TN CPA P.C., Tina Nguyen and TMW Group, LLC v. Wendy B. Nguyen Minerva L. Cariaga And WTN CPAs, PLLC ( 2020 )


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  • Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion
    filed September 10, 2020.
    In The
    Fourteenth Court of Appeals
    NO. 14-19-00677-CV
    TN CPA, P.C.; TINA NGUYEN; AND TMW GROUP, LLC, Appellants
    V.
    WENDY B. NGUYEN; MINERVA L. CARIAGA; AND WTN CPAS, PLLC,
    Appellees
    On Appeal from the 281st District Court
    Harris County, Texas
    Trial Court Cause No. 2019-22315
    MEMORANDUM OPINION
    This is an interlocutory appeal from an order denying a motion to dismiss
    under the Texas Citizens Participation Act, otherwise known as the “TCPA.” For the
    reasons explained below, we affirm the order in part, reverse the order in part, and
    remand the case back to the trial court for additional proceedings consistent with this
    opinion.
    BACKGROUND
    This case arises out of the business separation between various accounting
    professionals.
    Tina Nguyen, a certified public accountant, founded TN CPA, P.C., a tax and
    accounting services company. She later partnered with Wendy Nguyen, another
    certified public accountant with no familial relationship, and together they formed
    WTN CPAs, PLLC, which provided additional auditing services.
    Tina and Wendy eventually agreed to reorganize their business relationship.
    The exact scope of that reorganization is disputed, though it supposedly had three
    components. First, Wendy made a capital contribution to TN CPA with the
    understanding that she would become a minority shareholder in Tina’s corporation.
    Second, Tina transferred her interest in WTN CPAs to Minerva Cariaga, a new
    business partner who had more expertise in the types of services that corporation
    provided. And third, Tina and Wendy partnered with another individual to form
    TMW Group, LLC, which provided a wider array of consulting services.
    These relationships eventually ended because of financial reasons, and with
    that business separation came several legal claims.
    Tina and TN CPA filed the first petition against Wendy and Minerva,
    asserting causes of action for fraud, conversion, and breach of fiduciary duty, all
    based on allegations that Wendy and Minerva had forged Tina’s signature on certain
    business documents and checks. Tina and TN CPA further asserted causes of action
    for tortious interference with contract, tortious interference with prospective
    relations, and unfair competition, all based on allegations that Wendy and Minerva
    had begun operating WTN CPAs under the new name of TNC CPA, which was very
    similar to TN CPA.
    2
    Wendy and Minerva filed a counterpetition, which was joined by WTN CPAs,
    where all three alleged that Tina had breached an oral agreement by filing her
    original petition. Individually, Wendy also asserted a number of additional
    counterclaims. Some of those counterclaims had no factual allegations whatsoever.
    But as for the others, Wendy asserted a counterclaim for breach of contract based on
    an allegation that Tina had failed to repay a loan. Wendy asserted another
    counterclaim for defamation based on an allegation that Tina’s attorney had sent
    certain demand letters to Wendy’s employees that accused Wendy of having
    engaged in illegal conduct. And finally, Wendy sought a declaratory judgment and
    an equitable accounting relating to her ownership interests in TN CPA and TMW
    Group.
    Tina filed a motion to dismiss Wendy’s counterclaims under the TCPA,
    arguing that all of the counterclaims were based on, related to, or were in response
    to an exercise of the right of free speech or right to petition.1 Wendy filed a response
    to the motion to dismiss and amended her counterpetition. Tina replied to Wendy’s
    response. The trial court then signed an order denying Tina’s motion to dismiss and
    granting Wendy an unspecified amount of attorney’s fees.
    Tina now appeals from that order.
    ANALYSIS
    I.     TCPA Burdens
    Before a legal action may be dismissed under the TCPA, the movant must
    satisfy her initial burden of demonstrating by a preponderance of the evidence that
    the legal action is based on, relates to, or is in response to the movant’s exercise of
    1
    Where appropriate in this opinion, we use “Tina” in the singular form to refer to Tina,
    TN CPA, and TMW Group collectively. We similarly use “Wendy” in the singular form to refer
    to Wendy, Minerva, and WTN CPAs collectively.
    3
    the right of free speech, the right to petition, or the right of association. See Tex. Civ.
    Prac. & Rem. Code § 27.005(b).2 If the movant satisfies this initial burden, then the
    burden shifts to the nonmovant to establish by clear and specific evidence a prima
    facie case for each essential element of the claim in question. See Tex. Civ. Prac. &
    Rem. Code § 27.005(c). If the nonmovant satisfies that burden, then the burden shifts
    back to the movant to establish by a preponderance of the evidence each essential
    element of a valid defense. See Tex. Civ. Prac. & Rem. Code § 27.005(d). Whether
    the parties have met these respective burdens is a question of law that we review de
    novo. See Dallas Morning News, Inc. v. Hall, 
    579 S.W.3d 370
    , 377 (Tex. 2019).
    II.    The Defamation Counterclaim
    Tina argues in her first issue that the trial court should have dismissed
    Wendy’s counterclaim for defamation. To analyze this issue, we begin with the
    threshold question of whether Tina proved that the TCPA applies to the
    counterclaim.
    Tina argued in her motion that the counterclaim was subject to the TCPA
    because Wendy premised the counterclaim on the demand letters to her employees,
    and according to Tina, those demand letters were an exercise of her right of free
    speech. To prove that point, Tina had to show that the demand letters were
    “communication[s] made in connection with a matter of public concern.” See Tex.
    Civ. Prac. & Rem. Code § 27.001(3) (defining an “exercise of the right of free
    speech”). A “matter of public concern” is a broadly defined term under the TCPA,
    and it includes issues related to “environmental, economic, or community well-
    2
    There have been amendments to the TCPA, which became effective as of September 1,
    2019. In this opinion, all citations to the TCPA refer to the pre-amendment version that was
    effective at the time that Wendy filed her counterpetition.
    4
    being” and “a good, product, or service in the marketplace.” See Tex. Civ. Prac. &
    Rem. Code § 27.001(7)(B), (E).
    The demand letters accused Wendy of having engaged in illegal conduct, and
    to the extent that her employees were assisting in this misconduct, the letters
    demanded that these employees end their assistance. The letters specifically alleged
    the following misconduct: (1) Wendy was affirmatively misrepresenting a
    continuing relationship with TN CPA; (2) Wendy was holding out her business,
    TNC CPA, as being the same as or affiliated with TN CPA, which was confusing
    creditors, vendors, and clients of TN CPA; (3) Wendy was misappropriating TN
    CPA’s trade secrets; (4) Wendy was using Tina’s electronic signature without Tina’s
    authority; and (5) Wendy fraudulently claimed an ownership interest in TN CPA
    when she applied to a bank for a loan. These sorts of allegations relate to both
    community well-being and Wendy’s services in the marketplace, which are
    sufficient to raise matters of public concern. See Adams v. Starside Custom Builders,
    LLC, 
    547 S.W.3d 890
    , 895–96 (Tex. 2018) (communications alleging that the
    nonmovant had engaged in malfeasance and criminality related to both community
    well-being and services in the marketplace).
    Wendy contends that the opposite conclusion is required because the demand
    letters were just private communications concerning private business disputes. We
    disagree with this characterization. The demand letters addressed how Wendy
    conducted her business and how she held that business out to the public. Even though
    the ultimate disputes between Tina and Wendy are of a private nature, the
    communications in the demand letters relate to matters of public concern, as that
    term has been statutorily defined. See Tex. Civ. Prac. & Rem. Code § 27.001(7)(B),
    (E). Also, these communications fall within the scope of the TCPA even though they
    were not publicly disseminated. See Lippincott v. Whisenhunt, 
    462 S.W.3d 507
    , 509
    5
    (Tex. 2015) (per curiam) (holding that the TCPA can apply “regardless of whether
    the communication takes a public or private form”).
    Because Tina satisfied her initial burden of showing that the TCPA applies to
    this counterclaim, the burden shifted to Wendy to establish a prima facie case for
    each essential element of defamation. We can assume for the sake of argument that
    Wendy satisfied that burden. The question then becomes whether Tina established a
    valid defense.
    Tina argued in her reply that Wendy could not recover on her counterclaim
    because it was based on the demand letters, which were protected by the judicial-
    proceedings privilege. Under this privilege, “communications in the due course of a
    judicial proceeding will not serve as the basis of a civil action for libel or slander,
    regardless of the negligence or malice with which they are made.” See James v.
    Brown, 
    637 S.W.2d 914
    , 916–17 (Tex. 1982) (per curiam).
    This privilege extends to any statement made by the parties or their counsel,
    even if the statement was not made during a pending case, so long as the statement
    bears some relationship to a proposed judicial proceeding. See Landry’s, Inc. v.
    Animal Legal Defense Fund, 
    566 S.W.3d 41
    , 58 (Tex. App.—Houston [14th Dist.]
    2018, pet. denied). When, as here, the statement was made before a judicial
    proceeding was instituted, the statement is privileged only if it meets both an
    objective and a subjective component.
    Id. Objectively, the statement
    must be related
    to the proposed litigation; and subjectively, the proceeding must have been actually
    contemplated in good faith and under serious consideration when the statement was
    made.
    Id. Regarding the objective
    component, the demand letters bear a clear
    relationship to Tina’s original petition. The demand letters complain about Wendy’s
    alleged use of Tina’s signature, which is related to Tina’s causes of action for fraud,
    6
    conversion, and breach of fiduciary duty. The demand letters also complain about
    how Wendy was conducting WTN CPAs under the name of TNC CPA, which is
    related to Tina’s causes of action for tortious interference with contract, tortious
    interference with prospective relations, and unfair competition.
    As for the subjective component, the record shows that the demand letters
    were sent to Wendy’s employees less than one week after a separate demand letter
    was sent to Wendy herself. All of the letters were signed by the attorney who filed
    Tina’s original petition. And in the separate demand letter that was sent to Wendy,
    the attorney raised the same issues that were mentioned in the other demand letters.
    The attorney also advised Wendy that “this is a serious matter” and that if Wendy
    did not end her misconduct, “the next communication from our office will be a
    lawsuit.” The attorney filed Tina’s original petition three months later. This evidence
    establishes that a judicial proceeding was seriously contemplated at the time of the
    demand letters.
    Wendy responds that the judicial-proceedings privilege should not apply
    because the demand letters were not made in the course of a pending judicial
    proceeding—but as we explained above, the privilege can still apply to
    communications that occurred even before a lawsuit has begun. See, e.g., Crain v.
    Smith, 
    22 S.W.3d 58
    , 62–63 (Tex. App.—Corpus Christi 2000, no pet.) (holding that
    statements in a demand letter filed before the lawsuit began were protected by the
    judicial-proceedings privilege). Wendy also contends that the privilege should not
    apply because the employees who received the demand letters are not parties to this
    litigation or to any related litigation. This point fails because there is no requirement
    that the recipients of the communications must also be the litigants.
    Id. (statements in a
    demand letter sent to a non-party attorney were protected by the privilege);
    7
    
    Landry’s, 566 S.W.3d at 60
    (statements made to the press were protected by the
    privilege).
    We conclude that Tina satisfied her burden of establishing a valid defense,
    and that the trial court erred by failing to dismiss Wendy’s defamation counterclaim.
    III.   The Nonsuited Counterclaims
    A.     “Filing Lawsuit Breach”
    Tina focuses next on a counterclaim that she has labeled the “Filing Lawsuit
    Breach.” This counterclaim was asserted in Wendy’s original petition as one of two
    causes of action for breach of contract. Wendy pleaded that she and Tina had orally
    agreed to a certain transfer of business interests, and that Tina had “breached that
    agreement by initiating this litigation.”
    Tina addressed this counterclaim in her motion to dismiss. Wendy responded
    to that issue in the trial court, but her response consisted of just the conclusory
    statement that the counterclaim was not subject to the TCPA. In conjunction with
    that response, Wendy nonsuited the counterclaim by omitting it from her amended
    petition.
    Tina now argues that the TCPA applies to the counterclaim and that her
    motion should have been granted, notwithstanding the nonsuit, as she would have
    been entitled to additional relief in the form of a dismissal with prejudice and
    attorney’s fees. See Tex. Civ. Prac. & Rem. Code §§ 27.005, 27.009. Consistent with
    that point, our court has previously determined that a motion to dismiss under the
    TCPA survives a nonsuit because it affords more relief than a nonsuit. See Abatecola
    v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV, 
    2018 WL 3118601
    , at
    *14 (Tex. App.—Houston [14th Dist.] June 26, 2018, pet. denied) (mem. op.). We
    8
    therefore approach Tina’s argument by deciding first whether the TCPA applies to
    the challenged counterclaim.
    Tina argued in the trial court that the TCPA applied to this counterclaim
    because Wendy asserted it in response to Tina’s “exercise of the right to petition.”
    That term, as it has been defined under the TCPA, means “a communication in or
    pertaining to a judicial proceeding.” See Tex. Civ. Prac. & Rem. Code
    § 27.001(4)(A)(1). That definition was plainly met here. On its face, Wendy’s
    counterclaim is premised expressly on Tina’s filing of this lawsuit, which is a
    communication in a judicial proceeding. This means that Tina satisfied her initial
    burden, and that the burden shifted to Wendy to establish a prima facie case. See
    Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 
    591 S.W.3d 127
    , 137 (Tex.
    2019) (holding that a breach of contract claim premised on the filing of a lawsuit
    was based on an exercise of the right to petition).
    Wendy did not satisfy her burden as the nonmovant. Instead of establishing a
    prima facie case for the counterclaim, she nonsuited it. On this record, the trial court
    should have granted Tina’s motion to dismiss as to this particular counterclaim. See
    Craig v. Tejas Promotions, LLC, 
    550 S.W.3d 287
    , 297 (Tex. App.—Austin 2018,
    pet. denied) (holding that the movant was entitled to relief under the TCPA where
    the nonmovant did not present any evidence to support a prima facie case of a
    nonsuited claim).
    B.     Quantum Meruit and Fraudulent Transfer
    Tina’s next argument focuses on Wendy’s counterclaims for quantum meruit
    and fraudulent transfer, which were asserted in Wendy’s original petition but then
    nonsuited by omission in her amended petition. As with the previous counterclaim
    for “Filing Lawsuit Breach,” Tina argues that these counterclaims should have been
    dismissed, notwithstanding the nonsuits.
    9
    Tina does not clearly articulate a reason why the TCPA applies to these
    particular counterclaims. Instead, she groups all of Wendy’s non-defamation
    counterclaims together and concludes that they are subject to dismissal because
    Wendy asserted them after Tina sent her demand letters and after Tina filed her
    original petition. This chronological explanation is insufficient. We cannot assume
    that counterclaims are based on an exercise of the right to petition simply because
    they are counterclaims. See Serafine v. Blunt, 
    466 S.W.3d 352
    , 360 (Tex. App.—
    Austin 2015, no pet.) (holding that some of the counterclaims, but not all of them,
    were based on an exercise of the right to petition). We first need some sort of factual
    basis to make that connection. See Cavin v. Abbott, 
    545 S.W.3d 47
    , 58 (Tex. App.—
    Austin 2017, no pet.) (holding that the phrase “is based on, relates to, or is in
    response to” requires a legal action that is “factually predicated” upon an exercise of
    one of the TCPA’s identified rights).
    The problem with these two counterclaims is that they were in the class of
    counterclaims that contained no factual allegations whatsoever. Wendy merely
    asserted causes of action for quantum meruit and fraudulent transfer without further
    elaboration, which prompted Tina to dub them the “one-liner counterclaims.”
    Tina did not specially except to the bare counterclaims or otherwise establish
    their factual bases. Without some sort of factual context, we conclude that Tina failed
    to satisfy her initial burden of proving by a preponderance of the evidence that the
    counterclaims were subject to the TCPA. See Deaver v. Desai, 
    483 S.W.3d 668
    , 674
    (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding that the movant had failed
    to satisfy his initial burden of proving that a bare claim was subject to the TCPA).
    IV.   The Remaining Counterclaims
    Wendy asserted seven additional counterclaims: two were for declaratory
    judgment, and the remaining five were for breach of fiduciary duty, fraud,
    10
    conversion, unjust enrichment, and breach of contract. Unlike with the nonsuited
    counterclaims, the factual bases for these remaining counterclaims are evident on
    the face of Wendy’s amended petition. Their factual bases are not uniform, however:
    one concerns Wendy’s interest in TMW Group, another concerns a $50,000 loan that
    Wendy allegedly gave to Tina, and the rest concern a $60,000 contribution that
    Wendy allegedly made to TN CPA.
    Tina argues in her brief that the TCPA applies to all seven of these
    counterclaims because Wendy asserted the counterclaims in response to Tina’s
    demand letters and lawsuit. But instead of analyzing each of Wendy’s counterclaims
    individually, Tina groups all seven counterclaims together as the “non-defamation
    counterclaims” and then broadly asserts that they must be dismissed.
    Because Wendy’s remaining counterclaims are based on different facts, they
    cannot be lumped together and treated as a monolith. Tina was required to show that
    each individual counterclaim was based on, related to, or in response to an exercise
    of the right of free speech or the right to petition. Tina did not do that here. She just
    made the broad assertion that all of the counterclaims were subject to the TCPA
    because Wendy filed her counterpetition after receiving Tina’s demand letters and
    lawsuit. This sort of perfunctory analysis is not sufficient because it does not give
    any due consideration to the different facts of the counterclaims, nor does it
    demonstrate each individual counterclaim’s relationship, if any, to the underlying
    communications.
    Because Tina has not adequately briefed her argument that the TCPA applies
    to these remaining counterclaims, we conclude that Tina has waived any challenge
    to this portion of the trial court’s ruling. See Tex. R. App. P. 38.1(i); QTAT BPO
    Solutions, Inc. v. Lee & Murphy Law Firm, G.P., 
    524 S.W.3d 770
    , 777 (Tex. App.—
    Houston [14th Dist.] 2017, pet. denied) (concluding that a challenge to the trial
    11
    court’s ruling on a motion to dismiss was waived where the challenging party failed
    to adequately brief an argument that certain counterclaims were based on, related to,
    or in response to an exercise of the right of free speech).
    V.    Attorney’s Fees
    In her final issue, Tina challenges the trial court’s award of an unspecified
    amount of attorney’s fees to Wendy, arguing that the award lacks a necessary finding
    that Tina’s motion to dismiss was frivolous or filed solely for purposes of delay. We
    need not consider this issue. Because we have already determined that Tina is
    partially entitled to relief on her TCPA motion, the trial court may reconsider the
    matter of attorney’s fees when the case is remanded. See Tex. Civ. Prac. & Rem.
    Code § 27.009 (providing that a successful movant is entitled to attorney’s fees);
    Fawcett v. Grosu, 
    498 S.W.3d 650
    , 666 (Tex. App.—Houston [14th Dist.] 2016, pet.
    denied) (reversing and remanding the nonmovant’s award of attorney’s fees after
    determining that the trial court erroneously denied relief to the movants).
    CONCLUSION
    We affirm all portions of the trial court’s order, except for the portion that
    denied Tina’s motion to dismiss as to Wendy’s counterclaims for defamation and
    “Filing Lawsuit Breach,” and for the other portion that awarded Wendy an
    unspecified amount of attorney’s fees. We reverse those portions of the trial court’s
    order and remand the case back to the trial court for additional proceedings
    consistent with this opinion.
    /s/    Tracy Christopher
    Justice
    Panel consists of Justices Christopher, Jewell, and Hassan.
    12
    

Document Info

Docket Number: 14-19-00677-CV

Filed Date: 9/10/2020

Precedential Status: Precedential

Modified Date: 9/14/2020