Avire, LLC v. Priority 1 Aviation Inc. and Robert Tijerina, Individually ( 2022 )

Affirmed and Memorandum Opinion filed April 5, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00172-CV
AVIRE, LLC, Appellant
V.
PRIORITY 1 AVIATION INC. AND ROBERT TIJERINA,
INDIVIDUALLY, Appellees
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2020-72706
MEMORANDUM OPINION
This interlocutory appeal under the Texas Citizens Participation Act (TCPA)
arises from a dispute surrounding the sale of a private airplane. See Tex. Civ. Prac.
& Rem. Code § 27.001, et seq. Appellant Avire purchased the airplane from Starflite,
the seller and a non-party to the underlying suit, through the brokerage of appellees
Priority 1 Aviation, Inc. and Robert Tijerina (collectively the Priority 1 Parties).
After purchasing the plane Avire discovered the plane did not have a flight data
recorder. The underlying dispute centers in part on whether appellees represented
the plane had a flight data recorder and whether Avire exercised due diligence in
ensuring that it did. The Priority 1 Parties sued Avire and Yisroel Steve Rechnitz,
Avire’s owner, in Harris County asserting claims for anti-suit injunction, tortious
interference with a contract, declaratory judgment, and negligent misrepresentation.
Rechnitz filed a special appearance asserting he was not subject to personal
jurisdiction in Texas. Avire and Rechnitz, subject to Rechnitz’s special appearance,
filed a motion to dismiss under the TCPA, which the trial court denied. Concluding
the TCPA does not apply to the Priority 1 Parties’ action, we affirm.
BACKGROUND
Avire, a California company that leases private planes to charter companies,
purchased a Gulfstream IV (G-IV) private plane from Starflite B LLC, a Houston
company. The Priority 1 Parties brokered the transaction. After extensive
negotiations and an inspection, Avire purchased the plane for $975,000. The Priority
1 Parties received a broker’s fee for their role in the transaction. After Avire
purchased the plane, on June 23, 2020, it learned the plane did not have a flight data
recorder. Avire alleged the Priority 1 Parties represented the plane had a flight data
recorder and that it could not charter the plane for flights to Europe without one. The
Priority 1 Parties argued Avire was responsible for inspecting the plane before the
sale.
On September 3, 2020, Avire sent a demand letter to the Priority 1 Parties
asserting that the Priority 1 Parties (1) breached their fiduciary duty by falsely
representing that the plane had a flight data recorder; (2) breached an oral agreement
with Avire on scheduled maintenance; and (3) misrepresented that the Priority 1
Parties received a commission from Starflight. Avire demanded return of $50,000 in
broker fees, $38,595 for the cost of maintenance, and $500,000 for installation of a
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flight data recorder. Avire stated if it did not receive payment it would “pursue all
rights and remedies available by law.”
On October 28, 2020, Avire filed suit against the Priority 1 Parties in
California Federal District Court. Avire’s federal action echoed the demands listed
in the September letter. The Priority 1 Parties sought dismissal of the federal action
pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal
jurisdiction. On February 2, 2021, the California Federal District Court dismissed
the federal action for lack of personal jurisdiction.
In the meantime, on November 11, 2020, the Priority 1 Parties sued Avire and
Rechnitz in Harris County District Court asserting claims for (1) anti-suit injunction;
(2) tortious interference with a contract; (3) declaratory judgment; and (4) negligent
misrepresentation. The Priority 1 Parties pleaded the following:
• Anti-suit injunction. Avire and Rechnitz breached the agreement
with Starflite by “attempting to obtain money under duress from
Starflite’s broker by threatening to file a frivolous lawsuit.”
• Tortious interference. Avire and Rechnitz interfered with the
Priority 1 Parties’ brokerage contract with Starflite by alleging
the Priority 1 Parties breached the contract.
• Declaratory judgment. The Priority 1 Parties sought a
declaration that they had a valid agreement for sale of the plane
with Starflite, the Priority 1 Parties were not a party to the
agreement, and Avire acknowledged that Starflite complied with
the agreement.
• Negligent misrepresentation. Avire misrepresented the “bare
minimum inspections” it needed before purchasing the airplane.
Subject to Rechnitz’s special appearance, Avire and Rechnitz filed a joint
motion to dismiss pursuant to the TCPA. See Tex. Civ. Prac. & Rem. Code §
27.003(a). They argued that: (1) the TCPA applied to each of the Priority 1 Parties’
claims because the claims were based on, or in response to, Avire and Rechnitz’s
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exercise of the right to petition; and (2) the Priority 1 Parties could not meet their
prima facie burden to present clear and specific evidence supporting each essential
element of their claims. In response, the Priority 1 Parties disputed that the TCPA
applied to any of their claims and asserted they met their prima facie evidentiary
burden. The Priority 1 Parties also asserted that Avire and Rechnitz failed to file
their motion to dismiss within the statutory deadline. See Tex. Civ. Prac. & Rem.
Code § 27.003(b) (motion must be filed not later than the 60th day after the date of
service of the legal action).
The trial court granted leave to file the motion to dismiss, and denied the
motion to dismiss. Avire and Rechnitz perfected this interlocutory appeal. 1
ANALYSIS
In two issues on appeal Avire asserts the trial court erred in denying its motion
to dismiss because (1) it established by a preponderance of the evidence that the
Priority 1 Parties’ claims arose out of or were in response to Avire’s exercise of the
right to petition; and (2) the Priority 1 Parties did not meet their burden of producing
clear and specific evidence to support the essential elements of their claims.
I. Standard of Review and Applicable Law
The TCPA contemplates an expedited dismissal procedure applicable to
claims brought to intimidate or silence a defendant’s exercise of the rights
enumerated in the Act. Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591
S.W.3d 127, 132 (Tex. 2019). The party invoking the TCPA may file a motion to
dismiss the “legal action” and must show by a preponderance of the evidence that
the action is “based on or is in response to” that party’s exercise of the right of free
1
After this appeal was perfected, the trial court granted Rechnitz’s special appearance
dismissing him from the underlying suit. No party has challenged that order. Rechnitz is no longer
a party in this appeal.
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speech, right to petition, or right of association. Tex. Civ. Prac. & Rem. Code §§
27.003(a); 27.005(b). If the movant satisfies this burden, the trial court must dismiss
the lawsuit unless the nonmovant “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).
We construe the TCPA liberally to effectuate its purpose and intent fully. See
Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018); Cox
Media Grp., LLC v. Joselevitz, 524 S.W.3d 850, 859 (Tex. App.—Houston [14th
Dist.] 2017, no pet.); Tex. Civ. Prac. & Rem. Code § 27.011(b). A court’s
determination of whether claims fall within the TCPA’s framework is subject to a
de novo standard of review. See Adams, 547 S.W.3d at 894. Under that standard, we
“make an independent determination and apply the same standard used by the trial
court in the first instance.” Joselevitz, 524 S.W.3d at 859. We must consider the
relevant pleadings, evidence a court could consider under Texas Rule of Civil
Procedure 166a, and any supporting or opposing affidavits “stating the facts on
which the liability or defense is based.” Tex. Civ. Prac. & Rem. Code § 27.006(a).
We review these materials in the light most favorable to the nonmovant. See Enter.
Crude GP LLC v. Sealy Partners, LLC, 614 S.W.3d 283, 293–94 (Tex. App.—
Houston [14th Dist.] 2020, no pet.).
Before we address the application of the TCPA to the Priority 1 Parties’ claims
we address the Priority 1 Parties’ argument that this appeal is moot.
II. Mootness
The Priority 1 Parties argue this appeal has been rendered moot by the trial
court’s order granting the Priority 1 Parties’ nonsuit of the underlying action. We
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disagree.2
After Avire filed this interlocutory appeal the Priority 1 Parties filed a notice
of nonsuit with the trial court. The trial court subsequently signed an order granting
the nonsuit and dismissing the underlying suit without prejudice.
This court has repeatedly held that a party’s decision to nonsuit does not affect
a nonmoving party’s independent claims for affirmative relief, including motions for
dismissal under the TCPA. See Diogu Law Firm PLLC v. Melanson, No. 14-18-
01053-CV, 2020 WL 6142902, at *6 (Tex. App.—Houston [14th Dist.] Oct. 20,
2020, pet. denied) (mem. op.) (citing Abatecola v. 2 Savages Concrete Pumping,
LLC, No. 14-17-00678-CV, 2018 WL 3118601, at *13 (Tex. App.—Houston [14th
Dist.] June 26, 2018, pet. denied) (mem. op.)). Consequently, the Priority 1 Parties’
nonsuit did not moot Avire’s pending appeal of the denial of its TCPA motion to
dismiss. See In re Diogu Law Firm, PLLC, No. 14-18-00878-CV, 2018 WL
4997322, at *1 (Tex. App.—Houston [14th Dist.] Oct. 16, 2018, orig. proceeding)
(mem. op.) (“A motion to dismiss under the TCPA survives a non-suit because a
victory on the motion to dismiss, which may include attorneys’ fees and sanctions,
would afford the movants more relief than a non-suit would.”). Having concluded
that this appeal is not moot, we turn to the issue of whether the TCPA applies to the
Priority 1 Parties’ legal action.
III. Application of the TCPA
The TCPA was amended in 2019. Act of May 17, 2019, 86th Leg., R.S., ch.
378, 2019 Tex. Gen. Laws 684. One of the more significant changes to the statute
was a narrowing of the categories of connections a claim could have to the exercise
of a protected right to enable the movant to seek dismissal. See ML Dev, LP v. Ross
2
We previously denied the Priority 1 Parties’ motion to dismiss asserting mootness.
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Dress for Less, Inc., No. 01-20-00773-CV, 2021 WL 2096656, at *2 (Tex. App.—
Houston [1st Dist.] May 25, 2021, no pet.). Before the most recent amendment, the
movant had to establish that the claim against it was “based on, relates to, or is in
response to” the movant’s exercise of a protected right. Act of May 21, 2011, 82nd
Leg., R.S., ch. 341, 2011 Tex. Gen. Laws 961, 963 (amended 2019). “Relates to”
was arguably the most expansive of the three categories of connections and brought
tangential communications within the TCPA’s reach. See ML Dev, LP, 2021 WL
2096656, at *2 (citing Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 604
(Tex. App.—San Antonio 2018, pet. denied) (interpreting “relates to” as a broad
qualifier)).
The most recent amendment deleted “relates to,” requiring future movants to
establish that the legal actions they seek to dismiss are “based on” or “in response
to” their exercise of a protected right. Tex. Civ. Prac. & Rem. Code §§ 27.003(a),
27.005(b); see ML Dev, LP, 2021 WL 2096656, at *3 (citing Laura Lee Prather &
Robert T. Sherwin, The Changing Landscape of the Texas Citizens Participation
Act, 52 Tex. Tech L. Rev. 163, 169 (2020) (noting that deletion of “relates to”
increases burden on movants seeking dismissal)).
Thus, under the current version of the TCPA, for Avire to successfully obtain
dismissal of the Priority 1 Parties’ claims against it, Avire had to establish by a
preponderance of the evidence that the Priority 1 Parties’ “legal action is based on
or is in response to [Avire’s] exercise of the right of free speech, right to petition, or
right of association.” Tex. Civ. Prac. & Rem. Code § 27.003(a). As relevant here,
the TCPA defines the right to petition as including:
(A) a communication in or pertaining to:
(i) a judicial proceeding;
*****
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(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 of this state.
Tex. Civ. Prac. & Rem. Code § 27.001.
For all of the rights protected under the TCPA, a “‘[c]ommunication’ includes
the making or submitting of a statement or document in any form or medium,
including oral, visual, written, audiovisual, or electronic.” Tex. Civ. Prac. & Rem.
Code § 27.001(1). The Supreme Court of Texas has held that the Act may protect
both public and private communications. See ExxonMobil Pipeline Co. v. Coleman,
512 S.W.3d 895, 899 (Tex. 2017) (discussing Lippincott v. Whisenhunt, 462 S.W.3d
507, 509 (Tex. 2015)).
In its motion Avire asserted that the Priority 1 Parties’ claims were based on
or in response to its right to petition. Avire focused on two communications: the pre-
suit demand letter, and the federal action filed in California.
A. The Pre-suit Demand Letter
Avire asserted that the Priority 1 Parties’ claims “arose out of the September
3, 2020 demand letter sent by Avire’s counsel to [the Priority 1 Parties] threatening
legal action if Avire’s demands were not met, and the subsequent lawsuit filed by
Avire in California.” As such, Avire asserted that the Priority 1 Parties’ claims were
based on or in response to Avire’s right to petition.
The TCPA broadly defines “exercise of the right to petition” and sets out
several ways in which a communication can implicate this right. Mattress Firm, Inc.
v. Deitch, 612 S.W.3d 467, 485–86 (Tex. App.—Houston [1st Dist.] 2020, pet.
denied). Under the TCPA, “exercise of the right to petition” includes a
communication in or pertaining to “a judicial proceeding” as well as “any other
communication that falls within the protection of the right to petition government
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under the Constitution of the United States or the constitution of this state.” Tex.
Civ. Prac. & Rem. Code § 27.001(4)(A)(i), (E); see U.S. Const. amend. I (“Congress
shall make no law . . . abridging . . . the right of the people . . . to petition the
Government for a redress of grievances.”); Tex. Const. art. I, § 27 (“The citizens
shall have the right . . . [to] apply to those invested with the powers of government
for redress of grievances or other purposes, by petition, address or remonstrance.”).
As to Avire’s assertion that the Priority 1 Parties’ claims arose out of the
demand letter as a communication pertaining to a judicial proceeding, this court has
held that pre-suit communications such as a demand letter do not fall within the
scope of “judicial proceeding” under the TCPA. Navidea Biopharmaceuticals, Inc.
v. Capital Royalty Partners II, L.P., No. 14-18-00740-CV, 2020 WL 5087826, at *4
(Tex. App.—Houston [14th Dist.] Aug. 28, 2020, pet. denied) (mem. op.) (citing
QTAT BPO Sols., Inc. v. Lee & Murphy Law Firm, G.P., 524 S.W.3d 770, 778 (Tex.
App.—Houston [14th Dist.] 2017, pet. denied)). “[T]he ordinary meaning of
‘judicial proceeding’ is an actual, pending proceeding and the TCPA’s use of the
phrase ‘pertaining to’ does not expand the ordinary meaning of ‘judicial proceeding’
to include anticipated or potential future proceedings.” Casey on Behalf of Est. of
Glover v. Stevens, 601 S.W.3d 919, 927 (Tex. App.—Amarillo 2020, no pet.)
(quoting Levatino v. Apple Tree Café Touring, Inc., 486 S.W.3d 724, 728–29 (Tex.
App.—Dallas 2016, pet. denied)) (citing QTAT BPO Sols., Inc., 524 S.W.3d at 777–
78 (finding “that pre-suit communications between a client and its lawyers were not
communications in or about a judicial proceeding because no judicial proceeding
had been initiated at the time of the communications”)). Therefore, a legal action
filed in response to or based on a pre-suit demand letter does not fit within the
TCPA’s definition of a communication pertaining to a judicial proceeding, which
could infringe on a party’s right to petition as defined by the Act.
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Avire concedes that the pre-suit demand letter does not fall within the
definition of a communication pertaining to a judicial proceeding and Avire argues
that the pre-suit demand letter implicates the right to petition under the definition
found in section 27.001(4)(E) of the TCPA, which asserts “any other communication
that falls within the protection of the right to petition government under the
Constitution of the United States or the constitution of this state” is included as a
communication implicating the right to petition. Tex. Civ. Prac. & Rem. Code §
27.001(4)(E). In support of this assertion Avire cites an opinion by the Austin Court
of Appeals, Long Canyon Phase II & III Homeowners Ass’n, Inc. v. Cashion, 517
S.W.3d 212, 220 (Tex. App.—Austin 2017, no pet.).
In Cashion, under the former version of the TCPA requiring only that a legal
action “relate to” a party’s exercise of the right to petition, the Austin Court of
Appeals addressed whether a pre-suit demand letter sent by a homeowner’s
association to two homeowners implicated the association’s right to petition under
subsections 27.001(4)(A)(i) and (E). See 517 S.W.3d at 220–21. The Austin Court
first concluded that because the letter was a pre-suit demand letter, it was necessarily
sent before a judicial proceeding was initiated, the letter did not pertain to a judicial
proceeding and did not fall within the definition of “exercise of the right to petition”
contained in subsection 27.001(4)(A)(i). Id. at 220. The court then addressed
whether the demand letter implicated the right to petition under subsection
27.001(4)(E). The court stated:
Subsection (E) reflects legislative intent that the definition be consistent
with and incorporate the nature and scope of the “right to petition” that
had been established in constitutional jurisprudence. The established
understanding under First Amendment jurisprudence, both now and at
the time of the TCPA’s enactment, was that presuit demand letters
generally fall within the “right to petition,” although there is a federal
circuit court case holding otherwise in the view that the petition right
embraces only communications made to or toward government and not
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those between private parties. While the majority rule indeed appears
to be founded on a policy-laden notion of courts providing “breathing
space” for the underlying right as opposed to specific support in
constitutional text, we must presume that the Legislature intended this
view of the protection’s scope to control nonetheless.
Id. at 220–21
The homeowners in Cashion argued that the allegations in the association’s
demand letter were meritless and made in bad faith, and thus the letter was an act of
“sham petitioning,” which is a “category of speech that falls outside First
Amendment protection.” Id. at 221. The Austin Court concluded that the
homeowners had not demonstrated that the allegations in the demand letter were
“objectively baseless,” such that “no reasonable litigant could realistically expect
success on the merits.” Id. As a result, the court held that the trial court “could only
conclude” that the demand letter sent by the association “sufficed as the ‘exercise of
the right to petition.’” Id.
We decline Avire’s invitation to expand the Austin Court’s holding to one that
would determine that the pre-suit demand letter in this case falls within the “right to
petition,” as defined in section 27.001(4)(E) of the TCPA. Not only did the court in
Cashion address a prior version of the TCPA, which allowed a broader application
of the Act, the court addressed whether the association’s claims in the demand letter
were meritless and made in bad faith, and thus the letter was an act of “sham
petitioning,” which is a “category of speech that falls outside First Amendment
protection.” Id. at 219. Those allegations are lacking in this case.
The Priority 1 Parties’ factual allegations are solely concerned with private
communications outside of, and unrelated to, any judicial or governmental
proceeding. See Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (noting that the
basis of a legal action is determined by the pleader’s allegations). Such claims do
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not implicate the right to petition. Republic Tavern & Music Hall, LLC v. Laurenzo's
Midtown Mgmt., LLC, 618 S.W.3d 118, 124–25 (Tex. App.—Houston [14th Dist.]
2020, no pet.) (“We decline to hold that the TCPA’s applicability turns solely on
which party won the race to the courthouse.”); see also Marrujo v. Wisenbaker
Builder Servs., Inc., No. 01-19-00056-CV, 2020 WL 7062318, at *9 (Tex. App.—
Houston [1st Dist.] Dec. 3, 2020, no pet.) (mem. op.) (right to petition not implicated
by the mere fact that the claims were brought after the defendant was sued).
We conclude that Avire’s pre-suit demand letter was not a communication
falling within the protection of the right to petition government under the United
States or Texas Constitutions.
B. The California Federal Action
With regard to Avire’s assertion that the Priority 1 Parties’ claims fall within
the protection of the TCPA because they were filed in response to the lawsuit filed
by Avire in California, we disagree. The Priority 1 Parties’ claims were not filed in
response to Avire’s “exercise of the right to petition” as that phrase is defined in the
TCPA. Specifically, none of the Priority 1 Parties’ claims are predicated on a
“communication” protected by the TCPA. Rather, the Priority 1 Parties’ claims were
based on conduct that allegedly occurred before the filing of the California suit:
• Anti-suit injunction. Based on the pre-suit threat of an allegedly
frivolous suit.
• Tortious interference. Based on breach of contract before suit
was filed.
• Declaratory judgment. Seeking declaration that the Priority 1
Parties had a valid agreement for sale of the plane with Starflite,
which occurred months before suit was filed.
• Negligent misrepresentation. Based on alleged
misrepresentations during the negotiation for the purchase of the
plane.
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These allegations are independent of any of Avire’s communications made in
or with respect to the federal action in California. Therefore, the claims do not
contravene the TCPA’s protections with respect to the exercise of the right to
petition. See, e.g.,Viswanathan v. Kim, No. 14-19-00255-CV, 2021 WL 865189, at
*4 (Tex. App.—Houston [14th Dist.] Mar. 9, 2021, pet. denied) (mem. op.) (TCPA
did not apply when nonmovant’s allegations were unrelated to litigation); Republic
Tavern & Music Hall, 2020 WL 7626253, at *4 (TCPA did not apply where
nonmovant’s factual allegations were solely concerned with communications
outside of, and unrelated to, any judicial proceeding); Marrujo v. Wisenbaker
Builder Servs., Inc., No. 01-19-00056-CV, 2020 WL 7062318, at *9 (Tex. App.—
Houston [1st Dist.] Dec. 3, 2020, no pet.) (mem. op.) (right to petition not implicated
by the mere fact that the claims were brought after the defendant was sued).
Because Avire failed to meet its initial burden to prove by a preponderance of
the evidence that the Priority 1 Parties’ claims are based on or in response to its
exercise of the right to petition, the burden never shifted to the Priority 1 Parties to
establish a prima facie case for each element of their claims. Therefore, the trial court
did not err in denying Avire’s TCPA motion to dismiss. We overrule Avire’s first
issue and do not address its second issue challenging the Priority 1 Parties’
establishment of a prima facie case.
CONCLUSION
We affirm the trial court’s order denying Avire’s TCPA motion to dismiss.
/s/
Jerry Zimmerer
Justice
Panel consists of Justices Jewell, Zimmerer, and Hassan (Hassan, J. concurring
without opinion).
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