Affirm and Opinion Filed May 11, 2016 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-15-01107-CV SASSIN & ASSOCIATES, P.C., FAHEEM B ADY SASSIN, E.E. "TREY" TAYLOR, III, AND E.E. "TREY" TAYLOR & A SSOCIATES, PLLC, Appellants V. ARACELDA HERNANDEZ, INDIVIDUALLY AND AS NEXT FRIEND OF A.G. AND M.G., MINORS, AND ANTONIO GONZALE Z, INDIVIDUALLY AND AS NEXT FRIEND OF J.G. AND A.G., MINORS, Appellees On Appeal from the 417th Judicial District Court Collin County, Texas Trial Court Cause No. 417-01724-2015



### MEMORANDUM OPINION Before Justices Bridges, Francis, and Myers Opinion by Justice Francis Aracelda Hernandez, individually and as ne xt friend of A.G. and M.G., minors, and Antonio Gonzalez, individually and as next fri end of J.G. and A.G., minors, sued Sassin & Associates, P.C., Faheem Bady Sassin, E.E. “Tre y” Taylor III, and E. E. “Trey”" Taylor & Associates, PLLC for statutory ba rratry and civil conspiracy under joint enterprise, partnership, agency, and respondeat superior theories of liabi lity. Appellants moved to dismiss the suit under chapter 27 of the Texas Civil Practices and Reme dies Code (the Texas Citizens Participation Act, commonly known as an anti-SLAPP statute). When the trial court failed to rule on the motions within the time period set out in the stat ute, the motions were denied by operation of–2– law. Appellants filed this in terlocutory appeal, challenging th e denial of the motions. We affirm. Hernandez, Gonzalez, and their four sons we re in an automobile accident December 11, 2011. Less than a week after the accident, a “His panic man” went to the Hernandez/Gonzales home to speak with them. Acco rding to Hernandez, the man had a copy of the police report and told her “it was good to ha ve a lawyer represent[ing]” them. The man said he worked for a “very good lawyer,” handed them a business card, and asked if they wanted to sign up with the lawyer he recommended. Hernandez said they would think about it. About two days later, the man returned. Wh en Hernandez told him she and Gonzalez had decided to hire a lawyer, the ma n got a fee agreement from his car and had the couple sign it. Hernandez said someone from E.E. “Trey” Taylor & Associates called a few days later and gave the couple the name of a body shop a nd a clinic for physical therapy. About a year later, E.E. “Trey” Taylor & Associates referred the case to Faheem Bady Sassin and Sassin & Associates, P.C., who filed suit against Arturo Enoe Marroquin-Ramirez on behalf of appellees. Because Marroquin-Ramir ez had been deported and his liability carrier denied appellees’ claim under a re servation of rights, appellees’ lawsuit was dismissed without prejudice. Approximately two years la ter, appellees filed this lawsuit. In three issues, the Taylor appellants conte nd the trial court erred by failing to grant their anti-SLAPP motion and awarding attorney’s fees because appellants’ rights of free speech and association were protected and a ppellees presented no evidence in support of their allegations. The Sassin appellants raise the same three argume nts and also contend appellees failed to show the commercial speech exemption applied to their claims and the trial court erred by not granting the motion based on their protected rights of petition.–3– The Texas Citizens Participation Act allows a defendant to move for dismissal of a cause of action if that claim is based on, relates to, or is in response to the defendant’s exercise of the right of free speech, the right to pet ition, or the right of association. T EX
. C IV
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. § 27.003(a) (West 2015). Each of these right s is statutorily de fined as involving communications. See id . § 27.001(a)(2)

− (4). A communication “i ncludes the making or submitting of a statement or document in any fo rm or medium, including oral, visual, written, audiovisual, or electronic.” Id . § 27.001(a)(1). The movant bears the initial burden of showi ng by a preponderance of the evidence “that the legal action is based on, relates to, or is in response to the party’s exercise of” a statutorily protected right. See id

. § 27.005(b). A defendant who denies making the communication at issue cannot rely on Chapter 27. Pickens v. Cordia , 433 S.W.3d 179, 188 (Tex. App

― Dallas 2014, no pet.). Thus, when a defendant denies making the relevant statements, the dismissal motion necessarily denies that the claim is based on, relate s to, or is in response to “the party’s exercise of . . . the right of free speech” and the defendant is not entitled to a dismissal under the statute. Tatum v. Hersh , No. 05-14-01318-CV, 2015 WL 9583494, at *8 (Tex. App.

― Dallas Dec. 30, 2015, pet. filed) (defendant who denies making any communication may not obtain dismissal by also simultaneously claiming he was exercising right of free speech by making communication); see Jardin v. Marklund , 431 S.W.3d 765, 773–74 (Tex. App.

― Houston [14th Dist.] 2014, no pet.) (statute did not apply because de fendant did not make communications); see also Rauhauser v. McGibney , No. 02-14-00215-CV, 2014 WL 6996819, at *5 (Tex. App.

― Fort Worth 2014, no pet.) (per curiam) (dismissal prope r because petition alleged defendant made other communications that de fendant did not deny making). Here, appellees sued for statutory barratry and civil conspiracy, allegi ng that appellants “caused direct contact to be made with [appell ees] in person at their Collin County residence–4– within 7 days of their car accident, for the e xpress purpose of soliciting legal representation and medical services.” The record s hows both Taylor and Sassin denied the actions that gave rise to the appellees’ complaint. Specifically, they de nied participating in a conspiracy to commit barratry or causing direct contact to be made w ith appellees or making or conspiring to make the complained-of statements. In his affidavit in support of the motion to dismiss, Taylor stated: I certainly did not participate in a cons piracy to commit barratry or cause any direct contact to be made with the Clie nts in person at their residence for the express purpose of soliciting legal represen tation or medical services in December 2011. Likewise, in his affidavi t, Sassin asserted he did not know the Clients, know about thei r claims, or know that they existed on this earth until the Fall of 2012. . . I certain ly did not participate in a conspiracy to commit barratry or cause any direct c ontact to be made with the Clients in person at their residence fo r the express purpose of soliciting legal representation or medical services in December 2011. Because appellants deny making the communications which were the basis of appellees’ claims, we conclude they are not entitled to invoke the protection of chapter 27. See Tatum , 2015 WL 9583494, at *8; Pickens , 433 S.W.3d at 188. Under these circ umstances, we cannot conclude the trial court erred by denying their motions. We ove rrule Taylor’s three issues and Sassin’s five issues. We affirm the trial court’s order.

151107F.P05 /Molly Francis/ MOLLY FRANCIS JUSTICE–5– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SASSIN & ASSOCIATES, P.C., FAHEEM BADY SASSIN, E.E. “TREY” TAYLOR, III, AND E.E. “TREY” TAYLOR & ASSOCIATES, PLLC, Appellants
No. 05-15-01107-CV V. ARACELDA HERNANDEZ, INDIVIDUALLY AND AS NEXT FRIEND OF A.G. AND M.G., MINORS, AND ANTONIO GONZALEZ, INDIVIDUALLY AND AS NEXT FRIEND OF J.G. AND A.G., MINORS, Appellees On Appeal from the 417th Judicial District Court, Collin County, Texas Trial Court Cause No. 417-01724-2015. Opinion delivered by Justice Francis, Justices Bridges and Myers participating.

In accordance with this Court’s opinion of th is date, the order of the trial court is AFFIRMED

. It is ORDERED that appellees Aracelda Hernandez, individually and as next friend of A.G. and M.G., minors, and Antonio Gonzalez, indi vidually and as next friend of J.G. and A.G., minors recover their costs of this appeal from appellant Sassin & Associates Law Firm, P.C., Faheem Bady Sassin, E.E. “Trey” Taylor, III, and E.E. “Trey” Taylor & Associates, PLLC.
Judgment entered May 11, 2016.