Landry's, Inc. v. Animal Legal Defense Fund

• Decision Date: 18 October 2018
• Docket Number: NO. 14-17-00207-CV,14-17-00207-CV
• Parties: LANDRY’S, INC. and Houston Aquarium, Inc., Appellants v. ANIMAL LEGAL DEFENSE FUND, Carney Anne Nasser, and Cheryl Conley, Appellees
• Court: Texas Court of Appeals

566 S.W.3d 41

LANDRY’S, INC. and Houston Aquarium, Inc., Appellants

v.ANIMAL LEGAL DEFENSE FUND, Carney Anne Nasser, and Cheryl Conley, Appellees

NO. 14-17-00207-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed October 18, 2018

Rehearing and Rehearing En Banc Denied December 31, 2018

Tracy Christopher, Justice

This is an appeal from a case’s dismissal under the Texas Citizens Participation Act ("the TCPA").See TEX. CIV. PRAC. & REM. CODE ANN . §§ 27.001 –.011 (West 2015). Appellants Landry’s, Inc. and Houston Aquarium, Inc. sued Cheryl Conley, Conley’s reputed attorney Carney Ann Nasser, and Nasser’s employer Animal Legal Defense Fund ("ALDF"), asserting a variety of claims in connection with the publication of Conley’s notice of intent to sue under the Endangered Species Act for the appellants' allegedly inadequate care and housing of four white tigers, as well as the publication of other statements related to the planned suit. They also asserted claims for defamation, business disparagement, tortious interference with prospective business relations, abuse of process, trespass, conspiracy to commit each of these torts, and conspiracy to commit theft. In connection with their defamation and business-disparagement claims, Landry’s and Houston Aquarium additionally sought declaratory and injunctive relief.

We conclude that the judicial-proceedings privilege applies to the allegedly defamatory or disparaging statements as a matter of law, and that Landry’s and Houston Aquarium failed to meet their initial burden under the TCPA to establish by clear and specific evidence a prima facie case for each essential element of their claims of abuse of process, trespass, and conspiracy to commit theft.

Landry’s and Houston Aquarium also contend that the TCPA violates the Texas Constitution’s guarantee of the right to a jury trial and its open-courts provision. Most of their arguments are predicated on the existence of a material fact question or on the dismissal of only some of their claims. Because those circumstances are not present here, we do not reach those arguments. In their only remaining constitutional argument, we conclude that the TCPA’s sanctions provision is not facially unconstitutional for allegedly vesting a trial court with too much discretion.

Finally, Landry’s and Houston Aquarium challenge the denial of their conditional motion for discovery and the trial court’s awards of attorneys' fees and sanctions. We find no abuse of discretion in the denial of the discovery motion, and the parties agree that the appellate attorneys' fees conditionally awarded for the work of a particular law firm on behalf of ALDF and Nasser are not recoverable because the firm withdrew from the case. As for the sanctions, we hold that the trial court’s award of $450,000 in sanctions is excessive. We suggest remittitur to reduce the amount of sanctions to an amount equal to that of the trial attorneys' fees awarded. Specifically, we suggest remittitur of $146,814.74 from the $250,000.00 awarded to ALDF and $128,705.00 from the $200,000.00 awarded to Conley, bringing those awards respectively to $103,191.26 and $71,295.00.

Regarding Nasser, to whom no sanctions were awarded, we affirm the judgment as modified to eliminate the conditional award of appellate attorneys' fees to the law firm that withdrew from the case. As to ALDF, and conditioned upon ALDF’s acceptance of our suggestion of remittitur, we affirm the judgment as modified to eliminate the same conditional award of appellate attorneys' fees and to reduce ALDF’s sanctions award to $103,191.26. Regarding Conley, and conditioned upon her acceptance of our suggestion of remittitur, we affirm the judgment as modified to reduce her sanctions award to $71,295.00.

I. BACKGROUND

This case centers on the disputed quality of the care provided to four white tigers exhibited at an aquarium and restaurant in downtown Houston. Houston Aquarium, Inc. owns and operates the physical facility known as the Downtown Aquarium, which is described as "a high-profile six (6) acre entertainment complex" that includes a restaurant built around a 500,000-gallon aquarium. Four white tigers also are housed at the Downtown Aquarium, and up to two of them can be viewed at a time in the exhibit known as "Maharaja’s Temple." The exhibit is designed to look like an ancient temple, and features steps, a statue, a swimming pool, an artificial tree, and a waterfall. Houston Aquarium is indirectly owned by Landry’s, which identifies itself in its pleadings as "one of America’s leading dining, entertainment, gaming, and hospitality groups," owning more than 500 properties, including restaurants, hotels, and other entertainment destinations. Landry’s and Houston Aquarium generally do not distinguish between the two companies, instead referring to them both as "Landry’s." We follow the same convention.¹

In March 2015, radio-station owner Cheryl Conley considered producing a segment about wildlife and contacted Landry’s to ask for a behind-the-scenes tour of the tiger’s housing. Although Landry’s charges the public an additional fee to access this part of the facility, it allowed Conley, as a member of the media, to see and photograph the tigers' holding pens for free.

On September 19, 2016, attorney Carney Anne Nasser of the Animal Legal Defense Fund ("ALDF") and attorneys from the law firm of Irvine & Conner PLLC sent Landry’s notice of an intended suit against it under the Endangered Species Act. See 16 U.S.C. § 1540(g). The Endangered Species Act requires a person suing under the Act to first provide sixty days' written notice to the alleged violator and to the Secretary of the Interior. Id. § 1540(g)(2)(A)(i). The Notice Letter was written "[o]n behalf of [ALDF] and Cheryl Conley, represented by Irvine & Conner PLLC" and informed Landry’s "of our intent to sue" under the Endangered Species Act’s citizen-suit provision. In the Notice Letter, it is alleged that the conditions of the tigers' exhibit and holding areas violate the Endangered Species Act and portions of the draft Tiger Care Manual produced by the Association of Zoos and Aquariums ("AZA") for AZA-accredited organizations. Copies of the Notice Letter were sent to the Department of the Interior as required by federal law.² Copies also were sent to the national and regional directors of the Department of the Interior’s Fish and Wildlife Service, which administers the Endangered Species Act;³ to the registered agent for Landry’s; to counsel for Landry’s; and to Houston’s mayor Sylvester Turner. On the same day, ALDF published a press release on its website about service of the Notice Letter. ALDF also sent a press release to Denver news station ABC-Denver7, where Landry’s or an affiliated company owns another aquarium at which tigers are exhibited. The Denver news station wrote an article about the threatened suit, "Downtown Aquarium owners, Landry’s, facing possible lawsuit over tigers at Houston location." ALDF also provided a copy of the Notice Letter to the Houston Chronicle , which discussed the Notice Letter in its article, "Animal rights group threatens to sue Landry’s over tigers at Downtown Aquarium." A few days later, the internet website The Dodo published a similar article titled, "White Tigers Stuck In Aquarium Haven't Felt The Sun In 12 Years."

In the ten days following the Notice Letter, ALDF made five Facebook posts about the tigers, and Nasser and ALDF executive director Stephen Wells each "tweeted" about the tigers once. The law firm Irvine & Conner wrote about the Notice Letter on the firm’s "news and blog" page and maintained a link to ALDF’s Press Release. The law firm also maintained a list of seven media outlets and links to articles related to the lawsuit.

Fifty-nine days after ALDF sent Landry’s the sixty-day Notice Letter, Landry’s sued ALDF, Nasser, and Conley (collectively, "the Conley Parties") for defamation, business disparagement, tortious interference with prospective business relations, and abuse of process. Landry’s also sued Conley for trespass. Finally, Landry’s alleged that the Conley Parties conspired to commit each of the above torts, and additionally conspired to commit theft. Landry’s sought actual damages of between $100,000.00–$200,000.00, exemplary damages, declaratory relief, an order that the Conley Parties retract the allegedly defamatory statements, and an injunction barring the Conley Parties from defaming or disparaging Landry’s in the future.

The Conley Parties moved to dismiss the claims against them under the TCPA. They argued that Landry’s asserted claims related to their exercise of the rights of free speech, petition, and association, and that Landry’s was unable to make out a prima facie case for its claims. The Conley Parties also asserted that, in any event, the claims were barred by the judicial-proceedings privilege. ALDF and Nasser additionally argued that attorney immunity applied to the claims against them. Landry’s maintained that it could make out a prima facie case for its claims, but asked that if the trial court disagreed, then the trial court should allow Landry’s to conduct discovery.

The trial court granted the Conley Parties' motions to dismiss and denied the discovery motion. As sanctions for bringing the lawsuit and to deter similar actions in the future, the trial court ordered Landry’s to pay $250,000 to ALDF and $200,000 to Conley. The trial court awarded ALDF $82,405.00 for the trial attorneys' fees of Ahmad, Zavitsanos, Anaipakos, Alavi, & Mensing, P.C. and awarded $20,786.26 jointly to ALDF and Nasser for the trial attorneys' fees of Sprott Newsom Quattlebaum & Messenger, P.C. ("Sprott Newsom"). Conley was awarded trial attorneys' fees of $71,295.00 for the work of law firm Mahendru, P.C. As to each of the three law firms, the Conley Parties also were conditionally awarded $50,000.00 for the firm’s fees in the event Landry’s were to file an unsuccessful...