Landry's, Inc. v. Animal Legal Def. Fund

• Decision Date: 21 May 2021
• Docket Number: No. 19-0036,19-0036
• Citation: 631 S.W.3d 40
• Parties: LANDRY'S, INC. and Houston Aquarium, Inc., Petitioners, v. ANIMAL LEGAL DEFENSE FUND, Cheryl Conley, and Carney Anne Nasser, Respondents
• Court: Texas Supreme Court

631 S.W.3d 40

LANDRY'S, INC. and Houston Aquarium, Inc., Petitioners,

v.ANIMAL LEGAL DEFENSE FUND, Cheryl Conley, and Carney Anne Nasser, Respondents

No. 19-0036

Supreme Court of Texas.

Argued February 2, 2021

OPINION DELIVERED: May 21, 2021

Darren Braun, Ashish Mahendru, Houston, for Respondents Conley, Cheryl.

Ryan D. Clinton, Austin, Adam A. Milasincic, Houston, Philip Griffis, for Respondents Animal Legal Defense Fund.

Adam A. Milasincic, Houston, Philip Griffis, for Respondents Nasser, Carney Anne.

Munera Al-Fuhaid, Robert Earl Henneke, Kerrville, Jonathan Riches, for Amicus Curiae Texas Public Policy Foundation and Goldwater Institute.

Rodney Smolla, Pro Se.

Michael Shapiro, James A. Hemphill, Austin, for Amicus Curiae Freedom of Information Foundation of Texas.

Peter C. Tipps, Aaron M. Streett, Houston, Michelle C. Pardo, Layne E. Kruse, Houston, Thomas R. Phillips, Austin, John M. Simpson, Lubbock, Michael S. Goldberg, Anthony J. Lucisano, Joy M. Soloway, Houston, for Petitioners.

Justice Blacklock delivered the opinion of the Court.

The court of appeals held that an attorney's pre-suit efforts to publicize allegedly defamatory statements are shielded from liability by either the judicial-proceedings privilege or attorney immunity. For the reasons explained below, we disagree.

An attorney who repeats his client's allegations to the media or the public for publicity purposes is not acting in the unique, lawyerly capacity to which Texas law affords the strong protection of immunity. Although attorneys often make publicity statements for their clients, wrapping these statements in an absolute privilege would unreasonably shield attorneys from liability for defamatory statements that would be actionable if uttered by anyone other than an attorney. Attorneys who make such statements outside a judicial proceeding have many potential defenses to defamation liability, but the judicial-proceedings privilege and attorney immunity are not among them. The judgment of the court of appeals is reversed in part and affirmed in part, and the case is remanded to the court of appeals for further proceedings.

I.

Landry's, Inc. owns Houston Aquarium, Inc., which operates the Downtown Aquarium in Houston.¹ Four white Bengal tigers live at the aquarium. In March 2015, Cheryl Conley, a radio station owner, asked Landry's for a behind-the-scenes tour of the tiger habitat. Landry's obliged, allowing Conley to photograph the tigers and their environs. Landry's also answered her questions about the animals. Conley did not run a story about the tigers on her radio station or elsewhere.

In October 2015, Conley contacted the Animal Legal Defense Fund ("ALDF") about the tigers. ALDF is an animal rights organization founded by attorneys. According to ALDF, its mission is to "protect the lives and advance the interests of animals through the legal system," and it operates as "a private law firm." On September 19, 2016, Carney Anne Nasser, an attorney at ALDF, together with an attorney from Irvine & Conner PLLC, sent Landry's a 60-day notice of intended suit (the "Notice Letter") pursuant to the Endangered Species Act ("ESA"). See 16 U.S.C. § 1540(g)(2)(A)(i). The Notice Letter informed Landry's that ALDF and Conley "inten[ded] to sue" Landry's using the ESA's citizen-suit provision. Id. § 1540(g). The letter alleged that Landry's tiger facilities violated the ESA and violated portions of the "Tiger Care Manual" produced by the Association of Zoos and Aquariums. Copies of the Notice Letter were sent to Landry's and to the Secretary of the Interior, as required by the ESA. See id. § 1540(g)(2)(A)(i). ALDF also sent the letter to Houston Mayor Sylvester Turner.

The same day, ALDF posted a press release on its website describing its service of the Notice Letter and criticizing the tigers' conditions. A link directed readers to the Notice Letter. ALDF also sent the Notice Letter and a copy of the press release to the Houston Chronicle and to ABC-Denver7, a TV station in Denver, where Landry's owns another tiger exhibit. ABC-Denver7 posted an article about the threatened suit: "Downtown Aquarium owners, Landry's, facing possible lawsuit over tigers at Houston location." The Houston Chronicle likewise ran a story about the allegations: "Animal rights group threatens to sue Landry's over tigers at Downtown Aquarium." A website called The Dodo also posted an article: "White Tigers Stuck In Aquarium Haven't Felt The Sun In 12 Years." During the ten days following the Notice Letter, ALDF made five Facebook posts regarding the tigers, and both Nasser and ALDF's executive director, Stephen Wells, tweeted about the tigers.

On November 17, 2016, 59 days after it received the 60-day Notice Letter, Landry's sued Conley, Nasser, and ALDF for defamation, business disparagement, tortious interference, abuse of process, trespass, and civil conspiracy. Landry's sought actual damages, exemplary damages, declaratory relief, an order that the defendants retract the allegedly defamatory statements, and an injunction prohibiting the defendants from "further defaming or disparaging Landry's." ALDF and Nasser filed a motion to dismiss pursuant to the Texas Citizens Participation Act ("TCPA"). Conley filed a similar motion shortly thereafter. The TCPA motions asserted that Landry's lacked clear and specific evidence for each essential element of its claims, that the judicial-proceedings privilege barred all the claims, and that attorney immunity barred Landry's claims against Nasser and ALDF. Landry's responded to the TCPA motions and requested discovery under the TCPA. The trial court granted the TCPA motions to dismiss and denied Landry's request for discovery. The trial court ordered Landry's to pay TCPA sanctions of $250,000 to ALDF and $200,000 to Conley. The trial court also awarded attorney's fees to the defendants.

The court of appeals held that the judicial-proceedings privilege immunizes the defendants from liability for the challenged statements. Although the court of appeals observed in passing that some of the allegedly defamatory statements seemed to be mere opinions or otherwise non-actionable, it assumed that Landry's met its burden to establish by clear and convincing evidence each essential element of its defamation claims. The court of appeals then concluded that the judicial-proceedings privilege shields the defendants from liability for the challenged statements whether or not the statements are otherwise actionable. Specifically, the court of appeals held that the defendants' statements are privileged because they bear "some relation to an existing or proposed judicial proceeding," are "related to the proposed litigation," and the suit was "actually contemplated in good faith" when the statements were made. 566 S.W.3d 41, 58–60 (Tex. App.—Houston [14th Dist.] 2018). The court of appeals affirmed dismissal of Landry's tortious-interference and business-disparagement claims for the additional reason that Landry's failed to make a prima facie case that the defendants' statements caused Landry's damages. The court of appeals affirmed dismissal of all Landry's other claims as well.

The court of appeals also held that the trial court abused its discretion by awarding $450,000 in sanctions. It suggested remittitur of the sanctions to approximately $175,000. Landry's does not appeal the dismissal of its abuse of process, trespass, or civil conspiracy claims to this Court. Nor does it appeal the denial of declaratory or injunctive relief. Landry's asks this Court to review (1) whether the defendants' statements are protected by the judicial-proceedings privilege or by attorney immunity, (2) the dismissal of its business-disparagement and tortious-interference claims, and (3) the sanctions award.

II.

"We review de novo the court of appeals' determination[ ] that the parties met or failed to meet their burdens of proof under section 27.005" of the TCPA. Dall. Morning News, Inc. v. Hall , 579 S.W.3d 370, 377 (Tex. 2019). We also review de novo, under the TCPA, "whether a nonmovant has presented clear and specific evidence establishing a prima facie case for each essential element of the challenged claims." Serafine v. Blunt , 466 S.W.3d 352, 357 (Tex. App.—Austin 2015, no pet.) ; see also Bedford v. Spassoff , 520 S.W.3d 901, 904 (Tex. 2017). A prima facie case "refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted." In re Lipsky , 460 S.W.3d 579, 590 (Tex. 2015).

The sanctions award, by contrast, is reviewed for abuse of discretion. Low v. Henry , 221 S.W.3d 609, 614 (Tex. 2017). A trial court abuses its discretion by "act[ing] without reference to guiding rules and principles to such an extent that its ruling was arbitrary or unreasonable." Nath v. Tex. Child.'s Hosp. , 446 S.W.3d 355, 361 (Tex. 2014).

III.

The "judicial-proceedings privilege" and "attorney immunity" are "independent [defenses] serving independent purposes." Cantey Hanger, LLP v. Byrd , 467 S.W.3d 477, 485 n.12 (Tex. 2015). The judicial-proceedings privilege is straightforward: "Communications in the due course of a judicial proceeding will not serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made." James v. Brown , 637 S.W.2d 914, 916 (Tex. 1982). The "due course of a judicial proceeding" may include communications "in serious contemplation of such a proceeding." Cantey Hanger , 467 S.W.3d at 485 n.12 (internal quotation marks omitted). Although commonly applied in defamation cases, the privilege prohibits "any tort litigation based on the content of the communication" at issue. Collins v. Zolnier , No. 09-17-00418-CV, 2019 WL 2292333, at *3 (Tex. App.—Beaumont May 30, 2019, pet. denied).²

The judicial-proceedings privilege is an absolute privilege that covers "any statement made by the judge, jurors, counsel, parties or witnesses, and attaches to all aspects of the...