In a signal victory for proponents of the 2019 amendments to the Texas Citizens Participation Act (Chapter 27, CPRC), the First Court of Appeals in Houston applied the new law to affirm a trial court’s denial of a motion to dismiss a property owner’s lawsuit against a developer for tortious interference with contract and implied easement by necessity.

The underlying case, ML Dev, LP, et al. v. Ross Dress for Less, Inc. (No. 01-20-0073-CV), involves a dispute over easement access to a Ross Dress for Less distribution center on I-10 in Waller County.  Ross bought the property from ML Dev in 2019, but when it tried to assert easement rights to adjacent property to build an access road, ML Dev refused. Ross later discovered that ML Dev’s owner had transferred the property to his friends right before Ross and ML Dev executed the purchase sale agreement. Consequently, though Ross thought that the purchase price of the property included easement access, the developer took the position that Ross would have to negotiate the price of the easement with the other (related) parties. When sued by Ross, the developer filed a TCPA motion to dismiss alleging that the easement-access suit was based on or in response to its exercise of rights to speech and petition. After hearing, the trial court denied the motion. Prior to a hearing on Ross’s claim for attorney’s fees on the theory that the developer filed the TPCA motion solely for the purpose of delay, the developer appealed.

In an opinion by Justice Landau, the court of appeals affirmed (with some relish, we might add). In a discussion of the original act, Justice Landau notes that “[T]he prospect of summary dismissal with fees proved to be an attractive option to all types of defendants facing all kinds of legal claims” (numerous citations omitted). The wide-open use of the TCPA drew a legislative response in 2019, which “deleted ‘relates to’ from the list, thereby requiring future movants to establish that the legal actions they seek to dismiss are ‘based on’ or ‘in response to’ their exercise of a protected right.”

The developer argued that Ross’s claims are “based on” or “in response to” communications about a public concern, that is, the construction of an access road. Those alleged “communications” were statements made by the developers to Ross denying access and that access “would not be provided for free.” Under the new standard, the court of appeals determined, the developer could not “draw an adequate connection between their statements and Ross’s legal claims to invoke the TCPA. As Justice Landau wrote, “Their alleged statements may have accompanied the denial of easement access. And they might clarify what the Developer entities hoped Ross would do in the future to finally obtain the necessary access. But the communications, themselves, do not provide the basis for the legal claims of the impetus for suit. Ross does not allege that it was injured by the statements. It does not seek to prevent similar statements in any private or public setting. It seeks to force the Developer entities to take a specific action. The core of Ross’s suit is a demand for easement access—to allow entry on and use of land.”

We quote the opinion at length because it indicates, at least to us, an important consequence of the 2019 legislative amendments narrowing the application of the TCPA. As the court of appeals emphatically held, TCPA movants now have a “higher burden” to meet. Judging by this opinion, courts will focus movant’s actions and whether the plaintiff’s suit was “based on” or “in response to” those actions rather than the alleged communications around those actions. As the opinion put it, the “deleted phrase ‘relates to’ might encompass chatter around the denial of easement access, but ‘based on’ and ‘in response to’ are not so sweeping” (citing a law review article by our own TCPA experts Lisa Kaufman and Amy and Steve Bresnen).

This opinion is remarkable, not so much for its holding, but for its appropriate and emphatic emphasis on the Legislature’s intention to significantly narrow the application of the TCPA. In light of the universal condemnation of the overbroad scope of the prior law by appellate courts all over the state, the opinion augurs well for future decisions and, we hope, a more reasonable and constrained use of the TCPA as a litigation tactic of first resort. As Justice Landau concludes, “This is one of the first examples of how the tightening of the statutory language now restricts what previously may have invoked TCPA protections.” For those of us who worked on the 2019 amendments, this is music to our ears.

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