Lewis Charles Graves v. Michael Evangelista-Ysasaga ( 2023 )

Affirmed in Part, Reversed in Part, and Memorandum Opinion filed January
24, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00137-CV
LEWIS CHARLES GRAVES, Appellant
V.
MICHAEL EVANGELISTA-YSASAGA, Appellee
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 2021-71584
MEMORANDUM OPINION
Appellant Lewis Charles Graves appeals the trial court’s denial of his motion
to dismiss the claims of appellee Michael Evangelista-Ysasaga1 under the Texas
Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(12) (interlocutory appeal of denial of TCPA motion to dismiss). Graves
1
As appellee primarily refers to himself as “Evangelista” in his briefing, we do the same
in this opinion.
raises five issues on appeal. To better track the analysis in this opinion, we have
reformulated issues 1 to 4 as follows: whether the trial court reversibly erred by
denying Graves’s TCPA motion seeking dismissal of Evangelista’s claims of
(1) civil stalking, (2) intentional infliction of emotional distress, (3) abuse of process,
and (4) defamation.2 In issue 5, Graves argues the trial court also reversibly erred by
denying his requests for attorney’s fees and sanctions. We overrule reformulated
issues 1, 2, and 4, sustain reformulated issue 3, and sustain issue 5 in part and
overrule issue 5 in part. We reverse the portion of the trial court’s order denying
Graves’s TCPA motion as to Evangelista’s abuse-of-process claim and denying
Graves attorney’s fees relating to that claim. We otherwise affirm the trial court’s
order as challenged on appeal.
2
Graves’s issues 1 to 4, as presented in his briefing, read:
Issue No. 1:
Did Appellant establish by a preponderance of the evidence that Appellee’s
claims for civil stalking, intentional infliction of emotional distress, abuse of
process, and defamation—which were made in response to statements by Appellant
about the Appellee’s molestation of his minor daughter—are based on or in
response to Appellant’s exercise of a protected right and are thus protected by the
Texas Citizen Participation Act (TCPA)?
Issue No. 2:
Did the trial court err in denying Appellant’s TCPA motion to dismiss when
Appellee failed to establish a prima facie case for civil stalking and intentional
infliction of emotional distress with clear and specific evidence?
Issue No. 3:
Did the trial court err in failing to dismiss Appellee’s claims for abuse of
process and defamation when Appellee failed to establish a prima facie case for
those causes of action with clear and specific evidence?
Issue No. 4:
Did the trial court err in denying Appellant’s TCPA motion to dismiss after
Appellant established an affirmative defense for each of Appellee’s claims?
The court’s reformulation of these issues is nonsubstantive, and this opinion addresses the
arguments made in issues 1 to 4 to the extent required by Texas Rule of Appellate Procedure 47.1.
Tex. R. App. P. 47.1.
2
I. BACKGROUND
This case revolves around allegations that Graves began harassing Evangelista
after Evangelista begin dating Graves’s ex-wife. Evangelista’s pleadings and
evidence include allegations that Graves falsely reported to Colorado authorities and
other individuals that Evangelista had sexually assaulted or molested Graves’s minor
daughter, that Graves coerced his minor daughter to make similar allegations, and
that Graves threateningly drove by Evangelista’s Colorado residence on several
occasions.
Evangelista’s seventh amended petition asserts claims of civil stalking,
intentional infliction of emotional distress, abuse of process, and defamation per se.3
Graves filed a TCPA motion seeking dismissal of each claim. The trial court denied
the motion and Graves filed this interlocutory appeal. See Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(a)(12).
II. ANALYSIS
A. TCPA framework
The purpose of the TCPA is to identify and summarily dispose of lawsuits
designed only to chill First Amendment rights, not to dismiss meritorious lawsuits.
See Tex. Civ. Prac. & Rem. Code Ann. § 27.002. The TCPA contemplates an
expedited dismissal procedure when a “legal action” is “based on or is in response
3
These claims were asserted in Evangelista’s seventh amended petition, his live pleading
at the time of the TCPA hearing in the trial court. While Graves’s TCPA motion was filed before
Evangelista filed his seventh amended petition, it encompasses each of the claims asserted in the
seventh amended petition. The parties do not dispute that the four claims asserted in the seventh
amended petition are properly before this court. See Gaskamp v. WSP USA, Inc., 596 S.W.3d 457,
469 (Tex. App.—Houston [1st Dist.] 2020, pet. dism’d) (amendment of petition after TCPA
motion was filed does not moot TCPA motion); cf. Coterill-Jenkins v. Tex. Med. Ass’n Health
Care Liab. Claim Tr., 383 S.W.3d 581, 592 (Tex. App.—Houston [14th Dist.] 2012, pet. denied)
(in summary-judgment context, motion need not be amended following amendment of petition if
original motion is broad enough to encompass the claims asserted in amended petition).
3
to a party’s exercise of the right of free speech, right to petition, or right of
association.” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a). The right of free
speech and right to petition are at issue in this appeal. To accomplish this objective,
the TCPA provides a multi-step process for the dismissal of a “legal action” to which
it applies. See Montelongo v. Abrea, 622 S.W.3d 290, 295–96 (Tex. 2021). In the
first step, the party filing a motion to dismiss under the TCPA bears the burden to
demonstrate that the legal action “is based on or is in response to a party’s exercise
of the right of free speech, right to petition, or right of association.” Tex. Civ. Prac.
& Rem. Code Ann. §§ 27.003(a), .005(b). But under the second step, the court may
not dismiss the action if the nonmovant “establishes by clear and specific evidence
a prima facie case for each essential element of the claim.” Tex. Civ. Prac. & Rem.
Code Ann. § 27.005(c). Under the third step, the movant can still win dismissal if he
establishes “an affirmative defense or other grounds on which the moving party is
entitled to judgment as a matter of law.” Id. § 27.005(d).
In construing the TCPA and determining its applicability, we review statutory
construction issues de novo. See Lippincott v. Whisenhunt, 462 S.W.3d 507, 509
(Tex. 2015) (per curiam). Similarly, whether the parties have met their respective
burdens is a question of law that we review de novo. See Dallas Morning News, Inc.
v. Hall, 579 S.W.3d 370, 377 (Tex. 2019). Under the de novo standard, we “make
an independent determination and apply the same standard used by the trial court in
the first instance.” Fawcett v. Grosu, 498 S.W.3d 650, 656 (Tex. App.—Houston
[14th Dist.] 2016, pet. denied) (quotation omitted). In conducting our review, we
view the pleadings and evidence in the light most favorable to the nonmovant.
Sanchez v. Striever, 614 S.W.3d 233, 242–43 (Tex. App.—Houston [14th Dist.]
2020, no pet.) (collecting cases).
4
B. Civil stalking
In reformulated issue 1, we address Graves’s arguments that the trial court
reversibly erred by not dismissing Evangelista’s claim for civil stalking. “In
determining whether a legal action is subject to or should be dismissed under this
chapter, the court shall consider the pleadings, evidence a court could consider under
Rule 166a, Texas Rules of Civil Procedure, and supporting and opposing affidavits
stating the facts on which the liability or defense is based.” Tex. Civ. Prac. & Rem.
Code Ann. § 27.006(a).
Under the first step of the TCPA analysis, we consider whether Graves has
met his burden to show that Evangelista’s civil-stalking claim “is based on or is in
response to a party’s exercise of the right of free speech, right to petition, or right of
association.” Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003(a), .005(b). Graves
contends Evangelista’s civil-stalking claim is based on four allegations: that Graves
(1) “enlisted” his minor daughter to make false allegations against Evangelista;
(2) published to third parties that Evangelista “had been arrested for hurting a family
member”; (3) made and caused others to make false allegations of child abuse
against Evangelista; and (4) drove by Evangelista’s Boulder, Colorado home on
multiple occasions. Graves claims these allegations show this claim is based on
communications relating to Graves’s exercise of the right of free speech, right to
petition, or right of association. Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a).
As a threshold matter, however, the complained-of activities must constitute
“communications” to fall within the scope of the TCPA. Under the TCPA, a
“communication” is defined as “the making or submitting of a statement or
document in any form or medium.” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1).
At least one of the allegations highlighted by Graves—driving by Evangelista’s
home—falls outside the statutory definition of “communications.” See id. As this
5
court has previously explained, “Texas courts have held that when a claim does not
allege a communication, and is instead based on a defendant’s conduct, the TCPA is
not implicated.” Allied Orion Grp., LLC v. Pitre, No. 14-19-00681-CV, 2021 WL
2154065, at *4 (Tex. App.—Houston [14th Dist.] May 27, 2021, no pet.) (mem. op.)
(collecting cases). Further, a second allegation highlighted by Graves—“enlisting”
his daughter to make false allegations—arguably also falls outside the statutory
definition of “communications.” Although some type of discussion was likely
exchanged between Graves and his daughter to facilitate this conduct, the allegations
described by Evangelista in his suit encompass a broader array of conduct beyond
“communications” and include recording his daughter repeatedly, allegedly using
anger and intimidation to secure the daughter’s cooperation, allegedly compelling
the daughter to follow scripts, as well as allegedly taking his daughter to therapy
and/or trauma counseling to secure outcry statements from his minor daughter. See
Smith v. Crestview NuV, LLC, 565 S.W.3d 793, 798 (Tex. App.—Fort Worth 2018,
pet. denied) (“Although Smith testified at his deposition that he and Armstrong had
discussions about the product, these discussions are not the basis of Crestview’s
narrow claim against him. The practical effect of Smith’s position—any action he
took as an aider under the [Texas Security Act] necessarily involved
communications—would seem to extend the definition of communication, and thus
the reach of the TCPA, to noncommunications.”).
Accordingly, at least some of the allegations relied on by Graves do not fall
within the TCPA at all. Even if we assume that the other allegations fall within the
TCPA, when a TCPA motion seeks dismissal of a claim that involves a mix of
allegations that fall within the TCPA and allegations that do not, “under [such]
circumstances the trial court does not err by denying the TCPA motion to dismiss.”
Neely v. Allen, No. 14-19-00706-CV, 2021 WL 2154125, at *9 (Tex. App.—
6
Houston [14th Dist.] May 27, 2021, no pet.) (mem. op.) (citing Navidea
Biopharmaceuticals, Inc. v. Capital Royalty Partners II, L.P., No. 14-18-00740-CV,
2020 WL 5087826 (Tex. App.—Houston [14th Dist.] Aug. 28, 2020, pet. denied)
(mem. op.)). Moreover, “it is the defendant’s responsibility to segregate the
protected conduct from the unprotected; if it cannot, then its motion to dismiss
should be denied.” Western Mktg., Inc. v. AEG Petroleum, LLC, 616 S.W.3d 903,
911 (Tex. App.—Amarillo 2021), modified on other grounds on reh’g, No.
07-20-00093-CV, 2021 WL 1152904 (Tex. App.—Amarillo Mar. 18, 2021, pet.
denied); see Neely, 2021 WL 2154125, at *9. Here, Graves did not argue in the trial
court, and does not argue in this court, that only some portions of Evangelista’s
civil-stalking claim should be dismissed, and likewise offers no guidance as to how
the claim might be dismissed in part. Accordingly, we conclude the trial court did
not err by denying Graves’s TCPA motion as to Evangelista’s civil-stalking claim.
See Western Mktg., 616 S.W.3d at 911; Neely, 2021 WL 2154125, at *9.
We overrule reformulated issue 1.
C. Intentional infliction of emotional distress
In reformulated issue 2, we address Graves’s contentions that the trial court
erred by not dismissing Evangelista’s claim for intentional infliction of emotional
distress under the TCPA. Graves argues that the same four allegations discussed
above concerning Evangelista’s civil-stalking claim also form the basis of
Evangelista’s claim for intentional infliction of emotional distress. As above, we
conclude that these allegations involve, at best, a mix of activities, some covered by
the TCPA and some not. See supra § II.B. And as above, we conclude on this basis
that the trial court did not err by denying Graves’s TCPA motion as to Evangelista’s
claim for intentional infliction of emotional distress. See id.
We overrule reformulated issue 2.
7
D. Abuse of process
In reformulated issue 3, we address Graves’s arguments that the trial court
erred by denying his TCPA motion as to Evangelista’s abuse-of-process claim. Here,
Evangelista’s claim for abuse of process, as detailed in his seventh amended petition,
is based on the following allegations: “Defendant Graves made, and continues to
make, false reports of child sexual assault against Evangelista. Since the filing of
this lawsuit, Graves has made two more false reports, made in bad faith, with the
Denver Police Department even though the minor child entirely contradicts
Defendant Graves’ false allegations.”
Graves first argues that this claim is based on his exercise of the right of free
speech. We agree. As a threshold matter, the reports are “communications” as
broadly defined by the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1).
Further, the TCPA defines the “exercise of the right of free speech” as “a
communication made in connection with a matter of public concern.” Id.§ 27.001(3). A “matter of public concern” includes “commission of crime,
prosecutions resulting from it, and judicial proceedings arising from the
prosecutions.” Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017) (quotation
omitted). Accordingly, appellate courts have held similar statements to have been
made in connection with matters of public concern, given that both sexual assault
and making a false police report are crimes. See, e.g., Yu v. Koo, 633 S.W.3d 712,
722 (Tex. App.—El Paso 2021, no pet.) (“Thus, to the extent Appellees’ defamation
claims are predicated upon Appellant’s statements to any third party, whether public
or private, concerning either the alleged sexual assault or Appellant’s reporting of it
to the police, we find they are based on or in response to Appellant’s exercise of her
right of free speech.”); cf. Tex. Penal Code Ann. §§ 22.011 (sexual assault), 37.08
(false report). We conclude that Graves met his burden to show that Evangelista’s
8
abuse-of-process claim falls within the TCPA.
The burden accordingly shifts to Evangelista to establish by clear and specific
evidence a prima facie case for each essential element of the claim. Tex. Civ. Prac.
& Rem. Code Ann. § 27.005(c). The elements of abuse of process are: (1) the
defendant made an illegal, improper, or perverted use of the process, a use neither
warranted nor authorized by the process; (2) the defendant had an ulterior motive or
purpose in exercising such illegal, perverted, or improper use of the process; and
(3) damage resulted to the plaintiff as a result of such illegal act. Hunt v. Baldwin,
68 S.W.3d 117, 129 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Implicit in the
elements is the requirement that the process in question be improperly used after it
was issued. Moore v. Bushman, 559 S.W.3d 645, 653 (Tex. App.—Houston [14th
Dist.] 2018, no pet.).
Evangelista primarily argues that Graves’s allegedly false reports of sexual
abuse constitute abuse of process. As this court has previously explained, however,
to sustain an abuse-of-process claim, “[i]t is critical that the process be improperly
used after it has been issued.” Hunt, 68 S.W.3d. at 130. However, even if these
allegedly false reports resulted in a criminal prosecution, the gravamen of
Evangelista’s argument is that the original purpose of any such writ was unjustified.
To maintain a cause of action for abuse of process, it must be established that the
process was improperly used after it was issued. Id. Evangelista provides no clear
and specific evidence as to how Graves made illegal, improper, or perverted use of
any process after it was issued. See id. at 129–30; see also Detenbeck v. Koester,
886 S.W.2d 477, 481 (Tex. App.—Houston [1st Dist.] 1994, no writ) (“[T]he mere
procurement or issuance of process with a malicious intent, or without probable
cause, is not actionable; there must be an improper use of the process after its
issuance.”).
9
Therefore, we conclude Evangelista has not met his burden under the TCPA,
and accordingly the trial court erred when it did not dismiss the abuse-of-process
claim pursuant to Graves’s TCPA motion. We sustain reformulated issue 3.
E. Defamation per se
In reformulated issue 4, Graves challenges the trial court’s denial of his TCPA
motion as to Evangelista’s claim for defamation per se. Evangelista’s seventh
amended petition bases his defamation claim on allegations that Evangelista
“engaged in criminal sexual assaults on his minor child, and other acts that constitute
crimes.” As explained above, such allegations are sufficient to meet Graves’s burden
to show that Evangelista’s defamation claim is based on communications
implicating Graves’s right to free speech, and accordingly fall within the TCPA. See
supra § II.D.
We next address whether Evangelista met his burden to establish by clear and
specific evidence a prima facie case for each essential element of his defamation
claim. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). The elements of defamation
are: (1) the defendant published a false statement; (2) that defamed the plaintiff;
(3) with the requisite degree of fault regarding the truth of the statement (negligence
if the plaintiff is a private individual); and (4) damages, unless the statement
constitutes defamation per se. Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017)
(per curiam). “In a defamation case that implicates the [TCPA], pleadings and
evidence that establishes 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 motion to dismiss under the [TCPA].” Id. (quotation omitted).
Here, Evangelista’s pleadings and evidence allege that Graves made multiple
false reports to Colorado authorities and other individuals in 2020 and 2022 that
Evangelista had sexually assaulted Graves’s minor daughter. Evangelista alleges
10
these allegations are false and that Graves knew they were false, but made the
allegations in an attempt to prevent Evangelista from dating Graves’s ex-wife, who
is also the mother of Graves’s daughter. Viewed in the light most favorable to
Evangelista, the nonmovant, the pleadings and evidence are sufficient to show that
Graves published false statements that defamed Evangelista. See Bedford, 520
S.W.3d at 904; Sanchez, 614 S.W.3d at 242–43. Likewise, the alleged defamatory
statements are sufficient (for TCPA purposes) to constitute defamation per se, given
that falsely accusing someone of committing a crime constitutes defamation per se,
and accordingly Evangelista need not present evidence of damages. See Dallas
Morning News, Inc. v. Tatum, 554 S.W.3d 614, 638 (Tex. 2018); Bedford, 520
S.W.3d at 904.
As to the requisite degree of fault, the standard is negligence if the plaintiff is
a private individual, and there is no evidence here that Evangelista is a public official
or public figure. See Bedford, 520 S.W.3d at 904. Graves argues that the standard
should instead be actual malice because he is entitled to a qualified privilege as “[a]
person acting in good faith who reports or assists in the investigation of a report of
alleged child abuse.” Tex. Fam. Code Ann. § 261.106(a); see also Saudi v. Brieven,
176 S.W.3d 108, 118 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (discussing
qualified privilege). A qualified privilege, however, is an affirmative defense. Saudi,
176 S.W.3d at 118. Under the TCPA, the defendant may avail himself of an
affirmative defense only by proving it conclusively. See Tex. Civ. Prac. & Rem.
Code Ann. § 27.005(d) (requiring movant to establish affirmative defense or other
ground on which it is entitled to “judgment as a matter of law”). Here, there is at
least a fact issue as to whether Graves made his reports “in good faith” given
Evangelista’s allegations of false reporting, which we view in the light most
favorable to Evangelista. See Sanchez, 614 S.W.3d at 242–43. We conclude the
11
applicable fault standard is negligence, and that Evangelista has provided sufficient
evidence in his pleadings and evidence that Graves made the reports in question
knowing they were false, thereby satisfying the fault element. See Bedford, 520
S.W.3d at 904.
Accordingly, we conclude that Evangelista has established a prima facie case
of defamation by clear and specific evidence. The burden shifts to Graves to
establish an affirmative defense or other ground on which he is entitled to judgment
as a matter of law. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d). Graves again
argues he is entitled to immunity under section 261.106(a) of the Family Code as a
“good faith” reporter. Tex. Fam. Code Ann. § 261.106(a). Graves further argues he
has established the defense of substantial truth, based on his allegations that his
allegations against Evangelista are true and he believed the allegations to be true
when they were reported. Cf. Knox v. Taylor, 992 S.W.2d 40, 54 (Tex. App.—
Houston [14th Dist.] 1999, no pet.) (substantial truth is affirmative defense to
defamation claim). As to these defenses, however, Graves has done no more than
create a fact issue, given Evangelista’s conflicting pleadings and the evidence
detailed above indicating that Graves’s reports were false. Accordingly, we conclude
that Graves did not meet his burden to conclusively establish an affirmative defense
or other ground on which he is entitled to judgment as a matter of law on
Evangelista’s defamation claim. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d).
We overrule reformulated issue 4 challenging the trial court’s denial of
Graves’s TCPA motion regarding Evangelista’s defamation claim.
F. Attorney’s fees
In issue 5, Graves argues the trial court erred by denying his request for
attorney’s fees and sanctions. The award of attorney’s fees is mandatory to a
successful TCPA movant. See Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1).
12
Fees are mandatory even if the movant is only partially successful. See D Mag.
Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 441–42 (Tex. 2017) (partially-
successful TCPA movant entitled to reasonable attorney’s fees under statute) (citing
Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1)).
As we have determined the trial court reversibly erred when it denied Graves’s
TCPA motion as to Evangelista’s abuse-of-process claim, it necessarily follows that
Graves is entitled to attorney’s fees for the dismissal of that claim. See id. We sustain
issue 5 as to attorney’s fees.
Graves also states the trial court should have awarded him discretionary
sanctions. The TCPA provides that the trial court “may award to the moving party
sanctions against the party who brought the legal action as the court determines
sufficient to deter the party who brought the legal action from bringing similar
actions described in this chapter.” Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(2).
In his brief, however, Graves offers no substantive discussion as to why the trial
court should have exercised its discretion to award sanctions in this case.
Accordingly, we conclude the portion of issue 5 discussing sanctions is inadequately
briefed. See Tex. R. App. P. 38.1(i).
We sustain issue 5 as to Graves’s request for attorney’s fees and overrule issue
5 as to Graves’s request for sanctions.
13
III. CONCLUSION
Having sustained Graves’s reformulated issue 3 and issue 5 in part, we reverse
the portion of the trial court’s order denying Graves’s TCPA motion to dismiss
Evangelista’s abuse-of-process claim. We instruct the trial court in its further
proceedings in this case to (1) render judgment dismissing Evangelista’s
abuse-of-process claim under the TCPA and (2) consider an appropriate award of
attorney’s fees under the TCPA relating to that claim.4 See Tex. Civ. Prac. & Rem.
Code Ann. § 27.009(a)(1). We otherwise affirm the trial court’s order as challenged
on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Spain, Poissant, and Wilson.
4
Because this is an interlocutory appeal of the trial court’s order denying Graves’s TCPA
motion, only that order is before this court—not the entire trial-court case. We do not remand the
case to the trial court because the case is not before us. Chappell Hill Sausage Co. v. Durrenberger,
No. 14-19-00897-CV, 2021 WL 2656585, at *5 n.6 (Tex. App.—Houston [14th Dist.] June 29,
2021, no pet.) (mem. op.).
14