Affirmed and Memorandum Opinion filed July 26, 2022.

In The

Fourteenth Court of Appeals

NO. 14-21-00331-CV

GRIFFITH TRUCK & EQUIPMENT, INC. AND BRUCE GRIFFITH, 

Appellants

V.

FLASH TANK SERVICES, INC., Appellee

On Appeal from the 55th District Court

Harris 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

This interlocutory appeal presents two familiar questions under the Texas 

Citizens Participation Act (“TCPA”): (1) whether appellants, the TCPA movants, 

established that the act applies to each challenged claim; and (2) if so, whether

appellee presented prima facie evidence in support of its claims.

We hold that appellants established that the TCPA applies to appellee’s 

promissory estoppel claim but not to its fraud and tortious interference claims. We 
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further hold that appellee established a prima facie case in support of its

promissory estoppel claim. Accordingly, we affirm the trial court’s order denying 

appellants’ TCPA motion to dismiss.

Background

Flash Tank Services, Inc. is a full-service large truck and trailer service 

company that repairs, inspects, washes, cleans, and stores waste from tractortrailers. According to Flash Tank, its business operation required a “large scale 

property” and “substantial infrastructure to service the large tractor-trailers.” 

In 2012, Flash Tank leased property from Bruce Griffith, who was also “in 

the trucking business” and owned Griffith Truck & Equipment, Inc. (“GTE”). The 

initial lease term was three years. Upon expiration of the lease in 2015, Flash Tank 

contacted Griffith about renewing the lease. Griffith allegedly assured Flash 

Tank’s owner, Mary Medina, that Flash Tank did not need a lease to operate on the 

property. Relying on Griffith’s assurances, Flash Tank made significant

infrastructure improvements to the property, which were necessary for the 

specialized nature of Flash Tank’s business.

In 2020, Griffith sent a notice of eviction to Flash Tank, giving Flash Tank 

thirty days to vacate the property. In the notice, Griffith stated: “You have been 

warned several times from the odor washing the tanks. This letter is to inform you 

that you have 30 days from the above date to evict the property. . . . This is not up 

for discussion.” Griffith then filed a petition for eviction in Harris County justice 

court. The justice court signed a judgment for possession of the leased premises in 

Griffith’s favor.

Flash Tank later learned that, “[d]uring the eviction,” Griffith and another 

party, Intra-Services, Inc., had contacted Flash Tank’s clients. According to Flash 
3

Tank, “[t]hose clients made clear that the Defendants intended to supplant Plaintiff 

and offer the same or similar services to Plaintiff’s clients.”

Flash Tank sued GTE, Griffith, and Intra-Services.

1 Flash Tank asserted 

claims for promissory estoppel, tortious interference, and fraud. Flash Tank sought 

injunctive relief and monetary damages.

GTE and Griffith filed a motion to dismiss under the TCPA. They argued 

that Flash Tank’s lawsuit was based on or in response to the eviction proceeding, 

which constituted an exercise of the right of free speech or to petition under the 

act. The movants further argued that Flash Tank could not establish a prima facie 

case for each essential element of its claims.

Flash Tank responded and attacked the motion on several grounds. Flash 

Tank asserted that its fraud claim was categorically exempted from the TCPA and 

that its promissory estoppel and tortious interference claims fell within the act’s 

commercial speech exemption. Flash Tank also contended that it could establish a 

prima facie case for its tortious interference and promissory estoppel claims. Flash 

Tank attached to its response an unsworn (but unsigned) declaration from Medina. 

According to Flash Tank, during the hearing the trial court granted leave to file a

signed affidavit. The day after the hearing, Flash Tank filed an affidavit signed by 

Medina. Appellants filed an objection to the affidavit, alleging that it was untimely

and otherwise insufficient to meet Flash 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. Civ. Prac. & Rem. Code § 27.008(a). GTE and 

Griffith now appeal.

1

Intra-Services is not a party to this interlocutory appeal.
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Analysis

A. Applicable law and standard of review

The TCPA protects citizens who associate, petition, or speak on matters of 

public concern from retaliatory lawsuits that seek to intimidate or silence them.

See In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). That

protection comes in the form of a “special motion to dismiss . . . for any suit that 

appears to stifle the defendant’s exercise of those rights.” Youngkin v. Hines, 546 

S.W.3d 675, 679 (Tex. 2018) (quotation omitted).

Reviewing a ruling on a TCPA motion to dismiss involves three steps. As a 

threshold matter, the movant must demonstrate that the TCPA applies. See Tex. 

Civ. Prac. & Rem. Code § 27.005(b). To meet this burden, the movant must show 

by a preponderance of the evidence that the legal action is based on or is in 

response to the movant’s exercise of one or more of the rights to associate, speak 

freely, and petition. Id. If the movant meets its initial burden, the burden then 

shifts to the nonmovant to establish by clear and specific evidence a prima facie

case for each essential element of its claim. Id. § 27.005(c). If 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 met these respective burdens is a question of law that we review de novo. See 

Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 373 (Tex. 2019).

Regarding the first step, appellants based their motion on the right of free 

speech and the right to petition. As defined in the TCPA, “exercise of the right of 

free speech” means “a communication made in connection with a matter of public 

concern.” Tex. Civ. Prac. & Rem. Code § 27.001(3). A “matter of public 

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

or public person; a matter of political, social, or other interest to the community; or 
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“a subject of concern to the public.” Id. § 27.001(7). “Exercise of the right to 

petition” includes “a communication in or pertaining to . . . a judicial proceeding.” 

Id. § 27.001(4)(A)(i). “Communication” is statutorily defined and includes “the 

making or submitting of a statement or document in any form or medium, 

including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1); see also

Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018) 

(statutory definition of “communication” covers “[a]lmost every imaginable form 

of communication, in any medium”).

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

In the trial court, appellants 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 

successful eviction proceeding. Appellants also contended that their 

communications to Flash Tank’s clients constituted an exercise of the right of free 

speech. 

We agree with appellants that Flash Tank’s promissory estoppel claim is 

based on or in response to Griffith’s eviction proceeding. Flash Tank’s pleading 

alleged that Griffith promised Flash Tank could operate without a lease but 

breached that promise by evicting Flash Tank from the property. Griffith’s 

eviction petition is a “communication in or pertaining to . . . a judicial proceeding.” 

Tex. Civ. Prac. & Rem. Code § 27.001(4)(A)(i). Thus, Flash Tank’s pleading 

establishes that its promissory estoppel claim is based on or in response to 

appellants’ exercise of the right of petition and therefore is subject to the TCPA’s 

requirements.2 See Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (“When it is 

2 For purposes of this appeal, we adopt the parties’ practice of referring to Griffith and 

GTE in the collective.
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clear from the plaintiff’s pleadings that the action is covered by the Act, the 

defendant need show no more.”).

We disagree, however, with appellants’ contention that Flash Tank’s tortious 

interference claim was based on or in response to the eviction proceeding.

3

 Flash 

Tank’s petition alleged that appellants telephoned Flash Tank’s existing clients to 

solicit or inform those clients that Intra-Services was replacing Flash Tank’s 

operations on the leased premises. Although Flash Tank alleged that it learned of 

these communications “[d]uring the eviction,” the communications were not 

alleged to have been made as part of the judicial eviction proceeding and thus do 

not themselves constitute an exercise of the right of petition. The nexus between 

the alleged client communications and the eviction proceeding is insufficient to 

conclude that the tortious interference claim is based on or in response to Griffith’s 

exercise of his right to petition.

4

 The trial court did not err in denying the motion 

as to Flash Tank’s tortious interference claim.

Finally, we note that the TCPA does not apply to Flash Tank’s fraud claim, 

and the trial court did not err in denying the motion as to that claim. See Tex. Civ. 

Prac. & Rem. Code § 27.010(a)(12) (“This chapter does not apply to . . . a legal 

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

3

In their motion, appellants referred to a prior version of the TCPA: “Because it was 

filed in response to the Griffith Defendants’ eviction and forcible detainer action, even Flash 

Tank’s tortious interference claims relate to the Griffith Defendants’ right to petition.” 

(Emphasis added.) The legislature amended the TCPA in 2019, omitting the phrase “relates to”

from the act. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 2-3, 2019 Tex. Sess. Law 

Serv. 684, 685 (noting removal of “relates to” in sections 27.003(a) and 27.005(b) in the 2019

amendments). We thus consider the narrower question of whether Flash Tank’s tortious 

interference claim was based on or in response to a TCPA-protected right. See Tex. Civ. Prac. & 

Rem. Code § 27.005(b).

4 Although appellants also argued below that the communications underlying Flash

Tank’s tortious interference claim constituted an exercise of the right of free speech, they do not 

advance that argument on appeal. Accordingly, we cabin our analysis to appellants’ right-topetition argument.
7

In conclusion, we hold that appellants established that the TCPA applies 

only to Flash Tank’s promissory estoppel claim. The burden then shifted to Flash

Tank to show that a statutory exemption applied or to establish a prima facie case 

for each essential element of that claim. In the trial court, Flash Tank argued that 

the commercial speech exemption applied and, alternatively, that Flash Tank’s

evidence established a prima facie case for its promissory estoppel claim.

C. Did Flash Tank establish a prima facie case?

Because it is dispositive, we address only whether Flash Tank met its burden 

to establish by clear and specific evidence a prima facie case for each essential 

element of its promissory estoppel claim. Tex. Civ. Prac. & Rem. Code 

§ 27.005(c). In Lipsky, the Supreme Court of Texas held that presenting “clear and 

specific evidence” of “each essential element” of a claim means that “a plaintiff 

must provide enough detail to show the factual basis for its claim.” Lipsky, 460 

S.W.3d at 591. A “prima facie case” means evidence that is legally sufficient to 

establish a claim as factually true if it is not countered. Id. at 590. In other words, 

“prima facie” generally refers to the amount of evidence that is sufficient as a 

matter of law “to support a rational inference that an allegation of fact is true.” Id.;

see also Schimmel v. McGregor, 438 S.W.3d 847, 855 (Tex. App.—Houston [1st 

Dist.] 2014, pet. denied).

Under Texas law, the elements of promissory estoppel are: (1) a promise; 

(2) foreseeability by the promisor of reliance on the promise; and (3) substantial 

reliance by the promisee to his detriment. See Collins v. Walker, 341 S.W.3d 570, 

573-74 (Tex. App.—Houston [14th Dist.] 2011, no pet.); Boales v. Brighton

Builders, Inc., 29 S.W.3d 159, 166 (Tex. App.—Houston [14th Dist.] 2000, pet. 

denied). To show detrimental reliance, a plaintiff must show that she materially 
8

changed her position in reliance on the promise. See English v. Fischer, 660 

S.W.2d 521, 524 (Tex. 1983).

We begin by addressing a threshold procedural issue concerning Flash

Tank’s evidence. Flash Tank relied upon Medina’s declaration to substantiate its 

claim, but the copy of the declaration attached to its TCPA response was unsigned. 

The day after the hearing, Flash Tank filed an affidavit signed by Medina. In a 

letter to the judge that attached a file-stamped copy of the affidavit, Flash Tank’s 

counsel represented:

Plaintiff timely filed its Response to Defendant’s TCPA Motion 

to Dismiss coupled with an unsworn declaration on April 19, 2021. 

On the day of the hearing and for the first time, the Defendants alerted 

the Court (and ostensibly, Plaintiff) that the unsworn declaration was

unsigned.

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 corrected document on or before noon 

the day following the hearing. Plaintiff complied.

(Emphasis added; internal 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. The clerk’s record before us contains a copy of the signed 

affidavit filed the day after the hearing. Although appellants filed an objection to 

the trial court’s consideration of the signed affidavit because it was untimely, they 

did not dispute that the judge had granted Flash Tank leave to file the affidavit

during the hearing, as represented in Flash Tank’s letter. 

On appeal, appellants contend that the trial court could not consider the 

“untimely” affidavit because “there is no Reporter’s Record to substantiate [Flash

Tank’s] request [for leave]” and because “the Clerk’s Record does not reveal an 
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order granting leave to late file.” A party responding to a TCPA motion to dismiss 

“shall file the response, if any, not later than seven days before the date of the 

hearing on the motion to dismiss unless otherwise provided by an agreement of the 

parties or an order of the court.” Tex. Civ. Prac. & Rem. Code § 27.003(e) 

(emphasis added). Thus, section 27.003(e) simply says the response shall be filed 

not later than seven days before the hearing date, unless otherwise provided by 

court order. See id. Appellants do not cite, nor have we found, any authority 

holding that leave of court to file late TCPA evidence must be granted in a written 

order, or that we presume untimely evidence appearing in the record was not 

considered by the trial court absent a written order granting leave. This court 

recently said that “[w]ithout a hearing record,” as here, “we cannot assess whether 

the parties agreed to or the trial court allowed a late-filed response. We presume 

that the omitted portions of the record are relevant to the disposition of the appeal 

and that they support the trial court’s order denying the motion to dismiss.” KIPP, 

Inc. v. Grant 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 

that late-filed response to TCPA motion was presumably authorized).

Accordingly, we presume that the omitted portions of the record support Flash 

Tank’s unchallenged assertion that the trial court granted leave to file the signed 

affidavit. Further, based on section 27.003(e), we conclude that the trial court did 

not abuse its discretion in considering Medina’s affidavit.

We next consider the content and sufficiency of Flash Tank’s proof. In her 

affidavit, Medina asserted: that Griffith promised her that she could stay on the 

property forever and that she did not need another lease after the initial lease term 

expired; that Medina relied on Griffith’s promises and “would not have placed 

[her] substantial business interests at risk without the assurances and 
10

representations of Mr. Griffith”; and that Medina lost her business when Griffith 

evicted Flash Tank from the property.

The only element of promissory estoppel that appellants challenge on appeal

is Flash Tank’s detrimental reliance, and so we limit our discussion to that element. 

According to appellants, “Flash Tank has not set forth any facts showing its change 

in position based on any representation from Griffith.” But Medina’s affidavit

makes clear that Flash Tank did materially change its position, from operating on 

the property with the protection of a lease to operating without such protection and 

by adding significant infrastructure improvements to the property. Accord, e.g., 

Moore v. Altra Energy Techs., Inc., 321 S.W.3d 727, 740 (Tex. App.—Houston

[14th Dist.] 2010, pet. denied) (evidence was sufficient to show detrimental 

reliance when witnesses testified that plaintiff would not have agreed to deal with 

third party absent defendant’s promise to provide funding). Flash Tank’s evidence 

therefore is sufficient in this regard, and appellants have not shown that the trial 

court erred in denying the motion to dismiss.

5

Conclusion

We affirm the trial court’s order.

/s/ Kevin Jewell

Justice

Panel consists of Justices Jewell, Zimmerer, and Hassan.

5 Because we conclude that Flash Tank met its evidentiary burden under the TCPA, we 

need not consider its alternative argument that the commercial speech exemption applies. See

Tex. R. App. P. 47.1.