Hoskins v. Fuchs

• Decision Date: 22 December 2016
• Docket Number: NO. 02–15–00369–CV,02–15–00369–CV
• Citation: 517 S.W.3d 834
• Parties: Christopher HOSKINS, Appellant v. Perry FUCHS, Appellee
• Court: Texas Court of Appeals

517 S.W.3d 834

Christopher HOSKINS, Appellant

v.Perry FUCHS, Appellee

NO. 02–15–00369–CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: December 22, 2016

Lindsey M. Rames, Rames Law Firm, P.C., Dallas, TX, Ross B. Russel, Carter L. Hampton, Hampton & Associates, P.C., Fort Worth, TX, for Appellant.

Frank Hill, Gregory A Eyster, Hill Gilstrap P.C., Arlington, TX, for Appellee.

PANEL: GARDNER, WALKER, and MEIER, JJ.

OPINION

ANNE GARDNER, JUSTICE

In two issues, Appellant Christopher Hoskins appeals an interlocutory order denying his motion to dismiss under the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001 –.11, 51.014(a)(12) (West 2015). We affirm.

I. Background

Appellee Perry Fuchs is a tenured professor and Interim Department Chair of Psychology at the University of Texas at Arlington (UTA). Hoskins's girlfriend, Michelle White, was a graduate student at UTA and worked for Fuchs.

In the early morning hours of May 30, 2015, Hoskins and White had an argument during which White told Hoskins that she was having a sexual relationship with Fuchs and boasted that she received preferential treatment from Fuchs because of their relationship. White also told Hoskins, who is a student at the Texas A & M University School of Law, that Fuchs would ruin Hoskins's career if Hoskins told anyone about White and Fuchs's relationship. Hoskins's mother, stepfather, brother, and grandmother overheard the argument.

In July 2015, Hoskins filed a complaint with the Office of Equal Opportunity Services (EOS) at UTA alleging that Fuchs violated UTA Procedure 14–1¹ and UTA Policy 5–511² by having a sexual relationship with White, a student and employee over whom Fuchs had direct authority. Hoskins also alleged that people who work closely with and in the same environment as Fuchs and White had approached Hoskins with concerns and rumors regarding their behavior and other behavior going on in psychology offices and labs.

Hoskins further alleged that White had threatened Hoskins that Fuchs would ruin Hoskins's career if he told anyone about the relationship. Hoskins also stated that he had "contacted [his] current school and they are on guard for any possible retaliation against me or any other student. Considering I have already been threatened and [Fuchs's] position, power, and influence, I request further safeguards to prevent any retaliation." In support of his complaint, Hoskins filed affidavits from his four family members who overheard White's statements to Hoskins regarding her relationship with Fuchs.

Fuchs denied the allegations in Hoskins's complaint. As part of its investigation, EOS interviewed White. White denied having any relationship with Fuchs other than student and mentor. White claimed that she and Hoskins had an abusive relationship and that Hoskins often accused her of having a sexual relationship with Fuchs despite her continued denials. White would bring up Fuchs to "get under ... Hoskins['s] skin" or "because she got tired of saying that there was nothing going on." White also claimed that she had been drinking the night of the argument and that she did not remember what happened that night. White also claimed that Hoskins had continued to harass her after their fight.

After its investigation, EOS issued a final report. In its findings, EOS detailed Fuchs's and White's denials and stated that even though Hoskins alleged in his complaint that people who work closely with and in the same environment as Fuchs and White had approached Hoskins with concerns and rumors regarding their behavior and other behavior going on in psychology offices and labs, Hoskins failed to name anyone who could confirm his allegations. EOS also found that even though Hoskins provided notarized statements from family members who overheard White say that she was in a sexual relationship with Fuchs and threaten that she and Fuchs would ruin Hoskins's career, none of the witnesses were in the room and none of them described what was being said by Hoskins. EOS concluded that there was "insufficient evidence to substantiate a violation of the University's consensual relationship policy" and recommended that no action be taken.

In August 2015, Fuchs sued Hoskins for defamation based upon the statements Hoskins made about Fuchs in the EOS complaint. Hoskins timely filed a motion to dismiss under chapter 27 of the civil practice and remedies code. In addition to asking that Fuchs's lawsuit be dismissed, Hoskins requested sanctions, reasonable attorney's fees, and costs. After a hearing at which both sides presented argument, the trial court signed an order denying Hoskins's motion to dismiss. Hoskins has appealed.

II. The TCPA

The TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern. In re Lipsky , 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding). The legislature enacted the TCPA "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 [persons] to file meritorious lawsuits for demonstrable injury." Tex. Civ. Prac. & Rem. Code Ann. § 27.002. "The TCPA's purpose is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits." Lipsky , 460 S.W.3d at 589 (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.002 ).

When a plaintiff's claim implicates a defendant's exercise of First Amendment rights, chapter 27 allows the defendant to move for dismissal. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a) ; Andrews Cty. v. Sierra Club , 463 S.W.3d 867, 867 (Tex. 2015). Under the TCPA's two-step dismissal process, the initial burden is on the defendant to show by a preponderance of the evidence that the plaintiff's claim "is based on, relates to, or is in response to the [defendant's] exercise of" the right of free speech, the right to petition, or the right of association. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). If the defendant satisfies this burden, the burden shifts to the plaintiff to establish "by clear and specific evidence a prima facie^{[3 ]} case for each essential element of the claim in question." Id. § 27.005(c). If the plaintiff meets this burden, the trial court must deny the motion to dismiss even though the plaintiff's claim implicates the defendant's exercise of his First Amendment rights. See id. ; Hand v. Hughey , No. 02–15–00239–CV, 2016 WL 1470188, at *3 (Tex. App.–Fort Worth Apr. 14, 2016, no pet.) (mem. op.).

The clear and specific standard "neither imposes a heightened evidentiary burden nor categorically rejects the use of circumstantial evidence when determining the plaintiff's prima-facie-case burden under the Act." Andrews Cty. , 463 S.W.3d at 867 ; see Lipsky , 460 S.W.3d at 591 ("In a defamation case that implicates [chapter 27], 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."). In determining whether the clear and specific standard has been met, a trial court must consider the pleadings and evidence that explain "the facts on which the liability ... is based." Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a) ; see United Food & Commercial Workers Int'l Union v. Wal–Mart Stores, Inc. , 430 S.W.3d 508, 511–12 (Tex. App.–Fort Worth 2014, no pet.).

III. Discussion

In his first issue, Hoskins argues that the trial court erred by denying his motion to dismiss because (1) he showed by a preponderance of the evidence that Fuchs's claims are based on, relate to, or were filed in response to Hoskins's exercise of his right of free speech, right to petition, and right of association and (2) Fuchs failed to prove each element of his defamation claim by clear and specific evidence. In his second issue, Hoskins contends that we should remand this case to the trial court for an award of court costs, attorney's fees, expenses, and sanctions. See Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a).⁴

We review the trial court's ruling de novo. See United Food & Commercial Workers Int'l Union , 430 S.W.3d at 511. Because it is dispositive of the appeal, we will first address the second part of Hoskins's first issue—whether Fuchs proved each element of his defamation claim by clear and specific evidence.

A. Applicable law

Defamation expressed in written or graphic form is libel. Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 2011). To prevail on a defamation claim, the plaintiff must prove that the defendant (1) published a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in some cases. Lipsky , 460 S.W.3d at 593. A statement is defamatory if the words tend to injure the plaintiff's reputation, exposing him to hatred, contempt, ridicule, or financial injury, or if it tends to impeach the person's honesty, integrity, or virtue. Tex. Civ. Prac. & Rem. Code Ann. § 73.001. Whether a publication is false and defamatory depends upon a reasonable person's perception of the entire publication. Turner v. KTRK Television, Inc. , 38 S.W.3d 103, 115 (Tex. 2000). We construe an alleged defamatory statement "as a whole in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive it." New Times,Inc. v. Isaacks , 146 S.W.3d 144, 154 (Tex. 2004) (quoting Turner , 38 S.W.3d at 114 ). To qualify as defamatory, a statement should be derogatory, degrading, somewhat shocking, and contain elements of disgrace. Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc. , 441 S.W.3d 345, 356 (Tex. App.–Houston [1st Dist.] 2013, pet. denied). But a communication that is merely unflattering, abusive, annoying, irksome, or...