633 S.W.3d 263
Tex. App.2021Background
- In 2015–2018 former NFL players Earl Campbell and Gary Baxter (through Project Rose and Touchdown Interception) contracted with Texas Spine and Joint to develop and operate a high‑profile sports medicine facility in Tyler, Texas; the venture generated substantial media/public interest.
- Rose alleges it performed consulting, marketing, and development services but was not paid; Texas Spine and Joint allegedly sold a controlling interest to entities affiliated with Baylor Scott & White (BSW), then repudiated Rose’s agreements.
- Rose counterclaimed against Texas Spine and Joint and third‑party defendants including BSW for fraud, tortious interference, trade‑secret misappropriation (TUTSA/TTLA), unfair competition, unjust enrichment, promissory estoppel, quantum meruit, money had and received, civil conspiracy, aiding/abetting breaches of fiduciary duty, and a declaratory judgment.
- BSW moved to dismiss Rose’s counterclaim under the Texas Citizens Participation Act (TCPA); the trial court denied the motion and refused to rule on certain evidentiary objections.
- On interlocutory appeal, the court analyzed (1) whether the TCPA applies, (2) applicability of statutory exemptions (fraud, misappropriation), (3) whether Rose met the TCPA’s prima facie‑by‑clear‑and‑specific‑evidence burden on non‑exempt claims, and (4) whether BSW established an entitlement to judgment as a matter of law (including misidentification of the proper defendant).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the TCPA apply to Rose’s counterclaims? | Rose: this is a private contract/tort dispute not implicating public concern, so TCPA shouldn't apply. | BSW: communications and agreements concerning public‑figure owners and a widely publicized facility are communications on a matter of public concern, so TCPA applies. | Held: TCPA applies — communications related to celebrity owners and a publicly‑reported world‑class facility have at least a tangential relation to a matter of public concern. |
| Do TCPA exemptions (fraud; misappropriation from an independent‑contractor relationship) remove claims from TCPA? | Rose: fraud exemption only applies to fraud claim; but because fraud underlies many claims, entire counterclaim should be exempt. Also, misappropriation claims arise from the consultant (independent‑contractor) relationship. | BSW: narrow reading; exemption doesn’t extend to all claims merely because facts overlap; BSW disputes contracting relationship with Rose. | Held: Certain claims exempt. Fraud exemption covers claims that are "based on" fraud here (unjust enrichment, civil conspiracy, aiding/abetting breach of fiduciary duty). Misappropriation exemption applies to Rose’s TUTSA/TTLA and common‑law misappropriation/unfair‑competition claims because they arise from the independent‑contractor relationship. |
| Did Rose meet the TCPA’s prima facie (clear & specific) burden for non‑exempt claims? (tortious interference; promissory estoppel; quantum meruit; money had & received; declaratory judgment) | Rose: submitted declaration, invoices, news coverage, and documentary evidence to show damages and defendant knowledge. | BSW: challenges sufficiency and admissibility of evidence (including misidentification and objections to Baxter’s declaration). | Held: Rose met the burden for tortious interference, money had and received, and declaratory relief. Rose failed to meet the burden for promissory estoppel and quantum meruit — those claims are dismissed. Court accepted Baxter’s sworn declaration for TCPA purposes and treated SEC 10‑K as admissible business record. |
| Did BSW establish entitlement to judgment as a matter of law by showing Rose sued the wrong party (misidentification)? | BSW: asserts "Baylor Scott & White" is an assumed name and not the acquiring legal entity; thus Rose sued the wrong corporate party. | Rose: attached SEC 10‑K and other public documents indicating BSWH/affiliates funded/acquired Texas Spine and Joint, creating a fact question. | Held: BSW failed to conclusively establish misidentification; the SEC 10‑K creates a fact issue. Defense unsuccessful at TCPA stage. |
Key Cases Cited
- MediaOne, L.L.C. v. Henderson, 592 S.W.3d 933 (Tex. App.—Tyler 2019) (standard for TCPA applicability and review)
- Serafine v. Blunt, 466 S.W.3d 352 (Tex. App.—Austin 2015) (TCPA burden allocation discussion)
- Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021) (clarifies nonmovant’s burden to produce evidence of each essential element)
- Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018) (TCPA procedural framework)
- Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127 (Tex. 2019) (private contract disputes generally not matters of public concern; considered and distinguished)
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (private communications can be TCPA protected when connected to public concern)
- Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017) (pleadings may establish TCPA applicability)
- Buzbee v. Clear Channel Outdoor, LLC, 616 S.W.3d 14 (Tex. App.—Houston [14th Dist.] 2020) (pleadings alone are insufficient to meet nonmovant’s TCPA prima facie evidentiary burden)