Access Floor Specialists, Inc. D/B/A Allied Interiors v. Remreholdings, LLC ( 2024 )

Affirm and Opinion Filed February 21, 2024
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00605-CV
ACCESS FLOOR SPECIALISTS, INC. D/B/A ALLIED INTERIORS,
Appellant
V.
REMREHOLDINGS, LLC, Appellee
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-03670-2022
MEMORANDUM OPINION
Before Justices Nowell, Miskel, and Kennedy
Opinion by Justice Nowell
Access Floor Specialists, Inc. d/b/a Allied Interiors appeals the trial court’s
denial of its motion to dismiss the counterclaim filed by RemREHoldings, LLC.
Appellant moved to dismiss appellee’s counterclaim for fraudulent lien pursuant to
the Texas Citizens Participation Act (TCPA). The trial court did not rule on the
motion timely, and it was denied by operation of law. See TEX. CIV. PRAC. & REM.
CODE ANN. § 27.008(a). In two issues, appellant argues the trial court erred by
denying its motion to dismiss because appellee’s fraudulent lien counterclaim is
based on or in response to appellant’s exercise of its right to petition and appellee
failed to provide clear and specific evidence of each element of its fraudulent lien
claim. In response, appellee argues, among other things, that its counterclaim falls
within the TCPA’s commercial–speech exemption.1 We affirm.
FACTUAL BACKGROUND
In its first amended petition, appellant alleges it was hired by DBGC, LLC, a
defendant in the case that is not a party to this appeal, as a “first-tier subcontractor
to provide labor, materials, and work related to flooring” at a property in Frisco,
Texas (the Property). Appellee owns the Property, and appellant performed work for
appellee’s benefit. Although DBGC contracted to pay appellant for its labor and
services, DBGC failed to pay appellant. Appellant alleges that appellee paid DBCG,
and DBGC misappropriated the money when it failed to pay appellant.
On October 28, 2021, appellant filed a mechanic’s and materialman’s lien on
the Property pursuant to Chapter 53 of the Texas Property Code; appellant filed an
amended mechanic’s and materialman’s lien on August 11, 2022. Appellant sued
appellee to foreclose the lien. In response, appellee filed a motion to remove the
invalid or unenforceable lien because appellant failed to provide the requisite notice
of the claim before filing the affidavits of lien and failed to timely file the affidavits
1
Appellee also argues that appellant failed to meet its step-one burden to show the TCPA applies. We
need not consider this argument before addressing the applicability of the commercial–speech exemption.
See Temple v. Cortez Law Firm, PLLC, 657 S.W.3d 337, 346 (Tex. App.—Dallas 2022, no pet.) (“When a
TCPA movant’s step-one burden and a nonmovant’s TCPA exemption are both disputed, we conclude that
a court may consider a nonmovant’s exemption first, if it chooses to do so.”).
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of lien, both of which are fatal. Appellee also asserted a counterclaim for fraudulent
lien in which it claimed appellant knowingly filed an untimely lien.
Appellant filed a second amended petition removing the claims previously
asserted against appellee. Appellant also responded to appellee’s motion to remove
the invalid or unenforceable lien, asserting the motion was moot because appellant
filed a release of mechanic’s lien on December 22, 2022. Appellant then filed its
motion to dismiss appellee’s fraudulent lien counterclaim pursuant to the TCPA.
LAW & ANALYSIS
“The TCPA was designed to protect both a defendant’s rights of speech,
petition, and association and a claimant’s right to pursue valid legal claims for
injuries the defendant caused.” Montelongo v. Abrea, 622 S.W.3d 290, 295 (Tex.
2021). To accomplish this objective, the TCPA “provides a three-step process for
the dismissal of a ‘legal action’ to which it applies.” Id. at 295–96. However, the
TCPA includes a commercial–speech exemption, which states the TCPA does not
apply to:
a legal action brought against a person primarily engaged in the
business of selling or leasing goods or services, if the statement or
conduct arises out of the sale or lease of goods, services, ... or a
commercial transaction in which the intended audience is an actual or
potential buyer or customer[.]
TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(a)(2).
The party seeking to rely on the commercial–speech exemption has the burden
to prove its applicability by a preponderance of the evidence. Forget About It, Inc.
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v. BioTE Med., LLC, 585 S.W.3d 59, 68 (Tex. App.—Dallas 2019, pet. denied); see
also LaCore Enterprises, LLC v. Angles, No. 05-21-00798-CV, 2023 WL 2607562,
at *6 (Tex. App.—Dallas Mar. 23, 2023, no pet.) (mem. op.). The supreme court
established a four-part test for the application of the commercial–speech exemption.
The TCPA does not apply to legal actions in which (1) the defendant was primarily
engaged in the business of selling or leasing goods or services, (2) the defendant
made the statement or engaged in the conduct on which the claim is based on in the
defendant’s capacity as a seller or lessor of those goods or services, (3) the statement
or conduct at issue arose out of a commercial transaction involving the kind of goods
or services the defendant provides, and (4) the intended audience of the statement or
conduct were actual or potential customers of the defendant for the kind of goods or
services the defendant provides. Castleman v. Internet Money Ltd., 546 S.W.3d 684,
688 (Tex. 2018). “[T]he commercial–speech exemption applies only to certain
communications related to a good, product, or service in the marketplace —
communications made not as a protected exercise of free speech by an individual,
but as commercial speech which does no more than propose a commercial
transaction.” Id. at 690 (internal quotation omitted).
“[A]n affirmative allegation of facts, with no contrary evidence or denial of
those facts, is sufficient to satisfy the elements of the commercial speech
exemption.” Rouzier v. BioTE Med., LLC, No. 05-19-00277-CV, 2019 WL 6242305,
at *4 (Tex. App.—Dallas Nov. 22, 2019, no pet.) (mem. op.) (citing Giri v. Estep,
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No. 03-17-00759-CV, 2018 WL 2074652, at *4 (Tex. App.—Austin May 4, 2018,
pet. denied) (mem. op.)).
When the text of the TCPA dictates the outcome of a case, we review the trial
court’s ruling de novo. Angles, 2023 WL 2607562, at *6 (citing Creative Oil & Gas,
LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 132 (Tex. 2019)). In our review,
we consider “the pleadings, evidence a court could consider under Rule 166a, Texas
Rules of Civil Procedure, 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); see also Angles, 2023 WL 2607562, at *6.
Several courts have considered whether the commercial–speech exemption
applies to fraudulent lien suits in the context of hospital liens. See Round Table
Physicians Group, PLLC v. Kilgore, 607 S.W.3d 878, 886 (Tex. App.—Houston
[14th Dist.] 2020, pet. denied); Sanders v. Bansal, No. 01-18-00508-CV, 2019 WL
7341660 (Tex. App.—Houston [1st Dist.] Dec. 31, 2019, pet. denied) (mem. op.);
N. Cypress Med. Ctr. Operating Co. GP, LLC v. Norvil, 580 S.W.3d 280 (Tex.
App.—Houston [1st Dist.] 2019, pet. denied); Berry v. ETX Successor Tyler, No.
12-18-00095-CV, 2019 WL 968528, at *3 (Tex. App.—Tyler Feb. 28, 2019, no pet.)
(mem. op.). We consider these cases persuasive because they examine the
applicability of the commercial–speech exemption to liens arising out of commercial
transactions.
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For example, in North Cypress, the First Court of Appeals considered a case
wherein a medical facility filed a hospital lien on its patient’s pending causes of
action against an alleged tortfeasor. See N. Cypress Med. Ctr. Operating Co., 580
S.W.3d at 282. The patient filed a petition for declaratory judgment seeking a
determination of the parties’ rights and a determination of what qualified as a
reasonable charge for the services the hospital provided. Id. at 283. The hospital filed
a TCPA motion to dismiss on the basis that the hospital’s filing of a lien constituted
a communication made in the exercise of the hospital’s right of free speech and right
to petition. Id. The patient argued the commercial–speech exemption applied. Id.
The hospital responded that the exemption did not apply because its lien was not
filed for the purpose of securing sales in goods or services, and the intended audience
of the lien was not any actual or potential buyers or customers. Id. at 285-86. The
court of appeals concluded the commercial–speech exemption applied. Id. at 287.
The First Court of Appeals rejected the hospital’s first argument that its lien
was not filed for the purpose of securing sales in services. See id. at 285–86. Under
the court’s analysis, the hospital filed the lien to recover fees for services it rendered
to the patient. Id. at 286. The hospital’s efforts arose out of the commercial
transaction between the hospital and patient whereby the hospital provided services
in exchange for a fee. Id. The hospital filed the lien “trying to get paid for the
healthcare services it provided.” See id.
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The court also rejected the hospital’s argument that the intended audience of
the lien was not its customer. Id. The court considered that a lien against a patient’s
tort recovery is a claim against the patient, and the hospital functionally was making
a demand on the patient to pay the amount owed. See id. (noting hospital liens
against patients’ tort recoveries are claims against patients). Thus, the First Court of
Appeals concluded the patient was a member of the intended audience. Id.
In the case before us, as to the first and second elements of the commercial–
speech exemption, appellant pleaded it is a construction subcontractor that provides
labor, materials, and work related to flooring; as is relevant to this lawsuit, appellant
alleges it provided labor, materials, and work at the Property. Appellant filed a lien
and an amended lien to recover money owed for the materials and services it
furnished to appellee. Appellant then filed suit to foreclose the lien and collect the
money it was owed for the goods and services it provided to appellee. Appellant
acted in its capacity as a seller of goods and services when it sought to recover money
it allegedly was owed. See id. We conclude appellant’s pleading is sufficient to
satisfy the first two elements by a preponderance of the evidence. See Castleman,
546 S.W.3d at 688 (listing elements); see also Rouzier, 2019 WL 6242305, at *4
(affirmative allegation of facts with no contrary evidence sufficient to satisfy
elements of commercial–speech exemption).
Regarding the third and fourth elements, appellant does not dispute it filed the
lien and amended lien to secure payment for labor, materials, and work provided at
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the Property. The intended audience of the lien and amended lien was appellee, a
customer to whom appellant provided services. Essentially, appellant was making a
demand on appellee to pay the amount appellant alleges it was owed. See N. Cypress
Med. Ctr. Operating Co., 580 S.W.3d at 286. Appellee was, therefore, a member of
the intended audience of appellant’s statement. We conclude appellant’s pleading is
sufficient to satisfy the third and fourth elements by a preponderance of the evidence.
See Castleman, 546 S.W.3d at 688 (listing elements); see also Rouzier, 2019 WL
6242305, at *4.
CONCLUSION
We conclude appellee established the four elements of the commercial–
speech exemption by a preponderance of the evidence. Therefore, the trial court did
not err by denying appellant’s TCPA motion to dismiss. Given our determination
that the TCPA does not apply, we need not consider whether appellee’s fraudulent
lien counterclaim is based on or in response to appellant’s exercise of its right to
petition or whether appellee provided clear and specific evidence of each element of
its fraudulent lien claim. See TEX. R. APP. P. 47.1. We affirm the trial court’s order
denying appellant’s TCPA motion to dismiss.
/Erin A. Nowell//
230605f.p05 ERIN A. NOWELL
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ACCESS FLOOR SPECIALISTS, On Appeal from the 366th Judicial
INC. D/B/A ALLIED INTERIORS, District Court, Collin County, Texas
Appellant Trial Court Cause No. 366-03670-
2022.
No. 05-23-00605-CV V. Opinion delivered by Justice Nowell.
Justices Miskel and Kennedy
REMREHOLDINGS, LLC, Appellee participating.
In accordance with this Court’s opinion of this date, we AFFIRM the trial
court’s denial of the motion to dismiss filed by Access Floor Specialists, Inc. d/b/a
Allied Interiors, which was denied by operation of law.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 21st day of February, 2024.
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