Hersh v. Tatum

• Decision Date: 30 June 2017
• Docket Number: NO. 16-0096.,16-0096.
• Citation: 526 S.W.3d 462
• Parties: Julie HERSH, Petitioner, v. John TATUM and Mary Ann Tatum, Respondents
• Court: Texas Supreme Court

526 S.W.3d 462

Julie HERSH, Petitioner,

v.John TATUM and Mary Ann Tatum, Respondents

NO. 16-0096.

Supreme Court of Texas.

Argued March 22, 2017

Opinion delivered: June 30, 2017

Rehearing Overruled September 22, 2017

Jennifer Meghan Nylin, P. Jefferson Ballew, Richard B. Phillips Jr., Thompson & Knight LLP, Dallas, for Petitioner.

Farbod Farnia, McCathern PLLC, Dallas, Joseph D. Sibley IV, Camara & Sibley LLP, Houston, for Respondents.

Chief Justice Hecht delivered the opinion of the Court, in which Justice Green, Justice Johnson, Justice Willett, Justice Guzman, Justice Lehrmann, Justice Devine, and Justice Brown joined.

The Texas Citizens Participation Act ("the Act")¹ provides a procedure for expeditiously dismissing 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",² defined as "a communication made in connection with a matter of public concern."³ May a defendant obtain dismissal of a suit alleging such a communication if she denies making it? We hold that she may. We also hold that the communication alleged in this case is not extreme and outrageous to support an action for intentional infliction of emotional distress. Accordingly, we reverse the judgment of the court of appeals⁴ and remand the case to that court for further proceedings.

I

Paul Tatum, a high-school junior, took his life hours after wrecking his mother's car. He had no history of mental illness, and his parents, respondents John and Mary Ann Tatum ("the Tatums"), believed that brain trauma from the car accident was the catalyst for his decision to commit suicide. The Tatums' obituary paying homage to their son in the Dallas Morning Newsstated only that Paul had died "as a result of injuries sustained in an automobile accident".

Petitioner, Julie Hersh, advocates for mental health and suicide prevention. At the time of Paul's death, Hersh was promoting her book, Struck by Living, which chronicles her own struggle with depression and suicide attempts. Much of Hersh's advocacy centers on removing the stigma associated with mental illness and suicide. Hersh believes that families who conceal suicide from obituaries prevent awareness of mental-health issues. Hersh advocated this view in a blog post entitled "Don't Omit from the Obit—Can honesty in obituaries help prevent suicide?" She wrote:

As painful as it might be, honesty allows something positive to emerge from a devastating loss. Omission of the real cause of death allows mental illness to remain impersonal, a silent killer. The 33,000 people who annually die by suicide in the US remain the other guys, not me, not anyone I know. Omission prevents awareness, which inhibits funding for research. Omission allows the uneducated to remain uneducated, discarding mental illness as some idleness of the rich and famous or a character flaw; not a real disease.

Hersh published her blog eleven days after Paul Tatum's death. The blog did not mention Paul or allude to his obituary.

Hersh met with Steve Blow, a writer for the Newswhom she knew, to discuss her views on suicide, hoping that he would write a column on the subject and mention her book. Based in part on their conversation, Blow wrote a column some three weeks after Paul Tatum's death calling for greater transparency in obituaries when suicide is the cause of death. The column, entitled "Shrouding Suicide in Secrecy Leaves Its Danger Unaddressed", did not mention the Tatum family but quoted Paul's obituary and discussed the circumstances of his death in detail sufficient to allow a reader to identify him. Importantly for this case, the column read:

More recently, a paid obituary in this newspaper reported that a popular local high school student died "as a result of injuries sustained in an automobile accident." When one of my colleagues began to inquire, thinking the death deserved news coverage, it turned out to have been a suicide. There was a car crash, all right, but death came from a self-inflicted gunshot wound in a time of remorse afterward.⁵

The Tatums sued Blow and the Newsfor defamation. About a year later, the Tatums also sued Hersh for defamation, alleging that she fed Blow the story of Paul's death and encouraged him to write the column, knowing it would help generate publicity for her memoir. Quoting from the Tatums' petition: Hersh "went to Blow and encouraged him to make the Tatum tragedy public"; she "promoted Paul's death and the [o]bituary to Blow ... as 'news' " and "incited Blow to write about suicide in obituaries"; "[d]uring that conversation ... the two discussed the details of the Tatum death and his [o]bituary" with Hersh "feeding the details of the Tatum tragedy to Blow"; and Hersh "encouraged Blow to use [the obituary] as a demonstrative and a specific example of the alleged problem discussed in her blog." Both Hersh and Blow deny discussing Paul's death in their conversation. Blow testified by deposition that, as stated in his column, he first heard about Paul Tatum from a colleague. But other deposition testimony contradicts that assertion.

The Tatums nonsuited their defamation claim against Hersh and sued instead for intentional infliction of emotional distress. Their claim, their petition states, "turn[s] simply on whether Hersh's actions in exploiting the tragedy of a grieving family for her personal gain by encouraging [Blow] to criticize [Paul's obituary] constitute extreme and outrageous conduct." The Tatums claim damages for mental anguish.

Hersh moved under the Act to dismiss the Tatums' action. She argued that the Act applies because the Tatums' claim " 'is based on, relates to, or is in response to' [her] exercise of her right of free speech regarding suicide prevention, which the Texas Legislature has recognized is a matter of public concern." Hersh denied that she ever spoke to Blow about Paul Tatum but argued that even if she had, doing so would not have been "extreme and outrageous" conduct sufficient for a claim of intentional infliction of emotional distress. The Tatums responded that suicide in obituaries is a personal grievance, not a matter of public concern; hence, the Act does not apply. Even if it did, they continued, they offered prima facie evidence of each element of their claim so that dismissal was not warranted. The Tatums also argued that Hersh cannot invoke the Act while continuing to deny talking to Blow about Paul's death and obituary—the communication that is the basis of their complaint.

The trial court granted Hersh's motion and dismissed the case with prejudice, but refused to award her attorneys' fees for proceedings in that court, awarding her attorneys' fees conditionally only for an unsuccessful appeal by the Tatums. On appeal, the Tatums argued that the Act does not apply to their action, but if it does, they had provided prima facie evidence to support all the elements of their claim for intentional infliction of emotional distress. The court of appeals, relying on its own precedent, held that a defendant who denies making the communication alleged cannot invoke the Act.⁶ The court did not reach the parties' other arguments. The court reversed and remanded the case for further proceedings.⁷

We granted Hersh's petition for review.⁸ She argues that:

• an action can be based on, related to, or in response to the exercise of free speech, and therefore subject to the Act, even if the defendant denies making the alleged communication;

• the Tatums did not establish a prima facie case for the elements of a claim for intentional infliction of emotional distress; and

• the trial court erred by denying her request for mandatory attorneys' fees and sanctions.

We address the first two of these arguments in turn and leave the third for the court of appeals on remand.⁹

II

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".¹⁰ Under the Act, "[i]f a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, ... that party may file a motion to dismiss the legal action."¹¹ " 'Exercise of the right of free speech' means a communication made in connection with a matter of public concern."¹² " 'Matter of public concern' includes an issue related to ... health or safety...."¹³ "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."¹⁴ "[A] court shall dismiss a legal action ... if the moving party shows 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".¹⁵

The Tatums allege, as we have quoted from their pleadings, that Hersh and Blow discussed Paul Tatum's death and obituary. Their action, they say, "turn[s] ... on" that communication. Hersh admits she spoke with Blow about her blog, which did not mention the Tatums, and about suicide awareness, stigmatization, and prevention generally, but she denies discussing Paul Tatum's suicide or obituary.

Because Hersh denies making the communication on which the Tatums' suit is based, the court of appeals held that she could not meet her burden to show that the Act applies, relying on its 2014 decision in Pickens v. Cordia.¹⁶ In Pickens, Pamela sued Michael, her brother, for sending her business associates an email that was critical of her.¹⁷ Pamela alleged that Michael had sent the email using a false name.¹⁸ He denied sending the email at all.¹⁹ The trial court granted Michael's motion to dismiss under the Act.²⁰ On appeal, Pamela argued that because Michael denied sending the email, "there can be no evidence the lawsuit was related to Michael's exercise of free speech and no ... basis [under the Act] for dismissing the...