Jonathan Wheeler and Brooke Wheeler v. J.M. Martin Custom Homes, Inc. and Justin Martin, Individually and D/B/A J.M. Martin Custom Homes

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00316-CV

JONATHAN WHEELER AND BROOKE WHEELER, APPELLANTS

V.

J. M. MARTIN CUSTOM HOMES, INC. AND JUSTIN MARTIN, INDIVIDUALLY AND
D/B/A J. M. MARTIN CUSTOM HOMES, APPELLEES

On Appeal from the 106th District Court
Garza County, Texas
Trial Court No. 24-04-07885, Honorable Reed A. Filley, Presiding

December 11, 2025
OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

When homeowners discover that their builder has left subcontractors unpaid, they

face an uncomfortable choice: pay twice for work already performed or risk liens on their

property. According to the pleadings, Appellants Jonathan and Brooke Wheeler paid

subcontractors directly when faced with this situation. When the Wheelers sued over the

resulting payment dispute, their builder, Appellees J.M. Martin Custom Homes, Inc. and

Justin Martin (collectively “Martin”), counterclaimed for business disparagement, alleging

the Wheelers falsely told others about Martin’s payment practices.
This appeal does not concern the truth of any statements about Martin’s payment

practices. We decide only whether Martin’s business disparagement claim falls within the

Texas Citizens Participation Act’s protections. It does. Because Martin filed no evidence

to support his claim—as required by § 27.005(c) of the Texas Civil Practice and Remedies

Code—dismissal is mandatory under § 27.009(a). We reverse the trial court’s denial of

the TCPA motion, render judgment that Martin take nothing on his business

disparagement counterclaim, and remand for determination of attorney’s fees and costs

under § 27.009.

BACKGROUND

According to the parties’ pleadings, the Wheelers contracted with Martin to build a

custom home in Garza County. During construction, the Wheelers began paying

subcontractors directly and deducted those payments from amounts owed to Martin.

Martin filed a mechanic’s lien against the property for the unpaid balance.

The Wheelers sued to remove the lien, alleging they paid subcontractors directly

because Martin failed to pay them timely, resulting in lien notices by the subcontractors.

Martin admitted the contract but denied the payment allegations. He claimed the

Wheelers’ refusal to pay according to contract terms prevented him from paying

subcontractors.

Martin also counterclaimed for business disparagement, claiming the Wheelers

“went to numerous vendors and members of the general public and intentionally and

maliciously maligned [Martin] and the quality of their work as well as [Martin’s] business

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ethics regarding payment of his obligations, which caused damage to [Martin’s]

professional reputation.” He sought $100,000 in damages.

The Wheelers denied making disparaging comments but moved to dismiss the

business disparagement claim under the TCPA under §§ 27.003(a) and 27.010(b)(2).

Martin responded by amending his counterclaim to identify ten specific statements

allegedly made between July and December 2023. According to Martin, the Wheelers:

• Told Cody King that “by the time this is all over, [the Wheelers] were
going to have a lot of liens and that Martin doesn’t pay his bills;”

• Told Blake Swanner that “Martin is not taking care of business and
doesn’t pay his bills;”

• Told vendors that Martin does not finish his jobs (84 Lumber, Greg
Gayden);

• Told subtractors that Martin was not paying his subcontractors (Alex
Tarrin, Jamie Dozier) and was not paying his bills (John Soto, Scott
Williams);

• Made “general disparaging comments” to John Dominey, a Martin
customer; and

• told vendor/subcontractor Tony Graves that the Wheelers devised a
plan with counsel whereby “[Martin] would not receive shit.”

Martin filed a three-page response opposing the TCPA motion. He argued the

statute did not apply because “[t]he subject matter of the lawsuit is a private contract

between the parties and is not a matter of ‘public concern’ nor are Defendants/Counter-

Plaintiffs public figures in any sense of the word.” He submitted no evidence supporting

his disparagement claim.

Following a hearing, the trial court denied the Wheelers’ TCPA motion on October

2, 2024. This interlocutory appeal followed.
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ANALYSIS

A. The Amended TCPA Creates Two Pathways to Dismissal

The Texas Citizen Participation Act, is codified in Chapter 27 of the Texas Civil

Practice & Remedies Code. TEX. CIV. PRAC. & REM. CODE §§ 27.001–27.011. Originally

passed in 2011, the Act’s stated purpose was and continues to be, “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.” § 27.002.

We review questions of statutory construction de novo. In re Panchakarla, 602

S.W.3d 536, 540 (Tex. 2020); Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011).

When interpreting the TCPA, we follow settled principles: we adopt the interpretation

supported by the statute’s plain language unless it would lead to absurd results. TGS-

NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). When following

where the language leads, we presume the Legislature “included each word in the statute

for a purpose and that words not included were purposefully omitted.” Lippincott v.

Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). We construe the TCPA’s provisions as

a whole, not in isolation, Panchakarla, 602 S.W.3d at 540, giving undefined terms their

ordinary meaning unless the statutory context demands otherwise. Baumgardner v.

Brazos River Auth., 714 S.W.3d 597, 601 (Tex. 2025).

The TCPA, as amended in 2019, offers defendants two distinct routes to dismissal.

It permits dismissal “[i]f a legal action is based on or is in response to a party’s exercise

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of the right of free speech . . . or arises from any act of that party in furtherance of the

party’s communication or conduct described by § 27.010(b).” TEX. CIV. PRAC. & REM.

CODE § 27.003 (emphasis added). The statute’s use of “or” between these pathways

confirms they operate independently. See, e.g., Seward v. Santander, 713 S.W.3d 341,

357 n.59 (Tex. 2025) (construing disjunctive “or” in statute to mean conditions are

alternatives, not cumulative requirements); Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d

578, 581 (Tex. 2000) (use of “or” between phrases “signifies a separation between two

distinct ideas”).1

The first pathway (constitutional protections for free speech, petition, and

association) requires that the challenged conduct involve matters of public concern. The

second pathway (protection for acts described in § 27.010(b)) contains no such

requirement. Martin vigorously contests whether the Wheelers’ alleged statements

constitute matters of public concern under the first pathway. However, it is unnecessary

to resolve this issue. Even assuming the alleged statements involve purely private

matters that fall outside constitutional protection,2 the TCPA’s second pathway—

§ 27.010(b)(2)—independently mandates dismissal.

1 Section 27.005(b) reinforces this dual structure, requiring dismissal if the movant shows the legal

action is based on either: “(1) the party’s exercise of” constitutional rights, “or (2) the act of a party described
by Section 27.010(b).”

2 See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 762 (1985) (holding a false

credit report sent to five subscribers about a construction contractor’s solvency was “speech solely in the
individual interest of the speaker and its specific business audience,” and did not constitute a matter of
public concern); KRJJ Enterprises v. Willis, No. 01-23-00198-CV, 2023 Tex. App. LEXIS 9348, at *8–9
(Tex. App.—Houston [1st Dist.] Dec. 14, 2023, no pet.) (holding that allegedly false statements made to
one or more credit agencies about a tenant’s “fidelity in paying bills” did not rise to public concern under the
amended TCPA). But see MVS Int’l Corp. v. Int’l Advert. Sols., LLC, 545 S.W.3d 180, 193 (Tex. App.—El
Paso 2017, no pet.) (holding that under pre-2019 TCPA, statements about unpaid billings to public media
outlets constituted matters of public concern because they were “in connection” with a “service” in the
marketplace).
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B. The Wheelers’ Communications Fall Within Section 27.010(b)(2)

Section 27.010(b)(2) makes the TCPA applicable to Martin’s counterclaim if it is

“related to the communication, gathering, receiving, posting, or processing of consumer

opinions or commentary, evaluations of consumer complaints, or reviews or ratings of

businesses.” § 27.010(b)(2). The statutory text demonstrates the Legislature protected

not merely formal online reviews, but the full spectrum of consumer feedback through any

medium.

Martin’s business disparagement claim is undeniably “related to” the Wheelers’

alleged communications about his business. His amended counterclaim specifically

targets statements the Wheelers purportedly made to subcontractors, vendors, and a

customer about Martin’s payment practices and job completion, including:

• “Consumer opinions” – Wheelers’ views on Martin’s business practices;

• “Commentary” – their remarks about Martin’s payment practices;

• “Reviews” – their assessments of Martin’s performance; and

• “Ratings” – their evaluations of Martin’s business quality.

The Wheelers’ alleged comments constitute protected communication of

consumer opinions about Martin’s business practices. Whether shared by telephone, in

person, or through any other medium, these evaluations represent precisely what the

TCPA was intended to encompass. Because Martin’s business disparagement claim is

“related to” the Wheelers’ protected communications under § 27.010(b)(2), the TCPA

applies.

C. Martin Failed to Meet His Burden Under the TCPA’s Framework

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Finding the TCPA applies triggers Martin’s burden to provide “clear and specific

evidence” of each element of its business disparagement claim. See TEX. CIV. PRAC. &

REM. CODE § 27.005(c). Notwithstanding the TCPA’s applicability, business

disparagement plaintiffs can still proceed if they present clear and specific evidence of

false and disparaging statements made with malice, without privilege, and resulting in

special damages. See Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170

(Tex. 2003).

However, Martin’s complete failure to present any evidence mandates dismissal

under the statute’s plain language.3 We therefore reverse and render judgment that

Martin take nothing, with remand for determination of damages and costs pursuant to

§ 27.009.

D. The Dissent Misreads the Statutory Structure and Text

We now turn to Justice Yarbrough’s dissent. Section 27.010 contains the heading

“Exemptions,” leading the dissent to reason that § 27.010(b)’s role is limited to providing

a list of exceptions to the exemptions found is subsection (a). However, the dissent’s

analysis ignores the most basic textual fact: §§ 27.003(a) and 27.005(b) each explicitly

reference “Section 27.010(b)” as an independent basis for dismissal. Its invocation of

“judicial restraint” accordingly rings hollow; it is essentially asking us to disregard the

statute’s explicit dual-pathway structure.

3 See § 27.005(b) (a court “shall dismiss a legal action” if the moving party demonstrates an act

described by section 27.010(b)). But see § 27.005(c) (a court “may not dismiss” an action if the party
bringing the claim “establishes by clear and specific evidence a prima facie case for each essential element
of the claim . . .”).
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In this way, the dissent’s conclusion—that the statute doesn’t mean what it literally

says—is erroneous. If the Legislature intended § 27.010(b) to apply only when the three

exemptions under § 27.010(a) exist, it could have included those as separate grounds for

dismissal in §§ 27.003(a) and 27.005(b) rather than using the language in § 27.010(b)(2).

Instead, the Legislature chose detailed language protecting “communication, gathering,

receiving, posting, or processing of consumer opinions or commentary, evaluations of

consumer complaints, or reviews or ratings of businesses.” TEX. CIV. PRAC. & REM. CODE

§ 27.010(b)(2). This specific conduct-based test, not exemption categories, determines

TCPA applicability.

After quoting Senator Hughes’s floor statement, the dissent also asks rhetorically,

“What more evidence of legislative intent do we need than the author of the bill itself?”

The answer to that question is simple: the statutory text itself. As the Supreme Court

has repeatedly held on this precise question, “statements explaining an individual

legislator’s intent cannot reliably describe the legislature’s intent.” Tex. Health

Presbyterian Hosp. of Denton v. D.A., 569 S.W.3d 126, 137 (Tex. 2018). See also, e.g.,

AT&T Comms. of Tex., L.P. v. Sw. Bell Tel. Co., 186 S.W.3d 517, 528–29 (Tex. 2006)

(“[T]he statement of a single legislator, even the author and sponsor of the legislation,

does not determine legislative intent.”); Molinet, 356 S.W.3d at 414 (“Statements made

during the legislative process by individual legislators or even a unanimous legislative

chamber are not evidence of the collective intent of the majorities of both legislative

chambers that enacted a statute.”). Construing unambiguous statutes according to their

language as expressly written “ensures that ordinary citizens are able to rely on the

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language of a statute to mean what it says.” Tex. Health Presby. Hosp., 569 S.W.3d at

137 (quoting Molinet, 356 S.W.3d at 414).4

Moreover, the rationale employed in the dissenting opinion depends on a

misreading of the term “Notwithstanding” in subsection (b).5 The dissent treats the term

as limiting, suggesting § 27.010(b) applies only to the three exemptions listed in (a)(2),

(7), and (12). But when used in a prepositional phrase, “notwithstanding” means “despite”

or “in spite of.” BLACK’S LAW DICTIONARY 1281 (11th ed. 2019); MERRIAM-WEBSTER’S

COLLEGIATE DICTIONARY 848 (11th ed. 2014). Courts consistently interpret

“notwithstanding” as an expansive term that overrides limitations, not a restrictive term

creating them. See Gulf Oil Corp. v. Southland Royalty Co., 496 S.W.2d 547, 552 (Tex.

1973) (interpreting lease clause stating “anything in this lease to the contrary

notwithstanding” as giving the section “priority over any contrary provision of the lease,”

not making it subordinate to others); Helmerich & Payne Intern. Drilling Co. v. Swift

Energy Co., 180 S.W.3d 635, 643 (Tex. App.—Houston [14th Dist.] 2005, no pet.)

(holding that “notwithstanding anything to the contrary contained herein” means parties

agree the paragraph must be given effect regardless of contrary provisions).

To illustrate: when the statute says “Notwithstanding [the exemptions found in]

Subsections (a)(2), (7), and (12), this chapter applies to” consumer communications, it

means “Despite [the exemptions found in] Subsections (a)(2), (7), and (12), this chapter

4 No doubt, courts are free to turn to extratextual sources such as the statute’s legislative history

when statutory language is ambiguous and plain language alone would be unavailing. Transcon. Ins. Co.
v. Crump, 330 S.W.3d 211, 229 (Tex. 2010). But no party or member of our Court directs us to any
ambiguity.

5 See § 27.010(b) (“Notwithstanding Subsections (a)(2), (7), and (12), this chapter applies to . . .”).

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applies to” consumer communications. See TEX. CIV. PRAC. & REM. CODE § 27.010(b).

The Legislature was emphasizing that consumer communications receive protection even

in commercial contexts where those exemptions might otherwise bar coverage. By

redefining “notwithstanding” to mean “only when,” the dissent turns the statutory language

on its head.

The dissenting opinion also disagrees with the Beaumont Court of Appeals’

analysis in Gulf Coast Pros pertaining to “the act of a party” described in § 27.010(b).6

But the dissent misunderstands what constitutes such an “act.” Communicating is an

act.7 So is gathering, receiving, posting, processing, evaluating, reviewing, and rating.

Each of these is a separate “act of a party” that can trigger TCPA protection under

§§ 27.003(a) and 27.005(b)(2) depending on the circumstances. If, as alleged, the

Wheelers allegedly told subcontractors, vendors, and customers that Martin was not

paying his subcontractors or finishing his jobs, they would have been engaging in the

protected act of communicating consumer opinions and reviewing Martin’s business

practices. This is sufficient to invoke TCPA protection.

Justice Scalia, whose statutory construction treatise the dissent frequently cites,

directly rejected this approach in United States v. Brogan, 522 U.S. 398, 408 (1998). He

wrote that “[c]ourts may not create their own limitations on legislation, no matter how

alluring the policy arguments for doing so, and no matter how widely the blame may be

spread.” Id. The dissenting opinion would do exactly what Brogan forbids: judicially

6 Gulf Coast Pros, LLC v. Sweeney, No. 09-23-00320-CV, 2024 Tex. App. LEXIS 4290 at *27–28

(Tex. App.—Beaumont June 20, 2024, no pet.).

7 Lest there be any doubt, see MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 251 (11th ed. 2014)

defining “communication” as “an act or instance of transmitting.”
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create limitations on clear statutory language based on policy arguments about what the

Legislature supposedly intended.

In conclusion, we hold the Legislature enacted § 27.010(b)(2) in 2019 to address

problems with the prior version of the TCPA. If the amending language is still too broad,

that is the Legislature’s responsibility to address, not an invitation for courts to impose

their own policy preferences.

CONCLUSION

When the Wheelers allegedly told others that Martin was not paying his bills or

finishing his jobs, they were engaging in the everyday consumer practice of sharing

experiences to help others avoid similar problems. This is how commerce works.

The trial court erred in denying the Wheelers’ TCPA motion to dismiss. The

Wheelers’ alleged communications to Martin’s subcontractors and vendors constitute

protected acts under § 27.010(b)(2)—the communication of consumer opinions,

commentary, and reviews about Martin’s business practices. In response, Martin

presented no evidence supporting his business disparagement claim as required under

§ 27.005(c) for potentially avoiding dismissal.

We therefore reverse and render judgment that Martin take nothing, with remand

for determination of damages and costs pursuant to § 27.009.

Lawrence M. Doss
Justice

Yarbrough, J., dissenting.
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