557 S.W.3d 142
Tex. App.2018Background
- Sears contracted with independent contractor John Toth (Artistic Flooring) to inspect and repair a customer’s (Langham) wood floor. Sears later exited the flooring business and the contract expired in May 2014.
- Langham complained of moisture damage; Toth inspected, recommended reinstalling the floor and suggested using Bostik (a moisture barrier). Sears declined to replace the floor and offered a refund; Langham sued Sears.
- Toth was deposed in Langham’s suit; later Langham hired Toth to replace her floor and Toth communicated with her (including sending a Bostik brochure and asking whether her claim was resolved).
- Sears joined Toth as a third-party defendant, alleging breaches of confidentiality and a provision prohibiting soliciting non-authorized products (claiming Toth used Sears’s confidential info, solicited Bostik, entered into business with Langham, and failed to notify Sears).
- Toth moved to dismiss under the Texas Citizens Participation Act (TCPA), arguing Sears’s claim related to his communications and thus required Sears to present clear and specific prima facie evidence; the trial court denied the motion.
- On interlocutory appeal the court considered (1) whether the TCPA applied, (2) whether the TCPA’s commercial‑speech exemption applied, and (3) whether Sears produced clear and specific evidence of breach and causation/damages.
Issues
| Issue | Plaintiff's Argument (Sears) | Defendant's Argument (Toth) | Held |
|---|---|---|---|
| Whether the TCPA applies | Sears: Toth’s communications were not a matter of public concern and thus TCPA does not apply | Toth: His communications about goods/services (flooring, Bostik) are protected speech under TCPA | TCPA applies — communications related to goods/services are protected speech |
| Whether the commercial‑speech exemption removes TCPA protection | Sears: Toth was a seller and his statements arose from a commercial transaction to actual/potential customers (so exemption applies) | Toth: Statements were opinions about another product and made while acting for Sears, not as commercial solicitations for his own business | Exemption does not apply — statements were not shown to be commercial speech made in his capacity as a seller soliciting sales |
| Whether Sears produced clear and specific evidence of contractual breach | Sears: Pleadings and evidence (depositions, affidavits) show breaches of confidentiality and solicitation clauses | Toth: Even if breaches are alleged, Sears must show clear specific proof of each element under TCPA | Court assumed breaches arguable but did not need to decide — focused on damages element |
| Whether Sears produced clear and specific evidence of damages causally linked to the alleged breaches | Sears: Toth’s communications complicated settlement and caused expense/delay; affidavit of counsel supports injury | Toth: Sears offered only conclusory assertions and no specific evidence of harm or quantification; causation is speculative | Sears failed to produce clear and specific evidence of injury/causation; dismissal required; remand for fees/costs |
Key Cases Cited
- Fawcett v. Grosu, 498 S.W.3d 650 (Tex. App.-Houston [14th Dist.] 2016) (describing TCPA purpose and standards)
- Jardin v. Marklund, 431 S.W.3d 765 (Tex. App.-Houston [14th Dist.] 2014) (TCPA background and application)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (burden-shifting and prima facie evidence standard under TCPA)
- Bedford v. Spassoff, 520 S.W.3d 901 (Tex. 2017) (clarifying “clear and specific” evidence requirement)
- Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018) (construing TCPA commercial‑speech exemption elements)
- Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345 (Tex. App.-Houston [1st Dist.] 2013) (distinguishing protected speech from noncommercial statements)