AFFIRMED and Opinion Filed December 2, 2020 

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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 AN D 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) appeal s from the trial court’s deni al of her Texas Citizens Participation Act (TCPA or the Act) motion to di smiss the lawsuit filed against her by Lawainna Pa tterson, Gid Porter, Porterhous e Production, LLC, and GAP Marketing Group, LLC (collectively Patterson). In thre e issues, Vaughn generally asserts the trial cour t erred in denying her motion b ecause the Act applies to the claims against her, Patterson failed to establish a prim a facie case for each cause of action against her, and Vaughn established viable affi rmative defenses against Patterson’s claims e ntitling Vaughn to judgment as a ma tter of law. For the–2– reasons that follow, we conclude the Act does not apply to clai ms 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 c onnection with the motion, Vaughn is an actor who, along with several other ac tors, contracted with Patterson for two performances in Tyler, Texas, of a play co-wr itten by Patterson and entitled, “Sleeping with the E nemy.” Patterson alleges Vau ghn and the other actors failed to perform as agr eed, breaching their contracts. 1 Patterson further alleges that Vaughn posted stateme nts and videos that were defa matory to Patterson, and made slanderous and libelous s tatements that defamed the re putations of plaintiffs. Patterson also a lleged Vaughn violated the Texas D eceptive Trade Practices Act. Vaughn moved to dismiss the lawsuit pursuant to the TCPA asser ting that Patterson’s legal acti on was “based on or is in response to” Va ughn’s exercise of the right of free speech or right of association because the claims are premised on Vaughn’s “alleged statements, repr esentations, and refusals det ailed in Plaintiffs’ Original Petition.” Patterson filed a response to the motion a rguing, among other

1 The first Tyler performance took place as scheduled. The secon d 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.–3– things, the Act did not apply to her claims. According to Patt erson, the communications or activities upon which her claims are based ar e 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 co urt agreed with Patterson and signed an order denying the motion to dismiss. V aughn filed this appeal.
ANALYSIS In her first issue, Vaughn contends Patterson’s claims arise fr om Vaughn’s exercise of the rights of free speech and association relating to a matter of public concern. As support for her cont ention, Vaughn asserts her sta tements and actions “concerned the quality and timelin ess of the public performance of a theatrical work authored and produced by a limited purpose public figure and ma rketed to the public in Texas, Louisiana, and Oklahoma.” We review de novo a trial court’s ruling on a TCPA dismissal mo tion. 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 constitu tional rights of persons to petition, speak freely, associate freely, and otherw ise participate in government to the maximum extent permitted by law and, at the s ame time, protect the rights of a person to file meritorious lawsuits for demonst rable injury.” T EX

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. 2 In essence, the Act protects citizens from retaliatory lawsuits that seek to silence or intimidate them fr om 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 T EX

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. C ODE §§ 23.003(a); 27.005(b). As rele vant here, this initial burde n is met if Vaughn demonstrates the legal action is based on or in response to, he r 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 t he right of association” as “to join together to collectively express, promote, pursue, or defend common interes ts 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 activ ity regarding: (A) a public official, public figure, or other person who has d rawn 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 com munity; 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 Oc tober 18, 2019. Thus, the current ver sion of the law with 2019 amendments applies to this action. All citations to the T CPA are to the current version unless otherwise indicated.–5– (C) a subject of concern to the public. Id . § 27.001(7). In analyzing whether or not the Act applies to a claim, we star t by determining the basis of the legal action as set forth in the plaintiff’s p leadings, 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 418802 8, 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 per form the second Tyler show and statements she made following the show’s announc ed cancellation. At the dismissal hearing, Patterson introduced into evidence a video Vaughn posted on Instagram in which Vaughn expr essed her frustration and apol ogized to her fans over the cancellation of the pe rformance, stating the following : The craziest thing in the world t hat has ever happened to me in my career of doing this just happene d tonight. I am dressed . . . still have on my clothes for act one, for this play, make-up made . . . Th ey just fucking cancelled the show that was supposed to start at 8:00 a nd its now like 9:00 and they cancelled the show and just told the aud ience. Obviously, they had some internal business shit that was happen ing, 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 s ee me because I posted about th e show . . . . Sorry, y’all. As stated above, Vaughn argues her communications and actions r elate 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 i n the marketplace.–6– In its 2019 amendments, the legi slature redefined “[m]atter of public concern” with the intent to narrow its sc ope as set forth in the remarks of Senators Kirk Watson and Bryan Hughes printed in the Senate Journal by unanimous con sent. See S.J. of Tex., 86th Leg., R.S. 2023–24 (Ma y 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 d oes in this regard? Senator Hughes: Happy to. Under current law, lawyers and judge s can apply the definition to almost any type of human activity. * * * Under the bill, the issue must be some thing that matters to the publi c at large, such as statements about public figures and statements about po litical and social issues. The tests for what counts as a matter of pu blic concerns are taken from the 2011 U.S. Supreme Court case, Snyder v. Phelps . * * * The public figure issue is taken from a recent Californ ia Supreme Court case called Filmon v. Double Verify . California’s antiSLAPP statute is older than ours and is considered the model, a fter it was also reformed some years a go. This is very important becau se the statute will have established jurisprudence to guide Texas cour ts on how to apply the new law. State ments in a public protest again st government policy, for example a re 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 t o what’s a public concern? Senator Hughes: Yes. Id . In Snyder , the United States Supreme Court has stated that communication s 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–7– legitimate news interest; that is, a subject of general interes t 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 charac ter of a statement is irrelevant to the question of whe ther 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 gener al 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 tho se in the audience who had paid to see it. Vaughn cites no authority to support h er contention that “the quality and timeliness of the public performance of a theatrica l work” in general is a matter a public concer n as defined by the Act and case law. Moreover, there is no evidence that the general public , or even the local Tyler creat ive community and art patrons at large were affected by or concerned with the cancell ation of this single performance. At the heart of this matter is whether the actors breached thei r contracts to perform the second Tyler show and the cause of the second Tyler show’s cancellation. Vaughn’s actions and communications regarding on e isolated performance that did not go on as scheduled is simply not a sub ject of legitimate news interest; that is, a subject of general interest and of va lue and concern to the public. See id . at 453.–8– In reaching our conclusion, we reject Vaughn’s contention that her communications and actions involve matters of public concern be cause 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 participa nts in the controversy are likely to feel t he impact of its resolution; (2) the plaintiff must have more than a trivial or tangential r ole 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 p roducer of the play, as well as Patterson’s decision to give a thirty-minute intervi ew on YouTube in November 2019, after she filed this lawsuit agains t Vaughn and others. We do not agree these facts make Patterson a limited purpose public-figur e 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, an d of value and concern to the public at large. Thus, Vaughn has failed to establis h the first prong of the McLemore test. Finally, Vaughn contends that the TCPA applies to Patterson’s c laims against her because Vaughn’s statements c oncerned a service in the mark etplace. Although–9– the legislature’s 2019 amendments to the Act specifically remov ed issues related to “a good, product, or service in the market place” from the defi nition of “matter of public concern,” 3 Vaughn nevertheless asserts “the re is no indication of Legisla tive intent to narrow the TCPA’s scope to exclude discussion pertain ing to services in the marketplace.” Given the legislature’s express decision to remove the language, we disagree. But even if we a greed broadly with Vaughn that an issue related to service in the market place could still be a matter of public c oncern 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 definitio n. Because Vaughn has not est ablished the cancellation of a single performance was a matter of public con cern, 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 f irst 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

3 The former statute provided a “Matter of public concern” inclu des 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. Ge n. Laws 961–64, amended by Act of May 24, 2013, 83d Leg., R.S., ch. 10 42, 2013 Tex. Gen. Laws 2499–25 00.–10– established a prima facie case for each cause of action, and (3 ) whether Vaughn established an affirmative defe nse 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 cla ims are not based on or in response to Vaughn’ s exercise of the right of fr ee speech or right of association. Thus, Vaughn’s statements and actions are not pro tected by the Act. We therefore affirm the trial court’s order denying Vaughn’s mo tion to dismiss pursuant to the TCPA.

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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 tria l court’s order denying appellant’s “Motion to Dism iss Pursuant to the Texas Ci tizens Participation Act” is AFFIRMED

. It is ORDERED that appellees Lawainna Patte rson, Gid Porter, Porterhouse Production, LLC, and Gap Marketi ng Group, LLC recover their cos ts of this appeal from appellant T erri J. Vaughn-Riley.
Judgment entered December 2, 2020.–12–