Herrera v. Stahl

• Decision Date: 16 July 2014
• Docket Number: No. 04–14–00018–CV.,04–14–00018–CV.
• Citation: 441 S.W.3d 739
• Parties: Damien HERRERA and Blaine Castle, Appellants v. Judy STAHL and Sue Hensley, Appellees.
• Court: Texas Court of Appeals

441 S.W.3d 739

Damien HERRERA and Blaine Castle, Appellants

v.Judy STAHL and Sue Hensley, Appellees.

No. 04–14–00018–CV.

Court of Appeals of Texas, San Antonio.

July 16, 2014.

Mark Anthony Sanchez, Gale, Wilson & Sanchez, P.L.L.C., San Antonio, TX, for Appellants.

Kyle C. Watson, Aaron M. Barton, Goode Casseb Jones Riklin Choate & Watson, P.C., San Antonio, TX, for Appellees.

Sitting: SANDEE BRYAN MARION, Justice, MARIALYN BARNARD, Justice, PATRICIA O. ALVAREZ, Justice.

OPINION

Opinion by: SANDEE BRYAN MARION, Justice.

The parties are all condominium owners and members of the Chesapeake Condominium Owners Association (the “Association”). Damien Herrera is the Association's president, and Blaine Castle is the Association's secretary. Judy Stahl and Sue Hensley (collectively, “plaintiffs”) originally sued only the Association for breach of contract, breach of fiduciary duty, and violations of the Texas Business Organizations Code. Plaintiffs later amended their petition to add Herrera and Castle (collectively, “defendants”) as defendants in their individual capacity.¹ Plaintiffs added a negligence claim against the Association and Herrera, and asserted fraud and defamation claims against the defendants. The defendants each moved to dismiss the defamation claims pursuant to the Texas Citizens' Participation Act (“the Act”). Following a non-evidentiary hearing, the trial court took the matter under advisement, and later denied the motions to dismiss. This interlocutory appeal by the defendants ensued.

DISCUSSION

The Act recognizes both the need to protect those filing meritorious defamation claims and the need to punish or deter, through the assessment of attorney's fees and sanctions, those who abuse this tort action to silence others who otherwise have a constitutional right to exercise certain rights. Whisenhunt v. Lippincott, 416 S.W.3d 689, 696 (Tex.App.-Texarkana 2013, pet. filed). The Texas Legislature enacted the Act “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 and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem.Code Ann. § 27.002 (West Supp.2014). To achieve these ends, the Legislature provided that if a legal action, such as a defamation claim, is brought in response to a person's exercise of the right of free speech, the right to petition, or the right of association, that person may move to dismiss the action. Id. § 27.003(a). The movant bears the initial burden to show by a preponderance of the evidence that the action “is based on, relates to, or is in response to the [movant's] exercise” of certain rights. Id. § 27.005(b). If the movant satisfies this initial burden, the burden then shifts to the nonmovant (the defamation-plaintiff), and the trial court is required to dismiss the legal action unless the nonmovant “establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id. § 27.005(c). In determining whether a legal action should be dismissed, the trial court “shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability ... is based.” Id. § 27.006(a).

The Act does not define “preponderance of the evidence.” When construing statutory language, our primary objective is to ascertain and give effect to the Legislature's intent. Tex. Gov't Code Ann. § 312.005 (West 2013). “Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.” Id. § 311.011(b). The particular meaning of “preponderance of the evidence” in both civil and criminal cases means the greater weight and degree of credible evidence that would create a reasonable belief in the truth of the claim. See Rickels v. State, 202 S.W.3d 759, 763–64 (Tex.Crim.App.2006) ; see also Murff v. Pass, 249 S.W.3d 407, 409 n. 1 (Tex.2008) (per curiam); R & R Contractors v. Torres, 88 S.W.3d 685, 695 n. 12 (Tex.App.-Corpus Christi 2002, no pet.) ; The Upjohn Co. v. Freeman, 847 S.W.2d 589, 591 (Tex.App.-Dallas 1992, no writ). Therefore, the movant bears the initial burden to show by the greater weight and degree of credible evidence that the action “is based on, relates to, or is in response to the [movant's] exercise” of certain rights. See Tex. Civ. Prac. & Rem.Code § 27.005(b).

We review de novo a trial court's ruling on a motion to dismiss under the Act. See Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 725–27 (Tex.App.-Houston [14th Dist.] 2013, pet. denied). Accordingly, we review de novo (1) whether the movant satisfied the initial burden imposed by section 27.005(b), and, if so, (2) whether the nonmovant satisfied the burden imposed by section 27.005(c). In reviewing the trial court's determination of whether a legal action should be dismissed, we consider the pleadings and supporting and opposing affidavits stating the facts on which the liability is based. Accord Tex. Civ. Prac. & Rem.Code § 27.006(a) (requiring the trial court to consider these items).

A. Plaintiffs' Defamation Claims

In their petition, plaintiffs alleged the following specific defamatory statements by Herrera: (1) he called Stahl a “bitch,” (2) he told Association residents plaintiffs were “crazy,” and “they have no lives” other than bothering the Association and Association board members; (3) he called the San Antonio Police Department (“SAPD”) on Stahl when she was looking for feral cats outside Herrera's residence and reported she was engaged in illegal and/or criminal activity, thus further attempting to portray her as unstable; (4) he sent emails to other residents ridiculing plaintiffs' efforts to retrieve records relevant to the lawsuit from a trash bin after Kies attempted to dispose of the records and after receiving a spoliation letter from plaintiffs' attorney; and (5) he told Stahl at a board meeting in front of other residents not to “get [her] panties in a wad,” thus embarrassing her in public.

Plaintiffs alleged the following specific defamatory statements by Castle: (1) he told Association residents plaintiffs were “crazy,” and “they have no lives” other than bothering the Association and Association board members; (2) he called the SAPD on Hensley's husband after having a verbal “engagement” with plaintiffs and Hensley's husband, and reported they were engaged in illegal and/or criminal activity; (3) he sent emails to other residents ridiculing plaintiffs' efforts to retrieve records relevant to the lawsuit from a trash bin after Kies attempted to dispose of the records; and (4) a password used on a Quickbook CD was “2bitches.”

In support of their response to defendants' motions to dismiss, plaintiffs attached various affidavits. Ernest Garcia, a resident of Chesapeake Condominiums, stated that one day he and Herrera were talking outside Garcia's condominium about how to save money and about upkeep of the condominiums. During their conversation, Garcia noticed someone under the stairs taking pictures. Garcia said “who's that” and “what are they doing?” According to Garcia, Herrera “said it was that crazy, stupid bitch. Then he took out his cell phone and took a picture of Mrs. Judy Stahl.” In Stahl's affidavit, she stated that during a July 2013 Association meeting, one board member continually interrupted her, and Castle told her that her three minutes were up even though the board member spoke longer than she did. When she told Herrera she was not being allowed her three minutes and was being treated differently than other speakers, Herrera told her “Don't get your panties in a wad.” In Hensley's affidavit, she alleged Herrera told her she did not “know what [she was] talking about” during an Association meeting; Castle yelled obscenities at her and Stahl; she found signs on the Association office door and in the mail room calling her and Stahl “fools in Proverbs Biblical quote[s], calling us information thieves, and calling us liars in pool notification ‘rumors about the pool not being safe.’ ” Hensley also alleged Herrera sent emails to other residents “ridiculing our efforts to retrieve ... relevant documents [from a dumpster].”

B. Herrera's Motion to Dismiss

In his motion to dismiss, Herrera asserted plaintiff's action was in response to the exercise of his right of association, free speech, and/or to petition because his statements were made during duly called Association meetings, to the SAPD, and to zoning administrators employed by the City of San Antonio. He alleged all statements were “communications” made in connection with a “matter of public concern” for the purpose of collectively expressing, promoting, or defending the common interest of the Association's membership.

In support of his motion to dismiss, Herrera attached his affidavit² in which he states as follows with regard to his comments to or about the plaintiffs:

I have never “defamed” anyone, including the Plaintiffs. I have, however, taken issue and criticized them for the tactics that they have employed in trying to gain maximum exposure for their legal claims and purposefully imposing a financial strain on the Association, which has caused many capital improvement projects to be postponed indefinitely. Any comments that I have made about the Plaintiffs have been during Association meetings, with public officials and administrators, or otherwise in the course and scope of my service as an Association officer. I am an officer of the Association by virtue of my right to freely associate with other like-minded Association members and citizens for the purpose of petitioning the City or other governmental entity, responding to the legal action initiated by the City and by the Plaintiffs, protecting the Association's environmental, economic and community well-being, and other similar

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