Cheniere Energy, Inc. v. Lotfi

• Decision Date: 07 October 2014
• Docket Number: No. 01–13–00515–CV.,01–13–00515–CV.
• Citation: 449 S.W.3d 210
• Parties: CHENIERE ENERGY, INC., Charif Souki, Individually, and Greg Rayford, Individually, Appellants v. Azin LOTFI, Appellee.
• Court: Texas Court of Appeals

449 S.W.3d 210

CHENIERE ENERGY, INC., Charif Souki, Individually, and Greg Rayford, Individually, Appellants

v.Azin LOTFI, Appellee.

No. 01–13–00515–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Oct. 7, 2014.

Matthew L. Hoeg, Ryan R. McBrearty, Andrews Kurth LLP, Houston, TX, for Appellants.

M. Todd Slobin, Martin A. Shellist, Shellist Lazarz Slobin, LLP, Houston, TX, for Appellee.

Panel consists of Justices JENNINGS, SHARP, and BROWN.

OPINION

HARVEY BROWN, Justice.

Appellants filed a motion for rehearing of our memorandum opinion of June 10, 2014. Their motion for rehearing is overruled. The memorandum opinion of June 10, 2014, is withdrawn, and the following substitute opinion is issued in its place.

Azin Lotfi sued her employer, Cheniere Energy, Inc., claiming her employment was wrongfully terminated. She also sued two of her co-workers, Charif Souki and Greg Rayford, for tortious interference with her employment at Cheniere.

In this accelerated appeal, Souki and Rayford challenge the trial court's denial of their motion to dismiss the claims against them under Chapter 27 of the Civil Practice and Remedies Code, which is an anti-SLAPP statute entitled “Actions Involving the Exercise of Certain Constitutional Rights” and commonly referred to as the Texas Citizens' Participation Act (TCPA). See generally Tex. Civ. Prac. & Rem.Code Ann. § 27.001 –.011 (West Supp.2014).¹

Souki and Rayford contend that (1) they properly invoked the TCPA by establishing, by a preponderance of the evidence, that Lotfi's claims against them are related to their exercise of the “right of association” and (2) Lotfi failed to present clear and specific evidence to support each element of her prima facie case of tortious interference to avoid summary dismissal. We affirm.

Background

Lotfi, Cheniere's former assistant general counsel, sued the company for “breach of contract, fraud, fraud in the inducement, unjust enrichment, and pending disability discrimination and retaliation claims under chapter 21 of the Texas Labor Code.” Lotfi claimed that she was fired from Cheniere in retaliation for reporting improper activities within the company, including unauthorized disclosures of confidential company information to the son of Cheniere's CEO and board chairman. In addition to suing her former employer, Lotfi asserted a tortious interference claim against Cheniere's CEO, Charif Souki, and its senior vice president and general counsel, Greg Rayford.

Souki and Rayford moved to dismiss the tortious interference claim, arguing that it was a frivolous suit brought in response to their exercise of the “right of association” as defined in the TCPA. See Tex. Civ. Prac. & Rem.Code Ann. § 27.001(2) (defining “right of association” as “a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.”).

In deciding whether to grant a motion to dismiss under the TCPA, the statute directs the trial court to “consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.” Id. § 27.006(a). Lotfi filed a response to Souki and Rayford's motion to dismiss, but neither side filed affidavits. Thus, based on the pleadings but without any additional evidence, the trial court denied the Souki and Rayford's motion to dismiss. They appeal that order.

The Text and Stated Purpose of the TCPA

The TCPA is an anti-SLAPP law. See Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 719 (Tex.App.-Houston [14th Dist.] 2013, pet. denied). “SLAPP” is an acronym for “Strategic Lawsuits Against Public Participation,” which are suits filed against politically and socially active individuals—not with the goal of prevailing on the merits but, instead, of chilling those individuals' First Amendment activities. See George W. Pring & Penelope Canan, Strategic Lawsuits Against Public Participation (“SLAPPS”): An Introduction for Bench, Bar and Bystanders, 12 Bridgeport L.Rev. 937, 938 (1992). Anti–SLAPP statutes have been enacted in several states over the past two decades to “deter lawsuits ... brought primarily to chill the valid exercise” of First Amendment rights. Barron v. Vanier, 190 S.W.3d 841, 843 (Tex.App.-Fort Worth 2006, no pet.). They do so by establishing a mechanism for early dismissal of frivolous lawsuits that threaten the free exercise of First Amendment rights. See Fitzmaurice v. Jones, 417 S.W.3d 627, 629 (Tex.App.-Houston [14th Dist.] 2013, no pet.); Rehak, 404 S.W.3d at 719.

Section 27.003 of the TCPA contains the dismissal provision Souki and Rayford seek to invoke:

If a legal action 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, that party may file a motion to dismiss the legal action.

Tex. Civ. Prac. & Rem.Code Ann. § 27.003. The Texas Legislature expressly stated its purpose for enacting this anti-SLAPP statute:

The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.

Id. § 27.002. The Legislature defined the rights covered by the statute. See id. § 27.001. The “exercise of the right of association” is defined in the TCPA as “a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.” Id. § 27.001(2).

Souki and Rayford contend that Lotfi's tortious interference claim against them was “based on, relate[d] to, or ... in response to” their right of association and was, therefore, subject to summary dismissal.

See id. § 27.003. Souki and Rayford argue that they have met their evidentiary burden, not through affidavit evidence concerning the substance and purpose of a communication between them that would qualify as an exercise of the right of association but, instead, by the mere fact that Lotfi and Rayford held positions as in-house counsel at Cheniere:

Lotfi's tortious interference claim against Souki and Rayford is directly predicated upon the attorney/client communications that took place between Souki (the client representative) and Rayford (the attorney). Furthermore, those confidential communications directly concerned whether to continue to retain Lotfi as one of Cheniere's lawyers (i.e., whether to continue to associate with Lotfi). Thus, the tortious interference claim is necessarily and directly based on, related to, or in response to Appellants' exercise of the right of association.

Standard of Review

We consider the parties' pleadings and affidavits when reviewing a ruling on a TCPA motion to dismiss. Tex. Civ. Prac. & Rem.Code Ann. § 27.006(a). Souki and Rayford bore the initial burden of demonstrating the TCPA's applicability to Lotfi's claim against them. See id. § 27.005(b); Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex.App.-Houston [1st Dist.] 2013, pet. denied). They were required to show by a preponderance of the evidence that Lotfi's claim was based on, related to, or in response to their exercise of the right of association. Tex. Civ. Prac. & Rem.Code Ann. § 27.005(b). This inquiry is a legal question we review de novo. Newspaper Holdings, 416 S.W.3d at 80. Only if we conclude Souki and Rayford met their burden, do we analyze whether Lotfi met her burden to establish by “clear and specific evidence” the elements of her prima facie case against them to avoid dismissal. Tex. Civ. Prac. & Rem.Code Ann. § 27.005(c).

Statutory construction is a question of law we review de novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). When construing a statute, our objective is to determine and give effect to legislative intent. See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). In determining the Legislature's intent, we look to the plain meaning of the statute's words. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840–41 (Tex.2007). “The plain meaning of the text is the best expression of legislative intent unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.” Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011). We cannot give one provision meaning out of harmony or inconsistent with other provisions, even if it might be susceptible to such a construction standing alone. Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, No. 14–12–00896–CV, 2013 WL 407029, at *2 (Tex.App.-Houston [14th Dist.] Jan. 24, 2013, order). Additionally, we “must not interpret the statute in a manner that renders any part of the statute meaningless or superfluous.”Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex.2008).

Souki and Rayford Fail to Meet Their Burden to Obtain Dismissal

The only relevant pleadings included in the appellate record are Lotfi's amended verified petition, Souki and Rayford's motion to dismiss, and Lotfi's response. Souki and Rayford chose not to submit affidavits in support of their motion to dismiss; therefore, their contention that they communicated when joined together to act in furtherance of a common interest remains unverified. Instead, they rely on Lotfi's pleading to meet their evidentiary burden, pointing us specifically to paragraphs 9, 10, 11, 15, and 21 of Lotfi's verified petition. The facts alleged by Lotfi in these paragraphs are summarized as follows:

• Lotfi started at Cheniere in September 2011 after being personally recruited by Rayford;

• Lotfi raised violations of Cheniere's Code of Business Conduct and Ethics, documentation and accounting irregularities, and other compliance issues, which lead to her termination in retaliation;

• the company initially stated it would pay Lotfi the full amount of company stock owed which, according to Lotfi, was only

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