Affirmed in Part, Reversed and Render ed in Part , R emanded, and

Memorandum Opinion filed January 12 , 202 3
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00727

- CV

WILLOW CREEK GOLF CL UB, INC. , Appellant
V.
WILLOW CREEK MANAGEM ENT, INC. , Appellee

On A ppeal from the 281st District Court

Harris County, Texas Tri al Court Cause No. 2021

- 30513

M E M O R A N D U M O P I N I O N Appe llee Willow Creek Management , Inc. ( “ Tenant ” ) operated a golf course on real property it leased from a ppellant Willow Creek Go lf C lub, Inc. ( “ Landlord ” )

. During the lease term, a months

- long dispute arose between the parties

. Tenant sued Landlord , seeking declara tory judgment and injunctive relief

. Shortly thereafter , L andlord filed a forcible detainer suit against Tenant

. After Tenant amended i ts lawsuit to add claims for breach of contract, breach of the2

implied c ove nant of quiet enjoyment, and wrongful eviction , Landlord filed a motion to dismiss all of Tena nt ’ s claims pursuant to the Texas Citizen’s Participation Act ( “ T CPA ” ) , arguing that Tenant ’ s legal a ction was based on Landlord ’ s exe rcise of the rig ht to petition

. The motion was denied by operation of law.
A ppeal ing the denial , Landlord argues that the TCPA appl ies to all the claims and that Tenant failed to prese nt pri ma facie evidence to sup port them. Tenant re sponds to these points and adds alternatively that we should affirm because the claims are excepted from the TCPA by the commercial speech exemption.
W e hold :
1

. Landlord proved by a preponderance o f th e evid enc e that the TCPA appli es to (a) Tena nt ’ s wron gful eviction claim and (b) the parts of Tenant ’ s breach of contract and breach of the implied covenant of quiet enj oyment claims that ar e factually predicated on Landlord ’ s forci ble detainer lawsuit. A s to those cl aims, Tenant met its p rima facie evid entiary burden on the breach of contr act claim but did not meet its burden as to the re maining claims

. 2. Landlord did not prove by a preponderance of the evidence that the TC PA applies to (a) Tenant ’ s de clara tory j udgment claim o r (b) the part s of Tenant ’ s breach of contract and breach of the covenant of quiet enj oyment claims that ar e not factually predicated on Landlord ’ s forci ble detainer lawsuit. Thus, Tenant had no burde n to pr esent pr ima facie evid ence in su pport of these claims.
3

. T enant did not establish that t he TCPA ’ s commercial speech exemption appl ies

.3

Accordingly, we affirm in part, reverse and render in part, and remand for further proceedings. Background
The Willow Creek Gol f Club ( the “ Club ” ) is a pri vate golf course with approximately 400 members

. Land lord owns the real property on which the Club is located . In 1993, Landlord entered into a fifty

- year lease wi th T ena nt

. M at erial terms under th e lease include : Tenant wou ld pay rent, improve a nd con tinue to make capital impr ovem ents to the property, and operate and manage the Club ; and Landlord had the right to audit Tenant ’ s records with respect to the sums to be spent for capital improvements and agreed that it would n ot interfere w ith Tena nt ’ s

o peration and manageme nt of t he Club

. Regarding capital imp rovement s , the Lease required Tenant “ in each Fiscal Year to expend for capital improvements to
t he Property a sum equal to not less than seven percent ( 7%) of the Gross Receipts for the part icular Fiscal Year. ”

In a January 2021 meeting of Landlord and Tenant representativ es , Tenant
est imated that it spe nt ap proximately $39,000 less than seve n percent of its gross receipts in 2020. On February 9, 2 021, Landlord sent notic e of defa u lt and d emand e d pa yment of $39,173.00 in “Rent,” as well as $500 for attorney ’ s fees. The next day , Landlord demand ed that “ [ Tenant ] submit to and coo p erate with an audit and pro mp tly pr oduce copies of its financial state ment, boo ks and records for the pr evi ous f

our (4 ) years. ” On March 12, Tenant responded and denied being in de fault

. Tenant explained that , upon further analysis, it in fact s pent “ well over 7% of gross

reven ues on capital improvements [in] 2017 and p la nned to do so in 2021 as well. ” B ecause t he Lea se did not prohibit “ carry over ” calculations and because Tenant had done so in the past, Tenant ’ s position was that expen ses could b e capit alized4

over several years. According to Tenant , after its March 12 response, Landlord

“ began to pe ppe r [ Tenan t ] wit h requests for unrelated i nformation, ” including about insurance covera ge, historical information about the Club and its insuran ce claim his tory, and the speed of the repairs following weather

- related damage

. On May 18, Landlord sent a “ Noti ce to Va cate a nd Lease Terminat ion , ” alleging that Tenant was in default of the Leas e because it had fai led to pay all rent owing and had failed to comply with the audit demand. Landlord further demand e d that Tenant vacat e the pre mises on or before May 21 , 2021. If Te nant did not comply by May 21 , then Landlord threate ned “ to file suit thereaft er to evict any and all parties in possession of the Proper ty. ”
On May 19 , Tenant respon ded to the Notic e to Vacate, again disputi ng that it had breach ed the Lease , and “ p l ac[ed] [ Landlord ] on notice ” that its continued interference with Tenant ’s ability and prerogative to operate , manage , an d enjoy the Club was a violation of the “c ovenants, representations, agreements, terms, or condit ions” of the Lease, as well as the imp lied c ovenant of quiet enjoyment.
On M ay 20, Landlord a gain claimed that Tenant was in default and stated that “ [ Landlord ] is not ‘ threatening ’ to evict [ Tenant ] ; [ Landlord ] is evicting [ Tenant ]

. ” (Emphasis origina l). On May 21, Tenant filed its o riginal petiti on in this case , seeking a declaratory judgment and injunct ive relief. On June 2, Landlord filed a compl aint of for cible detainer in justice co urt , seeking an order for immediate possession of the premises. On July 6, the justice

c ourt ren dered ju dgment awarding Landlord possession of the premises. The court awarded $0 as “rent owed ” and $0 as “attorney ’s fees. ” The court set Tenant ’s appeal bo nd at $0

.5

On Septemb er 1, Tenant filed an amended petition in this case , assertin g for the firs t time cl aim s f

or breach of contract , breach of the implied co venant of q uiet enjoyment , and wrongful eviction. The live pleading also reasserted Tenant ’ s declarator y judgment clai m and re quest for i njunctive relief.
Landlord filed a motion to di smiss unde r the TC PA, ar guing that all of Tenant ’ s claims were based on or in re sponse to Landlord ’ s exercise of its right to petition

— i.e., i ts for cible detain er suit

— a nd that Tenant could not esta blish a prima facie c ase for its claims. Tenant respond ed , disput in g the TC PA ’ s

a pplicability and alternatively producing evidence in support of its claims. The trial court held a hea ring, at which Tenant argued for th e first time that the

commer cial spee ch exemption precluded the TCPA ’ s applicability in this case. See Tex. Civ . Prac . & Rem. Code § 27.0 10 ( a )( 2). T he trial court did not rule on Landlord ’ s m otion within the statutory deadline , and so it was denied by operati on of law. See id. § 2 7.008( a). This interlocutory ap peal f ollowed. See id. §§ 27.005, 27.008, 51

. 014(a)( 12).
T he TCPA The TCPA contemplates an expedited dismissal procedure applic able to claims brought to intimidate or silence a defendant ’ s exercise of the rights to petition, speak freely, associate freely, and otherwise participate in government to
t he maxi mum ex tent per mitted by law without impairing a person ’ s right to file meri torious lawsuits for demonstrable in jury. See Tex. Civ. Pra c. & Rem. Code § 27.002; Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC , 591 S.W.3d 127, 132 (Tex. 2019); Exxon M obil Pi peline Co. v. C oleman , 512 S.W.3d 895, 898 (Tex. 2017) (per curiam).6

The pa rty invoking the TCPA may file a mot ion to dismiss the legal action and mu st show by a prepondera nce of the evidence that the action is “based on or is in response to” that p arty ’ s exerci se of the right of free speech, right to petition, or right of associ ation , as those terms are defined in the Act

. Tex. Civ. Prac. & Rem. Code §§ 27.003(a); 27.005(b )

. If the movant satisfies this burden, the trial court must dismiss the la wsu it un less t he nonmovant “establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id. § 27.005 (c)

. A “prima facie ca se” refers to eviden ce sufficient as a matter of law to establish a given fa ct if it is no t rebutted or contradicted

. See In re Lipsky , 460 S.W.3d 579, 590 (Te x. 2015). It is the “minimum quant um of evidence necessary to support a rational inference that the allegation of fac t is true.” Id. (internal quotations omitted).
The no nmovant can av oid the Act ’ s burden

- shift ing requirements , and indeed avoid dismiss al altogether, by establishing that its legal action is exempt from the TCPA under a specific statutory exempti on

. See Tex. C iv. Prac. & Rem. Code § 27.010 ; Hieber v. Perche ron Ho ldings, LLC , 591 S.W. 3d 208, 211 (Tex. App.

— Houston [14th Dist. ] 2019, pet. denied ). The p arties dispute the appl icability of o ne of those exemptions

— known as the “commercial speech” exemption

— and we dis cuss it subsequently.
We construe the TCPA lib erally to effectuate i ts purpo se and i ntent fully. See Adams v. S tarside Custom Builders, LLC , 547 S.W.3d 89 0, 894 (Tex. 2018); Coleman , 512 S.W.3 d at 899; Enter. Crude GP LLC v. Sealy Partners, LLC , 614 S.W.3 d 283, 293 (Tex. App.

— Houston [14th Dist.] 202 0, no pet.); Tex. Civ. Prac. & Rem. Co de § 27.011(b). A trial court ’ s d etermination of whether claims fall within the TCPA ’ s framework is subject to a d e novo standard of revi ew. See Adams , 54 7 S.W.3d at 894. Unde r that standard, we “make an independent7

determinati on and apply the same st andard u sed by the trial court in th e first instance.” Cox Media Grp., LLC v. Joselevitz , 524 S.W.3d 850, 859 (Tex. App.

— Houston [14th Dist .] 2017, no pet.). W e must consid er the relevant pleadings , evidence , and any s upporting or opposing affida vits “st ating th e facts on which the liability or defen se is based.” Tex. Civ. Prac. & Rem. Code § 27.006(a). We review the se materials in the lig ht most favorable to the nonmovant

. See Enter. Crude , 614 S.W.3d at 294.
A. Do es the TCPA apply to Tenant ’ s cla ims?

R egard ing the first step, Landlord arg ued that all of Tenant ’ s claims in its amended petition were based on or in response to Landlord ’ s exercise of the right to petition , namely it s forcible detainer lawsuit

. As defi ned in the TCPA, an

“ e xercise of the right t o petition” i ncludes “a c ommunication in or pertaining to

. . . a judic ial proceedi ng.” Tex . Civ. Prac. & Rem. Code § 27.001(4)(A)(i). “Commun ication” is statu toril y defi ned and includes “the making or submitti ng of a statement or d ocument in any form or medium, incl uding or al, visual, written, audiovisual, or electronic.” Id. § 27.00 1(1); see also Adams , 547 S.W.3d at 894 (statutory definition of “communicatio n” co vers “ [a]lmost every i maginable form of commun ication, in any medium”). We also o bs erv e t hat a “ judicial proceeding ”

means an actual, pending jud icial procee din g. See QTAT BPO Solutions, Inc. v. Lee & Murphy Law Firm, G.P. , 524 S.W.3d 770, 77 8 (Tex. App.

— Houst on [14 th Dist.] 2017, pet. denied) ; Long Canyon Phase II & III Homeowners Ass ’ n , I nc. v. Ca shion , 517 S.W.3d 212, 220 (Tex. App.

— Austin 2017, no pet. ); L evatino v. Ap ple Tree Café Touring, Inc. , 486 S.W.3d 724, 728

- 29 (Tex. App.

— Dallas 2016, pet. d enied)

. A forcible d eta iner lawsuit qualifies a s a “ jud icial proceeding. ” Fu r ther, for a claim t o be “ b ased on ” or “ in response to ” the ex er cise of a TCPA protected right, the claim must at least be “ factually predic ated ” on t he exerc ise o f8

th e asserted TCPA r ight. Enter. Crude GP LLC , 614 S.W.3d at 29 6. Thus, t o the extent Tenant ’ s claims are factually predicated on Land lor d ’ s forcible detainer lawsuit, it can be fairly s aid that th ey are based on or in response to Landlord ’ s exercise of the right of p etitio n. See id. at 296

- 99

. On the other hand , to the extent Tenant ’ s claims are factual ly predicat ed on alleged conduct or communications occurring prio r to Landlord ’ s filing of the forcible detai ner action, the claims are not based on or in respons e to Landl ord ’ s ex ercise of the right of petition un der the TCPA. See Long C

a nyon , 517 S.W .3d at 220.
W ith the Act ’ s purpose and de finition s in mind, we turn to Tenant ’ s claim s to deter mine w hether the TCPA applies to each of them

. See Uni on Pac. R .R. Co. v. Dor sey , 651 S.W.3d 692, 695 (Tex. App.

— Housto n [14th Dist.] 2022 , no pet. ) ( “ Dismissal under the TCPA is determined on a claim

- by

- claim basis. ” ).
1

. Wrongful e victi on We begin with Tenant ’ s claim for wrongful eviction. In su pport of th is claim, T ena n t allege d that Landlord wrongfully fil ed a forcibl e detainer action and wrongfully obtain ed a po ssession order from the ju stice court.
This claim is plainly based on or in response to Landlord ’ s exercise of its right to petition because it i s factual ly predi c ated on the Landlord ’ s invocation of the judici al process by filing the forcible detainer lawsuit. Landlord ’ s forcible detainer complaint is a “communication in or pertaining to

. . . a judicial proceedi n g.” Tex. Civ. Prac. & Rem. Code § 27.001( 4)(A)(i)

. And , a s Tenan t acknow ledges, an eviction is r equi red to support a wrongful eviction claim

. Thu s, we conclude that Landlord proved by a preponderance of the evidence that Tenant ’ s wrongful ev iction c laim is based on or in respon se to Landlord ’ s ex ercise of the right of petition and therefore is subje ct to the TCPA ’ s requiremen ts. See Griffith Truck & Equip. , Inc. v. Flash Tank S ervs., Inc. , No. 14

- 21

- 00331

- CV,9

2022 WL 2920693, at * 3 (Tex. App.

— Hous ton [14th Dist.] July 26, 2022, no pet.) (mem. op. ) ; see also Hersh v. Tatum , 526 S.W.3d 462, 467 (Tex. 2017) ( “When it is cle ar from the plaintiff ’ s plea dings tha t the action is covered by the Act, the defendant need show no more.”). In part of its argument , Tenant a ppears to contend that the TCPA should no t

a pply to its wrongful evic tion claim because that claim cou ld not have been filed in the det ainer action. See Marshall v. Hous

. Auth. of City of San Antonio , 198 S.W.3d 782, 785

- 86 (Tex. 2006); T ex. R

. C iv . P. 510.3(e) (“Counterclaims and the joind er of suits against third parties are not permitted in e viction cases.”). For that reason, Tenant says that its wrong ful evi ction claim cannot be considered filed “ in
response ” to Landlord ’ s earlier detainer action. T enant also argues that Landlor d ’ s rig ht to petition in fact has not been impair ed because Lan dlo rd has ob tained a ju dgment of p o ssession from the justice court , which is currently on appeal

. R e gardless of these arguments , the TCPA applies to Tenant ’ s wrongful evic tion claim because that clai m is a “ legal action ” that is necess arily based on or in response to Landlord ’ s exercise of the right to petition , namely it s detainer law suit

— a communication in or pertaining to a ju dicial proceeding . Tex. Civ. Pr ac. & Rem. Code § 27.001 (4). Our conclu sion i s base d simply on the s tat ute as it is written. 1

2

. Declaratory judgment
In its amend e d petition , Tenant sought the following declarat ions “ as to the

cour se of dealings a nd perform ance of the parties to the Lease ” :

1 Of cour se , a n eviction s uit brough t under Property Code Chapter 24 is exe m pt from the TCPA. Tex. Civ. Prac . & Rem . Code § 27.0 10(a)(9). But T ena nt ’ s wro ngful eviction claim is
n ot an “ eviction suit ” under Chapter 24, and Tenant has not in voked that exemption as a re ason w hy the TCPA should not app ly to its wron gful eviction c l aim

.10

(a) in c onnection wit h [ Landlord ’s] ad visory capacity to [ Tenant ] , [ Tenant ] would apprise [ Landlord ] of its manage ment and o perations of the Club, by, among other things, se ndi ng a representative to [ Landlord ’s] board and general meetings to update [ Landlord ] abou t the general man agement and o perations of the Club, including prospective and on going capital improvement s, major project s, budgeting, and expenses, and would make simila r disclosures to the Joint Committee , whic h would meet on a quart erl y, bi

- annually or yearly basis, du ring wh ich su ch meetings the members of the Joint Committee woul d discuss the management and operations o f the Club, including the Ongoing Capital Improve ments, major projects and other expe nditur es; (b) funding of Ongo ing Capi tal Improvem ents, including M ajor Pr ojects , was allocated over a period of years; (c) [ Tenant ] fully complied with its financial d isclosure requirements to [ Landlord ] ; (d) [ Te nant ] is in compliance with the Ongoing Capital Im provements obligat ion; and ( e) [ Tenant ] has complie d with the Lease

. The requested declarations concern either a purported c onstruction of the Lease or the responsibili ties and du ties owed by Tenant to Landlord

. Additionally, Tenant correctly observ es that its initial re quest f or a declaratory judgment in the original p e ti tion pre
- dated Landlord ’ s filing of the detainer action

. For these
reasons, n o part of the declaratory j udgment claim i s factually predicated on L andlord ’ s forcib le detainer lawsuit. Thus, we conclude that Landlord did not
prove by a preponderance of the evi dence tha t Tena nt ’ s de claratory judgment

“ legal act ion ” i s based on or in respon se to Landlord ’ s exercise of the rig ht of petition

. 2 T hus , the TCPA does n ot a pply to th e request for declaratory relief

.

2 A request for de clarat ory relief i s included in the def inition of “ le gal action. ” Tex. Civ. Prac. & Rem. Code § 27.001(6).11

3

. B reach of contract and b reach of the implie d cov en ant of quiet enjoy m ent
T enant ’ s remaining claims a r e breach of contract and breach of the implied covenant of qui e t enjoyment . These claims fall within the TC PA ’ s definition of

“ le gal action. ” Tex. Civ. Prac. & Rem. Code § 27.001(6). We ex amine t he exte nt to which they are factually predi cated on Landlo rd ’ s fo rcible detainer l aws u it. 3

Tenant generally alleged that La ndlord breached the Lease by “ manif est[i ng] through its w ords and actions an ab solute repudi ation of its obligations under the Lea se, for which it has no excuse ” and b y “ tak[ing] actions whic h su bstantial ly in terfere with [ Tenant ’ s] intended use and enj oyment of the premises , ” including

“ interfe rence with [ Tenan t ’ s] a bi lity a nd prerogati ve to operate and manage the Club, as well as w ith its quiet use, an d e njoyment of the leased p remises. ” T h e contractual provision s alleged to be breached a re the nonin terference clause 4 a nd the default

/cure pro vision

. 5 Tenant also alleged that Landlord breached the implied

3 Tenant also re quested inj unctive relief from Lan dlord ’ s ongoing inter ference , which Tenant alleged breached the Lease a nd the implied covenant of quiet enjoyment

. The TCPA does not permit a request for injunctive relief to be separately dismissed when it is linked to a cause of action. See Patriot Contracting, LLC v. Mid

- Main Props., LP , 650 S.W.3d 819, 829 (Tex. App.

— H o uston [14th Dist.] 2022, pet. d en ied ) ; Cavin v. Abbott , 613 S.W.3d 168, 171 (Tex. App.

— Austi n 2020, pet. denied)

. The TCPA does not apply to Tenant ’ s request for an injunction that is dependent upon its cl aim for breach of con tract or breach of the impli e d covenant of quiet enjoyment. S ee Cavin , 613 S.W.3d at 172.

4 “ If Tenant shall keep and perform its covena nts, c o nditions, and obligations hereunder, Landlord covenants and agree s that Landlor d will not i nterfere in any m anne r wi th Tenant ’ s operation an d management of the Club or the Pr operty

. ”

5 “ [T]he following shall constitute a default under this Agreement : . . . Either party ’ s failure to comply with any of the covenants, repr esentations, a greements, t erms, or conditions o f this Agreement and such fa i lure shall continue for a period of thirty (30) days after written notice thereof to the defaulting party specifying in detail the nature of such failure. Notwithstanding the fore going, in the event any fa ilure cannot with due diligence be cured within s u ch 30

- day period, if the defaulti ng party proceeds promptly and diligently to cure the sam e and there after diligently prosecutes the curing of such failure, the time within which t he failure may be cured sh all be extended for s uch reasonable period as may be necessary for the defaulting p arty to cure the failure. ”12

covenant of qui e t enjoyme nt

. Se e , e.g. , HTM Rests., Inc. v. Goldman, Sachs & Co. , 797 S.W.2d 326 , 328 (Tex. App.

— Houston [1 4th Dist .] 1990, writ de nied) ( “ In every lease of land , in the abse nce of express language to th e contrary, there is an implied covenant that the le ssee shal l have the quiet , peaceful enjoyment of the leased premises. ” )

. The factual predicate fo r these claims rest s in part o n t he f orcible detainer la wsuit and in part on other alleged wrongful conduct occurr ing prior to the fo rcible detainer lawsuit. For e xa mple, T enant claims that Landlord breached th e Lease and breac hed the cove nant of quie t en joyment by initiat ing the fo rcibl e detainer lawsuit. The filing of that sui t, Ten ant alleged, was wrongful not only because it was based on a n incor rect determinatio n that Ten ant was in default, but also becaus e it inter fered w ith Tenant ’ s ability to oper ate the Club and to peac eabl y enj oy the leased premises.
On the other hand , other facts alleged to support these claims occurred prior to the forcible detainer la ws uit. T hese include allegations pertaining to Landlord ’ s Febru ary 9 and 10 demands for payment of $3 9,173.00 in “Rent ” an d to audit Tenant ’s financial book s and rec ords , as well as Landlord ’s r epea ted reque sts for “un related information , ” such as insuranc e claim history

. The pa rt s of Tenant ’ s cl aim s that are factuall y predicated on Landlord ’ s forcible detainer suit are based on or in response to Landlord ’ s exercise of the right
to petition. See Griffith Truck , 2022 WL 2920693, at * 3

. To this exten t, we

c onclude that Landlord proved by a preponderance of the evidence that Tenant ’ s claims for breach of contract and breach of the implied covenant of qu iet enjoyment are subject to the TCPA ’ s requirements.
The TCPA does not apply, however, to the part s of th ose cla ims factually predicated on Landlord ’ s con duct or commun ications oc curring before Landlord13

exercised its right to peti tion by filing the forcible detainer laws uit. See, e.g. , Republic Tavern & Music Hall, LLC v. Laurenzo ’ s Midtow n Mgmt., LLC , No. 1 4

- 19

- 00 731

- CV, 2020 WL 7626253, at *4 (Tex. App.

— Houston [14th Dist.] Dec. 22, 2020, no pet. ) (mem. op.) (TCPA did not apply where nonmovant ’ s “factual allegations are solely concerned with private communications outside of, and unrelated to, an y judicial .

. . pro c eeding”)

. Particularly, Tenant alle ged that Lan dlord breached the Lease and breached th e implied covenant of quiet enjoyment by improperly claiming Tenant was in default, by demanding an audit, and by demanding the production o f financial docume nts and o t her i nformation. This alleged conduct occurred befor e Landlord filed the forcible detai ner lawsuit. Therefore , we concl ude that Landlord did not prove by a preponderance of the evidence that Tenant ’ s claims for breach of contract an d breach of the impli e d

cov enant of quiet enjoyment

— to the extent they are factually predicated on events

occu rring bef

ore the fo rci ble detainer lawsuit

— are subject to the TCPA ’ s requirements. T hus , the TCPA does n ot apply to the parts of those claims just des cribed

. See, e. g
. , En ter. Crude GP LLC , 614 S.W.3d at 29 9 ( holding tr espass claim not factually predicat ed on exercise of TCPA protected right) ; Pierce v. Stocks , No. 01

- 18

- 00990

- CV, 2019 WL 3418513, at *5 (Tex. App.

— Houston [1st Dis t.] July 30, 2019 , no pet.) (mem. o p.) (reje cting argument that underlying lawsuit fi led by surgeon against former administrato r was filed in re sponse t o administrator ’ s federal lawsuit bec ause claims were premised on conduct that occurred well before admi nistrator filed h er federal lawsuit ); B eving v. Beadles , 563 S.W.3d 399, 408 (Tex. Ap p.

— Fort Worth 2018, pet. denied) (rejectin g argument that t hird

- par ty petition was based on defendant ’ s affidavit and deposition testimony because causes of action in thir d

- party petition arose out of facts oc c urrin g well before her affidavit and depositio n). Th e trial court did not err to the ex tent it concluded th at the T CPA does not apply to the port ions of Tenant ’ s14

claim s factually predicated on Landlord ’ s alleged conduct and communications occurring prior to th e June 2021 f orcible detainer law suit

. In sum, w e hol d that the TCPA applies to (1) the wrongful eviction claim and (2) the parts of the breach of contr act claim and breach of the implied cove nant of quiet enjoy men t claim that are fact ually predicate d on t he forcible detainer lawsuit. Otherwise, the TC PA does not apply to the re mainder of T e nant ’ s claims.
B. Does the commercial speech exemption apply?
Befo r e we consider whether T e n ant presented pri ma facie evidence in support of its claims to which t he T CPA applies , we first consider its argument that it need not present evidence on an y claims bec ause the commerc ial speech exemption applies. Landl ord cor rectly notes that Tenant d id not cite to the exemption in its response and did not assert the exe m ptio n until the hearing on Landlo rd ’ s motion to dismi ss. For that reason, Lan dlord contends Tenant has waived the exemption and may not invoke it now.
Case l aw from our sister court suggests otherwis e. In Diogu Law Firm , the

n onmovant did not raise th e com mercial speech exemption in i ts TCPA response, bu t the trial court rai sed the issue sua sponte during the hearing and ruled that it
ap plied. See D iogu L aw Firm PLLC v. Experience Infusion Ctrs. LLC , No. 01

- 19

- 00494

- CV, 2020 WL 1681182, at * 1 (Tex. Ap p

. — Ho uston [1st Dist.] Apr. 7, 202 0 , no pet. ) (mem. op .). On appeal, the l osing movant argued that “ the trial court could not rely on the commercial

- sp eech exemption because it was not raised by one of the parties before the trial court considered its app l icab ility. ” Id. at *4. The appe llate court disa gree d , concluding that “ s uch a requirement is inconsistent with the body of law analyzing the TCPA. ” Id. (citing Adams , 547 S.W.3d at 896 ( disagreeing with co u rt o f appea ls ’ conclusion that mo vant had waived reliance on15

certain statu tory provisions because mo vant “ expressly mentioned these concer ns at the hea ring on the motion to dismiss ” ) ).
Tena nt asserted the commercial speech ex emption at the hearing. Assum i ng Ten ant preserved its reliance on the exemption , we conclude noneth eless that it does not apply in this instance. Under the commercial speech exemption, the TCPA does not apply to : a legal action brought against a person primarily engaged in the busine s s of selling or leasing goods or services, if the statement or conduc t arises out of the sale or l ea se of goods, ser vices, or an insurance product, insurance services, or a commercial transaction in which the intende d audience is an actual or p otential bu y er or customer. Tex. Civ. Prac. & Rem. Code § 27.010( a ) (2)

. Tenant h ad the burden to e stabl ish the exemption ’ s applicability

. See Hieber , 591 S.W.3d at 211

. The Supreme Court of Texas clarifie d the commercial speech exemption ’ s proper construction in Ca s tleman v. Internet Money L td. , 546 S.W.3d 684 (Tex. 2018) (per cur iam ). The exemption app lies when: (1) the defendant was primarily engaged in the business of selling or leasing goods , (2) the defendant made the statement or engaged in the conduct on whi c h the claim is based in th e defendant ’ s capacity a s a seller or le sso r of those goods or s ervices, ( 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 inte n ded audience of the statem ent or conduct were actu al or potential cus tomers of the defenda nt for the kind of goods or services the defendant provides.
I d. at 688. Thus, the court continued, “th e commercial

- speech exemption applies only to certain communi c ations related to a good, product, or service in t he16

marketplace

— c omm unications made not as a protec ted exercise of free speech by an individual, but as commercial speech which does no more than propose a commercial transaction.” Id. at 690 (internal quo t ation omitted).
He re, ther e is no evidence that Landlord was “ primari ly en gaged in the bu siness of s elling or leasing goods or services. ” Landlord was a non
- profit corporation that owned real propert y, which it leased to Tenant . At leas t one court has i n dicated that re al property is not a “ good , ” for purp oses of the TCPA

. See Schmidt v. Crawford , 584 S.W.3d 640, 649 (Tex. App.

— Houston [1st Dist.] 2019 , no pet. ) ( “ We disagree that the plain, comm on meaning of ‘ good ’ is broad enough to embrace real proper t y. ” ). A nd Landlord was no t provid ing a commercial

serv ice to Tenant

. See, e.g. , Howard v. Matterho rn Energy, LLC , 628 S.W.3d 319, 332 n. 5 (Tex. App.

—

T exarkana 2021 , no pet. ) ( disagreeing that e xemption applied because lease of unsevered mineral interest s w as neither a good nor se rvice )

. Tenant conten ds that Les ley

- M c N iel is “ nearly identical ” and shoul d control. See Lesley

- McNiel v. CP Restoration Inc. , 584 S.W.3d 579 (Tex. App.

— Houston [1s t Dist.] 2019 , no pet. )

. There, CP Restoration leased a unit in a multi

- tenant

comme rcial building , which was ow ned by Abundantia. I d. at 580. Abu ndantia evicted CP Restoration, CP Restor ation sued, Abundantia file d a T CPA motion to dismiss based on its right to petition by instituting the eviction proceedings , and C P Restoration invoked t he commercial speech exem ption

. Id. at 580

- 81

. On appeal, our sister court held that the exemption precluded th e Act ’ s applicab ility. Id. at 584. We agree that , on the sur face, there a re similarities between today ’ s appeal and Le s ley

- McNiel

. But t here i s at least one key diffe rence

— in Le sley

- Mc N

ie l , the

movan t did not “ challeng e any of these [ C astleman ] elements in particular

. ” Id. at 582 & n.2. Rather , the only question to be decided in that case w as whether the17

c ommercial spe e ch exemption appl ies to su its implicating the ri ght to petition , as

o pposed to on ly the right of fre e speech

. Id. at 582. The court held that the

exem ption “ applies equally to communications that constitute a defendan t ’ s rights of petition and associati o n , ” as well as free speech

. Id. at 584. Furthe rmore, the opinion in dicates that the movant in that case “ acted as landlord of their multi

tenant comme rcial building , ” which supported the u nchallenged assertion that th e
movant was primarily engaged in th e “ commercial l easing busin ess. ” Id. at 5 81

- 82 & n.2

. Here, there is no allegati on or evidence that Landlord provided any services
or was eng aged in a commercial leasing business, as opposed to simply leasing real
pr operty , which we have already s aid is n either a good nor a servic e

. Lesley

M cNiel do es not support Tenant ’ s ar gument against TCPA ’ s applic ability

. C
. Did Tenant establish a prima facie case? Having determined that the TCPA applies to (1) the part of Tenant ’ s b reach

o f contract and b reach of t he implied covenant of qui et enjoyment claim s that are factually pred icated Landlord ’ s forcible deta iner law suit and ( 2 ) Ten ant ’ s wrongful evicti on claim, we turn to whether Tenant produced prima fac ie ev idence to
suppor t each essential element of these c l aims.
1. Breach of cont rac t
A breach of contract action re quires proo f of four elements: (1) format ion of a valid contract; (2) performance by the plaintiff; (3 ) breach by the defendant; and (4) damages sustained as a r esult of the breach. See S & S Emerg e ncy Training Sols ., Inc . v . Elliott , 564 S.W.3d 843, 847 (Te x. 2018)

. There is no question that the Lease is a valid contra ct. I n an atte mpt to establish the other elements , Tenant

s ubmitted evidence i ncluding dec larations from Charles Cox, the senior v i c e pr es ident of operations at Tenant ’ s parent company , and To dd Dupui s, who was the parent comp any ’ s chief accounting officer during t he relev ant times. To show18

that Tenant performed under the Lease, Cox averred th a t Tenant “ in the past expended more tha n the 7 % of its gr oss rec eipts, and was on track to do so again, in 20 21, in Ongoing Capita l Improvem ents, consistent with the course and dealings it had en joyed throughout the term of the Lease

. ” Dupu i s stated t hat the January 2021 estimate, showing a $39,000 s hortfall, was erro neously calculat ed and that Tenant actuall y expended on capital improvements approximately $2, 3 00 mor e than seven p ercent of its g ross r eceipts for 2020. To show that Landlord breached th e Lease by filing the f orcible detainer a ction, in violation of certain Lease provisions , Tenant su bmitted the f or cible detainer petition and th e Lease. To establish damage s, Co x averred that , if Landlord was not enjo ined from i nterferin g with Tenant ’ s us e of the pre mises, Tenant would suffer a loss of n o less than $226,000 in gross mont hly revenue, which was the sum of th e m onthly dues p aid by C lub members to Tenant

. Tenant also pointed out in its response that it pleaded for s pecific perfor manc e of th e Lease

. T he only ele ment of Tenant ’ s breach of co n tract cla im that Landlord challenges on appeal is whether Tenant pres ented prima facie proof that it performed its obli gations under the Lease. Landlord contends that Tenant presented no evidence of per formance beca use Tenant

— not Landlord

—

breached the Le a se by failing to spe nd th e required seven percent of gr oss receipts o n capital improvements

. More specifically, Landlord challenges Dupuis ’ s cal culations because Dup uis includ ed items tha t, according to Landlord , ar e not capital improvements

. But this i s simply a dispute over th e vera city of Tenant ’ s evidence that it comp lied with the Lease. At this p oint in the proceedings, we do not consider such contentions but assume the truth of Tena nt ’ s clear and specific evidence

. See West v. Quintanilla , 573 S. W .3d 237, 243 n.9 (Tex . 2019) (“[Movant] vig orously disputes many of [ nonmovant] ’ s factua l all egations, but at19

this poi nt we must decide only whether [nonmovant] has established a prima facie case by clea r and specific evidence.

. . . A finding that [nonm o vant] has met his TCP A burden does not establish that his allegations are true.” ) ( internal q uotations omitted ); D Mag azine Partners, L.P. v. Rosenthal , 529 S.W. 3d 429, 440 n.9 (Tex. 2017) (refusing to c onsider TCPA mo vant ’ s rebuttal ev idence in determini n g whether nonmovant e stablished prima facie case, stating that althou gh movant “di sputes [non movant ’ s factual assertio n] .

. . at this stage of the proceedings w e assume its t ruth”).
The tr ial court did not err in denyi ng Landlord ’ s TCPA motion as to the part of Tenant ’ s breach of contra ct claim factually predicated on Landlord ’ s forcible detain e r lawsuit

. 2. Breach of the coven ant of quiet en joyment
We n ext consider Tenant ’ s breach of the implied co venant of quiet enjoymen t clai m to the extent it is fac t ual ly predicate d on allegation s that Landlord breached the imp l ied coven ant by filing and pro s ecuting it s forcible detainer law suit

. A bre ach of the implied covenant of quiet enj o yment requires an ac tual or

c onstructive eviction that is brought about by the acts of the l an dlord , those acting for the landlord, or thos e a cting with the landlord ’ s pe rmission. See Hol mes v. P.K. Pipe & Tubing, Inc. , 856 S.W.2d 53 0, 539 ( Tex. App.

— Hou s ton [1st Dist.] 1993 , no writ ); see also Lazell v. Stone , 1 23 S.W.3d 6, 12 n. 1 (Tex. App.

— Ho us ton [1st Dist.] 2003, pet. denied)

. The elem ent s of constructive eviction a re: (1) a n intention on the part of the landlord that the tenant shall no longer enj o y the premises; (2) a materia l act by the landlord tha t substantially interferes with the
te na nt ’ s i ntended use and enjoyment of the premis es; (3) the act permanently dep rives the tenant of the use and enjoyment of the premises; and (4) the t enant20

abandon s the premises within a reason able time after the commi ssion of the act. Holmes , 856 S.W.2d at 539.

H ere, no evidence was presented that Lan dlord permanently deprived T enant of the use and enjoyment of the premises or that Tenant aband oned the Club; t o t he contrary, the unc ontr overted allegations and evidenc e establish that Tenant

rema ined on t he premise s even after Landlord obtained a judgmen t of pos session , and there i s no evidence that Tenant ever abandoned the premises. Tenant alleged in its live pl e ading, “ Given t hat t he only default noticed by [ Landlord ] was for nonpayment of ‘ Rent, ’ and th e [Justi ce] Court co rrectly found that there was no

‘ Rent ’ default, [ Tenant ] filed its notice of appeal, and currently remains in
pos session , but has suffere d da m ages

. . . . ” (Emph asis added. ) Thus, there is no evidence of an actual or constructive evic tion, and Tenant did not m eet its burden to show clear and speci fic evidence in support of the portion of its breach of the

coven ant of quiet enjoyment claim tha t is subjec t to the T CP A. See 2616 S. Loop L.L.C. v. Health Source Home C are, Inc. , 201 S.W.3d 349 , 359 n.7 (Tex. App.

— H ouston [14th Dist.] 20 06 , no pet. )

. T he tria l co urt erred by impl icitly denying Land lord ’ s mot ion to dismiss the claim for b reach of t h e imp lied covenant o f quie t enjoyment to the extent i t is factually predicated on the forcible detaine r lawsuit. We order this portion of the claim dismiss ed without pr ejudice

. See Williams v. R amey , N o . 14

- 21

- 00158

- CV , 2022 WL 2517118 , at * 4 (Tex. App.

— Houston [14th Dist.] July 7, 2022, no pet. h. ) (mem. op.)

. 3. Wrongful eviction
The elements for w rongful eviction inclu de : (1) the existe nce of an unexpired lease ; (2 ) the tenant’s occupancy of the premises ; (3) the landlord’s

ev ictio n of the tenant ; and (4) d amages suffered by the tenant attributable to the21

eviction. See Garcia v. Galvan , No. 14

- 11

- 0 0338

- CV, 2012 WL 160 6312, at *3 (Tex. A pp.

— Houston [14th Dist.] Ma y 8, 2012, pet. dism ’ d w.o.j.) (mem. op.). For the same reason a s jus t d iscussed, Ten a nt di d not meet its prima facie burden for its wrong ful eviction claim because it is undisputed tha t Landlord did not
actua lly or constructive ly evict Tenant from the pr operty

. See, e.g. , McKenzie v. Carte , 385 S.W.2d 520, 528 (Tex. App.

— Corp us Christi 1 9 64, writ re f ’ d n.r.e.) ( a n essential element of wrongful eviction is the eviction or dispossession of the plaintiff ) ; a ccord al so McNe ely v. S alado Crossing Holding, L.P

. , No. 04

- 16

- 00678

- CV, 2017 WL 2561551, at * 7 (Tex. App.

— San Ant onio June 14, 2017, no pet.) (m em. op.) (because plaintiffs remained able to access premises and pro d uced no evidence of evic tion or disposses sion, no
- evidence summa ry judgment was
proper on w r ongful eviction claim).
We order Tenant ’ s wrongful eviction claim dismis s ed without p rejudice

. See Williams , 2022 WL 2517118 , at *4

. Conclusion
The tr ial court erred in den ying Landlord ’ s motion as to: (a) the part of Tena nt ’ s breach of the covenant of quiet enjoyment claim that is factually predi cated o n Landlord ’ s forcible detai ner law suit ; and (b ) Tenant ’ s wrong ful eviction claim

. We reverse in part and render judgment dismissing those clai ms without prejud ice

. We affirm the trial court ’ s order in all other respects , and we remand the case for furthe r proceedings consistent with this opini on.

/s Kevin Jewell Justice

Panel consists of Just ices Jewell, Bourliot, and Zimmerer

.