Constellation Brands, Inc. v. Roach

Full title: CONSTELLATION BRANDS, INC. AND FREDERICK H. SCHRADER, Appellants v. ROBERT…

Court: Court of Appeals of Texas, First District

Date published: Dec 29, 2022

No. 01-21-00155-CV (Tex. App. Dec. 29, 2022)

Opinion

01-21-00155-CV

12-29-2022

CONSTELLATION BRANDS, INC. AND FREDERICK H. SCHRADER, Appellants v. ROBERT M. ROACH, Appellee

Amparo Guerra Justice.

On Appeal from the 189th District Court Harris County, Texas Trial Court Case No. 2018-59845

Panel consists of Justices Landau, Guerra, and Farris.

MEMORANDUM OPINION

Amparo Guerra Justice.

Appellants Constellation Brands Inc. and Frederick H. Schrader appeal from the trial court's denial of their motion to dismiss under the Texas Citizens Participation Act (TCPA) appellee Randy M. Roach's claims against them in the Fifth Amended Petition. Schrader also separately appeals the trial court's denial of his amended special appearance. In a number of issues on appeal, appellants contend that the trial court erred in denying their motions and refusing to dismiss the Fifth Amended Petition.

We affirm in part and reverse and render in part.

Background

This case was brought by Robert M. Roach, Jr. (Roach), a Houston-based lawyer, against Frederick H. Schrader (Schrader), Roach's friend and the former owner of Schrader Cellars, LLC (Schrader Cellars), a California winery. It is undisputed that in the early 2000s, Roach and Schrader formed a California limited liability company named "Roach Brown Schrader, LLC" (RBS, LLC), whose business was described as "[w]ine production and sales."¹

1 The Articles of Organization for RBS, LLC were filed with the California Secretary of State on December 31, 2002.

The parties dispute the purpose of RBS, LLC. According to Roach, Schrader and Roach² formed a partnership to produce a cabernet sauvignon with clone 337 grapes from the To Kalon vineyard in Napa County, California, which was later known as the Schrader RBS cabernet sauvignon (RBS wine). As part of their partnership agreement, Roach alleges that he made an initial investment of $135,000 in exchange for an equity interest in the partnership and its assets. Roach asserts that the creation of the corporate entity RBS, LLC was a formalization of Schrader and Roach's partnership agreement.

2 The partnership initially included Thomas Brown, a winemaker and the "B" in RBS. Brown later decided he did not want to participate in the partnership.

Although Schrader acknowledges the formation of RBS, LLC, he contends it was formed as "a mechanism to gain [Roach's] personal entry into the Napa Valley Vintners [(NVV)], which is located in California." Roach applied to the NVV in 2004, but his application was rejected on the basis that it did not appear "RBS is a separate and distinct brand from Schrader [Cellars]." Schrader admits he received $135,000 from Roach as a personal loan-not an investment in a partnership- which was used to purchase grapes and cover related vinification expenses for Schrader Cellars, not RBS, LLC. Schrader Cellars produced and sold wines under various labels, including "Schrader RBS," and all trademark rights belonged to Schrader Cellars, LLC. According to Schrader, because Roach's application to NVV was rejected, RBS, LLC did not conduct any business, record any profits, declare any income, hold any meetings, or enter into an operating agreement.

The parties agree that, throughout their friendship, Schrader visited Texas on occasion for social events, as well as to attend various wine dinners and events hosted by Roach. Although Schrader contends these were merely social events, Roach alleges that Schrader attended these events and dinners to promote and "market RBS wine" and that Schrader actively sought customers and purchasers of the RBS wine at these events and dinners. Further, Roach alleges that, at these events and dinners, Schrader publicly called Roach "partner" and "Vintner Roach" and publicly described Roach as a "co-owner of the RBS wine to the people who attended these Texas wine dinners."

In November 2013, Schrader (as the registered agent listed for RBS, LLC) was notified by the California Franchise Tax Board that RBS, LLC had failed to file the required tax returns for the past several years, and it warned that unless these returns were filed, the entity would be automatically suspended and forfeit all rights, powers, and privileges, including the right to conduct business, use the entity name, or enforce contracts. After receiving these notices, Schrader notified Roach and Brown that he intended to dissolve RBS, LLC "as it se[rve]s no purpose now." Roach acknowledged receiving this email from Schrader, but he testified at his deposition that he did not manifest "any agreement or willingness to even discuss cancelling or dissolving the LLC," and he did not respond to this email in the hopes that it would avoid an "evaluation fight." Thereafter, Schrader filed a Limited Liability Company Certificate of Cancellation with the California Secretary of State, purporting to dissolve RBS, LLC.

In June 2017, Schrader sold Schrader Cellars, LLC to Constellation Brands, Inc. ("Constellation"). The rights to RBS wine were included in this sale.

On September 4, 2018, Roach filed the underlying suit against Schrader. Roach filed his first amended petition in April 2019, adding Constellation as a party. Schrader filed a special appearance on June 17, 2019. The parties conducted jurisdictional discovery, including depositions of Schrader and Roach, and supplemented their special appearance briefing with the relevant discovery. Roach also amended his petition numerous times; the live petition at the time of the special appearance hearing was the Fourth Amended Petition, which contained the following causes of action:

• Conversion (against Schrader and Constellation);

• Money Had and Received and Restitution (against Schrader and Constellation);

• Breach of Fiduciary Duty (against Schrader);

• Unjust Enrichment (against Schrader and Constellation);

• Constructive Trust (against Schrader and Constellation);

• Equitable Accounting Based on Fiduciary Relationship (against Schrader);

• Fraud (against Schrader);

• Conspiracy with Schrader to Commit Fraud and to Breach his Fiduciary Duties (against Constellation);

• Declaratory Judgment to Declare Roach's Partnership Interest in Boars' View³;

• Declaratory Judgment to Declare Schrader's Representations in the 2013 Cancellation Document "Materially False" or "Fraudulent";

• Declaratory Judgment to Declare Roach's Partnership and Ownership Interests in RBS, LLC and Partnership Assets;

• Declaratory Judgment "to Declare Roach's Ownership Interest in the RBS LLC and Partnership Assets at the Time of the Sale of Schrader Cellars to Constellation and Today"; and

• Declaratory Judgment to Declare Roach's Legal and Equitable Ownership Interest in Schrader Cellars at the Time of the Sale of Schrader Cellars to Constellation.

3 Roach alleged that Schrader offered Roach a percentage of Schrader's ownership interest in another wine venture-Boars' View pinot noir-in exchange for Roach's assistance in obtaining financial investors and partners to fund the venture.

After a non-evidentiary hearing, the trial court denied Schrader's special appearance. Schrader appealed from the denial of his special appearance, and we recently issued an opinion affirming in part and reversing and rendering in part.

In that opinion, we concluded that Schrader attended a handful of wine events in Texas with Roach, at which he allegedly made misrepresentations related to Roach's ownership interest in RBS wine. See Schrader v. Roach, No. 01-20-00183-CV, 2022 WL 2203210, at *8-11 (Tex. App.-Houston [1st Dist.] June 21, 2022, pet. filed) (mem. op.). He also actively solicited customers and buyers of RBS wine and otherwise promoted RBS wine at these events. Id. Because Schrader actively sought to gain business from Texas at these events where the alleged misrepresentations were made, we concluded the trial court has specific personal jurisdiction over Roach's fraud claims and held that the trial court did not err in denying Schrader's special appearance as to the fraud claims. Id. at *11-12.

With respect to Roach's remaining claims for conversion, money had and received, restitution, unjust enrichment, declaratory judgment, and breach of fiduciary duty, however, we concluded that nearly all the operative facts giving rise to these claims occurred in California and that Schrader's Texas contacts were not substantially connected to the operative facts of Roach's claims. Id. at *12-14. Accordingly, we held that the trial court did not have personal jurisdiction over Schrader as to these claims and erred in denying Schrader's special appearance as to these claims. Id. at *13-14.

On January 11, 2021, while Schrader's appeal from the trial court's denial of his special appearance was pending in this Court, Roach filed a Fifth Amended Petition, which included additional factual allegations and asserted a number of new causes of action:

• Knowing Participation in Breach of Fiduciary Duty (against Constellation);

• Equitable Accounting Based on Fiduciary Relationship (against Constellation);

• Fraud (against Constellation);

• Setting Aside Constellation's Acquisition of Schrader Cellars, LLC (against Schrader and Constellation);

• Declaratory Judgment Incident to Request for Equitable Relief of Setting Aside Sale of Schrader Cellars, LLC;

• Partnership (against Schrader);

• Breach of Contract (against Schrader);

• Tortious Interference with Existing Contract (against Constellation);

• Quantum Meruit (against Schrader);

• Concert of Action (against Constellation);

• Joint Venture Liability, Joint Enterprise Liability, and Partnership Liability (against Constellation and Schrader);

• Declaratory Judgment declaring the Indemnity Agreement False and a Violation of Public Policy (against Constellation and Schrader).

On February 22, 2021, Schrader filed a Supplemental and Amended Special Appearance (Amended Special Appearance) reaffirming the issues Schrader had raised in his prior special appearance and challenging jurisdiction over the subsequent claims added by Roach. Later that same day, Schrader and Constellation moved to dismiss the Fifth Amended Petition under the TCPA (the TCPA motion). On March 16, 2021, the trial court denied Schrader's Amended Special Appearance but did not state the basis for its denial. That same day the trial court also denied Appellants' TCPA motion without stating a basis other than the motion was not frivolous and did not justify the award of attorney's fees.

Personal Jurisdiction over Schrader

In the first issue on appeal, Schrader contends that the trial court erred in denying his Amended Special Appearance because Roach's jurisdictional allegations failed to establish personal jurisdiction over Schrader with respect to the new causes of action alleged in the Fifth Amended Petition. Schrader contends that all the complained-of acts allegedly committed by Schrader were committed in California, and Roach's tort and contract claims stem from an alleged agreement that was made in California regarding formation of a California limited liability company and the disposition of property and assets located in California. Because we have already considered and addressed these arguments in detail in Schrader's prior appeal from the trial court's denial of the original special appearance, we do not repeat all the analysis here and refer back to our prior opinion as necessary.

A. Applicable Law

Texas courts may exercise personal jurisdiction over a nonresident defendant if: "(1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state constitutional due-process guarantees." Old Republic Nat'l Title Ins. Co. v. Bell, 549 S.W.3d 550, 558 (Tex. 2018) (citing Moncrief Oil Int'l Inc. v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex. 2013)); Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). The long-arm statute is satisfied by a defendant who "commits a tort in whole or in part in this state." TEX. CIV. PRAC. &REM. CODE § 17.042(2). However, allegations that a tort was committed in Texas do not necessarily satisfy the United States Constitution. Old Republic, 549 S.W.3d at 559; Moncrief Oil, 414 S.W.3d at 149; Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 788 (Tex. 2005).

To establish personal jurisdiction over a nonresident defendant, federal due process requires that the nonresident defendant must have "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. State of Wash., Office of Unemployment Comp. &Placement, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)); accord Moki Mac River Expeditions, 221 S.W.3d at 575. A defendant establishes minimum contacts with a state when it "purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex. 2009) (citations omitted). Thus, the defendant's activities "must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court." Id. (citations omitted). We consider three factors in determining whether a defendant purposefully availed itself of the privilege of conducting activities in Texas:

First, only the defendant's contacts with the forum are relevant, not the unilateral activity of another party or a third person. Second, the contacts relied upon must be purposeful rather than random, fortuitous, or attenuated .... Finally, the defendant must seek some benefit, advantage or profit by availing itself of the jurisdiction. Moncrief Oil, 414 S.W.3d at 151 (quoting Retamco Operating, 278 S.W.3d at 33839).

For specific jurisdiction, which is at issue here, to exist, the plaintiff's claims "'must arise out of or relate to the defendant's contacts' with the forum." Ford Motor Co. v. Montana Eighth Judicial Dist. Ct., 141 S.Ct. 1017, 1025 (2021) (quoting Bristol-Myers Squibb Co. v. Superior Ct. of Cal., S.F. Cty., 137 S.Ct. 1773, 1780 (2017)); see Old Republic, 549 S.W.3d at 559 ("[S]pecific jurisdiction exists when the cause of action arises from or is related to a defendant's purposeful activities in the state."); Moncrief Oil, 414 S.W.3d at 150 (same). When analyzing specific jurisdiction, we focus on the relationship between the forum, the defendant, and the litigation. Moncrief Oil, 414 S.W.3d at 150; see also Ford Motor Co., 141 S.Ct. at 1024 ("[T]he Court has long focused on the nature and extent of 'the defendant's relationship to the forum State.'" (quoting Bristol-Myers Squibb, 137 S.Ct. at 1779)).

B. Waiver

Roach argues that Schrader waived his special appearance by also setting for hearing the TCPA motion at the same time, which Roach contends violated the due-order-of-hearing requirement of Texas Rule of Civil Procedure 120(a). He further contends Schrader waived his special appearance because the TCPA motion was not subject to his special appearance. We do not agree that Schrader has waived his special appearance.

First, Schrader had already filed a special appearance to the claims asserted in Roach's prior pleadings, including his Fourth Amended Petition. The trial court denied that special appearance, and Schrader appealed. After his special appearance was overruled, Schrader thereafter could appear "generally for any purpose" without waiver. See TEX. R. CIV. P. 120a(4) (“If the objection to jurisdiction is overruled, the objecting party may thereafter appear generally for any purpose. Any such special appearance or such general appearance shall not be deemed a waiver of the objection to jurisdiction when the objecting party or subject matter is not amenable to process issued by the courts of this State.”); Kehoe v. Pollack, 526 S.W.3d 781, 790 n.2 (Tex. App.-Houston [14th Dist.] 2017, no pet.) (“If the trial court had denied the Trustee's special appearance before signing the discharge order, the Trustee could ‘appear generally for any purpose' without waiver of the special appearance.”).

Furthermore, Texas Rule of Civil Procedure 120a dictates the order in which pleadings may be filed with respect to the filing of a special appearance (the due-order-of-pleading requirement); it also dictates the order in which motions may be heard with respect to a special appearance (the due-order-of-hearing requirement). See TEX. R. CIV. P. 120a. Generally, if a defendant obtains a hearing on a motion that seeks affirmative relief unrelated to his special appearance before he obtains a hearing and ruling on his special appearance, he has entered a general appearance and thus waived any challenge to personal jurisdiction. Trenz v. Peter Paul Petroleum Co., 388 S.W.3d 796, 802 (Tex. App.-Houston [1st Dist.] 2012, no pet.). However, simply setting a motion for hearing before a special appearance is heard does not waive the special appearance. See, e.g., Silbaugh v. Ramirez, 126 S.W.3d 88, 93 (Tex. App.-Houston [1st Dist.] 2002, no pet.) ("Silbaugh's filing notice of a hearing and setting a hearing on the trial court's docket did not waive her special appearance."); Minucci v. Sogevalor, 14 S.W.3d 790, 799 (Tex. App.-Houston [1st Dist.] 2000, no pet.) (holding that defendant challenging personal jurisdiction did not waive his challenge by "mere[ly] filing [a] notice of oral hearing" on his motion to dissolve writ of garnishment) (emphasis omitted). Rule 120a makes matters filed subsequent to the special appearance subject to the special appearance without an express statement to that effect for each matter. Tex.R.Civ.P. 120a(1) ("Such special appearance shall be made by sworn motion filed prior to motion to transfer venue or any other plea, pleading or motion; provided however, that a motion to transfer venue and any other plea, pleading, or motion may be contained in the same instrument or filed subsequent thereto without waiver of such special appearance[.]"); Minucci, 14 S.W.3d at 800.

Here, although Schrader set both the Amended Special Appearance and the TCPA motion for hearing on the same day, a hearing was not conducted. Instead, the trial court issued written orders on the motions without conducting a hearing. And Roach does not contest that the trial court ruled on the special appearance before ruling on the TCPA motion. Thus, we reject Roach's arguments that by noticing the TCPA motion for hearing (when no hearing on the TCPA motion was held) or failing to expressly state that the TCPA motion was subject to the special appearance (when it was filed after Schrader filed his special appearance), Schrader somehow waived his special appearance.

Accordingly, we turn to Schrader's arguments on the merits of his Amended Special Appearance.

C. Analysis

As noted above, in Schrader's previous appeal challenging the denial of his special appearance, we concluded that Schrader attended a handful of wine events in Texas with Roach, at which he allegedly made misrepresentations related to Roach's ownership interest in RBS wine. He also actively solicited customers and buyers of RBS wine and otherwise promoted RBS wine at these events. Because Schrader actively sought to gain business from Texas at these events where the alleged misrepresentations were made, we concluded the trial court has specific personal jurisdiction over Roach's fraud claims and held that the trial court did not err in denying Schrader's special appearance as to the fraud claims.

With respect to Roach's remaining claims, however, which included conversion, money had and received, restitution, unjust enrichment, declaratory judgment, and breach of fiduciary duty, we concluded that nearly all the operative facts giving rise to these claims occurred in California and that Schrader's limited Texas contacts were not substantially connected to the operative facts of Roach's claims. Accordingly, we held that the trial court did not have personal jurisdiction over Schrader as to these claims and erred in denying Schrader's special appearance as to these claims. Schrader, 2022 WL 2203210, at *12-14.

In his Fifth Amended Petition, Roach does not allege any new jurisdictional facts that would change our analysis. That is, he does not allege that Schrader has any additional or different contacts with Texas, such as any additional alleged tortious conduct in or directed to Texas not previously considered by this Court in the prior appeal. See id. at *5-11. Additionally, each of the newly asserted causes of action against Schrader (i.e., declaratory judgment related to the setting aside of Constellation's acquisition of Schrader Cellars; partnership and equitable accounting; breach of contract; quantum meruit; joint venture liability, joint enterprise liability, partnership liability; and declaratory judgment to declare the indemnity agreement false and in violation of public policy)⁴ all relate to and arise out of the parties' formation of the alleged partnership agreement and LLC in 2002, the purpose behind the partnership and the terms as agreed to in 2002, Schrader's alleged use of Roach's capital investment, the commingling of those funds with Schrader Cellars, the purported dissolution of RBS, LLC, the sale of the RBS wine (via Schrader Cellars) to Constellation, and the relationship between Schrader and Constellation-none of which occurred in Texas. These facts, all of which occurred outside of Texas, will be "the focus of the trial" on Roach's newly alleged claims against Schrader, not Schrader's visits to Texas and attendance at wine events. See M &F Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co., Inc., 512 S.W.3d 878, 888 (Tex. 2017) ("[T]he transactions giving rise to those torts simply did not occur in Texas."); Moki Mac River Expeditions, 221 S.W.3d at 585 ("The events on the trail and the guides' supervision of the hike will be the focus of the trial, will consume most if not all of the litigation's attention, and the overwhelming majority of the evidence will be directed to that question. Only after thoroughly considering the manner in which the hike was conducted will the jury be able to assess the [plaintiffs'] misrepresentation claim."); see also Gonzalez v. AAG Las Vegas, L.L.C., 317 S.W.3d 278, 284-85 (Tex. App.-Houston [1st Dist.] 2009, pet. denied) (noting plaintiffs' focus on Texas meeting in which defendant's compensation package was discussed was "overly narrow" because "the operative facts of [plaintiffs'] breach of loyalty, usurpation claims and declaratory judgment action [seeking declaration of parties' ownership interest in dealership] all concern [the defendant's] acts while general manager in Las Vegas. These are the facts that are relevant for a specific personal-jurisdiction analysis, and the allegations and the evidence show that these acts happened in Nevada.").

4 We note that a suit for an accounting may be either a separate suit in equity or a remedy sought in conjunction with another cause of action. See Yeske v. Piazza Del Arte, Inc., 513 S.W.3d 652, 674 (Tex. App.-Houston [14th Dist.] 2016, no pet.) ("An accounting may be a particular remedy sought in conjunction with another cause of action or it may be a suit in equity."); T.F.W. Mgmt., Inc. v. Westwood Shores Prop. Owners Ass'n, 79 S.W.3d 712, 716 (Tex. App.-Houston [14th Dist.] 2002, pet. denied) ("This case concerns an order for an accounting based on alleged contractual obligations and on principles of equity-not an accounting as a remedy sought in conjunction with another cause of action."). To the extent Roach brought a suit for an accounting, as opposed to requesting the remedy of an accounting in connection with another cause of action, we hold that the trial court lacked jurisdiction over this separate cause of action. We note, however, Roach's "cause of action" to set aside Constellation's acquisition of Schrader Cellars is not a separate cause of action, but a remedy for Schrader's alleged fraud. See Tex. Capital Sec., Inc. v. Sandefer, 58 S.W.3d 760, 773 (Tex. App.-Houston [1st Dist.] 2001, pet. denied) ("[R]escission has long been a remedy for common law fraud."). As we stated in our previous opinion, "we do not consider Roach's allegations that he was entitled to [a specific remedy] as a separate or independent basis for establishing personal jurisdiction over Schrader." Schrader v. Roach, No. 01-20-00183-CV, 2022 WL 2203210, at *14 (Tex. App.-Houston [1st Dist.] June 21, 2022, pet. filed) (mem. op). The question of whether Roach is ultimately entitled to rescission as a remedy for his fraud claim is not before us today and is not relevant to our jurisdictional analysis. See id.

Accordingly, for the reasons more thoroughly detailed in our previous opinion, we hold that Schrader's contacts with Texas are not substantially related to the operative facts of Roach's partnership and equitable accounting, breach of contract, quantum meruit, joint and partnership liability, and declaratory judgment claims, and specific jurisdiction over Schrader as to these claims is not justified. The trial court, therefore, erred in denying Schrader's special appearance as to these claims.

We sustain Schrader's first issue.⁵

5 Because we hold that the trial court lacked personal jurisdiction over the newly asserted claims against Schrader in the Fifth Amended Petition, and because we previously held the trial court lacked personal jurisdiction over the majority of Roach's previously asserted claims against Schrader, we do not need to consider whether the trial court also should have dismissed these claims against Schrader under the TCPA. See TEX. R. APP. P. 47.1; cf. Houston Forensic Sci. Ctr., Inc. v. Barette, No. 01-19-00129-CV, 2019 WL 5792194, at *3 (Tex. App.-Houston [1st Dist.] Nov. 7, 2019, no pet.) (mem. op.) (concluding trial court cannot award costs, attorney fees, and sanctions under TCPA when it lacks subject-matter jurisdiction over underlying claim). Three claims or remedies against Schrader survived (or were not implicated in) the personal jurisdiction analysis-fraud, constructive trust, and rescission of the sale of Schrader Cellars to Constellation. Thus, we consider the issue of whether the trial court erred in denying the TCPA motion only as it pertains to Roach's claims against Constellation and his claims against Schrader for fraud, constructive trust, and rescission of the sale of Schrader Cellars to Constellation.

Dismissal Under the TCPA

In the second issue on appeal, appellants argue that Roach's Fifth Amended

Petition violates the TCPA because it is based on or is in response to four distinct exercises of the right to petition: (1) trademark application to the United States Patent and Trademark Office (USPTO); (2) a letter written by Jeffrey LaBarge, Constellation's General Counsel, regarding the pending judicial proceeding against Schrader in the underlying case (the LaBarge Letter); (3) Schrader Cellars' intent to file a lawsuit against Roach in California (the California Lawsuit); and (4) an attorney ethics grievance filed by Schrader against Roach. Appellants further argue that the Fifth Amended Petition violates the TCPA because it is based on or is in response to its exercise of the right to associate freely.

A. Standard of Review

We review de novo the denial of a TCPA motion to dismiss. Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 470 (Tex. App.-Houston [1st Dist.] 2020, pet. dism'd) (en banc) (citing Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.-Houston [1st Dist.] 2013, pet. denied)). We view the pleadings and evidence in a light most favorable to the plaintiff non-movant. Id.

Whether the TCPA applies to Roach's claims is an issue of statutory construction and likewise is reviewed de novo. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). In conducting our analysis of the statute, "we ascertain and give effect to the Legislature's intent as expressed by the language of the statute." State ex rel. Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018). We construe the TCPA's words according to their plain and common meaning, "unless a contrary intention is apparent from the context, or unless such a construction leads to absurd results." Youngkin, 546 S.W.3d at 680. "We presume the Legislature included each word in the statute for a purpose and that words not included were purposefully omitted." Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam).

We consider both the specific statutory language being challenged and the statute as a whole. In re Office of Att'y Gen., 422 S.W.3d 623, 629 (Tex. 2013) (orig. proceeding); see Youngkin, 546 S.W.3d at 680 ("[L]egislative intent derives from an act as a whole rather than from isolated portions of it."). "We endeavor to read the statute contextually, giving effect to every word, clause, and sentence." Gaskamp, 596 S.W.3d at 470 (citing In re Office of Att'y Gen., 422 S.W.3d at 629).

B. General Law

The TCPA was designed to protect both a defendant's rights of speech, petition, and association and a claimant's right to pursue valid legal claims for injuries the defendant caused. Tex. Civ. Prac. &Rem. Code § 27.002.⁶ To accomplish this objective, the Act provides a three-step process for the dismissal of a "legal action" to which it applies. Castleman v. Internet Money Ltd., 546 S.W.3d 684, 691 (Tex. 2018) (describing three-step process). First, the defendant must demonstrate that the "legal action" is "based on or is in response to" the defendant's exercise of the right of free speech, petition, or association. Tex. Civ. Prac. &Rem. Code §§ 27.003(a), .005(b). Second, if the defendant meets that burden, the claimant may avoid dismissal by establishing "by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). Finally, if the claimant meets that burden, the court still must dismiss the "legal action" if the defendant "establishes an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law." Id. § 27.005(d).

6 The Texas Legislature amended certain provisions of the TCPA in 2019. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, 2019 Tex. Gen. Laws 684. The amendments became effective September 1, 2019. Id. §§ 11-12, 2019 Tex. Gen. Laws at 687. Roach filed his Fifth Amended Petition on January 11, 2021, after the effective date of the amendments to the TCPA, and the parties presume the applicability of the amended version. We do not decide the question of which version of the TCPA applies here because our disposition of these issues would be the same under either version of the TCPA. Accordingly, we assume for the purposes of this opinion that the amended version of the TCPA applies, as argued by the parties.

In deciding whether a "legal action" should be dismissed, the trial court must consider the "pleadings" and "evidence . . . stating the facts on which the liability or defense is based." Id. § 27.006(a). For each step, the Act provides specific procedures and deadlines for filing, responding to, hearing, ruling on, and appealing the dismissal motion. Id. §§ 27.003-.005, .008.

The dismissal motion itself must be filed "not later than the 60th day after the date of service of the legal action." Id. § 27.003(b). The Act expressly defines a "legal action" to mean "a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal, declaratory, or equitable relief." Id. § 27.001(6). This definition is "undeniably broad'" and "encompass[es] any 'procedural vehicle for the vindication of a legal claim.'" Montelongo v. Abrea, 622 S.W.3d 290, 296 (Tex. 2021) (quoting Harper, 562 S.W.3d at 8).

C. Was Appellants' TCPA Motion Timely Filed And, If So, As To Which Claims?

Roach filed his Fifth Amended Petition on January 11, 2021. It is undisputed that appellants did not move to dismiss any claims under the TCPA until after Roach filed and served his Fifth Amended Petition. Therefore, the threshold issue we must address in this case is whether the TCPA motion was timely filed and, if so, as to which claims.

Appellants argue that the entire Fifth Amended Petition, which includes both previously asserted claims and new causes of action, is subject to dismissal under the TCPA. In their reply brief, appellants argue that the Fifth Amended Petition "alleges new essential facts to support previously asserted claims," and "asserts new legal claims or theories involving different elements than the claims or theories previously asserted."

According to appellants, Roach added additional facts in support of his existing claims in the Fifth Amended Petition, such as claiming that appellants conspired in bad faith to mislead the USPTO to issue trademarks and that such intellectual property is the subject of Roach's conversion of assets claim. Appellants also argue that the Fifth Amended Petition includes thirteen new claims, all of which assert additional elements not previously asserted in Roach's prior petitions. Appellants therefore contend that because the Fifth Amended Petition contains new essential factual allegations, as well as new causes of action, the entire Fifth Amended Petition is subject to dismissal under the TCPA and its motion to dismiss that petition was timely filed.

Roach argues that because the TCPA motion attacks an amended petition, rather than an original petition, appellants must demonstrate that the Fifth Amended Petition asserts "a new claim based on new factual allegations that were not included in or reasonably inferred from the allegations in prior petitions." According to Roach, the inclusion of additional details does not reset the TCPA clock for an existing claim if a previous petition contained the essential details. Moreover, Roach argues that when a plaintiff files an amended petition, the TCPA clock is reset only "as to the newly discovered substance." Roach argues that the most appellants could accomplish by the TPCA motion is causing a reversion to Roach's Fourth Amended Petition filed on January 24, 2020, which was far outside the sixty-day deadline of a TCPA attack.

1. Applicable Law

As required by the Act, absent an extension, the party seeking dismissal under the TCPA must file a motion within sixty days after the party is served with the legal action. Tex. Civ. Prac. &Rem. Code § 27.003(b). One issue recently addressed by the Texas Supreme Court is under what circumstances an amended or supplemental pleading triggers a new 60-day period for filing a TCPA dismissal motion. See Montelongo, 622 S.W.3d at 293-94; Kinder Morgan SACROC, LP v. Scurry Cnty., 622 S.W.3d 835, 847-51 (Tex. 2021).

In Montelongo, the court held that an amended or supplemental pleading that asserts the same legal claims or theories by and against the same parties and based on the same essential facts alleged in a prior pleading asserts the same "legal action" to which the sixty-day period previously applied and thus does not trigger a new sixty-day period for filing a dismissal motion. 622 S.W.3d at 293, 298. But to the extent an amended or supplemental pleading either (1) adds a new party or parties, (2) alleges new essential facts to support previously-asserted claims, or (3) asserts new legal claims or theories involving different elements than the claims or theories previously asserted, the new pleading asserts a new legal action and triggers a new sixty-day period as to those new parties, facts, or claims. Id. at 293-94 (emphasis added). The court in Montelongo focused on the third category of pleadings-i.e., those that assert a new claim or legal theory, but do so based on the same essential factual allegations included in a prior petition. Id. at 299. The court explained:

Certainly, the essential facts alleged in a pleading comprise part of the cause of action and thus part of the legal action as the TCPA defines that phrase. In fact, in seeking or opposing a TCPA dismissal, the parties must rely on the pleadings and evidence "stating the facts on which the liability or defense is based." [TEX. CIV. PRAC. &REM. CODE] § 27.006(a). This is why we have agreed that, when an amended or supplemental pleading includes new essential factual allegations, it asserts a new legal action that triggers a new sixty-day period for filing a motion to dismiss claims based on those new allegations.

But the elements of the claim asserted also comprise part of the legal action as the TCPA uses that phrase. To avoid dismissal, the claimant must establish not just facts, but facts that form a "prima facie case for each essential element of the claim in question." Id. § 27.005(c). So in the same way, an amended or supplemental pleading that asserts a new claim involving different elements than a previously asserted claim also asserts a new legal action that triggers a new sixtyday period for filing a motion to dismiss that new claim. A new claim that does not involve different elements, however, or that is merely a "subset" of previously filed claims, does not assert a new legal action.

Id. at 301.

In Kinder Morgan, the court focused on the second category of pleadings- i.e., those that allege new essential facts to support previously asserted claims. 622 S.W.3d at 848. The court explained:

A cause of action is sufficiently pleaded only if the petition gives fair notice of the claim involved. "The key inquiry is whether the opposing party 'can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant.'" Our notice-pleading rules require pleadings to not only give notice "of the claim and the relief sought" but also of the essential factual allegations. "The purpose of this rule is to give the opposing party information sufficient to enable him to prepare a defense." To paraphrase from Montelongo, providing only fair notice of claims does not provide fair notice of the essential factual allegations supporting those claims.

Noticeably absent are any allegations with respect to Kinder Morgan other than its identification as the property owner-a fact that makes it an essential party to the proceeding but does not inform the factual basis supporting the reappraisal claim. The petition includes no allegations that the alleged tax deficiency resulted from any conduct on Kinder Morgan's part, let alone that any rights protected by the TCPA might be implicated. Just as essential factual allegations may give rise to a variety of different legal theories, legal theories may be supported by a variety of different factual scenarios. The pleading of a legal theory, without more, does not provide notice of the facts that could be pleaded to support that theory. For that reason, we cannot agree with the court of appeals that a theory of taxpayer fraud being a subset of potential omission claims satisfied the notice-pleading rules and, therefore, we cannot agree that the amended pleading added no new essential facts.

Id. at 849-50.

Thus, under these two recent Texas Supreme Court decisions, as is relevant here, an amended pleading that either alleges new essential facts to support previously asserted claims, or asserts new legal claims or theories involving different elements than the claims or theories previously asserted, asserts a new legal action and triggers a new sixty-day period to file a motion to dismiss as to those new parties, facts, or claims. See Montelongo, 622 S.W.3d at 293-94; Kinder Morgan, 622 S.W.3d at 848-50.

2. Analysis

It is undisputed that Roach included new causes of actions or claims in his Fifth Amended Petition. With respect to Constellation, Roach included the following eight new causes of action:⁷

7 Roach also asserted a new "cause of action" against Constellation and Schrader to '[s]et[] aside Constellation's acquisition of Schrader Cellars." As noted above, however, Roach's "cause of action" to set aside Constellation's acquisition of Schrader Cellars is not a separate cause of action, but a remedy for Schrader and Constellation's alleged fraud. See Tex. Capital Sec., Inc., 58 S.W.3d at 773 ("[R]escission has long been a remedy for common law fraud."). The TCPA provides for the dismissal of "legal actions," which does not include in its definition discrete remedies. See TEX. CIV. PRAC. &REM. CODE § 27.001(6) (defining "legal action" to mean "a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal, declaratory, or equitable relief"); see also Thang Bui v. Dangelas, No. 01-18-01146-CV, 2019 WL 5151410, at *5 (Tex. App.-Houston [1st Dist.] Oct. 15, 2019, pet. denied) (mem. op.) (explaining that "each fact-based theory of recovery is not a separate legal action"); Van Der Linden v. Khan, 535 S.W.3d 179, 201-03 (Tex. App.-Fort Worth 2017, pet. denied) ("[T]he TCPA applies to the dismissal of causes of action, not remedies ...."). The TCPA provides a mechanism for dismissing legal actions, such as a claim for tortious interference with prospective business relations, not the remedy associated with that claim, such as a request for an injunction prohibiting business disparagement. Patriot Contracting, LLC v. Mid-Main Props., LP, 650 S.W.3d 819, 829 (Tex. App.-Houston [14th Dist.] 2022, pet. denied); see also Van Der Linden, 535 S.W.3d at 203 ("Because when a legal action is dismissed pursuant to the TCPA, all remedies available under that legal theory disappear with the dismissal of the action itself, a chapter 27 challenge to a request for injunctive relief should be directed at the underlying legal action, not at the requested remedy.”). The new “claim” to set aside the sale of Schrader Cellars is simply a remedy for Roach's fraud cause of action, and it does not add any new essential factual allegations. See Montelongo, 622 S.W.3d at 297-98. Therefore, we do not consider Roach's request to set aside the sale of Schrader Cellars as a separate “legal action.”

• Knowing participation in breach of fiduciary duty;

• Fraud;

• Equitable accounting based on fiduciary relationship;

• Declaratory judgment to set aside Constellation's acquisition of Schrader Cellars;

• Tortious interference with existing contract;

• Concert of action;

• Joint venture liability, joint enterprise liability, partnership liability;

• Declaratory judgment to declare the indemnity agreement false or in violation of public policy.

These causes of action are either pleaded for the first time in the Fifth Amended Petition, or for the first time against Constellation. Under Montelongo, therefore, the Fifth Amended Petition asserts new legal claims or theories involving different elements than the claims or theories previously asserted or adds a new party. 622 S.W.3d at 293-94, 98. Thus, the Fifth Amended Petition asserts a new legal action and triggers a new sixty-day period as to those eight new claims. Id. at 293-94.

Appellants also argue that the Fifth Amended Petition adds new facts in support of existing claims.⁸ The only newly alleged facts appellants rely on are allegedly related to the RBS trademark. First, appellants contend that Roach now alleges that the appellants conspired in bad faith to mislead the USPTO to issue trademarks. Specifically, appellants contend that Roach includes a new allegation that appellants' "application and process to trademark the RBS mark" was tortious and otherwise in bad faith. Appellants further assert that Roach included a new factual allegation not previously asserted that "Constellation knew that only the RBS wine had not been trademarked, setting it starkly apart from the rest of the Schrader wines that Constellation was acquiring." They claim that these new factual allegations were added and relied upon as "essential" to Roach's claims that Constellation was guilty of conversion and conspiracy, both of which were previously asserted claims in the Fourth Amended Petition. We disagree that these allegations are "new essential facts" because, when viewed in comparison to previous allegations, these facts are not new.

8 As discussed above, we only consider the TCPA motion with respect to the cause of action remaining against Schrader (fraud), which was previously asserted in the Fourth Amended Petition. The remedies of constructive trust and setting aside the sale of Schrader Cellars are not separate "legal actions" within the meaning of the TCPA. See Patriot Contracting, LLC, 650 S.W.3d at 829; Van Der Linden, 535 S.W.3d at 203.

As pointed out by Roach, he included the following allegations in the Fourth Amended Petition with respect to the trademarking of RBS: "Moreover, neither Schrader nor Constellation disclosed to Roach their trademarking of the RBS mark in October 2017 even though both knew of Roach's investment and ownership interest in RBS." Roach amended this language in the Fifth Amended Petition, such that this sentence now reads: "Moreover, neither Schrader nor Constellation disclosed to Roach the application and process to trademark the RBS mark in October 2016 even though both knew of Roach's investment and ownership interest in RBS." Thus, the changes to the sentence include replacing "their trademarking of" with "the application and process to trademark" the RBS mark and changing the year from 2017 to 2016. We see no substantive difference between the phrases "their trademarking of" and "the application and process to trademark." Trademarking is the present participle of "to trademark," which is defined as "to secure trademark rights for" or to "register the trademark of." See Trademark, MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1324 (11TH ED. 2020). ACCORDING TO THE USPTO WEBSITE, THE FIRST STEP IN THE "TRADEMARK REGISTRATION PROCESS" IS THE APPLICATION. See United States Patent and Trademark Office, https://www.uspto.gov/trademarks/basics. Thus, "trademarking" necessarily includes "the application and process to trademark." By alleging in the Fourth Amended Petition that Schrader and Constellation failed to disclose "their trademarking of the RBS mark," appellants had fair notice of the allegations against them.

Furthermore, we disagree with appellants that new allegations were added by Roach in the Fifth Amended Petition that Constellation "acted in bad faith in petitioning the [US]PTO for the trademarks." To the contrary, in the Fourth Amended Petition, Roach alleged that "[u]nlike the other Schrader Cellars wines, RBS had no trademark status when Constellation commenced due diligence and negotiations." This allegation was included in a paragraph detailing examples of the ways in which Constellation failed to act as "an innocent purchaser" or a "good faith actor" because "Constellation had actual and constructive notice of Roach's investment in RBS, his partnership with Schrader, and his ownership of the To Kalon grapes and other assets in the production, marketing, and sale of RBS."

This exact language is included in the Fifth Amended Petition, and likewise appears in a section detailing the "bad faith" actions of Constellation in ignoring red flags "pointing to Roach's ownership of the RBS wine." The only new language cited by appellants is the allegation that "Constellation knew that only the RBS wine had not been trademarked, setting it starkly apart from the rest of the Schrader wines that Constellation was acquiring." This is substantively similar to the allegation from the Fourth Amended Petition that "[u]nlike the other Schrader Cellars wines, RBS had no trademark status when Constellation commenced due diligence and negotiations." Appellants have not demonstrated how this additional allegation amounts to a different factual scenario supporting already asserted theories of liability. See Kinder Morgan, 622 S.W.3d at 848-50.

Accordingly, we disagree with appellants that the factual allegations cited above from the Fifth Amended Petition related to the RBS trademark were "new essential facts . . . support[ing] previously asserted claims," such that they triggered a new sixty-day deadline to file a motion to dismiss previously asserted claims. As those are the only "new" facts relied on by Constellation, we therefore hold that the previously asserted causes of action, including Roach's causes of action against Constellation for conversion, money had and received and restitution, unjust enrichment, and conspiracy, and his only remaining cause of action against Schrader for fraud, do not constitute new legal actions to which the TCPA motion applies.⁹We further hold that only the newly-asserted causes of action against Constellation in the Fifth Amended Petition amounted to new "legal action[s]," thus triggering a new sixty-day deadline for Constellation to file a TCPA motion to dismiss the eight newly-added causes of action against it, specifically: knowing participation in breach of fiduciary duty; fraud; equitable accounting based on fiduciary relationship; declaratory judgment to set aside Constellation's acquisition of Schrader Cellars; tortious interference with existing contract; concert of action; joint venture liability, joint enterprise liability, partnership liability; and declaratory judgment to declare the indemnity agreement false or in violation of public policy.

9 The remedy of constructive trust was previously asserted against both Schrader and Constellation. As explained, a remedy does not fit within the definition of "legal action" as defined by the TCPA.

We therefore turn to Constellation's arguments that the TCPA applies because these "legal action[s]" were based on its exercise of the right to petition and the right to associate freely.

3. Right to Petition

As defined in the TCPA, the "exercise of the right to petition" means "a communication in or pertaining to . . . a judicial proceeding . . . [or] a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding." Tex. Civ. Prac. &Rem. Code § 27.001(4)(A)(i), (4)(B). A "communication" also is statutorily defined and 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); see also Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018) (statutory definition of "communication" covers "[a]lmost every imaginable form of communication, in any medium"). We construe the phrase "pertaining to" according to its ordinary meaning as relating directly to or concerning or having to do with. See BLACK'S LAW DICTIONARY (11TH ED. 2019) ("PERTAIN" MEANS "TO RELATE DIRECTLY TO; TO CONCERN OR have to do with"). And courts previously have determined that "the ordinary meaning of 'a judicial proceeding'" is "an actual, pending judicial proceeding." Levatino v. Apple Tree Cafe Touring, Inc., 486 S.W.3d 724, 728 (Tex. App.-Dallas 2016, pet. denied); see also BLACK'S LAW DICTIONARY (11TH ED. 2019) (DEFINING "JUDICIAL PROCEEDING" AS "ANY COURT PROCEEDING; ANY PROCEEDING INITIATED TO PROCURE AN ORDER OR DECREE, WHETHER IN LAW OR IN EQUITY").

Constellation moved for dismissal arguing that Roach's legal actions, i.e., the eight newly-asserted causes of action against Constellation in the Fifth Amended Petition, were based on or in response to the following four separate actions by Constellation that it alleges implicate its exercise of its right to petition: (1) applications to the USPTO; (2) a letter written by Constellation's in-house counsel in response to Roach's demand letter relating to the underlying litigation; (3) Schrader Cellars' intent to file a lawsuit against Roach in California; and (4) Schrader's submission of an attorney ethics grievance to the Texas State Bar. We address each in turn.

a. USPTO Application

Constellation argues that the Fifth Amended Petition is based on appellants' communications in furtherance of the exercise of the right to petition the U.S. government and USPTO in that it expressly relies on Schrader and Constellation's "application and process to trademark the RBS mark," and the trademarking of several other Schrader marks in seeking relief. Constellation also contends the eight newly-asserted causes of action rely on the trademarking of and communications relating to other Schrader labels, including Schrader CCS and Colesworthy. Constellation asserts that there is no dispute that an application to the USPTO for a trademark or communications relating to a trademark application or registration, including Schrader's "Trademark Status Update," are "communication[s] in connection with . . . issue[s] under consideration or review by a legislative, executive, judicial, or other governmental body," and are thus the exercise of the right to petition. Tex. Civ. Prac. &Rem. Code § 27.001(4)(B).

Reviewing these arguments closely, Constellation has thus only identified two "communications" it alleges qualify as the exercise of the right to petition: (1) trademark applications, and (2) Schrader's "Trademark Status Update." But, as evidenced by Constellation's TCPA motion and attached evidence, neither of these "communications" were made on behalf of Constellation. For instance, the evidence submitted by Constellation in support of its TCPA motion demonstrates that the various trademark applications, including for the RBS mark, were filed on behalf of Schrader and Schrader Cellars. Additionally, Constellation stated in the TCPA motion to dismiss that the "Trademark Status Update" was "created by Schrader summarizing the application, examination, and renewal status of the Schrader marks, which omits RBS from this list as a result of a typographical error."

As previously stated, a party may file a motion to dismiss if a lawsuit is brought against that party in response to the party's exercise of the right of free speech, right to petition, or right of association. Specifically, the TCPA provides:

If a legal action is based on or is in response to a party's exercise of the right of free speech, right to petition, or right of association . . . that party may file a motion to dismiss the legal action.

Id. § 27.003(a) (emphasis added). Here, Constellation argues that Roach's legal actions, i.e., the eight newly-asserted causes of action in the Fifth Amended Petition, are based on these trademark applications and the "Trademark Status Update." But these communications were either created by or on behalf of Schrader or Schrader Cellars. There is no indication in either the trademark application or the status update that either was sent or created on behalf of Constellation. Accordingly, Constellation has not demonstrated that the legal actions asserted against it by Roach, i.e., the eight newly-asserted causes of action in the Fifth Amended Petition, are "based on or [are] in response to" its own exercise of an enumerated right, as distinguished from that of Schrader or Schrader Cellars. See Lang v. Knowles, No. 01-18-00268-CV, 2019 WL 4065015, at *6 (Tex. App.-Houston [1st Dist.] Aug. 29, 2019, pet. denied) (mem. op.) (holding defendant did not demonstrate that legal action asserted against her in her individual capacity was based on her exercise of right to petition where communication at issue (i.e., demand letter) was sent on behalf of defendant's law firm, not defendant in her individual capacity); see also Republic Tavern & Music Hall, LLC v. Laurenzo's Midtown Mgmt., LLC, 618 S.W.3d 118, 123-24 (Tex. App.-Houston [14th Dist.] 2020, no pet.) (holding only party who exercised right to petition may move to dismiss under the TCPA based on that ground).

Accordingly, we conclude that Constellation has failed to meet its burden of showing, by a preponderance of the evidence, that Roach's legal actions, i.e., the eight newly-asserted causes of action in the Fifth Amended Petition, were based on or in response to its exercise of the right to petition based on trademark applications to the USPTO.

b. LaBarge Letter

Constellation argues that a preponderance of the evidence established that Roach's legal actions, i.e., the eight newly-asserted causes of action in the Fifth Amended Petition, were based on or in response to its exercise of its right to petition as expressed in the LaBarge Letter-its March 19, 2019 response letter to Roach's counsel regarding the underlying lawsuit. Applying the rules of statutory construction, we agree with Constellation that its exercise of the right to petition, as defined by the TCPA, is implicated here, though only to Roach's fraud cause of action against Constellation, not as to the other seven newly-asserted causes of action brought against Constellation in the Fifth Amended Petition. See Youngkin, 546 S.W.3d at 680 (statutory language is surest guide to legislative intent); El Paso Healthcare Sys., Ltd. v. Murphy, 518 S.W.3d 412, 418 (Tex. 2017) (courts construe individual words and provisions in context of statute as a whole); City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008) (courts construe words used in statute according to their "plain and common meaning").

Constellation moved for dismissal on the ground that Roach's legal actions were based on the LaBarge Letter, a letter written by its in-house counsel in response to a letter written by Roach's counsel notifying Constellation of the pending judicial proceeding against Schrader and Roach's allegations related to the Schrader Cellars' transaction. Roach's pleadings, as well as the two letters, which were attached to the parties' TCPA briefing, support this assertion. See Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (basis of legal action is determined by plaintiff's allegations); see also TEX. CIV. PRAC. &REM. CODE § 27.006 ("In determining whether a legal action is subject to or should be dismissed under this chapter, the court shall consider the pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil Procedure, and supporting and opposing affidavits stating the facts on which the liability or defense is based.").

In the Fifth Amended Petition, Roach alleged that "on or about February 21, 2019, Roach informed Constellation that it was in possession of money, assets, and property that belonged to Roach." Constellation responded via letter dated March 13, 2019, and in that letter, Roach alleges Constellation "misrepresented its good faith, its pre-acquisition investigation, and its alleged belief in its justification for refusing to return Roach's money, assets, and property." At the time of these misrepresentations, Roach alleged that Constellation "had actual knowledge, actual implied knowledge, imputed knowledge, constructive knowledge, or was charged with knowledge that it had acquired money, assets, and property that directly or equitably belonged to Roach without providing any compensation to Roach." Roach further alleged that Constellation had a "non-delegable duty to investigate Schrader's false and fraudulent representation of exclusive ownership, and to ensure that it was not trampling the rights of a third-party owner like Roach," but that instead of investigating, "Constellation willfully or recklessly made these misrepresentations to Roach and refused to return his money, assets, and property." According to Roach, as detailed in connection with his cause of action for fraud against Constellation, these statements and alleged misrepresentations in the March 2019 letter itself amounted to actionable fraud, as well as fraud by omission. We have not found a reference to the LaBarge Letter in any of the other seven newly asserted causes of action against Constellation in the Fifth Amended Petition.

Roach attached his February 21, 2019 letter to his response to Constellation's TCPA motion. In that letter, Roach's counsel states the following:

• Roach's claims "aris[e] from Constellation's purchase of Schrader Cellars from Fred Schrader" and "specifically concern Schrader RBS Cabernet, which Constellation now sells and which is the principal asset of Roach Brown Schrader, LLC, a partnership between Roach and Schrader[.]"

• "Specifically of concern to Constellation, Mr. Roach and Fred Schrader were partners in the development, marketing, and sale of the RBS cabernet. The RBS cabernet was an asset of their partnership, and about which Mr. Roach has filed a lawsuit against Mr. Schrader in the District Court of Harris County, Texas styled RMR v. FHS, Cause No. 201859845."

• "I understand that Constellation is aware of Mr. Roach's claims against Mr. Schrader, as well as the potential claims against Constellation for conversion and tortious interference with Mr. Roach's interest in Roach Brown Schrader, LLC and for the RBS wines that continue to be owed to Mr. Roach."

• "I do not know, however, whether Constellation is aligned with Mr. Schrader to defend the claims, or to the extent to which Constellation is aware of the facts regarding the Roach and Schrader partnership, the actionable conduct regarding the partnership, and Mr. Roach's continuing interests in that partnership."

In its response letter, Constellation denied knowledge of Roach's claimed ownership in RBS cabernet, and it stated it "certainly [was] not aware of any 'potential claims against Constellation for conversion and tortious interference with Mr. Roach's interest in Roach Brown Schrader, LLC." Constellation stated that it "acquired all of the ownership interests of Schrader Cellars LLC," which is "the registered owner of the trademark RBS." Constellation stated that in its acquisition of Schrader Cellars, it "conducted very thorough due-diligence on the entity and its assets, including lien searches, detailed document review, interviews with the entity's owners and employees and inspection of the USPTO office's files for the RBS trademark." Constellation further stated:

The only mention of Randy Roach in any diligence materials was a Schrader Cellars product offering brochure which listed "RBS" as standing for the initials of "Fred and Carrol's close friend Randy Roach (R), Thomas Brown (B) and Fred Schrader (S)". However, the RBS trademark filing was in the name of Schrader Cellars, LLC and it was never opposed by Randy Roach or anyone else. We did not find, and were not provided with, any materials about a Roach Brown Schrader L.L.C., any claim of ownership to any of the assets held by Schrader Cellars, or any evidence that the RBS trademark was owned by any party other than Schrader Cellars LLC.

Finally, Constellation stated that it would forward Roach's claims to Schrader for indemnification based on the purchase agreement of Schrader Cellars.

As we stated above, the TCPA defines the "exercise of the right to petition" to mean "a communication in or pertaining to . . . a judicial proceeding." Tex. Civ. Prac. &Rem. Code § 27.001(4)(A)(i). The LaBarge Letter fits within the definition of a "communication." Id. § 27.001(1) (defining communication as "the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic"). Moreover, the LaBarge Letter was related directly to, concerned, or had to do with (i.e., "pertain[ed] to") "an actual, pending judicial proceeding," i.e., this litigation. Roach's letter to Constellation clearly referenced this case, citing to the cause number and court where it was pending. Furthermore, Roach described his claims against Schrader in this litigation, i.e., his claim that the RBS wine, which Constellation now sells, was the principal asset of a partnership between Roach and Schrader, and potential related claims against Constellation. Constellation responded by denying knowledge of Roach's claimed ownership in RBS cabernet, i.e., the subject of this litigation, and detailing the due diligence actions it took prior to the purchase of Schrader Cellars. Roach's cause of action for fraud explicitly references Constellation's statements in the LaBarge Letter and asserts that these statements regarding its good-faith investigation were misrepresentations and that the failure to disclose or correct the misrepresentations of a good-faith investigation constituted fraud by omission. Application of the plain language of the TCPA to the circumstances of this case compels the conclusion that Roach's legal action-specifically, the fraud cause of action against Constellation- is in part based on or in response to Constellation's communication pertaining to a judicial proceeding.¹⁰ Id. § 27.001(4)(A)(i). However, to the extent that Roach's fraud claim is based in part on statements or communications made other than in the LaBarge Letter, Constellation has not satisfied its initial burden to show that these portions of Roach's fraud claim are subject to the TCPA.

10 We note that when the Legislature amended the TCPA in 2019, it amended Section 27.010 to exempt "a legal action based on a common law fraud claim" from the applicability of the TCPA. TEX. CIV. PRAC. &REM. CODE § 27.010(12). That exemption was not present in the prior version of the TCPA. Though the parties do not dispute that the amended version of the TCPA applies here, Roach did not assert below (nor does he argue on appeal) that this exemption, or any other exemption, applies. In fact, he stated in his response to the TCPA motion that the "the 2019 amendment added various exemptions that are not at issue here." The nonmovant bears the burden of demonstrating that an exception to the TCPA applies. See, e.g., HydroChem LLC v. Evoqua Water Techs., LLC, No. 01-19-00770-CV, 2020 WL 7775758, at *3 (Tex. App.-Houston [1st Dist.] Dec. 31, 2020, pet. denied) ("The nonmovant-here, Evoqua-has the burden of demonstrating that the commercialspeech exemption applies."). Assuming the amended version of the TCPA applies, because Roach has not raised this exemption (or any other exemption allowed for by Section 27.010), we do not address whether it would be applicable in this case.

Having found that the TCPA applies to Roach's fraud claim against Constellation to the extent that the fraud claim is based on the LaBarge Letter, the burden shifted to Roach to establish by clear and convincing evidence a prima facie case for each element of his fraud cause of action. In his briefing, for all but one element of his fraud claim, Roach relies solely on his pleadings as evidence. He contends that his burden is not onerous, that it may be established through circumstantial evidence, and that he is only required to "provide enough detail to show the factual basis for [his] claim." Furthermore, he asserts that pleadings alone can serve as proof. We disagree.

Although a court must consider pleadings as evidence in determining whether to grant a TCPA dismissal motion, we conclude that allegations in a petition are not alone sufficient to defeat such a motion. The Fourteenth Court of Appeals recently considered this precise issue. See Buzbee v. Clear Channel Outdoor, LLC, 616 S.W.3d 14, 28-29 (Tex. App.-Houston [14th Dist.] 2020, no pet.). In that case, the Fourteenth Court of Appeals discussed in detail the nonmovant's burden to demonstrate a prima facie case of each element of its cause of action:

In Lipsky, the Supreme Court of Texas held that presenting "clear and specific evidence" of "each essential element" of a claim means that "a plaintiff must provide enough detail to show the factual basis for its claim." Lipsky, 460 S.W.3d at 591. Further, a "prima facie case"

means evidence that is legally sufficient to establish a claim as factually true if it is not countered. Id. at 590. In other words, "prima facie" generally refers to the amount of evidence that is sufficient as a matter of law "to support a rational inference that an allegation of fact is true." Id.; see also Schimmel v. McGregor, 438 S.W.3d 847, 855 (Tex. App.- Houston [1st Dist.] 2014, pet. denied); KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 688 (Tex. App.-Houston [1st Dist.] 2013, pet. denied). Black's Law Dictionary defines "prima facie case" as "[a] party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor." See "prima facie case," Black'S Law Dictionary (11th ed. 2019). Illustrative of that thinking, the court in Lipsky offered an example: "[i]n a defamation case that implicates the TCPA, pleadings and evidence that establishes the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff should be sufficient to resist a TCPA motion to dismiss." Lipsky, 460 S.W.3d at 591 (emphasis added). Lipsky's discussion of the proper standard for overcoming a TCPA motion to dismiss strongly suggests that a mere allegation itself is not sufficient and that something supporting the allegation is required.

Id. at 28. Acknowledging that the TCPA's purpose is to weed out unmeritorious claims at an early stage, the court stated in Buzbee that "[t]o allow a claimant or counter-claimant to avoid dismissal simply by pleading claims with a high level of detail or clarity but without offering any proof that the allegations are true, would not serve the TCPA's stated purpose." Id. The court also rejected the argument that because the appropriate standard of review for TCPA dismissal motions requires that a court accept a nonmovant's allegations as true, no additional evidence is needed. Id. at 29. The court acknowledged that in determining whether the TCPA applies in the first instance, a court may look solely to a plaintiff's pleading and, in doing so, accept the allegations as true insofar as they describe the nature of the claims. Id. (citing Hersh, 526 S.W.3d at 467). "To be sure," the court stated, "in the second step, we view the pleadings and the evidence in the light most favorable to the nonmovant." Id. (citing Stallion Oilfield Servs., Ltd. v. Gravity Oilfield Servs., LLC, 592 S.W.3d 205, 214 (Tex. App.-Eastland 2019, pet. denied); Brugger v. Swinford, No. 14-16-00069-CV, 2016 WL 4444036, at *2 (Tex. App.-Houston [14th Dist.] Aug. 23, 2016, no pet.) (mem. op.); Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214-5 (Tex. App.-Houston [1st. Dist.] 2014, no pet.)). "But accepting all allegations as true for purposes of establishing a prima facie case-without concomitantly demanding evidence that is legally sufficient to establish the allegations as factually true if it is not countered, see Lipsky, 460 S.W.3d at 590-would nullify the very purpose of the TCPA's burden-shifting mechanism. Indeed, the burden would never shift at all." Id. Therefore, the court held that allegations in a petition alone are not sufficient and that "[o]nce the court is satisfied that the Act applies and the burden shifts to the non-movant, the TCPA requires something beyond allegations in the pleading 'to support a rational inference that an allegation is true.'" Id.

We agree with this analysis and hold that in order to satisfy his burden of establishing a prima facie case of fraud against Constellation, Roach was required to point this Court to something more than the allegations in his petition. Id. Roach did not do so and therefore did not present clear and specific evidence of each element of his fraud cause of action.¹¹ Constellation was thus entitled to dismissal of the fraud claim to the extent it is based on the LaBarge Letter.

11 We note that Roach attached a number of exhibits to his response to the TCPA motion but did not cite to any of them as clear and convincing evidence supporting a prima facie case for each element of his fraud cause of action. He cited to an affidavit of an expert as evidence of red flags indicative of fraud, but for the remaining elements of fraud (i.e., knowledge of falsity, intention that Roach rely, reliance, and injury) Roach solely cited to the allegations in his Fifth Amended Petition. The TCPA, however, does not require us to sift through the record looking for evidence to support the nonmovant's prima facie case. See TEX. CIV. PRAC. &REM. CODE § 27.005(c); Hill v. Keliher, No. 05-20-00644-CV, 2022 WL 213978, at *15 (Tex. App.-Dallas Jan. 25, 2022, pet. denied) (mem. op.); Cavin v. Abbott, 545 S.W.3d 47, 72 (Tex. App.-Austin 2017, no pet.).

c. California Lawsuit

Constellation also argues that Roach filed the new legal actions, i.e., the eight newly asserted causes of action against Constellation in the Fifth Amended Petition, in response to Schrader Cellars' intent to file a lawsuit against Roach in California. Constellation contends that the Fifth Amended Petition was filed days after Roach learned through Constellation's counsel that Schrader Cellars intended to bring claims against Roach in California, and therefore, Roach's filing of the Fifth Amended Petition was in retaliation for and in response to filing suit in California, implicating its right to petition. We disagree with Constellation for two reasons.

First, this complaint can only be raised by the party who exercised the right to petition. See TEX. CIV. PRAC. & REM. CODE § 27.003(a) (“If a legal action is based on or is in response to a party's exercise of the right of free speech, right to petition, or right of association . . . that party may file a motion to dismiss the legal action.”); Republic Tavern, 618 S.W.3dat 123-24. The California Lawsuit was to be brought on behalf of Schrader Cellars. According to Constellation's counsel's declaration, attached to Constellation's TCPA motion, he explained to Roach's counsel that “Schrader Cellars LLC intended to file claims against Roach in California.” But Schrader Cellars is not a party to the underlying lawsuit. See BLACK'S LAW DICTIONARY (11th ed. 2019) (defining party as “[o]ne by or against whom a lawsuit is brought.”); In re Elliott, 504 S.W.3d 455, 471 (Tex. App.-Austin 2016, orig. proceeding) (Pemberton, J., concurring) (noting “party” as used within TCPA Section 27.003(a) means “a person named in a pleading against whom the relief is sought”). Nor is there any indication in the record that the California Lawsuit was to be filed on behalf of Constellation, in addition to Schrader Cellars. Accordingly, Constellation has not demonstrated that the legal actions asserted against it by Roach, i.e., the eight newly-asserted causes of action in the Fifth Amended Petition, are “based on or [are] in response to” its exercise of its own right to petition, as distinguished from that of Schrader Cellars, a nonparty. See Republic Tavern, 618 S.W.3d at 123-24 (“Republic and the Chopra Parties take the position that Midtown sued them only because Republic refused to dismiss claims against Midtown's seventeen co-defendants, but the claims against Midtown and its co-defendants were asserted only by Republic, not by any of the Chopra Parties. Given their position that Midtown's claims are in response only to Republic's exercise of the right to petition, only Republic is authorized to seek dismissal of the claims against it on this basis."); Lang, 2019 WL 4065015, at *6 (holding defendant did not demonstrate that legal action asserted against her in her individual capacity was based on her exercise of right to petition where communication at issue (i.e., demand letter) was sent on behalf of defendant's law firm, not defendant in her individual capacity).

Second, even if the threatened California Lawsuit could implicate Constellation's right to petition, at the time the Fifth Amended Petition was filed, the California Lawsuit had not yet been filed. In order for the right to petition to be implicated, the communication must pertain to an "an actual, pending judicial proceeding" rather than "anticipated or potential future judicial proceedings." Levatino, 486 S.W.3d at 729. Because no judicial proceeding had been filed in California at the time Roach filed the Fifth Amended Petition, the threatened California Lawsuit does not fit within the meaning of judicial proceeding as used in the TCPA. Id.

Accordingly, we conclude that Constellation has failed to meet its burden of showing, by a preponderance of the evidence, that the eight newly asserted causes of action asserted against it in Roach's Fifth Amended Petition were based on or in response to its exercise of the right to petition based on the California Lawsuit.

d. Attorney Ethics Grievance

It is not clear from the briefing whether appellants raise this right-to-petition argument based on the attorney ethics grievance filed by Schrader on behalf of both Schrader and Constellation. But to the extent that Constellation is arguing that the Fifth Amended Petition implicates its own right to petition because it is based on Schrader's attorney ethics grievance filed against Roach, we disagree. As noted above, this complaint may only be raised by the party who exercised the right to petition. See Republic Tavern, 618 S.W.3d at 123-24; Lang, 2019 WL 4065015, at *6. There is no evidence in the record that the attorney ethics grievance was filed on behalf of Constellation, in addition to Schrader. In fact, the record indicates it was filed only on behalf of Schrader.¹² Because Constellation did not file the attorney ethics grievance against Roach, it is not authorized to seek dismissal of Roach's claims against it on this basis. See Republic Tavern, 618 S.W.3d at 123-24; Lang, 2019 WL 4065015, at *6.

12 For example, Constellation's counsel stated in his declaration attached to the TCPA motion: "On October 7, 2020, my client Fred Schrader submitted a grievance for Roach's misconduct in violation of several ethics rules binding Texas attorneys with the State Bar of Texas. On November 23, 2020, my client submitted an amended grievance with additional supporting documentation, and on January 6, 2021, my client appealed the Chief Disciplinary Counsel's classification of the grievance as an inquiry. It is my understanding that the inquiry was sent to Randy Roach." (Emphasis added).

Accordingly, we conclude that Constellation has failed to meet its burden of showing, by a preponderance of the evidence, that the eight newly-asserted causes of action asserted against it in Roach's Fifth Amended Petition were based on or in response to its exercise of the right to petition based on the attorney ethics grievance.

4. Right to Association

The TCPA defines the "exercise of the right of association" as "to join together to collectively express, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of public concern." TEX. CIV. Prac. &Rem. Code § 27.001(2). A "governmental proceeding" is defined as "a proceeding, other than a judicial proceeding, by an officer, official, or body of this state or a political subdivision of this state, including a board or commission, or by an officer, official, or body of the federal government," while a "matter of public concern" means a statement or activity regarding "a matter of political, social, or other interest to the community" or "a subject of concern to the public." Id. § 27.001(5), (7).

Constellation argues that the eight newly-alleged causes of action in Roach's Fifth Amended Petition are based on or in response to the joint defense and indemnification agreement between Schrader and Constellation's subsidiary. Specifically, Constellation claims that the joint defense agreement and communications targeted by Roach provided for and related to:

• The joint defense of legal actions, including actions arising from any alleged infringement by Schrader Cellars, LLC of any intellectual property, including the RBS Mark;

• Joint defense of any legal actions arising from the failure of Schrader Cellars, LLC to obtain permits required by law or non-compliance with anti-corruption laws, such as the U.S. Foreign Corrupt Practices Act (15 U.S.C. § 78dd-1, et seq.), among other areas; and

• Obtaining and renewal of several state and federal permits, such as Certificate of Label Approvals from the U.S. Department of the Treasury Alcohol and Tobacco Tax and Trade Bureau, as well as dozens of permits and registrations required by state governmental authorities.

Constellation argues that these provisions extend far beyond the "pecuniary interests of private parties" and are related to the joint defense, indemnification, and completion of various government-mandated processes, which are protected as the exercise of the right of association under the TCPA.

However, Constellation fails to demonstrate how these specific provisions or clauses in an agreement between its subsidiary and Schrader are related to a governmental proceeding as defined by the TCPA. As noted above, a governmental proceeding is defined as "a proceeding, other than a judicial proceeding, by an officer, official, or body of this state or a political subdivision of this state, including a board or commission, or by an officer, official, or body of the federal government." Id. § 27.001(5) (emphasis added). Constellation's argument is that Roach's claims are based on the appellants "joining together by contract and specifically by defending this lawsuit under an indemnity and joint defense agreement." The right to association, however, specifically excludes a judicial proceeding from its definition of "governmental proceeding."

Furthermore, Constellation's reliance on provisions of the agreement that relate to obtaining various state and federal permits misses a critical step of the analysis of the applicability of the TCPA. Even assuming these would qualify as "governmental proceeding[s]," the TCPA requires that the legal action be "based on or in response to" a party's exercise of one of the enumerated rights. "Based on or in response to" is not defined in the statutory scheme. "Based on" in Black's Law Dictionary is defined only in the copyright context. See Based on, Black'S Law Dictionary (11th ed. 2019). However, the verb "base" is defined in relevant part as "to make, form, or serve as a foundation for . . . [;] to establish (an agreement, conclusion, etc.); to place on a foundation; to ground ...." See Base, BLACK'S LAW DICTIONARY (11th ed. 2019). Similarly, “base” is defined in another dictionary as “[t]he fundamental part of something[.]” See Base, MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 101 (11th ed. 2020).

Constellation has failed to demonstrate that the clauses it cites related to obtaining various state and federal permits have any connection to the allegations in Roach's Fifth Amended Petition, let alone are the foundation for or the fundamental part of those allegations. In fact, we can find no reference whatsoever in the Fifth Amended Petition to permits, anti-corruption laws, or certificate of label approvals. Accordingly, we conclude that Constellation has failed to meet its burden of showing, by a preponderance of the evidence, that the eight newly-asserted causes of action in Roach's Fifth Amended Petition were based on or in response to its exercise of the right to association as that term is defined in the TCPA.

Having found that the TCPA applies only to Roach's fraud cause of action against Constellation, to the extent that claim is based on the LaBarge Letter, and that Constellation is entitled to dismissal of that claim based on the LaBarge Letter, we sustain Constellation's second issue with respect to that portion of the fraud cause of action. We hold that the TCPA does not apply to the remaining newly-asserted causes of action against Constellation in the Fifth Amended Petition, including the fraud claim to the extent it is based on statements or communications other than those contained in the LaBarge Letter, and overrule the remainder of Constellation's second issue. In light of our disposition of this issue, we do not reach Constellation's remaining arguments related to its affirmative defenses. See TEX. R. APP. P. 47.1

Conclusion

Because we conclude that the trial court does not have specific jurisdiction over Schrader with respect to Roach's claims against Schrader for partnership, equitable accounting, breach of contract, quantum meruit, joint and partnership liability, and declaratory judgment, we hold that the trial court erred in denying Schrader's special appearance as to these claims. Accordingly, we reverse the trial court's March 16, 2021 order denying Schrader's Amended Special Appearance and render judgment granting the special appearance as to these claims.

We further conclude that the Fifth Amended Petition did not trigger a new deadline to file a TCPA motion to dismiss with respect to the claims for conversion, money had and received and restitution, unjust enrichment, and conspiracy previously asserted against Constellation, and the fraud claim previously asserted against Schrader. Accordingly, appellants' TCPA motion to dismiss did not apply to or include those claims. Nor does the TCPA motion to dismiss apply to the remedies of constructive trust and setting aside the sale of Schrader Cellars. We further conclude that the trial court did not err by denying Constellation's TCPA motion to dismiss with respect to the newly alleged causes of action for knowing participation in breach of fiduciary duty; equitable accounting based on fiduciary relationship; declaratory judgment related to recission of the sale of Schrader Cellars; tortious interference with existing contract; concert of action; joint venture liability, joint enterprise liability, partnership liability; and declaratory judgment to declare the indemnity agreement false or in violation of public policy, and we affirm the judgment in these respects.

We conclude, however, that the trial court erred by denying appellants' motion to dismiss the newly alleged fraud claim against Constellation, to the extent that claim is based on the LaBarge Letter, and we reverse in part the trial court's March 16, 2021 order denying Constellation's TCPA motion in this respect. But to the extent that Roach's fraud claim is based in part on statements or communications made other than in the LaBarge Letter, Constellation did not satisfy its burden to show that these portions of Roach's fraud claim are subject to the TCPA and we affirm in part the trial court's order denying Constellation's TCPA motion to dismiss the remainder of the fraud claim. We remand the cause to the trial court for further proceedings consistent with this opinion.