AFFIRMED and Opinion Filed December 2, 2020 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-20-00236-CV 

TERRI J. VAUGHN-RILEY, Appellant 

V. 

LAWAINNA PATTERSON, GID PORTER, PORTERHOUSE 

PRODUCTION, LLC AND GAP MARKETING GROUP, LLC, Appellees 

On Appeal from the 101st Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-19-16947 

MEMORANDUM OPINION 

Before Justices Myers, Nowell, and Evans 

Opinion by Justice Evans 

Terri Vaughn-Riley (Vaughn) appeals from the trial court’s denial of her 

Texas Citizens Participation Act (TCPA or the Act) motion to dismiss the lawsuit 

filed against her by Lawainna Patterson, Gid Porter, Porterhouse Production, LLC, 

and GAP Marketing Group, LLC (collectively Patterson). In three issues, Vaughn 

generally asserts the trial court erred in denying her motion because the Act applies 

to the claims against her, Patterson failed to establish a prima facie case for each 

cause of action against her, and Vaughn established viable affirmative defenses 

against Patterson’s claims entitling Vaughn to judgment as a matter of law. For the 
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reasons that follow, we conclude the Act does not apply to claims asserted against 

Vaughn. Accordingly, we affirm the trial court’s order denying the motion to 

dismiss. 

BACKGROUND 

 According to Patterson’s pleadings and the evidence filed in connection with 

the motion, Vaughn is an actor who, along with several other actors, contracted with 

Patterson for two performances in Tyler, Texas, of a play co-written by Patterson 

and entitled, “Sleeping with the Enemy.” Patterson alleges Vaughn and the other 

actors failed to perform as agreed, breaching their contracts.1

 Patterson further 

alleges that Vaughn posted statements and videos that were defamatory to Patterson, 

and made slanderous and libelous statements that defamed the reputations of 

plaintiffs. Patterson also alleged Vaughn violated the Texas Deceptive Trade 

Practices Act. 

 Vaughn moved to dismiss the lawsuit pursuant to the TCPA asserting that 

Patterson’s legal action was “based on or is in response to” Vaughn’s exercise of the 

right of free speech or right of association because the claims are premised on 

Vaughn’s “alleged statements, representations, and refusals detailed in Plaintiffs’ 

Original Petition.” Patterson filed a response to the motion arguing, among other 

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The first Tyler performance took place as scheduled. The second performance was canceled over the 

theater’s public address system one hour after it was scheduled to begin. The audience received ticket 

refunds. Patterson asserts other actors and Vaughn refused to perform the second show causing the 

cancellation. 
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things, the Act did not apply to her claims. According to Patterson, the 

communications or activities upon which her claims are based are not a matter of 

public concern, but rather Vaughn’s attempt to shift the blame for the cancellation 

of the second Tyler performance. After a hearing, the trial court agreed with 

Patterson and signed an order denying the motion to dismiss. Vaughn filed this 

appeal. 

ANALYSIS 

In her first issue, Vaughn contends Patterson’s claims arise from Vaughn’s 

exercise of the rights of free speech and association relating to a matter of public 

concern. As support for her contention, Vaughn asserts her statements and actions 

“concerned the quality and timeliness of the public performance of a theatrical work 

authored and produced by a limited purpose public figure and marketed to the public 

in Texas, Louisiana, and Oklahoma.” 

We review de novo a trial court’s ruling on a TCPA dismissal motion. See 

Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019). The express 

purpose of the TCPA “is 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.
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CIV. PRAC. & REM. CODE § 27.002.

2

 In essence, the Act protects citizens from 

retaliatory lawsuits that seek to silence or intimidate them from exercising their 

rights in connection with matters of public concern. In re Lipsky, 460 S.W.3d 579, 

584 (Tex. 2015). (orig. proceeding). 

To obtain dismissal under the Act, the movant has the threshold burden to 

establish the Act applies to the claims against her. See TEX. CIV. PRAC. & REM.

CODE §§ 23.003(a); 27.005(b). As relevant here, this initial burden is met if Vaughn 

demonstrates the legal action is based on or in response to, her exercise of the right 

of free speech or right of association. See id. §§ 27.005(b)(1)(A);(C). 

 The Act defines “[e]xercise of the right of free speech” as “a communication 

made in connection with a matter of public concern.” Id. § 27.001(3). Similarly, 

the Act defines “[e]xercise 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.” Id. § 27.001(2). “Matter 

of public concern,” in turn, is defined as a statement or activity regarding: 

(A) a public official, public figure, or other person who has drawn 

substantial public attention due to the person’s official acts, fame, 

notoriety, or celebrity; 

(B) a matter of political, social, or other interest to the community; or 

 2

 The Texas Legislature amended the TCPA effective September 1, 2019. Those amendments apply to 

“an action filed on or after” that date. Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex. Sess. 

Law Serv. 684,687. This lawsuit was filed on October 18, 2019. Thus, the current version of the law with 

2019 amendments applies to this action. All citations to the TCPA are to the current version unless 

otherwise indicated. 
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(C) a subject of concern to the public. 

Id. § 27.001(7). 

In analyzing whether or not the Act applies to a claim, we start by determining 

the basis of the legal action as set forth in the plaintiff’s pleadings, which is the “best 

and all-sufficient evidence of the nature of the action.” RigUp, Inc., v. Sierra 

Hamilton, LLC, No. 03-19-00399-CV, 2020 WL 4188028, at *3 (Tex. App.—Austin 

July 16, 2020, no pet.) (citing Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017)). 

Patterson’s claims are based on Vaughn’s alleged refusal to perform the second 

Tyler show and statements she made following the show’s announced cancellation. 

At the dismissal hearing, Patterson introduced into evidence a video Vaughn posted 

on Instagram in which Vaughn expressed her frustration and apologized to her fans 

over the cancellation of the performance, stating the following: 

The craziest thing in the world that has ever happened to me in my 

career of doing this just happened tonight. I am dressed . . . still have 

on my clothes for act one, for this play, make-up made . . . They just 

fucking cancelled the show that was supposed to start at 8:00 and its 

now like 9:00 and they cancelled the show and just told the audience. 

Obviously, they had some internal business shit that was happening, 

and they just cancelled the show, and I am floored. And I just want to 

apologize to anybody that came on my behalf; they came out to see me 

because I posted about the show . . . . Sorry, y’all. 

As stated above, Vaughn argues her communications and actions relate to matters of 

public concern because they (1) pertained to Patterson, who she claims is a limited 

purpose public figure, (2) involved the quality and timeliness of the public 

performance of a theatrical work, and (3) concerned a service in the marketplace. 
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In its 2019 amendments, the legislature redefined “[m]atter of public concern” 

with the intent to narrow its scope as set forth in the remarks of Senators Kirk Watson 

and Bryan Hughes printed in the Senate Journal by unanimous consent. See S.J. of 

Tex., 86th Leg., R.S. 2023–24 (May 17, 2019). In relevant part, the senators engaged 

in the following dialogue: 

Senator Watson: . . . I just want to ask a couple of questions to establish 

some legislative intent. You mentioned that the bill tightens the 

definition of public concern. Will you explain what the bill does in this 

regard? 

Senator Hughes: Happy to. Under current law, lawyers and judges can 

apply the definition to almost any type of human activity. * * * Under 

the bill, the issue must be something that matters to the public at large, 

such as statements about public figures and statements about political 

and social issues. The tests for what counts as a matter of public 

concerns are taken from the 2011 U.S. Supreme Court case, Snyder v. 

Phelps. * * * The public figure issue is taken from a recent California 

Supreme Court case called Filmon v. Double Verify. California’s antiSLAPP statute is older than ours and is considered the model, after it 

was also reformed some years ago. This is very important because the 

statute will have established jurisprudence to guide Texas courts on 

how to apply the new law. Statements in a public protest against 

government policy, for example are covered by the definition. 

Statements made in private matters to a limited group of people would 

not be covered by the definition. 

Senator Watson: So if Texas courts look to Snyder v. Phelps and related 

cases, they’ll be guided as to what’s a public concern? 

Senator Hughes: Yes. 

Id. In Snyder, the United States Supreme Court has stated that communications are 

matter of public concern when they can ‘be fairly considered as relating to any matter 

of political, social or other concern to the community’ or when it ‘is a subject of 
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legitimate news interest; that is, a subject of general interest and of value and concern 

to the public.’” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal citations 

omitted). “The arguably ‘inappropriate or controversial character of a statement is 

irrelevant to the question of whether it deals with a matter of public concern’” Id. 

(quoting Rankin v. McPherson, 483 U.S. 378, 387 (1987). 

Here, there is nothing to suggest that the cancellation of the second 

performance of a play in Tyler, Texas, was the subject of general interest and of 

value and concern to the public. At best, the cancellation may have been a concern 

to those who were associated with the play’s production and those in the audience 

who had paid to see it. Vaughn cites no authority to support her contention that “the 

quality and timeliness of the public performance of a theatrical work” in general is 

a matter a public concern as defined by the Act and case law. Moreover, there is no 

evidence that the general public, or even the local Tyler creative community and art 

patrons at large were affected by or concerned with the cancellation of this single 

performance. 

At the heart of this matter is whether the actors breached their contracts to 

perform the second Tyler show and the cause of the second Tyler show’s 

cancellation. Vaughn’s actions and communications regarding one isolated 

performance that did not go on as scheduled is simply not a subject of legitimate 

news interest; that is, a subject of general interest and of value and concern to the 

public. See id. at 453. 
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 In reaching our conclusion, we reject Vaughn’s contention that her 

communications and actions involve matters of public concern because they related 

to Patterson who she claims was a limited–purpose public figure. To establish 

Patterson as a limited-purpose public figure, Vaughn relies on the three-part test 

recited in WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). That test 

requires: 

 (1) the controversy at issue must be public both in the sense that people 

are discussing it and people other than the immediate participants in the 

controversy are likely to feel the impact of its resolution; 

(2) the plaintiff must have more than a trivial or tangential role in the 

controversy; and 

(3) the alleged defamation must be germane to the plaintiff’s 

participation in the controversy. 

Id. at 571. Vaughn relies on Patterson’s status as cowriter and producer of the play, 

as well as Patterson’s decision to give a thirty-minute interview on YouTube in 

November 2019, after she filed this lawsuit against Vaughn and others. We do not 

agree these facts make Patterson a limited purpose public-figure relative to 

statements made and actions taken by Vaughn a year earlier. As stated above, 

Vaughn’s statements and actions related to a single performance of a play rather than 

a subject of general interest, and of value and concern to the public at large. Thus, 

Vaughn has failed to establish the first prong of the McLemore test. 

Finally, Vaughn contends that the TCPA applies to Patterson’s claims against 

her because Vaughn’s statements concerned a service in the marketplace. Although 
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the legislature’s 2019 amendments to the Act specifically removed issues related to 

“a good, product, or service in the market place” from the definition of “matter of 

public concern,”3

 Vaughn nevertheless asserts “there is no indication of Legislative 

intent to narrow the TCPA’s scope to exclude discussion pertaining to services in 

the marketplace.” Given the legislature’s express decision to remove the language, 

we disagree. But even if we agreed broadly with Vaughn that an issue related to 

service in the market place could still be a matter of public concern under the 2019 

amendments to the Act, in order to find such, the movant would still need to show 

that the issue related to the service in the marketplace was a matter of public concern 

under the Act’s current definition. Because Vaughn has not established the 

cancellation of a single performance was a matter of public concern, she has failed 

to demonstrate the Act applies to Patterson’s suit against her. Accordingly, the trial 

court did not err in denying her motion. We resolve Vaughn’s first issue against her. 

Having concluded Vaughn failed to demonstrate the TCPA applies to the 

claims asserted against her, we need not address her remaining issues regarding (1) 

whether any of Patterson’s claims were exempt from the Act, (2) whether Patterson 

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 The former statute provided a “Matter of public concern” includes an issue related to: 

(A) health or safety; 

(B) environmental, economic, or community wellbeing; 

(C) the government; 

(D) a public official or public figure; or 

(E) a good, product, or service in the marketplace. 

Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961–64, amended by Act of May 

24, 2013, 83d Leg., R.S., ch. 1042, 2013 Tex. Gen. Laws 2499–2500. 
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established a prima facie case for each cause of action, and (3) whether Vaughn 

established an affirmative defense entitling her judgment as a matter of law on any 

of the claims. 

CONCLUSION 

Based on the record before us, we conclude that Patterson’s claims are not 

based on or in response to Vaughn’s exercise of the right of free speech or right of 

association. Thus, Vaughn’s statements and actions are not protected by the Act. 

We therefore affirm the trial court’s order denying Vaughn’s motion to dismiss 

pursuant to the TCPA. 

 

 

200236F.P05 

 

/David Evans/ 

DAVID EVANS 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

TERRI J. VAUGHN-RILEY, 

Appellant 

No. 05-20-00236-CV V. 

LAWAINNA PATTERSON, GID 

PORTER, PORTERHOUSE 

PRODUCTION, LLC AND GAP 

MARKETING GROUP, LLC, 

Appellees 

 On Appeal from the 101st Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-19-16947. 

Opinion delivered by Justice Evans, 

Justices Myers and Nowell 

participating. 

 In accordance with this Court’s opinion of this date, the trial court’s order 

denying appellant’s “Motion to Dismiss Pursuant to the Texas Citizens 

Participation Act” is AFFIRMED. 

 It is ORDERED that appellees Lawainna Patterson, Gid Porter, Porterhouse 

Production, LLC, and Gap Marketing Group, LLC recover their costs of this 

appeal from appellant Terri J. Vaughn-Riley. 

Judgment entered December 2, 2020. 
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