Better Business Bureau of Metropolitan Dallas, Inc. v. BH DFW, Inc.
2013 Tex. App. LEXIS 6057
| Tex. App. | 2013Background
- BH DFW, Inc. sued BBB in breach of contract seeking injunctive relief after BBB revoked BH DFW’s accreditation and issued an F rating following advertising challenges.
- BBB moved to dismiss under the Texas Citizens Participation Act (TCPA), arguing BH DFW’s claim related to BBB’s exercise of free speech and that BH DFW could not prove a prima facie case for all elements.
- BBB’s business review, including the F rating, was defended as a communication about a good, product, or service in the marketplace, i.e., a matter of public concern.
- BH DFW argued the TCPA did not apply because the BBB’s review was commercial speech, and, alternatively, that it could prove a prima facie breach of contract.
- The trial court orally denied the TCPA motion, but the written order gave no explicit basis; the BBB appealed under TCPA’s interlocutory appeal provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the TCPA apply to the BBB’s business review? | BH DFW: review is not protected free-speech under TCPA since not government-related. | BBB: review is an exercise of free speech on a matter of public concern and within TCPA. | Yes; BBB’s review falls within TCPA as free-speech on a matter of public concern. |
| Is the BBB’s review exempt as commercial speech under 27.010(b)? | BH DFW: the exemption applies because BBB is a business seller of accreditation and the dispute arose from a commercial transaction. | BBB: the exemption requires a contract-focused/customer-tailored link; BBB published reviews of both accredited and non-accredited businesses for public use. | No; BH DFW failed to prove the exemption applies; the evidence shows the review was a general public rating, not tied to a specific commercial transaction with BH DFW. |
| Did BH DFW establish by clear and specific evidence a prima facie breach of contract? | BH DFW submitted an affidavit alleging an ‘Accreditation Contract’ in exchange for $1,000 annually. | BBB showed no contract terms; the evidence does not establish a meeting of the minds or enforceable contract. | No; BH DFW failed to establish a prima facie contract with clear and specific evidence. |
| Did BH DFW establish a prima facie case for injunctive relief on the breach claim? | BH DFW argued the breach warranted an injunction restoring A+ accreditation or removing the F rating. | Without a prima facie case on the underlying contract, injunctive relief cannot be grounded. | No; failure to prove a prima facie breach forecloses injunctive relief. |
| Is the interlocutory appeal proper under TCPA § 27.008? | BH DFW contends no interlocutory appeal exists from a timely denial of the motion to dismiss. | BBB argues § 27.008 provides for expedited review of orders denying TCPA dismissal or failure to rule timely. | Yes; the court has jurisdiction to review the interlocutory order under § 27.008. |
Key Cases Cited
- Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011) (statutory construction of TCPA purposes)
- TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) (interpretation of TCPA and public-concern definition)
- Thornton v. AT&T Adver., L.P., 390 S.W.3d 702 (Tex. App.—Dallas 2012) (elements of breach of contract and enforceability standards)
- Principal Life Ins. Co. v. Revalen Dev., LLC, 358 S.W.3d 451 (Tex. App.—Dallas 2012) (contract formation—meeting of the minds and essential terms)
- Avila v. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2012) (TCPA applied to communications and public-concern claims)