582 S.W.3d 823
Tex. App.2019Background
- Addison Exploration sued ETC Texas Pipeline, Oasis Pipe Line, WesTex Energy, and later added Energy Transfer, alleging wrongful deprivation of oil-and-gas interests and asserting contract, fraud, and fiduciary-duty-based claims.
- Key agreements: a Confidentiality & Noncompete between PBR/Addison and ETC (restricted ETC from acquiring leases for 18 months and provided an option to deem acquired interests held in trust), a Fee for Services agreement identifying potential funders, and a Joint Acquisition & Development Agreement (JADA) between PBR and WesTex (WesTex funded acquisitions and retained downstream midstream rights beyond CDPs).
- Energy Transfer is the corporate parent of ETC (and affiliated to Oasis); WesTex was formed to acquire the Settles Prospect leases; overlapping officers (McCrea, Beebe) participated in negotiations.
- Addison’s 4th amended petition added Energy Transfer (vicarious liability), alleged ETC breached the Confidentiality Agreement and a Beebe oral promise, and asserted ETC breached fiduciary duties with Oasis/WesTex knowingly participating.
- Appellants moved to dismiss under the Texas Citizens Participation Act (TCPA); trial court denied the motion. On appeal the court reviewed timeliness, TCPA applicability, whether Addison produced clear and specific prima facie evidence, and whether defendants proved affirmative defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of TCPA motion as to all defendants based on amended petition | Fourth amended petition adding vicarious-liability claim against Energy Transfer restarted the 60-day TCPA window for all claims | Motion timely only as to Energy Transfer (served after amendment); ETC, Oasis, WesTex were served earlier and did not timely move unless amendment added new claims/causes | Motion was timely only as to claims newly pleaded in the 4th amended petition (vicarious liability and fiduciary-duty claims); ETC forfeited TCPA protection for its breach-of-contract and fraud claims because amendment did not change their essential nature |
| Whether TCPA applies (free speech/association) | Addison: claims are private business disputes not covered by TCPA / or fall within the commercial-speech exemption | Appellants: their communications about acquiring leases and midstream rights related to services in the marketplace and thus are matters of public concern under TCPA | Court: communications tangentially concerned marketplace services and fall within TCPA; commercial-speech exemption did not apply because communications were between the contracting parties, not prospective customers |
| Whether Addison produced clear and specific evidence of prima facie cases (including vicarious liability and breach of fiduciary duty) | Addison: pleaded alter-ego/agency theory against Energy Transfer and offered evidence of overlapping officers and corporate structure | Appellants: overlapping officers and parent–subsidiary structure alone are insufficient; must show abuse, injustice, actual/apparent authority, or ratification | Court: Addison failed to show alter-ego (no evidence of injustice/sham) or agency (no proof of actual/apparent authority or ratification); also failed to show a trust/fiduciary duty under the Confidentiality Agreement—those claims dismissed under TCPA |
| Whether defendants established affirmative defenses (preponderance) | Addison: even if TCPA applied, defendants did not prove defenses | Appellants: if Addison met prima facie burden, defendants proved defenses | Court: did not reach because it held TCPA untimely as to some claims and Addison failed prima facie on others; denied defendants’ fourth issue as unnecessary to decide |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA procedure and clear-and-specific-evidence standard)
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (TCPA matter-of-public-concern and "tangential relationship" analysis)
- Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890 (Tex. 2018) (holistic review of pleadings for TCPA applicability)
- S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843 (Tex. 2018) (movant’s burden under TCPA)
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (private communications may be matters of public concern under TCPA)
- SSP Partners v. Gladstrong Invests. (USA) Corp., 275 S.W.3d 444 (Tex. 2008) (parent/subsidiary liability principles; piercing requires abuse/injustice)
- Lucas v. Tex. Indus., Inc., 696 S.W.2d 372 (Tex. 1984) (circumstances allowing disregarding corporate entity: fraud/sham/avoidance of statute)
- Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913 (Tex. 2010) (agents may serve multiple principals; agency requires proof of authority)