1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00335-CV

__________________

TODD NOBLES, Appellant

V.

UNITED STATES PRECIOUS METALS, L.L.C. AND NATHAN CAMP, 

Appellees

__________________________________________________________________

On Appeal from the 60th District Court

Jefferson County, Texas

Trial Cause No. B-203,885

__________________________________________________________________

MEMORANDUM OPINION

Appellees United States Precious Metals, L.L.C. (USPM) and Nathan Camp 

sued Appellant Todd Nobles for breach of contract, business disparagement, and 

defamation per se.1 The trial court entered an order denying Nobles’s motion to 

1 Appellees also sued for harassment and “potential stalking,” which they later 

acknowledged were not recognized causes of action, instead referring to them as 

“exemplars.”
2

dismiss under the Texas Citizens Participation Act (TCPA). See generally Tex. Civ. 

Prac. & Rem. Code Ann. §§ 27.001–.011. Nobles raises two issues in this 

interlocutory appeal: (1) whether Appellees’ claims are based on, related to or in 

response to Nobles’s communications made either in connection with a matter of 

public concern or with others invoking common interests; and (2) whether 

Appellees’ nonsuit and responsive briefing meet their affirmative burden under the 

TCPA to establish a prima facie case for every requisite element of their claims by

clear and specific evidence. We hold the TCPA is not applicable to Appellees’ 

claims and affirm the trial court’s order denying Nobles’s motion to dismiss.

I. Background

The underlying dispute arises out of a buyout agreement between Appellees 

and Nobles executed on December 4, 2017.

2 This buyout agreement contained a 

“mutual non-disparagement” provision. Both Nobles and Camp previously had 

ownership interests in USPM and Cross Creek Properties (CCP). Through the 

buyout agreement, USPM, CCP, and Camp acquired Nobles’s interests in USPM 

and CCP. 

2 The parties refer to this document interchangeably as the “buyout 

agreement” or the “Verified Settlement and Release Agreement.” For purposes of 

clarity, we refer to it as the “buyout agreement” in this opinion.
3

Following the buyout, Nobles remained in touch with various former and 

current USPM employees, speaking to them occasionally by telephone or text. Casey 

Mozley was one of these employees. Sometimes their discussions concerned sports 

and other personal interests, while at other times, the discussions centered around 

Camp’s management of the business after Nobles’s departure. 

Appellees filed suit against Nobles seeking a temporary restraining order, 

temporary injunction, and permanent injunction based on Nobles’s alleged violation 

of the anti-disparagement agreement. In their original petition, Appellees alleged 

that

Mr. Nobles disparaged Mr. Camp in his conversation with Casey 

Mozley on or about March 4, 2019. Mr. Nobles claimed to be acting in 

partnership with a disgruntled employee who quit her employment at 

USPM, Ms. Christi Armstrong. Mr. Nobles stated that he was going to 

“take the company back” from Mr. Camp, and that he was in the process 

of documenting a future lawsuit against Camp in order to take over 

control of USPM.

Appellees pleaded causes of action for breach of contract, business disparagement, 

defamation per se, harassment, and “potentially stalking of Camp by Nobles.”

Appellees sought to recover actual damages, attorneys’ fees and costs, and punitive 

damages. In support of their petition, Appellees attached a redacted version of the 

signed buyout agreement showing the mutual non-disparagement provision. The 
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trial court granted the temporary restraining order and set the temporary injunction 

for oral hearing.

Nobles filed a TCPA motion to dismiss the business disparagement and 

defamation per se claims, arguing that the “lawsuit is clearly intended to restrict 

Defendant’s exercise of his rights to speak and associate freely.” 3 Nobles further 

argued that USPM could not establish by clear and specific evidence a prima facie 

case for each essential element of those claims. In Nobles’s TCPA motion to dismiss,

he alleged that since the parties executed the buyout agreement, Appellees had 

engaged in conduct that caused him financial harm, and specifically, Camp shifted 

tax obligations to Nobles. In his TCPA motion to dismiss, Nobles explained that

[w]hile Defendant is no longer an owner of USPM pursuant to the 

Agreement, he has remained in occasional, casual social contact with 

some of his former coworkers who remain affected by Plaintiffs’ 

business practices that necessitated Defendant’s departure from USPM. 

Plaintiffs’ conduct has caused Defendant to be concerned for his 

financial and legal well-being, as well as that of his former employees 

and coworkers, for whom he feels some ethical responsibility.

In his TCPA motion to dismiss, Nobles further contended that Appellees filed 

suit against him in “apparent retaliation for questioning Plaintiffs’ tax 

3 Nobles did not move to dismiss Appellees’ breach of contract claim in his 

TCPA motion. Accordingly, we do not address the breach of contract cause of 

action, despite the parties’ extensive briefing on the breach of contract claim. See

Tex. R. App. 33.1
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activities[.]”Nobles complained that his “occasional personal conversations” 

prompted Appellees to file the lawsuit. Ultimately, Nobles argued that the TCPA 

applied to bar Appellees’ claims against him for business disparagement and 

defamation per se because they “are based on, related to, and are in response to 

Defendant’s exercise of his right of free speech.” Nobles argued that the 

communications “were made in connection with a matter of public concern, 

specifically concerning a good, product or service in the marketplace[.]” He also 

contended the TCPA applied because his communications with current and former 

USPM employees constituted communications “between individuals who join 

together to collectively express, promote, pursue, or defend common interests” 

which implicated his right of association. Nobles also sought sanctions and to 

recover his attorney fees.

In the trial court, Appellees responded that the TCPA did not apply and that 

they were simply attempting to enforce a settlement agreement, specifically the nondisparagement provision. Appellees non-suited their business disparagement, 

defamation per se, harassment and “potential stalking” claims without prejudice the 

day of the hearing on the TCPA motion to dismiss leaving only their breach of 

contract claim. The trial court denied Nobles’s TCPA motion to dismiss, and this 

interlocutory appeal followed. See id. §§ 27.008(b), 51.014(a)(12).
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II. Standard of Review

We review the trial court’s denial of a TCPA motion to dismiss de novo. See

Smith v. Crestview NuV, LLC, 565 S.W.3d 793, 796 (Tex. App.—Fort Worth 2018, 

pet. denied) (citations omitted); Walker v. Hartman, 516 S.W.3d 71, 79–80 (Tex. 

App.—Beaumont 2017, pet. denied) (citation omitted); see also Adams v. Starside 

Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018) (citations omitted) “In 

conducting this review, we consider, in the light most favorable to the non-movant, 

the pleadings and any supporting and opposing affidavits stating the facts on which 

the claim or defense is based.” Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 

424 (Tex. App.—Dallas 2019, pet. denied) (citations omitted); see also Tex. Civ. 

Prac. & Rem. Code Ann. § 27.006(a). 

Here, Nobles argues that the TCPA applies (1) because his communications 

dealt with goods, products or services in the marketplace, and (2) his 

communications were also “between and among persons who are collectively 

pursuing a matter of common interest[,]” particularly an “evaluation of the efficacy, 

lawfulness, and ethics of USPM’s business operations.” We limit our analysis to 

those two asserted bases for TCPA applicability. See Forget About it, Inc. v. BioTE

Medical, LLC, 585 S.W.3d 59, 66 (Tex. App.—Dallas 2019, pet. denied); Brugger 

v. Swinford, No. 14-16-00069-CV, 2016 WL 4444036, at *2 (Tex. App.—Houston 
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[14th Dist.] Aug. 23, 2016, no pet.) (mem. op.) (confining review on appeal to the 

bases for TCPA applicability asserted in the TCPA motion to dismiss); see also Tex. 

R. App. P. 33.1.

III. Analysis

A. Effect of Appellees’ Partial Non-suit

A TCPA motion to dismiss survives a nonsuit, because unlike a nonsuit, the 

TCPA motion to dismiss permits the movant to obtain a dismissal with prejudice, 

attorney’s fees, and sanctions. See Walker, 516 S.W.3d at 80. Nobles’s TCPA 

motion to dismiss survived Appellees’ nonsuit of their business disparagement and 

defamation per se claims, and we therefore address the merits of the issues on appeal. 

See id. at 80.

B. TCPA Generally

The legislature recently amended the TCPA. See Act of May 17, 2019, 86th 

Leg., R.S., ch. 378, 2019 Tex. Gen. Laws 684 (current version at Tex. Civ. Prac. & 

Rem. Code Ann. §§ 27.001–.011). The prior version of the statute controls cases 

filed before September 1, 2019, and therefore, applies to this case. See id. §§ 11–12, 

2019 Tex. Gen. Laws at 687.4

4 While we cite to the current version of the statute throughout this opinion, 

we provide the session law cites at the outset of our analysis showing the prior 
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The 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). The TCPA is meant 

“to encourage and safeguard the constitutional rights of persons to petition, speak 

freely, associate freely, and otherwise participate in government to the maximum 

extent permitted by law and, at the same time, protect the rights of a person to file 

meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code Ann. §

27.002. Courts construe the TCPA liberally to ensure its stated purpose and intent 

are fully effectuated. See id. § 27.011; ExxonMobil Pipeline Co. v. Coleman, 512 

S.W.3d 895, 898 (Tex. 2017). Under the applicable version of the TCPA, a party 

may file a motion to dismiss a “legal action” that is “based on or is in response to a 

party’s exercise of the right of free speech . . . or right of association[.]” See Tex. 

Civ. Prac. & Rem. Code Ann. § 27.003(a).

A TCPA motion to dismiss involves a multi-step process. See id. § 27.005(b)–

(d); Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018); Lipsky, 460 S.W.3d at 

586–87. First, the defendant-movant bears the initial burden “to show ‘by a 

preponderance of the evidence’ that the plaintiff’s claim ‘is based on, relates to, or 

version of the statute applicable to this case and the recent amendments applicable 

to cases filed after September 21, 2019. 
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is in response to the [movant’s] exercise of: (1) the right of free speech; (2) the right 

to petition; or (3) the right of association.’” Lipsky, 460 S.W.3d at 586–87 (quoting 

Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)); see also Creative Oil & Gas, LLC 

v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 131–32 (Tex. 2019). If the movant 

establishes that the plaintiff’s lawsuit implicates one of these rights, the burden shifts 

to the plaintiff to “‘establish[ ] by clear and specific evidence a prima facie case for 

each essential element of the claim in question.’” Lipsky, 460 S.W.3d at 587 (quoting 

Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c)). Finally, if the nonmovant 

establishes their prima facie case, the burden shifts back to the movant to establish 

each essential element of an affirmative defense by a preponderance of the evidence. 

Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d); Youngkin, 546 S.W.3d at 679; 

Coleman, 512 S.W.3d at 899. 

C. TCPA Applicability

In the present case, Nobles asserts Appellees’ claims are based on, related to, 

and are in response to his exercise of his right to free speech and his right of 

association. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). To decide whether 

a legal action warrants dismissal under the TCPA, we consider the pleadings and 

affidavits stating the facts on which liability is based. See id. § 27.006(a). 

Determining the legal action’s basis is the first step of the dismissal analysis and 
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requires us to consider the plaintiffs’ petition, which is “the ‘best and all-sufficient 

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

2017) (quoting Stockyards Nat’l Bank v. Maples, 95 S.W.2d 1300, 1302 (Tex. 

1936)). A legal action’s basis is determined by the plaintiff’s allegations rather than 

the defendant’s admissions or denials. Id. When a plaintiff’s pleadings make clear 

that the action is covered by the TCPA, a defendant need not show more. Id.

Although Nobles did not submit any affidavits in support of the motion to dismiss, 

we examine the parties’ pleadings and the affidavit of Camp. See Tex. Civ. Prac. & 

Rem. Code Ann. § 27.006(a); Dyer, 573 S.W.3d at 424; Walker, 516 S.W.3d at 79 

(noting pleadings are considered “as evidence” under the TCPA) (citations omitted).

i. Right to Free Speech

Exercising one’s right of free speech includes any “communication made in 

connection with a matter of public concern.” Tex. Civ. Prac. & Rem. Code Ann. §

27.001(3); Adams, 547 S.W.3d at 894. “Matter[s] of public concern” include issues

pertaining to health or safety, environmental, economic, or community well-being, 

the government, a public official or public figure, or a good, product or service in 

the marketplace. See Adams, 547 S.W.3d at 894; see also Tex. Civ. Prac. & Rem. 

Code Ann. § 27.001(7). Nobles argues that the communications at issue concerned 

goods, products or services in the marketplace. Accordingly, that is the “matter of 
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public concern” we address. See Tex. R. App. 33.1; Lahijani v. Melifera Partners, 

LLC, No. 01-14-01025-CV, 2015 WL 6692197, at *3 (Tex. App.—Houston [1st 

Dist.] Nov. 3, 2015, no pet.) (mem. op.) (concluding where TCPA motion to dismiss 

argued only that defendant’s statements were related to a “service in the 

marketplace,” only that theory was preserved for review). Nobles must establish by 

a preponderance of the evidence that his communications were made in connection 

with this matter of public concern. See Tex. Civ. Prac. & Rem. Code Ann. § 

27.001(3); Adams, 547 S.W.3d at 892.

The parties do not dispute that Nobles communicated with current and former 

USPM employees or that those communications formed the basis of the lawsuit. 

Specifically, Appellees alleged that Nobles contacted Mozley and Camp. Nobles 

characterizes the communications as “occasional personal conversations[.]” The 

Texas Supreme Court has previously held “that private communications are 

sometimes covered by the TCPA.”5 See Creative Oil & Gas, 591 S.W.3d at 136 

(citing Coleman, 512 S.W.3d at 901; Lippincott v. Whisenhunt, 462 S.W.3d 507, 

509–10 (Tex. 2015)). The question is whether, as Nobles asserted in his TCPA 

5 These prior cases involving private communications dealt with 

“environmental, health or safety concerns that had public relevance beyond the 

pecuniary interests of the parties involved.” Creative Oil & Gas, LLC v. Lona Hills 

Ranch, LLC, 591 S.W.3d 127, 136 (Tex. 2019) (citations omitted).
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motion to dismiss, those communications concerned a product, good, or service in 

the marketplace.

In Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, the Texas Supreme 

Court addressed the meaning of “good, product or service in the marketplace.” 591 

S.W.3d at 137. There, the Court determined that the communications at issue were 

to “a limited business audience concerning a private contract dispute” and did not 

relate to a matter of public concern. See id. at 136. The Court explained that the 

record was “devoid of allegations or evidence that the dispute had any relevance to 

the broader marketplace or otherwise could reasonably be characterized as involving 

public concerns.” See id.

Similarly, the communications at issue here related to Camp’s operation of 

USPM following Nobles’s departure and Nobles’s personal tax liabilities following 

the buyout. While USPM may offer goods or services in the marketplace, the alleged 

communications forming the basis of the lawsuit do not pertain to those goods or 

services. Neither the pleadings nor any affidavits establish that Nobles’s

communications went beyond criticizing Camp’s handling of internal USPM 

operations, i.e., managing employees, Nobles’s desire to regain control of the 

company, or complaining about Nobles’s own tax burden following the buyout. The 

complained of communications to current and past employees dealt with private
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company matters and Nobles’s own pecuniary interest rather than USPM’s goods, 

products, or services in the marketplace. 

Not all communications relating somehow to a broad category set out in 

section 27.001(7) always regard a matter of public concern. See id. at 137. “A private 

contract dispute affecting only the fortunes of the private parties involved is simply 

not a ‘matter of public concern’ under any tenable understanding of those words.” 

Id. The case we find before us boils down to a private dispute over a buyout 

agreement and the anti-disparagement provision contained therein, the management 

of the company at issue subsequent to that buyout, and a party being dissatisfied with 

his tax burden following the sale. Based on the record before us, we conclude that 

Nobles failed to meet his burden of establishing by a preponderance of the evidence 

that the communications at issue “related to a good, product or service in the 

marketplace” constituting “a matter of public concern.” 

ii. Right of Association

The applicable version of the TCPA defines the right to associate as “a 

communication between individuals who join together to collectively express, 

promote, pursue, or defend common interests[.]” Act of May 21, 2011, 82nd Leg., 

R.S., ch. 341 § 2, 2011 Tex. Sess. Law Serv. 960, 960 (amended 2019) (current 

version at Tex. Civ. Prac. & Rem. Code Ann. § 27.001(2)) (emphasis added). 
14

Appellees’ petition complains of statements Nobles made to Mozley and Camp 

which form the basis of this lawsuit.6 Nobles also argues that the communications 

were an exercise of his right of association. Specifically, he contends that the 

“communications are between and among persons collectively pursuing a matter of 

common interest – evaluation of the efficacy, lawfulness, and ethics of USPM’s 

business operations.” 

The record reveals that Nobles’s communications with Mozley and Camp 

consisted of him complaining about his dissatisfaction with the buyout, his tax 

burden as a result of the bill, his intention to file a lawsuit to regain control of the 

company, and Camp’s treatment of employees. Nothing in the record, either by way 

of pleadings or affidavits, establishes that Nobles “join[ed] together to collectively

express, promote, pursue, or defend common interests” with Camp or Mozley. See

id. (emphasis added). 

Despite Nobles’s characterization in the TCPA motion to dismiss and on 

appeal that the communications were between and among persons “collectively 

6 The petition briefly mentions another former employee that Nobles allegedly 

worked “in partnership” with; however, the petition does not describe any 

communications between Nobles and this other former employee that form the basis 

of the lawsuit.
15

pursuing a matter of common interest,” the record does not bear this out.7 Rather,

the record shows that Nobles was unhappy with the buyout, desired to regain control 

of the company, and planned to file a lawsuit; nothing in the record indicates Mozley 

joined with Nobles to pursue those as common interests. See id. Likewise, Nobles’s 

communications with Camp did not involve the pursuit of a common interest. If 

anything, the record reflects that the interests of Nobles and Camp diverged. See 

Levatino v. Apple Tree Café Touring, Inc., 486 S.W.3d 724, 728 (Tex. App.—Dallas 

2016, pet. denied) (concluding that communications “between adversaries” were 

“not between persons acting to promote, pursue, or express their common interest”).

Nobles did not show by a preponderance of the evidence that the communications 

were an exercise of his right to associate. 

Nobles failed to satisfy his initial burden to show by a preponderance of the 

evidence that Appellees’ business disparagement and defamation per se claims were 

based on, related to, or in response to his exercise of the right of free speech or the 

right of association, and therefore did not trigger the TCPA’s applicability. See

Lipsky, 460 S.W.3d at 586–87 (quoting Tex. Civ. Prac. & Rem. Code Ann. §

7 When reviewing a TCPA motion to dismiss, we consider pleadings in the 

light most favorable to the nonmovant and do not “blindly accept attempts by 

[appellants] to characterize [appellees’] claims as implicating protected expression. 

See Shields v. Shields, No. 05-18-01539-CV, 2019 WL 4071997, at *6 (Tex. App.—

Dallas Aug. 29, 2019, pet. denied) (citations omitted).
16

27.005(b)). Accordingly, the burden never shifted to Appellees to establish a prima 

facie case for their claims of business disparagement and defamation per se. See id.

(explaining the burden shifting framework of the TCPA); Tervita, LLC v. Sutterfield, 

482 S.W.3d 280, 287 (Tex. App.—Dallas 2015, pet. denied) (reasoning that where 

a movant failed to meet its burden of showing the TCPA’s applicability, it need not 

address other prongs of TCPA analysis). We overrule both issues.

IV. Conclusion

Having determined that Nobles failed to meet his burden to establish by a 

preponderance of the evidence that the TCPA applies, we conclude the trial court 

properly denied his TCPA motion to dismiss Appellees’ business disparagement and 

defamation per se claims. We affirm the trial court’s order denying Nobles’s TCPA 

motion to dismiss.

AFFIRMED.

_________________________

CHARLES KREGER

Justice

Submitted on January 24, 2020

Opinion Delivered March 26, 2020

Before McKeithen, C.J., Kreger and Johnson, JJ.