# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04

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- CV MISSION WRECKER SERVICE, S.A., INC. , Alanis Wrecker Service, Alanis Wrecker Service, Inc., Alejandro L. Alanis, Eric Wilhite, and Jim Champion, Appellants
v. ASSURED TOWING, INC. , Appellee From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2015

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- 18598 Honorable Gloria Salda ñ a, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Just ice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice Delivered and Filed: August 2, 2017 REVERSED AND REMANDED Appellants Mission Wrecker Service , S.A., Inc., Alanis Wrecker Service, Alanis Wrecker Service, Inc., Alejandro L. Alanis, Eric Wilhite, and Jim Champion appeal the trial court’s order denying their motions to dismiss filed pursuant to the Texas Citizens Participation Act also known as the anti

- SLAPP statute. Appellants contend the trial court erred in denying their motions because the claims asserted by appellee Assured Towing, Inc. against them were based on, related to, or were in response to the Appellants’ exercise of the right of fre e speech or the right to petition. Appellants further contend Assured Towing failed to establish by clear and specific evidence a04

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- prima facie case for each essential element of its claims or, alternatively, the Appellants established by a preponderance of the evidence each essential element of their justification defense. We reverse the trial court’s order, dismiss Assured Towing’s claims against the Appellants, 1 and remand the cause for further proceedings. B ACKGROUND Because both the trial court and t his court are required to consider the pleadings and evidence in the light most favorable to Assured Towing, the following summarizes facts from Assured Towing’s pleadings. See Watson v. Hardman , 497 S.W.3d 601, 609 (Tex. App.

— Dallas 2016, no pet.); Hicks v. Group & Pension Administrators, Inc. , 473 S.W.3d 518, 526 (Tex. App.

— Corpus Christi 2015, no pet.); Schlumberger Ltd. v. Rutherford , 472 S.W.3d 881, 892 (Tex. App.

— Houston [1st Dist.] 2015, no pet.); Serafine v. Blunt , 466 S.W.3d 352, 369 n.28 (Tex. Ap p.
— Austin 2015, no pet.); see also Rio Grande H2O Guardian v. Robert Muller Family P’ship Ltd. , No. 04

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— San Antonio Jan. 29, 2014, no pet.) (mem. op.) (noting “[u]nlike other types of cases where pleadings are n ot considered evidence, section 27.006 . . . expressly provides” that “we may consider the pleadings as evidence”). Assured Towing and the City of San Antonio were parties to a Municipal Wrecker Services Agreement pursuant to which Assured Towing provided towing services for the City. After Assured Towing sought a rate review pursuant to the terms of the agreement, Assured Towing began receiving complaints from the City; however, Assured Towing continued providing services under the agreement. Under the terms of its agreement with the City, Assured Towing was required to have workers’ compensation coverage for its employees. To satisfy this requirement, Assured Towing

1 Assured Towing also asserted claims in the underlying cause against Mike Slater. Slater did not file a motion to dismiss and is not a party to this appeal.04

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- contracted with Unique Staff Leasing III, Ltd. to provide employee payroll services, in cluding the provision of the required workers’ compensation coverage. Unique Staff subsequently sued Assured Towing on a past debt after Unique Staff’s president was informed by Mike Slater and Jim Champion that the City intended to suspend its agreemen t with Assured Towing. Slater was the broker who referred Assured Towing to Unique Staff and who received a commission on the payments Assured Towing made to Unique Staff. Slater learned Assured Towing’s agreement with the City was in jeopardy from Eric Wilhite during a meeting with Wilhite and Alejandro L. Alanis. Wilhite informed Slater that a City employee informed him that Assured Towing’s agreement with the City was likely to be suspended due to nonperformance. Both Wilhite and Alanis are associate d with Alanis Wrecker Service. Champion is an employee of Mission Wrecker Service, S.A., Inc. Slater or Champion also provided Unique Staff with the name of the attorney who represented Unique Staff in its lawsuit against Assured Towing. In addition to suing Assured Towing, Unique Staff also retroactively terminated its contract with Assured Towing, immediately eliminating its workers’ compensation coverage. Assured Towing was current with its payment obligations under the contract but was in arrears o n an agreement the parties had entered into requiring Assured Towing to retire a past debt it owed to Unique Staff. In its lawsuit, Unique Staff sought and obtained a temporary restraining order requiring the City to deposit all payments made to Assured T owing under the terms of their agreement into the registry of the court. Champion obtained a copy of the TRO and delivered it to the City. Around the same time, a City employee demanded that Assured Towing provide the City with proof of its workers’ comp ensation coverage. When Assured Towing was unable to provide proof, the City suspended its agreement with Assured Towing. While the agreement was suspended, Alanis04

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- Wrecker Service provided the towing services Assured Towing would otherwise have provided until Assured Towing provided proof of coverage to the City and the agreement was reinstated. 2 Assured Towing sued the Appellants for tortious interference with its contracts with Unique Staff and the City and for conspiracy. As previously noted, the App ellants filed motions to dismiss pursuant to the Texas Citizens Participation Act. Approximately fifteen minutes before the hearing scheduled on the motions, Assured Towing filed a response to which it attached additional evidence. At the hearing, the Ap pellants objected to the evidence attached to the response as being untimely and inadmissible. The trial court sustained the objections and took the motions under advisement. The trial court later signed an order denying the motions, and Appellants appea l. T HE T EXAS C ITIZENS P ARTICIPATION A CT AND S TANDARD OF R EVIEW “[T] he Texas Citizens Participation Act or TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern. ” In re Lipsky , 460 S.W.3d 579, 586 (Tex. 2015). “ The Act provides a special procedure for the expedited dismissal of such suits. ” Id
. When a defendant files a motion to dismiss under the TCPA, the defendant

- movant has the initial burden to show by a preponderance of the eviden ce that the plaintiff’s claim is based on, relates to, or is in response to the defendant

- movant’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association. T EX . C IV . P RAC . & R EM . C ODE A NN . § 27.005(b) (West 20 15); In re Lipsky , 460 S.W.3d at 586

- 87. “ If the movant is able to demonstrate that the plaintiff ’ s claim implicates one of these rights, the [next] step shifts the burden to the plaintiff to ‘ establish [ ] by clear and specific evidence a prima facie cas e for each essential

2 Based on the statements made in Assured Towing’s response to Appellants’ motions, it appears the agreement was suspended for approximately eight days.04

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- element of the claim in question. ’” In re Lipsky , 460 S.W.3d at 587 (quoting T EX . C IV . P RAC . & R EM . C ODE A NN . § 27.005(c) )
. Finally, if the plaintiff meets its burden to establish a prima facie case, the trial court must still dismiss the claim if the defendant

- movant “establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant’s claim.” T EX . C IV . P RAC . & R EM . C ODE A NN . § 27.005(d). We review the trial court’s ruling on a TCPA motion to dismiss de novo. Herrera v. Stahl , 441 S.W.3d 739, 741 (Tex. App.

— San Antonio 2014, no pet.). In determining whether the plaintiff ’ s claim shou ld be dismissed, the court is to consider the pleadings and any suppo rting and opposing affidavits. Id . at 27.006(a). As previously noted, both the trial court and this court are required to consider the pleadings and evidence in the light most favorable to Assured Towing. See Schlumberger Ltd. , 472 S.W.3d at 892; Serafine , 466 S.W.3d at 369 n.28; Rio Grande H2O Guardian , 2014 WL 309776, at *3. The TCPA does not define the phrase “clear and specific evidence” which is the standard the plaintiff must mee t in establishing a prima facie case for each essential element of the plaintiff’s claims. See In re Lipsky , 460 S.W.3d at 590. The Texas Supreme Court, however, has held the standard requires more than mere notice pleadings but “does not impose an eleva ted evidentiary standard or categorically reject circumstantial evidence.” Id . at 590

- 91. “Instead, a plaintiff must provide enough detail to show the factual basis for its claim.” Id . at 591. A SSURED T OWING ’ S E VIDENCE As previously noted, Assured Towi ng filed a response to the Appellants’ motions approximately fifteen minutes before the hearing was scheduled to commence. The Appellants objected to the evidence attached to the response, noting the evidence was untimely filed and inadmissible. The tria l court sustained the Appellants’ objections.04

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- We review the trial court’s order sustaining the Appellants’ timeliness objection to the evidence attached to Assured Towing’s response under an abuse of discretion standard. See U

Haul Int’l, Inc. v. Waldrip , 380 S.W.3d 118, 132 (Tex. 2012) (“Evidentiary rulings are committed to the trial court’s discretion); Nava v. Steubing , 700 S.W.2d 668, 670 (Tex. App.

— San Antonio 1985, no writ) (noting whether to allow the late filing of opposing proof is within the tri al court’s discretion). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

- 42 (Tex. 1985). Assured Tow ing argues the trial court abused its discretion in sustaining the Appellants’ timeliness objection because the TCPA does not contain a deadline for filing a response to a motion to dismiss. As support for its position, Assured Towing cites this court’s d ecision in Callaghan Ranch, Ltd. v. Killam , 53 S.W.3d 1 (Tex. App.

— San Antonio 2000, pet. denied). In Killam , however, this court considered whether a summary judgment movant could meet the specificity requirement of a no

- evidence motion for summary judgm ent in its reply. 53 S.W.3d at 4. This court noted one procedural problem in allowing the specificity to be satisfied by the reply was that the movant could file the reply on the day of the summary judgment hearing because rule 166a does not contain a de adline for a movant to file a reply. Id . In resolving the issue, this court assumed the trial court could properly consider the specific challenge raised in the reply and held the trial court erred in granting the no

- evidence motion for a different reaso n. Id . at 4

- 5. This court’s decision in Killam does not support the proposition that a trial court would abuse its discretion if it sustained an objection to a reply filed on the day of a summary judgment hearing. The absence of a rule directly applicab le to an issue should not be used as a means to ambush opposing counsel. Gessmann v. Stephens , 51 S.W.3d 329, 340 n.7 (Tex. App.

— Tyler 2001, no pet). Instead, in the absence of a rule, the trial court should have the discretion to04

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- determine the timelines s of a response. See Bennett v. Grant , No. 15

- 0338, 2017 WL 1553157, at *7 (Tex. Apr. 28, 2017) (noting procedural matters are left to the discretion of the trial court). Given that Assured Towing did not file its response and attached evidence until approximately fifteen minutes before the start of the hearing, we hold the trial court did not abuse its discretion in sustaining the Appellants’ timeliness objection to the evidenc e. Even if the trial court abused its discretion in sustaining the Appellants’ timeliness objection, the Appellants also objected to the admissibility of the evidence, noting the attachments to the response were objectionable because they were depositions from another case where Appellants’ attorneys did not have the right to cross

- examine or question the deponents on the content of the depositions. Assured Towing responded that the depositions would be admissible as statements against the parties’ intere st. Although Assured Towing addresses the timeliness of the evidence in its brief, it does not address the trial court’s ruling on the admissibility of the evidence. Accordingly, Assured Towing has waived the issue of whether the trial court erred in
exc luding its evidence on admissibility grounds. See Cantu v. Horany , 195 S.W.3d 867, 871 (Tex. App.

— Dallas 2006, no pet.) (noting when a party urges several objections to a particular piece of evidence and, on appeal, the opposing party complains of its exc lusion on only one of those bases, the opposing party has waived the complaint that the trial court erred in excluding the evidence because he has not challenged all possible grounds for the trial court’s ruling that sustained the objection); see also Gull ey v. Davis , 321 S.W.3d 213, 218 (Tex. App.

— Houston [1st Dist.] 2010, pet. denied) (same). C LAIMS B ASED ON E XERCISE OF R IGHT OF F REE S PEECH The Appellants assert they met their burden to establish Assured Towing’s claims are based on their exercise of th e right of free speech because all of their communications were made in connection with a matter of public concern.04

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- The TCPA defines the “exercise of the right of free speech” to mean “a communication made in connection with a matter of public concern.” T EX . C IV . P RAC . & R EM . C ODE A NN . § 27.001(3). The TCPA further defines “matter of public concern” to include an issue related to: (A) health or safety; (B) environmental, economic, or community well

- being; (C) the government; (D) a public official or publ ic figure; or (E) a good, product, or service in the marketplace. T EX . C IV . P RAC . & R EM . C ODE A NN . § 27.001(7). “[W]he construing the TCPA’s ‘right of free speech’ prong, ‘the plain language of the [TCPA] merely limits its scope to communications invol ving a public subject

— not communications in a public forum.’” ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 899 (Tex. 2017) (quoting Lippincott v. Whisenhunt , 462 S.W.3d 507, 508 (Tex. 2015)). As a result, the TCPA encompasses both public and pri vate communication. Id . “ The TCPA does not require that the statements specifically ‘ mention ’ [public] concerns, nor does it require more than a

‘ tangential relationship ’ to the same; rather, TCPA applicability requires only that the defendant ’ s statemen ts are ‘ in connection with ’ ‘ issue[s] related to ’ health, safety, environmental, economic, and other identified matters of public concern chosen by the Legislat ure.” Id . at 900. All of Assured Towing’s allegations are based on conversations regarding the agreement the City, a governmental entity, had with Assured Towing. Communications relating to the manner in which the government operates relate to matters of public concern. In re Lipsky , 411 S.W.3d at 543. In addition, “the award of public contracts is almost always a public matter and an issue of public concern.” Farias v. Garza , 426 S.W.3d 808, 819 (Tex. App.

— San Antonio 2014, pet. denied), disapproved on other grounds , In re Lipsky , 460 S.W.3d at 591. In this case, we hold Appellants’ communicat ions regarding the City’s contract with Assured Towing were based on or related to a matter of public concern. See Hicks , 473 S.W.3d at 530 (concluding emails regarding concerns about a company’s ability to perform services to be provided by the company pursuant04

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- to a potential contract between the company and a school district related to matter of public concern). Furtherm ore, the communications in which Unique Staff was provided the name of an attorney are communications relating to a service in the marketplace, and likewise relate to a matter of public concern. See Deaver v. Desai , 483 S.W.3d 668, 673 (Tex. App.

— Houston [14th Dist.] 2015, no pet.) (holding statements relating to legal services offered by attorney in the marketplace addressed matters of public concern); Kinney v. BCG Attorney Search, Inc. , No. 03

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— Austin Apr. 1 1, 2014, pet. denied) (mem. op.) (holding statements regarding services company provide d to the public were made in connection with matter of public concern). Therefore, Appellants satisfied their initial burden of showing Assured Towing’s claims were bas ed on or related to their exercise of the right of free speech. P RIMA F ACE C ASE Because the Appellants met their initial burden, the burden shifted to Assured Towing to establish by clear and specific evidence a prima facie case for each essential elemen t of its claims. A. Tortious Interference with Contract The elements of tortious interference with an existing contract are: (1) an existing contract subject to interference, (2) a willful and intentional act of interference with the contract, (3) that pr oximately caused the plaintiff’s injury, and (4) caused actual damages or loss. Prudential Ins. Co. of Am. v. Fin. Review Servs
. , Inc. , 29 S.W.3d 74, 77 (Tex. 2000). “[M]erely inducing a contract obligor to do what it has a right to do [under the subject contract] is not actionable interference.” ACS Inv’rs, Inc. v. McLaughlin , 943 S.W.2d 426, 430 (Tex. 1997). Accordingly, in order to prevail on a claim for tortious interference with contract, the plaintiff must show the interference induced an actual b reach of the contract. See id. at 431; Serafine , 466 S.W.3d at 362

- 63; Eagle Oil & Gas Co. v. TRO

- X, L.P. , 416 S.W.3d 137, 149 (Tex. App.

— Eastland 2013, pet. denied); Fuenes v.04

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- Villatoro , 352 S.W.3d 200, 213 (Tex. App.

— Houston [14th Dist.] 2011, pet. deni ed); All Am. Tel., Inc. v. USLD Commc’ns, Inc. , 291 S.W.3d 518, 532 (Tex. App.

— Fort Worth 2009, pet. denied). In this case, Assured Towing acknowledges the City had the right to suspend its agreement with Assured Towing when Assured Towing was unable to provide proof of workers’ compensation coverage. Therefore, the City only did what it had the right to do under the agreement. Accordingly, Assured Towing cannot establish a prima facie case on its tortious interference claim relating to its agreement with the City. Similarly, Assured Towing has not established by clear and specific evidence that Unique Staff br eached its contract with Assured Towing when it terminated the contract. Although Assured Towing generally alleges in its petition that it would be justified in including claims against Unique Staff for wrongfully terminating the contract, Assured Towing does not provide “enough detail to show the factual basis for [such a] claim.” In re Lipsky , 460 S.W.3d at 591. For example, Assured Towing does not set forth the provisions of the contract which Unique Staff potentially breached. Although Assured Towin g alludes to notice not being provided, Assured Towing does not allege notice was required to be given under the contract’s provisions or that Unique Staff breached the contract by not providing notice. Accordingly, Assured Towing failed to satisfy its bu rden to show by clear and specific evidence a prima facie case for its tortious interference claims. B. Civil Conspiracy

“ An action for civil conspiracy has five elements: (1) a combination of two or more persons; (2) the persons seek to accomplish an obje ct or course of action; (3) the persons reach a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts are taken in pursuance of the object or course of action; and (5) damages occur as a proximate result. ” First Unit ed Pentecostal Church of Beaumont v. Parker , 514 S.W.3d 214, 222 (Tex. 2017). “ An04

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- actionable civil conspiracy requires specific intent to agree to accomplish something unlawful or to accomplish somet hing lawful by unlawful means.” Id
. The Texas Supreme Court has recognized civil conspiracy “might be called a derivative tort.” Tilton v. Marshall , 925 S.W.2d 672, 681 (Tex. 1996). “That is, a defendant’s liability for conspiracy depends on participation in some underlying tort for which the plaintiff see ks to hold at least one of the named defendants liable.” Tilton , 925 S.W.2d at 681. Because we have held Assured Towing did not establish a prima facie cause on its tortious interference claim, which is the underlying tort for which it sought to hold the Appellants liable, then it similarly failed to establish a prim a facie case on its civil conspiracy claim. See id .; see also Rio Grande H2O Guardian , 2014 WL 309776, at *4. C ONCLUSION Because the TCPA was applicable to Assured Towing’s claims but Assured Towing did not establish by clear and specific evidence a prima facie case for its claims against the Appellants, the trial court erred in denying the Appellants’ motions to dismiss. Therefore, we reverse the trial court’s order and dismiss Assured Towing’s claims against the Appellants. The cause is remanded to the trial court to determine the amount the Appellants should be awarded under section 27.009(a) of the TCPA. See Sullivan v. Abraham , 488 S.W.3d 294, 299 (Tex. 20160 (holding TCPA requires an award of ‘reasonable attorney’s fees’ to the successful movant); Farias , 426 S.W.3d at 820 (reversing trial court’s order denying motion to dismiss and remanding the cause for the trial court to consider an award under section 27.009). Marialyn Barnard, Justice