Frederic Jardin v. Soren Marklund, Douglas Wene and Chem32, LLC
431 S.W.3d 765
| Tex. App. | 2014Background
- Eurecat sued former employees Marklund and Wene and their new company Chem32 for allegedly stealing computers, software, and confidential information; Eurecat obtained a restraining order and temporary injunction to recover the materials.
- Eurecat’s counsel sent a letter and email to client Haldor Topsoe asserting Chem32 was using misappropriated Eurecat materials; Haldor Topsoe stopped doing business with Chem32.
- Chem32, Marklund, and Wene sued Jardín (Eurecat VP) for defamation, business disparagement, and tortious interference based on those communications asserting Jardín authorized or allowed them.
- Jardín moved to dismiss under the Texas Citizens’ Participation Act (TCPA / Tex. Civ. Prac. & Rem. Code ch. 27), arguing the claims targeted his exercise of rights to petition and association; the trial court denied the motion.
- The court of appeals considered (1) whether it had interlocutory appellate jurisdiction over denial of a TCPA motion, and (2) whether the TCPA applied to Jardín given the facts that the communications were made by Eurecat’s attorney and related to Eurecat’s lawsuit.
- The majority held Jardín failed to show the claims were based on his exercise of petition/association rights (the communications were by Eurecat’s lawyer and related to Eurecat, not Jardín), so the TCPA did not apply and the court dismissed the appeal for lack of jurisdiction. Chief Justice Frost dissented, arguing jurisdiction under the statute granting appeals from denial of motions filed under §27.003 existed and the proper result would be to affirm the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate court has jurisdiction to review denial of TCPA motion | Jardín: appealable under §51.014(a)(12) because he filed a motion under §27.003 | Appellees: jurisdiction lacking if TCPA does not apply; some courts hold no interlocutory review | Majority: jurisdiction exists only if TCPA applies; because TCPA does not apply, appeal dismissed for lack of jurisdiction |
| Whether TCPA applies to communications at issue | Jardín: communications (attorney’s letter/email) are communications "in or pertaining to" a judicial proceeding and he authorized them, invoking petition/association protections | Appellees: communications were by Eurecat’s attorney about Eurecat’s lawsuit, not Jardín’s exercise of constitutional rights; commercial/exempt activity argued below | Majority: TCPA not invoked—communications were by Eurecat’s counsel and claims are not based on Jardín’s exercise of petition or association rights |
| Whether a non-speaker (Jardín) may invoke TCPA for communications made by another | Jardín: he allowed/authorized those communications so TCPA protections should attach to him | Appellees: even if imputed, the rights would belong to Eurecat (the corporate plaintiff), not Jardín personally | Held: Even assuming imputation, any petition/association rights would belong to Eurecat, not Jardín; Jardín did not meet the TCPA threshold |
| Whether court should resolve other substantive defenses (privilege, prima facie proof, constitutionality) | Jardín: trial-court denial was erroneous on multiple grounds (privilege, TCPA burden shift, TCPA constitutionality) | Appellees: asserted TCPA inapplicable and challenged constitutional claims | Held: Court did not reach those issues because lack of TCPA application was dispositive and appellate jurisdictional bar required dismissal |
Key Cases Cited
- Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (U.S. 1985) (distinguishes constitutional protection for private vs. public speech)
- McDonald v. Smith, 472 U.S. 479 (U.S. 1985) (right to petition is a form of expression protected by the First Amendment)
- Citizens United v. Federal Election Comm'n, 558 U.S. 310 (U.S. 2010) (corporate speakers have First Amendment protection)
- TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) (statutory text must be read in context; rules of statutory construction)
- City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008) (use plain meaning unless legislative definition or context requires otherwise)
- In re Allen, 366 S.W.3d 696 (Tex. 2012) (legislature presumed aware of background law when enacting statutes)
- Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716 (Tex.App.—Houston [14th Dist.] 2013) (TCPA interlocutory dismissal procedure and standards)
- Fitzmaurice v. Jones, 417 S.W.3d 627 (Tex.App.—Houston [14th Dist.] 2013) (discusses TCPA and mandamus practice)
- SJ Med. Ctr., L.L.C. v. Estahbanati, 418 S.W.3d 867 (Tex.App.—Houston [14th Dist.] 2013) (interpreting appellate jurisdictional consequences of TCPA motions)