Krimbill v. Talarico
Decision Date | 27 October 2017 |
Docket Number | Case Number: 114777 |
Citation | 417 P.3d 1240 |
Parties | H. Michael KRIMBILL, Plaintiff/Appellee, v. Louis C. TALARICO, III, an individual; and LCT Capital LLC, a Delaware Limited Liability Company, Defendants/Appellants. |
Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
John J. Carwile, Clayton J. Chamberlain, MCDONALD, MCCANN, METCALF & CARWILE, L.L.P., Tulsa, Oklahoma, for Plaintiff/Appellee
Joel L. Wohlgemuth, Ryan A. Ray, NORMAN WOHLGEMUTH CHANDLER JETER BARNETT & RAY, P.C., Tulsa, Oklahoma, for Defendants/Appellants
¶ 1 Defendants/Appellants, Louis Talarico, III (Talarico), and LCT Capital, LLC (LCT) (collectively, Defendants or Talarico Defendants), appeal from the trial court's order denying their motion to dismiss the petition of Plaintiff/Appellee H. Michael Krimbill (Krimbill), pursuant to the Oklahoma Citizens Participation Act, 12 O.S. Supp. 2014 §§ 1430 through 1440 (OCPA or the Act). For the reasons discussed below, we affirm.
¶ 2 The parties are involved in protracted litigation in the state of Delaware, where LCT has filed claims of breach of contract, unjust enrichment, and fraudulent misrepresentation against Oklahoma-based, publicly traded NGL Energy Partners, LP, and its general partner, NGL Energy Holdings, LLC (collectively, NGL), resulting from a transaction known as the "TransMontaigne acquisition." In October 2015, Talarico sent the following email to James Kneale, the head of NGL's audit committee:
¶ 3 On October 16, 2015, Krimbill filed a petition in Tulsa County District Court alleging the email had libeled him personally. On October 30, 2015, Defendants moved to dismiss Krimbill's petition with prejudice, pursuant to, inter alia , the OCPA. On February 26, 2016, the district court denied this motion. Defendants now appeal.
¶ 4 There is no established appellate standard of review in this case.1 It is clear that the OCPA provides a new summary process/dismissal procedure in certain cases, however, and that, traditionally, Oklahoma appellate courts have reviewed decisions pursuant to such procedures by a de novo standard. The OCPA also requires dismissal if a plaintiff fails to show a prima facie case, and is hence similar to a motion for directed verdict. Directed verdict challenges also are reviewed de novo . Finally, Texas, which has an almost identical act, has adopted a de novo standard of review.2 Hence, we find a de novo standard indicated by existing precedent and persuasive authority, and we adopt that standard here.
¶ 5 Oklahoma's Act, which became effective in 2014,3 mirrors that of the Texas Citizens' Participation Act (TCPA or Texas Act), enacted in 2011 under the title, "Actions Involving the Exercise of Certain Constitutional Rights," Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001 through 27.011. The Texas Act has been the subject of numerous decisions by the Texas courts,4 which we may look to as persuasive authority in resolving this matter. See , e.g. , In re Fletcher's Estate , 1957 OK 7, ¶ 25, 308 P.2d 304 ( ).
¶ 6 The legislature enacted the OCPA "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." 12 O.S. Supp. 2014 § 1430.
¶ 7 The legislation is an example of "anti-SLAPP" (Strategic Lawsuit Against Public Participation) legislation, the purpose of which is to curb "lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." Cal. Civ. Proc. Code § 425.16(a). Anti-SLAPP legislation appears to be the result of an increasing tendency by parties with substantial resources to file meritless lawsuits against legitimate critics, with the intent to silence those critics by burdening them with the time, stress, and cost of a legal action. To carry out this purpose, anti-SLAPP acts typically provide an accelerated dismissal procedure, available immediately after a suit is filed in order to weed out meritless suits early in the litigation process.
¶ 8 Anti-SLAPP acts may be generally characterized as "narrow" or "broad." See Shannon Hartzler, Protecting Informed Public Participation: Anti-SLAPP Law and the Media Defendant , 41 Val. U.L. Rev. 1235, 1236 (2007). A narrow act protects only certain speech made in limited circumstances, often when the speech is discussing a political or municipal issue.5 The acts of Texas, Oklahoma and California are, by comparison, "broad" acts, directed at protecting a wide spectrum of First Amendment speech, with limited exceptions.6
¶ 9 In an OCPA proceeding, the initial burden is on the defendant seeking dismissal to show 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." 12 O.S. Supp. 2014 § 1434(B). The burden then shifts to the plaintiff to show "by clear and specific evidence a prima facie case for each essential element of the claim in question." Id ., § 1434(C). If § 1434(C) is satisfied, the burden shifts back to the defendant to show "by a preponderance of the evidence" a defense to the plaintiff's claims. Id ., § 1434(D). If the plaintiff's prima facie case fails, or the defendant shows a defense by a preponderance of the evidence, the suit is dismissed.
¶ 10 The three basic issues thus presented by the text of the Act, and by this appeal, are (1) whether the defendant has shown the plaintiff's action is based on, relates to, or is in response to the defendant's exercise of rights protected by the Act; (2) whether the plaintiff has demonstrated a prima facie case; and (3) if so, whether the defendant shown a "valid defense by a preponderance of the evidence."
¶ 11 Interpreting the OCPA requires balancing the unusual judgment/dismissal provisions of § 1434 against two other OCPA provisions, §§ 1430 and 1440. The tension between these sections is immediately evident.
¶ 12 Section 1434(C) appears to introduce a new evidentiary standard of "clear and specific evidence" that has no prior history in Oklahoma. Section 1434(D) appears to allow a court to dismiss a case with prejudice based on the judge's weighing of the evidence on the merits of the case. Read in isolation, § 1434 appears to provide for a summary form of bench trial on the merits before a defendant has answered.
¶ 13 However, OCPA § 1440 provides that the Act "shall not abrogate or lessen any other defense, remedy, immunity or privilege available under other constitutional, statutory, case or common law or rule provisions," and § 1430 states the legislative purpose of the OCPA is to weed out meritless suits while protecting "the rights of a person to file meritorious lawsuits for demonstrable injury." Tension between the § 1434 procedure and the Act's statements of legislative intent is inescapable, and requires the resolution of several issues in a manner giving effect to legislative intent before we can analyze the facts in this case. The first such issue is the requirement that a plaintiff establish "a prima facie case for each essential element of the claim in question" by "clear and specific evidence."
¶ 14 Once a defendant has shown that the Act applies, the burden shifts to the plaintiff to show "by clear and specific evidence" the requirements of § 1434(C). The Act does not define "clear and specific evidence," and that phrase has not previously appeared in published Oklahoma appellate case law.
¶ 15 Oklahoma jurisprudence does define prima facie case. See , e.g. , Hill v. State , 1983 OK CR 161, ¶ 3, 672 P.2d 308, quoting Black's Law Dictionary, 4th Rev. Ed., 1968, and defining "prima facie case" as, Because the Legislature would not have stated two contradictory standards in the same sentence, we presume that its definition of "clear and specific evidence"...
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