MVS International Corporation and Manuel Saturno v. International Advertising Solutions, LLC, Next Level Firm, LLC, Rene Rascon
545 S.W.3d 180
| Tex. App. | 2017Background
- MVS sued advertising agencies IAS and Next Level for unpaid advertising invoices; IAS, Next Level, and Rene Rascon counterclaimed alleging MVS and its GM Manuel Saturno conspired with Southwest University defendants to falsify invoices and disparage the agencies to third parties.
- Appellees pleaded causes of action including civil conspiracy, breach of contract, fraud, tortious interference, business disparagement, defamation, intentional infliction of emotional distress (IIED), DTPA claims, and breach of a settlement non‑disparagement clause.
- MVS and Saturno moved to dismiss under the Texas Citizens Participation Act (TCPA); the trial court granted parts of a Rule 91a motion, awarded fees, and held the TCPA motion moot. MVS and Saturno appealed the TCPA ruling.
- The court considered (1) whether the appellees’ late response and Rascon affidavit should be considered, (2) evidentiary objections to the affidavit, (3) whether defendants must admit the alleged communications to invoke TCPA protections, and (4) whether appellees produced clear and specific evidence to overcome the TCPA dismissal standard.
- The Court of Appeals (El Paso) concluded the TCPA was not moot, accepted the affidavit in part (striking conclusory or non‑personal‑knowledge portions), held defendants may invoke TCPA even while denying the alleged statements, and reversed/dismissed multiple claims as to MVS and Saturno (except claims tied to a Televisa transaction falling within a commercial‑speech exception).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellees’ late response/affidavit should be considered | Rascon’s response/affidavit filed after scheduled hearing was untimely and should be excluded | No statutory TCPA deadline for responses; trial court allowed reply; consider affidavit | Court considered affidavit; declined to create a summary‑judgment‑style filing deadline and reached the merits |
| Admissibility / weight of Rascon affidavit | Affidavit contains hearsay, lack of personal knowledge, speculation; whole affidavit should be disregarded | Affidavit contains facts and firsthand assertions sufficient for TCPA analysis; only conclusory or non‑personal portions should be rejected | Court will consider only nonconclusory statements supported by shown personal knowledge; disregards bare opinions/speculation |
| Whether defendants must admit they made the challenged communications to invoke TCPA | Appellees argued TCPA inapplicable because defendants deny making the statements | Defendants may rely on appellees’ pleaded allegations to show the suit is based on defendants’ exercise of speech/association/petition rights while still denying those allegations | Court follows Texas Supreme Court (Hersh) — defendants can invoke TCPA even while denying the alleged communications |
| Does TCPA apply to each claim (conspiracy, breach, fraud, interference, disparagement/defamation, IIED, breach of settlement)? | Appellees: claims arise from non‑protected private commercial acts and direct contract/fraud dealings; some claims not covered or fall within commercial‑speech exemption | Defendants: many claims are based on communications to third parties (free speech/association/petition) and trigger TCPA; commercial‑speech exception applies only where statements made in furtherance of defendant’s own commercial transactions | Court: TCPA applies to most claims involving third‑party disparaging communications (conspiracy, interference, disparagement, defamation, IIED) but not to breach of contract or most fraud allegations (commercial‑speech exemption). Televisa/AXA concert communications were commercial and outside TCPA |
| Whether appellees produced clear and specific evidence to survive TCPA dismissal | Rascon’s affidavit and pleading show lost business, $300,000 payment, timing of invoices, and disparaging statements sufficient to establish prima facie cases | Defendants argued affidavit is conclusory, lacks specific terms/contracts, lacks proof of meeting of the minds, and fails to show proximate damages | Court found evidence insufficient: conspiracy (except Televisa) lacked clear meeting‑of‑minds; interference, disparagement, defamation (except Televisa), and IIED failed for lack of clear/specific proof of damages, actionable statements, or extreme/severe distress; ordered dismissal of those claims as to MVS and Saturno |
Key Cases Cited
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (TCPA two‑step framework and scope of protected communications)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (requirements for "clear and specific" evidence and affidavit standards under TCPA)
- In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218 (Tex. 2004) (definition of prima facie case)
- Pickens v. Cordia, 433 S.W.3d 179 (Tex.App.—Dallas 2014) (earlier rule that denial of statements defeats TCPA applicability; discussed and disapproved by later authority)
- John Moore Servs., Inc. v. Better Bus. Bureau of Greater Houston, 441 S.W.3d 345 (Tex.App.—Houston [1st Dist.] 2014) (commercial‑speech exemption and sufficiency of evidence for business‑related torts)
- Tri v. J.T.T., 162 S.W.3d 552 (Tex. 2005) (elements of civil conspiracy)