582 S.W.3d 566
Tex. App.2019Background
- Antero sued former employee John Kawcak alleging he conspired with Tommy Robertson and affiliated companies to receive kickbacks, favor inferior vendors, disclose confidential pricing, and breach fiduciary duties; claims included breach of fiduciary duty, money had and received, declaratory relief, attorney’s fees, and exemplary damages.
- Kawcak filed a Texas Citizens Participation Act (TCPA) motion to dismiss asserting protection under the Act’s "right of association" because the suit was based on communications between co-conspirators.
- The trial court denied Kawcak’s TCPA motion; Kawcak appealed interlocutorily under the TCPA.
- The central legal question presented was the plain meaning of the word "common" in the TCPA’s definition of "the right of association" (Tex. Civ. Prac. & Rem. Code § 27.001(2)).
- Kawcak conceded the suit involved communications among co-conspirators but argued that "common interests" can be limited to interests shared by two people acting selfishly; Antero argued "common" requires a broader public/group interest and thus the TCPA did not apply.
- The court analyzed dictionary definitions and statutory context, deciding the TCPA’s "common interests" requires more than the narrow, two-person, self-interested conspiracy and affirmed the denial of the TCPA motion.
Issues
| Issue | Plaintiff's Argument (Antero) | Defendant's Argument (Kawcak) | Held |
|---|---|---|---|
| Whether the TCPA applies via the right of association to Antero’s claims | The alleged communications (e.g., disclosure of pricing) are not "common" associational acts protected by the TCPA | TCPA covers communications between individuals who join to "collectively . . . pursue common interests," even if just two conspirators | TCPA does not apply here because the alleged "common interests" were limited to a two-person self-interested conspiracy, not group/public interests |
| Meaning of "common" in §27.001(2) | Should be read to require group or public-shared interests consistent with TCPA purpose | Argues "common" can mean interests shared by two or more, so conspirators are covered | "Common" in context requires more than two-person selfish conspiracy; adopt dictionary/plain-meaning tied to group/public interests |
| Whether alleged communications are sufficiently related to invoke TCPA | Antero: communications alleged (sharing confidential pricing) are embedded in torts and do not trigger TCPA protection | Kawcak: communications among co-conspirators triggered TCPA right of association | Court did not need to decide this fully because it resolved the threshold "common" issue against Kawcak; TCPA inapplicable |
| Scope and purpose of TCPA as interpretive aid | Antero: statutory purpose (protect constitutional participation and meritorious suits) supports narrowing "common" | Kawcak: TCPA definitions are broad and must be given plain meaning that can include conspiratorial communications | Court used statute purpose and dictionary context to choose the meaning most consistent with the TCPA and avoid absurd results |
Key Cases Cited
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (rules on TCPA interpretation and admonition to follow plain statutory definitions)
- Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890 (Tex. 2018) (confirming TCPA definitions govern and courts must construe the Act according to its text)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (establishing TCPA burden-shifting framework for motions to dismiss)
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (statutory-construction principle that courts must apply statutes as written)
- Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830 (Tex. 2018) (undefined statutory terms get ordinary meaning; use dictionaries)
- Hebner v. Reddy, 498 S.W.3d 37 (Tex. 2016) (statutory construction: when two constructions exist, choose the one that carries out the statute’s manifest object)