Mogged v. Lindamood
| Decision Date | 03 December 2020 |
| Docket Number | No. 02-18-00126-CV,02-18-00126-CV |
| Court | Texas Court of Appeals |
| Parties | JAN MOGGED, JAMES RICHARD FLETCHER, AND MICHAEL ALAN TAYLOR, Appellants and Appellees v. BOBBY WAYNE LINDAMOOD JR. AND JR'S DEMOLITION & EXCAVATION, INC., Appellees and Appellants |
On Appeal from the 348th District Court Tarrant County, Texas
Before the En Banc Court1
After the panel issued its opinion,2 two of the three appellants moved for rehearing and en banc reconsideration. On our own motion, we ordered en banc reconsideration of this appeal and withdrew the panel's opinion of December 31, 2018 in its entirety; we now substitute the following.
This case involves the Texas Citizens Participation Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011.3 After Jan Mogged, James Richard Fletcher, and Michael Alan Taylor (collectively, the Mogged Parties) obtained dismissal under the TCPA of defamation-related claims that were filed against them, they appealed the trial court's award of attorney's fees and sanctions—too little, they say. Bobby Wayne Lindamood Jr. complains about the dismissal, arguing that he met his TCPA burden as nonmovant to present clear and specific evidence of each element of his claims. JR's Demolition & Excavation, Inc., the business Lindamood owns, had nonsuited its claims before the trial court ruled on the Mogged Parties' TCPA motion but, like Lindamood, seems to challenge the dismissal. ("Plaintiffs cross-appeal that grantingthe TCPA motion was error.") Lindamood and JR's Demolition are fine with the trial court's attorney's-fee and sanctions awards if the dismissal stands.4
We will affirm the dismissal of all claims against the Mogged Parties. In light of intervening authority on how trial courts are to assess reasonable and necessary attorney's fees, we will reverse and remand that issue but will affirm the $1,000 sanctions award as being within the trial court's discretion.
In the spring of 2015, one city-council election in Colleyville, Texas, was particularly contentious, pitting Lindamood against Taylor, the incumbent. Among other things, the two men disagreed about the polarizing issue of whether to widen a major thoroughfare in this wealthy suburban town northeast of Fort Worth. Lindamood opposed reconstructing Glade Road, while Mogged and Fletcher were Taylor supporters who agreed with Taylor that Glade Road should be widened. Mogged is married to former Colleyville councilman Chuck Mogged, and Fletcher is a businessman who lives in Colleyville. A political-action committee called Protect Colleyville had been formed to promote the street's widening.
This defamation action finds its genesis in a 2011 deposition that Lindamood had given as part of a nasty family-business dispute with his stepmother, Kayla Lindamood, following Lindamood Sr.'s death. During the deposition, Lindamood was questioned about a number of salacious-sounding incidents in which he was or was not allegedly involved to varying degrees.
Kayla's attorney called Taylor on April 27—less than two weeks before the May 9, 2015 Colleyville municipal election—offering information on Lindamood. Taylor referred the attorney to his own lawyer so that the information's "authenticity and legality" could be verified. Two days later Taylor received an email from Kayla's attorney with three deposition transcripts attached, one of which was Lindamood's. After reviewing that transcript, Taylor printed out a seven-page excerpt ("the Handout"). Within these pages, Taylor highlighted in yellow and underlined in red the deposition testimony that he considered important, redacting only the name of Lindamood's stepsister "Mandy"; Taylor then made several copies and gave them to campaign workers who were attending a meeting of the Protect Colleyville PAC later that same day. Except for the highlights and underlining, Taylor did not further annotate the Handout by adding any language or marginal notes to it.
According to Taylor, his supporters at that meeting "agreed that the voters should know this information," but everyone also agreed that Although Mogged was not there, her husband attended the April 29 meeting, obtained a copy of the Handout, and later showed it to her.
Two days after the PAC meeting, Mogged was block-walking in support of both Nancy Coplen, a candidate for another contested city-council race, and the widening of Glade Road, but not specifically in support of Taylor on that occasion. Lindamood's petition alleged that Mogged was "dressed up in clothes in colors that affirmed she was a member of and speaking for [the Protect Colleyville] PAC." Mogged encountered Richard and Linda Newton, who questioned Taylor's character and asked why Mogged would be supporting him. Mogged defended Taylor and cautioned the Newtons that "information existed about Bobby Lindamood that was bad for him." Mogged denied having offered any specifics during this encounter, although the Newtons both asserted that Mogged had referred to something "bad" about a "trip to Las Vegas."
Around May 4, an annotated version of the seven-page Handout surfaced in the mailboxes of some Colleyville residents. This mailer was titled "Colleyville Voter Alert" and included underlining and editorializing marginalia—all in red print—suchas "The name redacted is an underage family member that chose not to be identified" and "Did 'It' stop because Bobby's Dad walked in while Bobby was sexually assaulting a drunk minor?" Superimposed on the Alert's final page was this language:
Image materials not available for display.
Although the Alert, like the Handout, contained red underlining, it was not in identical places, nor did the Alert contain yellow highlighting as in the Handout. Also different was the means of redacting Mandy's name: the Handout covered it over with a red-bordered white rectangle, the Alert with a superimposed black rectangle.
The record says nothing about whether Kayla or her lawyer shared Lindamood's deposition with anyone other than Taylor. Lindamood acknowledged that he and Kayla had "a considerable amount of 'bad blood'" between them extending over many years.
No direct evidence is in the record of who created or published the Alert to Colleyville voters, or even whether the creator and publisher was the same person.
Around the time the Alert was published, Fletcher posted this on NextDoor:
On May 7, 2015, two days before the municipal election, Lindamood and JR's Demolition sued the Mogged Parties, the Protect Colleyville PAC, Kayla, and Mandy.5 Lindamood's petition alleged that the Mogged Parties and the PAC had defamed him;had tortiously interfered with his business, JR's Demolition, by publishing the Alert; and had conspired to "unlawfully deprive Plaintiffs Bobby [Lindamood] and JR of their reputations by casting false and defamatory statements about them to the general public at large." In addition, Lindamood alleged that on May 4, Fletcher had "disparaged" him in a social-media post by referring to Lindamood as a "sexual predator" and an "ethical uncertainty."
When the votes were counted on May 9, Taylor was reelected.
The Mogged Parties timely moved under the TCPA to dismiss the claims against them. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003. The movants summarized their allegations this way:
Plaintiffs allege broadly that Taylor is responsible for the Alert,6 Fletcher made the allegedly defamatory post on the internet forum, and Mogged somehow conspired with them in some manner undefined other than the color of her clothing and ominous-sounding statements that contained no factual claims. Plaintiffs also claim that all Movants published the Alert, although they do not state how, when, where or to whom.
Each moving defendant submitted an affidavit supporting their collective motion. Fletcher admitted making the NextDoor social-media post, explaining that based on the events described in the Handout, Fletcher "believed that a married manwho placed his hands on the private anatomy of a woman who is not his wife acted improperly and worried that such a person on Colleyville's City Council could act unethically."
Each movant addressed the Alert. In her affidavit, Mogged stated that Taylor similarly swore that he "received the Alert in the late evening on May 4, 2015, in my home mailbox." Fletcher averred that the Alert "arrived at my house on May 4, 2015 but I did not view it until May 8, 2015 because I was out of town."
Mogged and Fletcher stated that they had had nothing to do with making, authoring, publishing, editing, discussing, promoting, endorsing,...
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