Affirm and Opinion Filed February 21, 2024

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-23-00605-CV

ACCESS FLOOR SPECIALISTS, INC. D/B/A ALLIED INTERIORS, 

Appellant

V.

REMREHOLDINGS, LLC, Appellee

On Appeal from the 366th Judicial District Court

Collin County, Texas

Trial Court Cause No. 366-03670-2022

MEMORANDUM OPINION

Before Justices Nowell, Miskel, and Kennedy

Opinion by Justice Nowell

Access Floor Specialists, Inc. d/b/a Allied Interiors appeals the trial court’s 

denial of its motion to dismiss the counterclaim filed by RemREHoldings, LLC. 

Appellant moved to dismiss appellee’s counterclaim for fraudulent lien pursuant to 

the Texas Citizens Participation Act (TCPA). The trial court did not rule on the 

motion timely, and it was denied by operation of law. See TEX. CIV. PRAC. & REM.

CODE ANN. § 27.008(a). In two issues, appellant argues the trial court erred by 

denying its motion to dismiss because appellee’s fraudulent lien counterclaim is 

based on or in response to appellant’s exercise of its right to petition and appellee 
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failed to provide clear and specific evidence of each element of its fraudulent lien 

claim. In response, appellee argues, among other things, that its counterclaim falls 

within the TCPA’s commercial–speech exemption.

1 We affirm.

FACTUAL BACKGROUND

In its first amended petition, appellant alleges it was hired by DBGC, LLC, a 

defendant in the case that is not a party to this appeal, as a “first-tier subcontractor 

to provide labor, materials, and work related to flooring” at a property in Frisco, 

Texas (the Property). Appellee owns the Property, and appellant performed work for 

appellee’s benefit. Although DBGC contracted to pay appellant for its labor and 

services, DBGC failed to pay appellant. Appellant alleges that appellee paid DBCG, 

and DBGC misappropriated the money when it failed to pay appellant.

On October 28, 2021, appellant filed a mechanic’s and materialman’s lien on 

the Property pursuant to Chapter 53 of the Texas Property Code; appellant filed an 

amended mechanic’s and materialman’s lien on August 11, 2022. Appellant sued 

appellee to foreclose the lien. In response, appellee filed a motion to remove the 

invalid or unenforceable lien because appellant failed to provide the requisite notice 

of the claim before filing the affidavits of lien and failed to timely file the affidavits 

 

1 Appellee also argues that appellant failed to meet its step-one burden to show the TCPA applies. We 

need not consider this argument before addressing the applicability of the commercial–speech exemption. 

See Temple v. Cortez Law Firm, PLLC, 657 S.W.3d 337, 346 (Tex. App.—Dallas 2022, no pet.) (“When a 

TCPA movant’s step-one burden and a nonmovant’s TCPA exemption are both disputed, we conclude that 

a court may consider a nonmovant’s exemption first, if it chooses to do so.”). 
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of lien, both of which are fatal. Appellee also asserted a counterclaim for fraudulent 

lien in which it claimed appellant knowingly filed an untimely lien. 

Appellant filed a second amended petition removing the claims previously 

asserted against appellee. Appellant also responded to appellee’s motion to remove 

the invalid or unenforceable lien, asserting the motion was moot because appellant 

filed a release of mechanic’s lien on December 22, 2022. Appellant then filed its 

motion to dismiss appellee’s fraudulent lien counterclaim pursuant to the TCPA. 

LAW & ANALYSIS

“The TCPA was designed to protect both a defendant’s rights of speech, 

petition, and association and a claimant’s right to pursue valid legal claims for 

injuries the defendant caused.” Montelongo v. Abrea, 622 S.W.3d 290, 295 (Tex. 

2021). To accomplish this objective, the TCPA “provides a three-step process for 

the dismissal of a ‘legal action’ to which it applies.” Id. at 295–96. However, the 

TCPA includes a commercial–speech exemption, which states the TCPA does not 

apply to:

a legal action brought against a person primarily engaged in the 

business of selling or leasing goods or services, if the statement or 

conduct arises out of the sale or lease of goods, services, ... or a

commercial transaction in which the intended audience is an actual or 

potential buyer or customer[.]

TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(a)(2).

The party seeking to rely on the commercial–speech exemption has the burden 

to prove its applicability by a preponderance of the evidence. Forget About It, Inc. 
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v. BioTE Med., LLC, 585 S.W.3d 59, 68 (Tex. App.—Dallas 2019, pet. denied); see 

also LaCore Enterprises, LLC v. Angles, No. 05-21-00798-CV, 2023 WL 2607562, 

at *6 (Tex. App.—Dallas Mar. 23, 2023, no pet.) (mem. op.). The supreme court 

established a four-part test for the application of the commercial–speech exemption. 

The TCPA does not apply to legal actions in which (1) the defendant was primarily 

engaged in the business of selling or leasing goods or services, (2) the defendant 

made the statement or engaged in the conduct on which the claim is based on in the 

defendant’s capacity as a seller or lessor of those goods or services, (3) the statement 

or conduct at issue arose out of a commercial transaction involving the kind of goods 

or services the defendant provides, and (4) the intended audience of the statement or 

conduct were actual or potential customers of the defendant for the kind of goods or 

services the defendant provides. Castleman v. Internet Money Ltd., 546 S.W.3d 684, 

688 (Tex. 2018). “[T]he commercial–speech exemption applies only to certain 

communications related to a good, product, or service in the marketplace —

communications made not as a protected exercise of free speech by an individual, 

but as commercial speech which does no more than propose a commercial 

transaction.” Id. at 690 (internal quotation omitted).

“[A]n affirmative allegation of facts, with no contrary evidence or denial of 

those facts, is sufficient to satisfy the elements of the commercial speech 

exemption.” Rouzier v. BioTE Med., LLC, No. 05-19-00277-CV, 2019 WL 6242305, 

at *4 (Tex. App.—Dallas Nov. 22, 2019, no pet.) (mem. op.) (citing Giri v. Estep, 
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No. 03-17-00759-CV, 2018 WL 2074652, at *4 (Tex. App.—Austin May 4, 2018, 

pet. denied) (mem. op.)).

When the text of the TCPA dictates the outcome of a case, we review the trial 

court’s ruling de novo. Angles, 2023 WL 2607562, at *6 (citing Creative Oil & Gas, 

LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 132 (Tex. 2019)). In our review, 

we consider “the pleadings, evidence a court could consider under Rule 166a, Texas 

Rules of Civil Procedure, and supporting and opposing affidavits stating the facts on 

which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.006(a); see also Angles, 2023 WL 2607562, at *6. 

Several courts have considered whether the commercial–speech exemption 

applies to fraudulent lien suits in the context of hospital liens. See Round Table 

Physicians Group, PLLC v. Kilgore, 607 S.W.3d 878, 886 (Tex. App.—Houston 

[14th Dist.] 2020, pet. denied); Sanders v. Bansal, No. 01-18-00508-CV, 2019 WL 

7341660 (Tex. App.—Houston [1st Dist.] Dec. 31, 2019, pet. denied) (mem. op.);

N. Cypress Med. Ctr. Operating Co. GP, LLC v. Norvil, 580 S.W.3d 280 (Tex. 

App.—Houston [1st Dist.] 2019, pet. denied); Berry v. ETX Successor Tyler, No. 

12-18-00095-CV, 2019 WL 968528, at *3 (Tex. App.—Tyler Feb. 28, 2019, no pet.) 

(mem. op.). We consider these cases persuasive because they examine the 

applicability of the commercial–speech exemption to liens arising out of commercial 

transactions.
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For example, in North Cypress, the First Court of Appeals considered a case 

wherein a medical facility filed a hospital lien on its patient’s pending causes of 

action against an alleged tortfeasor. See N. Cypress Med. Ctr. Operating Co., 580 

S.W.3d at 282. The patient filed a petition for declaratory judgment seeking a 

determination of the parties’ rights and a determination of what qualified as a 

reasonable charge for the services the hospital provided. Id. at 283. The hospital filed 

a TCPA motion to dismiss on the basis that the hospital’s filing of a lien constituted 

a communication made in the exercise of the hospital’s right of free speech and right 

to petition. Id. The patient argued the commercial–speech exemption applied. Id. 

The hospital responded that the exemption did not apply because its lien was not 

filed for the purpose of securing sales in goods or services, and the intended audience 

of the lien was not any actual or potential buyers or customers. Id. at 285-86. The 

court of appeals concluded the commercial–speech exemption applied. Id. at 287. 

The First Court of Appeals rejected the hospital’s first argument that its lien 

was not filed for the purpose of securing sales in services. See id. at 285–86. Under 

the court’s analysis, the hospital filed the lien to recover fees for services it rendered 

to the patient. Id. at 286. The hospital’s efforts arose out of the commercial 

transaction between the hospital and patient whereby the hospital provided services 

in exchange for a fee. Id. The hospital filed the lien “trying to get paid for the 

healthcare services it provided.” See id.
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The court also rejected the hospital’s argument that the intended audience of 

the lien was not its customer. Id. The court considered that a lien against a patient’s 

tort recovery is a claim against the patient, and the hospital functionally was making 

a demand on the patient to pay the amount owed. See id. (noting hospital liens 

against patients’ tort recoveries are claims against patients). Thus, the First Court of 

Appeals concluded the patient was a member of the intended audience. Id.

In the case before us, as to the first and second elements of the commercial–

speech exemption, appellant pleaded it is a construction subcontractor that provides 

labor, materials, and work related to flooring; as is relevant to this lawsuit, appellant

alleges it provided labor, materials, and work at the Property. Appellant filed a lien 

and an amended lien to recover money owed for the materials and services it 

furnished to appellee. Appellant then filed suit to foreclose the lien and collect the 

money it was owed for the goods and services it provided to appellee. Appellant 

acted in its capacity as a seller of goods and services when it sought to recover money 

it allegedly was owed. See id. We conclude appellant’s pleading is sufficient to 

satisfy the first two elements by a preponderance of the evidence. See Castleman, 

546 S.W.3d at 688 (listing elements); see also Rouzier, 2019 WL 6242305, at *4

(affirmative allegation of facts with no contrary evidence sufficient to satisfy 

elements of commercial–speech exemption). 

Regarding the third and fourth elements, appellant does not dispute it filed the 

lien and amended lien to secure payment for labor, materials, and work provided at 
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the Property. The intended audience of the lien and amended lien was appellee, a

customer to whom appellant provided services. Essentially, appellant was making a 

demand on appellee to pay the amount appellant alleges it was owed. See N. Cypress 

Med. Ctr. Operating Co., 580 S.W.3d at 286. Appellee was, therefore, a member of 

the intended audience of appellant’s statement. We conclude appellant’s pleading is 

sufficient to satisfy the third and fourth elements by a preponderance of the evidence. 

See Castleman, 546 S.W.3d at 688 (listing elements); see also Rouzier, 2019 WL 

6242305, at *4.

CONCLUSION

We conclude appellee established the four elements of the commercial–

speech exemption by a preponderance of the evidence. Therefore, the trial court did 

not err by denying appellant’s TCPA motion to dismiss. Given our determination 

that the TCPA does not apply, we need not consider whether appellee’s fraudulent 

lien counterclaim is based on or in response to appellant’s exercise of its right to 

petition or whether appellee provided clear and specific evidence of each element of 

its fraudulent lien claim. See TEX. R. APP. P. 47.1. We affirm the trial court’s order 

denying appellant’s TCPA motion to dismiss. 

230605f.p05

/Erin A. Nowell//

ERIN A. NOWELL

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ACCESS FLOOR SPECIALISTS, 

INC. D/B/A ALLIED INTERIORS, 

Appellant

No. 05-23-00605-CV V.

REMREHOLDINGS, LLC, Appellee

On Appeal from the 366th Judicial 

District Court, Collin County, Texas

Trial Court Cause No. 366-03670-

2022.

Opinion delivered by Justice Nowell. 

Justices Miskel and Kennedy 

participating.

In accordance with this Court’s opinion of this date, we AFFIRM the trial 

court’s denial of the motion to dismiss filed by Access Floor Specialists, Inc. d/b/a 

Allied Interiors, which was denied by operation of law. 

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 21st day of February, 2024.