Baumgart v. Archer

• Decision Date: 27 June 2019
• Docket Number: NO. 01-18-00298-CV,01-18-00298-CV
• Citation: 581 S.W.3d 819
• Parties: Eric Lynn BAUMGART, Appellant v. Phillip Douglas ARCHER, KPRC-TV Channel 2, Graham Media Group, Houston, Inc., Graham Media Group, Graham Holdings Company, Appellees
• Court: Texas Court of Appeals

581 S.W.3d 819

Eric Lynn BAUMGART, Appellant

v.Phillip Douglas ARCHER, KPRC-TV Channel 2, Graham Media Group, Houston, Inc., Graham Media Group, Graham Holdings Company, Appellees

NO. 01-18-00298-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued June 27, 2019

Eric L. Baumgart, Pro Se, P.O. Box 613, Nome, Texas 77629, for Appellant.

Thomas J. Forestier, Andrew L. Edelman, Winstead PC, 600 Travis St., Ste. 5200, Houston, Texas 77002, for Appellees.

Panel consists of Justices Keyes, Higley, and Landau.

Sarah Beth Landau, Justice

When Harris County Assistant Chief Deputy Constable Clint Greenwood was gunned down in a courthouse parking lot, the murder made headlines. According to appellant Eric Baumgart, a television broadcast and related web article published by appellees Phillip Douglas Archer; KPRC-TV Channel 2; Graham Media Group, Houston, Inc.; Graham Media Group; and Graham Holdings Company (collectively, "Graham Media") falsely suggested to the public that he was "the assassin."¹

Baumgart sued Graham Media for defamation. Graham Media moved for and obtained dismissal of Baumgart's claims and an award of attorney's fees under the Texas Citizens Participation Act (TCPA or the "Act"). See TEX. CIV. PRAC. & REM. CODE §§ 27.001 –.011. Baumgart appeals on numerous grounds, contending that (1) the TCPA does not protect Graham Media's defamatory speech; (2) he made a prima facie showing of defamation; (3) the trial court's refusal to allow discovery before dismissing his claims violated Texas's due-process guarantee of open courts; (4) a jury trial on the reasonableness of Graham Media's attorney's fees was constitutionally required; and (5) the TCPA operates, on its face and as-applied, as an unconstitutional restraint on a plaintiff's speech. We affirm.

Background

Baumgart was a reserve officer with the Liberty County Constable's Office and an investigator with the Harris County Public Defender's Office when he was charged with crimes—acting as a private security guard without the appropriate license and tampering with a governmental record.²

Baumgart pleaded not guilty, a jury convicted him on all charges, and all but one charge was affirmed on appellate review. See Baumgart v. State , 512 S.W.3d 335, 349 (Tex. Crim. App. 2017) (licensing violations); Baumgart v. State , No. 01-14-00320-CR, 2015 WL 5634246, at *3–4 (Tex. App.—Houston [1st Dist.] July 27, 2016, pet. ref'd) (tampering with governmental record). Baumgart began serving a 90-day sentence in January 2017. Baumgart was still incarcerated at the time Assistant Chief Deputy Greenwood was shot and killed outside a courthouse in Baytown, Texas.

Baumgart alleges that he served time in jail because of Greenwood's vendetta against him. According to Baumgart, the vendetta began when Baumgart helped draft a federal civil rights complaint against Harris County. And the complaint provoked Greenwood, who then served as an assistant district attorney in the police integrity unit, not only to prosecute retaliatory criminal charges against Baumgart, but also, to pressure the public defender to end his employment.

While he was incarcerated, Baumgart submitted a request under the Texas Public Information Act, see TEX. GOV'T CODE §§ 552.001 et seq. , for Greenwood's "employee time records" for the month of December 2016. Greenwood perceived this as a threat and asked that his records not be released. In an email regarding Baumgart's public-records request, Greenwood told a Harris County attorney that Baumgart "poses a real threat to my, and my family's[,] safety." Greenwood's records were not released.

Phillip Douglas Archer, a Graham Media journalist working for the Houston NBC affiliate known as KPRC, learned of Baumgart's public-records request during his investigation of Greenwood's murder. Archer interviewed Baumgart the day after Greenwood died, and asked about Baumgart's fraught relationship with Greenwood, whether the men perceived one another as a safety threat, and Greenwood's death.

The same day, KPRC ran a television news story and related article, both of which KPRC published on its website, about Greenwood's murder and the documented hostility between Baumgart and Greenwood. Archer was the reporter. The web article—entitled "Slain deputy constable feared former officer he had investigated, source says"—read in its entirety:

Five days before he was slain, Clint Greenwood told officials in the county attorney's office that he believed a man he'd helped send to jail was a threat to him and his family.

The man he was talking about is currently a prisoner in the Harris County Jail, Eric Baumgart, a former investigator for the Harris County Public Defender's Office and a reserve officer with the Liberty County police agency.

Greenwood helped convict him of tampering with a government document and with providing private security services without a license in 2014.

Baumgart, 47, was sentenced to 90 days in jail and five years of probation. He began serving his sentence in January.

In an interview Tuesday afternoon at the jail, Baumgart said county detectives searched his belongings on Monday, following Greenwood's death, but he says they still haven't spoken to him.

Last January, a source close to the murder investigation said Baumgart submitted a freedom of information request from jail asking for Greenwood's pay records.

Greenwood was contacted by the county attorney's office, and asked that the records not be released.

Greenwood sent another email on March 30 saying he believed Baumgart was a threat to him and his family, according to the source.³

On Tuesday, Baumgart attributed that statement to what he calls a vendetta Greenwood waged against him after Baumgart helped a friend file a civil rights lawsuit against the county in 2012.

He says Greenwood ruined his career and put him in jail. He said he considered Greenwood a threat to him.

During the election last fall, Baumgart ran an ad accusing Greenwood's boss at the time, District Attorney Devon Anderson, of corruption – naming Greenwood in the ad – among others.

When asked if he wanted Clint Greenwood dead – or had anything to do with his murder, Baumgart said, "Of course not."

He says he expects investigators will be talking to others who were involved in the lawsuit with him.

Police investigating Greenwood's death have not named Baumgart, or anyone else, as a suspect in this case.

Editor's note: An earlier version of this story reported that Baumgart had been questioned in connection with Greenwood's homicide, and that Baumgart worked as a reserve deputy at the Liberty County Sheriff's Office. The corrected version of the story is above.

This same information was also conveyed to a viewing audience in a television broadcast.

Baumgart asserts that the murder coverage published by KPRC falsely portrayed him as Greenwood's "assassin." According to Baumgart, the defamatory coverage was motivated by Graham Media's desire to increase advertising revenue through click-bait headlines. He sued Graham Media, pleading causes of action for defamation per se and per quod and negligence. Graham media moved to dismiss Baumgart's lawsuit under the TCPA. See TEX. CIV. PRAC. & REM. CODE § 27.003(a) ("If a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action."). Baumgart opposed the motion and requested discovery. Before it ruled on Baumgart's discovery request, the trial court issued an order granting Graham Media's TCPA motion and dismissing all Baumgart's claims. After a subsequent hearing, the trial court awarded Graham Media more than $ 130,000 in attorney's fees, costs, and sanctions. See id. § 27.009(a) ("If the court orders dismissal of a legal action ..., the court shall award to the moving party: (1) court costs, reasonable attorney's fees, and other expenses incurred in defending against the legal action as justice and equity may require; and (2) sanctions ... as the court determines sufficient to deter the party who brought the legal action from bringing similar actions[.]").

TCPA Rulings

We first consider whether Graham Media and Baumgart satisfied their respective burdens under the TCPA and whether the trial court erred by not permitting Baumgart to conduct discovery before dismissing his claims.

A. Principles of law and standard of review

"The Texas Citizens Participation Act is a bulwark against retaliatory lawsuits meant to intimidate or silence citizens on matters of public concern." Dallas Morning News, Inc. v. Hall , No. 17-0637, 2019 WL 2063576, at *4 (Tex. May 10, 2019). A defendant in a case that is "based on, relates to, or is in response to a party's exercise of the right of free speech" may move for dismissal under the Act. TEX. CIV. PRAC. & REM. CODE § 27.003(a). Dismissal requires two steps. First, the defendant must 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." Id. § 27.003(a) (internal punctuation omitted). Upon this showing, 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." Id. § 27.005(c). The Act also requires dismissal of the case if the defendant "establishes by a preponderance of the evidence each essential element of a valid defense to the [plaintiff's] claim." Id. § 27.005(d).

A prima facie case is "the ‘minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.’ " KBMT Operating Co. v. Toledo , 492 S.W.3d 710, 721 (Tex. 2016) (citing In re Lipsky , 460 S.W.3d 579, 590 (Tex. 2015) ). The clear-and-specific-evidence requirement means the plaintiff "must provide enough detail to show the factual basis for its claim" and must provide enough evidence "to support a rational inference that the...