601 S.W.3d 919
Tex. App.2020Background
- Siblings Jason Casey and Krystal Stevens are beneficiaries of an Edward Jones account established by their mother, Jo Glover; Glover died in 2018.
- Casey contacted Edward Jones claiming Stevens had outstanding loans from the account; Edward Jones froze distributions pending resolution.
- Casey sued Stevens for conversion and money had and received and obtained a temporary restraining order and injunction preventing distributions.
- Stevens filed counterclaims for tortious interference with contract and prospective business relations and sought injunctive relief.
- Casey moved to dismiss Stevens’s counterclaims under the Texas Citizens Participation Act (TCPA), arguing his communications were protected exercise of free speech and petition; the trial court overruled the motion by operation of law.
- On interlocutory appeal, the court held the TCPA did not apply: Casey’s communications were private, pre-suit communications about a private economic dispute and thus not protected as public‑concern speech or petitioning.
Issues
| Issue | Plaintiff's Argument (Stevens) | Defendant's Argument (Casey) | Held |
|---|---|---|---|
| Whether Casey’s communications are an "exercise of the right of free speech" because they relate to a matter of public concern | Communications were private, addressing only the siblings’ private economic interests and not a matter of public concern | Communications with Edward Jones involved a financial account/service in the marketplace and thus relate to a matter of public concern, so TCPA protection applies | Held: Communications were private dispute over account distribution, not a matter of public concern; TCPA free‑speech protection not shown |
| Whether Casey’s communications are protected as the "right to petition" (communications in/pertaining to a judicial proceeding) | Stevens’ claims are premised on Casey’s pre‑suit contacts with Edward Jones, not on Casey’s filing of suit or judicial acts | Communications relate to the same subject as Casey’s lawsuit and injunction, so they implicate petitioning and the TCPA | Held: Pre‑suit communications are not communications in or pertaining to a judicial proceeding; TCPA petition prong not shown |
| Whether Stevens’s request for injunctive relief is subject to the TCPA | Injunctive claim arises from tortious interference based on pre‑suit acts and is not an attempt to chill Casey’s petition/speech | Injunctive claim is based on the same protected communications and therefore should be dismissed under the TCPA | Held: Court rejects Casey’s argument as to injunctive relief for same reasons; TCPA does not apply |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (establishes TCPA purpose and burden‑shifting framework)
- Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018) (discusses movant’s initial burden under TCPA)
- Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890 (Tex. 2018) (defines "matter of public concern" for TCPA free‑speech analysis)
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (communication may be a matter of public concern where it affects public health/environment)
- Serafine v. Blunt, 466 S.W.3d 352 (Tex. App.—Austin 2015) (distinguishes interference claims based on filing suit from claims based on pre‑suit communications)
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (communications touching health/safety can be public concern)
- Levatino v. Apple Tree Café Touring, Inc., 486 S.W.3d 724 (Tex. App.—Dallas 2016) (pre‑suit demand letter not a communication in or about a judicial proceeding)
- QTAT BPO Sols., Inc. v. Lee & Murphy Law Firm, G.P., 524 S.W.3d 770 (Tex. App.—Houston 2017) (pre‑suit communications not communications in or about a judicial proceeding)
- Kawcak v. Antero Res. Corp., 582 S.W.3d 566 (Tex. App.—Fort Worth 2019) (characterizes TCPA as Texas’s anti‑SLAPP statute)