Affirmed and Cross
- Appeal Dismissed and Memorandum Opinion filed

January 9 , 2024
.

In The



## Fourteenth Court of Appeals

NO. 14
- 22
- 00244
- CV

ENTERPRISE GAMING LLC , Appellant / Cross
- Appellee
V. 024 FAMILY OFFICE LLC , Appellee / Cross
- Appellant
On Appe al from th e 165th District Court

Harris County, Texas Trial Court Cau se No. 2021
- 40998

MEMORANDUM OPINION Enterprise Gaming LL C appeals from the denial of its motion to dismiss under the Texas Citizens Participation Act , 1 contending that 024 Family Offi ce LLC ’ s c laims are based on or in response to Enterprise ’ s exerc ise of its right of association with other defendants

. Family Office also appealed but declined to

1 See Tex. Civ. Prac . & Rem. Code § 27.001

– .0 11.2

prosecute i ts appeal. We dismiss Family Office ’ s appea l and affirm the trial
court ’ s judgm ent

. I. TCPA L E GAL P RINCIPLES The TCPA was designed to protect a defendant ’ s rights of speech, petition, and association while protecting a claimant ’ s right to pursue valid legal claims for injuries ca used by the defendant. Montelongo v. Abrea , 622 S.W.3d 2 9 0, 295 (Te x. 2021) (citing Tex. Civ. Prac. & Rem. Code § 27.002). To accomplish this objective, the TCPA provides for a multi

- step process for the dismissal of a legal action to which it applies. See id. at 2 9 5

– 96. First , the movant must demonstrate
t hat the legal action is “ based on or is in response to” the movant ’ s exercise of a protected right

— here, t he right of association. See i d. at 296. Then, if the movant meets this burden, the claimant may avoid dismi ssal by e stablishing by clear and spe cific evidence a prima facie c ase for ea ch essential element of the claim in question or the application of a statutory exemption

. See Union Pacific R.R. Co. v. Dorsey , 651 S.W.3d 692, 695 (Tex. App.

— Houston [14th Dist.] 2022, no pet.) (citing Montelongo , 6 22 S.W.3d at 295 ; Hieber v. Percheron Ho ldings, LLC , 591 S.W.3d 208, 2 10

– 11 (Tex. App.

— Houston [14th Dist.] 2019, pet. denied))

. An “exercise of the right of association” me ans to join together to collectively express, promote , pursue, or defend common i nterests relating to a governm ental proc ee ding or a matter of public concern. Tex. Civ. Prac. & Rem. Code § 27.001(2). “ Common interests ” means something more than individuals joining together as part of pr ivate business transactions; it means “ of or rel ating to a community at large: public

. ” Rep. Tavern & Music Hall, LLC v. Laurenzo ’ s Mi dtown Mgmt., LLC , 618 S.W.3d 1 18, 126

– 27 (Te x. App.

— Houston [14th Dist.] 2020, no pet. )

. A “matter of public concern” is a statement or activity regarding (1) “ a p ublic official, public figure, or o ther perso n who has drawn substantial3

public attention due to the pe rson ’ s official acts, fame, notoriety, or celebrity ” ; (2) “a matter of political, social, or other interest to the community” ; or (3) “a subject of concern to the public.” Tex. Civ. Pra c. & Rem. Co d e § 27.001(7). We review de novo whether the parties have met their respective burdens. See M.A. Mills, P.C. v. Kotts , 640 S.W.3d 323 , 326 (Tex. App.

— Houston [14th Dist.] 2022, pet. denied ). In reviewing these issu es, the plaintiff ’ s petition i s the “bes t and all

- sufficient evidence of the nature” of a claim. He rsh v. Tatum , 526 S.W.3d 462, 467 (Tex. 2017) (quotation omitted). The basis of a legal action is not determined by the defendan t ’ s admissions or denials b ut by the plaintiff ’ s allegati ons. Id. We view the ple adings in the light most favorable to the pl aintiff , favoring the conclusion that their claims are not predicated on protected expression. Sanchez v. Striever , 614 S.W.3d 233 , 246 (Tex. App.

— Houston [14th Dist.] 2020, no pet.).
II. B ACKGROUND
In its live petition, Family Office asserts claims against E nterprise and five other defendants for fraud, breach of contract, theft under th e Texas Theft Liability Act, conversion, unjust enrichment, money had and r eceived , and conspiracy.
Fam ily Office al leges that the defendants “ duped ” Family Office into lending them money for a series of “ bogus transactions p urportedly relate d to the production and sale of personal protective equipment and disinfectant foggers

. ” The defendants “ made materi al misrepr esenta tions about the transactions and their intent to repay [ Family Office ] for its investments. ” The defendants “ repre sented that they had executed valid written purchase agreements with contract counterparties, b ut the signatures on those agr eements ar e believe d to have been either forged or made by individuals with no authority to enter into the transactions at iss ue. ”4

F amily Office alleges that it loaned several of the named defendants millions of dollars so the defendants could purchase and resell pr otective equipment and disinfectant defoggers during the C ovid

- 19 pandemic. Although the defendants characterized the tra nsactions as a “ humanitarian effort to aid in combatting the effects ” of the pandemic, Family O ffice alleges that the defend ants inste ad conspi red to steal the money

. Several of the defendant s repeated ly lied to and tricked Family Office into lending the funds, which the defendants have not repaid

. One of the defendant s , Robert Max well , funneled millions of dollars to his

e
- s ports comp any, Ente rprise. Family Office alleges that the “ defendants ” general ly engage d in the wrongful conduct . Regarding Enterprise specifically, Family Office alleg es that Enterprise ’ s corporate form should be disregarde d because Maxwell funded Enter prise with money wr ongfully obtained from Family Office , comingled funds, and f ailed to observe corporate formalities. Enterprise filed a motion to d ismiss under the TCPA, conte nding that Family Office ’ s claims were based on o r in response to Enterprise ’ s exercise o f its rig ht of association with the codefendants, one of who m w as the mayor of Hunters Creek Village , a city in Harris County. The motion was denied by o peration of law , and both par ties appealed

. See Tex. Civ. Pra c. & Rem. Code § 27.008(a).
III. E N TERPRISE ’ S A PP EAL Enterprise contends as part of its fir st issue that the trial court erred by denying the motion to dismiss because Enterprise met its initial burden to show that the TCPA applied to each of Family Office ’ s cl aims against Enterprise

. Ente rprise con tend s that the claims are based on Enterprise ’ s e xercise of it s right of association because Enterprise joined together with the other defendants “ to pursue the common interest of combatting the Covid

- 19 pandemic , ” n oting that one of the defendan ts was a n elected official.5

The right of association is not implicated when a plaintiff claims merely th at the defendants conspired to engage in tortious conduct. See Huynh v. Francois

- Le , No. 14

- 19

- 00138

- CV, 2021 WL 686291, at * 4 (Tex. App.

— Houston [14th Dist.] Fe b. 23, 2021, no pet.); Rep. Tavern , 618 S.W.3d at 126

. There must be a

“ common interest ” that relates to the community at large. Rep. Tavern , 618 S.W.3d at 12 5

– 2 7 ( TCPA inapplicable to allegations based on represen tations that the defendants wo uld fund t he construction and operation of a restaurant because the clai ms conc erned “ only a private transaction between private parties ” ) ; see also Huynh , 2021 WL 686291, at *1, *5 ( TCPA inapplicable to claims for conspiracy, tortious interference, and co nversion b ased on allegations that the defendants undertook a coordinated effort t o damage a busines s and its rep utation). Family Office alleges in its petition , which we review de novo and in the light most favorable to Famil y Office, tha t although Enterp rise and t he other defendants claimed to have a common interest o f combatting a pandemic, in fact the defendants did no such thing. Instead, they joined togethe r to defraud Family Office

. Thus, Family Office does not allege that the defendants j oin ed tog ether to

c ollectively express, promote , pursue, or defend common interests relating to a governmental proc ee ding or a matter of public concern

. Fami ly Office ’ s claims

are “ based on or in response to ” the defendant ’ s joining t ogether to defraud Family Offi ce. Famil y Office alleges in its petition that it was du ped into lending money to several of the defendants , that the funding it provided was obtained by misrepresentations , and that the defendants nev er intended to repay.
Al legations that the defendants used a pur ported plan to produce and sell Covid

- 19 protective equipment and dis i nfectant foggers as a r use to steal from Family Office d oes not convert an ordinary business dispute into a protected

ex erc ise of the right of ass ociation among joint tort feaso rs. For example, Noble6

Capit al Venture Fund, LLC v. Revelry on the Bo ulevard, LLC , No

. 08

- 22

- 00208

- CV, 2023 WL 5313093 (Tex. App.

— El Paso Aug. 17, 2023, pet. filed) (mem. op.), involved claims for breach of fid uciary duty and fraud, among others, concerni ng loans and the funding of a restaurant during the Covid

- 19 pandemic. See id. at *2. Despite the movant ’ s argument that the TCPA appl ied because the restaurant was impacted by the pandemic and received related federal loans , the claimant ’ s suit

was fact ually pre dicated on corr espondence concerning the nature of the movant ’ s financ ial contributions, forged promissory notes, and de mands for payment

— i.e ., the parties ’ business relationship. See id. at * 6. The movant failed to meet its burden to show that its assoc iations were made in connection with matters of public concern because the se were purely private matters concerning a contract dis pute affect ing only the fortunes of the private parties involved. See id. A p laintiff ’ s claims are not based on or i n respons e to the exercise of a protected right just because the statements or conduct at issue were made against the back drop of matters t hat may be of general interest to the public. For example, in McLane Champion s , LLC v. Houston Baseball Partners LLC , 671 S.W .3d 907 (Tex. 2023) , the Supreme Court of Texas held that the TCPA did not apply based on an alleged right of free sp eech or right of association although “ alleged misrepresentations were made in connectio n with nego t iations to close the purchase and sale of the Astros, ” id. at 919, a team that becam e “ one of the most consis tently successful teams in baseball, p laying in four World S eries in s ix years and winning two , ” id

. at 91 0 n. 1

. “ That the subject of the purchase agreement

— a professional sp or ts team

— i s generally of public interest does not render the specific communicat ions at issue relevant to a public audience whe n they were

m ade. ” Id. at 919. Rather, t he case presented a “ garden

- variety fraud and breach

of

- co ntract dispute between a priva te buyer and a private seller regarding7

statements made during a private negoti ation that [had] nothing to do with ‘ the consti tutional righ ts of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum ext ent permi tted by law. ’ ” Id. (quoting Tex. Civ. Prac. & Rem. Code § 27.002)).
E nterprise relies on Weber v. Fern andez , No. 02

- 18

- 00275

- CV, 2019 WL 1395796 (Tex. App.

— Fort Worth Mar. 28, 2019, no pet.) (mem. op.), contending th at “ courts r outinely apply the TCPA to cl aims implicating misconduct by elected officials. ” Weber involved a n elected official suing another elected offici al a nd others based on the movant ’ s a lleged defamation and libel concerning the claimant ’ s criminal history. See id. at *2. The court hel d that the claimant ’ s suit

was based on the movant ’ s exer cise of their right of free speech because the de famat ory stateme nts were made during a political contest and related to the charge an d prosecution of a public official for the crime of thef t while h e held public off ice

. See i d. at *6

. Weber is inapplicable because F am ily Office ’ s claims are not based on or in re sponse to the defendants ’ joining together to collectively express, promote , pursue, or defend commo n interests relating to the ma yor ’ s all eged theft

. Family Office ’ s claims, as described in its petition, are based on or in response to the th eft itself. Thus, F amily Office ’ s claims concern only private transactions between private parties based on the defenda nt s ’ misrepresentations to obtai n Family Office ’ s money. Enterprise failed to meet its burden to show that Family Office ’ s claims are b ased on or in response to E nterprise ’ s exerci se of the right of association. The trial court did not err by denyi ng Enterprise ’ s m otion to dism iss.8

Ente rprise ’ s first issue overruled. 2

IV. F AMILY O FFIC E ’ S A PP EAL Family Office filed a notice of appeal but did not file an appellant ’ s bri ef. Enterprise asks this court to dismiss Family Office ’ s cross
- appeal for want of pro se cution. See Tex. R. Civ. P. 38.8(a)( 1) ( “ If an appellant fail s to timely file a brief, the appellate court may: (1) dismiss the appeal for want of prosecution, unless the appellant reasonably explain s the failure and the appellee is not significantly in

jured by the appellant ’ s failu re to tim ely file a brief [.] ” ). Family Office ack nowledges in i ts appelle e ’ s b rief that i t “ decided not to proc eed ” with its appeal. Acco rdingly, Family Office ’ s cross
- appeal is dismissed for want of prosecution.
V. C ONCLUSION The trial court ’ s denial of En ter prise ’ s TCPA motion is affirmed. Family Office ’ s cross
- appeal is dismissed.

/s/ K en Wise J ustic e

Panel con sists of Justices Wise, Jewell, and Poissant.

2 Having c oncluded that the TCPA does not apply and overruled Enterprise ’ s first issue, we do not reach its secon d issue regarding the appli ca tion of the TCPA ’ s common
- law fraud exemption.