemption does not
exempt SCA’s misappropriation claim from the TCPA’s application because the
TCPA applies to the claim pursuant to subsection 27.010(b)(1), which provides:
(b) Notwithstanding [the commercial-speech exemption and two other
listed exemptions], the [TCPA] applies to:
14
(1) a legal action against a person arising from any act of that
person, whether public or private, related to the gathering,
receiving, posting, or processing of information for
communication to the public, whether or not the information is
actually communicated to the public, for the creation,
dissemination, exhibition, or advertisement or other similar
promotion of a dramatic, literary, musical, political, journalistic,
or otherwise artistic work, including audio-visual work
regardless of the means of distribution, a motion picture, a
television or radio program, or an article published in a
newspaper, website, magazine, or other platform, no matter the
method or extent of distribution[.]
TEX. CIV. PRAC. & REM. CODE § 27.010(b)(1). Appellants correctly assert that, when
the TCPA applies to a legal action pursuant to subsection 27.010(b)(1), the
commercial-speech exemption does not exempt the legal action from the TCPA’s
application. See id. In other words, subsection 27.010(b)(1) provides an exception—
the artistic-work exception—to the commercial-speech exemption for “dramatic,
literary, musical, political, journalistic, or otherwise artistic work” when the other
elements of subsection 27.010(b)(1) are met.4
Appellants had the burden to show that the TCPA applied to SCA’s common-
law misappropriation claim pursuant to subsection 27.010(b)(1) and, thus, also had
the burden to show that the artistic-work exception removed the claim from the
commercial-speech exemption’s reach. See Welsh v. River Hollow Ass’n, 654
4
As mentioned above, a TCPA movant may meet its initial burden to show that the
TCPA applies to the challenged legal action by proving that the legal action “arises
from any act of that party in furtherance of the party’s communication or conduct
described by section 27.010(b).” See TEX. CIV. PRAC. & REM. CODE § 27.003(a).
15
S.W.3d 505, 509 (Tex. App.—Houston [14th Dist.] 2022, pet. denied) (explaining
that only movant bears burden to show TCPA applies). Although they did not assert
in their dismissal motion that the TCPA applied to SCA’s misappropriation claim
based on subsection 27.010(b)(1), Appellants made that argument at the TCPA
hearing. See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex.
2018) (stating that raising argument regarding TCPA’s applicability at hearing on
TCPA motion sufficiently preserved that argument for appellate review). Appellants
concomitantly argued that the misappropriation claim was excepted from the
commercial-speech exemption based on subsection 27.010(b)(1).
As discussed, SCA’s misappropriation claim arose from Appellants’ conduct
of posting images of buildings structurally engineered by SCA on VSMsq’s website
for the purpose advertising and promoting Appellants’ engineering services.
Appellants assert that, because they incorporated SCA’s structural engineering
designs, the buildings depicted in the images on VSMsq’s website were “artistic
works,” as that term is used in subsection 27.010(b)(1).
Appellants point out that SCA raised subsection 27.010(b)(1) in its response
to the dismissal motion. Misreading the statute, SCA had incorrectly argued in its
response that subsection 27.010(b)(1) contained an exemption to the TCPA (rather
than an exception to the exemption). In making this incorrect argument, SCA stated
that “[t]he SCA building project engineering designs, and the buildings themselves,
16
[were] artistic works.” On appeal, Appellants contend that “[s]uch statement is a
judicial admission and conclusively establishes the issue.”
“Assertions of fact, not plead[ed] in the alternative, in the live pleadings of a
party are regarded as formal judicial admissions.” Holy Cross Church of God in
Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (quoting Hous. First Am. Sav. v.
Musick, 650 S.W.2d 764, 767 (Tex. 1983)). Only assertions of fact can be judicially
admitted. Rayner v. Claxton, 659 S.W.3d 223, 245 (Tex. App.—El Paso 2022, no
pet.). “A party may not judicially admit a question of law.” H.E. Butt Grocery Co.
v. Pais, 955 S.W.2d 384, 389 (Tex. App.—San Antonio 1997, no pet.); see Rayner,
659 S.W.3d at 246 (holding that duty of care was question of law that could not be
judicially admitted).
Like all matters of statutory construction, whether the buildings structurally
engineered by SCA depicted in the images on VSMsq’s website qualify as “artistic
works,” as that term is used in subsection 27.010(b)(1), is a question of law, not a
question of fact. See Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.
2002) (“Statutory construction is a question of law for the court to decide.”); see also
Union Pac. R.R. Co. v. Chenier, 649 S.W.3d 440, 444 (Tex. App.—Houston [1st
Dist.] 2022, pet. denied) (“Whether the TCPA applies is an issue of statutory
interpretation . . . .”). Because SCA could not judicially admit a question of law,
17
SCA’s statement that “[t]he SCA building project engineering designs, and the
buildings themselves, [were] artistic works” was not a judicial admission.
The TCPA does not define the term “artistic work,” and no Texas caselaw
discusses its meaning. When the Legislature does not define a statutory term, we
“use tools of statutory construction to determine its meaning.” City of San Antonio
v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003). Under the rules of construction,
“we ascertain and give effect to the Legislature’s intent as expressed in the language
of the statute.” State ex rel. Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018).
Subsection 27.010(b)(1)’s use of the modifier “otherwise” before the term
“artistic work” invokes the ejusdem generis canon of construction, which limits the
scope of the catchall language to the same class or category as the specific items that
precede it. See In re Millwork, 631 S.W.3d 706, 712 (Tex. 2021) (citing Ross v. St.
Luke’s Episcopal Hosp., 462 S.W.3d 496, 504 (Tex. 2015)). “In a similar fashion,
the noscitur a sociis canon of construction provides that words must be construed in
context to comport with the surrounding text.” Id. at 212–13 (citing U.S. Fid. &
Guar. Co. v. Goudeau, 272 S.W.3d 603, 606 (Tex. 2008)). Here, “otherwise artistic
work” follows a list of specific types of artistic works, namely, “dramatic, literary,
musical, political, [and] journalistic [works].” TEX. CIV. PRAC. & REM. CODE
§ 27.010(b)(1). Under the doctrine of ejusdem generis, we limit the application of
the general phrase “otherwise artistic work” to the type of artistic work characterized
18
by “dramatic, literary, musical, political, [and] journalistic [works].” See City of San
Antonio, 111 S.W.3d at 29.
We note that “art” may be defined as (1) a “[c]reative expression, or the
product of creative expression” or as (2) “[a]n occupation or business that requires
skill; a craft.” See Art, BLACK’S LAW DICTIONARY (11th ed. 2019). Here, the listed
“dramatic, literary, musical, political, [and] journalistic [works]” are best
characterized as creative expressions or products of creative expressions that convey
or express information, messages, or ideas. This characterization is supported by the
examples of specific artistic works listed in subsection 27.010(b)(1), namely,
“audio-visual work . . . , a motion picture, a television or radio program, or an article
published in a newspaper, website, magazine, or other platform.” See TEX. CIV.
PRAC. & REM. CODE § 27.010(b)(1).
Appellants assert that “engineering has long been recognized to be an art form
in addition to a scientific endeavor.” But Appellants provided no definition or
description of what the structural engineering here entailed or what was involved in
the preparation of the structural engineering designs incorporated into the buildings
depicted on VSMsq’s website. We note that SCA’s first amended petition states that
SCA’s “engineering designs” for the buildings depicted on VSMsq’s website
“specif[ied] the structural requirements necessary to implement the architectural
design for the respective buildings.” That description connotes no element of
19
creative expression. While structural engineering may be an art in the sense that it is
an occupation that requires skill, and the engineering designs may have some artistic
qualities, the record contains no indication that the buildings are “artistic works” in
the sense that the engineering aspects of the buildings are of the same or similar
character as “dramatic, literary, musical, political, [or] journalistic [works].”5 See id.
****
We conclude that SCA met its burden to show that the commercial-speech
exemption applied to its common-law misappropriation claim. We also conclude
that Appellants failed to meet their burden to show that the TCPA applied to the
claim under subsection 27.010(b)(1) and thus failed to show that the artistic-work
exception to the commercial-speech exemption applied. Accordingly, we hold that
the trial court did not err in denying Appellants’ motion to dismiss SCA’s
misappropriation claim.
5
We note that California’s anti-SLAPP statutes contain an artistic-work exception
similar to the one found in subsection 27.010(b)(1). See CAL. CIV. PROC. CODE
§ 425.17(d)(2). In City of Rocklin v. Legacy Family Adventures-Rocklin, LLC, the
California Court of Appeals for the Third Appellate District upheld the trial court’s
determination that a theme park was not an “artistic work” for purposes of that
state’s artistic-work exception. 303 Cal. Rptr. 3d 52, 68 (Cal. Ct. App. 2022). The
trial court based its determination, in part, on the doctrine of ejusdem generis. See
id. The Court of Appeals stated that a theme park “is not of the same or similar
character” as dramatic, literary, musical, or political works. Id. “While [a theme
park] may have artistic qualities, that does not make it an artistic work.” Id. The
court explained that, “while the parameters of what constitutes art may not be
precisely clear, not everything can be called art.” Id.
20
We overrule Appellants’ second issue.6
Conclusion
We affirm the order of the trial court denying Appellants’ TCPA motion to
dismiss SCA’s common-law misappropriation claim.
Richard Hightower
Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
6
Because the trial court properly denied the dismissal motion based on the
commercial-speech exemption, we need not consider Appellants’ two remaining
issues challenging the order. See TEX. R. APP. P. 47.1.
21