Texas A&M University 12th Man Foundation A/K/A the 12th Man Foundation v. Robert C. Hines, of the Estate of Nathan Hines

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00175-CV
________________

TEXAS A&M UNIVERSITY 12TH MAN FOUNDATION A/K/A THE 12TH
MAN FOUNDATION, APPELLANT

V.

ROBERT C. HINES, EXECUTOR OF THE ESTATE OF NATHAN HINES,
ET AL, APPELLEE

________________________________________________________________________

On Appeal from the 1A District Court
Newton County, Texas
Trial Cause No. CV-1814312
________________________________________________________________________

MEMORANDUM OPINION

In this interlocutory appeal, we are asked to decide the applicability of the

Texas Citizens’ Participation Act (TCPA) to causes of action arising out of the 12th

Man Foundation’s (the Foundation) fundraising relating to the new football stadium.

See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011. In the trial court, the

Foundation sought dismissal of Plaintiffs’ case, alleging that the TCPA required

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dismissal of the claims Plaintiffs reasserted in their Fourth Amended Petition. The

trial court denied the Foundation’s motion, and the Foundation filed this appeal. 1

In four appellate issues, with multiple subparts, the Foundation contends that

the trial court erred by denying its motion to dismiss pursuant to the TCPA because

(1) Plaintiffs lack standing to assert a derivative claim on behalf of the Foundation;

(2) once the burden shifted to Plaintiffs, they failed to present “clear and specific

evidence” establishing a prima facie case for each of their claims; (3) even if

Plaintiffs did establish a prima facie case, the Foundation established defenses and

affirmative defenses to those claims; and (4) the Foundation’s defenses to Plaintiffs’

breach of “duty of good faith and fair dealing” and “breach of fiduciary obligation”

claims are established as a matter of law. Because we conclude that the TCPA

applies to the Foundation’s right of association and that the Foundation met its

burden to establish that the Plaintiffs cannot prevail on their claims alleging theories

of the breach of good faith, fair dealing, and breach of fiduciary duty. That said,

some of the claims the Plaintiffs raised in their Fourth Amended Petition were not

new claims, and as to those, we conclude the Foundation’s TCPA motion was not

timely. For the reasons explained below, we affirm in part and reverse and remand

in part.

1
The Foundation’s appeal asserts only its TCPA claim, not its Rule 91a claim
asserted in the trial court. Tex. Civ. Prac. & Rem. Code Ann. § 27.003.
2
Background

The Foundation (formerly the Aggie Club) was created as a charitable

organization to promote A&M sports in several ways, which included financing

athletic scholarships. In the 1970s, the Foundation decided to raise money by

soliciting donations by promising prospective donors they would receive desirable

seats at A&M football games, as well as other benefits. The donation that the

Foundation received from these efforts varied. The quality and quantity of seats the

Foundation promised also varied depending upon variable that included the amount

the Foundation received as a donation, the year the donation occurred, the duration

of the endowment (many of which the Foundation allegedly promised as a benefit

that lasted during the donor’s life). When A&M joined the Southeast Conference,

the decision was made by the University that A&M’s football stadium, Kyle Field,

needed renovation. To raise funds toward these renovations, the Foundation adopted

a similar procedure to partially fund the University’s project to rebuild the stadium.2

In developing the project to fund for the rebuilt stadium, the Foundation decided it

would need to relocate some of those donors who had previously donated funds,

been promised seats, and had what the plaintiffs claimed they were promised in

return for their donations, the “best available seats” seats in Kyle Field for the

2
The Foundation did not raise the entire cost of the renovations through
donations. Public bonds were also sold to finance the construction.
3
duration of their respective endowments. Even though the donors who were

displaced were offered the opportunity to have other seats and parking in the rebuilt

Kyle Stadium, the Plaintiffs’ claims these seats and parking are not what they were

promised and are in locations that are less-desirable than the areas the Foundation

promised to provide in exchange for the donations that the plaintiffs gave.

Anticipating that many of its then-existing donors might be dissatisfied with

its offer in what was then the no yet rebuilt Kyle Stadium, the Foundation alleges

that it offered to return to the donors their original donation. According to the

Foundation, some of the Foundation’s donors accepted the Foundation’s offer, while

others wanted what they claimed the Foundation originally promised. The donors

that were dissatisfied with the Foundation’s offer sued the Foundation. In the

lawsuits, the donors alleged claims for breach of contract, promissory estoppel, and

other causes of action.

After numerous procedural maneuvers that included motions, depositions,

venue changes, an effort at certifying a class, which this Court reversed,3 and the

plaintiffs filing four amended petitions, the Foundation filed the motion resulting in

this interlocutory appeal, and its motion to dismiss the case under the TCPA. In its

motion, the Foundation argued that Plaintiffs’ suit “is based on or is in response to”

3
Texas A&M Univ. 12th Man Found. v. Hines, 09-19-00454-CV, 2022 Tex.
App. LEXIS 1329 (Tex. App.—Beaumont Feb. 24, 2022, pet. denied) (mem. op.).
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the Foundation’s exercise of its constitutional right of association, and that the

evidence supporting its motion established that it has valid defenses to all of the

Plaintiffs’ claims. The Foundation also alleged that the claims in Plaintiffs’ Fourth

Amended Petition had no basis in law or fact because the Foundation owed no

fiduciary duty or burden of good faith and fair dealing to Plaintiffs.4 The trial court

denied the motion, and this appeal ensued.

Analysis

We review a trial court’s denial of a TCPA motion to dismiss de novo. See

Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018); Walker

v. Hartman, 516 S.W.3d 71, 79-80 (Tex. App.—Beaumont 2017, pet. denied). We

consider the pleadings, evidence we could consider under Rule 166a, and affidavits

stating facts on which liability, or any defense is based in the light most favorable to

the nonmovant. See Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a); In re Lipsky,

460 S.W.3d 579, 587 (Tex. 2015) (orig. proceeding); see also Dall. Morning News,

Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019); Push Start Indus., LLC v. Hous. Gulf

Energy Corp., No. 09-19-00290-CV, 2020 WL 7041567, at *3 (Tex. App.—

Beaumont Nov. 30, 2020, no pet.) (mem. op.) (citations omitted). We also review de

4
Plaintiffs’ Third Amended Petition asserted claims for breach of contract and
promissory estoppel, only. Plaintiffs’ Fourth Amended Petition reasserts the claims
they omitted from their Third Amended Petition, which includes claim alleging: (1)
breach of fiduciary duty; (2) lack of good faith; and (3) breach of the “duties of care.”
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novo whether the parties met their burdens of proof under section 27.005 of the

TCPA. Landry’s, Inc. v. Animal Legal Defense Fund, 631 S.W.3d 40, 45-46 (Tex.

2021) (citation omitted).

The Texas Citizens Participation Act

The TCPA “provides a three-step process for the dismissal of a ‘legal action’

to which it applies.” Montelongo,622 S.W.3d at 296 (citing Castleman v. Internet

Money Ltd., 546 S.W.3d 684, 691 (Tex. 2018)); see also Tex. Civ. Prac. & Rem.

Code Ann. § 27.005(b)-(d).5 First, the movant bears the initial burden to show that

the “legal action is based on or is in response to[]” the movant’s exercise of: “(A)

the right of free speech; (B) the right to petition; or (C) the right of association[.]”

Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)(1)(A)-(C). If the movant establishes

that the nonmovant’s claim implicates one of these rights, the burden shifts to the

plaintiff to “‘establish[] by clear and specific evidence a prima facie case for each

essential element of the claim in question.’” Lipsky, 460 S.W.3d at 587 (quoting Tex.

Civ. Prac. & Rem. Code Ann. § 27.005(c)). A “prima facie case” means “evidence

sufficient as a matter of law to establish a given fact if it is not rebutted or

contradicted.” Id. at 590 (citation omitted). It is the “‘minimum quantum of evidence

necessary to support a rational inference that the allegation of fact is true.’” Id.

(quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)).

5
The 2019 amendments to the TCPA apply to the new causes of action, only.
6
Clear and specific evidence means that the “plaintiff must provide enough detail to

show the factual basis for its claim.” Id. at 591. Finally, if the nonmovant establishes

their prima facie case, the burden shifts back to the movant to establish each essential

element of an affirmative defense by a preponderance of the evidence. Tex. Civ.

Prac. & Rem. Code Ann. § 27.005(d); Youngkin v. Hines, 546 S.W.3d 675, 679-80

(Tex. 2018); ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex.

2017).

A. Timeliness

The Foundation’s motion to dismiss under the TCPA was not timely as to

some of the Plaintiffs’ claims. The TCPA dictates that a motion to dismiss must be

filed “not later than the 60th day after the date of service of the legal action.” Tex.

Civ. Prac. & Rem. Code Ann. § 27.003(b). The statute defines “legal action” as

including “a lawsuit, cause of action, petition, complaint, cross-claim, or

counterclaim or any other judicial pleading or filing that requests legal, declaratory,

or equitable relief.” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6).

Plaintiffs filed their original petition on December 28, 2017. That petition

alleged causes of action for breach of contract, promissory estoppel, breach of

fiduciary duty, and lack of good faith, as did Plaintiffs’ First Amended Petition.

Although the record does not reflect when the Foundation was served with Plaintiffs’

Original Petition, it does show that Plaintiffs’ First Amended Petition was served on

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the Foundation on November 12, 2018. The Foundation did not file its TCPA motion

to dismiss until February 28, 2023, more than 60 days after November 12, 2018. The

60-day requirement language of the TCPA references service of the “legal action,”

rather than service of the suit. Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b). We

therefore must decide whether the claims the Plaintiffs’ alleged in their Fourth

Amended Petition triggered a new 60-day period that allowed the Foundation to seek

their dismissal by challenging them in a TCPA motion to dismiss. We hold that

Plaintiffs’ Fourth Amended Petition, filed and served December 30, 2022, rendered

the Foundation’s February 28, 2023, TCPA dismissal motion timely as to the causes

of action for a “breach of fiduciary duty” and “lack of good faith and ordinary care”

only. See Montelongo v. Abrea, 622 S.W.3d 290, 293 (Tex. 2021) (holding that a

new cause of action alleged in an amended petition restarts the 60-day time frame to

file a TCPA motion to dismiss as to that cause of action). On the other hand, the

Foundation’s TCPA motion to dismiss is untimely as to Plaintiffs’ claims for breach

of contract and promissory estoppel since those claims were asserted in Plaintiffs’

Original Petition and carried forward through each amended petition more than 60

days before the Foundation filed its motion to dismiss. Id.

Still, even when timely, a party that files a TCPA motion to dismiss must also

show that the claims subject to its motion—which in this case we have decided are

the Plaintiffs’ new claims for breach of fiduciary duty and breach of good faith and

8
fair dealing asserted for the first time by the Plaintiff’s in their Fourth Amended

Petition—arise from the Foundation’s right of association, whether they implicate

“a matter of public concern,” and whether the Plaintiffs have met their burden to

“establish[] by clear and specific evidence a prima facie case for each essential

element of the claim in question.” If the burden shifted to the Plaintiffs and the

Plaintiffs met their burden, we must determine whether the Foundation established

a defense to the claims that are the subject of the Foundation’s TCPA motion to

dismiss. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); See In re Lipsky, 460

S.W.3d 579 at 584; Robinson v. Hah, No. 09-22-00414-CV, 2023 Tex. App. LEXIS

6043, at **14-15 (Tex. App.—Beaumont Aug. 10, 2023, no pet.) (setting out the

burden-shifting process applicable to a TCPA motion to dismiss).

B. Right of Association

The TCPA defines “exercise of the right of association” as “join[ing] together

to collectively express, promote, pursue, or defend common interests relating to a

governmental proceeding or a matter of public concern.” Tex. Civ. Prac. & Rem.

Code Ann. § 27.001(2). The Foundation asserts that the organization consists of

individuals who have “join[ed] together to collectively . . . promote . . . [their]

common interest[]” in A&M sports, and Plaintiffs do not dispute this proposition.

Therefore, we conclude the Plaintiffs’ suit against the Foundation is based on or in

response to the Foundation’s exercise of the right of association. See Fawcett v.

9
Grosu, 498 S.W.3d 650, 657 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)

(holding that a suit against members of a Masonic lodge implicated the right of

association because the lodge members had “joined together to collectively express,

promote or defend common interests.”); see also Robinson, 2023 Tex. App. LEXIS

6043, at **13-15 (referencing the right of association as applied to social media

groups).

C. Matters of Public Concern

To be covered by the TCPA, the challenged communication, petition, or

association must relate to a “matter of public concern.” Tex. Civ. Prac. & Rem. Code

Ann. § 27.001(2), (3), (4). The TCPA defines a “matter of public concern” as

including “a matter of political, social, or other interest to the community;” or as “a

subject of concern to the public.” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7)(B),

(C). Plaintiffs contend that their suit does not relate to a matter of public concern

because “public concern” requires more than generalized public interest in business

transactions between private parties. See McLane Champions, LLC v. Hous.

Baseball Partners LLC, 671 S.W.3d 907, 910 (Tex. 2023) (distinguishing between

generalized public interest and matters of public concern under the TCPA).

Unlike McLane, which involved a purely private party buying a privately-

owned sports team from another private party, this case has implications beyond the

transactions between the Plaintiffs and the Foundation because, although the

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Foundation is a nonprofit entity, its activities are inextricably linked to a public

university that is largely supported by public funds. See id.; Tex. Const. art. VII, §

18. The legislature instructed that when construing the TCPA, Chapter 27 is to “be

construed liberally to effectuate its purpose and intent fully.” Tex. Civ. Prac. & Rem.

Code Ann. § 27.011(b). See ExxonMobil Pipeline, 512 S.W.3d at 898. Here, the

parties dispute whether the representations allegedly made by employees of the

Foundation about the benefits of donating to the Foundation became enforceable as

if they became contractual obligations of the Foundation since the donors

supposedly made their respective donations to the Foundation as gifts. Further, the

money the Foundation received from the donors was used largely to defray expenses

that are generally borne by other states at the taxpayer’s expense for building football

fields despite the fact that at the end of the day, Kyle Field even though built with

donations is still owned by A&M. 6 Under the circumstances, we conclude that the

Foundation’s fundraising to defray the expenses that Texas A&M incurs, which

allows that University to benefit from a football team that plays football in a first

class stadium is “a matter of public concern.” Tex. Civ. Prac. & Rem. Code Ann. §

27.011(b).

6
See Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 510 (Tex. 2012)
(explaining that a university is a governmental entity).
11
As previously discussed, Plaintiffs’ case relates to the Foundation’s right of

association regarding a matter of public concern. That said, we must determine

whether Plaintiffs have satisfied their burden of producing “clear and specific

evidence” as to a prima facie case for each element of their newly-asserted claims.

A prima facie case “refers to evidence sufficient as a matter of law to establish a

given fact if it is not rebutted or contradicted.” In re Lipsky, 460 S.W.3d at 590. In

ruling on the Foundation’s motion, in the trial court and on appeal, the court

considers the pleadings, evidence a court could consider under Rule 166a, Texas

Rules of Civil Procedure, and affidavits stating facts supporting liability or defense.

Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a); Tex. R. Civ. P. 166a(c).

Plaintiffs’ Fourth Amended Petition, its live pleading at the time the

Foundation filed its TCPA motion to dismiss, includes only two exhibits: (1) an

order of severance and venue transfer, and (2) an e-mail exchange regarding

scheduling. Neither of these documents is probative as to either Plaintiffs’ breach of

good faith and fair dealing or breach of fiduciary duty claim. Plaintiffs’ Response to

Defendant’s Motion to Dismiss, the affidavits of Elizabeth Hines and Nathan Hines,

consist of an agreement to dismiss the individual defendants, the notice of nonsuit,

and a recitation of the undisputed events leading to the lawsuit.

Yet the documents fail to show the Foundation had a fiduciary duty to the

Plaintiffs or that a special relationship existed between the Foundation and the

12
Plaintiffs that would have given rise to a fiduciary duty of care. First, the Hines’

assert that the Foundation is liable to them because a duty of good faith and fair

dealing was owed by the officers and directors of the Foundation to the membership

(which included the Hines’s). This is a misunderstanding of the duties in a non-profit

organization situation because the duty of good faith and fair dealing of an officer

or director is owed to the non-profit organization—not the individual members of

the non-profit organization. See Jackson v. NAACP Houston Branch, No. 14-15-

00507-CV 2016 WL 4922453, at **7-8 (Tex. App.—Houston [14th Dist.] Sept. 15,

2016, pet. denied) (mem. op.).

Second, the Hines’s argue that a special relationship existed based upon

“Aggie loyalty” and “Aggie core values” giving rise to a fiduciary obligation to the

members. There are two kinds of fiduciary relationships: formal and informal. Kana

Energy Servs., Inc. v. Jiangsu Jinshi Mach. Grp. Co., 565 S.W.3d 347, 351 (Tex.

App.—Houston [14th Dist.] 2018, no pet.); see Herrin v. Med. Protective Co., 89

S.W.3d 301, 308 (Tex. App.—Texarkana 2002, pet. denied) (quoting Tex. Bank &

Trust Co. v. Moore, 595 S.W.2d 502, 507 (Tex. 1980)) (“Informal fiduciary

relationships may arise in circumstances ‘where a special confidence is reposed in

another who in equity and good conscience is bound to act in good faith and with

due regard to the interests of the one reposing confidence.”’). It was undisputed that

no traditional fiduciary relationship existed between the parties, meaning there was

13
no evidence that the Foundation and the Plaintiffs had an attorney-client, insurer-

insured, or trustee-beneficiary relationship. See Arnold v. Nat. Cty. Mt. Fire Ins. Co.,

725 S.W.2d 165, 167 (Tex. 1987).

The Plaintiffs failed to meet their burden to establish a prima facie case to

show the Foundation owed them a fiduciary duty and failed to show there was a

special relationship between the Foundation and the Hines plaintiffs. The pleadings

and evidence presented by the Hines plaintiffs potentially show a dispute pertaining

to an alleged donation and contractual relationship. But merely because the parties

may have expectations in relation to a gift or donation, or whether they had a

contractual relationship does not create a duty of good faith and fair dealing, nor

does it establish a formal or informal fiduciary relationship. Oral representations in

connection with contract claims do not give rise to a “special relationship” that

creates a fiduciary duty. See Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590

S.W.3d 471, 490 (Tex. 2019) (citing Northern Nat. Gas Co. v. Conoco, Inc., 986

S.W.2d 603, 606-07 (Tex. 1998) ([t]he Court declined to imply a duty of good faith

into the parties’ contract because their contract did not provide the underlying duty

or obligation at issue, explaining that nowhere did the contract impose a duty upon

Northern Natural Gas to maintain the contracts, and “[i]n the absence of a specific

duty or obligation to which the good-faith standard could be tied[]”). The Hines

parties additionally pleaded that the Foundation “assured Plaintiffs” that, in

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exchange for their “generous, early and loyal support” they would “be rewarded”

by, among other things, having the “best available” parking at the stadium. They

allege that the Foundation met their promise of “loyalty and honor with disloyalty

and dishonor.” However, these assurances do not create a fiduciary obligation. See

Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 177 (Tex. 1997) (citations

omitted) (While a fiduciary or confidential relationship may arise from the

circumstances of a particular case, to impose such a relationship in a business

transaction, the relationship must exist prior to, and apart from, the agreement made

the basis of the suit.…mere subjective trust does not, as a matter of law, transform

arm’s-length dealing into a fiduciary relationship.). The pleadings and evidence fail

to set forth a prima facie claim for breach of a fiduciary obligation or duty of good

faith and fair dealing. The Hines plaintiffs have failed to set forth “clear and specific

evidence” to support their claims for breach of fiduciary duty and good faith and fair

dealing. Compare S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843,

847-50 (Tex. 2018) (holding that the non-movant had produced clear and specific

evidence to support a prima facie case), with Landry’s, Inc., 631 S.W.3d 40 at 54

(holding that the non-movant had not produced the required clear and specific

evidence).

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Conclusion

To summarize, we conclude that the Foundation met its initial burden to show

that Plaintiffs’ newly asserted claims against it fall within the TCPA. Therefore, the

burden shifted to Plaintiffs to establish by clear and specific evidence a prima facie

case for each element of their claims for breach of fiduciary duty and good faith and

fair dealing. Plaintiffs failed to establish a prima facie case for either of these claims.

We hold that the trial court erred by denying the Foundation’s TCPA Motion to

Dismiss as to these claims, only. We reverse the trial court’s denial of the

Foundation’s TCPA Motion to Dismiss as to these claims and remand the case to the

trial court to render judgment dismissing these claims. On remand, the trial court

may also determine what amount should be awarded to the Foundation for attorney’s

fees, costs, and other expenses as allowed under the TCPA. See Tex. Civ. Prac. &

Rem. Code Ann. §§ 27.005, 27.009(a); River Plantation Cmty. Improvement Ass’n

v. River Plantation Props., LLC, No. 09-17-00451-CV, 2018 Tex. App. LEXIS

7135, at *17 (Tex. App.—Beaumont Aug. 30. 2018, no pet.) (mem. op.) (remanding

for entry of judgment dismissing causes of action and award of attorney’s fees).

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
JAY WRIGHT
Justice
Submitted on February 29, 2024
Opinion Delivered June 13, 2024

Before Horton, Johnson, and Wright, JJ.

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