KRJJ Enterprises, D/B/A KRJJ Enterprises (Gulf Coast) LP v. Johanna C. Willis, Jermaine Willis, Jr. , Jermiah Willis by Next Friend Johanna Willis, Jermia Willis by Next Friend Johanna Willis ( 2023 )

Opinion issued December 14, 2023.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-23-00198-CV
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KRJJ ENTERPRISES, D/B/A KRJJ ENTERPRISES (GULF COAST) LP,
Appellant
V.
JOHANNA C. WILLIS, JERMAINE WILLIS, JR. , JERMIAH WILLIS BY
NEXT FRIEND JOHANNA WILLIS, JERMIA WILLIS BY NEXT FRIEND
JOHANNA WILLIS, Appellees
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Case No. 2022-65704
MEMORANDUM OPINION
This is an interlocutory appeal1 from a district court order denying a motion
to dismiss under the Texas Citizens Participation Act (TCPA) brought by
defendant/appellant KRJJ Enterprises, d/b/a/ KRJJ Enterprises (Gulf Coast) LP.
KRJJ contends that the trial court erred by denying its motion because the
defamation claim asserted by appellee Johanna Willis and her family against it was
in response to KRJJ’s right of free speech, right to petition, or right of association.
KRJJ further contends that the trial court erred by not dismissing the Willis
family’s claim for defamation because the Willis family failed to establish by clear
and specific evidence a prima facie case for each essential element of the claim.
We affirm.
Background
A. Factual Allegations
The Willis family rented a residential property from KRJJ beginning in
November 2020. The lease term ended on October 31, 2021. The parties dispute
what happened at the end of the lease term. The Willis family states that KRJJ filed
an eviction suit due to a delay in paying rent in September 2021. KRJJ states that
the Willis family refused to vacate at the end of the lease term. The Willis family
claims that they paid rent for October and November 2021. Eventually, KRJJ filed
1
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12).
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a forcible detainer action in justice court in Harris County, and the court awarded
KRJJ possession of the residence. The Willis family appealed to the county court,
but the family vacated the property before a trial de novo occurred in the county
court. KRJJ dismissed the eviction suit.
In May 2022, KRJJ sent the Willis family a demand for six months of
unpaid rent, damages to the leased premises, and other fees. KRJJ alleges that the
Willis family did not respond. KRJJ states that it then “utilized the assistance of an
organization called Mrlandlord.com.” According to KRJJ, the organization aids
landlords, including placing tenant debts with collections agencies.
In October 2022, the Willis family sued KRJJ for unconscionable actions
and defamation.2 In its defamation claim, the Willis family alleged that KRJJ
“caused information regarding the alleged unpaid balance . . . to be reported to one
or more credit reporting agencies or companies” against the credit rating of Joanna
Willis, causing her credit rating to decrease, harming her reputation, and impeding
her efforts to obtain another residential lease.
KRJJ moved to dismiss under the Texas Citizens Participation Act. See TEX.
CIV. PRAC. & REM. CODE § 27.001–.011. The Willis family responded to the
dismissal motion. After a hearing, the trial court denied KRJJ’s motion. KRJJ
appealed.
2
The unconscionable action claim is not part of this appeal.
3
On appeal, KRJJ argues that the trial court’s denial of its motion to dismiss
should be reversed because the Willis family’s defamation claim against KRJJ falls
within the scope of the TCPA and the Willis family failed to provide clear and
specific evidence to establish a prima facie case of defamation. We disagree, and
affirm.
Overview of the TCPA
The TCPA provides special procedures allowing parties to obtain early
dismissal of meritless claims that implicate the exercise of the rights of free
speech, association, and petition. McLane Champions, LLC v. Houston Baseball
Partners LLC, 671 S.W.3d 907, 910 (Tex. 2023). The Legislature enacted the
TCPA “to encourage and safeguard the constitutional rights of persons to petition,
speak freely, associate freely, and otherwise participate in government to the
maximum extent permitted by law and, at the same time, protect the rights of a
person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. &
REM. CODE § 27.002; see also McLane, 671 S.W.3d at 913. The statute provides
this protection by authorizing a motion to dismiss early in the covered proceedings,
subject to expedited interlocutory review. See TEX. CIV. PRAC. & REM. CODE
§§ 27.003, .008. Trial courts review TCPA motions to dismiss in a multi-step
analysis. First, the moving party must show by a preponderance of the evidence
that the TCPA applies to the legal action against it. Id. §§ 27.003, .005(b). If the
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moving party satisfies that burden, the burden shifts to the nonmoving party to
establish by clear and specific evidence a prima facie case for each essential
element of its claim. Id. § 27.005(c). If the nonmoving party cannot satisfy that
burden, the trial court must dismiss the suit. Id.
We review de novo the denial of a TCPA motion to dismiss. Dall. Morning
News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019); Better Bus. Bur. of Metro.
Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.—
Houston [1st Dist.] 2013, pet. denied). In determining whether a legal action is
subject to or should be dismissed under the TCPA, a court shall consider the
pleadings, evidence the court could consider under the summary-judgment rule,
and supporting and opposing affidavits stating the facts on which the liability or
defense is based. TEX. CIV. PRAC. & REM. CODE § 27.006(a); cf. Hersh v. Tatum,
526 S.W.3d 462, 467 (Tex. 2017) (stating, in connection with step one, that the
plaintiff’s petition is the best and all-sufficient evidence of the nature of the
action). We review the pleadings and evidence in the light most favorable to the
nonmovant. Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 470 (Tex. App.—
Houston [1st Dist.] 2020, pet. dism’d) (en banc); Schimmel v. McGregor, 438
S.W.3d 847, 855–56 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). Whether
the TCPA applies is an issue of statutory interpretation that we also review de
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novo. S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex.
2018).
A. Rights of free speech and association
We begin by considering KRJJ’s contention that the Willis family’s claim
for defamation is based on or in response to KRJJ’s exercise of the rights of free
speech and association. The TCPA defines the “exercise of the right of free
speech” as “a communication made in connection with a matter of public concern.”
TEX. CIV. PRAC. & REM. CODE § 27.001(3). “Communication,” as used in the
statute, “includes the making or submitting of a statement or document in any form
or medium, including oral, visual, written, audiovisual, or electronic.” Id.
§ 27.001(1). The exercise of the right of association “means 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).
This case turns on whether the alleged communication by KRJJ to a credit
agency is a matter of public concern. Both the right of free speech and the right of
association, as defined in the TCPA, involve matters of public concern. See TEX.
CIV. PRAC. & REM. CODE §§ 27.001(2), (3). As relevant to appellant’s arguments in
this appeal, a “[m]atter of public concern” includes “a statement . . . regarding a
matter of political, social or other interest to the community; or a subject of
concern to the public.” Id. § 27.001(7)(B), (C). The TCPA’s express purpose is
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“safeguarding constitutional rights while simultaneously protecting plaintiffs’
rights to file meritorious lawsuits for demonstrable injuries.” McLane, 671 S.W.3d
at 917; see also Dall. Morning News, Inc., 579 S.W.3d at 376 (noting that the
TCPA “is a bulwark against retaliatory lawsuits meant to intimidate or silence
citizens on matters of public concern”).
To be a matter of public concern, a communication must have public
relevance beyond the interests of the parties. Creative Oil & Gas, LLC v. Lona
Hills Ranch, LLC, 591 S.W.3d 127, 137 (Tex. 2019) (stating 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.); see also McLane, 671
S.W.3d at 916 (construing the TCPA to cover communications that hold some
relevance to a public audience when they are made). The communication must
refer to matters of “political, social, or other concern to the community” as
opposed to purely private matters. Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex.
2017)). The communication must address “a subject of legitimate news interest;
that is, a subject of general interest and of value and concern to the public.” Id.(quoting San Diego v. Roe, 543 U.S. 77, 83–84 (2004) (per curiam)).
With this in mind, we turn to the specific communication underlying the
Willis family’s suit and its connection to a matter of public concern when made. In
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their petition, the Willis family alleged that KRJJ reported allegedly false
information contained in a collection notice, including an alleged past due balance,
to “one or more of the three credit reporting agencies, Equifax, Experian,
Transunion, and/or to other credit reporting agencies.” KRJJ asserts that
communication by a creditor to third parties about the debtor’s fidelity in paying
bills implicates the rights of free speech and association and is a matter of public
concern.
Under the TCPA, the moving party must show by a preponderance of the
evidence that the TCPA applies to the legal action against it. McLane, 671 S.W.3d
at 914. 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 (2011). Although “[t]he TCPA
casts a wide net,” the statute’s scope is not as expansive and far reaching as once
thought. Panton Inc. v. Bees360, Inc., No. 01-20-00267-CV, 2021 WL 3868773, at
*7 (Tex. App.—Houston [1st Dist.] Aug. 31, 2021, no pet.) (mem. op.) (citing
Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018)). As
the Texas Supreme Court explained in Creative Oil & Gas, “not every
communication related somehow to one of the broad categories set out in section
27.001(7) always regards a matter of public concern.” 591 S.W.3d at 137. In
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Creative Oil & Gas, the Supreme Court interpreted a prior, broader definition of
“matter of public concern,” and held that communications involving a contract
dispute about a purely private matter impacting the pecuniary interests of the
parties were not matters of public concern under the TCPA. Id. More recently, the
Supreme Court reiterated the importance of the public concern limitation on TCPA
applicability, stating that without this limitation, the TCPA would apply to any
communication as part of any private business deal involving industries that impact
economic or community well-being. McLane, 671 S.W.3d at 917 (holding
statements made during contract negotiations were not matters of public concern
under the TCPA).
We hold that KRJJ did not meet its burden to establish that its
communication was a matter of public concern that falls under the TCPA. KRJJ
asserts that its communication was a matter of public concern because as a
business, it has a right to inform other businesses about potential customers. KRJJ
relies on MVS Int’l Corp. v. Int’l Advert. Sols., LLC, 545 S.W.3d 180 (Tex. App.—
El Paso 2017, no pet.). The case began as a collections suit. Id. at 186. The
creditor, MVS, sued several debtors for nonpayment of debt, as evidenced by
unpaid invoices. Id. The debtors filed a counterclaim asserting that several cross-
defendants conspired to falsify the invoices and then communicated the fact of
their subsequent non-payment to third parties. Id. at 187–88. They also asserted a
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claim for defamation. Id. MVS moved to dismiss under the TCPA. Id. In deciding
whether the TCPA applied to the conspiracy claim, the El Paso Court held that
warning other media outlets about potential customers who allegedly do not pay
their accounts was an exercise of free speech under the TCPA. Id. at 193. The
court held that by allegedly informing other media outlets that the appellees do not
pay their accounts, MVS “made a communication in connection with a service in
the relevant marketplace.” Id. at 195 (internal quotations removed).
A closer reading of MVS shows that it is of limited applicability to the facts
at hand. First, though KRJJ relies on MVS to hold that communications to
collection agencies are matters of public concern covered by the TCPA, the court
did not rule on this specific issue because the amended counterclaim did not
include that factual allegation.3 MVS, 545 S.W.3d at 187. Moreover, the case was
decided under a prior version of the TCPA which had a more expansive definition
of “matter of public concern.”4 Whether comments to media outlets were covered
3
The appellees amended their counterclaim and omitted earlier factual allegations,
such as the contention that the counter-defendants had reported the bad debt to the
credit bureaus. MVS Int’l Corp. Int’l Advert. Sols., 545 S.W.3d 180, 187 (Tex.
App.—El Paso 2017, no pet.).
4
The definition of “public concern” changed in the amended version. See TEX. CIV.
PRAC. & REM. CODE § 27.001(2), (7). The 2019 amendment defines “matter of
public concern” as “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.” Act
of May 17, 2019, 86th Leg., R.S., ch. 378, § 1, sec. 27.001(7), 2019 Tex. Sess.
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by the TCPA under the pre-2019 version of the statute does not determine whether
the alleged communication by KRJJ falls under the current version of the TCPA.
Second, we note that the actual communication does not appear in our
record. The Willis family pleading states that KRJJ caused information regarding
an “alleged unpaid balance . . . to be reported to one or more credit reporting
agencies or companies.” In its motion to dismiss, KRJJ states that it “utilized the
assistance of an organization called Mrlandlord.com.” According to KRJJ, the
organization aids landlords, including placing tenant debts with collections
agencies. Without being able to review the communication, we are unable to
determine whether the communication did in fact relate to a matter of public
concern, or whether, instead merely related to KRJJ’s concern for its own
pecuniary interest regarding debt owed by the Willis family. See Gaskamp, 596
S.W.3d at 477–78 (record did not contain sufficient information from which court
could determine whether plaintiff’s lawsuit involved protected communications);
see also Clinical Pathology Labs., Inc. v. Polo, 632 S.W.3d 35, 49–50 (Tex.
App.—El Paso 2020, pet. denied) (holding plaintiff did not meet burden because
the relevant communication was not in the record and the court could not
Law Serv. 684, 685. Previously, a “matter of public concern” was defined as “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.”
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determine if communication regarding phlebotomist’s absence was a public health
concern or a private employment dispute). We cannot say that a landlord reporting
an alleged debt to a credit agency is “a subject of legitimate news interest; that is, a
subject of general interest and of value and concern to the public.” Brady, 515
S.W.3d at 884 (internal quotation and citation removed). We must look to the
content of the communications themselves, and not focus solely on the occupation
of the speaker or the related industry. See Staff Care, Inc. v. Eskridge Enterprises,
LLC, No. 05-18-00732-CV, 2019 WL 2121116, at *4–5 (Tex. App.—Dallas May
15, 2019, no pet.) (mem. op.) (stating that communications by a healthcare
professional in business dispute are not automatically matters of public concern).
As the movant, KRJJ had the burden to demonstrate the applicability of the
TCPA. See TEX. CIV. PRAC. & REM. CODE § 27.005(b). On the record before us,
viewing the facts in the light most favorable to the nonmovant, we cannot say that
KRJJ’s communication to collection agencies involves a matter of public concern.
Multiple private concerns do not accrete to form a public concern. KRJJ failed to
carry its burden to establish by a preponderance of the evidence that the statement
had public relevance beyond the parties involved.
B. Right to petition
KRJJ also contends that the Willis family’s claim for defamation is “based
on” or “in response to” the exercise of KRJJ’s right to petition. See TEX. CIV.
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PRAC. & REM. CODE § 27.003(a). The TCPA defines “exercise of the right to
petition” to include “a communication in or pertaining to: (i) a judicial proceeding;
[or] (ii) an official proceeding, other than a judicial proceeding, to administer the
law.” TEX. CIV. PRAC. & REM. CODE § 27.001(4)(A)(i), (ii).
KRJJ contends that after the Willis family vacated the property and after
KRJJ sent a demand for unpaid rent and damages without response, it
communicated with an organization that helps landlords collect debt. The Willis
family alleges that it was defamed by KRJJ communicating an inaccurate amount
of information to collection agencies. KRJJ has not met its burden to prove that the
communication was “based on” or “in response to” its right of petition. TEX. CIV.
PRAC. & REM. CODE § 27.003(a). The record reflects that in January 2022 KRJJ
filed suit for possession of the residence that had been leased to the Willis family.
KRJJ was awarded possession by the justice court in February 2022. Though the
Willis family appealed to the county court at law, the family vacated before the
case was called to trial, and KRJJ nonsuited the case. In May 2022, KRJJ sent a
demand for unpaid rent and repairs. According to KRJJ, rather than dispute the
debt with the collection agency, the Willis family sued KRJJ. KRJJ has not
established the nexus between the communication to a landlord organization or
collection agency and its exercise of the right to petition. KRJJ has not met its
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burden to establish that the TCPA applies to the defamation claim as an exercise of
the right to petition.
Conclusion
Having determined that the TCPA does not apply to the Willis family’s
defamation claim, we need not reach KRJJ’s second issue on appeal regarding
whether the Willis family established a prima facie case for defamation. The trial
court did not err in dismissing KRJJ’s TCPA motion to dismiss. We affirm.
Justice Peter Kelly
Panel consists of Justices Kelly, Landau, and Farris.
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