John Kawcak v. Antero Resources Corporation ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00301-CV
___________________________
JOHN KAWCAK, Appellant
V.
ANTERO RESOURCES CORPORATION, Appellee
On Appeal from the 236th District Court
Tarrant County, Texas
Trial Court No. 236-298822-18
Before Gabriel, Pittman, and Bassel, JJ.
Opinion by Justice Bassel
OPINION
I. Introduction
This is an interlocutory appeal from the denial of a motion to dismiss relying
on the Texas Citizens Participation Act (TCPA or Act). Appellant John Kawcak
candidly acknowledges how broadly he interprets the right of association found in the
Act. He largely concedes that Appellee Antero Resources Corporation accurately
characterizes his position as being that “the TCPA would apply in any case [in which
the] plaintiff alleged that the defendant conducted illegal acts through a conspiracy [in]
which the co-conspirators ‘associated’ with and communicated with each other.”
Adopting this interpretation turns what many believe is a scalpel used to explore
whether a lawsuit suppresses the exercise of constitutional rights into a maul that can
be wielded against almost any conspiracy claim, theft-of-trade-secrets claim, or
tortious-interference claim when that claim involves more than one actor producing
the interference.
No one can doubt the power of the TCPA to rock a claimant back on its heels.
Once in the grip of the TCPA, a party may stairstep down increasingly dire
consequences that most litigants do not face:
—All discovery is suspended until the trial court rules on the TCPA motion to
dismiss (unless the trial court allows specified and limited discovery);
—in an abbreviated time frame, the party bringing the claim must
establish a prima facie case for each of its essential elements with clear
and specific evidence;
2
—the parties may file an interlocutory appeal to test the trial
court’s ruling on the TCPA motion to dismiss; and
—a final result that may be an order of the trial or appellate
court that dismisses the action, bringing the consequences
of not only paying the party’s fees to pursue the action,
defend against the TCPA motion, and defend or prosecute
an appeal but also a mandatory just and equitable award of
the court costs, reasonable attorney’s fees, and expenses
incurred by the party’s opponent and an award of
sanctions.
We cannot agree with Kawcak’s position that the TCPA is so all-encompassing
a protection that any party making a conspiracy claim must face the potential of these
consequences—though his position is not without support either in the language of
the Act or the cases examining that language. The Act, in our view, contains a check
on the interpretation that Kawcak advocates: its plain language. Namely, the Act
defines “the right of association” as requiring the expression, promotion, pursuit, or
defense of “common interests.” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(2). In a
matter of first impression, we interpret the word “common” to have a plain meaning
that implicates more than the narrow selfish interests of persons who act jointly to
commit a tort. Because Kawcak concedes that his interest is shared only by himself
and his alleged co-conspirator, we conclude that the TCPA does not apply to this
lawsuit and affirm the trial court’s denial of the motion to dismiss.
II. Factual and Procedural Background
Plaintiff’s First Amended Petition was the live pleading when Kawcak filed his
TCPA motion to dismiss.
3
The amended petition, in a section titled “Need for Action,” gives the
following overview of the suit:
Antero [Resources Corporation] seeks to recover damages from former
rogue employee John Kawcak. Kawcak was Antero’s top operational
employee and [was] intimately involved in a bribery/kickback scheme
with Tommy Robertson and his affiliated companies. Kawcak was
Antero’s top operational employee during the relevant time period and
was responsible for hiring vendors and supervising and monitoring
Antero’s expenditure of hundreds of millions of dollars for operations in
West Virginia. The kickback scheme gave the Tommy Robertson
companies a monopoly over Antero’s operations and allowed them to
avoid any negative consequences due to their demonstrably deficient
work.
The factual allegations of the petition claim that Kawcak held the title of
Operations Superintendent for Antero in West Virginia. Kawcak’s job duties in that
role included selecting which vendor to use in operations, determining the amount to
pay the vendor, and supervising overall operations in the “utmost fidelity” to the
interests of Antero. Allegedly, Antero executed an internal policy that prohibited
Kawcak from taking gifts from a “supplier” of more than a nominal value and
prohibited the disclosure of confidential information.
Kawcak allegedly hired companies affiliated with an individual named Tommy
Robertson to perform services on Antero’s operations. According to the amended
petition, Tommy Robertson had a monopoly over Antero’s West Virginia operations,
and the services performed by Robertson or his companies were substandard. During
the period that Kawcak hired and retained the Tommy Robertson companies to
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provide services, Kawcak allegedly received the free use of an airplane from
Robertson and several hundred thousand dollars in payments.
The petition further states:
Tommy Robertson and the Tommy Robertson companies [allegedly]
made those improper payments in exchange for [Kawcak’s] choosing the
Tommy Robertson companies to provide goods and services over the
goods and services of other vendors; the goods and services of other
vendors were higher quality, more cost efficient, and more available
when compared to the Tommy Robertson companies.
This allegedly created a situation in which “it took the Tommy Robertson companies
roughly twice as long to perform the job, which roughly doubled the costs to Antero
because most of the goods and services are billed on a per/day basis.” Kawcak
allegedly favored the Tommy Robertson companies by never allowing “a meaningful
bidding process” to take place in the hiring of vendors.
Antero also claims that Kawcak allegedly shared confidential pricing
information with Robertson. This information was not provided to other vendors,
and the Tommy Robertson companies’ possession of the information was “a key
component of the Tommy Robertson companies’ scheme.” The scheme allegedly
operated so that
[t]he Tommy Robertson companies were able to adjust their prices to
ensure that Kawcak had plausible deniability for hiring them despite
their substandard work. Reducing the prices did not hurt the Tommy
Robertson companies because they still were able to extract huge profits
by taking much longer to accomplish a job[—]such as frac plug
drillouts[—]than other available vendors. Because the Tommy
Robertson companies charged by the day for most goods and services,
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the longer they took resulted in Antero paying unnecessary daily rentals.
Such sharing provides no benefit to Antero.
The amended petition lists a number of duties that Kawcak owed to Antero,
including acting only in the best interest of Antero, exercising good faith and
uncorrupted business judgment, avoiding self-dealing, avoiding the use of his position
for personal gain, refusing gifts that violated Antero’s conduct code, and acting with
integrity. Kawcak allegedly breached his duties
by knowingly approving incorrect and/or inflated invoices, disclosing
Antero’s confidential pricing information to Tommy Robertson, refusing
to exercise oversight over the Tommy Robertson companies, and
ensuring that Antero used the Tommy Robertson companies instead of
far more qualified, proficient[,] and cost-efficient vendors that were
available. Antero would not have made any payments to the Tommy
Robertson companies had Kawcak not breached the fiduciary duties he
owed to Antero.
Kawcak and Robertson and his companies allegedly concealed “their scheme” from
Antero and never disclosed the payments that Robertson and his companies made to
Kawcak.
Based on the factual allegations, Antero asserted claims against Kawcak for
(1) breach of fiduciary duty, (2) money had and received, (3) declaratory judgment,
(4) attorney’s fees, and (5) exemplary and punitive damages.
Shortly after the filing of the amended petition, Kawcak filed his motion to
dismiss under the TCPA. Both sides filed evidence on the issues raised by the TCPA
motion. The filings of the parties and the evidence attached to the filings consume
hundreds of pages in the clerk’s record. That evidence, however, did not broaden the
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basic issues outlined in the amended petition or give the suit a different character than
that which Kawcak acknowledges it has—a conspiracy exists between Kawcak and
Robertson or his companies to profit each. The evidence focused on whether
Antero’s allegations were sustainable or, in Kawcak’s view, were baseless and contrary
to common sense. After a hearing, the trial court denied Kawcak’s TCPA motion.
The issues Kawcak raises on appeal retain the same focus as those raised in the
trial court. As we noted at the outset of this opinion, Kawcak accepts Antero’s basic
characterization of the nature of the suit—“[Kawcak] conducted illegal acts through a
conspiracy [in] which the co-conspirators ‘associated’ with and communicated with
each other.” Other than argument about the core question of whether the TCPA
applies to this suit as the parties characterize it, the eight appellate issues raised by
Kawcak involve discovery disputes, the ability of the trial court to accept evidence
after hearing a TCPA motion, and whether (assuming the TCPA applies) Antero
carried its burden to bring forward prima facie evidence of the elements of its claims.
III. Standard of Review
Here, because we construe the language of the TCPA, we apply a de novo
standard of review. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex.
2017) (ExxonMobil II); see also Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890,
897 (Tex. 2018) (“In TCPA appeals, we have decided whether communications are
matters of public concern under a de novo standard of review, suggesting that the
determination is one of law.”).
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IV. The Background and the Structure of the TCPA
The TCPA is popularly known as the Texas Anti-SLAPP statute, referring to
Strategic Lawsuits Against Public Participation. Other courts have thoroughly
dissected the legislature’s incentive to enact legislation that addresses the “pernicious”
effect of “the harm intended by the baseless litigation [that suppresses] the sorts of
expressive activities that are the essence of self-government.” Serafine v. Blunt, 466
S.W.3d 352, 366 (Tex. App.—Austin 2015, no pet.) (op. on reh’g) (Pemberton, J.,
concurring).
These courts have done an equally thorough job of highlighting that the
legislature did not import the traditional remedies associated with SLAPP suits or
even use that term in the TCPA. Id. at 367. Instead,
[t]he specific means by which the [l]egislature sought to accomplish the
TCPA’s stated purposes was to provide a new set of procedural
mechanisms through which a litigant may require, by motion, a
threshold testing of the merits of legal proceedings or filings that are
deemed to implicate the expressive interests protected by the statute,
with the remedies of expedited dismissal, cost-shifting, and sanctions for
any found wanting.
Id. at 369.
This court recently described the zig-zagging burdens of proof found in the
TCPA’s procedural mechanisms:
Once a motion to dismiss is filed, a burden-shifting mechanism goes
into effect. [In re Lipsky, 460 S.W.3d 579, 586–87 (Tex. 2015) (orig.
proceeding).] First, a defendant moving for dismissal has the burden to
show by a preponderance of the evidence that the plaintiff filed a “legal
action” that is “based on, relates to, or is in response to” the defendant’s
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exercise of the right of free speech, the right to petition, or the right of
association. Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003(a), .005(b);
Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018).
Second, if the defendant satisfies that burden, to avoid dismissal, a
plaintiff must establish by clear and specific evidence a prima facie case
for each essential element of its claim. Tex. Civ. Prac. & Rem. Code
Ann. § 27.005(c). The requirement for “clear and specific evidence”
means the plaintiff “must provide enough detail to show the factual
basis for its claim.” Lipsky, 460 S.W.3d at 590–91.
Third, even if the plaintiff establishes a prima facie case, the
defendant can still obtain dismissal if he “establishes by a preponderance
of the evidence each essential element of a valid defense to the
nonmovant’s claim.” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d).[1]
Beving v. Beadles, 563 S.W.3d 399, 404 (Tex. App.—Fort Worth Oct. 18, 2018, pet.
filed).
The TCPA also sets deadlines for the filing of the motion to dismiss, the
hearing on the motion to dismiss, and the time in which the trial court must rule. See
Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003(b), .004, 005(a). As alluded to in the
introduction, the filing of the motion suspends discovery (unless the trial court, upon
a showing of good cause, orders specified and limited discovery). Id. §§ 27.003(c),
.006(b). The trial court makes its ruling by considering “the pleadings and supporting
and opposing affidavits stating the facts on which the liability or defense is based.” Id.
§ 27.006(a).
The original text was set forth in a single paragraph. We have broken the text
1
into three paragraphs to make it easier to see each point when the burden shifts.
9
An accelerated interlocutory appeal is permitted “from a trial court order on a
motion to dismiss” or a trial court’s failure to rule within the time specified to make a
ruling (and the failure to rule within that period is considered a denial of the motion).
Id. § 27.008. Finally, “the court shall award the moving party” both fees and sanctions
“[i]f the court orders dismissal of the legal action.” Id. § 27.009(a). The trial court
shall award costs and fees to the responding party if it “finds that a motion to
dismiss . . . is frivolous or solely intended to delay.” Id. § 27.009(b). Sanctions shall
also be imposed. Id. § 27.009(a)(2).
V. A Summary of How We Decide This Appeal
As noted in the introduction, our resolution of this appeal turns on the plain
meaning of the word “common.” As best we can tell, we are the first court to focus
on what the word means in the definition of the right of association found in the
TCPA. This focus may seem trivial, but it establishes a point where two roads of
TCPA interpretation diverge. One road assigns a meaning to the word “common”
that embraces a set of only two people and triggers the TCPA in almost any case of
conspiracy. The other road reads “common” to embrace a larger set defined by the
public or at least a group. In our view, a plain-meaning interpretation of the TCPA
supports the second definition. Though it is not the result that drives our analysis, the
choice of a definition tied to the public or a group does return the TCPA to the
mission that most believed it had at its passage.
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Our analysis is straightforward but admittedly long. To preview what lies
ahead, we bullet point the flow of our decision as follows:
• The communication implicating the right of association as defined in the
TCPA is broad but requires those relying on the right to have exercised the
right in furtherance of “common interests.”
• To determine what the word “common” means, we must determine its
plain meaning, and the supreme court has cautioned that we must be especially
careful to adhere to a plain-meaning analysis when interpreting the TCPA.
• Determining a word’s plain meaning is a dictionary-driven process; the
primary definition of “common” in Webster’s relates to a community at large,
and the secondary definition defines “common” to be an interest shared by
only two people.
• The definitions of “common” in Cambridge, MacMillan, and Oxford have
the same ordering as Webster’s but use less precise language.
• The definition of “common” in American Heritage, however, inverts the
definition, with the primary definition being the interest shared by two people.
o When faced with a word that has multiple definitions, we must
select the definition that is most consistent with the statutory scheme.
o We select the definition of “common” that relates to a group or
community for the following reasons:
 It carries out the stated purposes of the TCPA and
prevents the right of association from being an outlier in the
statutory scheme;
 The definition we apply fits the context of the other words
used in the TCPA definition of “the right of association” and
prevents the TCPA from being used to protect rights detached
from or even at odds with the TCPA; and
 The definition we apply carries out the Act’s manifest
object and avoids an absurd construction, irrationally favoring
certain parties with TCPA protection.
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• Opinions of other courts of appeals that may conflict with the outcome
of this appeal overread the stricture of the supreme court precedent and have
not examined the question we resolve.
• Opinions of other courts of appeals that align with our holding do so
without articulating the rationale we offer.
VI. Analysis
A. The TCPA’s Definition of the “Right of Association”
Here, Kawcak relies only on the right of association to argue for the application
of the TCPA. Thus, we focus on the Act’s definition of the “right of association” and
the initial burden of whether Kawcak has established by a preponderance of the
evidence that Antero has filed a legal action based on, relating to, or in response to
that right.
This task requires us to first synthesize the Act’s linguistic structure. The
structure is an inverted funnel with a broad triggering provision that grows even
broader by integrating the definitions.
• The trigger of the Act provides that a party may file a motion to dismiss
“[i]f a legal action is based on, relates to, or is in response to a party’s
exercise of the right of free speech, right to petition, or right of
association.” Id. § 27.003(a).
• Each of the rights enumerated in the triggering provision has a specific
definition, but each of those definitions incorporates the word
“communication.” Id. § 27.001(2), (3), (4). That word has its own
unique TCPA definition: “the making or submitting of a statement or
document in any form or medium, including oral, visual, written,
audiovisual, or electronic.” Id. § 27.001(1).
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• Finally, the right involved in this case—the right of association—is
defined as “a communication between individuals who join together to
collectively express, promote, pursue, or defend common interests.” Id.
§ 27.001(2).
Pulling these definitions through the triggering provision permits the filing of a TCPA
motion to dismiss based on the right of association, “[i]f a legal action is based on,
relates to, or is in response to” “the making or submitting of a statement or document
in any form or medium” “between individuals who join together to collectively
express, promote, pursue, or defend common interests.” We cannot fail to
acknowledge that this language gives the right of association a broad sweep.
B. Interpreting the Words of the TCPA by Analyzing their Plain Meaning
The breadth of the language of the TCPA—such as that set forth above
defining “the right of association”—has presented challenges (and temptations) to the
courts of appeals. But the Texas Supreme Court has made it clear that no special
rules of interpretation apply to rein in the Act out of concern that its words over-
remedy the evil it addresses. The overarching principle of interpretation with the
TCPA (or any statute) commands that we go no further to understand the Act than
the plain meaning of the words it uses:
“Our objective in construing a statute is to give effect to the
[l]egislature’s intent, which requires us to first look to the statute’s plain
language.” If the statute’s language is unambiguous, “we interpret the
statute according to its plain meaning.” Additionally, “[w]e presume
[that] the [l]egislature included each word in the statute for a purpose
and that words not included were purposefully omitted.”
13
ExxonMobil II, 512 S.W.3d at 899 (citations omitted). In all cases, but especially with
recent focus on those interpreting the TCPA, “[a] court may not judicially amend a
statute by adding words that are not contained in the language of the statute. Instead,
it must apply the statute as written.” Id. at 900 (quoting Lippincott v. Whisenhunt, 462
S.W.3d 507, 508 (Tex. 2015)).
Specifically, when dealing with the TCPA, the supreme court warns against
“improperly narrow[ing] the scope of the TCPA by ignoring the Act’s plain language
and inserting . . . requirement[s]” not found in that language. Id.; see also Adams, 547
S.W.3d at 894 (“We must construe the TCPA according to its text. The statute
assigns detailed definitions to many of the terms it employs, and we must adhere to
statutory definitions.” (citations omitted)). In other words, courts must interpret the
Act with awareness of the dissonance created by the fact that the TCPA’s express
purpose is to protect constitutional rights, yet the definitions of the rights set out in
the TCPA are not drafted to mimic the boundaries of constitutional rights established
by the First Amendment. Adams, 547 S.W.3d at 892 (“The TCPA provides its own
definition of ‘exercise of the right of free speech.’ The statutory definition is not fully
coextensive with the constitutional free-speech right protected by the First
Amendment to the U.S. Constitution and article I, section 8 of the Texas
[c]onstitution.”).
14
Exacerbating our challenge is the TCPA’s directive that it “shall be construed
liberally to effectuate its purpose and intent fully.” See Tex. Civ. Prac. & Rem. Code
Ann. § 27.011.
Thus, we begin our analysis thoroughly cautioned by the supreme court to
adhere to the Act’s plain language and to not import limitations on that language that
may exist in the constitutional right of association but which are not found in the
TCPA’s statutory definition. We can abide by the instruction to follow the meaning
of the words used to define “the right of association” while still not giving it the
breadth of application advocated by Kawcak. 2
C. Applying a Dictionary-Driven Definition of the Word “Common” Used in
the Definition of “the Right of Association”
Our focus is on the meaning of the word “common” that is used in defining
the common interests that individuals join together to collectively express, promote,
pursue, or defend when exercising a TCPA-defined right of association. We disagree
with Kawcak on the set of individuals that defines “common interests.” He presumes
“common” is an interest that is shared by only two individuals to further an interest
2
We are resolving this case at the first step of the TCPA process, i.e., whether
the TCPA applies to Antero’s suit. As noted above, that step is usually resolved based
on a preponderance of the evidence. See Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(b) (stating 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 legal action is
based on, relates to, or is in response to the party’s exercise of: . . . (3) the right of
association”). This step is simplified for us because Kawcak acknowledges the
character of his suit, and this allows us simply to answer the question of whether that
characterization fits within the terms of the TCPA.
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limited to their own selfish concerns. We conclude that set needs a broader
application, requiring interests common to the public or a group.
The first principle used to analyze the meaning of words in a statute is that
“[w]ords not statutorily defined bear their common, ordinary meaning unless a more
precise definition is apparent from the statutory context or the plain meaning yields an
absurd result.” Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018).
Then, “[t]o determine a term’s common, ordinary meaning, we typically look first to
dictionary definitions.” Id. And, again, we must be especially careful to follow this
“dictionary-driven” analysis when interpreting the language of the TCPA. Elite Auto
Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 204 (Tex. App.—Austin 2017,
pet. dism’d) (stating that the supreme court’s “analysis makes clear that this [c]ourt is
to adhere to a plain-meaning, dictionary-definition analysis of the text within the
TCPA’s definitions of protected expression, not the broader resort to constitutional
context that some of us have urged previously”).
Webster’s definition of “common” supports a plain meaning of the word that
embraces interests broader than the narrow interest shared by two people who engage
in a conspiracy where one conspirator allegedly breaches his fiduciary duty to profit
himself and his co-conspirator. The ordering of the definitions found in Webster’s
bears out this conclusion:
1a: of or relating to a community at large : generally shared or participated
in by individuals of a community: not limited to one person or special
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group
b: known to the community; esp: notorious as an accustomed general
vexation
c: belonging to or typical of all mankind; shared by all men
2a: held, enjoyed, experienced, or participated in equally by a number of
individuals: possessed or manifested by more than one individual : calling forth, giving rise to as source, or
sending out a number of different items: marked by the same
relationship to a number of persons or things
b: marked by or resulting from joint action of two or more parties:
practiced or engaged in by two or more equally
[.]
Webster’s Third New Int’l Dictionary 458 (2002).
Relying on the primary definition of “common,” we conclude that the common
interests required in the TCPA’s definition of “the right of association” must be
shared by the public or at least a group. We are not required to determine what group
crosses the boundary of common. Here, we need only decide that the interests of two
conspirators who join together to commit a tort do not cross the threshold of
common and thus do not bring the conspirators within the protections of the TCPA.
Three other dictionaries have the same ordering of the definition as Webster’s.
Those dictionaries have less precise language than that found in Webster’s, but each of
17
them makes the broader definition of “common” the primary definition and makes
the definition that limits the word to a set of only two or more the second choice. 3
D. Other Definitions of the Word “Common” and Our Ability to Select a
Definition that Fits Within the Context of the TCPA
One dictionary defines the word “common” by inverting the definition found
in Webster’s. See The American Heritage College Dictionary 281 (3d ed. 1993) (“1.a.
Belonging equally to or shared equally by two or more; joint. [1.]b. Of or relating to
the community as a whole; public.”). This definition literally supports Kawcak’s
premise that the set embraced by the word “common” in section 27.001(2) need be
no more than two individuals. But a plain meaning of “common” that might literally
embrace Kawcak’s position does not end the journey. When faced with an often-
3
The Cambridge dictionary defines “common” as follows: “[1.] found
frequently in many places or among many people: Money worries are a common problem for
people raising children. [2.] belonging to or shared by two or more people or things:
Guilt and forgiveness are themes common to all of her works.” See Cambridge Dictionary,
https://dictionary.cambridge.org/us/dictionary/english/common (last visited
Feb. 13, 2019).
The MacMillan dictionary defines “common” as follows: “1. happening
frequently, or existing in large amounts or numbers. 2. used, done, or shared by two
or more people.” See MacMillan Dictionary,
https://www.macmillandictionary.com/us/ dictionary/american/common_1 (last
visited Feb. 13, 2019).
The Oxford dictionary defines “common” as follows: “1. Occurring, found, or
done often; prevalent. 2. Shared by, coming from, or done by more than one.” See
Oxford Dictionary, https://en.oxforddictionaries.com/definition/us/common (last
visited Feb. 13, 2019).
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encountered word that has multiple definitions, we apply the definition most in
harmony with the word’s use in its statutory context.
The multiple dictionaries that support our decision to adopt the broader
definition of “common” are sufficient to support our holding. That said, we
appreciate both that we are the first court to dissect the definition of the word
“common” and that our holding arguably conflicts with how other courts have
applied the TCPA’s definition of “the right of association.” To be thorough, we will
also address why the definition we apply fits within the context of the TCPA.
“[I]f an undefined term has multiple common meanings, it is not necessarily
ambiguous; rather, we will apply the definition most consistent with the context of the
statutory scheme.” Thompson v. Tex. Dep’t Licensing & Regulation, 455 S.W.3d 569, 571
(Tex. 2014). This is a principle of long standing and one relied on recently and
repeatedly by the supreme court. See City of Richardson v. Oncor Elec. Delivery Co., 539
S.W.3d 252, 261 (Tex. 2018) (defining “street” and “alley” and noting that “when an
undefined statutory term has multiple common meanings, it is not necessarily
ambiguous; rather, we will apply the definition most consistent with the context of the
statutory scheme”) (internal quotations omitted); Sw. Royalties, Inc. v. Hegar, 500 S.W.3d
400, 405 (Tex. 2016) (defining “processing” and noting that “the meaning must be in
harmony and consistent with other statutory terms and [i]f a different, more limited,
or precise definition is apparent from the term’s use in the context of the statute, we
apply that meaning” and that “[i]f an undefined term has multiple common meanings,
19
it is not necessarily ambiguous; rather, we will apply the definition most consistent
with the context of the statutory scheme”) (internal quotations omitted); Greater
Houston P’ship v. Paxton, 468 S.W.3d 51, 58 (Tex. 2015) (defining “governmental body”
and noting that “[u]ndefined terms in a statute are typically given their ordinary
meaning, but if a different or more precise definition is apparent from the term’s use
in the context of the statute, we apply that meaning” and that “we will not give an
undefined term a meaning that is out of harmony or inconsistent with other terms in
the statute”); State v. $1,760.00 in U.S. Currency, 406 S.W.3d 177, 180 (Tex. 2013)
(defining “novelties”). 4
4
$1,760.00 delved deeply into the authority requiring that a word with multiple
definitions be given a meaning in harmony within its statutory context:
However, we will not give an undefined term a meaning that is out of
harmony or inconsistent with other terms in the statute. In re Hall, 286
S.W.3d 925, 929 (Tex. 2009) [(orig. proceeding)]; see also Fiess v. State
Farm Lloyds, 202 S.W.3d 744, 750–51 n.29 (Tex. 2006) (applying the
traditional canon of construction noscitur a sociis—or “it is known by its
associates”—to construe the last term within a series). “[I]f a different,
more limited, or precise definition is apparent from the term’s use in the
context of the statute, we apply that meaning.” Hall, 286 S.W.3d at 929.
Therefore, when an undefined term has multiple common meanings, the
definition most consistent within the context of the statute’s scheme
applies. See id. (applying the dictionary’s second definition of
“detention” as the term is used in the [Texas] Juvenile Justice Code); see
also [TGS–NOPEC Geophysical Co. v.] Combs, 340 S.W.3d [432,] 441 [(Tex.
2011)] (“It is a fundamental principle of statutory construction and
indeed of language itself that words’ meanings cannot be determined in
isolation but must be drawn from the context in which they are used.”).
406 S.W.3d at 180–81.
20
And the context we use to select the appropriate definition of “common” is the
statutory scheme as a whole. See Fort Worth Transp. Auth., 547 S.W.3d at 838 (“When
interpreting each provision, we must consider the statutory scheme as a whole.”
(citing 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008), and Helena Chem. Co. v.
Wilkins, 47 S.W.3d 486, 493 (Tex. 2001))). Our final goal in this exercise is one of
harmony, taking “the context and framework of the entire statute and meld[ing] its
words into a cohesive reflection of legislative intent.” Id. at 839 (quoting Cadena
Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518 S.W.3d 318, 326 (Tex.
2017)).
1. The definition of the word “common” that we apply fits within the context
and the statutory scheme of the TCPA.
When freed to examine the use of the word “common” in the statutory context
and the stated purpose of the TCPA, we are fully convinced that it must mean an
interest shared by more than two persons.
Before we integrate the stated purpose of the TCPA into our analysis, we first
clarify how we are using it. We are not letting the tail wag the dog by using the stated
purpose to alter the clear language of a statute. That we cannot do and are not doing.
Even if reading the plain language to contain purposes not expressed in its clear
language “would be the best policy choice for furthering the statute’s stated purpose,
we must ‘read unambiguous statutes as they are written, not as they make the most
policy sense’ because ‘policy arguments cannot prevail over the words of the statute.’”
21
Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 67 (Tex. 2014) (Boyd, J., dissenting)
(citation omitted) (quoting Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 629 (Tex.
2013), and In re Allen, 366 S.W.3d 696, 708 (Tex. 2012) (orig. proceeding)).
But by looking to a statutory purpose to aid us in deciding which of two
available definitions we should choose, we are simply acknowledging that a dog has a
tail. Ignoring a statute’s stated purpose willfully and needlessly blinds us from the
insight of a legitimate aid in making this choice:
Some courts and commentators have said that the prologue [or stated
purpose] cannot be invoked when the text is clear. The limitation is
reasonable if it means that the prologue cannot give words and phrases
of the dispositive text itself a meaning that they cannot bear. But the
limitation is unreasonable and erroneous if it means that the prologue cannot be
considered in determining which of various permissible meanings the dispositive text
bears. If the prologue is indeed an appropriate guide to meaning, it ought
to be considered along with the other factors in determining [whether]
the instrument is clear. The factors undermining its reliability affect its
weight, not its relevance.
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 218
(2012) (emphasis added) (footnote omitted); see also Tex. Health Presbyterian Hosp. of
Denton v. D.A., No. 17-0256, 2018 WL 6713207, at *4–5 (Tex. Dec. 21, 2018)
(referencing Reading Law in its grammatical analysis of section 74.153 of the Texas
Medical Liability Act and citing cases in which other courts have relied on Reading Law
in similar grammatical analyses).
As noted, the legislature stated the purpose of the Act, and that purpose gives
context that undermines a conclusion that the word “common” embraces the narrow
22
interests of two conspiring tortfeasors. The stated purpose is “to encourage and safeguard
the constitutional rights of persons to petition, speak freely, associate freely, and otherwise
participate in government to the maximum extent permitted by law and, at the same
time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ.
Prac. & Rem. Code Ann. § 27.002 (emphasis added). At the outset of this opinion
and as explained below, a definition of “common” that is limited to the interests of
two tortfeasors does not encourage and safeguard any constitutional right and
undermines the right of persons to file meritorious lawsuits for demonstrable injury.
Also, the definition of “common” that we apply brings the right of association
into harmony with the other rights defined by the Act. The other exercises of rights
defined in the TCPA have some public component (though they may not be
coextensive with First Amendment constitutional rights), and this makes it
incongruous to conclude that the word “common” does not embrace at least some
public or at least group component. For example, the “exercise of the right to free
speech” requires a “communication made in connection with a matter of public
concern.” Id. § 27.001(3). The “exercise of the right to petition” requires a
communication that pertains to governmental or at a minimum, public proceedings.
Id. § 27.001(4)(A)–(E).
To give the word “common” a definition that embraces the actions of only two
tortfeasors would make the right of association an outlier in this TCPA scheme. The
right of association would apply in a way completely divorced from any exercise of
23
public participation or from a relationship even tangentially related to the purpose of
the TCPA. This conclusion does not rely on giving the Act’s words a constitutional
gloss but on a common principle of interpretation.
The words in the definition of the “exercise of the right of association” in the
TCPA also express concepts that implicate acts of association that more resemble
those protected by the constitutional right rather than the association existing between
co-conspirators in the context of the allegations of this suit.
• The definition of the “exercise of the right of association” uses the word
“express.” Id. § 27.001(2) (“‘Exercise of the right of association’ means a
communication between individuals who join together to collectively
express, promote, pursue, or defend common interests.”). Though we
would be on weak footing to rely exclusively on this fact, one line of
cases involving the right of association defines that right as one of
“expressive association” that is designed to protect a broader range of
interests than simply those of two tortfeasors.5
In Ex parte Flores, 483 S.W.3d 632, 641–42 (Tex. App.—Houston [14th Dist.]
5
2015, pet. ref’d), the Fourteenth Court of Appeals noted the difference between
intimate and expressive association and noted the characteristics of the latter:
Another line of cases involves “a right to associate for the purpose of
engaging in those activities protected by the First Amendment—speech,
assembly, petition for the redress of grievances, and the exercise of
religion.” [Roberts v. United States Jaycees, 468 U.S. 609,] 618, 104 S. Ct.
3244[, 3249 (1984).] “[I]mplicit in the right to engage in activities
protected by the First Amendment [is] a corresponding right to associate
with others in pursuit of a wide variety of political, social, economic,
educational, religious, and cultural ends.” Id. at 622, 104 S. Ct. [at 3252]
(citing cases). This right of “expressive association” does not provide
generalized protection for “social association,” however. City of Dallas v.
Stanglin, 490 U.S. 19, 25, 109 S. Ct. 1591, [1595] (1989).
24
• The definition also requires “individuals” to “join together” to act
“collectively” to “express, promote, or defend common interests.”
o The definition does not state these interests to be “their”
common interests, which would point to common interests held
only by the individuals themselves. See Combs, 340 S.W.3d at 439
(“We presume that the [l]egislature chooses a statute’s language
with care, including each word chosen for a purpose, while
purposefully omitting words not chosen.”). The words included
and omitted from the statute reinforce our view that the word
“common” requires the activities of a group rather than the
selfish interests of two persons acting to conspire to commit a
breach of fiduciary duty. Indeed, this is a concept drawn from the
cases dealing with how the right of association is exercised—not
as two forwarding their selfish interests but as a group to forward
a set of interests held by the group. 6
6
Commentators on the right of association emphasize how the right functions
to serve group and not individual interests:
But the relationship of beliefs to the association serves an alternative
explanatory function. This inquiry concerns the function of the nominal
group, and disqualifies groups whose activity consists only of individual
pursuit of beliefs or goals by way of the group but not through it; groups
in which, instead, realization of the beliefs and goals is solely the product
of individual action.
There is clear evidence of this group-function view in several
cases, especially in Justice O’Connor’s concurring opinion in the Roberts
case. [468 U.S. at 639, 104 S. Ct. at 3261 (O’Connor, J., concurring)]. . . .
....
The distinction lies in the definitional nature of an association
under the First Amendment, not in the value of a group’s common
beliefs. Amway representatives, like shareholders in a corporation, may
believe in the company at many levels, and their investment may advance
the company’s goals—but their association with the company is
atomistic, not collective. Like the Jaycees, as Justice O’Connor
described them, shareholders may be like-minded, but they act as
individuals pursuing their own beliefs, not those of others. Their
25
o Second, to adopt Kawcak’s view renders “common” surplusage,
which can be formulated as follows: “the making or submitting
of a statement or document in any form or medium” “between
individuals who join together to collectively express, promote,
pursue, or defend [common] interests.” Because we seek to give
effect to the words that the legislature chose to include in the
statute, we likewise decline to interpret this section in such a way
that requires us to treat “common” as surplusage. See Cont’l Cas.
Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 402 (Tex.
2000) (“[W]e give effect to all words of a statute, and, if possible,
do not treat any statutory language as mere surplusage.”).
• Finally, in a case that we will discuss below, another justice notes that
there is “no constitutional right to engage in criminal behavior, commit
civil wrongs, or otherwise inflict injury upon others.” Cheniere Energy, Inc.
v. Lotfi, 449 S.W.3d 210, 217–20 (Tex. App.—Houston [1st Dist.] 2014,
no pet.) (op. on reh’g) (Jennings, J., concurring). This reinforces our
conclusion that the purpose of the TCPA is to protect constitutional
rights, while at the same time protecting “the rights of persons to file
meritorious lawsuits for demonstrable injury,” and may inform our
decision as to which definition of “common” best fits the context of the
Act.
Our analysis targets the words defining “the right of association.” It does not
rely solely on a conclusion that giving the words of the definition the breadth Kawcak
sees in them must violate a plain meaning because it so clearly exceeds the stated
purposes of the TCPA. However, in cases similar to ours, others have not shown any
reluctance to reach that conclusion. See Universal Plant Servs., Inc. v. Dresser-Rand Grp.,
Inc., No. 01-17-00555-CV, 2018 WL 6695813, at *17 (Tex. App.—Houston [1st Dist.]
decisions to invest or sell are not instances of collective action by the
group.
Randall P. Bezanson, Sheila A. Bentzen & C. Michael Judd, Mapping the Forms of
Expressive Association, 40 Pepp. L. Rev. 23, 33–34 (2012) (footnotes omitted).
26
Dec. 20, 2018, no pet.) (Keyes, J. concurring). The concurrence in Universal Plant dealt
with a petition that “involve[d] conspiring or colluding to misappropriate or convert
trade secrets and other protected information without any identified act of speech or
association on the part of [the parties] that can be given a non-tortious interpretation”
and asked whether a petition with these limited allegations even arguably could
warrant the filing of a TCPA motion to dismiss. Id. at *20.
Justice Keyes answered the question “no” because the plain meaning of “the
right of association”—albeit without any analysis of the term “common”—had to be
informed by the stated purposes of the TCPA. In her view, a plain meaning of the
right of association (or the TCPA in general) that did not take into account the plain
meaning of the purposes of the TCPA left the job of interpreting the act half-finished
because
[t]o read out of the TCPA the requirement that movants must prove that
the activities in which they are engaged and for which they were sued are
at least arguably lawful constitutionally protected activities contradicts
the statute’s purpose and its plain language. It also undermines the
second stated purpose of the Act, namely, to protect the rights of parties
. . . to bring claims [that are] meritorious on their face without having to
suffer vexatious delays based on the TCPA and the burden of proving a
prima facie case regardless of a showing by the TCPA movants that the
respondent’s suit against them was in retaliation for their exercise of
lawful protected rights of speech, petition, or assembly.
Id. She found nothing in the supreme court’s opinions in Lippencott and Coleman
contrary to her views. See id. at *16–19. We understand and share Justice Keyes’s
disbelief that an act with the targeted purpose of the TCPA has blossomed into a
27
protection for parties accused of tortious acts that have no arguable constitutional
protection. That said, the limit we place on the scope of the right of association does
not require a broad melding of the purposes and definitions of the TCPA but results
primarily from the words of the definition itself.
To conclude our explanation of the plain meaning of the definition of the word
“common,” let us reiterate what we are not saying; we are not saying that the right of
association defined by the TCPA precisely mimics (nor is required to mimic) a
constitutional right of association. But we are saying that a host of factors—the
purposes of the Act, the context created by the definitions of the other rights, and the
unique words of the definition read with a background of the structure of the
constitutional right of association—are guideposts that signal which of the varied
definitions of a word with so broad a meaning as “common” we should select.
Although we do not precisely define its limits, it is a definition that is broader than the
interests of two conspiring tortfeasors.
2. Our definition of “common” avoids an absurd construction of the TCPA
that defeats the stated purposes of the TCPA.
We ground our holding on the plain meaning of the words in the TCPA and
the principles that allow us to select a definition of “common” that adheres to a plain-
meaning construction. But that grounding does not prevent us from noting and
agreeing with our sister courts that highlight the absurdity and incongruity of giving
the TCPA’s right of association the breadth advocated by Kawcak. Admittedly, these
28
opinions are not buttressed by our plain-meaning analysis and instead go straight to
the conclusion that the broad reading advocated by Kawcak is absurd. That does not
mean that the opinions of our sister courts are without effect in a plain-meaning
analysis. One aspect of that analysis is that courts should choose between competing
constructions of a word based on which construction carries out rather than defeats
the statute’s object.
Specifically, “when . . . ‘the language is susceptible [to] two constructions, one
of which will carry out and the other defeat [its] manifest object, [the statute] should
receive the former construction.’” Hebner v. Reddy, 498 S.W.3d 37, 41 (Tex. 2016)
(quoting Citizens Bank of Bryan v. First State Bank, 580 S.W.2d 344, 348 (Tex. 1979),
which was cited in Reading Law). We have repeatedly highlighted the twin purposes of
the TCPA: (1) to “encourage and safeguard” constitutional rights and (2) to “protect
the rights of a person to file meritorious lawsuits for demonstrable injury.” See Tex.
Civ. Prac. & Rem. Code Ann. § 27.002. A definition of “common” that focuses on
the public or group implements both purposes while one that focuses on any interest
shared between two people serves neither.
The most succinct explanation of this concept is found in the Dallas Court of
Appeals’s opinion in ExxonMobil Pipeline Co. v. Coleman, 464 S.W.3d 841, 846–49 (Tex.
App.—Dallas 2015) (ExxonMobil I), rev’d, 512 S.W.3d 895 (Tex. 2017). The Dallas
court did not parse the language of the statute but went straight to the heart of why
the right of association must embrace more than the shared interest of two persons:
29
Here, if we were to look only to the text of section 27.001(2), defining
the right of association as a communication between individuals who
join together to collectively express, promote, pursue, or defend
common interests, it would result in giving constitutional right of
association protection to virtually any private communication between
two people about a shared interest. That is an absurd result that does
not promote the purpose of the Act. Chapter 27 is intended to curb
strategic lawsuits against public participation.
Id. at 847. The Texas Supreme Court reversed the Dallas court’s ExxonMobil I
opinion but only on its holding applying the TCPA’s definition of the right to free
speech; the supreme court specifically noted that it expressed “no opinion on whether
the challenged communications were made in the exercise of the right of association
under the TCPA.” ExxonMobil II, 512 S.W.3d at 902.
The Dallas court in ExxonMobil I agreed with the criticisms of an unbounded
reading of the right of association expressed by the concurrence of Justice Jennings in
our sister court in Houston’s Cheniere Energy. ExxonMobil I, 464 S.W.3d at 848–49.
That concurrence noted that the words used in the “awkward” definition of the right
of association “do[] appear to include communications that are not constitutionally
protected and do not concern citizen or public participation.” Cheniere Energy, 449
S.W.3d at 219. Justice Jennings went on to articulate a criticism of an expansive
reading that we share—to give the right of association the breadth advocated by
Kawcak would require a reading that makes the statute a sword to protect the
commission of civil wrongs and that ignores the stated purpose of the statute to
protect the right to file meritorious lawsuits:
30
Although citizens most certainly do have a First Amendment right to
associate to bring about social and political change for our “common
interests,” there is no constitutional right to engage in criminal behavior,
commit civil wrongs, or otherwise inflict injury upon others.
Importantly, the legislature expressly included within the stated purpose
of the TCPA its intent to, “at the same time, protect the rights of a
person to file meritorious lawsuits for demonstrable injury.”
Id. (quoting Tex. Civ. Prac. & Rem. Code Ann. § 27.002).
Justice Jennings also explained why reading the right of association so
expansively would not serve the TCPA’s stated purpose of protecting the right to file
a meritorious lawsuit but instead would “actually thwart any meritorious lawsuit for
demonstrable injury in which a plaintiff alleges that two or more persons engaged in a
civil wrong involving a communication.” Id. With that claim, “[t]he defendants
could, at the very least, add unnecessary delay and expense to a plaintiff’s lawsuit, no
matter how meritorious, by simply asserting that, in committing their complained-of
acts, they were exercising their right of association by engaging in a communication
‘to collectively express, promote, pursue, or defend’ their own private, ‘common
interests.’” Id. at 219–20; see also Universal Plant, 2018 WL 6695813, at *20 (stating that
an overly broad reading of the TCPA causes parties “to suffer vexatious delays based
on the TCPA and the burden of proving a prima facie case regardless of a showing by
the TCPA movants that the respondent’s suit against them was in retaliation for their
exercise of lawful protected rights of speech, petition, or assembly”).
The El Paso Court of Appeals has suggested that “[a]s the statute is literally
written, the common purpose for the association might be something improper, such
31
as that alleged here—to injure Appellees in retribution for some past vendetta.” MVS
Int’l Corp. v. Int’l Advert. Solutions, LLC, 545 S.W.3d 180, 194 (Tex. App.—El Paso
2017, no pet.). None of MVS’s holdings focus on this concern, but the opinion
highlighted an anomaly created by applying the right of association based on a
distinction hinging on whether a single tortfeasor or multiple tortfeasors acted:
Participants to a criminal conspiracy could require a plaintiff suing them
to make a clear and specific showing of a prima facie case in as few as
sixty days[] and[,] failing that, obtain a dismissal with prejudice.
Conversely, a single defendant, accused of much less culpable conduct,
might have to engage in years of discovery before seeking vindication.
Id. (citation omitted).
We have no need to anticipate the criticisms directed at labeling an application
of the TCPA absurd because those criticisms have already been written. The first is
the one we have addressed—we have the tail wagging the dog: if the plain language
of the statute supports Kawcak’s construction, then courts cannot restrict that
construction by superimposing a purpose, intent, or requirement not reflected in the
plain meaning of that language. See ExxonMobil II, 512 S.W.3d at 900–01. Again, we
base our holding on a plain-meaning analysis of the words used in the definition of
“the right of association.” We have stated as well why our holding violates neither
the supreme court’s directive to apply a plain meaning to the TCPA nor the holdings
applying that directive.
A second criticism attacks the conclusion that an expansive reading of the right
of association—such as that advocated by Kawcak—is absurd. Though not
32
specifically dealing with the right of association, this criticism begins with the premise
that “mere oddity does not equal absurdity.” Cavin v. Abbott, 545 S.W.3d 47, 70 (Tex.
App.—Austin 2017, no pet.).7 In Cavin’s view, the striking breadth of the TCPA
arguably accomplishes the legislature’s purpose:
It is conceivable that the [l]egislature would see fit to cast this net
exceptionally widely—opting for a hand grenade rather than a rifle
shot—perhaps in recognition of a high value being ascribed to
constitutionally-protected expression that may be subsumed somewhere
within the Act’s definitions of protected expression, or in an effort to
capture expression-targeting “legal actions” that might otherwise be
creatively pleaded so as to avoid the statute’s requirements. That such
crafting of a statute might have practical consequences far afield from its
subjectively intended purposes, or from what has been said to be a
statute’s intended purposes, is nothing new.
Id. at 71.
In our view, this argument proves too much and does not convince us that we
have selected too narrow a definition of “common.” The argument elevates the
TCPA’s stated purpose of protecting constitutional rights and subordinates the
TCPA’s other stated purpose to preserve the filing of meritorious lawsuits. That skew
does not accomplish the legislature’s directive that the TCPA “shall be construed
liberally to effectuate its purpose and intent fully.” See Tex. Civ. Prac. & Rem. Code
Ann. § 27.011(b). The long-established processes found in the rules of civil procedure
7
We agree that oddity is not the equivalent of absurdity. See Jaster v. Comet II
Constr., 438 S.W.3d 556, 569 (Tex. 2014) (“The ‘bar for reworking the words our
[l]egislature passed into law is high, and should be. The absurdity safety valve is
reserved for truly exceptional cases, and mere oddity does not equal absurdity.’”
(quoting Combs, 401 S.W.3d at 630)).
33
that allow for the orderly sorting of the meritorious from the unmeritorious and the
traditional rules for the allocation of attorney’s fees are abandoned based on
distinctions untethered and antithetical to the purposes of the TCPA—such as
whether only one defendant or two acted to commit a civil injury. That approach
strikes us as assuming that the legislature opted to protect citizen participation by
using not a hand grenade but the other weapon where close is good enough—an
atomic bomb.
E. The Conflict Between Our Holding and Those of Other Courts of Appeals
As we have just telegraphed, our holdings arguably conflict with several
opinions from the Austin Court of Appeals. Specifically, the Austin court has held
that the TCPA’s right of association encompasses claims for trade-secret
misappropriation, conspiracy to misappropriate trade secrets, and tortious
interference. See Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 881 (Tex. App.—
Austin 2018, pet. filed); Craig v. Tejas Promotions, LLC, 550 S.W.3d 287, 296–97 (Tex.
App.—Austin 2018, pet. filed); Elite Auto Body, 520 S.W.3d at 205–06. 8 The holdings
Other courts have relied on the holdings of the Austin court to apply the
8
TCPA to conspiracy claims:
Similarly, allegations that Appellants “secretly conspired among
themselves” to “devise and implement wrongful and unlawful schemes”
to misappropriate WSP’s trade secrets, fraudulently transfer WSP assets
and trade secrets, engage in unfair competition, and tortiously interfere
with WSP’s existing contracts and prospective business relationships”
also necessarily involved a “communication.” See Tex. Civ. Prac. &
Rem. Code Ann. § 27.001(1); see also [Craig, 550 S.W.3d at 296–97]
34
of the Austin court do not address the definition of “common” and instead focus on
the definition of the word “communication.” Though the result of those cases is
different than our own, they do not analyze the central question we discuss.
As noted, the self-described linchpin of the Austin court’s analyses focuses on
the Act’s definition of “communication” and apparently assumes that the interest of
the tortfeasors was a common one under the TCPA:
The linchpin of our Autocraft analysis was that the Texas Supreme
Court’s TCPA precedents instructed that we apply a “plain-meaning”
construction of the Act’s broad terms that, at least with respect to the
movant’s initial burden, operates largely independently of and extends
considerably beyond the [constitutional] “right of association,” “speech,”
or “petition” that might otherwise have informed the meaning of those
terms. Consequently, it was enough that Precision had alleged conduct by Autocraft
(determining that conspiring to misappropriate trade secrets involved a
TCPA communication).
Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2018 WL 6695810, at *12 (Tex.
App.—Houston [1st Dist.] Dec. 20, 2018, no pet. h.); see also Morgan v. Clements Fluids
S. Tex., Ltd., No. 12-18-00055-CV, 2018 WL 5796994, at *3 (Tex. App.—Tyler Nov.
5, 2018, no pet.) (“Applying these definitions to Clements’[s] pleadings, we conclude
that Clements’[s] misappropriation of trade secrets claim is ‘based on, relates to, or is
in response to,’ at least in part, Appellants’ ‘communications’ among themselves and
others within the Greenwell and ChemCo enterprise through which they have
allegedly shared or utilized the information to which Clements claims trade secret
protection.”) (citing Elite Auto Body, 520 S.W.3d at 198). At least one other court has
reached the same conclusion without citing the cases from the Austin court. See
Abatecola v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV, 2018 WL 3118601,
at *8 (Tex. App.—Houston [14th Dist.] June 26, 2018, pet. filed) (mem. op.) (not
citing authority from Austin Court of Appeals but holding that “with respect to
MacDonald’s hiring, this communication was made by individuals who ‘join[ed]
together to collectively express, promote, pursue, or defend common interests,’ the
common interests being the business of Hi-Tech, or as 2 Savages alleged, Hi-Tech
‘conspired with Defendant Chad MacDonald to violate and interfere with the Non-
Compete Contract between himself and 2 Savages’”).
35
that would fall within this plain-meaning reading of the TCPA’s definition of
“communication” (which is not explicitly limited to constitutionally protected
expression, but “includes the making or submitting of a statement or document in any
form or medium, including oral, visual, written, audiovisual, or electronic”) and, in
turn, the “exercise of the right of association” (a “communication,” so defined,
“between individuals who join together to collectively express, promote, pursue, or
defend common interests[,”] inasmuch as the individual conspirators had allegedly
made the complained-of “communications” between themselves to further Precision’s
rival business.
Craig, 550 S.W.3d at 294–95 (emphasis added and footnotes omitted). The Austin
court’s statement relies on the same supreme court opinions that we have cited, which
warn against superimposing the nuances of First Amendment jurisprudence on the
TCPA’s statutory definitions. See id. at 294–95 nn.30, 31.
But the supreme court precedent cited by the Austin court does not foreclose
our holding that chooses between a narrow and a broad definition of “common.”
Those cases focus on the exercise of free speech and chastise the courts of appeals for
looking beyond the statutory definition of whether a statement related to a matter of
public concern as defined in the TCPA. See Adams, 547 S.W.3d at 896 (rejecting court
of appeals’s analysis that the communications did not involve a matter of public
concern); ExxonMobil II, 512 S.W.3d at 901 (holding that the statements related to a
“matter of public concern” because “they concerned Coleman’s alleged failure to
gauge tank 7840, a process completed, at least in part, to reduce the potential
environmental, health, safety, and economic risks associated with noxious and
flammable chemicals overfilling and spilling onto the ground”); Lippincott, 462 S.W.3d
at 509 (holding that court of appeals erred by finding that the definition of
36
“communication” protected only public communication and concluding that
communication dealt with a matter of public concern); see also Hersh v. Tatum, 526
S.W.3d 462, 467 (Tex. 2017) (clarifying that “[w]hen it is clear from the plaintiff’s
pleadings that the action is covered by the Act, the defendant need show no more”).
None of these cases addresses the specific question of what the word
“common” means in section 27.001(2) of the TCPA.
F. The Holdings of Courts of Appeals that Apply the Right of Association to
Group Interests
Some holdings in opinions applying the right of association are more
consonant with our own than the ones just discussed. These cases apply the right of
association where the interest of a group is at play.9 We cite these cases to show the
9
Green v. Port of Call Homeowners Ass’n, No. 03-18-00264-CV, 2018 WL 4100855,
at *9 n.17 (Tex. App.—Austin Aug. 29, 2018, no pet. h.) (mem. op.) (“The defendants
are a homeowners’ association and its members and the alleged agents of the
association. The TCPA applies to legal actions based on, related to, or in response to
a party’s exercise of the right of association.”); Campone v. Kline, No. 03-16-00854-CV,
2018 WL 3652231, at *7 (Tex. App.—Austin Aug. 2, 2018, no pet.) (mem. op.)
(holding that appellees showed that appellants’ claim was based on appellees’ exercise
of the right of association as members of a spiritual community); Roach v. Ingram, 557
S.W.3d 203, 219 (Tex. App.—Houston [14th Dist.] 2018, pet. filed) (concluding that
Judicial Defendants had satisfied their statutory burden to show that Parents’ lawsuit
was based on, related to, or was in response to the Judicial Defendants’ “exercise of
the right of association as members of the Juvenile Board engaging in
communications ‘between individuals who join together to collectively express,
promote, pursue, or defend common interests’”); Long Canyon Phase II & III
Homeowners Ass’n, v. Cashion, 517 S.W.3d 212, 226 (Tex. App.—Austin 2017, no pet.)
(Pemberton, J., concurring) (stating that the majority “reasons that an HOA’s
members ‘join together to collectively . . . promote, pursue, or defend common
interests,’ an accurate assertion if one assumes that such organizations serve to
advance collective neighborhood welfare and not merely competing sides of the petty
37
focus of many courts on group interests to underpin the “common interests”
referenced in the TCPA’s definition of “the right of association.” We acknowledge
that none of these cases duplicate our effort to glean the meaning of “common” or
necessarily support our holding other than to assume that “common interests” are
shared by a group.
personal squabbles sometimes seen within them”); Apple Tree Café Touring, Inc. v.
Levatino, No. 05-16-01380-CV, 2017 WL 3304641, at *3 (Tex. App.—Dallas Aug. 3,
2017, pet. denied) (mem. op.) (holding that Facebook and Twitter “discussions about
Badu and her career and artistic endeavors fall under the ‘right of association’ as they
are communications between individuals who join together to collectively express,
promote, pursue, or defend common interests in Badu and her career”); Fawcett v.
Grosu, 498 S.W.3d 650, 657 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (op.
on reh’g) (“It is undisputed that all of the parties, as members of Masons, have joined
together to collectively express, promote[,] or defend common interests.”); Fawcett v.
Rogers, 492 S.W.3d 18, 24 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (op. on
reh’g) (same); Backes v. Misko, 486 S.W.3d 7, 20–21 (Tex. App.—Dallas 2015, pets.
denied) (“These types of discussions clearly fall under the ‘right of association’ as they
were ‘communication[s] between individuals who join[ed] together to collectively
express, promote, pursue, or defend common interests’ within the horse
community.”); Neyland v. Thompson, No. 03-13-00643-CV, 2015 WL 1612155, at *4
(Tex. App.—Austin Apr. 7, 2015, no pet.) (mem. op.) (“The evidence shows that
HOA members share common interests, such as ownership of the Sunchase
‘Common Elements’ and ‘Common Expenses.’”); Herrera v. Stahl, 441 S.W.3d 739,
743 (Tex. App.—San Antonio 2014, no pet.) (“There is no dispute in this appeal that
the Association is a group of ‘individuals who join together to collectively express,
promote, pursue, or defend [the] common interests [of the Chesapeake Condominium
owners].’”); Combined Law Enforcement Ass’ns of Tex. v. Sheffield, No. 03-13-00105-CV,
2014 WL 411672, at *5 (Tex. App.—Austin Jan. 31, 2014, pets. denied) (mem. op.)
(“In the statute’s terms, these were communications between individuals who joined
together in CLEAT to collectively express, promote, or defend the common interests
of police officers.”).
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G. Antero’s Argument that We Do Not Reach
Antero urges us to resolve this case by concluding that its causes of action and
the underlying communications between Kawcak and his alleged co-conspirator are
not sufficiently related to implicate the TCPA. Antero supports this argument with
our precedent, which holds that simply alleging conduct that has a communication
embedded within it does not create the relationship between the claim and the
communication necessary to invoke the TCPA. See Smith v. Crestview NuV, LLC, No.
02-18-00220-CV, 2018 WL 6215763, at *4 (Tex. App.—Fort Worth Nov. 29, 2018,
pet. filed) (“Although Smith testified at his deposition that he and Armstrong had
discussions about the product, these discussions are not the basis of Crestview’s
narrow claim against him. The practical effect of Smith’s position—any action he
took as an aider under the [Texas Security Act] necessarily involved
communications—would seem to extend the definition of communication, and thus
the reach of the TCPA, to noncommunications.”).
Our opinion in Crestview NuV acknowledged the Austin’s court’s holdings in
Craig and Elite, stating that “in those cases, the plaintiffs specifically alleged that the
defendants improperly disclosed protected information to others, leading to the
conclusion that those plaintiffs had alleged a communication as that term is defined in
the TCPA.” Id. (citing Craig, 550 S.W.3d at 295–96; Elite, 520 S.W.3d at 197–98). As
we noted in the description of the allegations made in Antero’s petition, one aspect of
Antero’s claim is that Kawcak passed confidential information to the Tommy
39
Robertson companies to aid their alleged “scheme.” In the face of this allegation, we
likely could only sustain Antero’s argument if we rejected or distinguished the Austin
court’s holdings mentioned in Crestview NuV. Our holding allows us to resolve this
case without going to that length.
VII. Conclusion
Our opinion is long but our holding is narrow: the plain meaning of the word
“common” in TCPA section 27.001(2)’s definition of “the right of association”
requires more than two tortfeasors conspiring to act tortiously for their own selfish
benefit. Because Kawcak acknowledges that his invocation of the TCPA assumes a
definition of “common” at odds with our holding, we overrule Kawcak’s dispositive
first issue, which argues that the trial court erred by denying his TCPA motion. We
do not reach his remaining issues. 10 See Tex. R. App. P. 47.1 (requiring appellate court
to hand down a written opinion that disposes of every issue necessary to final
disposition of the appeal). Accordingly, we affirm the trial court’s denial of Kawcak’s
TCPA motion to dismiss.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: February 21, 2019
10
The fact that the TCPA should not have been invoked at all in response to
Antero’s claims obviates the need to examine challenges directed at how the trial
court resolved the TCPA motion to dismiss filed by Kawcak.
40