McDonald Oilfield Operations, LLC v. 3B Inspection, LLC Robert Beall, Chris Myrand, Kyle Grant, Patrick Bage and Dylan Rogge ( 2018 )

Opinion issued December 6, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00118-CV
———————————
MCDONALD OILFIELD OPERATIONS, LLC, Appellant
V.
3B INSPECTION, LLC, ROBERT BEALL, CHRIS MYRAND, KYLE
GRANT, PATRICK BAGE, AND DYLAN ROGGE, Appellees
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case No. 17-DCV-247216
OPINION
Appellees—3B Inspection, LLC and its principal Robert Beall (collectively,
3B Inspection), and individual employees of 3B Inspection: Chris Myrand, Kyle
Grant, Patrick Bage, and Dylan Rogge (collectively, individual employees)—filed
suit against appellant, McDonald Oilfield Operations, LLC. McDonald Oilfield
moved to dismiss the suit pursuant to the Texas Citizen Participation Act (TCPA),
and the trial court denied the motion. In three issues, McDonald Oilfield argues
that it successfully demonstrated that the TCPA applies here because 3B Inspection
and the individual employees filed this lawsuit in response to its exercise of its
right to petition, or, alternatively, that the lawsuit was based on, related to, or was
filed in response to its speech on matters of public concern. McDonald Oilfield
also argues that 3B Inspection and the individual employees failed to present clear
and specific evidence on each essential element of their claims.
We reverse and remand.
Background
3B Inspection and McDonald Oilfield are competitors in the pipeline
monitoring business. Since 2008, McDonald Oilfield has used “pipeline pigs,”
which perform pipeline monitoring and maintenance operations without having to
stop the flow of product within the pipeline, and other equipment to perform
external pipeline monitoring and to maintain pipeline integrity.
The individual employees—Myrand, Grant, Bage, and Rogge—worked for
McDonald Oilfield as independent contractors. Under standards set by the federal
government, McDonald Oilfield sponsored and maintained “Operator
Qualifications” demonstrating that the individual employees were properly trained
to perform pipeline monitoring tasks. In the declaration of McDonald Oilfield’s
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office manager, Latischia McDonald, the company provided further information
regarding Operator Qualifications:
Due to the type of work McDonald Oilfield specializes in, McDonald
Oilfield must maintain Operator Qualifications for the individuals
who perform work for it. Operator Qualifications are an industry
standard imposed by federal law and the U.S. Department of
Transportation, and having those qualifications are required for those
workers to perform work on pipelines. To receive Operator
Qualifications, pipeline workers receive training and subsequent
evaluations in order to determine whether he or she is qualified. Once
qualified, the Operator Qualification, which is sponsored by the
employer, is filed in a database that the United States Department of
Transportation or other operator companies can review to determine if
a pipeline has workers with Operator Qualifications. The database we
use is called Verisource which is itself an Operator Qualification
compliance company. McDonald Oilfield paid for [the individual
employees] to receive their Operator Qualifications and McDonald
Oilfield sponsored the Operator Qualifications. Operator companies
and the United States Department of Transportation can search
Verisource, or other databases maintained by other compliance
companies, to verify that workers possess the necessary Operator
Qualifications to perform the agreed upon scope of work.
In addition to maintaining Operator Qualifications for its pipeline workers,
McDonald Oilfield required background checks and drug testing, and it made
internal policies and procedures to ensure that its operators were properly trained
and qualified to perform their duties. McDonald Oilfield stated, through Latischia
McDonald’s declaration, that this was important for several reasons:
[I]f [McDonald Oilfield] does not follow these policies and
procedures, there can be catastrophic and deadly accidents out in the
field. For example, if a line locater is not correctly calibrated by an
experienced and trained user, a pipeline that contains oil, gas, natural
gas, or other hazardous substances, may be marked incorrectly. If a
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pipeline carrying such hazardous substances at high pressure is
marked incorrectly by an improperly calibrated line locator and is then
hit by construction equipment, a massive explosion, including the loss
of life and release of environmental contaminants, can occur.
Latischia McDonald further declared that “[p]ipeline pigging can also be very
dangerous if not performed properly by qualified workers and with proper
equipment” because
when launching a pig into the pipeline, it is sometimes pushed with
nitrogen or the same substance that is being transported through the
pipeline. This means the pressure of the pipeline must be known and
could require valves on the pipeline to have to be turned in order to
steer the pig in the correct direction. One must have an Operator
Qualification to turn those valves. If a valve is not turned correctly
and the pig goes in the wrong direction or into a valve, it could shut
the entire pipeline down. Also, if the valves are not turned correctly, it
can cause the substance the pipelines are carrying to mix. When
certain substances mix, there is also the potential for a deadly
explosion and release of environmental contaminants.
In 2016, Beall—who had many years of experience within the oil and gas
industry—formed 3B Inspection. Robert Beall is the principal of 3B Inspection,
and his associate, Greg Simko, is the “Co-President” of 3B Inspection. 3B
Inspection hired Myrand, Grant, Bage, and Rogge in August 2017.
According to Latischia McDonald’s declaration, McDonald Oilfield was not
initially aware that the individual employees had begun working for 3B Inspection.
Rather, McDonald believed that Myrand was out of town visiting family.
McDonald Oilfield asserted that it did not learn that Myrand and the other
individual employees had become employees of 3B Inspection until the end of
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September 2017. McDonald Oilfield asserted that, despite the change in
employers, the individual employees nevertheless continued using McDonald
Oilfield’s equipment and accessing McDonald Oilfield’s proprietary software and
databases.
Upon learning of the change in employers, McDonald Oilfield contacted the
individual employees—its former contractors—“to remind them of their
confidentiality obligations.” Specifically, on October 1, 2017, Latischia McDonald
texted Myrand, stating, “Hey Chris. This is just a follow up from my voicemail to
remind you that any equipment belonging to McDonald Oilfield Operations or Otis
& Sons must be returned today or theft of property charges will be filed.” The text
message also asked Myrand to “refrain from speaking ill about McDonald Oilfield
Operations” and informed him that false statements he had made could result in
McDonald Oilfield’s being able to file defamation claims against him. Latischia
McDonald also declared that she had verbally relayed the same message to the
other three individual employees on the same day.
On October 2, 2017, McDonald Oilfield suspended the Operator
Qualifications it was sponsoring for the individual employees. Latischia McDonald
declared:
While McDonald Oilfield can agree to make Operator Qualifications
portable, we were never asked to. Rather, we were coming to learn
that the individual Plaintiffs were acting in concert, behind our back,
and had taken and were using our property. As to that last point, we
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had absolutely no way to know whether these individuals (or others to
whom they passed off our equipment) were properly maintaining the
equipment, or were following industry standards or safety protocols.
All we knew was that they had stolen our equipment and confidential
and proprietary business information and were trying to hide the fact
that they were working for 3B Inspection and Beall. Moreover, had
there been any accidents involving Myrand, Grant, Bage, and Rogge,
the Operator Qualifications would have tracked back to McDonald
Oilfield and not their actual employer, 3B Inspection. These were all
concerns Beall and 3B Inspection should certainly have been aware
of. As such, in an effort to comply with industry standards and
practices and because of our safety concerns, McDonald Oilfield
suspended the Operator Qualifications. We felt we had no choice in
this matter, since we had no way of knowing who was using our
equipment, let alone how it was being maintained. Notably, our
decision did not and does not prevent 3B Inspection from sponsoring
Operator Qualifications for the same individuals.
McDonald Oilfield further asserted that it could have made the Operator
Qualifications “portable” but did not because “i) it was not asked; ii) the individual
plaintiffs seemed to be acting deceptively and in concert behind its back; and
iii) since the individual plaintiffs had completely severed their relationship with
McDonald Oilfield, it was no longer in any position to monitor or supervise their
performance or adherence to safety-related standards.”
On October 3, 2017, Latischia McDonald talked to Rogge’s mother, Tammy
Rogge, on the phone, warning her that Rogge was in breach of his employment
agreement with McDonald Oilfield because he had retained some proprietary
software and that she did not want Rogge “involved in anything that could cause
‘legal problems.’” Later that same day, McDonald Oilfield contacted the Fort Bend
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County Sheriff’s Office to report stolen property. Rogge arrived later that
afternoon at the McDonald Oilfield facility to return the mapping software and
observed a sheriff’s deputy arrive to prepare a police report for the stolen property.
Also on October 3, McDonald Oilfield received a cease and desist letter
from 3B Inspection’s lawyer. The letter stated:
McDonald Oilfield is making false and disparaging comments about
3B Inspection to clients of 3B Inspection in order to unlawfully
interfere with [its] business relationships. McDonald Oilfield has also
been contacting, threatening, and making defamatory statements
towards 3B Inspection’s employees Chris Myrand, Kyle Grant,
Patrick Bage, and Dylan Rogge. Finally, 3B Inspection believes that
McDonald Oilfield is also engaging in further unlawful conduct with
the intention of harming the company’s business, operations, and
relationships with its current and prospective clients of 3B Inspection.
The letter requested that McDonald Oilfield cease and desist from engaging in the
listed behavior. Beall also called McDonald Oilfield and spoke with Kelly
McDonald, the owner. Beall expressed a desire for the two companies to work
things out between them.
3B Inspection and the individual employees filed suit on October 4, 2017.
Ultimately, 3B Inspection alleged causes of action for business disparagement,
defamation, and tortious interference with a contract.1 3B Inspection alleged
1
The original petition listed 3B Inspection, Beall, and the four individual
employees as plaintiffs and also included a cause of action for tortious interference
with business relations. In a subsequent amended petition filed after McDonald
Oilfield moved to dismiss pursuant to the TCPA, the four individual employees
were dropped as plaintiffs, and 3B Inspection and Beall dropped the cause of
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generally that McDonald Oilfield “has engaged in a course of unlawful and
malicious conduct intended to interfere with and cause harm to the business
relationship between 3B Inspection and one of its current clients.” 3B Inspection
did not identify the client, but it alleged that the client “is a former client of
McDonald Oilfield.” 3B Inspection also made general statements that McDonald
Oilfield’s conduct included “making defamatory and disparaging remarks
regarding 3B Inspection to its client, contacting and making disparaging remarks
regarding 3B Inspection to certain employees of 3B Inspection who had been
former independent contractors of McDonald Oilfield, attempting to disrupt the
business operations of 3B Inspection and hinder 3B Inspection’s performance on a
client project, and otherwise attempting to harm the business and reputation of 3B
Inspection.”
In its amended petition, 3B Inspection identified a single interaction that
occurred, alleging that the unidentified client had informed 3B Inspection that
Kelly McDonald had contacted the client and stated that 3B Inspection was “not a
real company” and that Robert Beall “did not know what he was doing.” 3B
Inspection further alleged:
McDonald Oilfield intentionally caused the Operator Qualifications
(‘OQ’) of certain Employees of 3B Inspection to be suspended.
action for tortious interference in business relations. For the sake of clarity, we
consider the claims that were pending at the time the trial court ruled on
McDonald Oilfield’s motion to dismiss pursuant to the TCPA.
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Without holding an appropriate and active OQ, 3B Inspection’s
Employees cannot perform their required duties on Plaintiff’s
projects. McDonald Oilfield caused the cancellation of these OQ’s in
order to hinder 3B Inspection’s performance on a large project being
performed for 3B Inspection’s client (and a former client of
McDonald Oilfield). This conduct by McDonald Oilfield was done
with malicious intent to shut down the project and cause harm to 3B
Inspection’s business relationship with its client.
On October 30, 2017, McDonald Oilfield filed a counterclaim alleging
causes of action for violations of the Texas Uniform Trade Secrets Act and the
Texas Theft Liability Act, breach of contract, conversion, and conspiracy.
McDonald Oilfield alleged specific facts regarding its working relationship with
Myrand and the other individual employees, including that they had all agreed to
keep certain proprietary technology and information confidential and to return all
of McDonald Oilfield’s property upon termination of their employment. McDonald
Oilfield asserted that Myrand “kept and did not return a substantial amount of
equipment belonging to McDonald Oilfield.” It also alleged that the other
individual employees had used some of the equipment to benefit 3B Inspection.
McDonald Oilfield identified approximately $60,000 worth of property that was
not returned as “including (but not necessarily limited to):
• 7 HANS (or L22) boxes, which are expensive pieces of technical
equipment used to provide real-time tracking of a pig while being
moved through a pipeline;
• 3 transmitters (two models CD42-T3, and one model SAP
102000);
• 1 Metrotech Line Locator with Backbox;
• 1 Pipeline Inspection Company Pig Tracker/Receiver
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• 1 Wavetrack Receiver
• 1 Farwest pit gauge; and
• 1 set of custom-made pig-pulling poles.”
McDonald Oilfield also alleged that it had provided all of the individual employees
with particular software—“DeLorme Atlas”—that “is now being used on 3B jobs
by former McDonald Oilfield contractors” and that the individual employees were
“continuing to access a database for site documentation that was built by
McDonald Oilfield Operations” at a cost of more than $20,000. McDonald
Oilfield also alleged that “Beall colluded in, or aided and abetted 3B [Inspection],
Myrand, Grant, Bage, and Rogge in their wrongful conduct alleged herein,
including misappropriating McDonald Oilfield’s trade secrets and equipment.”
On December 4, 2017, McDonald Oilfield moved to dismiss all of 3B
Inspection and the individual employees’ claims against it pursuant to the TCPA.
McDonald Oilfield argued that 3B Inspection and the individual employees had
filed suit because of and in response to McDonald Oilfield’s exercise of its right to
free speech and right to petition. The motion to dismiss pointed out that 3B
Inspection filed its lawsuit just one day after Rogge learned that McDonald
Oilfield had made a report of theft to local law enforcement. It also argued that the
factual basis for 3B Inspection’s suit—alleged statements disparaging 3B
Inspection and McDonald Oilfield’s suspension of the individual employees’
Operator Qualifications—involved McDonald Oilfield’s rights to free speech
10
because all of the communications were on a matter of public concern, i.e., the
operation and safety of oil and gas pipelines. McDonald Oilfield also sought
attorney’s fees, costs, and sanctions in the event it prevailed on its TCPA motion to
dismiss. It provided an affidavit regarding attorney’s fees.
Along with its motion to dismiss, McDonald Oilfield also filed the
declaration of Latischia McDonald, the office manager for McDonald Oilfield,
which set out many of the facts stated above. In addition to the details regarding
McDonald Oilfield’s work and details of maintaining Operator Qualifications,
Latischia McDonald declared:
to be a preferred vendor for the Department of Transportation, which
McDonald Oilfield is, workers must have Operator Qualifications and
be subject to drug testing policy. I am aware of no requirement that
our company continue to sponsor or maintain Operator Qualifications
for personnel who are no longer working with or for us. Rather, my
understanding is that it is the obligation of whichever service
company that has engaged the personnel to maintain or sponsor those
individuals’ Operator Qualifications.
McDonald Oilfield also provided copies of the independent contractor
agreements and other employment documents pertaining to its employment of the
individual employees as independent contractors, its anti-drug and alcohol misuse
prevention plan as required by the U.S. Department of Transportation, and the
cease and desist letter sent to McDonald Oilfield by 3B Inspection’s attorney.
McDonald Oilfield also provided the declaration of Kelly McDonald, stating that
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he had received the cease and desist letter and the call from Beall the same day.
Specifically, McDonald stated:
Robert Beall, the owner of 3B Inspection called me on my company
phone. Beall introduced himself and told me that maybe he should
have made this call a “whole lot sooner to work things out.” He
indicated he “wasn’t that kind of person.” I understood that to mean
that Beall was not the type of person to file a lawsuit. I explained that
I was not sure why he was calling since McDonald Oilfield had just a
few hours earlier received a cease and desist letter. I also told Beall
that given the circumstances, I was not comfortable speaking with him
at that time. During the brief conversation, in which Beall suggested
we try to work things out, he did not mention that he had already filed
a lawsuit against McDonald Oilfield.
3B Inspection and Beall responded to the motion to dismiss.2 3B Inspection
asserted that the claims it alleged were not the kind that were covered by the
TCPA, but were based on McDonald Oilfield’s actions in cancelling the individual
employees’ Operator Qualifications and in Kelly McDonald’s making disparaging
remarks about 3B Inspection and Beall. Specifically, 3B Inspection argued in its
response:
3B Inspection did not file this lawsuit against McDonald Oilfield due
to McDonald Oilfield exercising its right to cancel the OQ’s of its
employees. . . . Instead, 3B Inspection filed this lawsuit against
McDonald Oilfield due to the obvious wrongful intent behind the
timing and manner of McDonald Oilfield’s cancellation of the
OQ’s. . . . The timing of McDonald Oilfield’s was clearly aimed at
interfering with 3B Inspection’s contract with its Customer.
2
The other named plaintiffs, the individual employees, were not listed in the
response to the motion to dismiss. However, at the hearing, it was stated on the
record that they were still being represented by the attorney for 3B Inspection and
Beall and that they also intended to join the response to the motion.
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3B Inspection further stated in its response to the motion to dismiss that it
filed the lawsuit based on the statements made against 3B Inspection as identified
by Beall and Simko, and it stated that McDonald Oilfield’s allegations that either
Beall or the individual employees had stolen any equipment were false. 3B
Inspection also argued that it could establish a prima facie case on each essential
element of its claims. It listed its business disparagement, defamation, and tortious
interference with contract claims, again making general allegations and referring to
the specific evidence set out in the affidavits of Beall and Simko.
In his affidavit, Robert Beall set out the history of his business and his
experience in the oil and gas field. He also stated:
In April of 2017, I first met with the owner of a current customer of
3B Inspection (hereinafter, the “Customer”) who had previously done
business with McDonald Oilfield. The Customer expressed his
displeasure with McDonald Oilfield to me and agreed to use 3B
Inspection for some pipeline projects. The Customer and 3B
Inspection have entered into a Master Services Agreement
(“MSA”). . . . McDonald Oilfield has engaged in conduct that I
believe was intended to disrupt the business operations of 3B
Inspection and to hinder 3B Inspection’s performance on its MSA
with the Customer. McDonald Oilfield intentionally caused the
Operator Qualifications (“OQ”) of certain employees of 3B Inspection
(who previously were independent contractors of McDonald Oilfield)
to be suspended.
Beall averred that the individual employees could not perform their regular
duties without Operator Qualifications. Beall acknowledged that McDonald
Oilfield had “the general right to take this action,” but he maintained that “the
13
manner and timing of this action by McDonald Oilfield conflicted with industry
norms and was obviously intended to disrupt 3B Inspection’s performance of its
contract with the Client.” Beall also averred that 3B Inspection had taken steps to
ensure that none of the individual employees had retained or were using any stolen
equipment and that it had agreed to a temporary injunction and had abided by its
terms. Beall also stated that 3B Inspection did not file its lawsuit in response to
McDonald Oilfield’s contacting law enforcement or “due to McDonald Oilfield
making any type of police report related to 3B Inspection or its employees or for
McDonald Oilfield reporting the theft of any property by 3B Inspection or its
employees.” Instead, he averred that “3B Inspection filed this lawsuit against
McDonald Oilfield due to the facts stated in this Affidavit and the Affidavit of
Greg Simko.”
Simko’s affidavit stated that he was the co-president of 3B Inspection. He
averred, “McDonald Oilfield has made defamatory comments and engaged in
conduct that I believe was intended to disrupt the business operations of 3B
Inspection and to hinder 3B Inspection’s performance on its MSA with the
Customer.” Specifically, Simko stated:
3B Inspection was also informed by the Customer that Kelly
McDonald, President of McDonald Oilfield, contacted the Customer
upon learning that the Customer had hired 3B Inspection. 3B
Inspection was informed that, during that conversation, Mr.
McDonald defamed 3B Inspection and Robert Beall by stating among
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other things, that 3B Inspection was “not a real company” and that
Robert Beall “did not know what he was doing.”
Simko repeated some of the same statements made by Beall regarding the
reasons underlying 3B Inspection’s filing suit as relating to the cancellation of the
individual employees’ Operator Qualifications. Regarding damages, Simko
averred:
McDonald Oilfield’s conduct has caused 3B Inspection to incur
damages. Among other things, McDonald Oilfield’s conduct has
damaged 3B Inspection by: (a) causing damage to 3B Inspection’s
business and profits such as delay damages; and (b) causing damage
to the reputation of 3B Inspection. 3B Inspection has also brought this
action for the purpose of vindicating its character and reputation.
3B Inspection also attached its employment agreement with Myrand to its
response to the motion to dismiss. It attached a copy of the agreed temporary
injunction.
3B Inspection and Beall amended their petition on January 16, 2018, to
include the factual allegations set out in its response and accompanying affidavits.
The trial court held a hearing and, on January 31, 2018, denied McDonald
Oilfield’s TCPA motion to dismiss 3B Inspection’s claims against it. This
interlocutory appeal followed.
Dismissal Under the TCPA
In its first two issues on appeal, McDonald Oilfield asserts that the trial court
erred in denying its motion to dismiss pursuant to the TCPA because it established
15
that 3B Inspection’s claims fell within the scope of the TCPA. McDonald Oilfield
asserts that it demonstrated that 3B Inspection’s claims were based on, related to,
or were filed in response to McDonald Oilfield’s exercise of its right to petition, by
reporting the alleged theft to law enforcement, and its right to speak on a matter of
public concern, by suspending the individual employees’ Operator Qualifications
and making other statements relevant to the safety of oil and gas pipeline activities.
A. Standard of Review
We review de novo the denial of a TCPA motion to dismiss. Better Bus.
Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353
(Tex. App.—Houston [1st Dist.] 2013, pet. denied); see also Dolcefino v. Cypress
Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.] 2017, no pet.)
(applying de novo standard to TCPA motion to dismiss denied by operation of law)
(citing Avila v. Larrea, 394 S.W.3d 646, 652–53, 656 (Tex. App.—Dallas 2012,
pet. denied)). In determining whether to grant or deny a motion to dismiss, the
court must consider the pleadings and supporting and opposing affidavits stating
the facts on which the liability or defense is based. TEX. CIV. PRAC. & REM. CODE
ANN. § 27.006(a) (West 2015). We view the evidence in the light most favorable to
the nonmovant. Dolcefino, 540 S.W.3d at 199; see Cheniere Energy, Inc. v. Lotfi,
449 S.W.3d 210, 214 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
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B. TCPA Statutory Scheme
The stated purpose of the TCPA “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 (West 2015).
The Act further expressly provides, “This chapter shall be construed liberally to
effectuate its purpose and intent fully.” Id. § 27.011(b) (West 2015).
Materially here, the TCPA provides, “If 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, that party may file a motion to dismiss the legal action.” Id.
§ 27.003 (West 2015). The Act defines “legal action” as “a lawsuit, cause of
action, petition, complaint, cross-claim, or counterclaim or any other judicial
pleading or filing that requests legal or equitable relief.” Id. § 27.001(6) (West
2015). It further defines “exercise of the right of free speech” to mean “a
communication made in connection with a matter of public concern.” Id.
§ 27.001(3). It defines “exercise of the right to petition” to mean:
(A) a communication in or pertaining to:
(i) a judicial proceeding; [or]
(ii) an official proceeding, other than a judicial proceeding, to
administer the law;
17
....
(C) a communication that is reasonably likely to encourage
consideration or review of an issue by a legislative, executive,
judicial, or other governmental body or in another governmental or
official proceeding; [and]
....
(E) any other communication that falls within the protection of the
right to petition government under the Constitution of the United
States or the constitution of this state.
Id. § 27.001(4).
The TCPA defines “communication” as including “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). And it defines “matter of public
concern” as including “an issue related to: (A) health or safety; (B) environmental,
economic, or community well-being; (C) the government; (D) a public official or
public figure; or (E) a good, product, or service in the marketplace.” Id.
§ 27.001(7).
The TCPA further states:
(b) Except as provided by Subsection (c), on the motion of a party
under Section 27.003, 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:
(1) the right of free speech;
(2) the right to petition; or
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(3) the right of association.
(c) The court may not dismiss a legal action under this section if the
party bringing the legal action establishes by clear and specific
evidence a prima facie case for each essential element of the claim in
question.
(d) Notwithstanding the provisions of Subsection (c), the court shall
dismiss a legal action against the moving party if the moving party
establishes by a preponderance of the evidence each essential element
of a valid defense to the nonmovant’s claim.
Id. § 27.005 (West 2015).
The Texas Supreme Court has recognized that the stated purpose of the
TCPA 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.’” ExxonMobil Pipeline
Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (quoting TEX. CIV. PRAC. &
REM. CODE ANN. § 27.002); Hersh v. Tatum, 526 S.W.3d 462, 466 (Tex. 2017)
(same).
The TCPA “protects citizens from retaliatory lawsuits that seek to intimidate
or silence them” from exercising their First Amendment freedoms and provides a
procedure for the “expedited dismissal of such suits.” In re Lipsky, 460 S.W.3d
579, 586 (Tex. 2015) (orig. proceeding); Epperson v. Mueller, No. 01-15-00231-
CV, 2016 WL 4253978, at *8 (Tex. App.—Houston [1st Dist.] Aug. 11, 2016, no
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pet.) (mem. op.). However, it is intended to identify and summarily dispose of
lawsuits “designed only to chill First Amendment rights, not to dismiss meritorious
lawsuits.” In re Lipsky, 460 S.W.3d at 589; Epperson, 2016 WL 4253978, at *8.
“But the plain language of the Act merely limits its scope to communications
involving a public subject—not communications in public form.” Lippincott v.
Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015); see also Adams v. Starside Custom
Builders, LLC, 547 S.W.3d 890, 892 (Tex. 2018) (holding that TCPA’s definition
of “exercise of the right of free speech” is “not fully coextensive with the
constitutional free-speech right” protected by United States and Texas
Constitutions). Texas courts have reinforced the plain language of the statute,
holding that the TCPA is designed to balance constitutional interests in protecting
rights, such as the freedom to comment on matters of public concern, with
accountability for abusing those privileges. See D Magazine Partners, L.P. v.
Rosenthal, 529 S.W.3d 429, 433–34 (Tex. 2017).
To effectuate the purpose of the Act, the TCPA provides a motion-to-
dismiss procedure that allows defendants who claim that a plaintiff has filed a
meritless suit in response to the defendant’s proper exercise of a constitutionally-
protected right to seek dismissal of the underlying action, attorney’s fees, and
sanctions at an early stage in the litigation. See TEX. CIV. PRAC. & REM. CODE
ANN. § 27.003(a); Dolcefino, 540 S.W.3d at 198. “The primary means by which
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the TCPA advances its purpose is . . . an expedited dismissal mechanism tied to a
burden-shifting analysis ‘through which a litigant may require, by motion, a
threshold testing of the merits of legal [actions] that are deemed to implicate the
express interests protected by the statute.’” Elite Auto Body LLC v. Autocraft
Bodywerks, Inc., 520 S.W.3d 191, 201 (Tex. App.—Austin 2017, pet. dism’d)
(quoting Serafine v. Blunt, 466 S.W.3d 352, 369 (Tex. App.—Austin 2015, no pet.)
(Pemberton, J., concurring)).
Courts use a “two-step procedure to expedite the dismissal of claims brought
to intimidate or to silence a defendant’s exercise of these First Amendment rights.”
Coleman, 512 S.W.3d at 898 (citing TEX. CIV. PRAC. & REM. CODE ANN § 27.003
and In re Lipsky, 460 S.W.3d at 586); Dolcefino, 540 S.W.3d at 198. First, the
defendant moving for dismissal of a suit pursuant to the TCPA on the ground that
the plaintiff’s suit was brought against him “to intimidate or to silence [his]
exercise of . . . First Amendment rights” must show by a preponderance of
evidence that the suit he is seeking to dismiss “is based on, relates to, or is in
response to the [movant’s] exercise of: (1) the right of free speech; (2) the right to
petition; or (3) the right of association.” Coleman, 512 S.W.3d at 898; Dolcefino,
540 S.W.3d at 198; see TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b).
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 moving party’s exercise of
21
(1) the right of free speech; (2) the right to petition; or (3) the right of association,
the “court shall dismiss the legal action” unless “the party bringing the legal action
establishes by clear and specific evidence a prima facie case for each essential
element of the claim in question.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(b), (c). Thus, the burden shifts to the plaintiff resisting the TCPA
dismissal to establish a prima facie case for the claim in question. Id.; see
Coleman, 512 S.W.3d at 899; Dolcefino, 540 S.W.3d at 199. “If the defendant’s
constitutional rights are implicated and the plaintiff has not met the required
showing of a prima facie case, the trial court must dismiss the plaintiff’s claim.”
Epperson, 2016 WL 4253978, at *9; see TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(b).
C. Applicability of the TCPA
Here, the trial court denied McDonald Oilfield’s motion to dismiss 3B
Inspection’s claims pursuant to the TCPA. It stated on the record at the hearing that
it did not believe that 3B Inspection’s claims were the types of claims that fell
within the scope of the TCPA. We disagree.
3B Inspection pleaded causes of action for defamation, business
disparagement, and tortious interference with contract. It identified two particular
communications or actions undertaken by McDonald Oilfield as being the basis for
all three causes of action. First, 3B Inspection asserted that Kelly McDonald
22
contacted a former client who had since contracted to do business with 3B
Inspection. During a conversation with the former client, McDonald allegedly
stated that 3B Inspection was “not a real company” and that Robert Beall “did not
know what he was doing.” Second, 3B Inspection asserted that McDonald Oilfield
suspended the Operator Qualifications of the individual employees in a manner
that showed “malicious intent to shut down the project and cause harm to 3B
Inspection’s business relationship with its client.”
McDonald Oilfield was required to show by a preponderance of evidence
that 3B Inspection’s suit was “based on, related to, or [was] in response to
[McDonald Oilfield’s] exercise of: (1) the right of free speech; (2) the right to
petition; or (3) the right of association.” See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(b); Coleman, 512 S.W.3d at 898.
McDonald Oilfield argued, in part, that the alleged defamatory and
disparaging statements by Kelly McDonald and the communication cancelling its
sponsorship of the individual employees’ Operator Qualifications were an exercise
of free speech, i.e., communications on a matter of public concern, because they
were made regarding either the theft of their equipment or the operation and safety
of oil and gas pipelines. As defined in the TCPA, the “exercise of the right of free
speech” means “a communication made in connection with a matter of public
concern.” Id. § 27.001(3). A “matter of public concern” includes “an issue related
23
to: (A) health or safety; (B) environmental, economic, or community well-being;
(C) the government; (D) a public official or public figure; or (E) a good, product,
or service in the marketplace.” Id. § 27.001(7).
In Coleman, the supreme court addressed the question of whether internal
communications within a pipeline company regarding an employee’s alleged
failure to follow a required fuel-tank “gauging” procedure sufficed as the “exercise
of the right of free speech,” specifically “communication[s] made in connection
with” an issue related to “health or safety” or “environmental [or] economic . . .
well-being.” 512 S.W.3d at 898–901. The supreme court reaffirmed that “the
TCPA’s plain language does not require communication in public form” and that
the TCPA does not require “that communication involve more than a ‘tangential
relationship’ to matters of public concern.” Id. at 900.
The challenged statements—regarding 3B Inspection and Beall’s business
and the sponsorship of the Operator Qualifications—are communications under the
TCPA. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(1) (defining
“communication” as including “the making or submitting of a statement or
document in any form or medium, including oral, visual, written, audiovisual, or
electronic”). Furthermore, the statements regarding Operator Qualifications were
on a matter of public concern because they concerned the qualifications and
sponsorship of the individual employees to perform certain tasks that could impact
24
environmental, health, safety, and economic concerns associated with noxious and
flammable chemicals transported through pipelines. See TEX. CIV. PRAC. & REM.
CODE ANN. § 27.001(7)(A)–(B); Coleman, 512 S.W.3d at 901. Likewise, the
purported comments that 3B Inspection was “not a real company” and that Beall
did not “know what he was doing” are statements concerning a matter of public
concern as they related to “a good, product, or service in the marketplace.” See
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7)(E).
Therefore, we conclude that McDonald Oilfield successfully established the
TCPA’s applicability to 3B Inspection’s suit under the TCPA free-speech prong.
See id. § 27.003(a); Coleman, 512 S.W.3d at 901–02. Accordingly, we need not
address McDonald Oilfield’s alternative argument that 3B Inspection’s lawsuit was
filed in response to McDonald Oilfield’s exercise of its right to petition. See
Coleman, 512 S.W.3d at 901–02.
D. Clear and Specific Proof of Each Claim
Because we have concluded that the claims asserted by 3B Inspection were
based on, related to, or filed in response to McDonald Oilfield’s exercise of its
right to free speech as defined by the TCPA, we turn now to whether 3B Inspection
provided clear and specific proof on each essential element of each of its claims.
See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b), (c); Coleman, 512 S.W.3d at
899; Dolcefino, 540 S.W.3d at 199.
25
To avoid dismissal under the TCPA, the plaintiff must establish a prima
facie case for each element of the asserted claims by clear and specific evidence.
TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c). Although the TCPA does not
define the phrase “clear and specific evidence,” the supreme court has held that the
standard requires more than mere notice pleadings and that the plaintiff “must
provide enough detail to show the factual basis for its claim.” D Magazine
Partners, 529 S.W.3d at 434; In re Lipsky, 460 S.W.3d at 591. A “prima facie
case” refers to evidence sufficient as a matter of law to establish a given fact if it is
not rebutted or contradicted; stated another way, it is the “minimum quantum of
evidence necessary to support a rational inference that the allegation of fact is
true.” In re Lipsky, 460 S.W.3d at 590 (quoting In re E.I. DuPont de Nemours &
Co., 136 S.W.3d 218, 223 (Tex. 2004) (per curiam)).
When considering the motion to dismiss, the court considers both the
pleadings and any supporting and opposing affidavits. TEX. CIV. PRAC. & REM.
CODE ANN. § 27.006(a); D Magazine Partners, 529 S.W.3d at 434. The supreme
court has expressly disapproved interpretations of the TCPA that “require direct
evidence of each essential element of the underlying claim to avoid dismissal,”
and, instead, it has held that pleadings and evidence that establish the facts
necessary to support the essential elements of a claim are sufficient to resist a
TCPA motion to dismiss. In re Lipsky, 460 S.W.3d at 590–91.
26
3B Inspection asserted defamation, business disparagement, and tortious
interference with contract claims against McDonald Oilfield.
1. Defamation
To prevail on its defamation claim, 3B Inspection had to prove that
McDonald Oilfield (1) published a false statement of fact to a third party, (2) that
was defamatory concerning 3B Inspection, (3) with the requisite degree of fault,
and (4) damages. See id., 460 S.W.3d at 593 (citing Waste Mgmt. of Tex. Inc. v.
Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 146 n.7 (Tex. 2014), and
WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)). “[T]he plaintiff
must plead and prove damages, unless the defamatory statements are defamatory
per se.” Id. (citing Waste Mgmt. of Tex., 434 S.W.3d at 146 n.7); see also Hancock
v. Variyam, 400 S.W.3d 59, 63–64 (Tex. 2013) (defamation per se refers to
statements that are so obviously harmful that general damages may be presumed).
3B Inspection alleged generally that McDonald Oilfield and Kelly
McDonald disparaged and defamed 3B Inspection and the individual employees.
It specifically identified a conversation between Kelly McDonald and an unnamed
“Customer,” stating that “3B Inspection was informed that, during that
conversation, Mr. McDonald defamed 3B Inspection and Robert Beall by stating
among other things, that 3B Inspection was ‘not a real company’ and that Robert
Beall ‘did not know what he was doing.’”
27
McDonald Oilfield argues that these statements are not defamatory because
3B Inspection presented no evidence that Kelly McDonald’s purported statements
were objectively verifiable statements of fact, as opposed to his opinions. It also
argues that 3B Inspection presented insufficient evidence of damages because
Simko’s affidavit as to damages was conclusory.
Regarding the damages suffered by 3B Inspection as a result of the
disparaging or defamatory comments, Greg Simko averred that:
McDonald Oilfield’s conduct has caused 3B Inspection to incur
damages. Among other things, McDonald Oilfield’s conduct has
damaged 3B Inspection by: (a) causing damage to 3B Inspection’s
business and profit such as delay damages; and (b) causing damage to
the reputation of 3B Inspection. 3B Inspection has also brought this
action for the purpose of vindicating its character and reputation.
Simko also averred that:
McDonald Oilfield’s sudden cancellation of the OQ’s damage[d] 3B
Inspection’s business reputation and caused delay and added expense
to its project with the Customer. 3B Inspection had to have an
individual drive several hours to the jobsite in order to get the OQ’s
reinstated. If 3B Inspection had not taken these actions and incurred
these expenses to expedite the reinstatement of the OQ’s, its project
for the Customer would have been completely shut down.
Regarding the allegation that 3B Inspection incurred expenses to expedite
the reinstatement of the individual employees’ Operator Qualifications, we observe
that there is no evidence in the record demonstrating that McDonald Oilfield bore
any obligation to maintain the Operator Qualifications for 3B Inspection’s
employees. To the contrary, the evidence in the record indicates—and 3B
28
Inspection essentially agreed—that each employer bears the obligation of
maintaining the Operator Qualifications for its own employees. 3B Inspection
provided some evidence that it is possible for an employer to transfer a former
employee’s Operator Qualifications to his new employer, but there is no evidence
that such a transfer is required. Any expenses incurred by 3B Inspection in
reinstating the Operator Qualifications were to fulfill 3B Inspection’s own
obligations and are no evidence of damages resulting from defamation.
Regarding the remaining evidence of damages arising from the alleged
defamation, McDonald Oilfield argues that Simko’s affidavit is conclusory and
therefore insufficient to satisfy the TCPA’s requirement of “clear and specific
evidence,” and we agree. “Bare, baseless opinions do not create fact questions,
and neither are they a sufficient substitute for the clear and specific evidence
required to establish a prima facie case under the TCPA.” In re Lipsky, 460 S.W.3d
at 592. Generally, a defamation plaintiff must prove actual damages to prevail—
“[c]ompensatory damages in defamation cases must compensate for ‘actual
injuries’ and cannot merely be ‘a disguised disapproval of the defendant.’” Brady
v. Klentzman, 515 S.W.3d 878, 886–87 (Tex. 2017) (“Showing that the community
was aware of and discussed the defamatory statements is not enough; there must be
evidence that people believe the statements and the plaintiff’s reputation was
actually affected.”). Nothing in Simko’s affidavit or any other pleadings or
29
evidence submitted by 3B Inspection indicates the existence of actual damages or
that anyone, including the unidentified client, actually believed Kelly McDonald’s
statement to the detriment of 3B Inspection’s reputation.
3B Inspection argues, however, that it did not have to submit proof of
defamation damages because McDonald Oilfield’s comments constituted
defamation per se. “When an offending publication qualifies as defamation per se,
a plaintiff may recover general damages without proof of any specific loss.” In re
Lipsky, 460 S.W.3d at 596; Hancock, 400 S.W.3d at 63–64 (distinguishing
defamation claims as either per se or per quod). “Defamation per se refers to
statements that are so obviously harmful that general damages, such as mental
anguish and loss of reputation, are presumed.” In re Lipsky, 460 S.W.3d at 596.
Defamation per se includes statements accusing someone of a crime, of having a
foul or loathsome disease, of engaging in serious sexual misconduct, or, relevant
here, “[r]emarks that adversely reflect on a person’s fitness to conduct his or her
business or trade.” Id. (citing Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex.
App.—Waco 2005, no pet.), and Hancock, 400 S.W.3d at 66). “[W]hether a
statement qualifies as defamation per se is generally a question of law.” Id.
3B Inspection argues that Kelly McDonald’s alleged statements to its client
that 3B Inspection was “not a real company” and that Robert Beall “did not know
what he was doing” reflected on 3B Inspection and Beall’s professional abilities.
30
To qualify as defamation per se under this category the disparaging words must
affect the plaintiff in some manner that is peculiarly harmful to the plaintiff’s trade,
business, or profession and do not merely reflect upon the plaintiff’s general
characteristics. See In re Lipsky, 460 S.W.3d at 596; Hancock, 400 S.W.3d at 66–
67 (noting that statement injures one in his profession when it would “adversely
affect his fitness for the proper conduct” of business). But here, the statements are
very general and devoid of larger context. Kelly McDonald allegedly contacted his
former client—now a current client of 3B Inspection—and stated that 3B
Inspection was not a real company and that its owner did not know what he was
doing. While this might impugn 3B Inspection’s and Beall’s general
characteristics, it is not, as a matter law, a statement that addressed their business
or trade in some peculiarly harmful way.
We conclude that 3B Inspection did not present sufficient evidence to
demonstrate that the alleged defamation was defamatory per se, nor did it present
clear and specific proof of defamation damages, which is an essential element of
its defamation claim. The trial court erred in denying McDonald Oilfield’s TCPA
motion to dismiss on this claim.
2. Business Disparagement
“Business disparagement and defamation are similar in that both involve
harm from the publication of false information.” In re Lipsky, 460 S.W.3d at 591
31
(citing Waste Mgmt. of Tex., 434 S.W.3d at 155). However, these two torts are
different in that they “serve different interests”: business disparagement “applies to
derogatory publications about the plaintiff’s economic or commercial interests,”
while defamation protects “the personal reputation of an injured party.” Id. “A
corporation or other business entity that asserts a claim for defamation may assert
an additional or alternative claim for business disparagement if it seeks to recover
economic damages for injury to the business.” Id. (“Impugning one’s reputation is
possible without disparaging its commercial interests and vice versa. Depending on
the circumstances, then, a plaintiff may have a claim for defamation, or for
business disparagement, or both.”) (citing Burbage v. Burbage, 447 S.W.3d 249,
261 n.6 (Tex. 2014)).
“To prevail on a business disparagement claim, a plaintiff must establish that
(1) the defendant published false and disparaging information about it, (2) with
malice, (3) without privilege, (4) that resulted in special damages to the plaintiff.”
Id. at 592 (citing Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170
(Tex. 2003)). 3B Inspection points to the affidavits of Robert Beall and Greg
Simko as containing evidence supporting the essential elements of its business
disparagement and defamation claims. McDonald Oilfield argues, in part, that the
affidavits are conclusory as to damages. Damages are an essential element of 3B
Inspection’s business disparagement claim. See id.
32
As we already observed with regard to the defamation claim, “[b]are,
baseless opinions do not create fact questions, and neither are they a sufficient
substitute for the clear and specific evidence required to establish a prima facie
case under the TCPA.” Id. As the supreme court in In re Lipsky held, “general
averments of direct economic losses and lost profits, without more, [do not] satisfy
the minimum requirements of the TCPA.” Id. at 593 (holding that affidavit stating
that plaintiff suffered “direct pecuniary and economic losses and costs, lost profits,
loss of its reputation, and loss of goodwill in the communities in which it
operates . . . in excess of three million dollars” was “devoid of any specific facts
illustrating how defendant’s alleged remarks caused such losses”). Thus, Simko’s
general statement that 3B Inspection suffered unspecified “delay damages” and
“damage to its reputation,” without more, is insufficient to establish damages for
business disparagement or defamation.
Accordingly, we conclude that the trial court abused its discretion in denying
McDonald Oilfield’s TCPA motion to dismiss this claim.
3. Tortious Interference
To establish its claims that the McDonald Oilfield and Kelly McDonald
tortiously interfered with a contract, 3B Inspection had to prove: (1) an existing
contract subject to interference and (2) a willful and intentional act of interference
with the contract (3) that proximately caused 3B Inspection injury and (4) caused
33
actual damages or loss. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29
S.W.3d 74, 77 (Tex. 2000); Serafine, 466 S.W.3d at 361 (considering tortious
interference in context of TCPA motion to dismiss). “To prevail on a tortious
interference claim, a plaintiff must present evidence that the defendant interfered
with a specific contract.” John Moore Servs., 441 S.W.3d at 361 (quoting Funes v.
Villatoro, 352 S.W.3d 200, 213 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied)). To establish interference, “the plaintiff must present evidence that some
obligatory provision of a contract has been breached.” Id.
Here, 3B Inspection alleged generally that McDonald Oilfield had attempted
to disrupt the business relationship between it and a current, unidentified client.
Robert Beall averred that “The Customer expressed his displeasure with McDonald
Oilfield to me and agreed to use 3B Inspection for some pipeline projects. The
Customer and 3B Inspection have entered into a Master Services Agreement
(‘MSA’).” And Greg Simko alleged generally that “McDonald Oilfield’s conduct
has damaged 3B Inspection by: (a) causing damage to 3B Inspection’s business
and profit such as delay damages; and (b) causing damage to the reputation of 3B
Inspection.”
While 3B Inspection provided some evidence that a contract existed between
itself and its client, nothing in the pleadings, affidavits, or other evidence provided
details about the specific terms of the MSA between 3B Inspection and its client.
34
There was no evidence regarding how the purported MSA was breached. A
general statement that a contract with a customer exists, without details about the
specific terms of the contract, is insufficient to maintain a tortious-interference-
with-contract claim. Serafine, 466 S.W.3d at 362; John Moore Servs., 441 S.W.3d
at 361 (concluding that nonmovant did not present clear and specific evidence of
existence of contracts, specific terms of contracts, or evidence of how contract was
breached and thus failed to establish prima facie case for contract element of
tortious-interference claim); All Am. Tel., Inc. v. USLD Commc’ns, Inc., 291
S.W.3d 518, 532 (Tex. App.—Fort Worth 2009, pet. denied) (same). 3B Inspection
likewise failed to identify any actual damages or loss related to any interference
with this contract. See Prudential Ins. Co. of Am, 29 S.W.3d at 77; Serafine, 466
S.W.3d at 361.
We conclude that 3B Inspection failed to provide clear and specific proof
regarding essential elements of its tortious interference claim, and, thus, the trial
court abused its discretion in denying McDonald Oilfield’s motion to dismiss this
claim pursuant to the TCPA.
35
Conclusion
We hold that McDonald Oilfield satisfied its burden under the TCPA to
show that 3B Inspection and the individual employees’ claims against it are based
on, relate to, or are in response to, the exercise of its free speech rights. See TEX.
CIV. PRAC. & REM.CODE ANN. § 27.005(b). We further hold that 3B Inspection and
the individual employees have failed to sustain their burden to show, by clear and
specific evidence, a prima facie case for each essential element of their claims. See
id. § 27.005(c). We therefore reverse the trial court’s denial of the motion to
dismiss and remand the case to the trial court for further proceedings. See id.
§ 27.009(a); John Moore Servs., 441 S.W.3d at 362.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Lloyd.
36