Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-17-00006-CV
MISSION WRECKER SERVICE, S.A., INC., Alanis Wrecker Service, Alanis Wrecker Service, Inc., Alejandro L. Alanis, Eric Wilhite, and Jim Champion, Appellants
v.
ASSURED TOWING, INC., Appellee
From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2015-CI-18598 Honorable Gloria Saldaña, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: August 2, 2017
REVERSED AND REMANDED
Appellants Mission Wrecker Service, S.A., Inc., Alanis Wrecker Service, Alanis Wrecker
Service, Inc., Alejandro L. Alanis, Eric Wilhite, and Jim Champion appeal the trial court’s order
denying their motions to dismiss filed pursuant to the Texas Citizens Participation Act also known
as the anti-SLAPP statute. Appellants contend the trial court erred in denying their motions
because the claims asserted by appellee Assured Towing, Inc. against them were based on, related
to, or were in response to the Appellants’ exercise of the right of free speech or the right to petition.
Appellants further contend Assured Towing failed to establish by clear and specific evidence a 04-17-00006-CV
prima facie case for each essential element of its claims or, alternatively, the Appellants established
by a preponderance of the evidence each essential element of their justification defense. We
reverse the trial court’s order, dismiss Assured Towing’s claims against the Appellants, 1 and
remand the cause for further proceedings.
BACKGROUND
Because both the trial court and this court are required to consider the pleadings and
evidence in the light most favorable to Assured Towing, the following summarizes facts from
Assured Towing’s pleadings. See Watson v. Hardman, 497 S.W.3d 601, 609 (Tex. App.—Dallas
2016, no pet.); Hicks v. Group & Pension Administrators, Inc., 473 S.W.3d 518, 526 (Tex. App.—
Corpus Christi 2015, no pet.); Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881, 892 (Tex. App.—
Houston [1st Dist.] 2015, no pet.); Serafine v. Blunt, 466 S.W.3d 352, 369 n.28 (Tex. App.—
Austin 2015, no pet.); see also Rio Grande H2O Guardian v. Robert Muller Family P’ship Ltd.,
No. 04-13-00441-CV, 2014 WL 309776, at *3 (Tex. App.—San Antonio Jan. 29, 2014, no pet.)
(mem. op.) (noting “[u]nlike other types of cases where pleadings are not considered evidence,
section 27.006 . . . expressly provides” that “we may consider the pleadings as evidence”).
Assured Towing and the City of San Antonio were parties to a Municipal Wrecker Services
Agreement pursuant to which Assured Towing provided towing services for the City. After
Assured Towing sought a rate review pursuant to the terms of the agreement, Assured Towing
began receiving complaints from the City; however, Assured Towing continued providing services
under the agreement.
Under the terms of its agreement with the City, Assured Towing was required to have
workers’ compensation coverage for its employees. To satisfy this requirement, Assured Towing
1 Assured Towing also asserted claims in the underlying cause against Mike Slater. Slater did not file a motion to dismiss and is not a party to this appeal.
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contracted with Unique Staff Leasing III, Ltd. to provide employee payroll services, including the
provision of the required workers’ compensation coverage.
Unique Staff subsequently sued Assured Towing on a past debt after Unique Staff’s
president was informed by Mike Slater and Jim Champion that the City intended to suspend its
agreement with Assured Towing. Slater was the broker who referred Assured Towing to Unique
Staff and who received a commission on the payments Assured Towing made to Unique Staff.
Slater learned Assured Towing’s agreement with the City was in jeopardy from Eric Wilhite during
a meeting with Wilhite and Alejandro L. Alanis. Wilhite informed Slater that a City employee
informed him that Assured Towing’s agreement with the City was likely to be suspended due to
nonperformance. Both Wilhite and Alanis are associated with Alanis Wrecker Service. Champion
is an employee of Mission Wrecker Service, S.A., Inc. Slater or Champion also provided Unique
Staff with the name of the attorney who represented Unique Staff in its lawsuit against Assured
Towing.
In addition to suing Assured Towing, Unique Staff also retroactively terminated its contract
with Assured Towing, immediately eliminating its workers’ compensation coverage. Assured
Towing was current with its payment obligations under the contract but was in arrears on an
agreement the parties had entered into requiring Assured Towing to retire a past debt it owed to
Unique Staff.
In its lawsuit, Unique Staff sought and obtained a temporary restraining order requiring the
City to deposit all payments made to Assured Towing under the terms of their agreement into the
registry of the court. Champion obtained a copy of the TRO and delivered it to the City. Around
the same time, a City employee demanded that Assured Towing provide the City with proof of its
workers’ compensation coverage. When Assured Towing was unable to provide proof, the City
suspended its agreement with Assured Towing. While the agreement was suspended, Alanis -3- 04-17-00006-CV
Wrecker Service provided the towing services Assured Towing would otherwise have provided
until Assured Towing provided proof of coverage to the City and the agreement was reinstated. 2
Assured Towing sued the Appellants for tortious interference with its contracts with
Unique Staff and the City and for conspiracy. As previously noted, the Appellants filed motions
to dismiss pursuant to the Texas Citizens Participation Act. Approximately fifteen minutes before
the hearing scheduled on the motions, Assured Towing filed a response to which it attached
additional evidence. At the hearing, the Appellants objected to the evidence attached to the
response as being untimely and inadmissible. The trial court sustained the objections and took the
motions under advisement. The trial court later signed an order denying the motions, and
Appellants appeal.
THE TEXAS CITIZENS PARTICIPATION ACT AND STANDARD OF REVIEW
“[T]he Texas Citizens Participation Act or TCPA protects citizens from retaliatory lawsuits
that seek to intimidate or silence them on matters of public concern.” In re Lipsky, 460 S.W.3d
579, 586 (Tex. 2015). “The Act provides a special procedure for the expedited dismissal of such
suits.” Id.
When a defendant files a motion to dismiss under the TCPA, the defendant-movant has the
initial burden to show by a preponderance of the evidence that the plaintiff’s claim is based on,
relates to, or is in response to the defendant-movant’s exercise of: (1) the right of free speech; (2)
the right to petition; or (3) the right of association. TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(b) (West 2015); In re Lipsky, 460 S.W.3d at 586-87. “If the movant is able to
demonstrate that the plaintiff’s claim implicates one of these rights, the [next] step shifts the burden
to the plaintiff to ‘establish [ ] by clear and specific evidence a prima facie case for each essential
2 Based on the statements made in Assured Towing’s response to Appellants’ motions, it appears the agreement was suspended for approximately eight days.
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element of the claim in question.’” In re Lipsky, 460 S.W.3d at 587 (quoting TEX. CIV. PRAC. &
REM. CODE ANN. § 27.005(c)). Finally, if the plaintiff meets its burden to establish a prima facie
case, the trial court must still dismiss the claim if the defendant-movant “establishes by a
preponderance of the evidence each essential element of a valid defense to the nonmovant’s
claim.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d). We review the trial court’s ruling on a
TCPA motion to dismiss de novo. Herrera v. Stahl, 441 S.W.3d 739, 741 (Tex. App.—San
Antonio 2014, no pet.).
In determining whether the plaintiff’s claim should be dismissed, the court is to consider
the pleadings and any supporting and opposing affidavits. Id. at 27.006(a). As previously noted,
both the trial court and this court are required to consider the pleadings and evidence in the light
most favorable to Assured Towing. See Schlumberger Ltd., 472 S.W.3d at 892; Serafine, 466
S.W.3d at 369 n.28; Rio Grande H2O Guardian, 2014 WL 309776, at *3.
The TCPA does not define the phrase “clear and specific evidence” which is the standard
the plaintiff must meet in establishing a prima facie case for each essential element of the plaintiff’s
claims. See In re Lipsky, 460 S.W.3d at 590. The Texas Supreme Court, however, has held the
standard requires more than mere notice pleadings but “does not impose an elevated evidentiary
standard or categorically reject circumstantial evidence.” Id. at 590-91. “Instead, a plaintiff must
provide enough detail to show the factual basis for its claim.” Id. at 591.
ASSURED TOWING’S EVIDENCE
As previously noted, Assured Towing filed a response to the Appellants’ motions
approximately fifteen minutes before the hearing was scheduled to commence. The Appellants
objected to the evidence attached to the response, noting the evidence was untimely filed and
inadmissible. The trial court sustained the Appellants’ objections.
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We review the trial court’s order sustaining the Appellants’ timeliness objection to the
evidence attached to Assured Towing’s response under an abuse of discretion standard. See U-
Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012) (“Evidentiary rulings are committed
to the trial court’s discretion); Nava v. Steubing, 700 S.W.2d 668, 670 (Tex. App.—San Antonio
1985, no writ) (noting whether to allow the late filing of opposing proof is within the trial court’s
discretion). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or
without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985).
Assured Towing argues the trial court abused its discretion in sustaining the Appellants’
timeliness objection because the TCPA does not contain a deadline for filing a response to a motion
to dismiss. As support for its position, Assured Towing cites this court’s decision in Callaghan
Ranch, Ltd. v. Killam, 53 S.W.3d 1 (Tex. App.—San Antonio 2000, pet. denied). In Killam,
however, this court considered whether a summary judgment movant could meet the specificity
requirement of a no-evidence motion for summary judgment in its reply. 53 S.W.3d at 4. This
court noted one procedural problem in allowing the specificity to be satisfied by the reply was that
the movant could file the reply on the day of the summary judgment hearing because rule 166a
does not contain a deadline for a movant to file a reply. Id. In resolving the issue, this court
assumed the trial court could properly consider the specific challenge raised in the reply and held
the trial court erred in granting the no-evidence motion for a different reason. Id. at 4-5. This
court’s decision in Killam does not support the proposition that a trial court would abuse its
discretion if it sustained an objection to a reply filed on the day of a summary judgment hearing.
The absence of a rule directly applicable to an issue should not be used as a means to
ambush opposing counsel. Gessmann v. Stephens, 51 S.W.3d 329, 340 n.7 (Tex. App.—Tyler
2001, no pet). Instead, in the absence of a rule, the trial court should have the discretion to -6- 04-17-00006-CV
determine the timeliness of a response. See Bennett v. Grant, No. 15-0338, 2017 WL 1553157, at
*7 (Tex. Apr. 28, 2017) (noting procedural matters are left to the discretion of the trial court).
Given that Assured Towing did not file its response and attached evidence until approximately
fifteen minutes before the start of the hearing, we hold the trial court did not abuse its discretion
in sustaining the Appellants’ timeliness objection to the evidence.
Even if the trial court abused its discretion in sustaining the Appellants’ timeliness
objection, the Appellants also objected to the admissibility of the evidence, noting the attachments
to the response were objectionable because they were depositions from another case where
Appellants’ attorneys did not have the right to cross-examine or question the deponents on the
content of the depositions. Assured Towing responded that the depositions would be admissible
as statements against the parties’ interest. Although Assured Towing addresses the timeliness of
the evidence in its brief, it does not address the trial court’s ruling on the admissibility of the
evidence. Accordingly, Assured Towing has waived the issue of whether the trial court erred in
excluding its evidence on admissibility grounds. See Cantu v. Horany, 195 S.W.3d 867, 871 (Tex.
App.—Dallas 2006, no pet.) (noting when a party urges several objections to a particular piece of
evidence and, on appeal, the opposing party complains of its exclusion on only one of those bases,
the opposing party has waived the complaint that the trial court erred in excluding the evidence
because he has not challenged all possible grounds for the trial court’s ruling that sustained the
objection); see also Gulley v. Davis, 321 S.W.3d 213, 218 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied) (same).
CLAIMS BASED ON EXERCISE OF RIGHT OF FREE SPEECH
The Appellants assert they met their burden to establish Assured Towing’s claims are based
on their exercise of the right of free speech because all of their communications were made in
connection with a matter of public concern. -7- 04-17-00006-CV
The TCPA defines the “exercise of the right of free speech” to mean “a communication
made in connection with a matter of public concern.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.001(3). The TCPA further defines “matter of public concern” to include an issue related to:
(A) health or safety; (B) environmental, economic, or community well-being; (C) the government;
(D) a public official or public figure; or (E) a good, product, or service in the marketplace. TEX.
CIV. PRAC. & REM. CODE ANN. § 27.001(7).
“[W]he construing the TCPA’s ‘right of free speech’ prong, ‘the plain language of the
[TCPA] merely limits its scope to communications involving a public subject — not
communications in a public forum.’” ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899
(Tex. 2017) (quoting Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015)). As a result,
the TCPA encompasses both public and private communication. Id. “The TCPA does not require
that the statements specifically ‘mention’ [public] concerns, nor does it require more than a
‘tangential relationship’ to the same; rather, TCPA applicability requires only that the defendant’s
statements are ‘in connection with’ ‘issue[s] related to’ health, safety, environmental, economic,
and other identified matters of public concern chosen by the Legislature.” Id. at 900.
All of Assured Towing’s allegations are based on conversations regarding the agreement
the City, a governmental entity, had with Assured Towing. Communications relating to the
manner in which the government operates relate to matters of public concern. In re Lipsky, 411
S.W.3d at 543. In addition, “the award of public contracts is almost always a public matter and an
issue of public concern.” Farias v. Garza, 426 S.W.3d 808, 819 (Tex. App.—San Antonio 2014,
pet. denied), disapproved on other grounds, In re Lipsky, 460 S.W.3d at 591. In this case, we hold
Appellants’ communications regarding the City’s contract with Assured Towing were based on or
related to a matter of public concern. See Hicks, 473 S.W.3d at 530 (concluding emails regarding
concerns about a company’s ability to perform services to be provided by the company pursuant -8- 04-17-00006-CV
to a potential contract between the company and a school district related to matter of public
concern). Furthermore, the communications in which Unique Staff was provided the name of an
attorney are communications relating to a service in the marketplace, and likewise relate to a matter
of public concern. See Deaver v. Desai, 483 S.W.3d 668, 673 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (holding statements relating to legal services offered by attorney in the marketplace
addressed matters of public concern); Kinney v. BCG Attorney Search, Inc., No. 03-12-00579-CV,
2014 WL 1432012, at *5 (Tex. App.—Austin Apr. 11, 2014, pet. denied) (mem. op.) (holding
statements regarding services company provided to the public were made in connection with
matter of public concern). Therefore, Appellants satisfied their initial burden of showing Assured
Towing’s claims were based on or related to their exercise of the right of free speech.
PRIMA FACE CASE
Because the Appellants met their initial burden, the burden shifted to Assured Towing to
establish by clear and specific evidence a prima facie case for each essential element of its claims.
A. Tortious Interference with Contract
The elements of tortious interference with an existing contract are: (1) an existing contract
subject to interference, (2) a willful and intentional act of interference with the contract, (3) that
proximately caused the plaintiff’s injury, and (4) caused actual damages or loss. Prudential Ins.
Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). “[M]erely inducing a contract
obligor to do what it has a right to do [under the subject contract] is not actionable interference.”
ACS Inv’rs, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). Accordingly, in order to prevail
on a claim for tortious interference with contract, the plaintiff must show the interference induced
an actual breach of the contract. See id. at 431; Serafine, 466 S.W.3d at 362-63; Eagle Oil & Gas
Co. v. TRO-X, L.P., 416 S.W.3d 137, 149 (Tex. App.—Eastland 2013, pet. denied); Fuenes v.
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Villatoro, 352 S.W.3d 200, 213 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); All Am. Tel.,
Inc. v. USLD Commc’ns, Inc., 291 S.W.3d 518, 532 (Tex. App.—Fort Worth 2009, pet. denied).
In this case, Assured Towing acknowledges the City had the right to suspend its agreement
with Assured Towing when Assured Towing was unable to provide proof of workers’
compensation coverage. Therefore, the City only did what it had the right to do under the
agreement. Accordingly, Assured Towing cannot establish a prima facie case on its tortious
interference claim relating to its agreement with the City.
Similarly, Assured Towing has not established by clear and specific evidence that Unique
Staff breached its contract with Assured Towing when it terminated the contract. Although
Assured Towing generally alleges in its petition that it would be justified in including claims
against Unique Staff for wrongfully terminating the contract, Assured Towing does not provide
“enough detail to show the factual basis for [such a] claim.” In re Lipsky, 460 S.W.3d at 591. For
example, Assured Towing does not set forth the provisions of the contract which Unique Staff
potentially breached. Although Assured Towing alludes to notice not being provided, Assured
Towing does not allege notice was required to be given under the contract’s provisions or that
Unique Staff breached the contract by not providing notice. Accordingly, Assured Towing failed
to satisfy its burden to show by clear and specific evidence a prima facie case for its tortious
interference claims.
B. Civil Conspiracy
“An action for civil conspiracy has five elements: (1) a combination of two or more
persons; (2) the persons seek to accomplish an object or course of action; (3) the persons reach a
meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts are
taken in pursuance of the object or course of action; and (5) damages occur as a proximate result.”
First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 2017). “An - 10 - 04-17-00006-CV
actionable civil conspiracy requires specific intent to agree to accomplish something unlawful or
to accomplish something lawful by unlawful means.” Id.
The Texas Supreme Court has recognized civil conspiracy “might be called a derivative
tort.” Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). “That is, a defendant’s liability for
conspiracy depends on participation in some underlying tort for which the plaintiff seeks to hold
at least one of the named defendants liable.” Tilton, 925 S.W.2d at 681. Because we have held
Assured Towing did not establish a prima facie cause on its tortious interference claim, which is
the underlying tort for which it sought to hold the Appellants liable, then it similarly failed to
establish a prima facie case on its civil conspiracy claim. See id.; see also Rio Grande H2O
Guardian, 2014 WL 309776, at *4.
CONCLUSION
Because the TCPA was applicable to Assured Towing’s claims but Assured Towing did
not establish by clear and specific evidence a prima facie case for its claims against the Appellants,
the trial court erred in denying the Appellants’ motions to dismiss. Therefore, we reverse the trial
court’s order and dismiss Assured Towing’s claims against the Appellants. The cause is remanded
to the trial court to determine the amount the Appellants should be awarded under section 27.009(a)
of the TCPA. See Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 20160 (holding TCPA requires
an award of ‘reasonable attorney’s fees’ to the successful movant); Farias, 426 S.W.3d at 820
(reversing trial court’s order denying motion to dismiss and remanding the cause for the trial court
to consider an award under section 27.009).
Marialyn Barnard, Justice
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