Tuesday, July 18, 2017

I Didn't Say It, But If I Did, Pay My Attorney's Fees

By Julia Pendery

The Texas legislature enacted the Texas Citizens Participation Act in 2011, largely at the behest of media companies. The Act, Texas Civil Practice and Remedies Code Chapter 27, is informally known as “the anti-SLAPP statute,” because it was meant to discourage Strategic Lawsuits Against Public Participation that have become rampant in the age of 24/7 individual global communication.

The stated purpose of the Act is 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.” It is most often invoked in cases involving speech, but it also protects freedom of association and freedom to petition (for example, a governmental body or, in at least one case, a homeowners’ association).

There have been two significant recent developments in Texas’ budding anti-SLAPP jurisprudence.  To put them in context, it is important to understand the TCPA dismissal procedure used to slap down a non-meritorious legal action that “is based on, relates to, or is in response to the party’s exercise of ... the right of free speech.”  That term applies to both oral and written communications “made in connection with a matter of public concern.”  The Act defines  “a matter of public concern” as an issue related to health or safety; environmental, economic or community well-being; the government; a public official or public figure; or a good, product, or service in the marketplace. There is an exemption for “commercial speech,” so competitors in the marketplace cannot take advantage of the Act when they trash talk each other.

The early dismissal process involves a shifting burden. Within 60 days of service of the suit against it, the defendant may file a motion in which it bears the burden to show, by a preponderance of the evidence, that the legal action is based on, relates to, or is in response to its exercise of the right of free speech, the right to petition, or the right of association. If the movant makes this showing, the burden then shifts to the claimant to establish by “clear and specific evidence” a prima facie case for each essential element of the claim in question.  If the claimant satisfies that burden, the court must still dismiss the action if the movant establishes by a preponderance of the evidence each essential element of a valid defense to the claim.

The meaning of the unique legal term “clear and specific evidence” for the nonmovant’s burden generated much early litigation, but the Supreme Court, in In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015), held that it is not a heightened evidentiary standard and circumstantial evidence may satisfy it. The Court said that pleadings and evidence that establish the facts of when, where, and what was said, the defamatory nature of the statements and how they damaged the plaintiff, should be sufficient to defeat a TCPA motion to dismiss.

The Act might more aptly be called the “Bonus Employment for Texas Lawyers on Both Sides of the Aisle Act,” having generated hundreds of trial court motions and dozens of appellate court opinions in just six years.  Case law interpreting the Act has often involved unique and highly-entertaining facts such as  Facebook posts about a soccer team coach’s infidelities, a website dedicated to criticizing the lawyer for the website poster’s ex-wife, campaign pamphlets with salacious pictures, a lawyer’s letter to the parole board stating why his former client should not be released and online forums about dog and horse breeders.

The most recent significant ruling came in a case with very sad facts.  The Supreme Court of Texas reversed a Dallas Court of Appeals opinion that held:  a party cannot take advantage of the TCPA dismissal procedure without admitting that he or she actually made the communication of which they were accused. The Court’s June 30, 2017 opinion in Hersh v. Tatum focused on a portion of the statute that says,  “In determining whether a legal action should be dismissed ..., the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability ... is based.”  It said the basis of a legal action is determined by the plaintiff’s allegations.  When it is clear from the plaintiff’s pleadings that the action is covered by the Act, the defendant need show no more.

Tatums sued Hersh, a suicide prevention advocate, Steve Blow, a Dallas Morning News columnist, and the newspaper for defamation after the newspaper published a column that the Tatums alleged Hersh had instigated. Hersh had recently published a book about her own struggles with suicide that said families who conceal suicide from obituaries prevent awareness of mental health issues. She spoke with Blow about this, and he wrote a column entitled “Shrouding Suicide in Secrecy Leaves its Danger Unaddressed.” He did not name the Tatums’ son, but he quoted from the newspaper’s recently-published obituary about a high school student who died “as a result of injuries sustained in an automobile accident.” He said his colleagues had told him the young man killed himself. That was sufficient information from which to identify the Tatums’ son.

Hersh denied that she had discussed the Tatums’ tragedy with Blow, but she argued that even if she had done so, she was entitled to dismissal under the Act. The Court’s opinion focused on the Tatums’ suit for intentional infliction of emotional distress against Hersh for “feeding the details of the Tatum tragedy to Blow.”  Many followers of the Act’s jurisprudence (and at least three courts of appeals) have said a trial court cannot allow a defendant to argue, for dismissal purposes that she made a communication concerning a matter of public concern, and also deny that she actually made the communication.  However, such an approach puts a defendant in a damned-if-you-do, damned-if-you-don’t position. She either makes an admission of liability in the dismissal motion or she engages in expensive and prolonged litigation to arrive at a finding that the speech was legally protected. That finding generally carries no attorney’s fees. The defense of “I didn’t say it, but if I did say it, it was protected speech,” should be, and now is, available.

Another interesting development in the TCPA’s jurisprudence is its broadening usage for causes of action other than defamation. Hersh is an example. The primary holding was made in the context of a cause of action for intentional infliction of emotional distress. A recent Dallas Court of Appeals case, Elliott v. S & S Emergency Training Solutions, Inc., 2017 WL 2118787 (Tex. App. — Dallas May 16, 2017, no pet. h.), reversed a trial court’s denial of a motion to dismiss under the Act in a breach of contract case. The Eastern District of Texas applied it to dismiss a RICO claim in Haynes v. Crenshaw, 166 F.Supp.3d 764 (E.D. Tex. 2016).  The Corpus Christi Court of Appeals applied the Act to conspiracy and tortious interference claims in Hicks  v. Group & Pension Administrators, Inc. 473 S.W.3d 518, 530-31 (Tex. App. — Corpus Christi 2015, no pet.). The Houston 1st Court of Appeals applied it to dismiss claims for fraud, fraudulent lien, and barratry in James v. Calkins, 446 S.W.3d 135 (Tex. App. – Houston [1st Dist.] 2014, pet. denied).  

The Act was originally instigated by media defamation targets, but its language defines a “legal action,” to which it applies broadly. As word spreads in the legal community about the ability to obtain attorney’s fees and swift dismissal under the TCPA, it will generate frequent motions in all types of legal actions, at least until the legislature or the courts narrow the Act’s applicability.


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