United Food & Commercial Workers Int'l Union v. Wal-Mart Stores, Inc.

• Decision Date: 17 April 2014
• Docket Number: No. 02–13–00353–CV.,02–13–00353–CV.
• Citation: 430 S.W.3d 508
• Parties: UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, Organization United for Respect at Walmart, North Texas Jobs with Justice, Lester Eugene Lantz, and Does 1–10, Appellants v. WAL–MART STORES, INC.; Wal–Mart Real Estate Business Trust; Wal–Mart Realty Company; Wal–Mart Stores Texas, LLC; Wal–Mart Stores East, LP; and Sam's East, Inc., Appellees.
• Court: Texas Court of Appeals

430 S.W.3d 508

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, Organization United for Respect at Walmart, North Texas Jobs with Justice, Lester Eugene Lantz, and Does 1–10, Appellants

v.WAL–MART STORES, INC.; Wal–Mart Real Estate Business Trust; Wal–Mart Realty Company; Wal–Mart Stores Texas, LLC; Wal–Mart Stores East, LP; and Sam's East, Inc., Appellees.

No. 02–13–00353–CV.

Court of Appeals of Texas, Fort Worth.

April 17, 2014.

Rod Tanner, Tanner and Associates, PC, Fort Worth, G. William Baab, Baab and Denison, LLP, Dallas, for Appellants.

Peter Wahby, Charles P. Floyd, Greenberg and Taurig, LLP, Dallas, Marshall M. Searcy, John H. Cayce, Kelly Hart & Hallman, LLP, Fort Worth, Steven D. Wheeless, Douglas D. Janicik, Steptoe and Johnson LLP, Phoenix, AZ, for Appellees.

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

OPINION

SUE WALKER, Justice.

I. Introduction

This is an interlocutory appeal from the trial court's order denying Appellants' motionto dismiss filed pursuant to the Texas Citizens' Participation Act (TCPA). Because Appellees established by clear and specific evidence a prima facie case for each essential element of their trespass claim and because Appellants failed to establish by a preponderance of the evidence each essential element of the defense of consent, we will affirm the trial court's denial of Appellants' motion to dismiss. SeeTex. Civ. Prac. & Rem. Code Ann. § 27.005(c), (d) (West Supp. 2013).

II. Brief Factual and Procedural Background ¹

The second amended petition filed by Appellees Wal–Mart Stores, Inc.; Wal–Mart Real Estate Business Trust; Wal–Mart Realty Company; Wal–Mart Stores Texas, LLC; Wal–Mart Stores East, LP; and Sam's East, Inc. (collectively Wal–Mart) details numerous incidents in which Appellants United Food and Commercial Workers International Union (UFCW) and Organization United For Respect At Walmart (OURWalmart) repeatedly entered onto Wal–Mart's private property, despite posted no-solicitation signs, and engaged in mass demonstrations. During the demonstrations, UFCW and OURWalmart blocked ingress and egress to parking lots, parking spaces, vehicular traffic, and store entrances; they screamed through bullhorns, paraded around with banners and signs on sticks, conducted in-store “flash mobs,” and diverted management and local police from their normal job functions. In addition to interfering with working Wal–Mart associates, UFCW's and OURWalmart's conduct interfered with Wal–Mart customers as they tried to shop. UFCW and OURWalmart refused to leave when instructed by Wal–Mart management; they left only when they were forced to leave by police or by the threat of police intervention.

By letters dated October 14, 2011; October 8, 2012; November 15, 2012; and April 18, 2013, Wal–Mart formally notified UFCW and OURWalmart that their representatives were to cease and desist from trespassing on Wal–Mart's private property in Texas. The letters stated that Wal–Mart revoked any license or permission that UFCW and OURWalmart may have previously had as members of the general public to be in or on a Wal–Mart facility, sidewalk, or parking lot if they solicited, distributed literature, or otherwise engaged in any demonstration. Despite the notifications, the demonstrations continued at various Wal–Mart locations.

Wal–Mart initiated the underlying trespass suit against Appellants UFCW, OURWalmart, North Texas Jobs With Justice, Lester Eugene Lantz, and Does 1–10 (collectively United Food) and sought a permanent injunction so that Wal–Mart could manage, control, and operate its business affairs on its private property free from United Food's trespasses and disruptions. United Food filed a plea to the jurisdiction,² special exceptions, and an answer in which United Food pleaded the affirmative defense that Wal–Mart had consented to United Food's entry onto Wal–Mart's property. United Food thereafter filed a motion to dismiss under the TCPA. Wal–Mart filed a response in opposition to the motion to dismiss and attached declarations from Wal–Mart employees who had witnessed the mass demonstrations; the declarants described the demonstrations, the duration of the demonstrations, and the disruption the demonstrations caused in the Wal–Mart stores. Some of the declarations included an attached DVD containing YouTube videos of several of the mass demonstrations. Wal–Mart also attached to its response leases and deeds establishing its ownership of the Wal–Mart stores and property and photographs of the posted no-solicitation signs at various Wal–Mart stores. Finally, Wal–Mart's response attached the four cease-and-desist letters sent to United Food asking that its representatives stop trespassing on Wal–Mart property. After a hearing, the trial court denied United Food's motion to dismiss under the TCPA. United Food perfected this interlocutory appeal, raising three issues challenging the trial court's denial of the motion to dismiss under the TCPA.

III. Trial Court Properly Denied Motion to Dismiss Under the TCPA

In its first and second issues, United Food argues that the trial court erred by denying the motion to dismiss under section 27.005 of the TCPA.

A. Applicable Law

The Texas Legislature enacted the TCPA “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.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002 (West Supp. 2013). To achieve these ends, the legislature provided that if a legal action is brought in response to a party's exercise of the right of free speech, the right to petition, or the right of association, that person may move to dismiss the action. Id. § 27.003(a) (West Supp. 2013). The movant bears the initial burden to show by a preponderance of the evidence that the action “is based on, relates to, or is in response to the party's exercise” of any of the aforementioned constitutional rights. Id.§ 27.005(b). If the movant satisfies this burden, the trial court must dismiss the legal action unless the party who brought the action “establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id.§ 27.005(b), (c). Notwithstanding whether the previous burden is met, the trial court shall dismiss a legal action against the moving party if the moving party establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim. Id.§ 27.005(d).

B. Standard of Review

We review de novo a trial court's ruling on a motion to dismiss under the TCPA. See Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 724–27 (Tex.App.-Houston [14th Dist.] 2013, pet. denied). Accordingly, we review de novo whether (1) the movant satisfied the initial burden imposed by section 27.005(b), (2) the nonmovant satisfied the burden imposed by section 27.005(c), and (3) the movant satisfied the burden imposed by section 27.005(d). In reviewing the trial court's determination of whether a legal action should be dismissed under subsections (c) and (d) of section 27.005, we consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based. AccordTex. Civ. Prac. & Rem. Code Ann. § 27.006(a) (West Supp. 2013) (requiring the trial court to consider these items); Sierra Club v. Andrews Cnty., 418 S.W.3d 711, 715 (Tex.App.-El Paso 2013, pet. filed).

C. Analysis

1. Under Section 27.005(b)

With regard to the initial burden under section 27.005(b), we note that courts have traditionally determined that actions such as picketing and distributing handbills fall within the right of free speech or the right of association. SeeTex. Civ. Prac. & Rem. Code Ann. § 27.005(b)(1), (3); see, e.g., Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 552, 570, 92 S.Ct. 2219, 2221, 2229, 33 L.Ed.2d 131 (1972) (right to distribute handbills treated as First Amendment right). For purposes of this appeal only, we will assume that United Food met by a preponderance of the evidence the initial burden of showing that Wal–Mart's claims against United Food constitute a legal action based on, related to, or in response to United Food's exercise of the right of free speech or the right of association so as to fall within the ambit of the TCPA. SeeTex. Civ. Prac. & Rem. Code Ann. §§ 27.003(a), .005(b).

2. Under Section 27.005(c)

Assuming United Food met its burden under section 27.005(b), the burden then shifted under section 27.005(c) to Wal–Mart, as the nonmovant to United Food's motion to dismiss, to establish by clear and specific evidence a prima facie case for each essential element of trespass. Id.§ 27.005(c). “Trespass to real property requires a showing of an unauthorized physical entry onto the plaintiff's property by some person or thing.” Cain v. Rust Indus. Cleaning Servs., 969 S.W.2d 464, 470 (Tex.App.-Texarkana 1998, pet. denied) (citing R.R. Comm'n of Tex. v. Manziel, 361 S.W.2d 560, 567 (Tex.1962)). United Food does not dispute that its participants, for the purpose of engaging in mass demonstrations,³ entered land that is owned or leased by Wal–Mart. Instead, United Food contends that its representatives were invitees who were authorized to be on Wal–Mart's property to engage in mass demonstrations because Wal–Mart's facilities are open to the public, which “is all that is required to confer invitee status on the entrant.”

In determining whether a particular person is an invitee or a business visitor, “the important thing is the desire or willingness to receive that person which a reasonable man would understand as expressed by the words or other conduct of the possessor.” Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073, 1076 (1941). Also, a person lawfully on the property of another as an invitee who uses...