Statute

Texas Citizens Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 et. seq. 

Case

Santellana v. Centimark Corp., 01-18-00632-CV, (Tex. App. – Houston [1st] April 2, 2019, no pet. h.) (mem. op.).

In A Texas anti-SLAPP, TCPA, Case, If The Non-Movant Raises The Commercial Speech Exemption, You Must Address It Or You May Lose

Santellana worked as CentiMark’s director of sales/services. He had an employment contract that restricted his right to leave the company and compete. When he did leave and competed, CentiMark filed suit against him. He filed a motion to dismiss under the Texas anti-SLAPP, TCPA, law. CentiMark responded that, among other things, the TCPA didn’t apply because of the “commercial speech exemption.” The trial court denied the motion without stating the reasons. 

In A Texas anti-SLAPP, TCPA, Case, If The Non-Movant Raises The Commercial Speech Exemption, You Must Address It Or You May Lose

The appellant did not mention the commercial speech exemption in his brief but did discuss it in his reply brief.

Please note that the Gaskamp case cited below has been changed in an en banc reconsideration. Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2018 WL 6695810 (Tex. App.-Houston [1st Dist.] Dec. 20, 2018), withdrawn and superseded by Gaskamp, 596 S.W.3d at 457.

To succeed on appeal, an appellant must attack all independent grounds that support an adverse ruling. See Gaskamp v. WSP USA, Inc., S.W.3d, No. 01-18-00079-CV, 2018 WL 6695810, at *8-9 (Tex. App.-Houston [1st Dist.] Dec. 20, 2018, no pet. h.) (affirming denial of TCPA motion to dismiss because appellant did not challenge independent ground for ruling–commercial speech exemption); see generally Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (applying rule in appeal of plea to the jurisdiction). If the appellant does not do so, the appellate court must “accept the validity of that unchallenged independent ground” and affirm the challenged ruling. Gaskamp, 2018 WL 6695810, at *8 (quoting Britton, 95 S.W.3d at 681-82).

This court recently held in Gaskamp that the commercial speech exemption is an independent ground that can fully support a trial court’s denial of a motion to dismiss filed pursuant to the TCPA. See Gaskamp, 2018 WL 6695810, at *8 (citing Tex. Civ. Prac. & Rem. Code § 27.010(b)). We further held that the appellant in that case waived any challenge to the applicability of the commercial speech exemption because it did not address the exemption until its reply brief, and we affirmed the trial court’s denial of the motion to dismiss on that unchallenged ground. See id. at *8-9.

What Could Have Been Done

If the nonmovant raises commercial speech in defense of a motion to dismiss under the TCPA, and the trial court does not say in its order why it is denying the motion to dismiss, it is necessary for the movant to address the commercial speech issue in its appellant’s brief with the Court of Appeals. Waiting until the appellee brings it up, is too late.