HOUSTON - A former flooring independent contractor for Sears Home Improvement Products was exercising his right to free speech when talking to one of the company’s customers, a Texas appellate court recently concluded.

In 2015, Sears sued John Toth and his company, Artistic Flooring, alleging Toth breached his contract terms by engaging in communications with a Sears flooring customer.

In response, Toth filed a motion to dismiss under the Texas Citizens Participation Act, contending Sears’ claims relate to his free speech rights.

Court records show Sears opposed the motion, arguing that the TCPA does not apply as the company claims are exempted under the “commercial speech” exemption, and the evidence supports its breach of contract claim.

The trial court denied the motion to dismiss, leading Toth to file an appeal.

On May 10, the 14th Court of Appeals concluded the TCPA applies to Sears’ lawsuit and that the company did not present clear and specific prima facie evidence to support each essential element of its breach of contract claim.

“We accordingly reverse the order denying Toth’s motion to dismiss and remand for proceedings consistent with this opinion, including a determination of attorney’s fees and other costs,” the opinion states.

When a lawsuit is dismissed under TCPA, a trial court must award court costs, reasonable attorney’s fees and other expenses incurred in defending against the action.

The case stems from flooring Sears sold and installed for Winifred Langham. When Langham complained moisture was rising through the floor and damaging the wood, Sears assigned Toth to inspect the floor.

Toth recommended the floor be reinstalled. Sears, which was in the process of withdrawing from the flooring business at the time, opted not to replace the floor and instead offered to fully reimburse Langham, who rejected the offer and filed suit against the company instead.

Langham eventually hired Toth to replace her floors and Sears brought an action accusing Toth of breaching his contract.

“At bottom, all we have is Sears’s conclusory allegation that Toth complicated Sears’s efforts to settle Langham’s claim,” the opinion states.

Toth is represented by Timothy Beeton, attorney for the Simpson Beeton Shabot & McConnell law firm in Galveston, and Berry Bowen, a Houston attorney.

Sears is represented by Houston attorney Jason Wagner of Wagner & Saenz.

The suit was filed in Galveston County District Court, cause No. 15-CV-0079.

Appeals case No. 14-17-00615-CV

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