Lead Opinion
SUBSTITUTE MAJORITY OPINION
We issued our original majority opinion in this case on April 10, 2014. Appellant filed a motion for rehearing. We overrule the motion for rehearing, withdraw our previous opinion, and issue this substitute opinion.
In this accelerated appeal, appellant Frederic Jardín challenges the trial court’s denial of his motion to dismiss the lawsuit under Chapter 27 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code §§ 27.001-27.011. Chapter 27 is the Texas Anti-SLAPP statute, referred to as the Texas Citizens’ Participation Act (TCPA). Concluding that the TCPA does
Background
Two chemical companies, Eurecat U.S., Inc. and Chem32, are involved in a dispute involving private issuеs, as discussed below. In a parallel lawsuit, Eurecat sued Chem32 for, among other things, misappropriation of confidential information and breach of fiduciary duties (the Eurecat Lawsuit).
Marklund and Wene retained their work computers when they left Eurecat. Jardín alleges that Marklund and Wene stole “computers, hard drives, software and files containing Eurecat’s confidential, proprietary information, and trade secrets.” Marklund and Wene counter that they had permission to take the laptops and a desktop, onto which software licensed to Eure-cat that contained proprietary information had been installed. Marklund alleges he was told that the software did not need to be removed from his laptop.
After leaving Eurecat, Marklund and Wene formed appellee Chem32, LLC, a competing company. Eurecat then sued appellees. Eurecat obtained a temporary restraining order enjoining appеllees from “using or disclosing any misappropriated computer software or firmware programs and packages that belong to Eurecat or are, or contain, Eurecat’s confidential and proprietary information” and “intentionally deleting, destroying or discarding any files or other documents that belong to Eurecat or that contain confidential or proprietary information that belongs to Eurecat” and ordering appellees to return “any and all files, property, software, firmware, and equipment that is the property of Eure-cat.” The trial court signed an agreed tempоrary injunction requiring appellees to surrender any documents and intellectual property belonging to Eurecat.
Appellees produced documents in the Eurecat Lawsuit that revealed the company Haldor Topsoe, a client of Eurecat, was also a client of Chem32. Eurecat’s attorney thereafter sent the representative of Haldor Topsoe a letter in which he alleged, among other things, that appellees—
had taken numerous documents, computers, computer files, and computer programs that belonged to Eurecat and that contain Eurecat’s proprietary information and were using those materials in their competing business. We have obtained restraining orders and an injunction requiring them to return the stolen material, and to not use Eurecat’s property and information, but they have not fully complied with all of those orders.
Eurecat’s attorney subsequently emailed Haldor Topsoe, seeking an agreement from Haldor Topsoe not to do business with Chem32 and stating, among other things: “Under the circumstances, we think that continuing to do business with Chem32 ... would be tantamount to participating in the misappropriation of Eureeat’s confidential and proprietary information.” Haldor Topsoe’s representative later stated that Haldor Topsoe stopped doing business with Chem32 because of these communications.
Appellees then filed this lawsuit, bringing claims against Jardín for defamation, business disparagement, and tortious in
Discussion
Jardín argues the trial court erred by denying his motion to dismiss appellees’ claims for defamаtion, business disparagement, and tortious interference because (1) the lawsuit was filed in violation of Jardin’s rights to petition and of association,
As a threshold matter, we first address whether we have jurisdiction over this interlocutory appeal. Our jurisdiction hinges on whether an interlocutory appeal is available from an express order granting or denying a motion to dismiss under the TCPA and whether the TCPA applies.
I. Review of Exрress Order Granting or Denying Motion to Dismiss
In asserting that we lack jurisdiction, appellees cite a Fort Worth Court of Appeals opinion that holds a court of appeals has no interlocutory appellate jurisdiction to review an order denying a motion to dismiss under the TCPA. See Jennings v. WallBuilder Presentations, Inc.,
The trial court denied the motion to dismiss on June 19, 2013. Thus, the amendment was in effect when the motion was denied. See id. at *4 (“Procedural, remedial, and jurisdictional laws should be enforced as they exist at the time the judgment is rendered.”). Moreover, the amendment is retroactive because it is procedural and does not take away or impair the parties’ vested rights: it simply changes the time at which an appellate court can hear a case.
II. Application of the TCPA
Whether the TCPA applies also implicates our jurisdiction over this matter. See id. If Jardín failed to invoke the provisions of the TCPA, then this court has no jurisdiction over this interlocutory appeal.
A. Overview
The TCPA is an anti-SLAPP law, which is an acronym for “Strategic Lawsuits Against Public Participation.” Fitzmaurice,
The constitutional rights enumerated in the TCPA are found in the Texas and United States Constitutions. See U.S. Const, amend. I (“Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”); Tex. Const. art. I, § § 8 (“Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilеge; and no law shall ever be passed curtailing the liberty of speech or of the press.”), 27 (“The citizens shall have the right, in a
B. Standard of Review
Section 27.003 of the TCPA provides that а party may file a motion to dismiss if a legal action “is based on, relates to, or is in response to [that] party’s exercise of the right of free speech, right to petition, or right of association.” Id. § 27.003(a). Section 27.005(b) provides that a court “shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence” that the action is “based on, relates to, or is in response to the party’s exercise of ... the right of free speech[,] right to petition[,] or right of association.”
We presume when the Legislature enacts a statute that, among other things, “a just and reasonable result is intended,” and “public interest is intended over any private interest.” Tex. Gov’t Code § 311.021. The words of a statute cannot be examined in isolation, but must be informed by the context in which they are used. TGS-NOPEC Geophysical Co. v. Combs,
1. Purpose
The purpose of the First Amendment of the United States Constitution is “to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
While we must construe the TCPA liberally, we likewise cannot ignore the Legislature’s express purpose for enacting it. Compare Tex. Civ. Prac. & Rem.Code § 27.011(b) with id. § 27.002. Because the stated purpose of the TCPA (“Texas Citizens’ Participation Act”) includes the phrase “otherwise participate in government,” it appears the Legislature intended to protect only communications that are analogous to participating in government. See Whisenhunt,
2. Language and Context
Under the TCPA:
“Exercise of the right of association” means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.
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“Exercise of the right of free speech” means a communication made in connection with a matter of public concern.
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“Exercise of the right to petition” means any of the following:
(A) a communication in or pertaining to:
(i) a judicial proceeding;
(ii) an official proceeding, othеr than a judicial proceeding, to administer the law;
(iii) an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government;
(iv) a legislative proceeding, including a proceeding of a legislative committee;
(v) a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity;
(iv) a proceeding in or before a managing board of an educational or elee-' mosynary institution supported directly or indirectly from public revenue;
(vii) а proceeding of the governing body of any political subdivision of this state;
(iv) a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi), or (vii); or
(ix) a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting;
(B) a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;
(C) a communication that is reasonably likely to encourage consideration or re*772 view of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;
(D) a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and
(E) any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution оf this state.
Tex. Civ. Prac. & Rem.Code § 27.001(2)-(4).
The clear implication from these definitions is that the Legislature intended to protect communications in the public interest. See Whisenhunt,
3.Legislative History
“Under the Code Construction Act, we may look to the statute’s legislative history in gleaning the Legislature’s intent.” Phillips v. Beaber,
Citizen participation is the heart of our democracy. Whether petitioning the government, writing a traditional news article, or commenting on the quality of a business, involvement of citizens in the exchange of idea[s] benefits our society. Yet frivolous lawsuits aimed at silencing those involved in these activities are becoming more common, and are a threat to the growth of our democracy.... Unfortunately, abuses of the legal system, aimed at silencing these citizens, have also grown. These lawsuits are called Strategic Lawsuits Against Participation or “SLAP” suits.
Twenty-seven states and the District of Columbia have passed similar acts.... The Texas Citizen Participation Act would allow defendants—who are sued as a result of exercising their right to free speech or their right to petition the government—to file a motion to dismiss the suit ....
Senate Comm, on State Affairs, Bill Analysis, Tex. H.B. 2973, 82nd Leg., RS (2011); see also Whisenhunt,
4.Particular Meaning of Constitutional Rights
The First Amendment guarantees “the right of the peоple ... to petition the Government for a redress of grievances.” McDonald v. Smith,
The entire text of the First Amendment follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const, amend. I (emphasis added). The Petition Clause was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble. See United Mine Workers of Am., Dist. 12 v. III. Bar Ass’n,
C. No Invocation of the TCPA
Jardín argues that he has invoked the TCPA because the Legislature defined “[e]xercise of the right to petition” to include, among other things, “communication[s] in or pertaining to ... a judicial procеeding,” and the Legislature similarly defined “[e]xercise of the right of association” as “communication[s] between individuals who join together to collectively express, promote, pursue, or defend common interests.” Tex. Civ. Prac. & Rem. Code § 27.001(2), (4)(A)(i). Jardín argues Eurecat’s attorney’s communications to Haldor Topsoe (the letter and email) invoked the TCPA because they were communications concerning a judicial proceeding. See id. § 27.001(4)(A)(i). Similarly, he argues his allowing or authorizing Eurecat’s attorney to communicate with Haldor Topsoe invoked the TCPA as these were “communication[s] between individuals whо join[ed] together to collectively express, promote, pursue, or defend common interests.” See id. § 27.001(2).
Jardín would have us conclude that, simply by filing a pleading in a lawsuit between private parties, he has invoked the protections of the TCPA, despite the act’s title, purpose, language and context, legislative history, and the particular meanings of the constitutional rights at issue. Assuming without deciding that the TCPA applies to Jardin’s private dispute, we conclude that the subject communications were not “based on, relate[d] to, or ... in response” to any communications made by Jardín. See id. § 27.005(b) (requiring court to “dismiss a legal aсtion against the moving party if the moving party shows by a preponderance of the evidence” that the action is “based on, relates to, or is in response to the party’s exercise of ... the right of free speeeh[,] right to petition[,] or right of association”) (emphasis added). Jardín concedes,
*774 Both of the communications cited by [appellees] as the basis for their claim against Jardín [the letter and email] were actually communications involving Eurecat’s attorney—not Jardín—and representatives of [Haldor Topsoe], and were part of the attorney’s effort to obtain evidence from [Haldоr Topsoe] for purposes of the Eurecat lawsuit.
(Emphasis in original.) Accordingly, the claims here are not “based on, relate[d] to, or in response to” Jardin’s communications such that the exercise of his rights to petition or of association might be implicated, as is required for the TCPA to apply.
Jardín further argues that appellees’ claims are based on, related to, or in response to his exercise of the rights to petition and of association because appel-lees allege Jardín “allowed” or “authorized” the subject communications. To the extent that these allegations are true, they do not alter the fact that the subject communications were made by Eurecat’s attorney and related to the Eurecat Lawsuit— in which Eurecat, not Jardín, is a party.
We conclude that Jardín has not shown the claims here are based on, related to, or in response to his exercisе of the rights to petition and of association. Accordingly, the TCPA does not apply, and we lack jurisdiction over this interlocutory appeal.
We dismiss this appeal for lack of jurisdiction.
FROST, C.J., dissenting.
Notes
. Both companies provide catalyst activation services to refineries and chemical plants.
. Appellees contend that they filed this lawsuit separately from the Eurecat Lawsuit because the joinder deadline had passed in that case. This lawsuit was initially assigned to the 61st District Court, but it subsequently was transferred to the 133rd District Court, which also presides over the Eurecat Lawsuit.
. The right оf association refers to the First Amendment's free speech, assembly and petition guarantees. See Osterberg v. Peca,
. Generally, courts presume that the Legislature intends statutes and amendments to operate prospectively unless they are expressly made retroactive. Kinney,
. An interlocutory order is not appealable unless a statute expressly provides for appellate jurisdiction. Kinney,
. However, ''[t]he court may not dismiss a legal action ... if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” Tex. Civ. Prac. & Rem.Code § 27.005(c). The moving party has the initial burden to show the required elements under subsection (b), and then the burden shifts to the nonmoving party to satisfy subsection (c). Rehak,
. The "regarding” subject of the letter indicatеs the cause number and style of the Eure-cat Lawsuit, and in the first paragraph of the body of the letter, the attorney states, "I represent Eurecat ... in a lawsuit that we have filed against [appellees].”
. See, e.g., Citizens United v. Fed. Election Com'n,
. The dissent contends that Jardin’s motion to dismiss was "filed under section 27.003” because the motion purports to be filed pursuant to the TCPA. However, "calling the tail a leg does not make it a leg.” See Estahbanati,
. Appellees argued below and argue on appeal that the TCPA is unconstitutional. We only decide constitutional questions when we cannot resolve issues on nonconstitutional grounds. See Serv. Corp. Int’l v. Guerra,
. See Estahbanati,
Dissenting Opinion
dissenting.
SUBSTITUTE DISSENTING OPINION
Our threshold task is to determine if we have jurisdiction. The proper inquiry is whether this is an appeal from the denial of a motion to dismiss filed under section 27.003 of the Texas Civil Practice and
The trial court signed an interlocutory order on June 19, 2013, in which it denied Jardin’s motion to dismiss under section 27.003 of the Texas Civil Practice and Remedies Code.
A person may appeal from an interlocutory order of a district court ... that ... denies a motion to dismiss filed under Section 27.003.9
Jardin is a person who has appealed from an interlocutory order of a district court that denied his motion to dismiss filed under section 27.003. Under the unambiguous language of section 51.014(a)(12), this court has jurisdiction over Jardin’s appeal from this interlocutory order.
After determining that the claims of ap-pellees Soren Marklund, Douglas Wene, and Chem32, LLC against Jardín do not fall within the scope of the Texas Citizens’ Participation Act, the majority concludes that this court therefore lacks jurisdiction over this interlocutory appeal. But, presuming for the sake of argument that the appellees’ claims against Jardín do not fall within the scope of the Texas Citizens’ Participation Act, this court still would have jurisdiction over this appeal, and the proper course would be to affirm the trial court’s order.
. The dissenting opinion issued in this case on April 10, 2014, is withdrawn, and this substitute dissenting opinion is issued in its plaсe.
. See The Fair v. Kohler Die & Specialty Co.,
. The majority stands Lincoln's famous leg- and-tail parable on its head in suggesting that the master of the motion is not at liberty to say what relief he seeks. See ante at p. 774, n. 10. It is the majority that is calling the “tail” a “leg” by recasting the nature of the relief sought and denied. Jardin created the motion and the form and substance of what he created is a motion to dismiss under section 27.003 of the Texas Civil Practice and Remedies Code.
. The Texas Citizens’ Participation Act, also known as the Texаs Anti-SLAPP statute, is chapter 27 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code §§ 27.001-27.011 (West 2014).
. Unless otherwise stated, all statutory references in this opinion are to the Texas Civil Practice and Remedies Code.
. Under current Texas law, section 51.014 has two subsections denominated “(a)(12).” See Tex. Civ. Prac. & Rem.Code § 51.014 (West 2014). The majority and dissenting opinions address the subsection (a)(12) dealing with interlocutory orders in which the trial court denies a motion to dismiss filed under section 27.003, rather than the subsection (a)(12) dealing with interlocutory orders in which the trial court denies a motion for summary judgment filed by an electric utility regarding liability in a suit subject to section 75.0022. See id.
. Becausе the statute by which the Texas Legislature enacted this provision received a vote of two-thirds of all the members elected to each house, this statute took effect immediately upon approval by the Governor, which occurred on June 14, 2013. See Tex. Civ. Prac. & Rem.Code § 51.014; Act of May 24, 2013, 83rd Leg., R. S„ H.B. 2935, § 6.
. Because section 51.014(a)(12) was in effect when the trial court denied Jardin’s motion to dismiss and when Jardin filed his notice of appeal, this statute applies prospectively to this appeal. Therefore, it is unnecessary to address, as the majority does, whether this statute should be applied retroactively. See ante at pp. 768-69 & n. 4.
. Tex. Civ. Prac. & Rem.Code § 51.014(a).
. See id.
. See id.
. See id.; Tex. Dep't of Crim. Justice v. Simons,
.See Tex. Civ. Prac. & Rem.Code § 51.014(a)(12); Simons,