In a case involving a dispute between an investor/consultant and Delaware-based entities, the Dallas Court of Appeals has upheld a Collin County district court’s denial of the investor’s TCPA motion to dismiss.

Douglas D. Box v. Petrotel Oman LLC, Petrotel Oman Onshore LLC, and Petrotel Oman Offshore LLC (No. 05-21-00951-CV) arose from an agreement relating to the development of infrastructure to develop oil and gas production in the Sultanate of Oman. Box filed suit in Dallas County, alleging that the PetroTel entities, all Delaware LLCs, breached an oral agreement to pay him consulting fees related to the project. About a year later, the PetroTel entities filed suit against Box, alleging that he had misrepresented his personal wealth and intent to invest in their projects to induce them to enter into confidentiality agreements and share sensitive business information. They further alleged that Box violated these agreements by disclosing information to a third party. Box moved to dismiss those claims under the Texas Citizens Participation Act (Ch. 27, CPRC). He alleged that they were filed based on or in response to his exercise of petition and speech rights. Following a hearing, the trial court denied the TCPA motion to dismiss. Box appealed.

The Dallas Court of Appeals affirmed. Box’s first contention, that the PetroTel entities’ lawsuit was based on or in response to his right to petition (that is, filing his own lawsuit), failed because: (1) PetroTel filed suit more than a year after Box filed his suit, and the petition does not mention Box’s suit in any form or fashion; (2) PetroTel explained that the timing of its lawsuit had nothing to do with Box’s suit, but with its discovery that Box shared confidential information with a third party; and (3) each side’s lawsuit is distinctly different than the other. The court thus concluded that PetroTel’s lawsuit was not “in response to” Box’s claim.

Box also contended that PetroTel’s lawsuit was based on his exercise of free speech, in that it involved communications made in connection with funding a loan from a federal government agency. PetroTel replied that its suit had nothing to do with communications with a federal agency but were about confidential information “pertaining to a territorial block awarded to appellee PetroTel Offshore LLC, and that the federal loan was awarded to a different appellee PetroTel Oman LLC.” The court found that “any relationship between PetroTel Entities’ suit and a loan from a federal government agency is at best tenuous.” The court found further that the gravamen of the parties’ dispute is a private breach of contract action, which SCOTX has ruled “is simply not a ‘matter of public concern’ under any tenable understanding of those words” (citing Creative Oil & Gas, LLC v. Loma Hills Ranch, LLC, 591 S.W. 3d 127, 137 (Tex. 2019)).

This case did not present a particularly close question, but it is instructive on how appellate courts might review lawsuits filed in fairly close proximity that arise from the same general set of facts but make distinct claims. Once again, it’s heartening to see appellate courts holding the line against TCPA motions that stretch the language of the statute a little too far.

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