Jan Mogged, James Richard Fletcher and Michael Alan Taylor v. Bobby Wayne Lindamood, Jr., and Jr's Demolition & Excavation, Inc. ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00126-CV
___________________________
JAN MOGGED, JAMES RICHARD FLETCHER, AND MICHAEL ALAN
TAYLOR, Appellants and Cross-Appellees
V.
BOBBY WAYNE LINDAMOOD JR. AND JR’S DEMOLITION & EXCAVATION,
INC., Appellees and Cross-Appellants
On Appeal from the 348th District Court
Tarrant County, Texas
Trial Court No. 348-278342-15
Dissenting and Concurring Memorandum Opinion by Justice Kerr
DISSENTING AND CONCURRING MEMORANDUM OPINION
I am concerned that the majority has infelicitously imported the summary-
judgment world’s “light most favorable” standard into how we review a TCPA
nonmovant’s evidence under section 27.005(c) of the civil practice and remedies
code—particularly because I believe that doing so affects the outcome here. That is, if
Bobby Wayne Lindamood’s evidence in response to Jan Mogged, James Richard
Fletcher, and Michael Alan Taylor’s motion to dismiss did not benefit from that more
charitable reading, I do not believe that the majority could reverse and remand that
part of the judgment dismissing Lindamood’s defamation claims against Taylor. As a
result, I respectfully dissent in part to this portion of the majority’s judgment.
Significant policy and structural differences exist between summary-judgment
proceedings and the TCPA. Texas Rule of Civil Procedure 166a, which is a creature of
the Texas Supreme Court,1 exists as a vehicle to eliminate “patently unmeritorious
claims or untenable defenses,” and places the burden of proof always and squarely on
the summary-judgment movant. E.g., Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex.
1952). A court thus “accepts as true all evidence of” the nonmovant and gives the
nonmovant “the benefit of every reasonable inference which properly can be drawn in
favor of his position.” Id.
1
The legislature gave the supreme court “full rulemaking power in the practice
and procedure in civil actions” in 1939. Act of May 15, 1939, H.B. 108, 46th Leg.,
R.S., ch. 25, 1939 Tex. Gen. Laws 201, 201 (formerly codified as Tex. Rev. Civ. Stat.
Ann. art. 1731a, now codified as Tex. Gov’t Code Ann. § 22.004 (West Supp. 2018)).
2
The reason for considering summary-judgment evidence in the light most
favorable to the nonmovant is simple: “Critical standards of review weighted in favor
of the non-movant are essential because the remedy of summary judgment is harsh.”
Highlands Ins. Co. v. Currey, 773 S.W.2d 750, 753 (Tex. App.—Houston [14th Dist.]
1989, writ denied) (op. on reh’g); see also Etheredge v. Hidden Valley Airpark Ass’n, Inc.,
169 S.W.3d 378, 383 (Tex. App.—Fort Worth 2005, pet. denied) (op. on reh’g)
(noting that courts strictly construe requirements of summary-judgment rule because
it is a “harsh” remedy).
Of course, dismissal under the TCPA is similarly harsh, but the statute’s
language—to which we must accede—expresses a clear legislative intent that those
sued for exercising a First Amendment right have a leg up, both philosophically and
procedurally, in getting a case against them thrown out.
The statute tells us that its purpose is 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 a person to file meritorious lawsuits for
demonstrable injury.” See Tex. Civ. Prac. & Rem. Code Ann. § 27.002 (West 2015).
We are admonished also that the TCPA must “be construed liberally to effectuate its
purpose and intent fully.” Id. § 27.011 (West 2015). The supreme court has recently
explained that “[c]onstruing the TCPA liberally means construing its exemptions
narrowly,” in part because of “the legislature’s clear instruction to construe the TCPA
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liberally to protect citizens’ rights to participate in government.” State ex rel. Best v.
Harper, No. 16-0647, 2018 WL 3207125, at *6, *9 (Tex. June 29, 2018). Unlike
summary-judgment procedure’s more protective stance toward plaintiffs’ claims, the
legislature’s, and thus our high court’s, unmistakable default is that when the TCPA
applies, it applies with gusto.
The different attitudes toward summarily ending a run-of-the-mill lawsuit
under rule 166a and a free-speech-related lawsuit under the TCPA are also reflected in
what the latter has to say about the nonmovant’s burden, which is to do more than
simply raise a legitimate fact issue. Assuming that the TCPA defendant–movant has
shown that the plaintiff–nonmovant’s claim is “based on, relates to, or is in response
to” the movant’s exercise of a right of free speech, to petition, or of association, see
Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b) (West 2015), a court “shall dismiss”
the case unless the nonmovant carries an affirmative evidentiary burden: the
nonmovant must “establish[] by clear and specific evidence a prima facie case for each
essential element of the claim in question.” Id. § 27.005(c). And even so, the movant
gets another shot at dismissal if it then proves all essential elements of a valid defense
to the nonmovant’s claim. Id. § 27.005(d).
The “clear and specific” evidence may be either direct or circumstantial, but the
plaintiff “must provide enough detail to show the factual basis for its claim.” In re
Lipsky, 460 S.W.3d 579, 590–91 (Tex. 2015) (orig. proceeding). For a defamation
claim, a plaintiff “must prove among other elements that the defendant published a
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false statement of facts and that the defendant did so with the requisite degree of
fault.” Lane v. Phares, 544 S.W.3d 881, 886 (Tex. App.—Fort Worth 2018, no pet.)
(citing Lipsky, 460 S.W.3d at 591).2 That is, in addition to showing the “when, where,
and what was said,” Lipsky, 460 S.W.3d at 591, obviously a nonmovant must come up
with clear and specific evidence of who published a defamatory statement.
Here, in contrast to most defamation cases in which the publisher’s identity is
not disputed, I do not find Lindamood’s evidence that Taylor published the
Colleyville Voter Alert and did so with actual malice to be clear and specific, but
instead to be dependent on piling inference on inference—something we are not to
do. Cf., e.g., Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727–28 (Tex. 2003) (noting that
“suspicion linked to other suspicion produces only more suspicion,” and that “an
inference stacked only on other inferences is not legally sufficient evidence”).
Certainly, the “clear and specific” standard does not impose a heightened evidentiary
standard unaided by rational inferences from circumstantial evidence. Lipsky,
460 S.W.3d at 587. But to my mind, a court’s freedom to draw reasonable inferences
from circumstantial evidence is not the same thing as a license to consider that
2
The “other elements” refer to Lipsky’s observing that in a defamation case
implicating the TCPA, “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.”
460 S.W.3d at 591.
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evidence and those inferences in a light most favorable to the burden-carrying
nonmovant, which is the standard put forth and explicitly relied on by the majority.
To be sure, some of our sister courts have noted, without much commentary,
that evidence associated with a TCPA dismissal motion is to be viewed in such a light.
E.g., Castleman v. Internet Money Ltd., No. 07-16-00320-CV, 2018 WL 5093857, at
*2 (Tex. App.—Amarillo Oct. 18, 2018, no pet. h.) (mem. op. on remand) (“[O]ur
review . . . is akin to that applicable when reviewing a summary judgment. That is, we
consider the pleadings and evidence in a light most favorable to the nonmovant.”);
E. Tex. Med. Ctr. Athens v. Hernandez, No. 12-17-00333-CV, 2018 WL 2440508, at
*2 (Tex. App.—Tyler May 31, 2018, pet. denied) (mem. op.); Cheniere Energy, Inc. v.
Lotfi, 449 S.W.3d 210, 214–15 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (op.
on reh’g). But the supreme court has not explicitly adopted that standard, nor have
we.
Without something in the TCPA’s language suggesting that the legislature
meant for us to weigh the evidence in a most-favorable light, and indeed when the
TCPA’s language and purpose suggest something quite different, I believe that the
majority is reading into the statute a standard that its text does not justify. See, e.g.,
Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015) (noting that “[a] court may
not judicially amend a statute by adding words that are not contained in the language
of the statute” and holding that appellate court wrongly construed TCPA as applying
only to communications in public form, when plain language limits its scope only to
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communications involving a public subject). Of course, rejecting the majority’s light-
most-favorable standard means that even fewer claims might survive a TCPA motion
to dismiss. But whether that is a good or a bad thing is beside the point; the legislature
has spoken, and we must heed its intent as expressed through its words.
I would thus affirm the dismissal of Lindamood’s defamation claims in their
entirety and as to all defendants,3 and I would consequently have addressed Mogged,
Fletcher, and Taylor’s appellate issues concerning the amount of their attorneys’-fee
award. Because the majority has taken a different approach, I respectfully dissent in
part.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: December 31, 2018
Because I agree with the majority that the trial court did not err by dismissing
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JR’s Demolition & Excavation, Inc.’s defamation claim or by dismissing Lindamood’s
claims brought against Mogged and Fletcher, I concur in this portion of the majority’s
judgment.
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