Levatino v. Apple Tree Café Touring, Inc.
486 S.W.3d 724
Tex. App.2016Background
- Erica Wright (Erykah Badu) and Apple Tree Café Touring, Inc. sued Paul Levatino seeking a declaratory judgment that Levatino was not their "talent manager" and thus owed no management compensation.
- Levatino had worked for Badu’s companies for ~8 years and was fired in May 2014; Badu publicly denied he was her manager and claimed he shut down a fan page.
- In October 2014 Levatino’s lawyer sent demand letters to Badu’s counsel threatening a defamation suit and seeking a monetary resolution; a second demand letter followed nine days later.
- Appellees filed the declaratory-judgment suit on October 31, 2014; Levatino moved to dismiss under Texas’s anti‑SLAPP statute (Chapter 27), arguing the letters were protected activity.
- The trial court denied the Chapter 27 dismissal; Levatino appealed the interlocutory order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the demand letters were protected "exercise of association" under Tex. Civ. Prac. & Rem. Code §27.001(2) | Appellees: letters were adversarial communications and not between persons joining to pursue common interests | Levatino: letters were joint efforts by him and counsel to protect his civil rights (thus association) | Court: Not protected — a lawyer’s adversarial letter to opposing counsel is not "association"; movant failed §27.005(b) burden |
| Whether the demand letters were protected "exercise of the right to petition" under §27.001(4) | Appellees: no pending judicial proceeding; letters sought to avoid litigation and thus did not "pertain to" a judicial proceeding | Levatino: "pertaining to" covers anticipated litigation and so pre‑suit demand letters qualify as petitioning | Court: Not protected — "a judicial proceeding" means an actual, pending proceeding; pre‑suit demand letters are not covered |
| Whether the lawsuit was "based on, relates to, or in response to" protected activity (threshold §27.005(b)) | Appellees: declaratory suit was not in response to protected rights because letters were neither association nor petitioning | Levatino: the suit followed his demand letters and thus is in response to protected activity | Court: Movant failed to meet the threshold; dismissal denied |
| Whether the court should reach merits burdens under §27.005(c) and (d) | Appellees: N/A at this stage because movant failed threshold | Levatino: argued appellees cannot make prima facie case and he has affirmative defenses | Court: Did not reach §27.005(c) or (d) because §27.005(b) failed |
Key Cases Cited
- D Magazine Partners, L.P. v. Rosenthal, 475 S.W.3d 470 (Tex. App.—Dallas 2015) (standard of review and Chapter 27 framework)
- ExxonMobil Pipeline Co. v. Coleman, 464 S.W.3d 841 (Tex. App.—Dallas 2015) (Chapter 27 motion‑to‑dismiss review)
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (courts must apply statute as written and not add words)
- State v. $1,760.00 in U.S. Currency, 406 S.W.3d 177 (Tex. 2013) (undefined statutory terms given ordinary meaning)
- Malin v. Singer, 217 Cal. App. 4th 1283 (Cal. Ct. App. 2013) (California appellate view that demand letters anticipating litigation may be protected under California anti‑SLAPP)