Deuell v. Tex. Right to Life Comm., Inc.

• Decision Date: 15 September 2016
• Docket Number: NO. 01–15–00617–CV,01–15–00617–CV
• Citation: 508 S.W.3d 679
• Parties: Bob DEUELL, Appellant v. TEXAS RIGHT TO LIFE COMMITTEE, INC., Appellee
• Court: Texas Court of Appeals

508 S.W.3d 679

Bob DEUELL, Appellant

v.TEXAS RIGHT TO LIFE COMMITTEE, INC., Appellee

NO. 01–15–00617–CV

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

Opinion issued September 15, 2016

Rehearing Overruled December 29, 2016

Review Denied June 9, 2017

N. Terry Adams Jr., James Edwin Trainor III, Joseph M. Nixon, Nicholas Stepp, for Appellee.

George Edward Hyde, Scott Micheal Tschirhart, for Appellant.

Panel consists of Justices Jennings, Bland, and Huddle.

OPINION

Rebeca Huddle, Justice

In this interlocutory appeal, State Senator Bob Deuell challenges the trial court's denial of his motion to dismiss pursuant to the Texas Citizens Participation Act (TCPA). Texas Right to Life Committee, Inc. (TRLC) sued Deuell for tortious interference with contract after Deuell's lawyers sent cease-and-desist letters to two radio stations that had been airing TRLC's political advertisements concerning Deuell and the stations stopped airing the ads. Deuell argued that the lawsuit should be dismissed under the TCPA because the letters were an exercise of his free speech rights. The trial court denied the motion. We affirm.

Background

In March 2014, Deuell was a candidate in the Republican primary for re-election as State Senator for Senate District 2, and he faced two challengers. None of the candidates received the necessary votes to win the March primary election. As a result, Deuell and one of the challengers, Bob Hall, faced each other in a run-off election on May 27, 2014.

During the Eighty–Third Session of the Texas Legislature in 2013, Deuell had authored Senate Bill 303, which related to advance directives. TRLC, an advocacy political action committee, opposed SB 303. On May 6, 2014, during the run-off election season, TRLC entered into a contract to secure the production of a radio advertisement criticizing Deuell for his authorship of SB 303 and urging voters to vote for Hall. TRLC secured airtime with two radio stations run by Cumulus Media Dallas–Fort Worth and Salem Communications, which began airing the advertisement. In relevant part, the advertisement said:

Before you trust Bob Deuell to protect life, please listen carefully. If your loved one is in the hospital, you may be shocked to learn that a faceless hospital panel can deny life-sustaining care .... Bob Deuell sponsored a bill to give even more power to these hospital panels over life and death for our ailing family members. Bob Deuell turned his back on life and on disabled patients.

On May 14, 2014, Deuell's lawyers sent cease-and-desist letters to Cumulus and Salem, urging that they cease airing the advertisement. In relevant part, the letters, which were essentially identical, stated:

We represent the Honorable Texas State Senator Bob Deuell, and we have become aware of defamatory advertisements published in certain media outlets which were airing and re-airing a non-use campaign ad by Texas Right to Life PAC (not a candidate ad).

These false and defamatory statements completely and totally misrepresent Senator (and Medical Doctor) Deuell's position on Patient Protection and End of Life Legislation and completely and totally misrepresent Senate Bill 303. Specific FALSE content of this ad includes the following:

Defamation:—"Bob Deuell sponsored a bill to give even more power to these hospital panels over life and death for our ailing family members. Bob Deuell turned his back on life and on disabled patients."

....

If your station has been running this ad, you are hereby put on notice of the false and defamatory statements contained therein. Any further publication of this ad will shift your conduct from reckless disregard to intentional and actual malice. ....

THEREFORE, WE RESPECTFULLY DEMAND THAT YOU IMMEDIATELY CEASE AND DESIST FROM INTENTIONALLY DEFAMING TEXAS STATE SENATOR BOB DEUELL BY REPUBLISHING THESE FASLE [SIC] AND DEFAMATORY STATEMENTS BY RE–AIRING THE ADVERTISEMENT, AS OUTLINED.

LITIGATION HOLD & PRESERVATION DEMAND

You are hereby on notice and should have reason to believe that litigation may result from the claims described above. ....

(Emphasis in original.) That same day, Cumulus and Salem notified TRLC "that agents of Mr. Deuell had contacted them and that they were suspending the airing of [TRLC's] commercials based upon the legal threats made by Mr. Deuell." TRLC paid to produce a new advertisement that Cumulus and Salem agreed to air, and also contracted with CBS Radio Texas for additional airtime to compensate for the lost advertising time.

TRLC sued Deuell for tortious interference with contract and sought damages for the expenses it incurred to produce the new advertisement and to buy additional airtime with CBS Radio Texas. Deuell moved to dismiss the suit pursuant to the TCPA, arguing that the cease-and-desist letters were an exercise of his right to free speech, and that the suit was precluded by the affirmative defenses of judicial privilege and illegal contract. TRLC responded that the TCPA did not apply, and that even if it did, it satisfied its evidentiary burden to establish a prima facie case of tortious interference with contract. After a hearing, the trial court denied the motion.

Discussion

In his first issue, Deuell contends that the trial court erred in denying his motion to dismiss because he showed that TRLC's tortious interference suit was related to his exercise of his right of free speech, and TRLC failed to establish by clear and specific evidence a prima facie case for each essential element of its tortious interference claim.

A. Standard of Review and Applicable Law

To obtain dismissal under the TCPA, a defendant must show "by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party's exercise of the right of free speech; the right to petition; or the right of association." TEX. CIV. PRAC. & REM. CODE § 27.005(b). In deciding whether to grant a motion under the TCPA and dismiss the lawsuit, the statute instructs a trial court to "consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006.

If the movant meets its burden to show that a claim is covered by the TCPA, to avoid dismissal of that claim, a plaintiff must establish "by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). In In re Lipsky , 460 S.W.3d 579 (Tex. 2015), the Texas Supreme Court clarified how this evidentiary standard should be applied. It wrote: "[M]ere notice pleading—that is, general allegations that merely recite the elements of a cause of action—will not suffice." Id. at 590–91. "Instead, a plaintiff must provide enough detail to show the factual basis for its claim." Id. at 591. The Supreme Court noted that "[i]n contrast to ‘clear and specific evidence,’ a ‘prima facie case’ has a traditional legal meaning." Id. at 590. "It refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted." Id. (citing Simonds v. Stanolind Oil & Gas Co. , 134 Tex. 332, 136 S.W.2d 207, 209 (1940) ). "It is the ‘minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.’ " Id. (citing In re E.I. DuPont de Nemours & Co. , 136 S.W.3d 218, 223 (Tex. 2004) (per curiam)); see Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd. , 416 S.W.3d 71, 80 (Tex. App.–Houston [1st Dist.] 2013, pet. denied) (term "prima facie case" in the TCPA "implies a minimal factual burden," the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true"). Thus, for example, "[i]n a defamation case that implicates the TCPA, 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 resist a TCPA motion to dismiss." Lipsky , 460 S.W.3d at 591.

If the nonmovant establishes a prima facie case, the burden shifts back to the movant. In order to obtain dismissal, the movant must establish by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim. TEX. CIV. PRAC. & REM. CODE § 27.005(d).

We review de novo a trial court's ruling on a motion to dismiss under the TCPA. Better Bus. Bur. of Metro. Houston, Inc. v. John Moore Servs., Inc ., 441 S.W.3d 345, 353 (Tex. App.–Houston [1st Dist.] 2013, pet. denied).

In conducting this review, we review the pleadings and evidence in a light favorable to the nonmovant. Crazy Hotel , 416 S.W.3d at 80–81.

B. Did TRLC establish a prima facie case?

In his first issue, Deuell argues that the trial court erred in denying his motion to dismiss because TRLC's suit is related to Deuell's exercise of his free speech rights and TRLC failed to adduce clear and specific evidence to support each element of its claim. TRLC argues that Deuell did not show that the suit is related to Deuell's exercise of his free speech rights, and, even if he did, TRLC satisfied its evidentiary burden to establish a prima facie case. For purposes of this interlocutory appeal, we will assume without deciding that the suit relates to Deuell's exercise of his right of free speech, because we agree with TRLC that it established a prima facie case of its claim for tortious interference.

The essential elements of a tortious interference with contract claim are: (1) the existence of a contract subject to interference, (2) the occurrence of an act of interference that was willful and intentional, (3) that the act was a proximate cause of the plaintiff's damage, and (4) that actual damage or loss occurred. Holloway v. Skinner , 898 S.W.2d 793, 795–96 (Tex. 1995). Accordingly, we evaluate the pleadings and evidence adduced in connection with the motion to dismiss to determine whether TRLC established a prima facie case for each element of its tortious interference claim by clear and specific evidence.

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