Opinion issued December 1 7 , 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 18 - 00919 - CV

——————————— HONG PHUOC NGO AND DUYEN NGOC DANG , A ppe lla nt s V. ASSOCIATION OF WOODWIND LAKES HOMEOWNER, INC. , Appell e e

On Appeal fro m the 190th District Court

Harris County, Texas Trial Court Ca se No. 2018 - 38662

DISSENTING OPINION The pre

- amendment TCPA is a beast that, from the start, has been in ne e d of

a corral, if not a cage. But this result goes beyond any permissible interpreta tion of the statutory term “common” or the related right of association ; therefore, I respectfully dissent

.2

When the first TCPA cases began to work their way through the a p pellate
process

— less than ten years ago

— courts gaped at the expansive language of th e
statute but dutifully explained that it was not the judiciary’s role to interpret an extremely broad statute in a restrictive way. See Better Bus. Bureau of Metro. Houst o n, Inc. v. John Moore Servs., Inc. , 441 S.W.3d 345, 353 (Tex. App.

— Houston [1st Dist .] 2013, pet. denied). It was the Legislature’s job to craft a statute that accompli shed what it had intended. And it was the judiciary ’s job to apply the ordinary meaning of the words chosen by the Legislature. This, we did. Predictably, word of the expa nsiveness of the statute spread, and litigants began filing TCPA dismissal motions in cases arising under virtually every area of the law , at times when there was only a w i sp of public participation in volved . There have been TCPA motions filed in cases inv olving complex commercial litigation, theft of intellectual property , damages for criminal acts, discipline of lawyers, and family law d isputes. And the courts have held t h at the TCPA, indeed, applied, relying on the broad wording of the statute. At times, judges have called on the Legislature to amend the statute so that its tentacles would no longer reach into every imaginable area of la w and so that the

ever - growing numb e r of TCPA interlocutory appeals would no longer burden t he appellate courts’ caseloa d. See , e.g. , Serafine v. Blunt , 466 S.W.3d 352, 364

– 65 (Tex. App.

— Austin 2015, no pet.) (Pemberton, J., concurring).3

T he Legislature eventually amended the TCPA , but bef o re that amendment came into effect , t he Texas Supreme Court reimagined the reach of the statute and became more stringent in its analysis of whether defendants seeking the protections of the TCPA were exercising the rights defined in the statute. Compare C reative Oil & Gas, LLC v. Lona Hills Ranch, LLC , 591 S.W.3d 127 (Tex. 2019) (inter pr eting the TCPA more strictly than in past cases to conclude that private communications argued to implicate the TCPA free

- speech protections had to have public relevance beyond the pecuniary interests of the private parties involved) , with ExxonMobil Pip el ine Co. v. Coleman , 512 S.W.3d 895, 899 (Tex. 2017) (per curiam) (more freely accepting that the TCPA applied broadl y to private communications). Around the same time, a n intermediate appellate court held that a “common” interest no longer meant common t o the parties involved; it must be common to the public at large, so that two tortfeasors who join together no longer trigger ed the TCPA’s right of association. Compare Ka w cak v. Antero Resources Corp. , 582 S.W.3d 566, 569 (Tex. App.

— Fort Worth 2019, pet. de nied) , with Elite Auto Body LLC v. Autocraft Bodywerks, Inc ., 520 S.W.3d 191, 198

– 206 (Tex. App.

— Austin 2017, pet. dism’d) ( relying heavily on Texas Supreme Court preced e nt to hold that alleged tortfeasors’ theft of trade secrets trigger ed the right of a ss ociation under the TCPA )

.4

Soon after Kawcak , this Court was called on to decide whether anoth er set of tortfeasors met the pre

- amendment TCPA’s right

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- association sta n dard. We noted that Kawcak involved only two tortfeasors and that the case before us i nvolved five. Gaskamp v. WSP USA, Inc. , 596 S.W.3d 457, 473 (Tex. App.

— Houston [1st Dist.] 202 0, pet. dism’d) (en banc). And we further noted that “ Kawcak left unanswere d whether allegations of three or more tortfeasors acting together . . . for their ow n benefits fit [ ] the definition of ‘ common. ’ ” Id. We held they did not. Id. at 475

– 76. We interpreted the TCPA term “common” as “of or relating to a community at large: pu b lic” and held that the tortfeasors’ “conduct and communications, involved in misappr o p riating [a former employer’s] trade secrets and conspiring to commit related torts, b enefitted only the five alleged tortfeasors,” did not relate to “any public or commu n ity interests,” and, thus, did not trigger the TCPA right

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association protection. I

d. I joined that decision, fully agreeing that a group of ex

employees accused of tor tiously using trade secrets we re not exercising the statutory right of association in the TCPA. I n my view , interpreting the TCPA right of association to exclude t or tfeas ors furthering their own pecuniary interests reaches the limit of how the judiciary can and should corral this statute. The Gaskamp holding focus ed on th e terms of the
statute , though interpreting them more narrowly with in creased scrutiny of the
express p urposes the statute was intended to serve. See id. ; see also Newpark Mats5

& Integrated Servs., LLC v. Cahoon Enter s ., LLC , 605 S.W.3d 671, 677 , 679

– 80 (Tex. App.

— Houston [1st Dist.] 2020, no pet.) ( after noting that TCPA balance s protected r ig hts against p laintiffs’ abi lity to pursue litigation to right a wrong , holding that private business dispute with no public or community interest did not trigger TCPA ri g ht of association ). For any additional restrain t , we must wait for the cases to arri ve that will be decided under the Legislature’s 2019 amendments that narrowed the TCPA ’ s scope . Instead, the majority has chosen to aggressively app l y Gaskamp to declare that members of an actual association

— a neighborhood associatio n

— are not exercising their right of a ssociation. This goes too far. See Amy Bresnen , et al. , Targeting the Texas Citizen Pa rti ci pation Act: The 2019 Texas Legislature’s Amendm e nts to a Most Consequential Law , 52 St. Mary’s L.J. 1, 6 (2020) (listing a confl ic t between neighborhood association and city over development as example of strategic lawsuit against public participation)

. We should not justify an absurd reading of a sta t ute to achieve a result, even if it is a result that we suspect the Legislature now might support. See Creative Oil & Gas , 591 S.W.3d at 133

. And we must be mindful of how the majority’s result could be applied in future cases. In its desire to star v e the beast of the TCPA, the majority holds that a whole neighborhood does not q ual ify as “public.” But a neighborhood assoc iation is a form of smal l self

government. See In re Keenan , 501 S.W.3d 74, 75

– 76 (Tex. 2016); Inwood North6

Homeowners’ Ass’n, Inc. v. Harris , 736 S.W.2d 632, 633

– 634 (Tex. 1987). If a neighborhood association is no t “ public ” under the TCPA, nothing preven ts a statewide associati on or a nationwide association from oppressing public participation through the legal system. It is always p ossible to note those outside a group and declare that the group is not large or pu blic enough. If every dispute, no
matter the nature or how many p eople are involved, can be viewed as a private matter implicating only private economic interests, the TCPA becomes hollow. And contrary to the majority’s assertion, the property

- enjoymen t i nterests at stake here are no t merely eco nomic; they are non - economic as well , as is much of what neighborhood associations regulate. See Chiarini v. State , 442 S.W.3d 318, 319 (Tex. Crim. App. 2014) (legal right to possess firearms in common area); Cen teq Realty, Inc. v. Siegler , 8 99 S.W.2d 195, 196

– 97 (Tex. 1995) (security of residents in common areas) . Regardless, e ven economic issues can have dramatic effects on public p a rticipation. Shelley v. Kraemer , 334 U.S. 1, 4 (1948) (suit to enforce restricti ve covenants excluding property ownership or occupancy by “any person not of the Caucasian race”)

. Gaskamp held that tortfeasors acting in their pecuniary interest s do not imp l icate the TCPA right of association. Gaskamp , 596 S.W.3d at 476. That holding does not dictate the result he re . T he majority opinion goes too far in hol ding that a neighborhood association ’s collective action t o “enforce” its restrictions “for the7

common benefit” of its members alon g with the member s ’ responsive communication to and amon g the association and rel ated conduct do not “involve any manner of public or citizen participation

. ” This interpretation is at odds with the words of the statute

. I would hold that the TCPA applies t o the Association’s suit against the Ngos and was in re s ponse to the exercise of their right of association . I would conclude, on this record, that the Association failed to point to any breach by the Ngos of their deed restrictions and was thus unable to meet its burden of making a prima facie case for each e lement of its brea ch

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- c ontract claim . B ecause I believe the majority stretches Gaskamp beyond what the statutory language of the TCPA will bear, I respectfully dissent.

Sarah Beth Landa u Justice Panel consists of Justices Keyes, Lloyd, a nd Landau. Justice Landa u, dissenting.