Reversed and Remanded and Memorandum Opinion filed December 21 , 2021.

In The 

## Fourteenth Court of Appeals

NO. 14
- 20
- 00237
- CV

DOJO BAY HOUSE , LLC , Appellant

V. TOM PICKFORD , Appellee

_________________________ TOM PICKFORD , Appell ant

V . DOJO BAY HOUSE , LLC , App ellee

O n Appeal from the 151st District Court

Harri s County, Texas Tr ial Court C a u se No. 2019
- 60692
- A

M E M O R A N D U M O P I N I O N Appellant DOJO Bay house, LLC, appeals a final order dismissing its legal action against Tom Pickfor d un der the Texas Citi ze ns Partici pation Act2

( “ TCPA ” )

. 1 DOJO contends the trial cour t erred because the TCPA does n ot apply for two independent reasons: (1) Pickford failed in his initial burde n to show by a preponder ance of the evidence that the act applies; and (2) DOJO ’ s cla im s fall

u nder the act ’ s comm ercial

- sp eech exemption

. W e co nclude that the TCPA does not a pply to D OJO ’ s le gal action because none of its claims are based on, related to, or in response to Pick for d ’ s exercise of the right to petiti on , associa tion, or fre e speech u nde r the TCPA . This is so because DOJO did not all ege, and there is no evidence o f, a “ communicati on ” by Pick ford as def

i ned by the applicable version of the act. Based on our holding, we need not address D OJO ’ s alternative argument that the co mm ercial

- s peech exemption applies. W e re verse a nd re mand for f urther proceedings. Backgroun d In its petition , DOJO alleged that an entit y known as CK R Property Management, LLC, acted as DOJO ’ s age nt in manag i ng the Ba y House Apar tments

. CKR presented t wo t e nants w ith a notice of le ase termination , which stated tha t their lease would terminate i n five days and r equired them to vacate the ir apartment w i thin that perio d

. 2
The tenan ts ’ attorney mai led CKR a letter , whic h advised of the t enants ’ intent to su e DOJO for breach of con tract and fraud

. A CK R representativ e emailed the letter to Patrick Drake , an attorney then working fo r the law firm Hoo ver S lovac ek

. In the email, CKR noted that it attached a copy of the letter and a copy of the lease. CKR ’ s re pr esentati ve concluded the e m ail by sta ting, “ [p]lease let m e know what I need to do from he re on. ” According to DOJO, Drake

1 Tex. Civ. Prac . & R em. Code §§ 27.0 0 1

- .011.
2 According to ev idence prese nted with Pick f ord ’ s T CPA motion to d i sm iss, management deemed the unit un i n habit able d u e to a recent natural disaster o r c atastrophe.3

responded that he would re n der legal services on DOJO ’ s beh al f and Drake agreed to draft a response to the lette r
. Several month s af

ter CKR emailed th e tenants ’ letter to Drake, t he ten ants

s ued DOJO in Harris Count y Distr ict Court

. 3 DOJO filed a third

- party petition against CKR and Hoover S l ovacek , and t he t ri al court severed those claims into a sepa rate action

. 4 Appellee Pickford , an other of Hoo ver Slovac e k ’ s lawyers, represented Hoover Sl ovacek in the se vered proceedin g
. DOJO later dismissed its claims against Hoover Slovacek in that action. DOJO settled the ten ants ’ claims.
DOJO then filed the pre sent law suit agai nst Drake, Ho ove r Slo vac e k, and Pickford. DOJO contended that Drake , b y representing he would take le gal action

on DOJO ’ s behalf with respect to the ten ants ’ claims, created an implied attorney

clien t relationship with DOJO “ via DOJO ’ s agent, CKR. ” DOJO alleged that Drake , H oover Slovacek, and Pickford failed to provide ti m ely not ice to DOJO of the t en a nts ’ claim s despite having received the t ena nts ’ notice letter a nd a demand letter stating they would sue DOJO

. Further, DOJO alleged that neither Pickfor d nor Dra ke t ook affi rmative steps to correct DOJO ’ s understanding reg a rding the agreement to provide legal se rvices on DOJO ’ s behalf re garding the tena nts ’ cl aims.
DOJO asserted claims for bre ach of c ontract and prof essional negligence

. In support of its cont ract cla im, DOJO allege d that “ Patrick Drake contracted with D OJO to be its re gistered agent of service . As such , Dra ke had an af firmativ e duty to forward all notices and demands to DOJO. ” F urth er, DOJO contended th at all three d efendants “ breac hed thei r contrac tual dut ie s by failing to send all not ices

3 C ause number 2017

- 63226 , Mois es Penaloza and Maria Sepu lve d a Ramos v. DOJO Bay House, LLC , in the 151st Judic ial District Court

.

4 C ause number 2017

- 6 3226

- A, DOJO Bay House, LLC v. Hoo ver Slovacek, LLP , in the 151st Judicial Distr ict Court

.4

and demands to DOJO

. ” Acco rdi ng to DOJO, the defend ants ’ breach caused DOJO to incur leg al expen ses to defe nd the tena nts ’ lawsuit , including a settlement

“ at a value much greater than that of the la wsuit, pre

- li tigation

. ” In support of its professional negl igence cl a im, DOJO alle ged that all thre e defendants “ commit ted professional ma lpractice and violated the State Bar of Texas professional st andards

. ” Again, the only damage alleged is DOJO ’ s cos t of defense and a se ttlement at a n amount allegedly greater than it w o uld have been had the defendan ts timely notified DOJO of the ten ants ’ pre
- suit letter

. Though DOJO su ed Drake, Hoover Slov acek, and Pickford, thi s appeal

concerns only the claims ag ains t Pick ford

. In hi s m otion to dism iss under the TCPA , Pickford argued t hat all of DOJO ’ s claims again st him were not base d on the te nants ’ lawsuit but rather emana ted from another lawsuit arising out of DOJO ’ s termination of its management agree ment with C KR. 5 As Pick ford arg ued , “ all of DOJO ’ s claims against Pickford em an a t e direct ly and solely from his legal representation of his clients, CKR (in the u nrelated Lawsu it against Longoria), and [Hoover Slovacek ] ( in th e Prior Lawsuit)

. ” This legal represent ation, accord ing to P ickford, constituted a n exercise of his right s to free spe ech, association, and petition under the TCPA. Pickford a s serted that “ [ t] he allegations made in CKR’s Lawsuit against L on goria, and the communication of said allegations betwe en CKR and it s lead c ounsel Pickford

. . . constitute an

‘ e xe rcise of t he right of free speech ’ of CK R and Pickford [,] which right was

exe rcised between CKR ’ s [sic] and attorney Pickfo rd. ” Pickford a ls o conten ded that his representation of CKR in the Long oria suit was an exer cise of h is “ right to

5 Whil e the tenants’ suit was pendin g, DOJO terminated its contract wit h CKR and hired a new management company. DOJO retained several form er CKR employees, inclu di ng one named Denise Longoria. CKR sued Longoria for breach of her employment ag reement. Pickfor d represented CKR in that suit , which was submitted to arbitra tio n
.5

associate with CKR ” and tha t “ the La wsuit against Longoria itself invokes the right to petition

. ”
Pickfo rd attached his affidavit and other evidence to his m otion to dismiss. In his affidavit, Pickfor d denie d an attorney

- clie nt relat ionship with DOJO , particularl y during the time t h e tena nt s ’ att orney first mail ed the notice letter to CKR

. Pickford averred that he had n ever performed le gal work on DOJO ’ s beh alf ; that CKR never asked him to perform legal work on D OJO ’ s behalf; and tha t he had no knowledge of the ten ants iden tified i n the ten a nts ’ lawsuit, or of t heir claims, or of the lawsuit itse lf, until December 2017

— which was approximately nine mon ths afte r the date the tena nts ’ first notice letter was emailed to Drake

. DOJ O respon ded to Pickford ’ s motion to dism iss and argued th a t the TC PA did not appl y
. DOJ O asserte d that Pickford ’ s motion mischaracterized DOJO ’s pe tition by focus ing on the “completely i rrelevant ” Longoria and Hoover Slovac ek lawsuits, when D OJO ’s claims ag ainst Pickford instead were based on hi s alleged failur e to timely provide notice of t he ten ants ’ claims

. DOJO did not attach any evidence to its response

. The trial cou rt granted Pi ckfor d ’ s m otion to dismi ss and the n severed DOJO ’ s claim s against Pic kford fr om the remaining claims, thu s creating a final judgment

. In the final judgment , the c ourt dismissed DOJO ’ s cl aims against Pickford with prejudice and award ed Pickford attorney ’ s fees. The cour t did not

ass es s sanction s aga i nst DOJO

. DOJO appeals t he dis missal, and Pickford appeals the failure to a ward sa nc tions.
Issues Presented
In the first part of its argument, DOJO argues that th e TCPA d oes not app ly to its claims against Pi c kford because they fall within the act ’ s commercial

- speech6

e xemption. Altern atively, DOJO contends th at Pickfor d did not demo n strate the act ’ s applicab ility because he failed to show that DOJO ’ s action is based on, rel ates to, or is in response to Pickfor d ’ s exercise of the right of free spee c h, the right of association, o r the ri ght to petition. We addres s only DOJO ’ s s econd i s sue beca use we conclu de it is dispositive

. See Tex. R. App. P. 47.1. An alys is A. Relevant law and standard of review
The TC PA contemplates an expedited d ismissal p rocedu re applicable to claims brought to inti midate or silence a defendant ’ s exercise of the rights to petition, speak freely, associate freely, and otherwise parti ci pa te in government to the maximum extent permitted by law

. See Creative Oil & G as, LLC v

. Lona Hills Ranch, LLC , 591 S. W.3d 127 , 132 ( Tex. 2019); Exxo nMobil Pipeline Co. v. Cole man , 512 S.W.3d 895, 898 (Tex. 2017) (per curiam). The TCPA establishes a three

- st ep process for resolving a motion for expedited dismissal

. Castleman v. In ternet Mo n ey Ltd

. , 546 S.W.3d 684, 691 ( Tex. 201 8) (pe r curiam) . B ut we can dispose of t oday ’ s ca se without proceeding beyond the first step

. Under the TCPA ’ s former version, applicable here, a party in vok ing the act to dismiss a legal action must meet a n initial burden to show by a prepondera nce of t he evid ence that the action “is based on, relates to, or is in response to” the moving party ’s exercise of the right of free speech , right to petition , or right of associ ation. 6 Tex. Civ. Prac. & Rem. Code § § 27.003 ( a ); 27.005(b); see also Coleman , 512 S. W.3d at 89 8.

6 The legisl a ture amended the TCPA in 2019. See Act of M ay 17, 2 019, 86 th Leg., R.S., c h. 378, 20 19 Tex. Gen. Laws 684. Th e 2019 amendments do not apply to this case, w hich was filed pr ior to the effecti ve date of t he amend ments

. See id. §§ 11

- 12 , 2 0 19 Tex. Gen. La w s at 687 (providing that amendments apply to actions filed on or after Sept em ber 1, 2 019). We refer to the TCP A version applicable to this dispute.7

As formerly defined, the exercise o f a protected right include s :

• a communication between ind ivid uals who join together to collectively expre ss, pr omote, pursue, or defend common interests , Tex . Civ. Prac. & Rem. Code § 27.00 1 (2) (associa tion) ;

• a c ommunicatio n made in connection with a matt er of public concern , id. § 27.00 1 (3) ( speech) ; a nd

• a com munication in , or pertaining to , or in connection with, certain
st atutorily identified legi slative, exe cutive, judicial, or other go vernment al procee dings , id. § 27.00 1 (4) (petition)

. All of these rights are predicated on a “ communicat ion, ” which means “ the maki ng o r submitting of a statement or documen t in any for m or medium, including oral, visual, written, audiovisual, or electro n ic.” Id

. § 27.001(1). The Sup reme Court of Texas has held that the TCPA may protect both public and private communications. See Coleman , 512 S.W.3d at 899 (discuss i ng Lipp in cott v. Whise nhunt , 462 S.W.3d 507, 509 (Tex. 2015) (per cu riam)).
We construe t he TCPA liberally to effectuate its purpose and intent fully. See Adams v . Starside Custom Builders, LLC , 547 S.W.3d 890, 894 (Tex . 2018); Enterprise Crude GP LLC v. Sealy P artners, LLC , 6 14 S.W.3d 283, 293

- 94 (Tex. App.

— Houston [1 4th Dist.] 2020, no pet

. ); Tex. Civ. Prac. & Rem. Code § 27.011(b). A court ’ s determination of w h ether claims fall within the TCPA ’ s framework is sub

ject to de no vo review. See Adams , 547 S .W.3d a t 894. We must consider the relevant pleadings an d any su ppo rting or opposing af f idavits “stating the facts on w hich the liability or defense is based.” T ex. Civ. Prac. & Rem. Code § 27.006(a). We review t hese material s in the light most favorab l e to th e nonmovant. S ee Enterprise Crude GP , 614 S.W.3d at 294.8

B. Application
In his m o tio n to dismiss, Pickford argue d that DOJO ’ s c laims are based on, relate d to, or in response to his exerci se of all three TCPA

- protected rights

. Pickford assert e d th a t DOJO ’ s laws uit was pro mpted by Pickford ’ s involvement in the L ongoria and Hoover Slova c ek suits

. 1. The plea dings We begin by examinin g the allegation s in DOJO ’ s petition, whic h are the “best, and all suffic ient evidence of the nature” of the claim

. He r sh v. Tatum , 526 S.W.3d 462, 4 67 (Tex. 2017). “ When it is clear from the plaintiff’s pl e adings t hat the a ction is covered by the Act, t he defendant need show no more. ” Id

. In t h e “ back ground ” section of its petition, DOJO alleg ed that CKR gave the notic e of lease termination to the t en ants on March 9, 201 7 , and that the tenants ’ attorney ma i led a le tter to CKR the next day. In the l ette r, the tenants ’ attorney stated his client s ’ intent to sue based on the l ease termination. According to DOJO, CKR ’ s ag e nt emailed a copy of th e attor ney ’ s letter to Drake on March 28, 2017 , and asked D rake t o provide legal assistance

. DOJO ’ s key allegati on is that Drake, Hoover Slovac ek, and Pic k ford faile d “ to provide notice to DOJO of the Tena nts ’ claims despite h aving rec eived the Tenants ’ notice letter and a demand letter stating they would sue DOJO. ” D O JO conte nded an att orney
- client relationship ex isted with Ho over Slovacek and that n eithe r Pickford n or Drake took steps to correct DOJO ’ s and CKR ’ s underst andin g “ re g arding the agree ment to provi de legal services on behalf of DOJO with respect to the T e n a nts ’ cla ims. ” Under the state ment of its br each of contract claim , D OJO asserted that the defendants, including Pick ford, breached contractual duties by “ fai ling t o send all notices and demand s to DOJO. ” DOJO did not base its contract claim on any ot h er9

alleg ed breach of d uty. Additionally, DOJO alleged that the def endants committed prof e ssional malprac tice. As damag es, DOJO alleged that the defendants ’ bre ach

o f duties caused it t o incur le gal expenses in defending the ten ants ’ lawsuit, including t h e cost t o settle the suit at a n amoun t greater than what otherwise could have been ach iev e d had the defendants provided timely notice of the attorneys ’ letter.
D OJO ’ s petition does not allege that Pickford made a “ communication ”

c oncerning the tenants ’ cl a ims or t he notice letter. Rather, it allege s t hat P ickfor d and the other defendants fail e d to com municate when they had a duty to do so. DOJO ’ s c laims are pre dicate d o n P ickfo rd ’ s alleged failu re to communicate

. As t his court has determined , the TCPA r i ghts to petition and of association and free sp eech are not implicated when the plaintiff

- non movant ’ s claims do not allege

“ communications. ” 7 Other courts are in acc o rd. 8 The TCPA defines a

7 See Al lied Or ion Grp., LLC v. Pitre , No. 14

- 19

- 00681

- CV, 2021 WL 2154065, at *3

- 4 (Te x. A pp.

— Hous ton [14 t h Dist.] May 27, 2021 , n o pet. ) (mem. op.) (because non movant ’ s lawsuit di d not assert “ any claims based upo n the making or submitting of any statement or docume nt, ” TCPA did not apply ) ; see also Neely v. Allen , No. 14

- 19

- 00706

- CV , 2021 WL 21541 25 , at * 8

- 10 (Tex. App.

— Houston [14th Dist.] May 27, 2021, no pet. h.) (mem. op.) ( holding T CP A did not apply because all eged cond uct was not a commun ication) ; Sanchez v. Strie ver , 614 S.W.3d 2 33, 246 (T ex. App.

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

.

8 See Whi te Nile Software, Inc. v. Carrington, Col eman, Sloman & Blument hal, LLP , No. 05

- 19

- 0 0 780

- CV, 2020 WL 51 04966, at *6 (Te x. App.

— Dallas Aug. 31, 2020 , pet. denied ) ( m e m . op. ) ( “ White N ile ’ s cl aims based on Carringt on Coleman ’ s alleged fai lure to com m unicate are not sub ject to the TCPA. ” ); Clayton Mountain, LLC v. Ruff , No. 11

- 20

- 00034

- CV, 2 0 21 WL 3414754, at *7 (Tex. App.

— Ea stland Aug. 5, 2021, no pet. ) (mem. op.) ; C linical Pathology Labs., Inc. v. Polo , No. 08

- 1 9

- 00067

- CV, 2020 WL 4519803 , at *5 ( T ex. App

. — El Pa s o Aug. 6, 2020, no pet. ) ; Krasnicki v. Tactical E nt., LLC , 583 S.W.3d 279, 2 8 3 (Tex. App.

— Dallas 2019 , pet. den ied ) ( because “ Tactical did not allege any ora l, written, audio visual, or electronic c ommunic ations in its claims agains t Krasni c ki ” and “ [t] he b asis of Tactical ’ s claims against Krasnicki rests solely on its assertion t h a t Krasnicki failed t o communicate with Tactical , ” claims did not fall under T CPA ) ; see also SSCP Mgmt. Inc. v. Sutherland/Palum bo, LLC , No. 02

- 19

- 00254

- CV , 2020 W L 7640150 , at *3 (Tex. App.

— Fort Worth Dec. 23, 2020, pet. denied ) (mem. op

. on re h ’ g ) ; R ay v . Fikes , No. 02

- 19

- 00232

- CV, 2019 W L 6606170, at * 3 (Tex. App.

— Fort Worth Dec. 5, 2019, pet. denie d) (mem. op.)

.10

communication as “the making or submitting of a statement or do c ument in any form or medium, including oral, vi sual, writte n, audiovisual, or electronic. ” Tex

. Civ. Prac. & Rem. Code § 27.00 1 ( 1 )

. Thi s definition does not i nclude a failure to communicate. E.g

. , Ray , 2019 WL 6606170, at *3. As Pickford correct ly ob s erves, D O JO alleg ed in the petition ’ s factual b ac kground section that “ D r ake and Pickford provided le gal advice and other servic es to CKR, and both Pickford and Dra ke pa rticipated in the events o f which the Tenants complain. ” Ho m ing in on those assert ion s , Pickfo rd says they allege communications and that all of his “ alleged liability to DOJO is based on, relates to, or is i n res ponse to Pickford ’ s provision of legal a dvi ce and services to CKR. ” While giving legal ad vice would typically const itute a comm u nication , w e conclu de for several reasons that these par ticular allega tions do not show t h at DOJO ’ s legal action is covere d by the TCPA

. The petition does not ref ere n ce the Lon goria or Hoover Slovacek matter s at all , so there is no connection from the fa c e of the pleading between any l egal adv ice by Pickfor d a nd the Long oria and Hoover Slovac e k lawsuit s
. Moreover, e ven though DOJO alleged that Pickford gave legal

a dv i ce, the contract and negligence claims as serted do n ot reference the advice allegedly gi v en, nor d id DOJO allege tha t Pi ckford (or anyo ne else) gave bad or neglig ent ad vi ce
. Ins t ead, DOJO ’ s claims reference d only the defe ndants ’ failure to p rovide time ly notice of the tenants ’ claims

. Further, DOJO ’ s alleged damages are not li nked in any wa y to lega l a dvice by Pickfor d, but rest on the prop osition that Pick ford failed to communi c ate the letter regarding the tenants ’ po tential claims

. A t this stage of t h e litigation , t o c redit Pickford ’ s belief that DOJO ’ s suit is
reta liatory would require t his c our t to assume that DOJO fil ed the presen t suit in respons e to Pickfor d ’ s involvemen t in the Longoria or Hoover Slo vacek matter s11

sim ply because DOJO ’ s action was later

- fi led

. But “[t]here are myriad re asons for deciding if and when to bring a legal a ction ag ainst a person.” Beving v. Beadles , 563 S. W.3d 399, 408 (Tex. App.

— Fort Worth 20 1 8, pet. denied)

. Pickfor d ’ s argu ment essentially asks that we “ign ore the f a ctual pre dicate as alleged in [ DOJO ’ s ] p etiti on and instead engage in pure speculation .

. . in o rder to di vine that [ DOJO ] has artfully pleaded causes of act ion against [ Pickfor d ] to re taliate a nd punish” Pickford for his legal representation of CKR and H oov er Slo vacek. Id

. W e cannot simply disreg ard th e pl eaded allegations or engage in s p e culation , especial ly con siderin g that , at this prelimina ry st a ge, we must view DOJO ’ s pet i tion in the light mo st favorable to DOJO

. 9 See, e.g. , Enterpr ise Crude GP , 6 14 S.W.3d at 294

. Pickford also suggests th at we cannot accept D OJO ’ s petition as true because to do so i s to elevate uns w orn allegations over Pickford ’ s evidence even though D O JO presented no evidence sup porting its claims

. We have stated t hat a TCPA n on
- movant cann ot rely solely on the allegations in its petition whe n meeting its prima f

a cie b urd en in response to a motion to di smiss. See Buzbee v. Clear Channel Outdoor, LLC , 616 S.W.3d 14, 28

- 29 ( Tex. App.

— Houston [14th

9 To be sure, one cannot evade the TCPA ’ s mechan i sms by a rtful p l eading

. See Smith v

. Crestview NuV, LLC , 565 S.W. 3d 793, 798 (Tex. App.

— Fo rt Wor th 2018, pet. denied). Nevert heless, courts cannot blindl y accept attempts by a TCPA movant to characterize the plaintiff ’ s claims as implicating pro tected e x pression

. Cook v. Simmons , No. 05

- 1 9

- 00091

- CV, 2019 WL 58 84426, a t *4 (Tex. App.

— Dallas No v. 12, 2019, pe t. denied ) (mem. op.)

. This is not an i nstance whe re the plaintiff alleges a commun ication but does not reveal it s content, in which case th e burden is on th e TCPA m ov ant to provide evi dence of its content s ufficien t t o demonstrate the act ’ s applicability

. See Cook v. Kyser , No. 05

- 19

- 00311

- CV, 2019 WL 5884429, at *3 (T ex. App.

— Dallas N ov. 12, 2019, pe t

. d enied ) (me m. op.) (w hen the plaintiff

nonmova n t ’ s plea dings a n d evidence do not re ference the communicat ion or i ts content and the defend an t

- mova nt does not plead or show th e content of the particular communication it a lleges is protect ed, courts are u na ble to concl ude that the plaintiff

- nonm ovant ’ s c laims ar e in re s po nse to a protected communication and sub ject to the TCPA ); see also Simmo ns , 2019 WL 588 4426, at *3; Smith , 5 65 S.W.3d at 798; Bacharach v. Doe , No. 14

- 14

- 00947

- CV, 2016 WL 269958, at *3 ( Te x. App.

— Hous ton [14th Dist.] Jan. 21, 2 016, no p et.) (me m. op.)

.12

Dist.] 2020, no pet.) . But Bu z bee involved the evaluation of evidence at the TCPA ’ s second st ep , after the court alrea d y determ in ed that th e TCPA applie d

. W e are concerned here with the act ’ s first step , whe r e the supreme court ha s said that the pleadings are the “best, and all suffi c ient evidence of the nature” of the claim. Hersh , 526 S.W.3d at 4 6 7

. Of course, this c a se is no t like Her sh , where the TCPA ’ s a pplicab ility was clear f rom the plaintiff ’ s plead i ng alone

. Id

. Here, DOJO ’ s petition does not demonstrate the act ’ s applica b ility because D OJO does not allege that Pickford ma de a “ communication ” regarding the te n ants ’ cl aims and does not art iculate damages r ela ted in any way to a communication by Pickford

. So, it was Pickford ’ s bur den to prove the act ’ s applicabili ty by a pr e ponderance of the evidence. See Tex. Civ. Prac. & Rem. Code §§ 27.003 (a); 27.005(b)

. Fo r t h e
reason s e x plai n ed in sectio n 2 bel ow, we conc lude he did not do so. In s hort, although Pickford presented evidence of commun ications, he did not present evidence t h at DOJO ’ s claims are based on, related to, or in response to the communications he id ent i fied.
Acco rdingly, w e first conclude that , looking solely to the petiti o n, DOJO ’ s articula ted claims are not based on , rela t ed to, or in response to Pickford ’ s exer cise of any TC PA

- protected right because DOJO di d not allege that Pickfor d ma d e a
co mmun ication regarding the tenants ’ noti ce letter

. Thus, we turn to whether Pi ckford p resented evidence with his motion to di smiss s ho wing th at he i n fact exerci sed his TCPA

- protected righ ts based on communicati ons, and that DOJO ’ s claims against him are b a sed on, rel ated to, or in response to his exercise of those rights

. 2. The evidence
I n his moti on to dismiss, Pickfor d limited h i s argument and e v idence to his

com munications with C KR in the Longoria an d Hoover Slovac ek lawsuit s
. In13

arguing that the TC PA a pplies t o those communications, Pickford provided the statutory definit ions of the three pr otected rights and t hen posited t hat : “ t he allegatio ns made in CKR’s Lawsu it aga inst Lo n goria, and the communication of said allegations between CKR and i ts lea d co unsel Pi ckford, therefore, constitute

an ‘ e xercise of the right of free speech ’ ” ; Pickford ’ s role as lea d counsel for CKR in th e Lon goria suit “ constitute [s] an ‘ e xer cise o f th e r i ght of association ’ of CKR and Pickf ord with each other ” ; and “ [i] t goes wit hout say ing that the filing of the Lawsuit against Longoria itse lf invokes the rig ht to petition

. ” In his affidavit, Pickford denie d providing any legal ad vi ce or services to DO J O and disa vowed an y attorney

- cl ient relations hip wi th DOJO altoget her

. More over, a c cording to Pickfo rd, he did not learn of the tenan ts ’ claims until December 2017 , and the tena nts ’ attorney never forwa r ded t o him any n otice , demand, or claim until Apri l 2018

. Thus, he did not identify any communication he made r e gardi ng the ten ants ’ no tice letter

. Pickfor d ’ s affidavit and supporting exhibits re late to communications that necessarily occurred after the events forming the basi s of DOJO ’ s p resent suit

— i.e

. , CKR ’ s eviction of the tenants , the
tenant s ’ subs equent demand l e tte r , and Pickford ’ s al leged failure to no tify DOJO of the tenants ’ potent ial claim s
. 10
Pickford also presented affidavits from Drake an d a CKR representative , Ca roline Kane

. But neither a ffiant identified or descr ibed a com munication by Pickford regardi ng the ten ants ’ no tice letter that would be germane to DOJO ’ s

10 The tenants ’ attorney sent CK R the demand letter in March 2017 and file d suit against DOJO in September 201 7 , so any fail ure b y Pickford to sen d the noti c e o r de mand to D OJO nece ssarily would have occ urred , if it occurred at al l, betwee n March and September 2017

. CKR s ued Longoria in O ctober 2017 and DOJO filed its third

- par ty claim again st Hoover Slovacek in Februa ry 2018. Pickford has consis tently denied hav ing an y kno wled ge of the t ena nts’ issues with CKR until 90 days afte r the t en ants’ l a wsuit was filed and thus h as provided no e v idence of any communications occurring d ur ing the relevant time period described i n DOJO ’ s petition

.14

pleaded clai ms against Pickford

. Significantly, n either Dr a ke nor Kane eve n mention Pickford in their respective affidavits

. P r es uming the t ruth of all of Pickford ’ s evidence , his motion did no t esta blis h that a ny commun ication occurr ed between him and DOJO or CKR regarding the tenants ’ claims or notice letter

. Even presuming t hat Pickford ’ s lega l ad vice in the Longoria or Hoov e r Slovacek lawsuit s constituted “ com munication s ” under the TCPA , w e stil l co uld
not say that DOJO ’ s present legal action is based on, related to , or in response to, th os e communications when they did n ot occur until months after the ten ants ’ notice letter w as first sent to Dra ke and after th e tenants filed suit

. See , e. g. , Pi erce v. S toc ks , No. 01

- 18

- 00990

- CV, 201 9 WL 3418513, at *5 (Tex. App.

— Houston [1st Dist.] Jul y 30, 2019, no pet.) (mem. op.) (rejec t ing argument that underlying lawsuit filed by surge o n against former a dministrator was f ile d in response to administra tor ’ s fede r al laws uit beca use claims were pre mised on conduct that occurred well before administrat or filed her federal lawsuit); Beving , 563 S. W.3d at 40 8 ( rejecting argume nt that thir d

- pa r ty petition was based o n defendant ’ s
a ffidavit and deposition test imony beca use caus es of action in third

- party petition
arose out o f facts occurring well before her a ffidavit and deposition). Pickford ’ s evidence does not establish the necessary connection between DOJO ’ s claims and Pickford ’ s communications.
In a footno te, Pi ckfo rd asser ts th at he also m et his evidentia r y burden under the TCPA ’ s third step to show by a preponderance of the evidence each e leme nt of

a va lid defense to D OJO ’ s brea ch of contract and legal negligence claims. See Tex. Civ. Pra c. & Rem. Code § 27.00 5(d)

. But h e does not ask th i s court to review that issue , and he does not brief it

. Based on our holding , we wou l d not have cause to addre ss whether his contention is correct in any ev ent b ecause if th e TCPA does15

not apply, the n we would not reach it s t hird step

. O f cou rse, n othin g abou t our opinion precludes Pickfor d from purs uing his defenses via available proced u ral mechanisms.
W e th us conclude, in accordance with the controllin g standard of rev iew, that Pickford has failed to demo nstrate by a p r epon derance o f the evidence t h a t DOJO ’ s claims are based on, related to, or are in response to Pick for d ’ s exercise o f the right to petiti on , associa tion, or free speech unde r the TCPA. S ee Marrujo v. Wis enbaker Builder Servs., Inc. , No. 01

- 19

- 00056

- CV, 20 20 W L 706231 8 , at * 9

- 11 ( Tex. App.

— Houston [1st Dist.] Dec. 3, 2020 , no pet. ) (me m . op.). Accordingl y, the TCPA do e s not apply , an d the tria l co urt erred i n granting the motion to di smis s. Con clusion
For th e above reasons , w e sus tain DOJO ’ s second issue, reve r se th e t rial

co urt ’ s judgment , and re mand the ca se for further proceedings

. Du e to ou r disposition, w e need not address DOJO’s first issu e, in which DOJO argue s that the TCPA does not apply to its cla ims because of the commercial

- speech exemption . N or n eed we a ddr ess Pickford’s appeal seeking sanctions under secti on 27.009 of the ac t. See Tex. R. Ap p. P. 47.1.

/s/ Kevin Jewell Jus tice

Panel cons ists of Justices Jewell, Spain , and Wilson

.