Levatino v. Apple Tree Café Touring, Inc.

Dallas Court of Appeals, No. 05-15-00614-CV (March 11, 2016)

Justices Lang-Miers, Evans, and Whitehill (Opinion

The Dallas Court of Appeals has laid another stepping stone on the path to understanding the Texas Citizens Participation Act, the State’s anti-SLAPP statute. In a case of first impression, the Court ruled that a pre-suit demand letter constitutes neither the exercise of the right of association nor first amendment petitioning activity covered by the TCPA. So, a declaratory judgment action brought in response to such a demand letter may not be dismissed pursuant to that statute.

Recording artist and actress Erykah Badu prides herself on managing her own career, never having retained a professional talent manager. Badu once employed Paul Levatino through her company, Apple Tree Café Touring. After she fired Levatino, Badu posted statements on social media saying, among other things, that Levatino had not been her manager. Levatino retained counsel, who sent two demand letters to Badu’s counsel, threatening a defamation lawsuit. Badu filed a declaratory judgment action, seeking a determination Levatino had not been her “talent manager” and was owed no compensation for such. Levatino moved for dismissal under the Texas anti-SLAPP statute, arguing that Badu’s lawsuit was filed in response to his exercise of rights protected under the statute, specifically, the rights of association and petitioning. The trial court denied the motion, and Levatino appealed.

The TCPA—in particular, § 27.005 of the Civil Practice & Remedies Code—allows a party to seek early dismissal of a meritless lawsuit or claim brought against that party in response to the party’s exercise of a protected right. As the first step, the movant must show by a preponderance of the evidence “that the legal action is based on, relates to, or is in response to the party’s exercise of” certain constitutional rights. Levatino stumbled on this threshold requirement. He argued the demand letters constituted exercises of his First Amendment rights of association and petitioning. The court of appeals disagreed on both counts.

To be covered as an “exercise of the right of association” under TCPA § 27.001(2) “a communication [must be] between individuals who join together to collectively express, promote, pursue, or defend common interests.” The demand letters, however, were adversarial communications from Levatino’s counsel to Badu’s counsel; they were not designed to “promote, pursue, or defend common interests.”

Perhaps more difficult was the question whether the letters were protected as petitioning activity. TCPA § 27.001(4)(A)(i) protects as petitioning “a communication in or pertaining to . . . a judicial proceeding.” The Act does not define “judicial proceeding” or specify whether it encompasses potential future proceedings or refers only to an existing case. Relying on the “ordinary meaning” of the term, the Dallas Court concluded the Act protects only communications pertaining to an existing proceeding. Consequently, Levatino’s demand letters were not covered by the TCPA, denial of his motion to dismiss was affirmed, and Badu’s suit was allowed to proceed.