Affirmed and Memorandum Opinion filed February 23 , 202 3
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00426

- CV

PRIEUR LEARY III , Appellant

V.
COINMINT LIVING TRUS T AND ASHTON SONIAT , Appellee s

On Appeal from the 113th District Court

Harris County , T exas Trial Court Cause No. 2020

- 51173

MEMORANDUM OPINION Appellant Prieur Leary III appeals from an interlocutory order d enying his motion to dis miss filed pursuant to the Texas Ci tizens Participation Act ( “ TCPA ” )

. Tex. Civ. Prac . & Rem. Code § 27. 0 0 1, et seq. Because Leary failed to challenge every ground on which the trial court m a y have based its ruling, we affirm.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND Leary is president and manager of Mintvest Capital, LTD (“ Mintvest ”)

.2

Appellee Ashton Soniat (“ Soniat”) i s a trustee for and manages appellee Coinmint Liv ing Trust, LLC , ( “CLT”)

. The two c hild hood friend s , Lear y and Soniat , formed a c ompany together in the business of crypto currency mining. The company, Coinmint , LLC, was formed

o n August 22, 201 6 , and compr i sed of t w o members, Mintvest and CLT

. E ach member de signated a manager

– C L T d esig nated itself and Mintvest d e signated Leary. Leary signed the C oinmint operating agreement in his in dividual capacity as Mintvest ’ s manager.
O n December 5, 2019, C oinmint and CLT filed suit in Harr is County district
court against Leary based on a l l egati ons arising from the Coinmint operating agreement and the management and the business of Coinmint

. 1 In August 2020, Mintvest brought its own Harris County la wsuit (the underlying s uit) against CLT and Soniat

. Mintvest asserts claims for breach of

c o ntract , bre ach of fi duciary duty, conversion , and fraud based on allegations arising from the Coinmint ’ s operating agreement and the business of Coinmint

. October 1, 2 0 20, CLT and Soniat filed their f irst a me nded a nswer and

c ounterclaim against Mintve s t a nd Leary b as ed on factual allegations that Leary breached the operating agreement in various ways

. CLT and Soniat also included counterclaims for b reach of fiduciary du ty , c omm on l a w fraud , c onversion , m oney ha d and rec eived , u njust enrichment , Texas T hef t Liability Act , Texas Uniform Trad e Secrets Act , Federal Defend Trad e Secrets Act , and tortious i nterference

w ith a b usines s r elationship

. CLT an d Soniat also s ought a d eclaratory j udgme nt that Lear y owed a fiduciary dut y to Coinmint outside of the co n tra ct and sought

1 Leary fi led a special app eara nce in th at case w hich the t rial c ourt denied . Earli er this y e a r we affirmed that order

. Leary v. Coinmint, LLC , No. 14

- 20

- 0 0375

- CV, 2022 WL 1498197, at *5 (Tex. App.

— Houston [14th Dist.] May 12, 2022, no pet .)

.3

te mpora ry injuncti ve rel ief based on Leary ’ s alleged breaches o f contractual obligations under the operating agreemen t and fiduciary duties. The f irst a me nde d
p e tition a lso contained a certificate of serv ice indicating service to “ counse l of record by notice of electronic filing on October 1, 2020. ” Nearly fi ve month s later, on March 30, 2021, Leary filed a combined spe cial appearance and motion to dismiss und er t he TCPA

. The special appearance alleges t h at the court lacks jurisdiction ov er al l the counter claims asserted against Leary and the motion to dismis s targe t s all but the common law fraud counterclaims asserted by CLT and Soniat

. On July 2, 2021, a fter per mitting discovery on the TCPA motion , t h e trial
court held a hearing on the motio n

. Less than two weeks later Leary filed a notice of appeal contending that the trial court orally denied the TCPA motion at the July hea ring

. 2 The motion was denie d by operation of law on August 2, 2021, 3 and tw o days later the trial court signed an orde r den ying Leary ’ s TCPA motion to dismiss and award ing $ 50,7 9 9.61 in attorneys ’ fees to CLT and Soniat

. The re is no re cord from the hearing a nd no signed order gr ant ing or denying Lea ry ’ s spe cial
appearance

. 4

Lea r y appeals the trial court ’ s inte rlocutory o rder denying his motion to dismiss

. Tex. Civ. Prac. & Rem. Code § 51.014( a )( 12 )

.

2 There is no reporter ’ s re cord of the July 2 hearing, and thus we do not know whether the motio n was orally denied or not. As a result, we do not ass ume that the mot i o n was orally denied on July 2.

3 If there was no ruling on the motion to dismiss within 30 days of the hearing, then the motion is denied by operation of la w. Tex. Civ. Prac. & Rem. Code Ann. § 27.008 (a).

4 If the TCPA motion to dismiss was not denied u n t il August 2, then appellant ’ s notice of appeal was premat ure. However, the premature notice was deem ed filed and became effective
on A ugust 2, immediately after the motion was denied by operation of law . Tex. R. App. P. 27 .1(a).4 II. I SSUES RAISED ON A PPEAL Leary ’s n oti ce of a ppeal seeks to appeal the trial c ou rt ’s order denying his motion to di smiss under t h e TCPA

. Roman num eral “I ” of appellant ’ s b rief beg ins , however , with a discussion of laws applicable to an analysis of personal ju risdiction , followed by argument to support this con tention

– “ The State o f T exas does not possess personal juris diction over me in the extant matter ”

– and concludes wi t h the assertion, “ the pending action against me should prop erly be dismissed for a lack of personal jurisdiction, thereby leading to the rev ersal of the Trial C o urt ’s prior Order

. ” While his brief a rguab ly coul d be construed to assign error to an orde r d enying a challenge to personal jurisdiction, because no suc h order on personal jurisdict ion exist s in th e underlying case, and the court did rule on appellant ’ s TCP A motion, we conclude th at Leary fai led to prese r ve error on the issue in the underlying ca s e in violation of the due

- order

- of

- hearing requirement and made a gener al appearance

. S ee Glob. Paragon Dallas, LLC v. SB M Realty, LLC , 448 S.W.3d 607, 615 (T e x . A pp.

— Houston [14th Dist.] 2014,
no pe t.)

. 5

Ro ma n numeral “II ” of Leary ’s brief addresses t h e trial court ’s order denying his TCPA motion. Unlike h is TCPA motion which broadly sou ght to dismiss all but one of the counterclaims asse rted against him ( c o m mon law fraud ) , his brief on appea l onl y challenges the trial court ’s d enial of tha t motion wi t h respect to one potential TCPA “legal action ” , which he re fers to as “the gag order imp osed on me ” a nd “the court ’s decision to issue an in junction ”. In this s e cti on, Leary substantially discusses hi s own claims rather than any counter claims

5 Nota bly, the merits o f Lear y ’ s issue have already been addr essed by t his court in the related action

. P e rsonal jurisdiction is proper o ver Leary for the re asons stated in our previous decision

. S ee also Leary v. Coinmint, LLC , No. 14

- 20

- 00375

- CV, 202 2 WL 1498 197, at *5 (Tex. A pp.

— H ouston [14th Dist.] May 12, 2022 , no pet.)

.5

asserted a ga i nst him. Though Leary ’s brief pushes the margins of Rule 38. 1( i ), we liberally constru e it against finding of waiver , and interpret his br ief to challenge th e tri al court ’s TCPA denial with respect to CLT and S o niat ’s application for a temporary injun ct i on

. Tex

. R. App. P. 38.1(i).

II. L EARY ’ S M OTION TO D ISMISS As a threshold matter, t he party moving to dismiss cl aims asserted against it

mus t es tablish that th e TCP A applies. See Tex. Civ. Prac . & Rem. Code § 27. 0 05(b). To meet this burden, the movant mus t demonstrate that th e legal action is based on or is in response to the movant ’ s ex ercise of one or more of the ir rights to associate, speak fre ely, or petiti o n

. Id

. 6 If the movant meets its initial burden, the b u rden s hifts to the claimant either to est a blish by a prepon derance of the evidence that the legal action is exempt from the A ct, or to establ ish by “clear and specific evidence a pri ma facie case for e a ch e ssential element of the claim in question.” Id. § 27

. 00 5 (c) ; Bair Hilty, P.C. v. J.B. Hunt T ransp., Inc. , No . 14

- 20

- 00659

- CV, 2022 WL 1416661, at *2 (Tex. App.

— Houston [ 14th D ist.] May 5, 202 2, no pet.)

. If the nonmovant satisfies t hat requirement, t h e bur den shifts back to the movant to establish as a m atter of law any valid affirmative defense

. Tex. Civ. Prac . & Rem. Code § 27.005(d)

. Whether the parties have met these respective burdens is a quest ion of law that we review de novo

. See Dallas Mo r n ing New s, Inc. v. Hall , 579 S.W.3d 370, 373 (Tex. 2019)

. Given the state of the record , the argume n ts supporting and opposing the motion ra ised in the trial court, the trial court could have denied Leary ’ s TCPA

6 Althou gh all claims subject to t he motion were fi l ed after the 2019 TCPA amendments , Lear y has r e lied incorrectly on the appl icability of the prior version, including the less re strictive standard that i n c lude s “ relates to ” in the definition of Tex. Civ. Pr ac. & Rem. Code § 27.005(b)

.6

motion on a ny of three groun ds: (1 ) Leary f a i led to sho w by a preponderance of the evidence that CLT and Soniat ’ s claims for tempor ary injuncti o n are based on or in response to Leary ’ s exercise of the right of free speech or right to petition; ( 2 ) CLT and Soniat esta

blished by a prep onderance of th e evidenc e that its claims fall within the TCP A's commerc i al

- speech exemption or the exe mption for l e gal actions arising from an “ officer

- dir ector

. . . relationship

. . . to recover for misappropriation of tra de secrets and corporate opp ortun ities ” ; or ( 3 ) C L T and S oniat established by clear and specific evidence a prima facie case for each element of its application for temporary injunction

. We recently observed in the context of a TCPA motion to di smiss , th at “ if an appellant fails to challe nge all possi b l e grounds fo r a trial court's ruling, we must accept the v alidity of the unchallenged ground and aff i rm the adverse ruling.” Bair Hilty, P. C. v. J.B. Hunt Transp., Inc. , No. 14

- 20

- 00659

- CV, 2022 WL 1416661, at *2 (Te x. App.

— Houston [14th Dis t.] May 5, 20 2 2 , no pet. ) citing Equistar Chems., LP v. ClydeUnion DB, L t d. , 579 S.W.3d 505, 512 (Tex . App.

— Houston [14th Dist.] 2019, pet. denied)

. This rule e qually applies to an appellant ’ s failure to challenge the ap plicabilit y of an exemption. Bair Hilty, P.C. v

. J.B. Hunt Transp., Inc. , 2022 WL 1416661, at *2 ; see also Escondido Res. II, LLC v. La s Tinajas Mine r

als, Ltd. , No. 04

- 20

- 00132

- CV, 2020 WL 7753986, at *2 (Tex. App.

— San Antonio Dec. 30, 2020, no pet.) (mem . op.).
On appeal, Leary only addre ssed the tria l court ’ s i mplicit ruling that CLT ’ s and Soniat ’s claims fo r temporary injunction did not fall within t he scope of the TCPA. Leary does not co ntend that CLT and Soniat failed to show that their claims fell wit hi n an exe mption or that they fai led to show c l e ar and sp ecific evidence of a prima facie case for each e l ement of its action for temporary injuncti o n

. We cannot reasonably equate contentions in Leary ’ s brief

— that the7

resulting injunction is a “ violation of the TCP A ” or that the in juncti on “ prevents [ him] from properly seeking redress for the harm committed a gainst me ”

— as an attempt to addre ss the co u rt ’ s other two i mplicit rulings

. In light of Leary ’ s failure
to challenge the denial of his motion on the ground th at the trial court impl icitly

conc l u ded that on e or more of the exemptions preclude d applicatio n of the TCPA or that CLT and Soni at establ i shed a prima facie case, we overrule Lear y ’ s challeng e to trial court ’ s denial of his motion to dismiss.
III. C ONCL USION Having overruled ea ch issue a s serted by Lea ry , we affirm.

/s/ Randy Wilson Justice

P a nel consis ts of Justic es Jewell , Spain , a n d Wilson.