The Amarillo Court of Appeals has affirmed a trial court order denying motion to dismiss under the Texas Citizens Participation Act (Ch. 27, CPRC).

Mauro E. Garza, and Everett Holdings, LLC v. Julia Perez (No. 07-23-00271-CV; February 27, 2024) arose from a slip-and-fall in an Austin bar. Plaintiff Perez sued defendant Everett for premises liability. Everett failed to answer, so Perez took a default judgment. She then obtained a turnover order appointing a receiver and authorizing execution on the judgment. Garza, Everett’s corporate representative was served with the order in early 2023. Garza proceeded to consult Anderson Business Advisors (ABA), which advised him to transfer Everett’s assets to himself to avoid execution. Perez discovered this and sued Garza and and Everett in May 2023, asserting claims under the Texas Uniform Fraudulent Transfer Act. Defendants filed a TCPA motion to dismiss, alleging that Perez’s TUFTA suit was “based on … or in response to their exercise of the right to petition.” The trial court denied the motion. Defendants appealed.

On docket transfer from the San Antonio Court of Appeals affirmed. The dispositive issue before the court was whether the TCPA applied. To invoke the TCPA, defendants had to show that “Perez’s TUFTA claims are ‘factually predicated on the alleged conduct that falls within the scope of [the] TCPAs definition of exercise of the right of free speech,’ petition, or association” (citation omitted). Here defendants had to prove that Perez’s claim was either “based on” or “in response to” defendants’ right to petition. They tried to do this by alleging that all of their communication, motions, and filings opposing Perez’s TUFTA claim constituted communications in a judicial proceeding, specifically a Rule 11 agreement in which Garza (falsely, as it turned out) promised to hide assets. Garza’s TUFTA claim, on the other hand, requires proof that plaintiff is a creditor, defendant is a debtor, the debtor transferred assets shortly before or after the creditor’s claim arose, and the debtor did so with actual intent to hinder, delay, or defraud any of the debtor’s creditors (citations omitted).

Interpreting the case under the 2021-TCPA amendments, which tightened the nexus standard, the court determined that “Perez’s claims are not ‘factually predicated’ on the alleged conduct that constitutes [defendants’] exercise of the right to petition” (citations omitted). Instead, Perez’s action rests on defendants’ allegedly fraudulent transfer of assets to prevent Perez from executing the default judgment against those assets. In other words, the court concluded, “[W]hen a claim does not allege a communication, and is instead based on a defendant’s conduct, the TCPA is not implicated” (citation omitted).

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