Beard v. McGregor Bancshares, Inc.
| Decision Date | 11 April 2022 |
| Docket Number | 05-21-00478-CV |
| Parties | SHERRY BEARD AND JOSEPH BEARD, Appellants v. MCGREGOR BANCSHARES, INC. AND THE FIRST NATIONAL BANK OF MCGREGOR D/B/A TFNB YOUR BANK FOR LIFE, AND DAVID LITTLEWOOD, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 193rd Judicial District Court Dallas County Texas Trial Court Cause No. DC-20-04466
Before Justices Carlyle, Smith, and Garcia
This is an appeal from the denial of two TCPA motions to dismiss. The underlying lawsuit began when appellees McGregor Bancshares Inc. and The First National Bank of McGregor d/b/a TFNB Your Bank for Life (TFNB) filed a Rule 202 petition seeking to discover the identity of a person who allegedly sent defamatory, anonymous FedEx packages to various parties. After McGregor Bancshares and TFNB conducted discovery, they amended the petition to allege numerous causes of actions against appellant Joseph Beard (Joe). Appellee David Littlewood, as a third-party plaintiff, filed cross-claims against Sherry Beard, Joe's wife.[1] The Beards filed separate motions to dismiss under the TCPA. The trial court overruled the Beards' objections to appellees' evidence and denied both motions to dismiss.
In multiple issues, the Beards argue the trial court erred by overruling their evidentiary objections and denying their motions to dismiss because the allegations in their petitions are based on or in response to their exercise of the right of free speech and right to petition, and appellees failed to provide clear and specific evidence of a prima facie case for each essential element of their claims. For the reasons discussed below, we affirm in part, reverse in part, and remand for further proceedings.
The underlying facts of this lawsuit are well-known to the parties; therefore, we include only those relevant for disposition of this appeal. See Tex. R. App. P 47.1. The following facts are from appellees' amended petition against Joe and Littlewood's cross-claims against Sherry.
TFNB has a long history of serving residents and businesses in McClennan County. TFNB is one hundred percent owned by McGregor Bancshares, which is a holding company. All shares of McGregor Bancshares are privately owned.
In 2000, Pat Beard, Joe's father, hired David Littlewood with unanimous approval of the TFNB board of directors. After eighteen months, Littlewood was appointed TFNB's Chief Credit Officer, where he oversaw regulatory compliance. In 2003, Littlewood was again promoted, with unanimous board approval, to President and CEO, a position he has held continuously since 2003.
Two of McGregor Bancshares' key investors are Castle Creek Capital, LLC and EJF Capital, LLC. In March 2019, Littlewood, as the president and CEO of TFNB, issued a press release announcing that McGregor Bancshares had completed a $25 million private placement of its capital stock with certain affiliates of Castle Creek and EJF. The press release emphasized the importance of Capital Creek and EJF's partnership for the growth of TFNB and McGregor Bancshares.
On February 11, 2020, Castle Creek's legal counsel contacted McGregor Bancshares' officers and board members advising them that Castle Creek received an unsolicited, anonymous FedEx package with documents accusing TFNB and its leadership (including Littlewood) of engaging in systemic unsafe and unsound lending practices that jeopardized the financial condition of TFNB. Essentially, the documents accused TFNB and its leadership of violating numerous banking regulations and alleged that TFNB was on the verge of collapse.
Castle Creek immediately requested that McGregor Bancshares' board of directors form a special committee to investigate the validity of the accusations. After reviewing the materials in the anonymous FedEx packages, the special committee determined that (1) there were no underwriting issues associated with any of the loans it reviewed; (2) TFNB's underwriting practices were disciplined and sound; and (3) there was no factual basis supporting any of the anonymous allegations.
TFNB later discovered that other anonymous FedEx packages with similar accusatory documents about its underwriting practices were sent to other regulators and investors, including EJF. These packages were sent on February 3, 2020, and March 16, 2020.
TFNB believed Joe was the anonymous sender of the packages. Although Joe had no direct relationship with TFNB, the Beard family's history with TFNB transcended decades. Joe's father, Pat, had active leadership roles in TFNB for over forty years. Joe's brother, Mike, followed in Pat's footsteps.
Unlike his father and brother, Joe was not interested in TFNB and instead focused his career on commercial real estate in Dallas. However, his interest changed when Pat died in November 2013. Joe then attempted an unsuccessful hostile takeover of TFNB, which included trying to remove Mike and Littlewood from TFNB leadership. Joe's failure to oust Mike and Littlewood from leadership led to animosity that, despite subsiding for a few years, reignited and intensified in 2019. The Beards began making various accusations against appellees. These accusations led to the underlying suits discussed below.
On March 17, 2020, McGregor Bancshares and TFNB filed a Rule 202 petition seeking to ascertain the identity of the person sending the FedEx packages. On April 9, 2020, Sherry filed her original counterclaims against TFNB alleging (1) aiding and abetting, (2) intentional infliction of emotional distress, and (3) piercing the corporate veil.
On July 15, 2020, Sherry filed her third-party plaintiff's first amended third-party petition in which she added Littlewood as a third-party defendant and accused him of initiating and perpetuating a pattern of ongoing interference, threats, and harassment. She claimed Littlewood's harassing behavior began and continued because the Beards determined that Littlewood was unfit to serve as TFNB's president. She alleged, among other things, that Littlewood harassed her family at a country club and other restaurants, called her late at night, and used physical intimidation on several occasions in public. Sherry also alleged that Littlewood told Lee Washington (who subsequently told her) that Littlewood wanted to shoot her in the back of the head. She brought causes of action for (1) invasion of privacy, (2) assault (threat of bodily injury), (3) intentional infliction of emotional distress, (4) stalking, and (5) tortious interference with prospective relations.
On February 11, 2021, McGregor Bancshares and TFNB filed their amended petition against Joe, and Littlewood filed cross-claims against Sherry for (1) defamation, (2) business disparagement, and (3) tortious interference with business relations.
Subsequently, Sherry filed a motion to dismiss all of Littlewood's claims under the TCPA. She alleged Littlewood filed his cross-claims in retaliation for her filing her third-party amended petition and, therefore, Littlewood sought to deter, impair, and frustrate the exercise of her constitutional rights of free speech, association, and petition.[2] Joe filed a separate TCPA motion to dismiss appellees' causes of action for (1) defamation, (2) business disparagement, and (3) tortious interference with business relations. Joe also sought dismissal of TFNB's causes of action for tortious interference with a contract and libel or slander of a bank.
Appellees filed numerous objections to the Beards' evidence in support of the Beards' motions to dismiss. The Beards likewise filed objections and motions to strike appellees' evidence. The trial court overruled the Beards' objections. In two separate orders, the trial court overruled the Beards' motions to dismiss in their entirety. This appeal followed.
We first address whether Joe timely filed his TCPA motion to dismiss. The parties do not dispute the timeliness of Sherry's motion.
This lawsuit began on March 17, 2020, when McGregor Bancshares and TFNB filed a Rule 202 petition. After conducting pre-suit discovery, TFNB and McGregor Bancshares filed their amended petition on February 11, 2021.
Joe filed his TCPA motion to dismiss on April 12, 2021. TFNB and McGregor Bancshares argued, in part, that Joe's motion was untimely because he did not file it within sixty days after being served with the Rule 202 petition. Joe responded that a Rule 202 petition does not fall within the TCPA's definition of "legal action." See Tex Civ. Prac. & Rem. Code Ann. § 27.001(6) ().
Our analysis of this issue is guided by the recent Texas Supreme Court case Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021). In Montelongo, the supreme court acknowledged that absent an extension by agreement or good cause, the party seeking dismissal under the TCPA must file a motion within sixty days after the party is served with the legal action. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b). The court then explained when an amended petition triggers a new sixty-day period for filing a motion to dismiss:
[T]o the extent an amended or supplemental pleading either (1) adds a new party or parties, (2) alleges new essential facts to support previously asserted claims, or (3) asserts new legal claims or theories involving different elements than the claims or theories previously asserted, the new pleading asserts a new legal action and triggers a new sixty-day period as to those new parties, facts, or claims.
Montelongo...
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