Opinion issued June 18, 2026.
In the
Court of Appeals for the
First District of Texas ———————————— NO. 01-24-00901-CV ——————————— JANELLE ALEXIS FLATT, Appellant v. RYANN TORNOW, Appellee
On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2024-34899
OPINION
Appellee Ryann Tornow sent intimate photos of herself to the then husband
of appellant Janelle Alexis Flatt. Following Flatt’s alleged disclosure of those photos
to third parties, Tornow sued Flatt and alleged public disclosure of private facts,
intrusion on seclusion, and unlawful disclosure of intimate visual material. Flatt filed a motion to dismiss Tornow’s suit under the Texas Citizens Participation Act
(TCPA). See TEX. CIV. PRAC. & REM. CODE §§ 27.001-.011. The trial court denied
Flatt’s motion by operation of law, and Flatt filed a notice of appeal.
On appeal, Flatt contends that: (1) Tornow’s suit is in response to Flatt’s
exercise of the rights to petition and of free speech, and thus, the TCPA applies;
(2) Tornow failed to establish, by clear and specific evidence, a prima facie case for
each essential element of each of her claims; and (3) notwithstanding Tornow’s
failure to prove a prima facie case, Flatt is entitled to judgment as a matter of law
because she can conclusively negate an essential element of each of Tornow’s
claims. Because we conclude that Tornow’s claims are not based on or in response
to Flatt’s exercise of any right that the TCPA protects, we affirm the denial of Flatt’s
motion to dismiss.
Background
Sometime in 2023, Flatt and her husband, Rhett Kenagy-Balan, entered
divorce proceedings, in which Flatt sought and eventually secured Tornow’s
deposition. On June 3, 2024, before sitting for her deposition but after receiving a
subpoena, Tornow filed suit against Flatt, alleging public disclosure of private facts,
intrusion on seclusion, and unlawful disclosure of intimate visual material. In her
petition, Tornow alleged that Flatt violated Tornow’s privacy by accessing her
“private personal communications.” Tornow further alleged that Flatt “disclosed
2 intimate visual material depicting [Tornow] to several persons.” Tornow’s claim for
public disclosure of private facts is predicated on the allegation that Flatt “publicized
information about” Tornow’s “private life.” For intrusion on seclusion, Tornow
alleged that Flatt “viewed and disclosed” Tornow’s “intimate relationship and
intimate visual material to persons within the community.” With respect to her final
claim for unlawful disclosure of intimate visual material, Tornow alleged that Flatt
“unlawfully disclosed intimate visual material depicting” Tornow.
On September 13, 2024, Flatt filed a motion to dismiss under the TCPA.1 Flatt
filed a notice that her motion would be heard by submission on October 14, 2024.
The trial court never ruled on Flatt’s motion and, by operation of law, the motion
was denied. TEX. CIV. PRAC. & REM. CODE §§ 27.005(a), 27.008(a). On November
14, 2024, Flatt timely filed her notice of appeal.
1 On July 25, 2024, Flatt filed a waiver of service “effective July 15, 2024.” Whether the “date of service” is July 15 or July 25, 2024, Flatt’s TCPA motion is timely. TEX. CIV. PRAC. & REM. CODE § 27.003(b) (requiring TCPA motion to be filed by 60th day “after the date of service of the legal action,” absent agreement or court order). Although Tornow filed an amended petition after Flatt filed her TCPA motion, the amended petition “asserts the same legal claims” against Flatt “based on the same essential factual allegations” as the original petition. Montelongo v. Abrea, 622 S.W.3d 290, 296-98 (Tex. 2021). Because of that, the amended pleading does not constitute a new legal action under the TCPA and does not restart the 60- day clock. Id. For the same reason, the filing of an amended pleading does not render a TCPA motion moot, and we do not dispose of the appeal on that basis. Buckingham Senior Living Cmty., Inc. v. Washington, 605 S.W.3d 800, 807 n.4 (Tex. App.—Houston [1st Dist.] 2020, no pet.).
3 Applicability of TCPA
The legislature enacted the TCPA “to encourage and safeguard the
constitutional rights of persons to petition, speak freely, associate freely, and
otherwise participate in government to the maximum extent permitted by law and,
at the same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002; see McLane
Champions, LLC v. Hou. Baseball Partners LLC, 671 S.W.3d 907, 913-14 (Tex.
2023) (recognizing purpose of TCPA). To accomplish this purpose, the statute
permits a party to file an early motion to dismiss, subject to interlocutory review.
McLane Champions, 671 S.W.3d at 914. We review de novo a trial court’s 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. Hou. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.—
Houston [1st Dist.] 2013, pet. denied)). As an initial matter, a movant must
demonstrate that the TCPA applies to the legal action she seeks to dismiss. McLane
Champions, 671 S.W.3d at 914. She must demonstrate that the legal action “is based
on or is in response to” a protected right and, therefore, subject to dismissal. TEX.
CIV. PRAC. & REM. CODE § 27.005(b). If the movant cannot satisfy her initial burden,
we need go no further and may affirm denial of the TCPA motion on that basis.
McLane Champions, 671 S.W.3d at 914, 920 (concluding that TCPA does not apply
4 under first step and ending analysis); Wayne Dolcefino & Dolcefino Commc’ns, LLC
v. Cypress Creek EMS, 540 S.W.3d 194, 202 (Tex. App.—Houston [1st Dist.] 2017,
no pet.) (same).
In her first issue, Flatt contends that the TCPA applies to Tornow’s entire suit
because each claim is based on or in response to Flatt’s exercise of the right to
petition, her exercise of the right of free speech, or both. See TEX. CIV. PRAC. & REM.
CODE § 27.005(b) (setting forth bases for dismissal under TCPA). Flatt argues that
Tornow’s suit is in response to Flatt’s issuing subpoenas in the divorce between her
and her ex-husband, Kenagy-Balan. She also argues that she “has a right to speak
freely about her marriage, which is a public institution recognized by the Texas
Constitution, the tragedy of her husband’s affair with Tornow, and to share proof of
the affair (including messages that included Tornow’s nude photos to Flatt’s
husband and their family devices).” Tornow did not file an appellee’s brief; however,
in the trial court, she argued that her suit is not based on or in response to Flatt’s
issuance of subpoenas in Flatt’s divorce proceeding. She also argued that Flatt’s
alleged disclosure of nude photos of Tornow is a private dispute that has no
connection with any matter of public concern.
A. Right to Petition
A legal action is subject to dismissal under the TCPA if it “is based on or is
in response to . . . the party’s exercise of . . . the right to petition.” TEX. CIV. PRAC.
5 & REM. CODE § 27.005(b)(1)(B). As relevant here, the “exercise of the right to
petition” includes “a communication in or pertaining to . . . a judicial proceeding.”
Id. § 27.001(4)(A)(i). The TCPA defines “communication” to “include[] 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).
Flatt contends that Tornow’s suit is “in response to” Flatt’s actions in her
divorce proceeding, including issuing subpoenas to Tornow and taking Tornow’s
deposition. The subpoenas are communications “in or pertaining to . . . a judicial
proceeding,” namely, Flatt’s divorce proceeding. See James v. Calkins, 446 S.W.3d
135, 147 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (concluding that
“pleadings” are communications in or pertaining to judicial proceeding), abrogated
on other grounds by Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021).
Flatt must also demonstrate that Tornow’s legal action is in response to those
communications. Flatt argues that the suit is “in response to” Flatt’s actions in the
divorce proceeding because Tornow’s suit came shortly after those actions. Flatt
relies on the proposition that a legal action is “in response to” a protected
communication—such as a communication in or pertaining to a judicial
proceeding—when that legal action “react[s] to or [is] asserted subsequently to” the
protected communication. Cavin v. Abbott, 545 S.W.3d 47, 69 (Tex. App.—Austin
6 2017, no pet.). To support her argument, Flatt relies on the following sequence of
events:
• On February 16, 2023, Tornow, according to her affidavit, learned that Flatt “had sent highly offensive photographs” of Tornow “to various friends and family.”
• On April 9, 2024, more than a year later, Tornow was served with a subpoena compelling her deposition in the divorce proceeding between Flatt and her then husband.
• On April 23, 2024, Tornow was served with another subpoena compelling her deposition.
• On April 26, 2024, Tornow filed a motion to quash the subpoena in the divorce proceeding.
• On June 3, 2024, Tornow filed suit against Flatt. Flatt emphasizes the close timing between Tornow’s filing suit and service of
the subpoenas coupled with the fact that Tornow waited more than a year to file suit
after she claims to have discovered the allegations at the heart of her claims. Flatt
argues that this timeline compels the conclusion that Tornow’s suit is in response to
Flatt’s subpoenas in the divorce proceedings.
We have previously held that a TCPA movant “will not satisfy her burden to
demonstrate applicability of the TCPA” by “simply alleging post hoc ergo propter
hoc.” Pierce v. Brock, No. 01-18-00954-CV, 2019 WL 3418511, at *5 (Tex. App.—
Houston [1st Dist.] July 30, 2019, no pet.) (mem. op.); see Post Hoc Ergo Propter
Hoc, BLACK’S LAW DICTIONARY (12th ed. 2024) (translating phrase from Latin as
“after this, therefore resulting from it”). In Pierce, the TCPA movant contended that 7 the legal action was filed “in response to” the movant’s filing of another suit. 2019
WL 3418511, at *5. In support of her argument, she pointed to only the fact that the
legal action “was asserted subsequently in time.” Id. We rejected that argument, and
our sister courts of appeals have rejected similar arguments. See, e.g., DOJO
Bayhouse, LLC v. Pickford, No. 14-20-00237-CV, 2021 WL 6050677, at *5 (Tex.
App.—Houston [14th Dist.] Dec. 21, 2021, no pet.) (mem. op.) (rejecting argument
that suit was “in response to” action “simply because” suit was “later-filed”); Cook
v. Kyser, No. 05-19-00311-CV, 2019 WL 5884429, at *4 (Tex. App.—Dallas Nov.
12, 2019, pet. denied) (mem. op.) (rejecting argument that legal action could be “in
response to” exercise of protected rights where those activities were not the “factual
predicate” of the claims (citation modified)); Beving v. Beadles, 563 S.W.3d 399,
408 (Tex. App.—Fort Worth 2018, pet. denied) (rejecting “in response to” argument
based solely on timing of suit); see also Browning Fam. Min. P’ship v. Callahan
Draw LLC, No. 08-24-00399-CV, 2025 WL 2972414, at *6 (Tex. App.—El Paso
Oct. 21, 2025, no pet.) (mem. op.) (rejecting argument that legal action was “in
response to” prior suit because legal action would not have been filed but for prior
suit).
Nonetheless, Flatt maintains that a legal action is in response to a protected
communication when that action is asserted subsequently to the protected
communication. Flatt principally relies on Cavin, 545 S.W.3d 47, and Yu v. Koo,
8 633 S.W.3d 712 (Tex. App.—El Paso 2021, no pet.). In Cavin, a couple filed suit
against the wife’s parents following the parents’ “overarching campaign of
harassment” directed at the couple. 545 S.W.3d at 69. In effecting their “campaign
of harassment,” the parents exercised their rights of free speech and to petition. Id.
The Austin court of appeals held that the couple’s claims were in response to the
exercise of those rights “in the sense that they reacted to or were asserted
subsequently to [the parents’] ongoing communications regarding mental health or
‘abuse’ and their lawsuits and subpoenas.” Id. In reaching this conclusion, the court
of appeals explicitly noted that the parents’ protected communications were not the
factual predicate of some of the couple’s claims. Id. at 68. Yet, the court of appeals
found the TCPA applied to those claims because they were a reaction to or
temporally followed the parents’ protected communications. Id. at 68-69. Similarly,
in Yu, the El Paso court of appeals held an amended petition was filed in response to
the defendant’s TCPA motion—an exercise of the defendant’s right to petition—
solely based on “the timing of the amended petition’s filing,” notwithstanding that
the alleged acts underpinning the amended petition’s claims occurred before the
TCPA motion. 633 S.W.3d at 726-27 (“This type of reactionary filing implicates the
TCPA, regardless of whether the newly-asserted claims are valid.”).
We respectfully disagree with the holdings of Cavin and Yu that a legal action
is in response to the exercise of a protected right simply because the legal action
9 temporally followed the exercise of that right. Those holdings run contrary to this
Court’s precedents. See, e.g., Cweren v. Eureka Multifamily Group, L.P., No. 01-
21-00470-CV, 2023 WL 2977755, at *16 (Tex. App.—Houston [1st Dist.] Apr. 18,
2023, pet. denied) (mem. op.) (affirming denial of TCPA motion and noting that
parties’ involvement in prior county court suit “does not mean that every subsequent
action after the county court suit results in litigation that is based on or in response
to the county court suit”); Tiedjop v. Volleyball Sch. LLC, No. 01-22-00097-CV,
2023 WL 2602776, at *4 (Tex. App.—Houston [1st Dist.] Mar. 23, 2023, no pet.)
(mem. op.) (rejecting argument that legal action was in response to party’s earlier
pleading solely on basis that claim was asserted subsequently in time); Marrujo v.
Wisenbaker Builder Servs., Inc., No. 01-19-00056-CV, 2020 WL 7062318, at *9-10
(Tex. App.—Houston [1st Dist.] Dec. 3, 2020, no pet.) (mem. op.) (rejecting
argument that “underlying lawsuit must have been filed in response to the [prior]
lawsuit simply because it was asserted subsequent in time”); Pierce, 2019 WL
3418511, at *5 (same); Pierce v. Stocks, No. 01-18-00990-CV, 2019 WL 3418513,
at *5 (Tex. App.—Houston [1st Dist.] July 30, 2019, no pet.) (mem. op.) (same). On
this record, we conclude that Flatt has not met her burden to demonstrate that
Tornow’s claims are based on or in response to Flatt’s exercise of the right to
petition.
10 B. Right of Free Speech
A legal action is subject to dismissal under the TCPA if it “is based on or is
in response to . . . the party’s exercise of . . . the right of free speech.” TEX. CIV.
PRAC. & REM. CODE § 27.005(b)(1)(A). The “exercise of the right of free speech”
means “a communication made in connection with a matter of public concern,”
which is defined as “a statement or activity regarding . . . a public official[;] . . . a
matter of political, social, or other interest to the community; or . . . a subject of
concern to the public.” Id. § 27.001(3), (7). As previously mentioned, the TCPA
defines “communication” to “include[] 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).
As an initial matter, we must determine what are the alleged
“communications” by Flatt on which Flatt contends Tornow’s suit is based. Flatt
denies that she disclosed any photos or messages that Tornow sent to Flatt’s then
husband other than one message that Flatt admits she sent to Tornow, which included
one of Tornow’s nude photos.2 Flatt’s denial does not sink her motion. A legal action
may still be subject to dismissal under the TCPA even if the movant denies making
the communications on which the legal action is based. See Hersh v. Tatum, 526
2 Flatt does not appear to argue that Tornow’s suit is based on or in response to this text message. Additionally, nothing in Tornow’s petition or her response to Flatt’s TCPA motion suggests that that text message is the basis of any of her claims.
11 S.W.3d 462, 466-68 (Tex. 2017) (holding that legal action was based on defendant’s
exercise of free speech under TCPA based on plaintiff’s allegations, even though
defendant denied allegations). However, unlike the plaintiff’s petition in Hersh,
Tornow’s petition does not describe the content of Flatt’s alleged communications.
Rather, the petition merely alleges that Flatt “disclosed intimate visual material
depicting” Tornow and “publicized information about” Tornow’s “private life.”
We are not limited to Tornow’s petition. In considering a TCPA motion, the
statute requires that we consider the pleadings, evidence a court could consider under
rule 166a of the Texas Rules of Civil Procedure, and supporting and opposing
affidavits stating the facts on which the liability or defense is based. TEX. CIV. PRAC.
& REM. CODE § 27.006(a). In responding to Flatt’s TCPA motion, Tornow
acknowledges that the “intimate visual material” alleged in her petition consists of
nude photos of herself. In an affidavit attached to her response, Tornow stated that,
to the best of her knowledge, Flatt “had sent highly offensive photographs of
[Tornow] to various friends and family,” including Michael Middleton and Gavin
Sweeny, who, according to Flatt, are Flatt’s pastor and the CFO of one of Kenagy-
Balan’s companies, respectively. Tornow also attached an exhibit depicting a
message allegedly sent by Flatt from a social media account named
“home_wreckerwatchout.” The message—depicted in the image below—reads:
“You should probably find a new job & watch every move you make from this point
12 forward. Have a good night [Face Blowing a Kiss emoji][.]” Neither the exhibit
depicting the message nor Tornow’s pleadings suggest to whom the message was
sent. According to Tornow, the account’s profile picture is a photo of Tornow.
As for any text messages that Tornow sent to Kenagy-Balan that Flatt
allegedly disclosed, no pleading, affidavit, or other evidence describes the content
of those communications. As the movant, Flatt bears the burden of describing the
communications on which she claims Tornow’s legal action is based. Mattress Firm,
Inc. v. Deitch, 612 S.W.3d 467, 487-88 (Tex. App.—Houston [1st Dist.] 2020, pet.
denied). Without any pleading or evidence describing the communications’ content,
we are unable to determine whether those communications were “made in
connection with a matter of public concern.” TEX. CIV. PRAC. & REM. CODE
§ 27.001(3); see Cook, 2019 WL 5884429, at *3 (noting that court could not
determine whether suit was “in response to” protected communication without
pleading or evidence of alleged communication’s content). Accordingly, the only
communications demonstrated by the pleadings or evidence are the social media
message and the alleged disclosures by Flatt of nude photos of Tornow to third 13 parties that include the CFO of one of Kenagy-Balan’s companies and Flatt and
Tornow’s pastor. See TEX. CIV. PRAC. & REM. CODE § 27.001(1) (defining
“communication” to include “visual” media).
1. Photographs
Flatt contends that any disclosure by her of Tornow’s photos is a
communication made in connection with a matter of public concern. She argues that
attacks on the institution of marriage, including adultery, are matters of public
concern, and any disclosure is a communication made in connection with those
matters. The Texas Supreme Court has cautioned against a construction of “matter
of public concern” that would include “matters of purely private concern” when the
TCPA’s text does not permit such an interpretation. Creative Oil & Gas, LLC v.
Lona Hills Ranch, LLC, 591 S.W.3d 127, 135 (Tex. 2019). While the legislature is
“free to define ‘matter of public concern’ to include matters of purely private
concern,” nothing in the current version of the statute suggests that it applies to
purely private matters. Id. at 134. Under the TCPA, a matter is one of public concern
when it regards a public official or figure, a person who has drawn substantial public
attention, a matter of interest to the community, or other subject of concern to the
public. TEX. CIV. PRAC. & REM. CODE § 27.001(7).
Any disclosure by Flatt of Tornow’s nude photographs is a “purely private
concern.” Contrary to Flatt’s assertions, she is not alleged to have made statements
14 in connection with the institution or marriage or adultery. She is alleged to have
disclosed nude photographs of Tornow, a private person. See Ernst & Young, LLP
v. Ryan, LLC, No. 01-21-00603-CV, 2023 WL 4239350, at *5 (Tex. App.—Houston
[1st Dist.] June 29, 2023, pet. denied) (mem. op.) (“[W]e do not blindly accept
attempts by appellants to characterize [plaintiff’s] claims as implicating protected
expression and conduct.” (citing Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex.
App.—Austin 2015, pet. dism’d))).
In Merrill v. Curry, No. 05-19-01229-CV, 2020 WL 6498983 (Tex. App.—
Dallas Nov. 5, 2020, no pet.) (mem. op.), the court of appeals considered whether
the “intentional display” of a teacher’s nude photos by school administrators
implicated the TCPA’s protections. Id. at *3. When a parent informed school
administrators that nude photos of a teacher existed online, the administrators
summoned the teacher and confronted her with the images and pressured her to
resign or else an investigation would result in the school board seeing the pictures.
Id. at *2. The teacher sued and alleged, among other things, unlawful disclosure of
intimate visual material, intrusion upon seclusion, and public disclosure of private
facts—the same causes of action that Tornow alleges in the instant suit. Id. at *3.
The administrators argued that the disclosure of the photos implicated matters of
public concern, such as the ability of the plaintiff to be an “effective teacher.” Id. at
*5. The court of appeals disagreed. School districts may have “a legitimate interest
15 in investigating” whether a teacher has posted sexually explicit content online. Id. at
*6. However, the “manner in which [the school administrators] conducted a private
employment matter,” i.e. confronting the teacher with her own nude photos, was not
a communication made in connection with a matter of public concern. Id. Similarly,
here, just because Flatt disclosed nude photos of Tornow after Tornow sent them to
her then husband, it does not necessarily follow that Flatt’s disclosure is a
“communication made in connection with” the subject of marriage or adultery.
To the extent that disclosing Tornow’s nude photos can be interpreted as a
statement in connection with adultery, and assuming that adultery is a matter of
public concern, that disclosure must nonetheless have “relevance to a public
audience at the time it was made.” McLane Champions, 671 S.W.3d at 917. Certain
members of the public might take an interest in a private scandal—just as the public
might take an interest in a private business transaction involving the Houston
Astros—but that does not transform a private affair involving private persons into
one of public concern. See id. at 919 (“That the subject of the purchase agreement—
a professional sports team—is generally of public interest does not render the
specific communications at issue relevant to a public audience when they were
made.”); Terrell v. Mazaheri, 676 S.W.3d 116, 126 (Tex. App.—San Antonio 2023,
no pet.) (holding that accusation of adultery was not a communication made in
16 connection with a matter of public concern because it did not relate to “any specific
unethical conduct” barred by law).
Lastly, we reject Flatt’s argument that the alleged disclosure is made in
connection with a matter of public concern because the affair is of interest to her
local church. See TEX. CIV. PRAC. & REM. CODE § 27.001(7)(C) (defining “matter of
public concern” to include “a matter of . . . interest to the community”). To support
her argument, Flatt relies on Hadimani v. Hiremath, No. 14-22-00002-CV, 2023 WL
3596248 (Tex. App.—Houston [14th Dist.] May 23, 2023, no pet.) (mem. op.). In
Hadimani, a former leader of a social, cultural, and religious non-profit organization
was accused of tampering with his organization’s elections, actions that were
criminal in nature. Id. at *6. Our sister court of appeals held that those statements
were communications made in connection with a matter of public concern because
they were of interest to the members of that organization. Id. However, those
accusations concerned the leadership of a national organization and implicated
criminal activity. Id. at *1, *6.
Assuming that Flatt’s local church qualifies as a “community” within the
meaning of the TCPA, despite no evidence in the record regarding the church’s size,
Flatt has not demonstrated how the disclosure of nude photos of a church member is
in connection with any matter of interest to that community. For example, Flatt
submitted no evidence regarding whether her church was investigating or would
17 investigate any alleged affair regarding her then husband or whether Tornow held
any leadership position within the church such that any alleged affair would be
relevant. See Hadimani, 2023 WL 3596248, at *1-2 (in concluding that
communications were in connection with matter of interest to community, noting
record evidence that nationwide organization was investigating election that was
subject of suit, member filed separate suit regarding fraud in election, and
organization notified partner that organization would not collaborate with partner if
former organization president under investigation was involved). We do not imply
that this evidence would be sufficient or necessary. We note only that Flatt, as the
movant, bore the initial burden of demonstrating that her alleged disclosure of nude
photos was a communication made in connection with a matter of interest to her
local church, and she failed to carry that burden.
2. Social media message
Flatt argues that the social media message, sent from an account named
“home_wreckerwatchout” and using a photo of Tornow, is a warning to the
community about Tornow’s affair with Flatt’s then husband and, therefore, is a
communication made in connection with a matter of public concern. For the same
reasons that Flatt’s alleged disclosure of photos of Tornow is not a communication
made in connection with a matter of public concern, we reach the same conclusion
with respect to the social media message allegedly sent by Flatt. Even if we interpret
18 the social media account name and profile picture as expressing a message that
Tornow is an adulterer for whom the community must watch out, that does not
elevate a private affair between private adults into a matter of public concern.
McLane Champions, 671 S.W.3d at 917 (noting that communication must have
“relevance to a public audience at the time it was made” (emphasis added)). A party
cannot generate interest in a matter after the fact to transform the issue into one of
public concern. Id.
Having concluded that Tornow’s legal action is not based on or in response to
Flatt’s exercise of the right to petition or the right of free speech, we overrule Flatt’s
first issue. Accordingly, we need not address Flatt’s remaining issues that Tornow
failed to establish a prima facie case or that Flatt is entitled to judgment as a matter
of law. See McLane Champions, 671 S.W.3d at 914, 920 (concluding that TCPA
does not apply under first step and ending analysis); Wayne Dolcefino & Dolcefino
Commc’ns, LLC v. Cypress Creek EMS, 540 S.W.3d 194, 202 (Tex. App.—Houston
[1st Dist.] 2017, no pet.) (same).
Conclusion
We affirm the trial court’s denial by operation of law of Flatt’s motion to
dismiss under the TCPA.
19 Amparo “Amy” Guerra Justice
Panel consists of Chief Justice Adams and Justices Guerra and Morgan.