649 S.W.3d 623
Tex. App.2022Background:
- Ross Dress for Less purchased 250 acres from ML Dev for a distribution center and needed easement access across adjacent land to construct a road.
- Ross later learned ML Dev had not held clear title at the time of the 2018 PSA; ownership transfers involved entities controlled by Michael Magness and the Tsakiris family immediately before closing.
- ML Dev and numerous Magness- and Tsakiris-related developer entities refused to grant easement access and allegedly made statements when denying access (e.g., that easements had to be obtained from the Tsakiris partnerships or would not be free).
- Ross sued the Developer entities for tortious interference with contract, implied easement by necessity, easement by estoppel, and sought declaratory and injunctive relief to obtain access.
- The Developer entities moved to dismiss under the Texas Citizens Participation Act (TCPA) as amended in 2019, arguing their statements were protected free-speech/petition activity; the trial court denied the TCPA motion and the defendants appealed.
- The court of appeals affirmed, holding the suit was based on the defendants’ refusal to grant access (their conduct), not on protected communications; the 2019 deletion of "relates to" narrowed the TCPA and the developers failed to show the claims were "based on" or "in response to" protected communications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TCPA applies (are claims "based on" or "in response to" protected activity?) | Ross: the suit seeks mandatory relief for denied access and damages; claims are grounded in conduct, not communications | Developers: their statements denying access were communications exercising free-speech/right to petition that triggered the TCPA dismissal procedure | Held: TCPA does not apply—the claims are based on refusal to grant easements (conduct), not on the alleged communications |
| Were the alleged statements protected free-speech on a matter of public concern? | Ross: he was not injured by the statements and does not seek relief against the speech itself | Developers: statements about easements/road funding/public road construction concern public matters | Held: Court found any link insufficient—it was unnecessary to treat those statements as the basis for the suit because the claims target the denial of access |
| Were actions/communications an exercise of the right to petition (e.g., plat refusal or statements at public meetings)? | Ross: claims flow from blocked access, not from petitioning activity or meeting statements | Developers: point to plat refusal and comments at a Road Improvement District meeting as petition-related communications | Held: Court concluded Ross’s claims were not "based on" or "in response to" petitioning communications but on the defendants’ conduct denying access |
| Effect of 2019 TCPA amendment deleting "relates to" | Ross: deletion narrows TCPA and requires a closer nexus between communications and the claim | Developers: relied on pre-amendment broader standard (or argued their communications suffice under amended statute) | Held: Deletion was purposeful and narrows TCPA; communications that merely "relate to" the dispute no longer suffice for dismissal under the TCPA |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA permits early dismissal of suits intended to chill protected rights)
- Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018) (statutory construction of the TCPA is reviewed de novo)
- Cavin v. Abbott, 545 S.W.3d 47 (Tex. App.—Austin 2017) (interpreting the pre-2019 TCPA term "relates to" broadly)
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (presumption that the Legislature included or omitted words purposefully)
- In re Office of the Attorney General, 422 S.W.3d 623 (Tex. 2013) (statutes must be read as a whole and construed contextually)
- Gaskamp v. WSP USA, Inc., 596 S.W.3d 457 (Tex. App.—Houston [1st Dist.] 2020) (de novo review of TCPA dismissal denials; view pleadings/evidence in favor of plaintiff)
- Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890 (Tex. 2018) (TCPA applicability is a question of law not confined to the exact trial-court arguments)