Affirmed and Memorandum Opinion filed July 2 6 , 2022.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00331

- CV

GRIFFITH TRUCK & EQU IPMENT, INC. AND BRUCE GRIFFITH , Appellant s
V. FLASH TANK SERVICES, INC. , Appellee

On Appeal from the 55th District Cour t Ha rris County, Texas Trial Court Cause No. 2021

- 09778

M E M O R A N D U M O P I N I O N

T his i nterlocutory appeal presents two famil iar questions under the T exas Citize ns Participation Act ( “ T CPA ” ) : (1) whether appellants, the TCPA movants
, establi sh ed that the act applie s to each challenged claim ; and (2) if so
, whether appellee presented prima facie evidence in support of its claims

. We hold t hat appellants established that the TCPA applies to appel lee ’ s promissory estoppel claim but not to its fr aud and t ortious interference claims. We2

furth er hold that appel lee established a prima facie case in support of its promissory estoppel claim. Accord ingly, we affirm the trial court ’ s order denying appellant s ’ TCPA mot ion to dismiss.
Background

Flash Ta nk S ervices, In c. is a full

- service large truck and trailer service

company that repairs, inspects, washes, cleans , and stores waste from tra ctor

trailers. Ac cording to F lash Tank, its bu siness operation required a “ larg e scale property ” and “ substantial infr astructure to service the large tractor

- trailers. ”

In 201 2, Flash Tank leased property from Bruce Griffith , who was also “ in the trucking b usiness ” and owned Griffith Truck & Equipment , Inc. ( “ GTE ” )

. The
initi a l lease term was three years . Upon exp ir at ion of the lease in 201 5, Flash Tank
contacted Griffith about renewing the lease. G riffith al legedly assured Flash
Tank ’ s owner, Mary Medina, that Flash Tank did not need a lea se to opera te on the property

. Relying on Griffith ’ s assurances, Flash Tan k ma de significant infrastructure improvements to the property , which were necessary for the specializ ed nature of Flash Tank ’ s bu siness.
In 2020, Griffith se nt a notice of eviction to Flash T ank, giving Flash Ta n k thirty days to vacate the property. In t he n otice, Griffith stated : “ You have been warned several times from the odor washing the tanks. This letter is to inform you

t hat you have 30 days from the above date to evict the property. . . . This is not u p for discussion. ” Griffith then filed a p etit ion for eviction in Harris County justice

court. The justice court signed a judgment for possession of the leased premises in
Griffith ’ s favor.

Flash Tan k later learned that
, “ [d]uring th e eviction, ” Griffit h and a nother party, Intra

- Services, Inc., h ad c ontacted Flas h Tank ’ s c lients. According to Flash3

Tank, “ [t]hose clients made clear that the De fendants intended to supplant Plaintiff
and offer the same or similar services to Plaintiff ’ s clients. ”

F lash Tan k sued GT E , Griffith, and In tra

- Services

. 1 Fla sh Tank assert ed claims for promissory esto ppel
, torti ous inter ference , and fraud . Flash Tank sought injun ctive relief and monetary damages.

GTE and Griffith filed a motion to dismiss und er the TCPA. They ar g ued
that Flash Tank ’ s lawsuit was based on or in response to the eviction pro ceed ing
, which constituted an exercise of the right of free speech or to petition under the

act. The movants further argued that Flash Tank cou ld n ot establish a prima f acie

cas e for each essential e lement of its claims.

Fla sh Tank r e s p o n d e d a n d attacked the motion on se veral grounds. Flash
Tank ass erted that its fraud claim was categorica lly exempted from the TCPA and
that its promissory estoppel and tortious inter feren ce claims fell within the act ’ s commercial s peech e x emp tion

. Flash Tank also contended that it could e stablish a prima facie case for its tortiou s inte rference and promissory estop pel claim s

. Fl ash Tank attached to its respo nse an unsworn ( but u nsigned) declaration from Medi na

. According to Flash Tank, duri ng the hearing the tria l court granted leav e to file a

s igned affidavit

. The day after the hea ring, Flash Tank filed a n affidavit signed by
M edi na

. Appellants filed an o bjection to the affidavit, alleg ing that it was untimely
and otherwise ins uffic ie nt t o meet Fla sh Tank ’ s prima facie burden

. The trial court did not rule on the movants ’ TCPA motion, so it was denied by operation of law. See Tex. C iv. Prac. & Rem. Code § 27.008(a). GTE and Griffith now appeal.

1 Intra

- Services is not a party to this inte rlocutory appeal.4 Analysis

A. Applicable law and sta ndar d of review
The TCPA protects citizens who associate, petiti on, or speak on ma tters of public concern from retaliatory lawsuits that seek to intimidate o r silence them. See In re Lipsky , 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). That protec tion comes in t he form of a “special motion to dismiss .

. . for any suit that

app ears to stifle the defendant ’ s exercise of those rights .” Youngkin v. Hine s , 546 S.W.3d 675, 679 (Tex. 2018) (quotation omitted).
Reviewing a ruling on a TCPA motion to dism iss in volves three steps. As a threshold matter, the movant must demonstrat e that the TCPA applies. See Tex. Civ. Prac. & Rem. Code § 27.005(b). T o meet this burden, the movant must show by a preponderance of the evidence that the legal action is based on o r is in response to the mov ant ’ s exercise of one or more of the rights to as so ciate, speak freely, and petition. Id. If the movant meets its initia l burden, the burden then shifts to the nonmovant to establish by clear and specific evidence a prima f acie
case for each essential e l ement of its claim. Id. § 27.005(c). I f the nonmovant satisfies that requirement, the burden shifts back to the movant to establish as a matter of law any valid affirmative defense. Id. § 27.005(d). Whether the parties
have m e t these res pective burdens is a question of law that we review de novo. See
D a llas Morning News, Inc. v. Hall , 579 S.W.3d 370, 373 (Tex. 2019).
Regard ing the first step, appella nts based their motion on the right of free speech and the right to petition

. As def ined in the TCPA, “ e xercise of t he right of free sp eech” means “ a communication made in connection with a matter of public

concern

. ” Tex. Civ. Prac. & Rem. Code § 27 .001( 3)

. A “ m atter of public

concern ” means : a statement or activity regarding a public offi cial
, public figure
,

or public person ; a matter of poli tical, social, o r other interest to th e communit y ; or5

“ a subject of concern to the pu blic. ” Id. § 27.001(7 ). “ E xercis e of the right to petition” includes “ a communication in or pertaining to .

. . a judicial proceeding.”
Id. § 27. 00 1( 4)(A)(i). “ C ommunication” is statutorily defined and includes “the making or submitting of a statement or document in any for m or medium,
includi ng oral, visual, written, audiovisual, or electronic.” Id. § 2 7.001(1 ); s ee also Adams v. Starside Custom Builders, LLC
, 547 S.W.3d 890, 89 4 (Tex. 2018) (statu tory definit ion of “communication” covers “[a]lmost every imagina ble form
of communication, in a ny medium ”).

B. Do es the act apply to Flash Tank ’ s claims?

I n the tr ial court , a ppellants argued primarily that Flash Tank ’ s entire legal action was a retaliatory suit based on their exercise of the right of petition

— i.e.
, the

suc cessful evi ction proceeding

. Appella nts also contended that their
communi cations to F lash Tan k ’ s clients constituted an exercise of the right of free speech.
We agree with appellants that Flash Tank ’ s promissory estoppel claim i s based on or i n response to Griffith ’ s eviction proceeding

. Flash Tank ’ s pleading
al leged that Griffith prom i sed F las h Ta nk could operate without a lease but breached that pro mise by evict ing Flas h Tank from the pr operty. Griffith ’ s eviction petitio n is a “ communicat ion in or pertaining to . . . a judicial proce eding.”
Tex. Civ. Prac. & Rem. Code § 27.001(4)(A ) (i). Th us, Flash Tank ’ s pleading
establish es that its promissory estoppel clai m is based on or in response to appellants ’ exercise of the right of petition and therefore is subje ct to the TCPA ’ s requirements. 2 See Hersh v. Tatu m , 526 S.W.3d 462, 46 7 (Te x . 2017) ( “ Wh en it is

2 Fo r pu rposes of this appeal, we adop t the part ies ’ practice of referring to Griffith and GTE in the collective

.6

clear from the plaintif

f ’ s pleadings that the action is covered by the Act, the
defendant need show no more. ” ).
We disagree, however, with appellant s ’ contenti on that Flash Tank ’s tortious
interfer en ce claim was based on or in re spons e to the e vic tion proceeding

. 3 F lash
Tank ’s petition alleged that appellants telephoned Flash Tank ’s existing clients to
solicit or inform those clients that Intra

- Services was rep lacing Flash Tank ’s operations on the leased prem ises. Alt hough Flash Tank alleged that it learned of
these communicati ons “ [d]uring the eviction, ” the communic ations were n ot alleged to have been made as part of the judicial eviction proceeding and thus do
not themselves con stitute a n exercise of the right of p etiti on. T he nexu s betw een the alleged c lient com muni cations and the eviction proceeding is insu fficient to
conclude that the torti ous interference claim is b ased on or in response to Griffith ’ s exercise of his right to petition

. 4 T he t ria l court did not err in denyin g th e motion
as to Flash Tank ’ s tor tio us inter fer ence claim.
Finally, we note that the TCPA does not ap ply to Flash Tan k ’ s fraud claim, and the trial court did not err in denying the motion as to th at claim. See Tex. Civ.
P rac . & Rem. Code § 27.0 10(a)(12) ( “ T his chapter does not apply to . . . a legal

a ction based on a common law fraud claim. ” ).

3 In their motion, appellants refer red to a pr ior version of the T CPA: “ Because it was filed in response to the Griffith De fendants’ eviction and for cible detainer ac t ion, even Fl ash Tank’s tortious interf

erence claims relate to th e Griffith De fendants’ right to petition. ” (Emphasis added .) The leg is lature amende d the TC PA in 2019, omitting t he phrase “ relates to ” fr om the a ct

. See Act of May 17 , 20 19, 86th Leg., R. S ., c h. 378, §§ 2

- 3, 2019 Tex. Sess. La w Serv. 684, 685 (noting r emoval of “relates to” in sections 27.003(a) and 27.005(b) in the 2019 amendments)

. We th us consider the narrower question of whether Flash Tank ’s tor tious interference clai m w as based on or in resp onse to a TCPA

- protected right

. See Tex. Civ. Prac. & Rem. Code § 27.005(b).

4 Although appellants also argued below t hat the communications und erlying F lash Tank ’ s tortious interference claim constituted an exercise of the ri ght of free speech, they do not ad vance that argument on app eal . Accordingly, we ca bin our analysis to appellant s ’ right

- to

petition argument.7

In conclus ion, we hold that appellants establ ished that the TCPA applies only to Flash Tank ’ s promissory estoppel cl aim . The burd e n t hen shifted to Flash
Tank to show that a statutory exe mption applied or to est ablish a prima facie case
for each essential element o f that claim. In the trial court , Flash Tank argued that the commercial speech exemption applied and, a lternatively, that Flash Tank ’ s evidence establis hed a prima faci e case for its promissory estoppe l claim.

C. D id Flash Tank establish a prima facie case?
Because it is dispos i tive , w e address only wh ether Flash Tank met its b urden

to establish by clear and specific evidence a prima facie case for each e ssen tial
element of its pr omissory estoppel claim

. Tex. Civ. Pr ac. & Rem. Code § 27.005(c)

. In Lipsky , the Supreme Court of Texas held that presenting “clear and specific ev idence” of “each essential element” of a claim means that “a plaintiff must provi de e nough detail to show th e factual basis fo r its claim.” Lips ky , 460
S.W.3d at 591. A “prima facie case” means evidence that is legally su fficient to
estab lish a claim as factually true if it is not countered. Id. at 590. In other words, “prima facie ” ge nerally refers to the amount of evidence that is sufficient as a matter of law “to sup port a rational inference that an allegation of fact is true.” Id. ; see also Schimme l v. McGre gor , 438 S.W.3d 847, 855 (Tex. App.

— Houston [1st Dist.] 2014, pet. deni ed ).
Under Texas law, the elements of promiss ory estoppel are : (1) a promise; (2) foreseeability by the promisor of reliance on the promise ; and (3) substanti al reliance by t he promise e to his detriment. See Collins v. Walker , 341 S.W.3d 570,
573

- 74 (Tex . Ap p.

— Houston [14th Dist.] 2011, no pet.) ; B oales v. Brighton
B uilders, Inc. , 29 S.W.3d 159, 166 (Tex. App.

— Houston [14th Dist.] 2000, pet.
d enied ). To show detrimental reli ance, a pl ainti ff must show that s he materially8

changed her posit ion in reliance on t he promise. See English v. Fischer , 660
S .W.2d 521, 524 (Te x. 1983)

. We begin by add ressing a thr eshold procedural issue concerning Flash
Tank ’ s evidence

. Flash Tank relied upon M edina ’ s declaration to substanti ate its
claim , but the copy of the decl arat ion attached to its TCPA response was unsigned

. The day afte r the h earing, Flash Tank f iled a n affidavit signed by Medi na. In a letter to the judge that atta ched a fil e

- stamped copy of the affidavit, Fla sh Tank ’ s counsel represented :

Plaintiff timely fil ed its Response to Defendant’s TCP A Motion to Dismiss coupled with an unsworn declaration on April 19, 2021. On the day of the hearing and for the first time, th e Defendants alerted the C ourt (and ostensibly, Plaintiff) that the unswor n declaration wa s
un signed. Cleary, the timely filing of the unsworn declaration, but without a signature was an administrative error. As such, Respondent/Plaintiff sought leave of Court to file the correcte d document on or before noon the day following the hearing. Pla inti ff complied. (Emphas is added; inte rnal footnote omitted.)

Flash Tank asserted in its letter to the court that it sought leave during the hearing to file a signed copy of the affidavit before noon the next day, and that Flash Tank complied. T he clerk ’ s rec ord be fore us contains a copy of th e signed
affidavit filed the day after the hearing. Although appellants filed an objection to
the trial cou rt ’ s consideration of the signed affidavit be cause it was untimely
, they
di d not dispute that the judge had g rant ed Flash T ank leave to fi le the affid avit during the hearing
, as represented in Flash Tank ’ s letter

. On appeal, a ppellants cont end that the trial court c ould not consider th e

“ untimely ” affidavit because “ there is no Reporter’s Record to substantiate [ Fl ash
Tank ’ s] request [for leave] ” and because “ the Clerk’s Record does not reveal an9

order granting leave to late file. ” A party responding to a TCPA motion to dism iss “shall file the respon se, if any, not l ater than seven days before the date of the
h eari ng on the motion to dismiss unless otherwise provided by an agreement of the parties or an order of the co urt .” Tex. Civ. Prac. & Rem. Code § 27.003(e) (emphasis a dded). Thus, s ection 27.003(e) s imply says the response shall be filed

not l ater than s even days before the hearing date, unless otherwise provided by

court order

. See id. Appellan ts do not cite, nor have w e found, any authority holding that leave of court to fil e late TCPA evidence must be granted in a wri tten order , or that we presume untime ly evidence appearing in the record was not considered by the trial court absent a w rit ten order granting leave

. This co urt recently said that “ [w] ithout a hearing record, ” as here, “ we cannot a ssess whether the pa rtie s agreed to or the trial court allowe d a late

- filed response. We presume that the omitted portions of the re cord are relevant to the dispositio n of the appeal
and that t hey support the trial court ’ s order denying the motion to dism iss. ” KIPP,
Inc. v. Gra nt Me the Wisdom Found., Inc. , No. 14

- 20

- 00727

- CV, 2022 WL 1789815, at *6 (Tex. App.

— Houston [14th Dist.] June 2, 2022
, pet. filed ) (holding
tha t late

- filed response to T CPA motion was presumably authorized )

. Accordingly, we presum e that the omitted p orti ons of the record support Flash
Tank ’ s unchallenged assertion that the trial co urt granted leave to file the si gned
aff idavit

. Further, based on section 27.003(e), w e conclude that the trial court did
not abuse its discretion in c onsidering Medi na ’ s a ffid avit.

We ne xt consider the content an d sufficiency of Flash Tank ’ s proof

. In her
aff idavit
, Medi na a sserted : that Griffith promised her that she could st ay on the property forever and that she did not need a nother lease after the initial l ease term

e xpir e d; that Medi na relied on Griffith ’ s promis es and “ would not have placed [her] sub stantial business interests at risk without the assurances and10

representa tions of Mr. Griff ith ” ; an d that Medina lost her business when Griffith
evi c ted Flash Tank from t he p roperty.

T he only element of promis sory e stoppel that appel lants challenge on appeal
is Flash Tank ’ s det rimental reliance , and so we limit our discussio n to that element

. Accord ing to appellants
, “ Flash Tank has not set forth an y facts showing its c hang e in position based on any representa tion f rom Griffith

. ” Bu t Medina ’ s affidavit
makes clear that Flash Tank did materially change its position, fro m operating on the propert y w ith the protection of a lease to operating without such prot ection and by add ing sign ificant infrastructure improve ments to th e property

. Accor d , e.g. , Moore v. Altra Energy Techs., Inc. , 321 S.W.3d 727, 740 (Tex. App.

— Houston [14th Dist.] 2010
, pet. d eni ed ) ( evidence was suff i cient to s how detrimental
reliance wh en wi tne sses testifie d th at plaintiff would not have ag reed to dea l with third party absent defendant ’ s promise to provide funding). Flash Tank ’ s eviden ce therefore i s suffici ent in this regar d
, and appella nts have not shown that the trial
court erred in denying the motion to dis miss

. 5

C onclusion

We affirm th e trial co u rt ’ s order.

/s/ Kevin Jewell Justice

Panel consist s of Justices Jewell, Zimm ere r, and Hassan.

5 Because we conc lude that Flash Tank met its evidentiary burden under the TCPA, we need not consider its altern a tiv e a rgument that the commercial speec h exemption applies. See Tex. R. App. P. 47.1.