Affirm and Opinion Filed November 30, 2022

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-22-00242-CV

KEITH HARRELL, Appellant

V.

JARED S. SMITH, INDIVIDUALLY AND DERIVATIVELY ON BEHALF 

OF COVENANT EQUITY PARTNERS, L.L.C, Appellee

On Appeal from the 219th Judicial District Court

Collin County, Texas

Trial Court Cause No. 219-06220-2021

MEMORANDUM OPINION

Before Justices Myers, Pedersen, III, and Garcia

Opinion by Justice Pedersen, III

Keith Harrell appeals the trial court’s denial of his motion to dismiss this 

declaratory action filed by appellee—Jared S. Smith, individually and derivatively 

on behalf of Covenant Equity Partners, LLC—pursuant to the Texas Citizens 

Participation Act (TCPA). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.003(a), 

27.005(b)(1)(B). The basic issue is whether appellees’ suit “is based on” or “is in 

response to” appellee’s exercise of his “right to petition.” Id. § 27.005(b)(1)(B). It is 

not. Hence, we affirm the trial court’s order. Because all dispositive issues are settled 

in law, we issue this memorandum opinion. See TEX. R. APP. P. 47.2(a), 47.4.
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BACKGROUND

Smith and Harrell formed Covenant Equity Partners, LLC (Covenant) in 

2011. In the Covenant company agreement Smith and Harrell agreed that each would 

have fifty percent ownership of Covenant. Smith agreed to serve as Covenant’s 

manager. Harrell and Smith signed Covenant’s restated company agreement on 

December 15, 2011. Three of its provisions are relevant here. At the heart of this 

dispute is section 6.12, which provides:

6.12 Broad Discretion and Authority of Managers. Each Member 

acknowledges and understands that the Managers are granted broad 

discretion and authority under this Agreement and that the Managers' 

exercise of such broad discretion and authority may impair the value of 

the Membership Interest of the Member. Such Member further 

acknowledges and understands that the Managers would not cause the 

Company to issue a Membership Interest to the Member if the 

Managers did not have such broad discretion and authority, and such 

Member agrees not to challenge the Manager's exercise of such 

discretion and authority. 

Moreover, section 15.04 provides for possible expulsion of a company member who 

“has willfully violated any provision of this Agreement.” Section 15.04 also 

provides that a willfully violating member “shall be considered a Defaulting 

Member, and the Company or other Members may also exercise any one or more of 

the remedies provided for in Article 15.01.” Section 15.01 provides numerous 

remedies, including forfeiture of a defaulting member’s membership interest.

Prior to Smith’s filing this lawsuit, Harrell filed a lawsuit individually and 

derivatively on behalf of Covenant, against Smith and against entities not party to 
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this lawsuit. Harrell alleged claims for breach of fiduciary duty and joint tortfeasor 

participation in breach of fiduciary (against all defendants); breach of contract 

(against Smith); fraud (against Smith); money had and received (against all 

defendants); and sought appointment of a receiver for Covenant pursuant to section 

11.404(a)(1) of the Texas Business Organizations Code. 

Smith’s counterclaim alleged twenty-three instances in which Harrell 

challenged his authority to manage Covenant. Smith alleged Harrell challenged his 

authority in the petition and in deposition testimony. 

After unsuccessful efforts to obtain discovery information, Harrell non-suited 

his claims and paid Smith his attorney’s fees pursuant to indemnity provisions of the 

company agreement. Smith moved for leave to add a counterclaim for declaratory 

relief. He sought to allege Harrell had willfully violated section 6.12 of the restated 

agreement by challenging Smith’s broad and discretionary managerial authority. 

Harrell moved to dismiss the case. The trial court denied Smith’s motion for leave to 

amend and dismissed the matter as moot. 

Subsequently, Smith filed the present lawsuit individually and derivatively on 

behalf of Covenant against Harrell. Smith basically alleges in this lawsuit what he 

unsuccessfully sought leave to allege via counterclaim in Harrell’s previous lawsuit. 

Smith’s petition here alleges: “Pursuant to Chapter 37 of the Texas Civil Practice 

and Remedies Code, Smith moves the Court for a declaration as a matter of law that 

Harrell willfully breached the Restated Company Agreement of Covenant Equity 
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Partners, L.L.C. under Section 15.03.”1 Smith also alleges twenty-three instances of 

Harrell’s challenging Smith’s authority in the petition and in deposition testimony 

of the previous lawsuit.

Harrell subsequently filed a TCPA motion to dismiss, asserting that Smith’s 

filing a petition here violates Harrell’s right to petition that he allegedly exercised in 

his previous lawsuit. Harrell urges that this lawsuit is “based on” or is brought “in 

response to” his previous lawsuit. Harrell alleges he exercised his “right to petition” 

via his petition and deposition testimony in the previous lawsuit.

The trial court, after a hearing, denied Harrell’s TCPA motion to dismiss. This 

accelerated, interlocutory appeal followed.

THE TCPA AND STANDARD OF REVIEW

Whether the TCPA applies to a legal action is an issue of statutory 

interpretation we review de novo.2 See Creative Oil & Gas, LLC v. Lona Hills 

Ranch, LLC, 591 S.W.3d 127, 132 (Tex. 2019); Youngkin v. Hines, 546 S.W.3d 675, 

680 (Tex. 2018); Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. 

App.—Dallas 2019, pet. denied).

 

1 We note that section 15.03 concerns “compromise or release.” Smith’s reference to section 15.03 appears 

to be in error. Section 15.04 addresses willful violation of the restated agreement. The parties’ arguments 

nonetheless focus on section 15.04 rather than on section 15.03. 

2 The TCPA defines “[l]egal action” as “a lawsuit, cause of action, petition, complaint, cross-claim, or 

counterclaim or any other judicial pleading or filing that requests legal, declaratory, or equitable relief” but 

does not include certain matters not at issue here. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(6).
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As an anti-SLAPP statute,3the TCPA “protects citizens who petition or speak 

on matters of public concern from retaliatory lawsuits that seek to intimidate or 

silence them.” In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). 

In conducting our review, we must construe the TCPA “liberally to effectuate 

its purpose and intent fully.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.011(b); State 

ex rel Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018). The TCPA’s stated purpose is 

to protect both a defendant’s right to speech, petition, and association and a 

claimant’s right to pursue valid legal claims for injuries. Montelongo v. Abrea, 622 

S.W.3d 290, 299 (Tex. 2021); see also TEX.CIV. PRAC.& REM.CODE ANN. § 27.002.

Consistent with general rules of statutory construction, we ascertain and give 

effect to the legislature’s intent as expressed in the statutory language considering 

the specific language at issue and the TCPA as a whole, and we construe the statute’s 

words according to their plain and common meaning, unless a contrary intention is 

apparent from the context or unless such a construction leads to absurd results. See 

Dyer, 573 S.W.3d at 424-25.

We consider, in the light most favorable to the non-movant, the pleadings, 

evidence a court could consider under civil procedure rule 166a,4and supporting and 

opposing affidavits stating the facts on which the liability or defense is based. See 

 

3

“SLAPP” is an acronym for “Strategic Lawsuits Against Public Participation.” Krasnicki v. Tactical 

Entm’t, LLC, 583 S.W.3d 279, 282 (Tex. App.—Dallas 2019, pet. denied). 

4

See TEX. R. CIV. P. 166a (“summary judgment”).
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TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a); Riggs & Ray v. State 

Fair of Tex., No. 05-17-00973-CV, 2019 WL 4200009, at *4 (Tex. App.—Dallas 

Sept. 5, 2019, pet. denied) (mem. op.); Reed v. Centurion Terminals, LLC, No. 05-

18-01171-CV, 2019 WL 2865281, at *3 (Tex. App.—Dallas July 3, 2019, pet. 

denied) (mem. op.); Dyer, 573 S.W.3d at 424.

A claimant’s pleadings are usually “the best and all-sufficient evidence of the 

nature of the action.” Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017).

Under the TCPA, and subject to certain exemptions, ‘[i]f a legal action is 

based on or is in response to a party’s exercise of the right of free speech, right to 

petition, or right of association or arises from any act of that party in furtherance of 

the party’s communication or conduct described by Section 27.010(b), that party 

may file a motion to dismiss the legal action[,]” TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.003(a), and a court “shall dismiss” it. Id. § 27.005(b). However, a court “may 

not’ dismiss the legal action “if the party bringing [it] establishes by clear and 

specific evidence a prima facie case for each essential element of the claim in 

question.” Id. § 27.005(c). Notwithstanding section 27.005(c), however, “the court 

shall dismiss a legal action against the moving party if the moving party establishes 

an affirmative defense or other grounds on which the moving party is entitled to 

judgment as a matter of law.” Id., § 27.005(d).

The TCPA provides a three-step process for the dismissal of a legal action to 

which it applies. See Montelongo, 622 S.W.3d at 296; Creative Oil, 591 S.W.3d at 
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132; Youngkin, 546 S.W.3d at 679-80. At step one, the party moving for dismissal 

has the burden to demonstrate that the legal action is based on or is in response to 

the party’s exercise of the right of association, right of free speech, or right to 

petition. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b); Montelongo, 622 

S.W.3d at 296 (discussing three steps).

If the movant does so, the analysis proceeds to step two, where the burden 

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

for each essential element of the claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 

27.005(c); Montelongo, 622 S.W.3d at 296.

If a nonmovant satisfies its burden at step two, the analysis proceeds to step 

three, where the movant may still win dismissal by establishing an affirmative 

defense or other grounds on which the moving party is entitled to judgment as a 

matter of law. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d); Montelongo, 

622 S.W.3d at 296.

“In order to trigger the TCPA’s protection, the ‘legal action’ must be factually 

predicated on the alleged conduct that falls within the scope of [the] TCPA’s 

definition of exercise of the ‘right of free speech,’ petition, or association.” Dyer, 

573 S.W.3d at 428 (emphasis added) (citation and internal quotation marks omitted). 

If this nexus is missing, then the statute does not apply. See Sloat v. Rathbun, 513 

S.W.3d 500, 504 (Tex. App.—Austin 2015, pet. dism’d) (noting that any activities 

by the movant “that are not a factual predicate for [the non-movant’s] claims are 
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simply not pertinent to the inquiry”). We consider the pleadings and any supporting 

and opposing affidavits in the light most favorable to the non-movant, Dyer, 573 

S.W.3d at 424, favoring the conclusion that the non-movant’s claims are not 

predicated on protected expression, Damonte v. Hallmark Fin. Servs., Inc., No. 05-

18-00874-CV, 2019 WL 3059884, at *5 (Tex. App.—Dallas July 12, 2019, no pet.) 

(mem. op.); TEX. CIV. PRAC. & REM. CODE ANN. § 27.011(a) (stating that TCPA 

“does not abrogate or lessen any other . . . remedy . . . available under the 

constitutional, statutory, case, or common law or rule provisions”). 

THE PARTIES’ CONTENTIONS

Harrell argues that Smith’s lawsuit should be dismissed because it is “based 

on” or is “in response to” his right to petition, which he exercised by filing and 

providing deposition testimony in the previous lawsuit. Harrell argues that Smith’s 

petition explicitly states: “Harrell filed a lawsuit and offered a sworn deposition 

making exactly these [described] challenges to Smith’s discretion and authority to 

manage Covenant.” He argues that Smith’s petition contains no allegations of any 

alleged wrongdoing other than filing the petition and testifying in the previous 

lawsuit. “In short, Smith would not have filed this lawsuit but for Harrell’s petition 

and testimony in the prior action,” he argues.5

 

5

In his step-one TCPA argument, Harrell argues that the previous lawsuit had alleged that Smith engaged 

in self-dealing and that Smith judicially admitted in that lawsuit that section 6.12 cannot reasonably be 

construed to permit Smith to engage in self-dealing. Hence, Harrell argues, he did not willfully challenge 

Smith’s authority under section 6.12 because Smith had no authority to engage in the alleged self-dealing 
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Smith counters that merely mentioning a previous judicial proceeding does 

not necessarily establish that a movant has engaged in any communication 

constituting an exercise of a right to petition under section 27.001(4) of the TCPA 

or that the nonmovant’s claims are based on or in response to such communication. 

Smith argues that his lawsuit here does not seek to prohibit Harrell from his right to 

petition but instead seeks to obtain a declaration of the effect of the parties’ prior 

restated agreement. He asserts that the previous lawsuit merely contains “evidence 

of Harrell’s conduct that forms the basis of the dispute.”6

ANALYSIS

In his sole issue, Harrell contends the trial court erred in denying his TCPA 

motion to dismiss because Smith’s petition for declaratory relief states on its face 

that it is based solely on the petition that Harrell filed in the previous lawsuit and on 

Harrell’s deposition testimony in that lawsuit. However, we cannot “blindly accept” 

attempts by Harrell to characterize Smith’s claims as implicating protected 

expression. See Sloat, 513 S.W.3d at 504.

 

that Harrell had complained of in the previous lawsuit. We conclude Harrell’s judicial-admission argument 

would better be addressed in a later step of TCPA analysis addressing merits or defenses. Indeed, Harrell 

repeats his judicial-admission argument in his TCPA step-three argument. Our disposition of this appeal 

would be the same regardless of the effect of the judicial admission, if any. 

6 Because we otherwise hold the TCPA is inapplicable here, we do not address Smith’s contention that the 

TCPA is inapplicable because Harrell had challenged Smith’s authority prior to the filing of the previous 

lawsuit.

Moreover, due to our conclusion that the TCPA is otherwise inapplicable here, we do not decide Smith’s 

argument that Harrell waived his right to petition by agreeing not to challenge Smith’s actions as manager 

of Covenant in paragraph 6.12 of the restated company agreement.
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Our resolution of the issue is guided by our opinion Riggs & Ray, P.C. v. State 

Fair of Texas, a case involving the Uniform Declaratory Judgment Act and the 

TCPA. See Riggs & Ray, P.C., 2019 WL 4200009. In Riggs & Ray, P.C., the State 

Fair of Texas filed a declaratory action against Riggs & Ray to determine whether 

the State Fair was a public entity and thus was required to disclose information to 

Riggs & Ray. See id. at *1. Two months after the State Fair of Texas filed a notice 

of non-suit in that action, Riggs & Ray filed a declaratory action against the State

Fair of Texas. Id. Riggs & Ray sought a declaration that the State Fair of Texas was 

a governmental body and was required to disclose the information to Riggs & Ray—

the information at issue in the previous lawsuit filed and non-suited by the State Fair 

of Texas. Id. The State Fair of Texas filed a motion to dismiss in the subsequent 

lawsuit pursuant to the TCPA. Id. at *2. The State Fair of Texas alleged that Riggs 

& Ray’s lawsuit, under a previous version of the TCPA, was “based on, relates to” 

or was “in response to” the State Fair of Texas’s “right to petition.” Id. at *3. We 

concluded Riggs & Ray’s legal action was not based on, related to, or in response to 

the State Fair of Texas’s right to petition. See id. at *5. If this nexus is missing, the 

statute does not apply. See id.; Sloat, 513 S.W.3d at 504.

Moreover, we find persuasive guidance in Choudhri v. Lee, No. 01-20-00098-

CV, 2020 WL 4689204 (Tex. App.—Houston [1st Dist.] Aug. 13, 2020, pet. denied) 

(mem. op). In Choudhri, Lee sought a declaratory judgment to determine the effect 

of a prior dispute-resolution agreement on subsequent litigation, and Choudhri 
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sought to dismiss under the TCPA claiming the declaratory-judgment action violated 

his right to petition because “[t]he entirety of [Lee’s] lawsuit is a catalogue of 

complaints regarding what [Choudhri] allegedly did and did not communicate in 

various judicial proceedings.” Id. at *2. The Choudhri court held that although Lee’s 

pleadings referenced various legal actions, the TCPA did not apply because the 

declaration Lee sought did not implicate a protected communication. Id. at *3.

Rather, it involved “the legal rights and obligations of the parties under the 

Agreement” and did not “seek to prohibit Choudhri from petitioning the courts, but 

instead to obtain a declaration of the effect of the parties’ prior Agreement on the 

ongoing litigation.” Id. at *3 (“Taken in context, Lee’s declaratory judgment claim 

is not based on or relating to Choudhri’s right to petition; rather, it seeks a 

determination of the legal principles that the parties should apply in resolving their 

various legal disputes.”).7

 

7

Smith characterizes his claim for declaratory relief as follows: 

Here, the dispute before this court is whether the [sic] Harrell’s conduct, as alleged in the 

[sic] Smith’s Petition and restated herein, is an intentional challenge to Smith’s discretion 

and authority as manager, equating to a willful breach of a provision of the Company 

Agreement. In other words, is Harrell’s status under the Company agreement a “Defaulting 

Member,” and do Smith and Covenant have the right to pursue the remedies they are 

awarded under Article 15.01(a)-(h).

We note the Declaratory Judgment Act provides in part that a person interested under a written contract or 

other writings constituting a contract or whose rights, status, or other legal relations are affected by a 

contract may have determined any question of construction or validity arising under the instrument or 

contract and obtain a declaration of rights, status, or other legal relations thereunder. TEX. CIV. PRAC. &

REM. CODE ANN. § 37.004 (“subject matter of relief”).
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In light of the pleadings and evidence, we conclude Smith’s claims are not 

factually predicated on communications made in the previous lawsuit or on Harrell’s 

right to petition. See R & R, 2019 WL 4200009, at *4 (any activities by the movant 

that are not a factual predicate for the non-movant’s claims are not pertinent to our 

inquiry regarding whether the TCPA applies) (citing Sloat, 513 S.W.3d at 504)). In 

doing so we follow our standard and consider the pleadings and evidence in the light 

most favorable to the non-movant, see Dyer, 573 S.W.3d at 424, favoring the 

conclusion that the non-movant’s claims are not predicated on protected expression, 

see Damonte 2019 WL 3059884, at *5. We agree with Smith that “The 

communications Harrell trumpets are merely evidence of Harrell’s conduct that 

forms the basis of the dispute.” Simply alleging conduct that has a communication 

embedded within it does not create the relationship between the claim and the 

communication necessary to invoke the TCPA. See Riggs & Ray, P.C., 2019 WL 

4200009, at *4 (quoting Kawcak v. Antero Res. Corp., 582 S.W.3d 566, 587 (Tex. 

App.—Fort Worth 2019, pet denied)). Rather Smith’s claims are factually predicated 

solely on Harrell’s alleged conduct of willfully violating the restated company 

agreement. See Riggs & Ray, P.C., 2019 WL 4200009, at *4 (“Nothing in R & R’s 

petition suggests that its claims are predicated on anything other than SFT’s 

noncompliance with R & R’s records requests.”); Sloat, 513 S.W.3d at 504 (“Rather, 

[non-movant’s] are garden-variety tort claims based on specific conduct that the 

Scientology Defendants have failed to demonstrate, by a preponderance of the 
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evidence, implicates the exercise of their rights of ‘free speech,’ ‘association,’ or ‘to 

petition.’”); Dyer, 573 S.W.3d at 430 (plaintiffs’ claims were based on defendants’ 

alleged conspiracy to misappropriate plaintiffs’ proprietary software and 

confidential information with intent to sell or use such property). Although Harrell 

communicated his alleged willful violation of the restated agreement through his 

previous lawsuit, the alleged willful violation itself, not the communication, is the 

basis of Smith’s claims. See Riggs & Ray, P.C., 2019 WL 4200009, at *4. Hence, 

we conclude that Smith’s claims are not “based on” or in “response to” Harrell’s 

right to petition and that the TCPA does not apply.

CONCLUSION

We overrule Harrell’s issue. We affirm the trial court’s order

220242f.p05

/Bill Pedersen, III/

BILL PEDERSEN, III

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

KEITH HARRELL, Appellant

No. 05-22-00242-CV V.

JARED S. SMITH, 

INDIVIDUALLY AND 

DERIVATIVELY ON BEHALF OF 

COVENANT EQUITY PARTNERS, 

L.L.C, Appellee

On Appeal from the 219th Judicial 

District Court, Collin County, Texas

Trial Court Cause No. 219-06220-

2021.

Opinion delivered by Justice 

Pedersen, III. Justices Myers and 

Garcia participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED.

It is ORDERED that appellee JARED S. SMITH, INDIVIDUALLY AND 

DERIVATIVELY ON BEHALF OF COVENANT EQUITY PARTNERS, L.L.C 

recover his costs of this appeal from appellant KEITH HARRELL.

Judgment entered this 30

th day of November 2022.