Debbie Perales Robin Hawkins Suzanne Leos Crystal Chavez Jill Hiatt Ursula Cui Shawna Goffney Amber McMillan Laramie Rivera And Luis Trochez v. Kristin Newman ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00095-CV
___________________________
DEBBIE PERALES, ROBIN HAWKINS, SUZANNE LEOS, CRYSTAL CHAVEZ,
JILL HIATT, URSULA CUI, SHAWNA GOFFNEY, AMBER MCMILLAN,
LARAMIE RIVERA, AND LUIS TROCHEZ, Appellants
V.
KRISTIN NEWMAN, Appellee
On Appeal from the 348th District Court
Tarrant County, Texas
Trial Court No. 348-334149-22
Before Sudderth, C.J.; Bassel and Walker, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
Appellee Kristin Newman sued Northeast Tarrant Little Miss Kickball, Inc.
(Kickball), a nonprofit corporation, and Kickball’s directors and officers—Appellants
Debbie Perales, Robin Hawkins, Suzanne Leos, Crystal Chavez, Jill Hiatt, Ursula Cui,
Shawna Goffney, Amber McMillan, Laramie Rivera, and Luis Trochez—after her
allegedly improper removal from Kickball’s board of directors, membership, and All
Star team coaching position. Appellants sought dismissal of Newman’s lawsuit under
the Texas Citizens Participation Act (TCPA).1 See Tex. Civ. Prac. & Rem. Code Ann.
§§ 27.001–.011. 2 Their TCPA motions were overruled by operation of law. See id.§§ 27.005(a), .008(a).
In a single issue in this accelerated interlocutory appeal, see id. §§ 27.008(b),
51.014(a)(12), Appellants argue that they were entitled to a TCPA dismissal of
Newman’s claims against them. We disagree. Because Appellants have failed to show
that the TCPA applies to Newman’s claims, we overrule their sole issue and affirm the
denial of their motions.
Kickball did not file a TCPA motion and is not a party to this appeal.
1
In 2019, the Legislature made significant amendments to the TCPA, and those
2
amendments apply to actions like this one filed on or after September 1, 2019. See
Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex. Gen. Laws 684, 687
(amended 2021, 2023) (codified at Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.011).
2
II. Background
We begin with a review of Newman’s factual allegations and claims, followed
by a summary of the parties’ motions and responses.
A. Newman’s factual allegations in her original and amended petitions3
Kickball and Little Miss Kickball International, Inc. (LMKII), of which
Kickball is a chapter, are Texas nonprofit corporations that govern an organized
youth sports league. Kickball, which has operated for over thirty years, incorporated
in 2005. Kickball’s members are “parents and guardians of players, officers,
directors[,] and persons ‘showing an active interest’ in kickball as a past or present
volunteer—including coaches, umpires[,] and groundskeepers.” Kickball’s members
elect its board of directors at the annual meeting, held during the season’s Closing
Ceremonies, when the board is then announced to Kickball’s membership.
Newman grew up as a Kickball player, and since 2008, she had “consistently
volunteered with [Kickball] in various capacities,” including as a coach, umpire, and
director. For over two decades, Newman and her family “played a large role” in the
league’s management, operation, and growth.
3
Newman objected to the timeliness of one of the TCPA motions. See generally
Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b) (stating TCPA’s sixty-day filing
period); Montelongo v. Abrea, 622 S.W.3d 290, 293–94 (Tex. 2021) (addressing renewal
of sixty-day period for amended pleadings that add a new party, fact, or claim).
Because the TCPA does not apply to Newman’s claims, for purposes of our analysis,
we assume, without deciding, that the TCPA motions were timely and do not address
the timeliness complaint. See Tex. R. App. P. 47.1.
3
Newman served on Kickball’s 2022 election committee, which decided to
supplement low in-person voter turnout by incorporating online voting using Survey
Monkey. Using Survey Monkey, a “unique link” was to be emailed to each member
for absentee voting. If the member did not use the link, then he or she could still
vote in person at the June 4, 2022 Closing Ceremonies. The committee decided to
close online voting at 11:59 p.m. on Thursday, June 2, and tally the results on June 4
after in-person voting ended.
The committee made Newman the Survey Monkey account administrator.
Newman claimed that the committee’s only direction to her in that role was that she
not access Survey Monkey until after electronic voting ended on June 2. Newman
alleged that she had abided by that instruction, did not access Survey Monkey until
June 3, and then accessed it to prevent duplicate in-person voting by closing the links
of those who had not yet voted. Newman alleged that she told Perales (Kickball’s
President) and other board members about these actions but that no one seemed
concerned until Chavez (Kickball’s League Coach) and Hawkins (Kickball’s Vice
President) were not reelected to the board of directors.
During Closing Ceremonies, Perales announced the 2023 board, which
included Newman as both the new League Coach and one of the Kickball All Star
coaches for a team going to the June 30–July 3 All Star Tournament. Perales
subsequently called a “special meeting” of the board to remove Newman and another
board member from the board and membership, but she called the meeting for
4
Sunday, June 26, a date on which Perales “had actual knowledge and awareness that
[Newman] would be out of state[] and not available to attend.”
As to the election, in both her original and amended petitions, Newman
referenced a Kickball bylaw that “[t]he nominee with the highest vote count at the
time of the Annual Meeting of Members will be elected to each position,” and she
claimed that Kickball’s bylaws contained no other provisions for an election review or
contest. Newman further stated that Kickball’s bylaws had two grounds by which a
board member could be removed: (1) failure to attend three consecutive regular
meetings without written or oral excuse; and/or (2) “display[ing] conduct considered
to be inconsistent with the purpose of . . . Kickball[] or . . . the duties and
responsibilities for which the office was intended.” Newman asserted that she had
committed no act that would fall under either provision.
B. Newman’s claims
Newman initially sued Kickball and its officers—Perales, Hawkins, Chavez, and
Leos (Kickball’s Secretary)—in their individual and official capacities (collectively, the
Original Defendants) and brought claims for declaratory judgment and for ultra vires
acts. Newman amended her petition to add more Kickball directors in their official
and individual capacities—Hiatt (Treasurer), Cui (Head Scorekeeper), Goffney
(Advertising), McMillan (Uniforms and Trophies), Rivera (Team Mom Coordinator),
5
and Trochez (Information Technology). 4 In her amended petition, Newman added
claims for breach of fiduciary duty, conspiracy, negligence, fraud, and inspection of
books and records and an accounting, as well as two new declaratory-judgment
requests and requests for monetary relief, including exemplary and mental-anguish
damages and disgorgement.
1. Declaratory judgment—original and additional requests
In her original petition, Newman sought a declaratory judgment that the June 4
election results were final, that a failure to accept the election results would constitute
an ultra vires act, that the failure to produce records she had requested violated the
Texas Nonprofit Corporations Act, that the arbitrary and capricious removal of
coaching staff violated Kickball’s bylaws, and that she had not violated any of
Kickball’s or LMKII’s rules that would give rise to her removal as a Kickball member
or director.5 In her amended petition, Newman applied these requests to all of the
defendants and requested two additional declarations: that each individually named
defendant had breached a fiduciary duty to Kickball and that one or more of the
We refer to this group of defendants—except for Hiatt, who filed a separate
4
TCPA motion—collectively as the New Defendants.
5
Newman also sought in her original petition a temporary restraining order
(TRO) and temporary injunctive relief to prevent her removal from various positions
as well as to prevent the Original Defendants’ interference with those positions, to
prevent them from depriving her of notice of meetings, and to prevent them from
altering, changing, or voiding the June 4, 2022 election results. In her amended
petition, Newman abandoned her TRO request but continued to seek the same
injunctive relief.
6
individually named defendants had used their positions as officers or directors for
personal gain or profit.
2. “Ultra vires”—original and amended claims
In her original and amended petitions, Newman complained that all of the
defendants had violated Texas Business Organizations Code Chapter 22 “when they
purported to remove certain people as members and . . . [d]irectors of [Kickball].”
She alleged that Chavez and Hawkins had been unhappy with the election results and
that the defendants had conspired to find ways to disregard or change the election
results to maintain Chavez’s and Hawkins’s board positions. She also alleged that the
defendants had collectively engaged in a civil conspiracy to undo the election, change
the election results, and banish her from participating as a member and volunteer
based on her alleged commission of voter fraud.
Newman asserted that all the defendants had
collectively accused [her] of taking “actions . . . outside of the agreed
upon [election] process . . . without consent or informing the Elections
committee of such activities” and ha[d], somehow, parlayed that into
grounds to remove [her] as an All Star Coach for 2022, to remove her as
a member of the current Board of Directors, and to change the outcome
of the elections to remove her from serving as a Board member for
2023.
Newman further complained that Hawkins, Leos, and Chavez had—contrary
to Kickball’s bylaws—met in a clandestine, unannounced meeting to conspire to
remove her from being an All Star Coach and that Hawkins and Perales, in their
official capacities, had announced that she had been removed as an All Star Coach.
7
Newman also alleged that on May 14 and May 18, she had properly requested
the league’s membership list in accordance with the Texas Nonprofit Corporations
Act, a request ignored by the defendants, and that on June 13 and June 14, she had
repeated her request and had added a request to inspect and copy league records, both
of which were ignored. She stated that Leos, as league secretary, had a duty to
respond to those requests but had ignored them and that Leos had also failed to
maintain the membership list as required by law and had refused to make it available
before the June 4 annual meeting.
Newman further alleged ultra vires acts by the defendants, “individually and
collectively, in conspiracy with one another,” in the form of breaches of fiduciary duty
to Kickball based on their having acted beyond the scope of their powers granted in
Kickball’s governing documents, based on self-dealing, and based on the lack of
diligent and prudent management of Kickball’s affairs. She complained that the
defendants had deviated from acting in good faith and had allowed their personal
interests to prevail over Kickball’s interests by (1) making false accusations; (2)
changing the “process,” “directions,” or “instructions” they claimed they made to
Newman regarding voting; (3) violating Kickball’s bylaws through illegally conducting
clandestine meetings; and (4) unilaterally changing Kickball’s membership and voting-
eligibility rules “solely to suit their interests.” 6
Kickball and the Original Defendants filed an unsuccessful Rule 91a motion
6
on Newman’s original petition before the Original Defendants filed their TCPA
8
3. Breach-of-fiduciary-duty claims
In her amended petition, Newman added two breach-of-fiduciary-duty
claims—one of which set forth allegations very similar to the ones supporting her
ultra vires and declaratory-judgment claims: duties owed to Kickball as directors and
officers; a civil conspiracy based on defendants’ “personal vendetta against [her], by
taking actions to remove her” as a member and director through, among other things,
setting aside the first election and restricting voting in the second; passing a one-time
special bylaw to invalidate the 2022 election results and hold a new election to make
sure she and her mother Robin7 would not be elected for the 2022–2023 term because
their names were omitted from the ballot; and failing and refusing to deliver
membership lists despite lawful requests. Newman alleged that Perales, Hawkins, and
Leos were members of the election committee that had authorized electronic voting
motion. See Tex. R. Civ. P. 91a. In their Rule 91a motion, they argued that Newman
had no legitimate claims against them, that the bylaws permitted their alleged actions,
and that Newman had included “grossly” misleading factual allegations. In her
response, Newman pointed out, among other things, that the motion relied on
evidence outside the pleadings. She argued that the movants had to establish that her
claims were foreclosed as a matter of law or that her factual allegations had defeated
her claims. See City of Dallas v. Sanchez, 494 S.W.3d 722, 724–25 (Tex. 2016) (noting
that a Rule 91a dismissal is analogous to a plea to the jurisdiction, requiring a court to
determine whether the pleadings allege facts showing jurisdiction). The trial court
denied the motion and ordered the Original Defendants and Kickball to pay
attorney’s fees to Newman. See Tex. R. Civ. P. 91a.7 (stating that except in an action
by or against a governmental entity or a public official acting in his or her official
capacity or under color of law, the court may award costs and reasonable attorney’s
fees to a Rule 91a motion’s prevailing party).
Because Newman and her mother share the same last name, we will refer to
7
her mother by her first name.
9
but were unhappy with the results when Newman and Robin were elected in lieu of
two incumbent directors, and that the defendants took no action against Perales,
Hawkins, and Leos despite their election-committee participation. Newman alleged
that the defendants had violated their fiduciary duties to Kickball and had engaged in
actions “solely for personal gain, personal interest[,] and personal profit.”
In her separate breach-of-fiduciary-duty claim as to Perales, Newman alleged
that Perales had reserved hotel rooms for other Kickball members and their families
to attend out-of-town tournaments and, while each member was obligated to pay for
his or her hotel room, Perales “ensured that she, personally, received all of the hotel
rewards points in her name” and “refused to allow the members or [Kickball] to earn
and receive their own hotel points, when requested.” Within this claim, Newman also
alleged a civil conspiracy between Perales and the other defendants to allow Perales to
personally profit from her photography services to the league in a no-bid situation,
i.e., another civil conspiracy to commit breach of fiduciary duty.
4. Fraud
Newman brought a fraud claim in her amended petition. Because the 2019
TCPA does not apply to a common law fraud claim, we do not address it. See Tex.
Civ. Prac. & Rem. Code Ann. § 27.010(a)(12).
5. Negligence
In her amended petition, Newman alleged that each defendant, as a director,
was obligated to discharge duties to Kickball in good faith, with ordinary care, and in
10
a manner he or she reasonably believed to be in Kickball’s best interest. She claimed
that the defendants negligently breached their fiduciary duties by,
among other things[,] (1) altering the Bylaws to allow them to perform a
second election using the same or similar process that [they] claimed was
illegitimate; (2) conducting a second election with only a fraction of the
number of ballots issued in the first election—allowing only a select few
to vote in the second election; and (3) omitting [Newman’s] and
[Robin’s] name[s] from the second ballot, to ensure that [the
defendants’] personal goals would be achieved.
Newman contended that, in the alternative, the defendants had a duty to
confirm the first election’s legitimacy and to question the second election’s legitimacy
and to act in good faith and with ordinary care in conducting such important
corporate business but breached that duty, complaining that
[a] reasonable and prudent Director would have reasonably questioned
the integrity of the second election. Instead, the Defendants decided to
fabricate violations and anomalies in reviewing the outcome of the first
election; thereafter, Defendants conspired together to change the Bylaws
to allow themselves the right to conduct a second election, to ensure
their personal agenda, goals, and outcome was met.
Newman claimed that the defendants’ acts constituted negligence that was both the
cause in fact and proximate cause of her damages.
6. Civil conspiracy
In her amended petition, Newman alleged that all the individual defendants had
engaged in a civil conspiracy to deprive her of her rights as a Kickball member and
director, contrary to LMKII’s rules. She claimed that the defendants sought to
accomplish an unlawful purpose of disregarding the existing bylaws and June 2022
11
election results or, alternatively, sought to accomplish the lawful purpose of voting in
a new board of directors by the unlawful means of using their majority vote, in
derogation of their fiduciary duties, to alter and change the bylaws and the June 2022
election results. She complained that the defendants accused her and Robin of
violating the bylaws as a basis to remove them but ignored the same violations
committed by Perales, Hawkins, Leos, and other board members. She alleged,
The Defendants have “temporarily” changed the Bylaws to suit their
personal interests, they have improperly conducted a second election for
2022, . . . they have deprived members of their right to vote according to
the Bylaws[,] and they have improperly and unlawfully altered and
changed the 2022 ballot by removing [Newman] and Robin . . . from the
names of the nominees.
7. Inspection of books and records and an accounting
In her amended petition, Newman complained that she had previously
requested the right to inspect Kickball’s books and records under Business
Organizations Code Section 22.351 but had been ignored by the defendants, who had
failed to respond on a timely basis. She renewed her demand “as such information is
pertinent to the issues of mismanagement of corporate funds[] and is relevant to the
elections process.” Newman also sought an accounting of Kickball’s funds paid to
the defendants over the preceding five years and an accounting of “all hotel points, or
other reward or compensation, or anything of value” received by Perales in
connection with the booking and hotel reservations that she had made for Kickball
members over the preceding five years. And Newman sought an accounting by
12
Perales “for all funds she received over the preceding five years through her [Kickball]
positions . . . and through her photography services provided to [Kickball] and its
members.”8
C. TCPA filings
The Original Defendants filed a TCPA motion, and the New Defendants
joined it and incorporated it by reference, while Hiatt filed her own. Not long into
the hearing on the first TCPA motion, the trial court reset a hearing on all the TCPA
motions9 and ordered the parties to file amended motions, responses, and replies.10
8
Appellants raised a variety of defenses in their answers, including the business
judgment rule, justification, lack of standing, lack of capacity, and the barring of
Newman’s claims by Business Organizations Code Sections 22.221(b), 22.228, and
22.235(a). Because—as set out below—we do not reach the second or third steps of
the TCPA burden-shifting process, we address only the standing complaint. See
McLane Champions, LLC v. Hous. Baseball Partners LLC, No. 21-0641, 2023 WL
4306378, at *3 (Tex. June 30, 2023); see also Tex. R. App. P. 47.1.
9
The trial court granted the Original Defendants’ motion to take judicial notice
that docket conditions required a hearing outside the statutory sixty-day window. See
Tex. Civ. Prac. & Rem. Code Ann. § 27.004.
10
The trial court’s order reflects its aggravation during the initial TCPA hearing
with the participants’ failure to follow the trial court’s rules. The Original Defendants
attached 246 pages of exhibits to their TCPA motion. Newman objected to those
exhibits in the first eighty-seven pages of her 115-page response. The trial court set
page limits on the parties’ filings and ordered the parties to “[o]nly put in an exhibit
[w]hat [the judge] actually need[ed] to read.” Because the trial court ordered the
parties to amend their filings and they did so, we do not consider the original TCPA
motions’ arguments and evidence. See Tex. R. Civ. P. 62 (distinguishing amendment
from supplement); see also Diep Tuyet Vo v. Vu, No. 02-15-00188-CV, 2016 WL
2841286, at *3 n.14 (Tex. App.—Fort Worth May 12, 2016, no pet.) (mem. op.)
(stating that an amended motion supplants and replaces an initial motion); State v.
Seventeen Thousand & No/100 Dollars U.S. Currency, 809 S.W.2d 637, 639 (Tex. App.—
13
1. Amended TCPA motion #1
In the amended motion, the Original (and New) 11 Defendants claimed that
Kickball had partnered with the City of Watauga to use the City’s playing fields in
exchange for field maintenance. They asserted that Newman’s claims stemmed from
Kickball’s removal of her as a director and Kickball’s refusal to allow her to coach
children. They contended that Newman had been caught “manipulating election
results” and that this was the basis for “kicking [her] out of Kickball.” They claimed
that because of Newman’s actions, LMKII removed the directorship election from
Kickball’s control and conducted a second election. They also asserted that Newman
had a 25% player retention rate (in comparison to the average 60–90%) and had
conceded in her coaching application that her “yelling to get the attention of the girls
on the field c[ould] be seen as too intense,” or as they characterized it, “abusive.”
They complained that Newman was misusing the court “as a stage for her
petulance, filing meritless claims to hinder [their] freedom of association” and
freedom of speech and contended that most of her claims failed as a matter of law
because she lacked standing; that some of her other claims were mooted by the
Corpus Christi–Edinburg 1991, no writ) (stating that a substituted or amended
motion supercedes and supplants the previous motion, “which may no longer be
considered”).
11
The record does not reflect that the New Defendants expressly adopted the
Original Defendants’ amended TCPA motion or Hiatt’s amended TCPA motion. We
will nonetheless assume, without deciding, that they did so based on their appearance
and argument at the subsequent hearing and their collective arguments on appeal.
14
subsequent election; and that all of her claims lacked the clear and specific evidentiary
support required to defeat their TCPA motion. They argued that all of Newman’s
claims were based on their communications to other members and to the public
regarding the Kickball election and their conduct as board members, arguing that “the
operation of a nonprofit community youth sports league that operates in a public-
private partnership with the City of Watauga is a matter of public concern.”
The amended motion contained the following exhibits: Fort Worth Star-Telegram
articles about the sport dated June 30, 1991; April 13, 1996; July 7, 1999; January 24,
2000; January 26, 2000; and June 11, 2000; Kickball’s 2005 articles of incorporation,
which referenced various portions of the bylaws; Newman’s All Star coaching
application in which she mentioned her “yelling to get the attention of the girls on the
field can be seen as too intense”; a single page of Kickball’s bylaws, which set out the
organization’s name, history, location, and purpose but not whether a member could
sue on Kickball’s behalf; 12 and unsworn declarations by Chavez13 and Hawkins.14 See
12
Article I, section 2 of the bylaws stated that the league’s fields “are currently
located at Foster Village Park . . . in Watauga” and that “Foster Village Park is owned
by the City of Watauga and administered by the Watauga Parks Development
Corporation.”
13
In her unsworn declaration, Chavez stated that the City of Watauga leased
fields in Foster Village Park to Kickball each season.
14
Newman argues that we should not consider Hawkins’s and Chavez’s
unsworn declarations in this appeal. However, the record does not reflect that the
trial court ruled on her objections to this evidence, and—in any event—the
15
Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a) (stating that generally an unsworn
declaration may be used in lieu of an affidavit “required by statute or required by a
rule, order, or requirement adopted as provided by law”); Tex. R. Civ. P. 166a(c), (f).
Hawkins stated in her unsworn declaration that in May 2022, Newman was
outraged when Perales and Chavez were selected as 2022 All Star head coaches
instead of Newman and Robin. Hawkins stated that after Newman and Robin were
not selected, Newman “became disengaged and discourteous” and failed to appear at
a May 17, 2022 scheduled game without notice to her players and their families.
Hawkins also stated that on June 4, 2022, Perales sent the election committee a
message that all election data needed to be preserved because she had discovered
discrepancies in the Survey Monkey reports and that an executive committee meeting
was held on June 6 with Perales, Chavez, Hiatt, Leos, Robin, and Hawkins in
attendance to discuss the discrepancies. When Hiatt and Leos agreed to conduct an
audit, Robin told the executive committee that Newman had already deleted the
Survey Monkey data.
Hawkins stated that at a June 12 board meeting, held to provide an update on
the election’s status, Perales announced that she was going to request Newman’s and
Robin’s removal as members and board members based on their election-related
actions, and Newman announced that she would be requesting the same as to Perales.
admissibility, relevance, and reliability of this evidence is not dispositive of the appeal.
See Tex. R. App. P. 33.1, 47.1.
16
A special meeting was scheduled for June 26 to vote on the removal motions. At the
June 26 meeting, the motion to remove Newman and Robin was carried by a roughly
two-thirds vote, but Newman’s sister’s motion to remove Perales was not seconded.
On August 2, the board met and agreed to redo the election, to be conducted by
LMKII, because they were not able to review the first election.
2. Amended TCPA motion #2
In her amended motion, Hiatt sought dismissal of all of Newman’s claims
except for fraud, which she acknowledged was excluded from the TCPA. See Tex.
Civ. Prac. & Rem. Code Ann. § 27.010(a)(12). She otherwise incorporated the other
amended TCPA motion. Hiatt attached to her amended TCPA motion Hawkins’s
unsworn declaration, summarized above, as well as a series of emails between
Newman and other parties and Hiatt’s own unsworn declaration.
In a May 4, 2022 group email to Newman in which, among others, Perales,
Robin, Leos, and someone with the alias “NETLMK” were copied, Hawkins told
Newman, as to some of Newman’s comments about the bylaws, that she “d[id]n’t
mean to seem ungrateful but it really would have been awesome if [Newman] would
have been motivated to dig into this last October when the Bylaws Committee
reached out to the [board of directors] for input.” Hawkins also told Newman,
“[U]nfortunately the 2023 Bylaws Committee will have to take up the task of making
the permanent updates[;] maybe you can volunteer for that :) Ha!”
17
Newman replied that she had had no reason to delve into the Nonprofit
Corporations Act “before recent client obligations” and stated, “I guess I should not
have assumed our bylaws were legally compliant.” In the same email, Newman told
Perales, “If you believe that bylaw adequately abides by the Act by excluding some
members to vote, that is up to you. However, I strongly recommend you reevaluate
that thought as unilaterally precluding some voting members is rarely looked well
upon by courts.”
Hiatt also attached a series of May 31, 2022 emails exchanged between
Newman, Robin, Perales, Leos, and NETLMK about a link to vote that had been
“forwarded to a voter outside the guidelines [they had] agreed upon” and the need to
quickly schedule an election committee meeting to address the situation. The
controversy arose because it appeared that a member had been sent a link to vote via
text. The emails show the election committee’s debate about the implementation of
their agreed-upon procedures but do not clarify the disputes that Newman raises in
her petition about actions taken after the election. Hiatt also attached a June 3, 2022
email from Perales to Newman, Robin, Hawkins, and Leos about the voting links and
the procedure they would use on June 4.
Hiatt attached a series of emails exchanged on June 7, which began with Leos’s
asking Newman if she had a recommendation to resolve the election issues, followed
by Newman’s response:
18
There aren’t many options available. [Perales’s] proposed options go
beyond the scope and authority provided to the Board by our bylaws.
Our bylaws require us to accept the votes as they stand at Closing
Ceremonies (i[.]e[.,] our annual meeting of the members). We cannot in
good faith “write in” or presuppose a provision in the bylaws to validate,
certify, or audit votes. As I have said before, we must revise our bylaws
and, at which time, we can add a clause allowing such validation of
votes. My suggestion is to move forward with the votes as announced at
Closing Ceremonies and make changes next year. Any other option
violates our bylaws.
Perales then replied,
Our current bylaws also do not mention online voting as a means to
collect votes but we did.
This is the first time we have attempted to do online voting so we
must confirm without a doubt the legitimacy of the process especially if
we plan to continue using this method as a means to collect votes.
Newman responded,
To be clear: our bylaws state we can collect votes via any method we
decide. We decided/agreed that online voting was a legitimate form to
collect votes prior to the ballots ever going out.
Determining the legitimacy of the type of voting format/process
is very different than determining the legitimacy of the votes received—
which seems to be what is happening now and that is outside of the
authority provided by our bylaws.
Hiatt also attached two June 9 emails. The first was from Hiatt to Newman,
copying Perales, Leos, Robin, and two others. Hiatt stated,
We would really like to get this resolved before the board meeting on
Sunday. Nothing is mentioned in the by[]laws, but basic, logical
democratic policies have recounts if there are questionable results. I
don’t see the problem in just doing an audit on the ones that show as
changed.
19
[Newman], can we just see if we can get the survey resurrected so
we can confirm everything? We haven’t used Surveymonkey before and
we just want to confirm that the results were accurate since [Perales] did
find anomalies and the agreed-upon process wasn’t followed to the T.
Technology is great, but it isn’t perfect. It would be wrong if we, as a
board, didn’t verify all of the data if we see errors. That is our job to
ensure that we are doing the best we can to represent our peers.
The second was Newman’s response to Hiatt, copying Perales, Leos, Robin,
and two others, and stating that she was forwarding her June 7 email exchange with
Survey Monkey “to ensure there was no question whether [she was] providing false
information about the capabilities any kind of audit would have.” Newman stated,
With respect to the first part of your question, I am still in talks with
Survey Monkey regarding “resurrect[ing]” the survey data. I will let you
know as soon as possible what their response is. As you can see below, I
asked whether there was a way to see if responses were changed and if
so[,] what the prior responses were. Meghan, with Survey Monkey
customer service[,] responded with, “[A]t this time it’s not possible to
see if responses had been changed or what their previous response
would have been.”
Accordingly, while there may have been anomalies with some
timestamps, those anomalies prove nothing with respect to the accuracy
of the responses themselves. Because, as Meghan confirmed, there is no
way to see if responses have been changed, there is no way to prove the
opposite (i.e., there is no way to verify the responses we reported were
incorrect). An audit neither is permitted nor will provide you with the
answers you seek.
As I previously stated, as a Board we are required to accept the
votes as they stand at Closing Ceremonies (i.e., our annual meeting of
the members). If my above explanation and prior suggestion is not
sufficient, I’m happy to invite a LMK Corporate representative, as well
as an attorney with 40 years of corporate law experience, to our Board
meeting on Sunday to explain the repercussions of moving forward with
any other options.
20
We all want what is best for this league. At this point, it seems
our definitions of “best for this league” are vastly different. Continuing
on with this investigation not only is futile but also simply allows more
drama and animosity to carry on.
Hiatt attached her unsworn declaration in which she stated that on June 4, she
told Perales that Zach V. had voted in person, and Perales told her that Zach V. had
registered an online vote. When Hiatt asked Zach V. if he had voted online, he told
her that he had not and that the email address that Kickball had listed for him was not
an address that he currently used. At the June 6 executive-committee meeting, Hiatt
voiced her observation about Zach V.’s statements, and Perales presented other
issues, including that Newman’s report had not matched the Survey Monkey direct
download, that votes had come in after the links were closed, and that there were
time-stamp changes. Hiatt stated that she had proposed an audit and review of the
election and that everyone “agreed it would be good to validate the information to
ensure its accuracy, since it was the first time that [Kickball had] used Survey
Monkey.”
Hiatt stated that at that point, Robin told them that Newman had “deleted the
Survey Monkey immediately after closing day.” Hiatt reviewed the Survey Monkey
retention rules, which stated that information was permanently deleted “after sixty
days.” Hiatt stated that she had voted for the removal of Newman and Robin based
on their refusal to provide the deleted Survey Monkey data, as well as “their history of
conflict with other board members and their lack of candor.”
21
3. Newman’s amended TCPA response
Newman argued that the TCPA did not apply because her lawsuit did not
involve slander or defamation claims and related not to speech but to actions.15 To
her response, she attached her unsworn declaration, in which she stated that the
bylaws required a three-quarters vote, not a two-thirds vote, making the votes
insufficient to remove her. She also stated that Kickball’s board had amended the
bylaws to disregard the 2022 election results and had held a second election without
her name on the ballot that was conducted by email only and sent “to a fraction” of
the Kickball membership. She stated that she did not change any of the Survey
Monkey data or results and that Hawkins was the only person who assigned Survey
Monkey hyperlinks and sent them to members. And she stated that the City of
Watauga–Kickball lease agreement “is only an agreement to use the ball fields, on a
year-by-year basis,” during the regular Kickball season in exchange for monetary
consideration to the City and does not include any mutuality of interest between
Kickball and the City for the league’s operation, any agreement to share profits or
losses generated by the league’s operation, or any input by the City as to the league’s
operation and management other than to require Kickball “to abide by the rules,
15
Newman raised a variety of objections to the exhibits attached to the TCPA
motions, including that the Star-Telegram articles were inadmissible and irrelevant
because they predated Kickball’s existence and did not relate to her or the defendants.
As noted above, the trial court did not expressly rule on any of Newman’s objections.
See Tex. R. App. P. 33.1.
22
regulations and ordinances established by the City of Watauga, as they may relate to
the city park, in general.”
Newman stated in her unsworn declaration that some Kickball parents told her
that Perales had assumed the role of “League Photographer” to take player and team
photos, that Perales had charged an excessive amount for that service, and that some
of the parents had not yet received their paid-for photos. She also stated,
I was also told by parents that attended the All Star Tournament that . . .
Perales booked the hotel rooms under her name so that she would
receive all of the hotel points for the rooms paid for by the parents, and
that she would not allow the parents to claim their own hotel reward
points, even though the parents were paying for their own rooms.
Newman attached her sister Lindsey’s unsworn declaration, in which Lindsey stated
that she had attended the June 26, 2022 meeting at which there was “a 2/3 vote in
favor of removing [Newman] as a director and as a member.” Newman attached her
counsel’s unsworn declaration in support of $20,825 in attorney’s fees.
4. TCPA reply
In their reply, the Original Defendants argued that they had shown that
Newman’s suit was in response to TCPA-protected communications on matters of
public concern. In support of their argument, they referenced the “public interest
arising from youth sports organizations playing on community fields and interacting
with, caring for, and developing the children of the community,” the “unique overlay
of [Newman’s] manipulating electronic election results and her mother seizing paper
ballots” to ensure Newman’s placement as an All Star coach, and Newman’s having
23
been terminated “as a coach because she was yelling at children.” They referenced a
pre-2019 TCPA case, Bilbrey v. Williams, No. 02-13-00332-CV, 2015 WL 1120921(Tex. App.—Fort Worth Mar. 12, 2015, no pet.) (mem. op.), regarding coaching
behavior16 and addressed their characterization of Newman’s claims.
D. TCPA hearing and ruling
At the hearing’s resumption, the Original Defendants’ counsel argued that
Newman’s petition presented a matter of public concern because (1) it involved a
youth sports organization “working in concert with the City of Watauga, using their
fields in exchange for maintaining the fields”; (2) “the complaints have an overlay . . .
16
Bilbrey was decided under the 2011 TCPA. 2015 WL 1120921, at *1.
Williams, an assistant coach of the same children’s baseball team as Bilbrey, the head
coach, sued Bilbrey for defamation and Chuck Hall, the league’s president, for related
claims based on statements Bilbrey made to Hall about Williams’s behavior (allegedly
yelling at teenage umpires). Id. at *1, *3. After the trial court denied Hall’s and
Bilbrey’s TCPA motions, they prevailed on appeal because under the 2011 TCPA,
Williams’s lawsuit was based on statements Bilbrey made on a matter involving the
well-being and safety of children in the community, making the statements matters of
public concern and based on and arising out of the right of free speech. Id. at *9.
Under the 2019 TCPA, the statutory “matter of public concern” does not
“categorically include all statements or activities relating to child welfare within its
ambit.” Morris v. Daniel, 615 S.W.3d 571, 578 (Tex. App.—Houston [1st Dist.] 2020,
no pet.). Instead, the 2019 TCPA defines “matter of public concern” to mean a
statement or activity regarding a public official, a “matter of political, social, or other
interest to the community,” or a subject of concern to the public. Tex. Civ. Prac. &
Rem. Code Ann. § 27.001(7)(A)–(C). Cf. Act of May 18, 2011, 82d Leg., R.S., ch. 341,
§ 2, 2011 Tex. Gen. Laws 961, 962 (amended 2019) (defining “matter of public
concern” to include an issue related to health or safety; environmental, economic, or
community well-being; the government; a public official or public figure; or a good,
product, or service in the marketplace). Further, none of Newman’s claims are related
to her coaching behavior.
24
of election shenanigans”; and (3) it involved Newman’s coaching status. He also
argued that the Original Defendants, as directors, had statutory immunity.
Hiatt’s counsel stated that her evidence highlighted “emails back and forth
between . . . Hiatt and . . . Newman making very clear that this nonprofit had a
dispute on how to do an election.” The New Defendants’ counsel argued that his
“client group [was] even one step further removed from the other defendants in the
case” and were “simply members of the board that voted in two elections.” He
added, “There [were] no communications between my clients and [Newman,]” and all
his clients did was “vote[] in an election.”
Newman’s counsel responded that there was “a big difference between saying
and doing.” He argued, “[T]here’s been no evidence as to what [the TCPA]
communication is and whether or not this lawsuit relates to a communication,” and
he contended that the case, which was not defamation based, had nothing to do with
protecting First Amendment rights.
The motions were overruled by operation of law. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 27.005(a), .008(a).
III. Discussion
Appellants argue that they were entitled to dismissal, asserting in part of their
sole issue that the TCPA applies to Newman’s claims and that Newman lacks
standing. Newman responds that Appellants failed to show the TCPA applied and
25
that she sufficiently alleged standing in her pleadings and supported it with her
unsworn declaration.
Based on McLane Champions, we must address the standing question first. See
2023 WL 4306378, at *3 (“Because standing is a threshold jurisdictional issue that is
essential to a court’s power to decide a case, we address that issue before turning to
the substance of the TCPA motion.” (internal quotation marks omitted)); Buzbee v.
Clear Channel Outdoor, LLC, 616 S.W.3d 14, 22 (Tex. App.—Houston [14th Dist.]
2020, no pet.) (explaining that a court should and must consider standing when raised
in the context of a TCPA motion but not by using the TCPA burden-shifting
mechanism, which is “ill-suited for resolving whether a court is authorized to decide a
controversy” because a TCPA motion is a procedural vehicle to address a claim’s
merits and not the propriety of a jurisdictional-defect-based dismissal).
A. Standing
In McLane Champions, the supreme court considered standing in a TCPA case
because the lack of constitutional standing deprives a court of subject-matter
jurisdiction. 2023 WL 4306378, at *3. To show constitutional standing, a plaintiff
must show that (1) she suffered a concrete and particularized injury-in-fact; (2) the
injury is fairly traceable to the defendant’s conduct; and (3) a favorable decision is
likely to redress the injury. Id.The McLane Champions plaintiff alleged a textbook “pocketbook injury,”
including that it paid a bloated purchase price in reliance on the defendant’s material
26
misrepresentations. Id. The plaintiff’s assignment of its rights under the purchase
agreement did not implicate standing in a jurisdictional sense because “a plaintiff does
not lack standing simply because some other legal principle may prevent it from
prevailing on the merits; rather, a plaintiff lacks standing if its claim of injury is too
slight for a court to afford redress.” Id. at *4 (quoting Data Foundry, Inc. v. City of
Austin, 620 S.W.3d 692, 696 (Tex. 2021)).
According to McLane Champions, a plaintiff has standing when she is personally
aggrieved, regardless of whether she is acting with legal authority; in contrast, she has
capacity when she has the legal authority to act, regardless of whether she has a
justiciable interest in the controversy. See id. (citing Pike v. Tex. EMC Mgmt., LLC, 610
S.W.3d 763, 778 (Tex. 2020)). The court noted that the assignment might affect the
plaintiff’s ability to recover damages (capacity), but it did not affect the plaintiff’s
constitutional standing and thus did not call into question the court’s subject-matter
jurisdiction. Id.; see also In re Bridgestone Ams. Tire Operations, LLC, 459 S.W.3d 565, 573
(Tex. 2015) (orig. proceeding) (stating lack of capacity, unlike standing, is not a
jurisdictional defect). The court concluded its analysis by noting that “[a]t this stage
of the litigation, we need not inquire further into the assignment’s impact on [the
plaintiff’s] claims.” McLane Champions, 2023 WL 4306378, at *4; see Pike, 610 S.W.3d
at 778 (stating that the statutory provisions limiting a stakeholder’s ability to recover
certain measures of damages go to the merits of the claim and “do not strip a court of
27
subject-matter jurisdiction to render a take-nothing judgment if the stakeholder fails
to meet the statutory requirements”).
Appellants complain that Newman lacks the legal authority to pursue some of
her claims because the Texas Nonprofit Corporations Act “makes no provision for a
derivative suit”17 and that “by the time that Newman filed her life [sic] pleading, she
was no longer a member.” They refer us to Tran v. Aloysius Duy-Hung Hoang, 481
S.W.3d 313 (Tex. App.—Houston [1st Dist.] 2015, pet. denied), and KIPP, Inc. v.
Grant Me The Wisdom Foundation, Inc., 651 S.W.3d 530 (Tex. App.—Houston [14th
Dist.] 2022, pet. denied), for the proposition that the statutes that authorize and
govern nonprofits do not confer membership standing to sue on a nonprofit’s behalf.
In Tran, the court noted that unless standing is conferred by statute, a plaintiff
“must demonstrate that he or she possesses an interest in a conflict distinct from that
of the general public, such that the defendant’s actions have caused the plaintiff some
particular injury,” because standing focuses on whether a party has a justiciable
interest in the suit’s outcome. 481 S.W.3d at 316. The question in Tran was whether
a member of a nonprofit had a justiciable interest in seeking redress on the
organization’s behalf when the organization had not otherwise conferred on that
17
Appellants also argue that Title 2 of the Business Organizations Code
“contains two separate chapters, one for governing for-profit corporations and the
other governing nonprofit corporations.” But Title 2 contains four separate
chapters—one for for-profit corporations, one for nonprofit corporations, one for
special-purpose corporations, and one for “general provisions,” which includes ultra
vires acts. See generally Tex. Bus. Orgs. Code Ann. §§ 20.001–23.110.
28
member a right to act on its behalf in its articles of incorporation and bylaws. Id. at
314, 316.
The dispute in Tran arose from internal tensions after the nonprofit raised
funds to finance a new building. Id. at 315. The nonprofit’s board of supervisors
sued the board’s individual members, purporting to bring a derivative suit on the
nonprofit’s behalf and seeking damages and declaratory relief for injuries they alleged
the directors had caused the nonprofit. Id. at 314–15. They brought claims for
breach of fiduciary duties, abuse of control, gross mismanagement, waste of corporate
assets, fraud, and negligence, id. at 315, but they did not bring an ultra vires claim. See
Carmichael v. Tarantino Props., Inc., 604 S.W.3d 469, 475 (Tex. App.—Houston [14th
Dist.] 2020, no pet.) (noting that the Tran plaintiffs “did not assert ultra vires claims on
behalf of a nonprofit corporation, [so] the question of whether Chapter 20 conferred
representative standing to bring such claims was neither presented nor addressed”).
The Tran court observed that no statutory provision applicable to nonprofits
paralleled the one that allowed for-profit shareholders to bring a derivative lawsuit
and that nonprofit members were specifically excluded from the statutory definition
of “shareholder.” 481 S.W.3d at 317 (noting that “Chapter 22 . . . contains no
authorization for a derivative suit brought on behalf of the nonprofit corporation”).
The court stated that authority to sue on a nonprofit’s behalf is a standing issue and
that the member–plaintiffs had failed to assert an individual injury. Id. And because
the Declaratory Judgments Act is a procedural device for deciding cases already within
29
the court’s jurisdiction and does not confer jurisdiction where none already exists, the
member–plaintiffs lacked standing for the remainder of their claims. Id. at 318.
In contrast to Tran, KIPP was a TCPA suit. 651 S.W.3d at 535. In that case, a
collection of nonprofits—Grant Me The Wisdom Foundation, Inc. (GMTW); KIPP,
Inc.; St. Luke’s United Methodist Church of Houston; Legacy Community Health
Services; and YMCA for Greater Houston—joined together to form Connect, a
nonprofit, to develop a community center. Id. A dispute arose between two GMTW
members and the other nonprofits, which withdrew from Connect and formed a new
nonprofit to continue the project without GMTW. Id. at 535–36. GMTW then sued,
individually and on behalf of Connect, the attorneys involved in setting up Connect
for legal malpractice and the other nonprofits for a variety of claims, including fraud,
breach of contract, tortious interference, breach and misapplication of fiduciary duty,
and conspiracy. Id. at 536. The trial court dismissed the claims made on Connect’s
behalf for lack of standing, and Connect intervened to reassert those claims. Id. The
defendants moved to dismiss all but Connect’s fraud claim under the TCPA, and the
trial court denied the motion. Id. at 536 & n.3.
On appeal, the court relied on Tran for the proposition that no statute confers
derivative standing upon a nonprofit’s members to sue on the nonprofit’s behalf and
that a nonprofit’s members thus lack derivative standing “absent authority granted in
a nonprofit’s organizational documents.” Id. at 543 (citing Tran, 481 S.W.3d at 316–
30
17). The court concluded that GMTW lacked standing to sue on Connect’s behalf.
Id.As to the TCPA’s applicability to Connect’s claims, the appellants argued that
the claims involved matters of public concern because they were based on
communications and meetings aimed at removing one of GMTW’s members from
Connect’s board, withdrawing from Connect, and creating a new entity without
GMTW to pursue the community center’s development. Id. at 537. The court
concluded that the legal malpractice claims that were based on the lawyers’ failures to
act were not predicated on communications that would implicate free speech or
collective action but that the allegation that they provided legal advice that was
detrimental to Connect implicated the right of association. 18 Id. at 538–39.
The court held that Connect’s remaining allegations were fairly considered a
matter of public concern because they involved plans to build and fund a community
center to serve an underserved community, “implicating the broader vision of the
parties to improve the lives of area residents” beyond the pecuniary interests of the
private parties involved. Id. at 540 (“In a nutshell, the nature of the dispute is over
who has the right to make decisions regarding a project meant to benefit the
community.”). Without addressing whether Connect had showed a prima facie case
18
In the latest round of TCPA amendments, effective September 1, 2023, the
TCPA no longer applies to “a legal malpractice claim brought by a client or former
client.” See Act of May 25, 2023, 88th Leg., R.S., H.B. 527, §§ 1, 3 (to be codified as
an amendment to Tex. Civ. Prac. & Rem. Code Ann. § 27.010).
31
to support its claims, the court concluded that the claims were barred by limitations
and dismissed all but the fraud claim and the specifically enumerated malpractice
claims that were not based on communications. Id. at 545–46.
Here, Newman alleged that she had standing as a Kickball member to bring her
ultra vires claim under Business Organizations Code Section 20.002(c). Section
20.002 applies to for-profit and nonprofit corporations. See Tex. Bus. Orgs. Code
Ann. § 20.002(c)(2) (stating that a member may bring a representative suit against an
officer or director for exceeding authority in an act inconsistent with an expressed
limitation on his or her authority). Newman further alleged that Appellants had
“purported to remove” her membership and to “banish” her from participating in
Kickball, a concrete and personalized injury caused by Appellants that could be
redressed by a decision in Newman’s favor. See McLane Champions, 2023 WL 4306378,
at *3; cf. Guadalupe Valley Elec. Co-op., Inc. v. S. Tex. Chamber of Com., 374 S.W.2d 329,
333 (Tex. App.—San Antonio 1963, no writ) (“This is not a case of expulsion of
members, but merely a refusal to accept appellants’ renewal of membership.”). If
Newman’s membership was improperly revoked—as alleged—then she retained
standing for her ultra vires claim. See generally Carmichael, 604 S.W.3d at 472, 475
(determining that plaintiff condominium owners had statutory standing under Section
20.002(c) to assert the nonprofit condominium association’s ultra vires claim against
the association’s present or former officers or directors); see also Pike, 610 S.W.3d at
777 (“[W]hether a party can prove the merits of its claim or satisfy the requirements
32
of a particular statute does not affect the court’s subject-matter jurisdiction.”). And if
Newman’s membership was improperly revoked, then she also retained a right to
examine and copy “for a proper purpose, the books and records of the corporation
relevant to that purpose.” Tex. Bus. Orgs. Code Ann. § 22.351 (“Member’s Right to
Inspect Books and Records”); see also id. § 22.353(b) (stating that a nonprofit
corporation shall make records, books, and reports of its financial activity available to
the public for inspection and copying).
Further, there is no showing that Kickball’s bylaws prohibit a member’s suing
on the nonprofit’s behalf (or, for that matter, how someone may lose her membership
under the bylaws).19 Cf. Tran, 481 S.W.3d at 314, 316; Guadalupe Valley, 374 S.W.2d at
333 (“The trial court properly held that appellants’ membership renewals were validly
and legally rejected, because the by-laws amendment, which specifically authorized
such action, was valid and did not defeat or impair any vested right of appellants.”);
Manning v. San Antonio Club, 63 Tex. 166, 171 (1884) (“Appellant does not pretend
that, in his expulsion, the board of directors violated in any way the by-laws of the
club.”). Kickball’s articles of incorporation, which were attached by the Original
Defendants to their amended TCPA motion, do not address whether a member may
bring a lawsuit on the nonprofit’s behalf. Cf. Tran, 481 S.W.3d at 314, 316.
19
The May 4, 2022 group email addresses “Article VI, Section 4” of the bylaws,
demonstrating that there is more to the bylaws than the single page attached by the
Original Defendants to their amended TCPA motion.
33
To establish Appellants’ liability, Newman will eventually have to prove that
they did not act in good faith, with ordinary care, in the manner that they reasonably
believed to be in Kickball’s best interest, and without reliance on the written opinion
of an attorney for Kickball. See Tex. Bus. Orgs. Code Ann. §§ 22.221(b), .228, .235.
At this stage of the litigation, however, her pleadings sufficiently allege that Appellants
have not acted in good faith, that they have acted without ordinary care, and that they
have acted without a reasonable belief in Kickball’s best interest but rather for their
own personal interests. Because Newman’s pleadings contain sufficient allegations to
support her claims on behalf of Kickball and for her own concrete, personalized
injuries, she sufficiently alleged standing, and we overrule this portion of Appellants’
sole issue.
B. TCPA burden-shifting framework
Under the TCPA, the first step in the statutory burden-shifting analysis is for
the movant to show that the lawsuit is “based on or is in response to” the movant’s
exercise of the right of free speech, right to petition, or right of association 20 “or arises
from any act of that party in furtherance of the party’s communication or conduct
20
Because Appellants moved for dismissal only as to free speech and
association, we will not address the right to petition.
34
described by Section 27.010(b).”21 Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a); see
also id. § 27.005(b).
The TCPA defines “exercise of the right of association” to mean “to join
together to collectively express, promote, pursue, or defend common interests relating
to a governmental proceeding or a matter of public concern.” Id. § 27.001(2); Amy
Bresnen et al., Targeting the Texas Citizen Participation Act: The 2019 Texas Legislature’s
Amendments to A Most Consequential Law, 52 St. Mary’s L.J. 53, 71 (2020) (noting that
“[c]ollectively, by including the elements of public participation in government and
expression regarding matters of public concern, the [2019 TCPA] amendments to the
definition of the right of association moved the focus of the TCPA much closer to its
stated purpose: the protection of constitutional rights”).22 The TCPA defines “exercise
of the right of free speech” to mean a “communication made in connection with a
matter of public concern.” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3). The
21
No party argues that Section 27.010(b) applies. See Mark C. Walker,
Reputational Torts and the Texas Anti-SLAPP Law: The Essential Guide with Updates on the
Texas Defamation Mitigation Act, 99 The Advoc. (Tex.) 4, 36 (2022) (noting that the
Legislature added subsection (b)(1) in the 2019 TCPA “to help overcome media
interest opposition to any changes to the TCPA”).
22
One of our sister courts has noted that the “tightening of the statutory
language” in the 2019 TCPA restricted and narrowed the TCPA’s protection, and the
deletion of “relates to” in the “exercise of the right of association” removed the
broadest category of connection, “thereby requiring future TCPA movants to
establish a closer nexus between the claims against them and the communications
they point to as their exercise of protected rights.” Rivas v. Lake Shore Harbour Cmty.
Ass’n, No. 01-22-00121-CV, 2023 WL 3063409, at *11 (Tex. App.—Houston [1st
Dist.] Apr. 25, 2023, no pet.) (mem. op.).
35
TCPA defines “communication” to include the making or submitting of a statement
or document in any form or medium, including oral, visual, written, audiovisual, or
electronic. 23 Id. § 27.001(1).
A “matter of public concern” for TCPA purposes is “a statement or activity
regarding: (A) a public official, public figure, or other person who has drawn
substantial public attention due to the person’s official acts, fame, notoriety, or
celebrity; (B) a matter of political, social, or other interest to the community; or (C) a
subject of concern to the public.” Id. § 27.001(7); see Bresnan, 52 St. Mary’s L.J. at 94
(noting that although the new definition of “matter of public concern” could be
criticized as circular, “the Legislature carefully chose unmistakable language from
mainstream jurisprudence to emphasize that, going forward, it is the ‘public’ interest
in a communication that will drive the applicability of the TCPA”); see also Brady v.
Klentzman, 515 S.W.3d 878, 884 (Tex. 2017) (defining “matter of public concern” in
defamation context).
23
As for communications, Appellants direct us to the portion of Newman’s
amended petition that references “false accusations” and “clandestine meetings” and
to Newman’s messages that Hiatt attached to her TCPA motion, which “reference
accusations.” Newman responds that none of her claims relate to, indirectly or
directly, Appellants’ specific comments or communications; rather, she states that her
lawsuit relates to their unlawful conduct and that the TCPA “does not apply to the
internal political disputes of a private business.” See McLane Champions, 2023 WL
4306378, at *1 (holding TCPA did not apply to a dispute between private parties to a
private business transaction that later generated public interest). She asserts that she
filed the lawsuit not to “silence the criticism of the Defendants” but rather because of
their unlawful conduct.
36
Public matters may include a subject of legitimate news interest such as the
commission of a crime, its subsequent prosecution, and the judicial proceedings
arising therefrom; the disclosure of a public official’s misbehavior; or another subject
of general interest and of value and concern to the public. See Brady, 515 S.W.3d at
884 (noting that there is a paramount public interest in a free flow of information to
the people concerning public officials). In considering the content, form, and context
of whether speech is of public or private concern, no factor is dispositive, and it is
necessary to evaluate all the circumstances of the speech, including what was said,
where it was said, and how it was said. Snyder v. Phelps, 562 U.S. 443, 454, 131 S. Ct.
1207, 1216 (2011).
If a TCPA movant satisfies its burden to show that the legal action falls under
the TCPA, then to avoid dismissal, the nonmovant must establish 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); Youngkin v. Hines, 546 S.W.3d 675,
680 (Tex. 2018) (“We begin our inquiry with the threshold question of whether the
[TCPA] applies to the case before us.”).
In determining whether a legal action is subject to or should be dismissed
under the TCPA, the trial court may consider the pleadings, affidavits, and evidence
permitted in the summary-judgment context. See Tex. Civ. Prac. & Rem. Code Ann.
§ 27.006(a); Kadow v. Grauerholz, No. 02-20-00044-CV, 2021 WL 733302, at *2 (Tex.
App.—Fort Worth Feb. 25, 2021, no pet.) (mem. op.). The nonmovant’s pleadings
37
are the “best and all-sufficient” evidence of the nature of its claims against the party
seeking a TCPA dismissal. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017); Avid
Square Constr., LLC v. Valcon Consulting, LLC, No. 02-22-00297-CV, 2023 WL
3113950, at *4 (Tex. App.—Fort Worth Apr. 27, 2023, no pet.) (mem. op.). We view
the pleadings in the light most favorable to the nonmovant, favoring the conclusion
that the claims are not predicated on protected expression, and we disregard as
irrelevant any factual allegations that are not a factual predicate for the claims.
Newstream Hotels & Resorts, LLC v. Abdou, No. 02-21-00343-CV, 2022 WL 1496537, at
*2 (Tex. App.—Fort Worth May 12, 2022, pet. denied) (mem. op.).
We review de novo whether the TCPA applies. USA Lending Grp., Inc. v.
Winstead PC, 669 S.W.3d 195, 200 (Tex. 2023). And while the Legislature has directed
that the TCPA “shall be construed liberally to effectuate its purpose and intent fully,”
it has also stated that the TCPA “does not abrogate or lessen any other defense,
remedy, immunity, or privilege available under other constitutional, statutory, case, or
common law or rule provisions.” Tex. Civ. Prac. & Rem. Code Ann. § 27.011.
Dismissal under the TCPA is determined on a claim-by-claim basis. TSA-Tex.
Surgical Assocs., L.L.P. v. Vargas, No. 14-19-00135-CV, 2021 WL 729862, at *2 (Tex.
App.—Houston [14th Dist.] Feb. 25, 2021, no pet.) (mem. op.). If a legal action
relates to both protected and unprotected activity under the TCPA, the claim is
subject to dismissal only to the extent that it is in response to the protected conduct.
Marshall v. Marshall, Nos. 14-18-00094-CV, 14-18-00095-CV, 2021 WL 208459, at *7
38
(Tex. App.—Houston [14th Dist.] Jan. 21, 2021, pet. denied) (mem. op.). If a TCPA
movant does not provide guidance as to how to determine which claims are in
response to protected rather than unprotected conduct, and the court is unable to
identify a means to accomplish the task, the trial court does not err by denying the
motion. Id.C. Application
Appellants argue that “all of [Newman’s] claims are based on [A]ppellant[s’]
communications among themselves, to other [Kickball] members and to the public
about the election of [Kickball] board members and [A]ppellants’ conduct as board
members.” Apparently referencing KIPP, Inc., they argue, “Just as a community center
concerns the public and local community, the operation of a nonprofit community
youth sports league operating as a public-private partnership with the City of Watauga
is a matter of public concern. The TCPA applies.”
As a general matter, while Kickball’s first and second elections are central to
Newman’s complaints about Appellants’ actions, the record reflects that the parties’
election-based disputes relate to internal Kickball matters unlikely to affect (or
interest) the general public. Cf. Conrad v. Joiner, No. 01-22-00450-CV, 2023 WL
4356187, at *3–4 (Tex. App.—Houston [1st Dist.] July 6, 2023, no pet. h.) (mem. op.)
(holding TCPA applied to defamation suit in which movant made statements on
Facebook and in emails sent to city council members about nonmovant mayor’s
alleged legal violations); O’Rourke v. Warren, No. 03-22-00416-CV, 2023 WL 3914278,
39
at *7–8 (Tex. App.—Austin June 9, 2023, pet. filed) (holding TCPA applied to
movant’s allegedly defamatory tweets made about nonmovant during gubernatorial
campaign); Hadimani v. Hiremath, No. 14-22-00002-CV, 2023 WL 3596248, at *6 (Tex.
App.—Houston [14th Dist.] May 23, 2023, no pet.) (mem. op.) (holding TCPA
applied to defamation claims based on criminal allegations involving a social, cultural,
and religious organization’s internal management). Violating a bylaw is generally not a
crime. See State ex rel. Best v. Harper, 562 S.W.3d 1, 14 (Tex. 2018) (explaining that
violating an organization’s internal rules may expose the violator to liability but such
rules are not legal prohibitions against unlawful conduct). And communications are
not the gravamen of Newman’s complaints; instead, as Newman points out, her
allegations involve Appellants’ actions and omissions and are “not focused on the
hateful or untrue content of [Appellants’] speech, but rather [on] the[ir] intentional
conduct . . . in removing [her] and depriving her of her vested rights and interests as a
director and a member” of Kickball. Applying these rationales, we address the
application of the TCPA to Newman’s claims in turn.
1. Remedies and other non-TCPA claims
Appellants attempt to characterize Newman’s requests for exemplary and
mental-anguish damages as claims subject to the TCPA. But see Tex. Civ. Prac. &
Rem. Code Ann. § 41.003(a) (setting out exemplary-damages criteria); SCI Tex. Funeral
Servs., Inc. v. Nelson, 540 S.W.3d 539, 546 (Tex. 2018) (stating that mental-anguish
damages may be available when they are caused by a defendant’s breach of a legal
40
duty); Douglas v. Delp, 987 S.W.2d 879, 885 (Tex. 1999) (holding a plaintiff may not
recover mental-anguish damages as a consequence of economic loss but expressing
“no opinion on what standard may be appropriate when additional or other kinds of
loss are claimed or when heightened culpability is alleged”).
We have previously noted that “[t]he TCPA provides for dismissal of actions,
not remedies” and that when a legal action is dismissed under the TCPA, “all
remedies available under that legal theory disappear with the dismissal of the action
itself.” Van Der Linden v. Khan, 535 S.W.3d 179, 203 (Tex. App.—Fort Worth 2017,
pet. denied). Because we must view Newman’s pleadings in the light most favorable
to her, and because Appellants could have filed—but did not file—special exceptions
to force Newman to clarify whether she merely sought additional damages or whether
she intended to bring a separate claim for intentional infliction of emotional distress, 24
we will not treat these requests for remedies as causes of action to be reviewed under
the TCPA. See Tex. R. Civ. P. 91; Brumley v. McDuff, 616 S.W.3d 826, 831 (Tex. 2021)
(“The proper response to a legally or factually infirm pleading is to file special
exceptions objecting to the pleading.”); see also Frontier NanoSystems, LLC v. Cleveland
Terrazas PLLC, No. 08-22-00136-CV, 2023 WL 3737118, at *3 (Tex. App.—El Paso
24
At the TCPA hearing, Hiatt’s attorney noted that Newman had added to her
amended petition what he thought might be a claim for intentional infliction of
emotional distress, stating, “Here they brought in for the first time on their amended
petition . . . what I think is an infliction -- an intentional infliction of emotional
distress.”
41
May 31, 2023, pet. filed) (mem. op.) (“Courts liberally construe petitions in favor of
the pleader in the absence of special exceptions.”).
Appellants also address Newman’s request for “inspection of books and
records, accounting, and disgorgement” as a cause of action,25 but only part of this is a
cause of action; a request for disgorgement seeks an equitable remedy for breach of
fiduciary duty. See Hsin-Chi-Su v. Vantage Drilling Co., 474 S.W.3d 284, 298 (Tex.
App.—Houston [14th Dist.] 2015, pet. denied). Further, the subject matter of the
causes of action under Sections 22.351 and 22.353—a nonprofit member’s right to
inspect books and records and the availability of a nonprofit’s financial information
for public inspection, respectively—does not fall within the TCPA’s purview. See
Dolcefino v. Cypress Creek EMS, 540 S.W.3d 194, 200 (Tex. App.—Houston [1st Dist.]
2017, no pet.) (noting, under predecessor TCPA statute, that there must be a
connection between the claims in a lawsuit under Section 22.253 and the alleged
protected conduct under the TCPA); see also Tex. Bus. Orgs. Code Ann. §§ 22.351,
.353; Watson v. Homeowners Ass’n of Heritage Ranch, Inc., 346 S.W.3d 258, 260 (Tex.
App.—Dallas 2011, no pet.) (describing mandamus procedure in trial court to obtain
inspection of association’s books and records). Nor does an accounting. See Yeske v.
Piazza Del Arte, Inc., 513 S.W.3d 652, 674 (Tex. App.—Houston [14th Dist.] 2016, no
pet.) (explaining that an accounting may be either a particular remedy sought in
25
Newman listed “inspection of books and records, accounting and
disgorgement” in the “causes of action” section of her amended petition.
42
conjunction with another cause of action or it may be a suit in equity requiring that
the right to an accounting must first be determined). The trial court did not err by
failing to grant a TCPA dismissal on allegations that do not fall within the TCPA’s
ambit.
2. Potential TCPA claims
Newman sought eight declarations and other relief based on Appellants’ alleged
ultra vires acts, breaches of fiduciary duty, negligence, and civil conspiracy.
a. Declaratory-judgment requests
As set out in our factual recitation, Newman sought eight declarations under
the Declaratory Judgments Act, but she did not allege the occurrence of any
communications as to these declaratory-judgment requests. See Smith v. Crestview NuV,
LLC, 565 S.W.3d 793, 798 (Tex. App.—Fort Worth 2018, pet. denied) (“[T]he
TCPA’s protections extend to all forms of communication.”). Instead, her claims are
based on Appellants’ conduct. In Smith, we noted that the nonmovant had specifically
and narrowly alleged that the movant’s actions aided violation of the Texas Securities
Act, not the movant’s communications, and that none of the allegations leveled against
the movant referred to his communications with his co-defendant: Smith “rendered
substantial assistance in furtherance of Armstrong’s conduct,” “conduct[ed]
clandestine ‘testing,’” “failed to keep any medical records,” and “violated . . . Texas
Medical Board regulations in connection with his assistance of Armstrong’s sales.”
Id.; cf. Phuong Nguyen v. ABLe Commc’ns, Inc., No. 02-19-00069-CV, 2020 WL 2071757,
43
at *5, *12 (Tex. App.—Fort Worth Apr. 30, 2020, no pet.) (mem. op.) (holding TCPA
applied when nonmovant alleged that movant had breached its fiduciary duty by
“disclosing” trade secrets, “soliciting” nonmovant’s customers and employees, and
“ma[king] communications about [nonmovant’s] work” on local governmental entity
contracts).
And although Newman’s request for a declaration of the election results’
finality implies a communication—i.e., that Appellants must have declared that the
June 4, 2022 election results were not final—as we stated in Newstream,
[M]erely 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 . . . , 565
S.W.3d [at] 798 . . . ; see also Shopoff Advisors, L.P. v. Atrium Circle, GP, No.
04-20-00310-CV, 2021 WL 2669337, at *4 (Tex. App.—San Antonio
June 30, 2021, no pet.) (mem. op.) (filing of lis pendens did not invoke
the protection of the TCPA, gravamen of the case was the failure to
release the lis pendens in accordance with arbitration award); Pacheco v.
Rodriguez, 600 S.W.3d 401, 410 (Tex. App.—El Paso 2020, no pet.)
(“[W]hen a claim does not allege a communication, and is instead based
on a defendant’s conduct, the TCPA is not implicated.”); Riggs & Ray,
P.C. v. State Fair of Tex., No. 05-17-00973-CV, 2019 WL 4200009, at *4
(Tex. App.—Dallas Sept. 5, 2019, pet. denied) (mem. op.) (“Although
SFT communicated this noncompliance through its
declaratory[-]judgment suit, the noncompliance itself, not the
communication, is the basis of R & R’s claims.”); Allied Orion Grp., LLC
v. Pitre, No. 14-19-00681-CV, 2021 WL 2154065, at *3 (Tex. App.—
Houston [14th Dist.] May 27, 2021, no pet.) (mem. op.) (recognizing that
while communications may have occurred as part of the process leading
up to the plaintiff’s employment termination, the plaintiff’s termination
suit did not assert claims based upon the making or submitting of any
statement or document and therefore claims were not subject to the
TCPA).
2022 WL 1496537, at *2.
44
Further, the TCPA does not apply to a claim for failure to disclose information
because such a claim is not based on or in response to the making of a
“communication,” i.e., “the making or submitting of a statement or document,”
Phuong Nguyen, 2020 WL 2071757, at *20 (referencing Section 27.001(1)); see Rivas,
2023 WL 3063409, at *8 (concluding that claims against board member were not
based on or in response to his protected communications but rather on his alleged
failure to disclose). And a nonprofit’s books and records—other than financial
information—generally are not created for communication to the public. Compare
Tex. Bus. Orgs. Code Ann. § 22.351 (stating that a nonprofit corporation’s member “on
written demand stating the purpose of the demand, is entitled to examine and copy at
the member’s expense . . . at any reasonable time and for a proper purpose, the books
and records of the corporation relevant to that purpose”), with id. § 22.253(b) (stating
that a nonprofit shall make the records, books, and annual reports of its financial
activity available to the public for inspection and copying). Based on the lack of
alleged “communications” and failures to act, none of the requested declarations
pertain to Appellants’ right of free speech.
The TCPA’s definition of the “exercise of the right of association” no longer
expressly requires a “communication” between the individuals who “join together to
collectively express, promote, pursue, or defend common interests relating to a . . .
matter of public concern,” cf. Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, 2011
Tex. Gen. Laws 961, 961–62 (amended 2019), and the addition of “matter of public
45
concern” to the definition requires “a statement or activity.” Tex. Civ. Prac. & Rem.
Code Ann. § 27.001(2), (7). As noted above, Newman did not allege the occurrence
of any statements as to these declaratory-judgment claims. Therefore, unless
Newman’s claim involved Appellants’ joining together to collectively express,
promote, pursue, or defend a common interest related to an activity regarding a matter
of interest to the community or a subject of concern to the public, none of these
claims are governed by the TCPA.26 See id.Interpreting the pre-2019 TCPA in Kawcak v. Antero Resources Corp., we
determined that the use of “common” implies more than just the narrow selfish
interests of persons who act jointly to commit a tort. 582 S.W.3d 566, 569 (Tex.
App.—Fort Worth 2019, pet. denied); see Sanchez v. Striever, 614 S.W.3d 233, 244 (Tex.
26
Appellants reference their 1991–2000 Star-Telegram articles to support their
argument that Kickball’s activities and programs “have long been the subject of news
reports.” But these articles, published before Kickball’s incorporation, reflect a lack
of public coverage and concern about Kickball’s internal disputes in 2022. Appellants
also reference their “partnership” with the City of Watauga, but Chavez merely stated
in her unsworn declaration that the City leased the ball fields in the public park to
Kickball, while Newman stated in her unsworn declaration that the lease was just an
agreement to use the ball fields in exchange for monetary consideration but no other
mutuality of interest. No one included a copy of the lease as an exhibit, and the mere
existence of a lease with a public entity does not appear to implicate a matter of public
concern under the current TCPA without claims by the plaintiff that involve the lease
and a showing that those claims are subject to the TCPA. See, e.g., Jetall Cos. v. Sonder
USA Inc., No. 01-21-00378-CV, 2022 WL 17684340, at *18 (Tex. App.—Houston
[1st Dist.] Dec. 15, 2022, no pet.) (mem. op. on reh’g) (holding TCPA did not apply
to nonmovant’s declaratory-judgment claim to determine rights, status, and other legal
relations under commercial property leases when nothing in the claim sought to limit
the movants’ rights of free speech or petition). None of Newman’s claims involve the
lease.
46
App.—Houston [14th Dist.] 2020, no pet.) (“Put simply, there is no constitutional
right to engage in criminal behavior or commit civil wrongs.”). And as the supreme
court recently observed in McLane Champions,
Taken together, [Lippincott v. Whisenhunt, 462 S.W.3d 507, 509–10 (Tex.
2015), ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 897–901 (Tex.
2017), and Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d
127, 136–37 (Tex. 2019),] demonstrate that communications that are
merely “related somehow to one of the broad categories” set out in the
statute but that otherwise have no relevance to a public audience are not
“communications made in connection with a matter of public concern.”
[Creative Oil, 591 S.W.3d at 137]; see Goldberg v. EMR (USA Holdings) Inc.,
594 S.W.3d 818, 828 (Tex. App.—Dallas 2020, pet. denied) (citing
Creative Oil and noting that “the communications themselves must relate to
a matter of public concern” (emphasis added)). To be sure, private
communications can implicate the right of free speech under the TCPA,
but in both Lippincott and Coleman the communications at issue, while
made privately, held some relevance to a public audience when they were
made. See Lippincott, 462 S.W.3d at 509–10; Coleman, 512 S.W.3d at 898.
Construing the TCPA to cover communications that hold some
relevance to a public audience when they are made is also more
consistent with the ordinary meaning of the phrase “in connection
with.” The TCPA does not define that phrase. Merriam-Webster,
however, defines it as an idiomatic expression meaning “for reasons that
relate to (something).” In connection with, Merriam-Webster.com
Dictionary, https://www.merriam-webster.com/dictionary/in%20
connection%20with (last visited June 28, 2023). The definition indicates
the two connected things are relevant to each other and provides an
example that fleshes this idea out: “Police arrested four men in connection
with the robbery.” Id. The arrest has some relevance to “the robbery,”
not the crime of robbery in the abstract.
2023 WL 4306378, at *6. The supreme court referenced our Kawcak “common
interest” definition in a footnote before noting that “[t]he 2019 amendments to the
TCPA . . . have resolved [the ‘common interest’] split for future cases by redefining
47
the exercise of the right of association to clarify that the common interest parties join
together to collectively express, promote, pursue, or defend must relate to a
governmental proceeding or a matter of public concern.” Id. at *9 & n.11.
Except for the declaration purporting to exonerate Newman, because the
requested declarations allege activities made in the narrow, selfish interests of the
alleged tortfeasors’ common interest rather than in furtherance of an interest common
to the kickball community, we conclude that these claims do not fall under the TCPA.
Cf. O’Hern v. Mughrabi, 579 S.W.3d 594, 603 (Tex. App.—Houston [14th Dist.] 2019,
no pet.).27 And as to the declaration purporting to exonerate Newman under
27
In O’Hern, the common interest belonged to condominium owners who were
not the alleged tortfeasors. A condominium association board member sued the
other four board members for breach of fiduciary duty in their official capacity after
the board decided to levy a $5.9-million special assessment to replace the external
windows of the seventeen-story condominium building. 579 S.W.3d at 597–98, 602.
The plaintiff alleged that the defendants owed him a fiduciary duty and had breached
that duty by taking, or failing to take, certain actions as board members. Id. at 602–03.
The defendants filed a TCPA motion based on their right of association and their
communications that included oral remarks at board meetings, written presentations,
and notices of decisions in pursuit or defense of the common interest in providing the
management, maintenance, repair, and replacement of the condominium’s common
elements. Id. at 603. In analyzing O’Hern, the Amarillo court noted that “the cases
cited within O’Hern also identify that a claim for breach of fiduciary duty is covered by
the TCPA only where there is a public or quasi-public board or group involved and
their communications relate to a public interest.” Tex. Custom Wine Works, LLC v.
Talcott, 598 S.W.3d 380, 387 (Tex. App.—Amarillo 2020, no pet.).
The case before us is more like cases brought by former association members
as to suspension of their membership rights or expulsion. Compare Williams v. Smith,
No. 02-21-00415-CV, 2022 WL 17841135, at *1 (Tex. App.—Fort Worth Dec. 22,
2022, no pet.) (mem. op.) (noting that a temporary loss of fraternity membership
rights, standing alone, is generally not the type of property loss for which courts will
48
LMKII’s and Kickball’s rules, Newman had a right to seek protection under the
Declaratory Judgments Act as to her own conduct. See Gilani v. Rigney, No. 02-21-
00314-CV, 2022 WL 714700, at *4 (Tex. App.—Fort Worth Mar. 10, 2022, pet.
denied) (mem. op.) (stating that the TCPA does not create a right for a TCPA movant
to usurp the Declaratory Judgment Act’s protections).28 We overrule this portion of
Appellants’ sole issue. See Smith, 565 S.W.3d at 798; cf. Phuong Nguyen, 2020 WL
2071757, at *5, *12.
b. Ultra vires
Newman’s ultra vires claim lists a variety of non-speech-related activities that
do not fall under the TCPA, such as violating Chapter 22 of the Texas Business
Organizations Code and changing the association’s membership and voting-eligibility
interfere in a voluntary organization’s operations), with Int’l Printing Pressmen &
Assistants’ Union of N. Am. v. Smith, 198 S.W.2d 729, 732 (Tex. 1946) (reversing
expulsion from union when union failed to follow its expulsion rules), and Collins v.
Kappa Sigma Fraternity, No. 02-14-00294-CV, 2017 WL 218286, at *9–10 (Tex. App.—
Fort Worth Jan. 19, 2017, pet. denied) (mem. op.) (noting, in summary-judgment
appeal, that appellant provided evidence in support of his due-process claim that
executive committee members who expelled him had longstanding grievances against
him, that other fraternity members had not been expelled for conduct like his, and
that the committee purposely held its expulsion trial when he could not attend).
28
Newman refers us to Choudhri v. Lee, No. 01-20-00098-CV, 2020 WL
4689204, at *3 (Tex. App.—Houston [1st Dist.] Aug. 13, 2020, pet. denied) (mem.
op.), for the proposition that a declaratory-judgment claim is generally not subject to
the TCPA. But Choudhri is not that broad, see id. at *1–3, and the TCPA specifically
defines “legal action” to include a filing that requests declaratory relief. See Tex. Civ.
Prac. & Rem. Code Ann. § 27.001(6); Gilani, 2022 WL 714700, at *5 n.5; see also
Walker, 99 The Advoc. (Tex.) at 19 (“Under the 2019 [TCPA], there is some authority
that a claim for declaratory relief under the UDJA is a ‘legal action’ subject to
dismissal under the TCPA if such a claim implicates a protected right.”).
49
rules to maintain board positions contrary to voting results. See Smith, 565 S.W.3d at
798. Taking Newman’s pleadings as true, these items and her remaining items that
implicate speech, such as illegally conducting meetings in violation of the bylaws and
conspiracy, are all unprotected activities by tortfeasors because they were not taken in
the “common” interest of the kickball community, but rather despite it. See Kawcak,
582 S.W.3d at 569. We overrule this portion of Appellants’ sole issue.
c. Breach of fiduciary duty
In one of her breach-of-fiduciary-duty claims, Newman alleged that Appellants
had breached their fiduciary duties “of obedience, loyalty, and due care” to Kickball,
referencing Appellants’ “personal vendetta” against her, their actions to remove her as
a member and director, their using “special one-time” bylaws to invalidate the election
and exclude her from the new election, as well as Appellants’ failing and refusing to
deliver membership lists to her. See Jody S. Sanders & David E. Keltner, Fiduciary
Duties: Navigating Contract and Common-Law Limits, 40 Corp. Couns. Rev. 1, 15 (2021)
(noting that fiduciary-duty claims are not expressly exempted under the TCPA despite
the Legislature’s tightening of TCPA’s remedies and definitions for lawsuits filed on
or after September 1, 2019). To the extent that Newman’s general breach-of-
fiduciary-duty allegations imply communications (i.e., “false accusations”) or an
activity, they are insufficient to support a “common” interest that would shield
Appellants under the TCPA. See Kawcak, 582 S.W.3d at 569.
50
As to her separate breach-of-fiduciary-duty claim as to Perales—the hotel-
reward points, the no-bid photography services, and the conspiracy to allow Perales to
personally profit at the membership’s expense—while Perales’s alleged refusal, upon
request, to allow other members to receive their own hotel points, involved the
making of a “communication,” see Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1), it
did not involve a matter of public concern, cf. id. § 27.001(7)(C). And the alleged
conspiracy to allow Perales to profit from no-bid photography services is not an
interest that the TCPA protects because the “common” interest here is “tortfeasors
breaching fiduciary duties and working together for their own personal benefit rather
than an interest common to the public or a larger group.” Farhat v. Wilson Scott, LLC,
No. 02-19-00438-CV, 2020 WL 1949624, at *3 (Tex. App.—Fort Worth Apr. 23,
2020, no pet.) (mem. op.); see Kawcak, 582 S.W.3d at 588 (“[T]he plain meaning of the
word ‘common’ in TCPA [S]ection 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 the TCPA does not apply to either of these claims, we overrule
this portion of Appellants’ sole issue.
d. Negligence
With regard to Newman’s negligence allegations, as discussed above, allegations
of a failure to communicate do not fall under the TCPA, see Phuong Nguyen, 2020 WL
2071757, at *20, nor do allegations of actions that are unrelated to communications,
see Smith, 565 S.W.3d at 798, or actions related to tortfeasors’ associating together to
51
act tortiously for their own selfish benefit, see Kawcak, 582 S.W.3d at 588.
Accordingly, we conclude that Newman’s negligence allegations likewise do not fall
under the TCPA, and we overrule this portion of Appellants’ sole issue. Compare
Pacheco, 600 S.W.3d at 410 (concluding that negligence allegation, e.g., “failing to
maintain their fence,” was based solely on conduct and not communications,
preventing TCPA’s application), with Cunningham v. Waymire, 612 S.W.3d 47, 56–59
(Tex. App.—Houston [14th Dist.] 2019, no pet.) (concluding claims for, among other
things, negligence, were governed by TCPA based on grandparent’s alleged written
and verbal threats and statements).
e. Civil conspiracy
In her civil-conspiracy claim, Newman alleged that Appellants either
accomplished an unlawful purpose by disregarding the bylaws and the election results
or accomplished a lawful purpose of voting in a new board of directors by unlawful
means “in derogation of their fiduciary duties.” But civil conspiracy requires an
underlying intentional tort that has caused damages. See Agar Corp. v. Electro Circuits
Int’l, LLC, 580 S.W.3d 136, 142 (Tex. 2019). The underlying intentional torts listed in
Newman’s amended petition are breach of fiduciary duty and fraud. Because fraud is
not a basis for a TCPA dismissal, and because Newman’s fiduciary-duty allegations do
not support dismissal under the TCPA, her civil-conspiracy claim can likewise not be
dismissed under the TCPA. See Mignogna v. Funimation Prods., LLC, No. 02-19-00394-
CV, 2022 WL 3486234, at *15 (Tex. App.—Fort Worth Aug. 18, 2022, pet. denied)
52
(mem. op.) (“A conspiracy claim is a derivative tort because recovery is not based on
the conspiracy but on an underlying tort.”). We overrule this portion of Appellants’
sole issue.
3. Conclusion
We have concluded that the TCPA does not apply to Newman’s claims.
Appellants’ having failed to meet the TCPA’s threshold requirement, the burden
never shifted to Newman to produce evidence to support her claims. Accordingly, we
do not need to reach the remainder of Appellants’ arguments to determine that the
trial court did not err by allowing Appellants’ TCPA motions to be overruled by
operation of law. See Tex. R. App. P. 47.1.
IV. Conclusion
Having overruled the dispositive portions of Appellants’ sole issue, we affirm
the denial of Appellants’ TCPA motions.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: August 31, 2023
53