Schimmel v. McGregor
2014 Tex. App. LEXIS 7530
| Tex. App. | 2014Background
- Buy-Out Owners (several beachfront homeowners) entered contracts with City of Galveston under FEMA Hazard Mitigation Grant Program (HMGP) after Hurricane Ike; City required SOKB (homeowners association) to sign releases waiving future assessments as a closing condition.
- SOKB and Remaining Owners opposed the buyouts; SOKB hired attorney Bruce Schimmel to represent SOKB and Remaining Owners; Schimmel allegedly made statements and took actions to block the City purchases and urged the SOKB Board not to sign releases.
- The Buy-Out Owners sued Schimmel (among other claims) for tortious interference with prospective business relations, alleging misrepresentations and an unlawful boycott caused the City not to close and caused economic loss.
- Schimmel moved to dismiss under the Texas Citizens Participation Act (TCPA), claiming his communications were protected petition/free-speech/association activity; trial court denied the motion and awarded no fees; Schimmel appealed interlocutorily.
- The court found Schimmel’s communications were made in connection with governmental review (City and DPS) and matters of public concern (government and community/economic well-being), so the TCPA applied; but Buy-Out Owners failed to present clear and specific evidence on causation (that Schimmel’s actions proximately caused the City’s failure to close).
- Court reversed trial court’s denial of TCPA dismissal and remanded for entry of dismissal and for further proceedings on Schimmel’s entitlement to costs and attorney’s fees under the TCPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Schimmel’s communications are protected by the TCPA (matter of public concern/right to petition or free speech/association) | Buy-Out Owners: claims are based on independent torts (fraud, boycott) and not on Schimmel’s exercise of constitutional rights | Schimmel: statements to press, City, and Board were communications in connection with governmental review and public concerns, thus TCPA-protected | Held: Schimmel met his burden; communications related to City/DPS review and public concerns, so TCPA applies |
| Timeliness of Schimmel’s TCPA motion | Buy-Out Owners: motion filed one day late (61st day) so untimely | Schimmel: served later than filing date or court should permit late filing for good cause | Held: Court treated motion as timely (or implicitly good cause) — not a bar to dismissal |
| Applicability of TCPA commercial-speech/services exemption (§27.010(b)) | Buy-Out Owners: Schimmel is primarily a lawyer selling services; his statements arose from those services and targeted City (a buyer) | Schimmel: City was not his client or a potential buyer of his legal services; communications concerned governmental review, not commercial transaction | Held: Exemption does not apply; City was not a purchaser of Schimmel’s services, so TCPA still governs |
| Whether Buy-Out Owners produced clear and specific evidence of tortious interference (prima facie case) | Buy-Out Owners: identical affidavits asserting but-for causation and listing misrepresentations; alleged economic damages | Schimmel: affidavits are conclusory; no evidence from City/DPS decisionmakers; governmental agencies had discretion — inducing lawful action is not actionable | Held: Buy-Out Owners failed to show clear and specific evidence on causation (and that Schimmel induced wrongful/unlawful conduct); dismissal under TCPA warranted |
Key Cases Cited
- KTRK Television, Inc. v. Robinson, 409 S.W.3d 682 (Tex. App.—Houston [1st Dist.] 2013) (discusses TCPA purpose and construction)
- In re Lipsky, 411 S.W.3d 530 (Tex. App.—Fort Worth 2013) (TCPA early-dismissal framework)
- Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71 (Tex. App.—Houston [1st Dist.] 2013) (TCPA deadlines and standards for exemption and dismissal)
- Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909 (Tex. 2013) (elements of tortious interference with prospective relations)
- El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012) (lodestar proof required for attorney-fee affidavits)
- ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426 (Tex. 1997) (inducing a party to do what it has a right to do is not actionable interference)
- Holloway v. Skinner, 898 S.W.2d 793 (Tex. 1995) (corporate-agent interference and limits on agent liability)