Opinion issued December 14 , 20 23.

In The 

## Court of Appeals For The 

## First District of Texas

———————————— N O. 01
- 23
- 00198
- CV

——————————— KRJJ ENTERPRISES, D/B/A KRJJ ENTERPRISE S (GULF COAST) LP , Appella nt V. JOHANNA C. WILLIS, JERMAINE WILLIS, JR. , JERMI A H WI LLIS BY NEXT FRIEND JOHANNA WILLIS, JERMIA WILLIS BY NEXT FR IEND

JOHANNA WILLIS , Appell e e s
On Appeal from the 152nd District Court

Harris County, Texas Trial Court Ca se N o . 2022
- 657042 MEMORANDUM OPINION This i s an interlocutory appeal 1 from a di s t r ict court order denying a motion to dismiss under the Texas Citizens Participation A ct (TCPA) broug ht by defendant/appellant KRJJ Enterprises , d/b/a/ KRJJ Enterprises ( G ulf Coast) LP

. KRJJ contends that the trial court erred by denying its motion b ecaus e t he d efamation claim asser ted by appellee Johanna Willis and her family against it was in response t o K RJJ ’ s right of free speech, right to petition, or right of association. KRJJ further contends that the trial court erred by not dismissing the Willi s f am i ly ’ s claim for defamation because the Willis family failed to establish by clear and specific evide nce a prima facie case for each essential element of the claim

. We affirm. Background A. Factual Allegations The Willi s f

amily rented a residential property fr o m KR JJ beginning in November 2020. The l ease term ended on O c tober 31, 2021

. The parties di spute what happened at the e nd of the lease term. T he Willis family states that KRJJ filed

an ev iction su it due to a delay in paying rent in September 2021. KRJJ st a tes that the Willis family refused to vacate at the end of the lease term. T he Willis famil y cl aims that they paid rent for O c tober and N o vember 2021. Eventually, KRJJ filed

1 See T EX
. C IV
. P RAC
. & R EM
. C ODE § 51. 014(a)(12).3

a forcible detainer action in justice court in Harris County , and the court aw a rd e d
KRJJ possession of the residence. The Willis f amily appealed to the county court, but the family vacated the property before a trial de novo occurred in the county
court. KRJ J dismi ssed the eviction suit. In May 2022, KRJJ sent the Willis family a de m an d for six months of unpaid rent, damages to the lease d premises, and other fees. KRJJ alleges that the Willis family did not respond. KRJJ states that it then “ u tilized the assistance of an organization called Mrlandlord.com

. ” According to KRJJ, the org a ni z ati on aids landlords, including placing tenant debts with collections agencies. In October 2022, the Willis family sued KRJJ for unconscionable actions and defamation. 2 In its defam ation claim , t he Willis family alle ged that KRJJ

“ c aused information r e ga r ding the alleged unpaid balance . . . to be reported to one

or more cre dit reporting agencies or companie s ” against the credit ra ting of Joanna Willis, causing her credit rating to decrease , harm ing her reputation , and impeding her efforts to obtain an o th e r re sidential lease.
K RJJ moved to dismiss under the Te xas Citizens P articipa tion Act. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 27.001

– .011. The Willis family responded to the dismissal motion. After a hearing, the trial court denied KRJJ ’ s motion

. KRJJ
ap pe a le d

.

2 The unconsciona ble action claim is not part of this appea l.4

On appeal, KRJJ argues that the trial court ’ s denial of its motion to di sm i ss should be reversed because the Wi llis f amily ’ s defamation claim against KRJJ falls within the scope of the TCPA and the Willis family failed to provide clear and specific e vi d ence to estab lish a prima facie case of defamation. We d isagree , and affirm. O v erview of the TCPA The TCPA provides special procedur es allowing parties to obtain early dismissal of meritless claims that implicate t h e e xercise of the rights of free
spe e ch , association, an d petition. McLane Champions, LLC v . Hou ston Baseball
Partners LLC , 6 71 S.W.3d 907, 9 10 ( Tex. 2023). The Legislature enacted the
TCPA “ to encourage and safeguard the constitutional rights of person s to petition, speak freely, associate f re e ly, and other wise participate in government to th e maxim um extent permitted by law and , at the same t im e, protect the rights of a person to file meritorious lawsuits for demonstrable injury. ” T EX
. C IV
. P RAC
. &
R EM
. C ODE § 27.002; see also McLane , 6 71 S

. W. 3 d at 91 3 . The statute provides this pro tection by author izing a motion t o dismiss early in the covered proceedings, subject to expedited interlocutory review. See T EX
. C IV
. P RAC
. & R EM
. C ODE § § 27.003, .008. Trial courts review TCPA motions to dismiss i n a multi

- step

a nalysis. First , the moving par ty must show by a preponderance of the evidence that the TCP A applies to the legal action against it. Id. §§ 27.003, .005(b). If the5

mo ving party satisfies that burden, the burden shifts to the nonmoving party to establish by clear and specific evidence a prima facie c ase for each essential element of i ts claim. Id

. § 27.005(c ). If the non moving party cannot satis fy that burden, the trial court must dismiss the suit. Id. We review de novo the denial of a TCPA mo t ion to dismis s. Dall. Morning News, Inc. v. Hall , 579 S. W.3d 370, 377 (Tex. 2019); B etter B us. Bur

. o f Metro.
Hous t on , Inc. v. John Moore S e rvs ., Inc. , 441 S.W.3d 345, 3 53 (Tex. App.

— Houston [1st Dist.] 2013, pet. de nied). I n determining whether a lega l a c tion is subject to or should be dismissed under the TCPA , a cour t shall consider the plead i ngs, evidenc e the court could consider under the summary

- judgment rule, and supporting and opposing affidavits stating the facts on which the liability or defens e i s based. T EX
. C IV
. P RAC
. & R EM
. C ODE § 27.006(a) ; cf. Her sh v. Tatum , 526 S.W.3d 462, 467 ( T ex. 2017) (s tating, in connection with step one, tha t the plaintiff ’ s petition is the best and all

- sufficient evidence of the n ature of the action). We review th e p l eadings and evidence in the light most favorable to the
nonmovant. Gas ka m

p v. WSP USA , Inc. , 596 S.W.3d 457, 470 (Tex. App.

— Houston [1st Dist.] 2020, pet. dism ’ d ) (en banc); Schimmel v. McGregor , 438 S.W.3d 847, 855

– 5 6 (Tex. App.

— Houston [1st Dist.] 20 1 4 , p et. denied). Whether the TCPA applies is an issue of st atutory interpretation that w e also review de6

n ovo. S & S Emergency Training S o ls. , Inc. v. Elliott , 564 S.W.3d 843, 847 (Tex. 2018)

. A. Rights of free speech and asso ciation W e beg in by considerin g K R JJ ’ s contention that the Willis family ’ s claim for defam ation is based on or in response to KRJJ ’ s exer cise of the rights of free speech and association. The TCPA defines the “ exercise of the right of free speech ” as “ a communication made in connection wi t h a mat ter of public concern . ”
T EX
. C IV
. P RAC
. & R EM
. C O DE § 27.001 (3). “Com munication, ” as use d in the statute, “includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or elect r on i c. ” I d. § 27.001(1). The exercise of the right of associ ation “ m eans to join together to

co llectively e xpress, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of public concern. ” Id. § 27.0 01(2). This case tu r ns on whether the alleged communication by KRJJ to a cre dit agency is a matter of public co ncern. Both the right of free spee ch and the right of

ass ociatio n, as defined in the TCPA, involve matters of public concern. S ee T EX
. C IV
. P RAC
. & R EM
. C ODE § § 2 7. 0 01(2), (3). As re levant to appellant ’s arguments in
this appeal, a “[m ]atter of public conce rn ” includes “a statement . . . regarding a matter of political, social or other interest to the c ommunity; or a subject of concern to the public. ” Id. § 27.001 ( 7) ( B) , (C). T he T CPA ’ s express purpose is7

“ s afeguarding cons titutional righ ts while simultaneou sly protecti ng plain tiff s ’ rights to file meritorious lawsuits for demonstrable injurie s. ” McLane , 671 S.W.3d at 917 ; see also Dall. Morning News, Inc. , 579 S.W. 3 d at 376 (noting that the TCPA “ is a bulwark against retalia tory lawsuits m eant to intimidate or silence ci tizens on matters of public concern ” ).
T o be a matter of public concern, a c ommunication mus t have public relevance beyond the interests of the par t i e s. Creative Oil & Gas, LLC v. Lona
H ills Ranch, LLC , 591 S .W .3d 127, 137 ( Te x. 2019) (stating c ommunications that are merely “ related somehow to one of the bro ad categories ” set out in the statute but that otherwise have no relevance to a public audienc e a r e not communications made in connection with a matter of p ublic concern . ); s ee also McLane , 671 S.W.3d at 916 (construing the TCPA to cover communication s that hold some rel evance to a public audience when they are made). The communication must refer t o m atters of “ po litical , social, or other concern to the co mmunity ” as opposed t o pur ely private matters. Brady v. Klentzman , 515 S.W.3d 878, 884 ( T ex. 2017))

. The communication must address “ a subject of legitim ate news interest; that is, a subject of g en er a l interest and of value and concern to the public. ” I d

. (quoting San Diego v. Roe , 543 U.S. 77, 83

– 84 (20 04 ) (per curiam) ). With this in mind, we turn to the specific communication underlying th e Willis family’s suit and its connection to a matter of pu b lic con c ern when made. In8

their petition, t he Willis family alleged that KRJJ reported allegedly false information containe d in a collection notice, including an alleged past due balance,
to “ on e or more of the three credit reporting agencies, Equifax, E x p eria n, T ransunion, and/or to other credit reporting agencies. ” KRJJ asse rts that communication by a creditor to thir d parties about the debtor’s fidelity in paying bills implicates the rights of free speech and association and is a matter of public

conc er n . Under the TCPA, the moving party must show by a prepondera nce of the evidence that the TCPA applies to the legal action against it. McLane , 6 7 1 S.W.3d at 914

. In considering the c ontent, form, a nd c ontext of whether speech is of public or private con ce r n , no fact or is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said. Snyder v. Phelps . 562 U.S. 443, 454 (2 011). Althoug h “ [t]he TCPA casts a wide net, ” the s ta t u te ’ s scope is not as expansive and far reaching as once thou ght. Panton I

nc. v. Bees36 0, Inc. , No. 01

- 20

- 00267

- CV, 2021 WL 3868773 , at *7 (Tex. App.

— Houston [1st Dist.] Aug. 31, 2021, no pet. ) (mem. op.) (citin g Adams v. Starside Custom Builders, LLC , 54 7 S .W.3d 890, 894 (Tex. 2018) ) . As the T e xas Supreme Court expl ained in Creative Oil & Gas , “ not every communic ation r elated someho w to one o f the broad categories set out in section 27.001( 7) always regards a matter of public concern. ” 591 S.W.3d at 137

. I n9

Creat ive Oi l & Ga s , the Supreme Court interpreted a prior , b roader definition of

“ matter of pub lic concern , ” and he ld that communicati on s involving a contract dispute about a purely private matter impacting the pecuniary interests of the parties were no t m atters of public concern under the TCPA

. Id. More recently, the Supreme Court reiterated the importance of t he public c on cern limitation o n TCPA
app licability, stating that without this limitation, the TCPA would apply to any communication as part of an y priva te business deal inv olving industries that impact economic o r community well

- being

. McLane , 671 S.W.3d a t 917 (hold ing statements made during contract negotiations were not matters of public concern under the TCPA). We hold that KRJJ did not meet i t s burd en to establish tha t its communication was a matter of publi c concern that fall s under the TCPA

. KRJJ asserts that its communica tion was a matter of public c oncern because as a business, it has a right to inf orm other businesses about poten tial cu st o mers. KRJJ relies on MV

S I n t ’ l Corp

. v. Int ’ l Advert

. Sol s . , LLC , 545 S.W.3d 18 0 (Tex. App.

— El Paso 2017, no pet.)

. The c ase began as a collections suit

. Id. at 186. The creditor, MVS, sued several deb tors for nonpayment of debt, as evidenced by unpaid in v oices. Id. The debtors filed a counterclaim asserting that several cro ss defendants co nspired to falsify the invoices and the n communicated the fact of their subsequent non - payment to third parties. Id. at 187

– 88. They also asserted a10

claim for defamati on . Id . MVS m oved to dismiss u nder the TCPA. Id. In decid ing whether the TCPA applied to the co nspiracy claim , the E l Paso Court hel d that warning other media outlets about potential customers who allegedly do not pay their accounts was an ex e r c is e of free s p eech under the TCPA. Id. at 19 3. T h e
court held that by allegedly informin g other me dia outlets that the appellees do not pay the i r accounts, MVS “ made a communication in connection with a service in the relevant marketplace. ” Id. at 195 (internal quota ti o ns removed). A closer reading of MVS shows that it is of limited applicab ility to the facts at h and. First , th ough KRJJ relies o n MVS t o hold that communications to collection agencies are matters of pub lic con cern covered by the TCPA, the court did no t r ule on this sp ecific issue because the amended counterclaim did no t in clud e that factual alle gation. 3 MVS , 545 S.W.3d at 187. Mor eover , the case was dec ided under a prior version of the TCPA which had a more expansive definition of “ matter of public con ce r n. ” 4 Whether c omments to media outlets were covered

3 T he appel lees a mended the ir counter claim and omitte d earlier factual allegations , such as the contention tha t t h e counter

- defendants had reported the bad debt t o the credit bur eaus. MVS Int ’ l Corp. In t ’ l A dvert

. Sol s . , 545 S.W.3d 180, 187 (Tex. App.

— El Paso 2017, n o pet.)

.
4 T he definition of “ public concern ” changed in the amended version. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 2 7.001(2) , (7)

. The 2019 amendment define s “ matter of pub lic concern ” as “a statement or activity regarding: (A) a pu blic official, public figure, or other person who has drawn substantial public attention due to the person's official acts, fa m e, notoriety, or c elebrity; (B) a matter of political , soc ial, or oth er interest to the community; or (C) a subject of concern to the public .” Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 1, sec. 27.001(7 ), 2019 Tex. Sess.11

by the TCPA under the pre - 2019 version o f the statute does not determine whet her the alleged comm uni cation by KRJJ fall s under the current version of the TCPA. Second, w e note that the actual communic a t i on d oes not ap pear in our record. The Wi llis family pleading states tha t K RJJ caused informati on regarding

an “ alleged unpaid bal ance . . . to be report ed to one or more credit reporting agencies or companies. ” In its motion to dismiss, KRJ J states that i t “ u tilized the assistance of an organization called Mrlandlord.com

. ” According to K RJJ, the organization a ids landlords, including placing tenant debts with collections agencies. Without being able to review the communicatio n , we are unable to determine w h ether the communication did in fact relate to a matter of pub lic concern, or whethe r, instead merely rela ted to KRJJ ’s concern for its own pecuniary interest regarding debt owed by the Willis family

. See Gas kamp , 596 S.W.3d at 477

– 78 (record did not con ta i n sufficient information fro m which court could determine whether plaintiff ’s lawsuit involved protected co mmunications) ; see also Clinical Pathology Labs., Inc. v. Polo , 632 S.W.3d 3 5, 49

– 50 (Tex. App.

— El Paso 2020, pet . denie d ) (hold ing plaint iff did no t mee t burden because the releva nt communication was not in the record and the court could not

Law Serv. 684, 685. Previ o us l y, a “ matter of pu blic concern ” was defined as “an is sue related to h ealth or safety; environmental, economic, or community well

being; the government; a publ ic official or public figure; or a good, product, or service in the marketplace.”12

determine if communic ation regarding phleb otomist’s absence was a public health concern or a private employment dispute ). We cannot s ay that a landlord reporti ng

a n alleged debt to a credit age ncy is “ a subject of legitim ate news interest; that is, a subject of g eneral intere st and of value and c oncern to the public. ” Brady , 515 S.W.3d at 884 ( internal quotation and citation removed)

. We must look to the
content o f the communic ations themselves, and not focus solely on the occupation of the speaker or the related industry. See Staff Care, Inc. v. Eskridge Enterprises,
LLC , No. 05

- 18

- 00732

- CV, 2019 WL 2121116, at *4

– 5 (Tex. App.

— Dallas May 15, 2019, no pet.) (mem. o p . ) (stating tha t communications by a healthcare professional in business di spute are not automatically matters of public concern).
As the movant, K RJJ had the burden to demonstrate the applica bility of the TCPA. S ee T EX
. C IV
. P RAC
. & R EM
. C ODE § 27.005 (b )

. On the record before us, viewing the facts in the light mo st favorable to the non movant, we cannot say that
KRJJ ’ s communication to collection agencies invo lves a matter of public concern

. Multiple private concerns do not accrete to form a public conc er n . KRJJ failed t o carry its burden to establish by a p reponderance of the ev idence that the statement had public relevance beyond the parties involved

. B. Right to petition KRJJ also contends that the Willis family ’s claim for d efamation is “based

on ” or “ in response to ” th e exercise of KRJJ ’s right to p etition. See T EX
. C IV
.13

P RAC
. & R EM
. C ODE § 27.003(a). The TCPA defines “ e xercise of the right to petition ” to include “ a communication in or pertaining to: (i) a judicial p roceedi ng; [or] (ii) an official pr oc e eding, other th an a judicial proceeding, to ad minister the law

. ” T EX
. C IV
. P RAC
. & R EM
. C ODE § 27.001( 4)(A) (i ), (ii). KRJJ contends that after the Willis family vacated the prop erty and after KRJJ sent a demand for unpai d rent and dam ages without respon se , it communicated with a n organization that helps landl ords collect debt. The Willis family alleges that it was defamed by KRJJ communicating an inaccurate amount of info rmation to collection agencies. KRJJ has not met its burden to pr ove that the

commun ic a tion was “ based on ” or “ in response to ” its right of p etition

. T EX
. C IV
. P RAC
. & R EM
. C ODE § 27.003(a). The record reflects that in January 2022 KRJJ filed sui t for possession of the residence that had been leased to the W illis family

. KRJJ was awarded po s session b y the just ice court in February 2022. Though the Willis family appealed to the county court at law, the family vaca ted before the case was called to trial , and KRJJ nons uited the case. In May 2022, KRJJ sent a demand for unpaid rent and repairs

. A c cording to KRJJ, ra ther than dispute the debt with the collectio n agenc y, the Willis family sue d KRJJ. KRJJ has not establis hed the nexus between the communica tion to a landlord organization or collection agency and its exercise of the right to petitio n . KRJJ has not met it s14

burden to establish that the TCPA applies t o the d efamation claim as an ex ercise of the right to petiti on. Conclusion Having determined that the TC PA does not apply to t he Willis family ’ s defamation claim, we need not reach KRJJ ’ s se c ond issue on appeal regarding whether the Willis family establis hed a prima facie c ase for defa mation. The trial court did n ot err in dismissing KRJJ ’ s TCPA mo tion to dismiss. We affirm.

Justice Peter Kelly Panel consists of Justices Ke l ly, Landau, and Far ris

.