SPARKS v. MCLEAN (2026)

OPINION

In this interlocutory appeal, appellants Lauren Sparks, Deborah Sopher, Catherine Brown, Jennifer Evans, Myra Caldwell, and Lori Bettinger (referred to in this opinion collectively as the “Advocacy Group”) challenge the trial court's denial of their motions to dismiss pursuant to the Texas Citizens Participation Act (TCPA).¹ The Advocacy Group argues the trial court erred because (1) the alleged defamatory statement made the basis of appellees James McLean and Maureen Sanders's suit against them for defamation was made in connection with a matter of public concern and/or a matter of interest to the community and (2) McLean and Sanders did not establish the prima facie case for defamation. Because McLean and Sanders's claims are not based on or in response to an exercise of rights protected by the TCPA, we affirm the order of the trial court.

I. Background

Agility Bank is a Houston-based community bank. It describes itself as a primarily women-owned and led bank. Laura Sparks was a founding member and former President of Agility Bank, which has been designated under a charter from the Office of Comptroller of the Currency as a minority depository institution (MDI).² Because MDIs provide essential financial services to historically underserved communities, they receive support from the federal government including technical assistance, efforts to promote greater access to capital, as well as facilitation of partnerships and collaborations. Agility Bank received this MDI charter because of its significant ownership by women.

James McLean and Maureen Sanders have been members of Agility's board of directors at all relevant times. After Sparks' employment with Agility was terminated, she formed the Advocacy Group along with several women who shared her vision for Agility Bank. The Advocacy Group believed that McLean and Sanders were moving Agility towards a more traditional community banking model and away from its original mission. The Advocacy Group was concerned that McLean and Sanders would jeopardize the MDI charter. Therefore, they began a proxy contest to remove McLean and Sanders. As part of their campaign, the Advocacy Group sent a letter in January 2024 to shareholders that explained their position. The Advocacy Group asked shareholders to return Agility to its original mission as well as supplement and strengthen the bank's board. In support of these requests, the Advocacy Group stated that Agility's current board “lacks appropriate experience in bank governance and oversight” and that “certain Board members are too heavily involved in the day-to-day operations of the Bank.” Then, the Advocacy Group specifically asked shareholders to remove McLean and Sanders:

Pursuant to the Bank's governing documents, directors can only be removed by the Bank's shareholders for cause or failure to fulfill one of the affirmative requirements for qualification. We support the removal of directors James McLean and Maureen Sanders. Among other things, we believe directors McLean and Sanders have breached their fiduciary duty and oath as directors; have taken actions inconsistent with the Bank's original mission as an MDI; and have engaged in conduct that likely violates Agility Bank's Conflict of Interest and Code of Ethics Policy. We believe these actions clearly justify their removal for cause.

The Advocacy Group sought not only to remove McLean and Sanders, but to expand the board of directors by increasing the number of directors to eleven. They also proposed four candidates for those positions.³ However, the Advocacy Group offered no factual basis or specifics for the allegations that McLean and Sanders violated their fiduciary duties or engaged in conduct that “likely violates” Agility's policies.

McLean and Sanders filed suit against the members of the Advocacy Group alleging defamation, libel and slander per se in May 2024 for the statement made in the letter to shareholders. McLean and Sanders specifically allege that the statement about their conduct as directors was false and not supported by any facts.

The Advocacy Group answered and the members of the group filed motions to dismiss pursuant to the TCPA.⁴ Admitting that they made the statement, the Advocacy Group asserted their statement was made in connection with either (a) a matter of political, social, or other community interest, or (b) a subject of concern to the public because the statement related to “a federally-chartered and women-owned, women-operated Minority Depositary Institution.”

After allowing some discovery on the motions to dismiss, the trial court heard the Advocacy Group's motions and denied them by written order in November 2024. The Advocacy Group now appeals that interlocutory ruling. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(12).

II. Analysis

In their first issue, the Advocacy Group asserts the trial court erred in its denial of their motions to dismiss because their statement about McLean and Sanders was made in connection with a matter of political, social, or other community interest.

A. TCPA framework

The purpose of the TCPA is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits. See Tex. Civ. Prac. & Rem. Code Ann. § 27.002. The TCPA contemplates an expedited dismissal procedure when a “legal action” is “based on or is in response to a party's exercise of the right of free speech, right to petition, or right of association.” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a). The right of free speech is at issue in this appeal.

To accomplish this objective, the TCPA provides a multi-step process for the dismissal of a “legal action” to which it applies. Montelongo v. Abrea, 622 S.W.3d 290, 295–96 (Tex. 2021). In the first step, the party filing a motion to dismiss under the TCPA bears the burden to demonstrate that the “legal action” is “based on or is in response to,” as relevant to this appeal, the party's exercise of the right of free speech. Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003(a), .005(b). But under the second step, the court may not dismiss the action if the non-moving party “establishes by clear and specific evidence a prima facie case for each essential element of the claim[.]” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). Under the third step, the movant can still win dismissal if he establishes “an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law.” Id. § 27.005(d).

However, because it is dispositive here, we will only focus on the first step, in which the party filing a motion to dismiss under the TCPA bears the burden to demonstrate that the legal action “is based on or is in response to a party's exercise of the right of free speech[.]” Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003(a), .005(b).

In construing the TCPA and determining its applicability, we review statutory construction issues de novo. See Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam). Similarly, whether the parties have met their respective burdens is a question of law that we review de novo. See Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019). Under the de-novo standard, we make an “independent determination and apply the same standard used by the trial court in the first instance.” Fawcett v. Grosu, 498 S.W.3d 650, 656 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (internal quotation marks omitted). In conducting our review, we view the pleadings and evidence in the light most favorable to the nonmovant. Sanchez v. Striever, 614 S.W.3d 233, 242 – 43 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (collecting cases).

B. The TCPA analysis

In the first step of the TCPA analysis, we must determine whether McLean and Sanders's defamation claim was based on or in response to the Advocacy Group's exercise of their right of free speech.

“ ‘Exercise of the right of free speech’ as defined in the TCPA is a communication made in connection with a matter of public concern.” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3). “Communication” as defined in the TCPA includes “making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1). Private communications are covered by the TCPA, provided that they were made in connection with a matter of “public concern.” See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 901 (Tex. 2017).

The parties agree that the Advocacy Group's letter to shareholders is considered a communication. However, they disagree about whether it was made in connection with a matter of public concern. The TCPA defines a matter of public concern as “a statement or activity regarding: (A) a public official, public figure, or other person who has drawn substantial public attention due to the person's official acts, fame, notoriety, or celebrity; (B) a matter of political, social, or other interest to the community; or (C) a subject of concern to the public.” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7).

In their motions to dismiss, and on appeal, the Advocacy Group argues that the defamation claim made by McLean and Sanders was based on the Advocacy Group's exercise of their right of free speech because the statement was made in the context of a controversy about the future direction of Agility. They argue that Agility is a federally-chartered MDI and that MDIs generally hold a special place in the United States banking system because there is a strong public interest in “creating, preserving, promoting, and encouraging minority depositary institutions.”

C. The statement was not made regarding a matter of public concern

Recent opinions from the Texas Supreme Court have explained the breadth of the TCPA and have introduced a heightened standard for “a matter of public concern.” In Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, our high court explained that not every communication related to one of the broad categories set out in section 27.001(7) is always a matter of public concern. 591 S.W.3d 127, 137 (Tex. 2019) (interpreting prior version of TCPA). In examining the context in which the Creative Oil & Gas communications were made, the court noted they were “private business communications to third-party purchasers of a single well's production” and there was no evidence “that the dispute had any relevance to the broader marketplace or otherwise could reasonably be characterized as involving public concerns” but, rather, that “the alleged communications were made to two private parties concerning modest production at a single well.” Id. at 136. For that reason, the supreme court held that the “communications, with a limited business audience concerning a private contract dispute, do not relate to a matter of public concern under the TCPA.” Id.

More recently, the Texas Supreme Court has clarified that statements or conduct made against the backdrop of matters that may be of general interest to the public are not necessarily based on or in response to the exercise of a protected right. McLane Champions, LLC v. Houston Baseball Partners LLC, 671 S.W.3d 907 (Tex. 2023). In McLane Champions, the Court held that the TCPA did not apply based on an alleged right of free speech or right of association although “alleged misrepresentations were made in connection with negotiations to close the purchase and sale of the Astros,” id. at 919, a team that became “one of the most consistently successful teams in baseball, playing in four World Series in six years and winning two,” id. at 910 n.1. “That the subject of the purchase agreement—a professional sports team—is generally of public interest does not render the specific communications at issue relevant to a public audience when they were made.” Id. at 919. Rather, the case presented a “garden-variety fraud and breach-of-contract dispute between a private buyer and a private seller regarding statements made during a private negotiation that [had] nothing to do with ‘the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law.’ ” Id. (quoting Tex. Civ. Prac. & Rem. Code Ann. § 27.002).

Although the facts before us do not involve a well-known sports team, the McLane opinion instructs our analysis. In this appeal, we have a small privately-held commercial bank designated as an MDI because women comprise a high percentage of its shareholders and its management. The Advocacy Group's defense of its motions to dismiss is rooted entirely in its argument that public policy favors the creation and promotion of MDIs and that any operational or business decision of the bank somehow relates to or affects its charter as an MDI.

Assuming there is general public interest in the creation and existence of MDIs, Agility is still a privately-held bank that benefits only its shareholders and customers. The fact that public policy favors the creation and existence of MDIs does not transform every aspect of the bank's operation into a matter of public concern. The Advocacy Group has not offered any argument for why the January 2024 shareholder contest and disagreements over the composition of the board of directors would be matters of concern to the public. There is nothing in the record supporting the argument that the outcome of the shareholder dispute might affect anyone outside of the shareholders and investors in the bank. The alleged defamatory statement did not address the general creation or existence of MDIs. It did not address Agility's charter. Instead, the alleged defamatory statement addressed the conduct of McLean and Sanders in their roles as directors.

The statements made by the Advocacy Group were made in connection with private business interests and held no relevance to a wider public audience. McLane Champions, 671 S.W.3d at 917 (“Giving full effect to the statute's temporal anchor, and to the required relevance to a public audience, ensures that the TCPA is not transformed into a far-reaching procedural mechanism for obtaining early dismissal of cases well beyond the statute's express purpose.”). And just as the Ranch could not meet the TCPA's initial burden in Creative Oil & Gas, LLC, by simply arguing that the communications dealt with the oil and gas industry, the Advocacy Group cannot meet its burden by arguing that the communications involved a bank with an MDI charter. See Creative Oil & Gas, LLC, 591 S.W.3d at 134–35; Beard v. McGregor Bancshares, Inc., No. 05-21-00478-CV, 2022 WL 1076176, at *10 (Tex. App.—Dallas Apr. 11, 2022, pet. denied) (accusations regarding a bank's lending practices, its internal practices, and its poor management were held to be private disputes that were not matter of public concern because “[a]t most, they potentially affect [ ] investors, customers, and vendors”); see also Martin v. Hutchison, No. 06-19-00093-CV, 2020 WL 6788243, at *15 (Tex. App.—Texarkana Nov. 19, 2020, pet. denied) (mem. op.) (dispute among shareholders of a closely held, Texas telecommunications company over communications regarding the transfer of company assets and an executive bonus payment, concerned “private financial or private business interests” and were not matters of public concern); Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 475–77 (Tex. App.—Houston [1st Dist.] 2020, pet. dism'd) (noting that tort claims with no potential impact on the wider community or a public audience are not TCPA matters of public concern). Accordingly, the trial court did not err by denying the Advocacy Group's motions to dismiss. We overrule the first issue.

The remaining steps of the TCPA analysis are predicated on a finding that the TCPA applies to the claims at issue. See Creative Oil, 591 S.W.3d at 132. Having concluded the TCPA does not apply, we need not address the Advocacy Group's remaining issue, which concerns the next step in the TCPA analysis.

III. Conclusion

We affirm the final order of the trial court.

FOOTNOTES

1.   Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.011.

2.   The Office of the Comptroller of the Currency defines minority depository institutions (MDIs) as national banks and Federal savings associations (banks) “that support the economic viability of the communities they serve, including but not limited to the minority individuals, women, or other socially and economically disadvantaged individuals in those communities.” Dept. of the Treasury, Off. of Comptroller of the Currency, Annual Report to Congress (2024), Appendix 2: Policy Statement on Minority Depository Institutions. “The Office of the Comptroller of the Currency (OCC or agency) recognizes the important role of MDIs in the communities they serve and, consistent with the agency's mission to ensure a safe and sound Federal banking system, the OCC actively supports MDIs through a number of initiatives. The agency's efforts to support MDIs also reflect its commitment to the goals of section 308 of Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA).” Id.

3.   Three of the four proposed candidates are appellants.

4.   Appellants Lauren Sparks and Deborah Sopher filed one of the motions to dismiss. Appellants Catherine Brown, Lori Bettinger, Jennifer Evans, and Myra Caldwell filed the other motion to dismiss. Both motions raise the same arguments for dismissing McLean and Sanders' claims.

Tonya McLaughlin, Justice