COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

NOBLE CAPITAL VENTURE FUND, L L C ;

TXPLCA, LLC; and NOBLE CAPITAL

VENTURES, LLC

,

Appellants,

v.

REVELRY ON THE BOULEVARD, LLC;

REVELRY KITCHEN AND BAR, LL C;

CORNER BAR, LLC; LOCHRIE

INVESTMENTS, LLC; and JONATHAN

LOCHRIE

,

Appellee s

. §

§

§

§

§

§

§

§ No. 08-22-00208- CV

Appeal from the

98 th Judicial D istrict Court

of Travis County, Texas

(TC# D-1- GN -21-003474)

MEMORANDUM OPINION

This interlocutory appeal under the Texas Citizens Participation Act (TCPA) involves a

business dispute predominately concerning whether money invested in two restaurants is properly

characterized as a loan

. After the private equity parties (Noble Capital Ventu re Fund, LLC ;

TXPLCA, LLC; and Noble Capital Ventures, LLC ; collectively, “Noble”) sued the restaurant

parties (Revelry on the Boulevard, LLC; Revelry Kitchen and Bar, LLC; Corner Bar, LLC; Lochrie

Investments, LLC; and Jonathan Lochrie ; collectively, “the Lochrie P arties ”) based on the parties ’2 dealings

, the Lochrie Parties asserted counterclaims. Noble moved to dismiss under the TCPA and

Rule 91a of the Texas Rules of Civil Procedure

, and the trial court denied the motion. We affirm



### .

B ACKGROUND 1

Jonathan Lochrie

, the sole owner of Lochrie Investments, LLC, is a n entrepreneur and

restauranteur in Austin, Texas. After the success of his first restaurant, Corner Bar, he partnered

with Noble to establish two new restaurants : Revelry Kitchen and Bar (RKB) and Revelry on the

Boulevard (ROB). Noble organized the LLCs for both RKB and ROB

.

The Noble entities each contributed various amounts of startup cash to each restaurant

. 2

Lochrie contends he and Noble ’ s chief operating officer agreed Noble would be the primary capital

investor, providing startup money and business services, while he would create the concepts and

provide management services for the restaurants. However, other than the corporate formation

documents, no terms of th is partnership were reduced to writing. Indeed, Lochrie refers to the

arrangement as a “ handshake ” deal and alleges Noble ’ s chief executive officer (and Lochrie ’ s

childhood friend) called it a “ buddy deal. ”

Based on Noble ’ s chief operating officer ’ s suggestions, Lochrie says he took monthly

draws from the restaurants as compensation for his full

- time management duties, as well as

transferred money from one restaurant to the other as necessary for business operations

. By late

2017, with both restaurants still struggling to find success

, Lochrie agreed to a $90,000 loan

1 Because this appeal requires a determination of whether the TCPA applies to the Lochrie Parties ’ counterclaims,

t his section is largely pulled from facts alleged in the Lochrie Parties ’ f irst amended c ounterclaim , i.e., the live

pleading when Noble filed its motion to dismiss. See Hersh v. Tatum , 526 S.W.3d 462, 467 (Tex. 2017) ( observing

that “it would be impossible to determine t he basis of a legal action, and thus the applicability of the [TCPA]

, without

considering the plaintiff ’ s petition” because the petition “is the best and all

- sufficient evidence of the nature of the

action” ( cleaned up)

. ).

2 The characterization of Noble ’ s cash contributions is at the heart of this litigation, and in using certain term s over

others (e.g., “contributions,” rather than “loans”), we t ake no stance on the merits of the parties ’ arguments.3 proposed by Noble to help ROB meet its operating costs. As part of that deal, Lochrie also gave

Noble Capital Venture Fund a security interest in ROB ’ s assets. Noble also proposed a $60,000

loan for RKB, which Lochrie says he declined.

In October 2020, with the restaurants struggling during the COVID

- 19 pandemic, Noble

asked Lochrie for a “ partnership reset ” and (unbeknownst to Lochrie) filed two UCC

- 1 financing

statements with the Texas Secretary of State claiming a security interest in RKB ’ s assets. Noble ’ s

proposal outlined new terms of ownership and management for both restaurants and characterized

its past cash contributions as debt

. It also included copies of several promissory notes reflecting

repayment at 16% interest. 3

Lochrie maintains all but one of those notes

— the 2017 $90,000 ROB loan

— contained

unauthorized digital images of his signatures

. Nobl e later wrote to Lochrie and the restaurants

regarding the disputed notes, stating that it “ conduct[ed] a more thorough review ” following

Lochrie ’ s protests about their validity and determined it disseminated all but two 4 as “ the result

of a bona fide accident/misunderstanding

. ” Noble clarified it was “ rescinding and cancelling ” th e

other disputed notes.

Noble sued Lochrie, his LLC, and his three restaurants to collect over $1.8M in principal

and interest of what it characterizes as loans

, assert ing breach of contract

, fraud

, and declaratory

judgment claims

. Noble also sought to appoint a receiver over RKB, but the trial court denied the

motion. The Lochrie Parties denied Noble ’ s allegations

, raised affirmative defenses, and asserted

counterclaim s against Noble, seeking declaratory relief on the validity of the disputed promissory

3 Soon after sending its proposed term sheet, Noble also demanded to examine all books and records of RKB, ROB,

and Corner Bar.

4 The two remain ing notes include the 2017 $90,000 ROB loan

— which Lochrie agrees is valid

— and a 2017 RKB

loan

— which Lochrie maintains he never signed

.4 notes and bringing claims for breach of fiduciary duty, fraud, fraudulent lien filing for the UCC

- 1

financing statements against RKB, tortious interference, and alternatively (if the trial court decided

the disputed payments were loans), lender liability fraud and usury.

After the Lochrie Parties filed their first amended counterclaim (which dropped the tortious

interference claims )

, Noble moved to dismiss under Rule 91a (for the fraud and usury claims) and

the TCPA (for all other claims)

. It also challenged the standing of the Lochrie Parties to bring

various claims. The Lochrie Parties responded, contending the TCPA does not apply

, and filed a

second amended counterclaim to address Noble ’ s standing issue

. The trial court denied Noble ’ s

motion to dismiss following a hearing. This interlocutory appeal followed

.



### A PPLICABLE 

### L AW AND 

### S TANDARD OF 

### R EVIEW

The TCPA “ protects speech on matters of public concern by authorizing courts to conduct

an early and expedited review of the legal merit of claims that seek to stifle speech through the

imposition of civil liability and damages. ” Lilith Fund for Reprod. Equity v. Dickson

, 662 S.W.3d

355, 363 ( Tex. 2023)

. It “ was designed to protect both a defendant ’ s rights of speech, petition, and

association and a claimant ’ s right to pursue valid legal claims for injuries the defendant caused. ”

Montelongo v. Abrea

, 622 S.W.3d 290, 295 ( Tex. 2021) (citing T EX

. C IV

. P RAC

. & R EM

. C ODE

A

NN

. § 27.002 )

. If a legal action is “ based on or is in response to ” the exercise of one of the

statutory enumerated rights, the defendant may seek dismissal under the TCPA. Yu v. Koo

, 633

S.W.3d 712, 720 ( Tex. App.

— El Paso

, no pet.)

.

The TCPA provides a three

- step process for dismissing a legal action to which it applies.

Montelongo

, 622 S.W.3d at 295 (citing Castleman v. Internet Money Ltd.

, 546 S.W.3d 684, 691

( Tex. 2018) ). First, the party seeking dismissal must show the TCPA applies

— i.e., “ the movant

must demonstrate that the non

- movant ’ s legal action ‘ is based on or is in response to a party ’ s5 exercise of the right of free speech, right to petition, or right of association

. ’ ” O ’ Rourke v. Warren

,

No. 03

- 22

- 00416

- CV, 2023 WL 3914278, at *6 ( Tex. App.

— Austin June 9, 2023, no pet. h.)

( quo ting T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. §§ 27.003(a)

, .005(b)). “ If the movant does not meet

this initial burden, the motion to dismiss fails. ” Venero Lugo v. Cordova Sanchez

, No. 03

- 21

-

00058

- CV, 2021 WL 5312323, at *3 ( Tex. App.

— Austin Nov. 12, 2021, pet. denied) (mem. op.) ;

see T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 27.005(b)

. If the movant shows the TCPA applies

, the

nonmovant must then establish by “ clea r and specific evidence ” a prima facie case for each

essential element of its claim s

. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 27.005(c)

. If the nonmovant

does so

, the burden then shifts back to the movant to establish “ an affirmative defense or other

grounds on which the moving party is entitled to judgment as a matter of law. ” Id. § 27.005(d)

.

We review a trial court ’ s ruling on a TCPA motion to dismiss de novo. Wendt v. Weinman

& Associates, P.C.

, 595 S.W.3d 926, 928 ( Tex. App.

— Austin 2020, no pet.)

. In determining

whether dismissal under the TCPA is proper, courts consider “ the pleadings, evidence a court

could consider under Rule 166a, Texas Rules of Civil Procedure

, and supporting and opposing

affidavits stating the facts on which the liability or defense is based. ” T EX

. C IV

. P RAC

. & R EM

.

C ODE A NN

. § 27.006(a)

. We consider the pleadings in the light most favorable to the nonmovant

and do not “ blindly accept[] a movant ’ s attempts to characterize a nonmovant ’ s claims as

implicating protected expression ” ; instead, we “ favor [] the conclusion that the claims are not

predicated on protected expression. ” Venero Lugo

, 2021 WL 5312323, at * 4 (emphasis added)

(citing Sloat v. Rathbun

, 513 S.W. 3d 500, 504 ( Tex. App.

— Austin 2015, pet. dism ’ d) ). Whether

the TCPA applies to a c laim is an issue of statutory interpretation we also review de novo.

Youngkin v. Hines

, 546 S.W.3d 675, 680 ( Tex. 2018)

.6 

### A NALYSIS

On appeal, Noble challenges the trial court ’ s denial of its TCPA and Rule 91a motion to

dismiss. Noble first contends it satisfied the burden of showing the TCPA applies and the Lochrie

Parties failed to establish by clear and specific evidence a prima facie case for each essential

element of every claim

. Alternatively, Noble raises a limitations d efense and challenges some of

the Lochrie Parties ’ standing to bring certain claims

. The Lochrie Parties respond that the TCPA

does not apply

. Alternatively, they contend they have met their burden of making a prima facie

case for each counterclaim and no counterclaim is barred by limitations. They also urge that we

cannot reach Noble ’ s standing arguments given the limited nature of this interlocutory appeal

.

Finally, the Lochrie Parties argue that we lack appellate jurisdiction to review the denial of a

Rule 91a motion to dismiss.

A. Does the TCPA appl y ?

To establish that the TCPA applies, Noble must show that the counterclaim “ 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

. ” T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 27.003(a)

. Noble contends all three protected

rights are implicated.

(1) Is the c ounterclaim based on or in response to Noble ’ s exercise of the right to

petition?

Noble maintains the TCPA applies because the counterclaim is based on or in response to

its right to petition. Specifically, Noble contends the counterclaim is based on and was filed in

response to its pre

- suit communications, its suit against the Lochrie Parties

, and other claims for7 relief made during the parties ’ litigation

, like its motion for appointment of a receiver

. 5 Noble

points out the counterclaim “ literally quotes ” its petition and highlights examples where the

counterclaim references its petition and attached exhibits.

The Lochrie Parties respond that Noble has not met its burden to identify in the record

which pre

- suit communications it believes the counterclaim is based on

, and in any event, the only

pre

- suit communication upon which their counterclaim is based is not a n exercise of the right to

petition under the TCPA

. They also contend the counterclaim is not factually predicated on

Noble ’ s suit or motion to appoint a receiver

.

The TCPA defines the “ [ e ] xercise of the right to petition ” to mean, in relevant part, “ a

communication in or pertaining to [] a judicial proceeding [.] ” Id. § 27.001(4)(A)(i)

. Noble has not

carried its burden to show that any of the parties ’ pre

- suit communications are communications

pertaining to a judicial proceeding sufficient to invoke the TCPA

. First, t hough Noble says its

motion to dismiss “ chronicles in detail ” the pre

- suit communications it contends the counterclaim

is based on, it fails to identify the specific communications

. Noble ’ s motion to dismiss instead

broadly summarizes the counterclaim ’ s allegations, including Noble ’ s proposed terms for a

partnership reset

, the allegedly forged promissory notes, Noble ’ s demand to examine the

restaurants ’ books and records, and Noble ’ s notice it planned to seize ROB ’ s assets under the 2017

loan. N one of these communications were made in or pertaining to a judicial proceeding. See id.

Still, c iting to a case decided under the prior version of the TCPA

, Noble argues pre

- suit

demand letter s and communications are sufficient to invoke the TCPA ’ s protections. See Long

Canyon Phase II & III Homeowners Ass ’ n, Inc. v. Cashion

, 517 S.W.3d 212, 220

– 21 ( Tex. App.

—

5 Noble also states the counterclaim is based on or in response to its response in the parties ’ related arbitration;

however, it does not brief that issue, so we do not consider it here

. See T EX

. R. A PP

. P. 38.1(i)

.8 Austin 2017, no pet.)

. But in 2019, the legislature amended the TCPA and “ narrowed ” its scope

by, among other things, removing the TCPA ’ s application from a legal action that merely “ relates

to ” an exercise of a protected right. 6 Wells v. Crowell

, No. 05

- 20

- 01042

- CV, 2021 WL 5998002,

at *4 ( Tex. App.

— Dallas Dec. 20, 2021, no pet.) (mem. op.) ( collecting cases describing the

legislature ’ s 2019 amendment of the TCPA as narrowing its application). Thus, Noble ’ s reliance

on the “ relate s to ” language in the pr ior version of the TCPA or case s interpreting that language

does not satisfy its burden to show its applicability here. The parties ’ pre

- suit communications do

not fall within the TCPA ’ s definition of a communication pertaining to a judicial proceeding

.

Noble also has not carried its burden to show the counterclaim is based on or in response

to its petition or motion for receivership

. Noble urges us to rely on the procedural timeline and

determine the Lochrie Parties ’ counterclaim must be based on or filed in response to its petition

because the counterclaim was filed second

. But u nder Noble ’ s position, “ all claims asserted by a

defendant, either as a counterclaimant or as a third

- party plaintiff, would be claims ‘ in response to

. . . a communication in or pertaining to

. . . a judicial proceeding

, ’ because by definition, such

claims can be brought only by a party who has already been sued. ” Republic Tavern and Music

Hall, LLC v. Laurenzo ’ s Midtown Mgmt., LLC

, 618 S.W.3d 118, 124 n.15 ( Tex. App.

— Houston

[14th Dist.] 2020, no pet.) ( quoting previous version of TCPA). A n individual ’ s right to petition is

not implicated solely by the fact that a defendant brought claims after he was sued. See id. at 125 ;

Marrujo v. Wisenbaker Builder Servs

. , Inc.

, No. 01

- 19

- 00056

- CV, 2020 WL 7062318, at *10

( Tex. App.

— Houston [1st Dist.] Dec. 3, 2020, no pet.) (mem. op.)

. As the Lochrie Parties point

out, this reasoning is particularly untenable when, like here, the counterclaims are compulsory ; if

6 That version of the TCPA provided for dismissal of a legal action that is “based on, relates to , or is in response to a

party ’ s exercise of the right of free speech, right to petition, or right of association.” Cashion , 517 S.W.3d at 216

(quoting T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 27.003(a) ( 2011) (emphasis added) ).9 courts agreed with Noble ’ s position, the Lochrie Parties would have to either assert a compulsory

counterclaim and face a TCPA motion to dismiss or give up the counterclaim altogether. That

result is inconsistent with the TCPA ’ s purpose

. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 27.002

( “ The purpose of this chapter is to encourage and safeguard the constitutional rights of person s

. . .

and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable

injury. ” ); s ee Republic Tavern

, 618 S.W.3d at 125 ( “ We decline to hold that the TCPA ’ s

applicability turns solely on which party won the race to the courthouse. ” ) ; cf. Youngblood v.

Zaccaria

, 608 S.W.3d 134, 141 ( Tex. App.

— San Antonio 2020, pet. denied) (concluding TCPA

did not apply to declaratory action filed following mediation because doing otherwise “ would

expand the TCPA ’ s application to all lawsuits where the parties engage in a pre

- suit mediation ” ).

In any event, the Lochrie Parties ’ claims arise from facts that occurred before Noble filed

its lawsuit. See Marrujo

, 2020 WL 7062318, at *9 n.8 ( citi ng cases in which the facts predicating

a second

- filed lawsuit pre

- dated the first

- filed suit and thus did not implicate the movant ’ s right to

petition under the TCPA). T he counterclaim is based on the characterization of Noble ’ s financial

contributions to the restaurants, Noble ’ s allegedly forged promissory notes, and its subsequent

demand for payment under those notes. T o trigger the protection of the TCPA, the legal action

must be “‘ factually predicated on ’ allegations of conduct that fall within one of the TCPA ’ s

protected rights. ” Baylor Scott & White v. Project Rose MSO, LLC

, 633 S.W.3d 263, 276

( Tex. App.

— Tyler 2021, pet. denied) (citing, among other cases, Grant v. Pivot Tech. Sols., Ltd.

,

556 S.W.3d 865, 879 ( Tex. App.

— Austin 2018, pet. deni ed) )

. Because the counterclaim is

factually predicated on events that occurred before Noble filed its suit

— and not on

communications within or pertaining to Noble ’ s suit itself

— the counterclaim is not based on or in

response to Noble ’ s suit or other claims for relief made during the litigation

.10 Viewing the counterclaim in the light most favorable to the Lochrie Parties

, as we must,

we conclude Noble has not met its burden under § 27.005(b) to show the counterclaim is based on

or is in response to its right to petition.

(2) Is the c ounterclaim based on or in response to Noble ’ s exercise of the right of

free speech or association ?

Noble also argues the TCPA applies because the counterclaim is based on or in response

to its exercise of the right of free speech or association. Because both of those protected rights

require that the speech or association relate to “ a matter of public concern, ” we consider that

question first. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 27.00 1 ( 2 ) ( “‘ Exercise of the right of

association ’ means to join together to collectively express, promote, pursue, or defend common

interests relating to

. . . a matter of public concern. ” ) ; Id. § 27.001 (3) ( “‘ Exercise of the right of

free speech ’ means a communication made in connection with a matter of public concern. ” )

. If

Noble has not demonstrated its speech or association involves a matter of public concern, neither

the right of free speech nor the right of association is implicated under the TCPA.

Noble argues matters of public concern are implicated in several ways. First, Noble

contends the counterclaim alleges it committed crimes ( based on the forged notes) and statutory

violations (based on the usury and fraudulent lien claims ), which it says fits within the TCPA ’ s

matter of public concern definition. Second, Noble maintains th at because the counterclaim

involves “ the business of restaurants and bars, ” which is “ highly regulated to ensure the public

safety [

, ] ” it involves matters of public concern. N oble also argues the restaurants and Lochrie

himself are “ of considerable public interest to the community

, ” referencing press coverage on the

restaurants and Lochrie ’ s characterizations of himself as a restauranteur in Austin. Finally, Noble

contends the counterclaim involves matters of public concern because the restaurants suffered

closures and layoffs during the COVID

- 19 pandemic and received pandemic

- related federal11 business loans, which Noble characterizes as “ procured on false pretenses, under fraudulent

circumstances and/or subject to double pledges. ”

The Lochrie Parties respond that its counterclaims are factually predicated on the parties ’

private communications about private business ventures

, and thus none of Noble ’ s related

communications or associations involve a matter of public concern. The Lochrie Parties point out

that Noble ’ s argument relies largely on the prior version of the TCPA, which allowed a broader

application than the current version. Lastly

, the Lochrie Parties note that Noble incorrectly relies

on communications

, actions, and allegations of misconduct by the Lochrie Parties

— i.e., the

nonmovants

— when its burden is to show its own speech or association relates to a matter of public

concern.

The 2019 amendment s to the TCPA modified the definition of “ matter of public concern ”

to mean a statement or activity regarding “ (A) a public official, public figure, or other person who

has drawn substantial public attention due to the person ’ s official acts, fame, notoriety, or celebrity;

(B) a matter of political, social, or other interest to the community; or (C) a subject of concern to

the public. ” 7 Id. § 27.001(7)

. “ T o be a matter of public concern, a claim must have public

relevance beyond the interests of the parties. ” Szymonek v. Guzman

, 641 S.W.3d 553, 565

( Tex. App.

— Austin 2022, pet. denied) (quoting Morris v. Daniel

, 615 S.W.3d 571, 576

( Tex. App.

— Houston [1st Dist.] 2020, no pet.) ). So, while private communications between

parties may implicate the TCPA ’ s protections, the communications must still be made in

connection with a matter of public concern. Project Rose

, 633 S.W.3d at 276 (citing Lippincott v.

Whisenhunt

, 462 S.W.3d 507, 509 ( Tex. 2015) (per curiam )).

7 Noble does not distinguish which portion of the definition it contends applies to this case.12 Noble ’ s first argu ment

— regarding the counterclaim ’ s reference to criminal acts and

statutory violations

— fails because Noble relies on the Lochrie Parties ’ allegations rather than its

own communications, as the TCPA requires. In other words, Noble points to the Lochrie Parties ’

allegations that Noble forged promissory notes

, charged usurious interest rates

, and filed

fraudulent liens

— not its own speech about the same. “ [A] defendant must show that a plaintiff ’ s

lawsuit implicates the defendant ’ s communications ” because “ the TCPA does not apply when

movants fail to demonstrate their own exercise of a TCPA

- protected right. ” Venero Lugo

, 2021

WL 5312323, at *5 (coll ecting cases)

. Even assuming allegations of criminal acts and statutory

violations meet the definition of matters of public concern, those communications must have been

made by Noble to be protected under the TCPA. Id. ; Sullivan v. Tex as Democratic Party

, No. 03

-

19

- 00936

- CV, 2021 WL 1256891, at *5 ( Tex. App.

— Austin Apr. 6, 2021, pet. denied) (mem. op.)

(defendant failed to establish plaintiff ’ s claims were “ based on, related to, or in response to any of

his communications ” under prior version of the TCPA because plaintiff ’ s claims arose out of

communications by a third party ). B y relying on the Lochrie Parties ’ allegations

, Noble failed to

satisfy its burden of showing that it exercised the right of free speech or association. Venero Lugo

,

2021 WL 5312323, at *6

.

Noble also has not shown the counterclaim implicates matters of public concern simply

because it involves the business of restaurants and bars, which in turn involve health and public

safety regulation. Again, Noble cites caselaw predating the 2019 TCPA amendment. See Cavin v.

Abbott

, 545 S.W.3d 47, 61 ( Tex. App.

— Austin 2017, no pet.)

. Indeed, the prior version of the

TCPA included within the definition of “ matter of public concern ” issues related to “ health or

safety ” and “ environmental, economic, or community well

- being. ” T EX

. C IV

. P RAC

. & R EM

.

C ODE A NN

. § 27.001 (7) (2011). However, the applicable version of the TCPA removed the “ health13 and safety ” language from its definition of “ matter of public concern. ” And even under the prior

version of the TCPA, the “ mere fact ” that a party operates in an industry involving “ health or

safety ” was insufficient to demonstrate its communications involved a matter of public concern.

Clinical Pathology Labs., Inc. v. Polo

, 632 S.W.3d 35, 48 ( Tex. App.

— El Paso 2020, pet. denied)

.

Despite Noble ’ s arguments otherwise, the record does not support its contention that the

restaurants are “ subject[s] of concern to the public ” or Lochrie is a “ public figure

. . . who has

drawn substantial public attention due to [his] official acts, fame, notoriety, or celebrity[.] ”

T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 27.001(7)

. While the record does include six local press

articles regarding the restaurants ’ opening

, that coverage alone (or the fact that the restaurants are

open to the public) does not establish the restaurants are “ subject[s] of concern to the public. ”

C

f. Project Rose

, 633 S.W.3d at 279 (concluding counterclaim fell within TCPA ’ s exercise of free

speech prong because it was based on communications made in connection with a matter of public

concern when the case involved “ prominent celebrities, ” who “ utilized the media and press

coverage to foster public interest in the project ” involving “ a world

- class sports medicine

facility ” ) ; Montano v. Cronan

, No. 09

- 20

- 00232

- CV, 2021 WL 2963801, at *5 ( Tex. App.

—

Beaumont July 15, 2021, no pet.) (mem. op.) ( finding TCPA applied to suit because it was factually

predicated on defendants ’ communications, which involved matter s of public concern given the

involvement of national rowing club and related safety and welfare concerns). The same goes for

Lochrie himself, whose mention as the restaurants’ owner in three of the articles also does not

establish that he is a ‘subject of concern to the public’ or a ‘public figure.’”

Finally, Noble does not provide support for its argument that because the restaurants were

impacted by the COVID

- 19 pandemic and received related federal loans, th e counterclaim

necessarily involves a matter of public concern. Indeed, Noble points to no communication or joint14 expression it made involving the pandemic ’ s impact on the restaurant, let alone one on which the

counterclaim is based. Noble ’ s communications on which the counterclaim is factually

predicated

— e.g., correspondence regarding the nature of Noble ’ s financial contributions to the

restaurants, the allegedly forged promissory notes, and Noble ’ s demand for payment

— relate to

the parties ’ business relationship

. Despite Nobl e ’ s argument otherwise, “[ t ] hese are ‘ purely private

matters ’ that cannot ‘ reasonably be characterized as involving public concerns. ’ ” Marrujo

, 2020

WL 7062318, at *6 (citing Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC

, 591 S.W.3d 127,

135

– 36 ( Tex. 2019 ) ). Because “ [a] private contract dispute affecti ng only the fortunes of the

private parties involved is simply not a ‘ matter of public concern ’ under any tenable understanding

of those words

, ” Noble has not met its burden to show its speech or associations were made in

connection with matters of public concern. Creative Oil

, 591 S.W.3d at 137

. Thus, neither Noble ’ s

right of free speech nor its right of association is implicated under the TCPA

.

Because we have concluded Noble failed to show that the TCPA applies, we do not reach

the question of whether the Lochrie Parties met their burden to establish a prima facie case for

each essential element of their claims or, if so, whether Noble ’ s affirmative defenses have merit

. 8

See T EX

. C IV

. P RAC

. & R EM

. C OD E A NN

. § 27.005(b)

– (d)

.

8 Embedded within its response to the Lochrie Parties ’ prima facie case , Noble contends certain Lochrie entities do

not have standing to bring certain counterclaims. ( For example, Noble contends only ROB has standing to bring a

declaratory judgment claim as to the 2017 $90,000 promissory note. ) However, Noble looks to the Loc hrie Parties ’

first amended counterclaim in challenging standing. The Lochrie Parties filed a second amended counterclaim in

response to those jurisdictional complaints and clarified which Lochrie enti ty was suing which Noble entity . While

the first amende d counterclaim is the operative pleading for the TCPA motion to dismiss, the Lochrie entities were

entitled to amend their pleadings to address jurisdictional defects. See Tex as Ass ’ n of Bus. v. Tex as Air Control Bd.

, 852 S.W.2d 440, 446 (Tex. 1993) ( “[A] litigant has a right to amend to attempt to cure pleading defects if jurisdictional

facts are not alleged.”); Gaskamp v. WSP USA, Inc. , 596 S.W.3d 457, 468

– 69 (Tex. App.

— Houston [1st Dist.] 2020,

pet. dism ’ d ) ( recognizing that TCPA motion s to dismiss survive nonsuit of claim s in subsequent pleadings if the

motion to dismiss “affords more relief than a nonsuit provides”). T o the exten t Noble ’ s argument implicates the

underlying merits of the litigation ( including whether Lochrie Investments LLC was removed as manager of RKB)

,

we lack jurisdiction to address those issues because we have interlocutory appellate jurisdiction solely to review

whether the trial court properly denied Noble ’ s motion to dismiss filed under the TCPA. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 51.014(a)(12); see CMH Homes v. Perez , 340 S.W.3d 444, 447 (Tex. 2011) ( “We strictly apply statutes15 B. Does this Court have jurisdiction to review the trial court ’ s order denying Noble ’ s

Rule 91a motion?

Noble also argue s the trial court erred in denying their Rule 91a motion to dismiss for the

Lochrie Parties ’ fraud claims

, which are exempt from the TCPA. Id. § 27.010(a)(12). However,

Noble cannot challenge the trial court ’ s denial of their Rule 91a motion because that order is not

subject to interlocutory appeal. 9 Koenig v. Blaylock

, 497 S.W.3d 595, 598 n.4 ( Tex. App.

— Austin

2016, pet. denied) (citing Bally Total Fitness Corp. v. Jackson

, 53 S. W.3d 352, 352 ( Tex. 2001) )

.

Because we have jurisdiction to consider interlocutory appeal s only as authorized by statute, and

because no statute authorizes an interlocutory appeal of the denial of a Rule 91a motion to dismiss,

we do not have jurisdiction to review the trial court ’ s order denying Noble ’ s Rule 91a motion to

dismiss. See id.



### C ONCLUSION

For the above reasons, we overrule Noble ’ s issues on appeal

. We affirm the trial court ’ s

denial of Noble ’ s TCPA motion to dismiss because Noble did not satisfy the burden to show the

TCPA applies to the Lochrie Parties ’ counterclaims

. W e lack jurisdiction to review the denial of

the Rule 91a motion to dismiss.

YVONNE T. RODRIGUEZ

, Chief Justice

August 1 7

, 2023

Before Rodriguez

, C.J., Palafox, and Soto

, JJ.

granting interlocutory appeals because they are a narrow exception to the general rule that interlocutory orders are not

immediately appea lable.”) ; Gilani v. Rigney , No. 02

- 21

- 00314

- CV, 2022 WL 714700, at *5 (Tex. App.

— Fort Worth

Mar. 10, 2022, pet. denied) (mem. op.) (collecting cases declining to address other dismissal arguments not based on

the TCPA ).

9 Noble did not seek permission to p ursue an interlocutory appeal under § 51.014(d) of the Texas Civil Practice and

Remedies Code

.