Rehak Creative Services, Inc. and Robert Rehak v. Ann L. Witt, Ellen Witt, Raymond Witt and Ann Witt Campaign

Affirmed and Opinion filed May 21, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00658-CV
REHAK CREATIVE SERVICES, INC. AND ROBERT REHAK, Appellants
V.
ANN L. WITT, ELLEN WITT, RAYMOND WITT AND ANN WITT
CAMPAIGN, Appellees
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2012-25062
OPINION
Rehak Creative Services, Inc. and Robert Rehak (collectively, “Rehak”)
appeal from a final judgment granting a motion to dismiss in favor of appellees
Ann L. Witt, Ellen Witt, Raymond Witt, and the Ann Witt Campaign (collectively,
“Witt”). We affirm.
OVERVIEW
This appeal focuses on a recently enacted statute called the “Texas Citizens
Participation Act,” which is codified in Chapter 27 of the Civil Practices and
Remedies Code under the heading “Actions Involving the Exercise of Certain
Constitutional Rights.” See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011
(Vernon Supp. 2012). This statute is an anti-SLAPP law, which is an acronym for
“Strategic Lawsuits Against Public Participation.” See generally In re Lipsky, No.
02-12-00348-CV, 2013 WL 1715459, at *1 n.1 (Tex. App.—Fort Worth April 22,
2013, orig. proceeding).
Chapter 27 seeks 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.” Tex.
Civ. Prac. & Rem. Code Ann. § 27.002. It does so by establishing a mechanism
for early dismissal of lawsuits that threaten the right of free speech, the right to
petition, or the right of association. The statute is to be “construed liberally to
effectuate its purpose and intent fully.” Id. § 27.011(a).
We must apply this statute to a libel claim and other causes of action
asserted in connection with a political campaign for a seat in the Texas Legislature.
FACTUAL BACKGROUND
Ann L. Witt ran unsuccessfully in the 2012 Republican primary for House
District 133. The Ann Witt Campaign was designated as Witt’s campaign
committee under the Texas Election Code. See Tex. Elec. Code Ann. §
251.001(13) (Vernon 2010). Raymond Witt served as campaign treasurer. Ellen
Witt maintained campaign websites.
Ann Witt’s opponent, incumbent Representative Jim Murphy, first was
elected to represent House District 133 in 2006 for a term to begin on January 1,
2
2007.1 Murphy served from 1997 through 2006 as president of a “municipal
management district” on Houston’s west side called the Westchase District. This
entity seeks to “promote, develop, encourage, and maintain employment,
commerce, economic development, and the public welfare in the commercial areas
of municipalities and metropolitan areas of this state.” Tex. Local Gov’t Code
Ann. § 375.001(b) (Vernon 2005). The Westchase District is a political
subdivision of the state. Id. § 375.004(a). Murphy received a state salary as
president of the Westchase District.
Members of the Texas Legislature cannot hold “any other office or position
of profit under this State.” Tex. Const. art. XVI, § 40(d). Before running for the
legislature, Murphy sought an opinion from the Texas Attorney General addressing
whether he could serve simultaneously as president of the Westchase District and
in the legislature.
Texas Attorney General Greg Abbott issued an opinion concluding that the
Texas Constitution prohibits an individual from serving simultaneously as a
municipal management district employee and a legislator. See Tex. Att’y Gen. Op.
No. GA-386 (2005). The attorney general also opined that a person working as an
“independent contractor” for a governmental entity does not hold a “position of
profit under this State” Id. The opinion stated: “We conclude that article XVI,
section 40(d) of the Texas Constitution does not prohibit a member of the Texas
Legislature from also working for compensation as an independent contractor for a
municipal management district.” Id. The opinion further stated: “The
determination that a person actually works as an independent contractor and not as
an employee involves questions of fact and contract interpretation, which cannot
1
Murphy lost the seat in 2008. He was elected again to represent House District 133 in
2010, and re-elected in 2012.
3
be resolved in the opinion process.” Id.
Murphy created a limited liability company called District Management
Services, LLC in December 2006. Murphy is the LLC’s sole member. Murphy
resigned his position with the Westchase District as of December 31, 2006.
Effective January 1, 2007, the Westchase District entered an Administrative
and Management Services Agreement with District Management Services, LLC.
Each year since 2007, the district and the LLC have entered a similar one-year
contract with a January 1 effective date. The LLC performs consulting services
under these annual agreements to act as the district’s general manager in return for
compensation including a fixed monthly fee. Each annual agreement identifies the
LLC as an “independent contractor.” The agreements prohibit Murphy from
awarding work to, supervising, or approving the work of other contractors.
During the 2012 Republican primary for House District 133, Witt accused
Murphy of acting to “sidestep” the Texas Constitution by serving in the legislature
while receiving payment as a consultant to the Westchase District via contracts
with District Management Services, LLC. Witt leveled this and many other
accusations against Murphy on a Witt campaign website called “How to Succeed
in Government Without Really Trying.”
The Witt campaign’s main website was http://voteannwitt.com. The main
campaign website provided a link to the separate “How to Succeed” website at
http://howtosucceedingovernment.com. The Witt campaign also placed radio
advertisements and distributed mailers directing potential voters to the “How to
Succeed” website. Versions of the “How to Succeed” website were accessible
from mid-April 2012 until June 7, 2012.
The website explains that “How to Succeed in Business Without Really
4
Trying is a book, broadway musical, and movie about climbing the corporate
ladder.” It continues: “The main character, J. Pierrepont Finch, outwardly appears
to be a very likeable chap, but really he is using every trick in the book to get
ahead at the expense of others.” The website then casts Murphy in the role of
Finch: “In Texas government, J. Pierrepont Finch is Jim Murphy: likeable guy,
but he’s using every trick in the book – really, he could write the book – to make
money off of government and further his own political ambition.”
The following statement appears below the website’s “How to Succeed”
heading and next to a large picture of Murphy: “How Jim Murphy is ripping off
taxpayers.” The website states, “For professional politician Jim Murphy, it takes
just 6 sleazy steps.”
The website’s content changed over time. In one version of the “How to
Succeed” website, the six steps are identified as follows.
“STEP 1: Oversee a Government Body.”
“STEP 2: Hire yourself as General Manager.”
“STEP 3: Make $290,000 a year off taxpayers.”
“STEP 4: Sidestep the Texas Constitution.”
“STEP 5: Get a second government job.”
“STEP 6: Reward your supporters.”
In another version, the six steps are identified with somewhat different wording.
“STEP 1: Help create a new taxing entity.”
“STEP 2: Hire yourself as its top bureaucrat.”
“STEP 3: Make $290,000 a year off taxpayers.”
5
“STEP 4: Sidestep that pesky Texas Constitution.”
“STEP 5: Get a second government job.”
“STEP 6: Reward your supporters with government contracts.”
In these iterations of the “How to Succeed” website, each “step” contains
additional text and a link to click on for “MORE INFO.” The following words
appear at the bottom of the screen: “Double Dipping. Skirting the Law. Bilking
Taxpayers. Rewarding Cronies. It’s time to end Jim’s run.”
The dispute here focuses primarily on Step 6 and its accompanying text.
One version of the “How to Succeed” website contains this statement under
Step 6: “Westchase District has awarded government contracts to the following
companies, and the CEOs of these companies have contributed more than $48,000
in cash and services to Jim’s campaigns for State Representative. (Copies of these
contracts have been requested of the Westchase District.)” The website lists six
companies under this text.
The second company listed under Step 6 is an advertising agency named
“Rehak Creative Services.” The agency’s chief executive officer and sole owner is
Robert Rehak. He contributed $3,250 to Murphy’s campaign for House District
133 in 2005-2006 and another $3,750 to Murphy’s subsequent campaigns through
2011. Rehak’s contributions to Murphy’s campaigns for four election cycles
totaled $7,000.
The website’s entry for Rehak Creative Services, Inc. reads as follows:
“$9,750 from Robert Rehak, CEO of Rehak Creative Services. Rehak Creative
Services received a government contract from the Westchase District to design its
Long Range Plan (see p. 55). And the company lists Westchase District as a
client.” Three links appear under the second entry: “Click here for contributions,”
6
“Click here for Westchase Long Range Plan,” and “Click here for Rehak client
list.” According to Rehak’s appellate brief, “Readers who followed the links under
the statements about Rehak and RCS were directed to a list of Rehak’s
contributions to Murphy’s campaigns since 2005, a copy of a 55-page long-range
planning report for the Westchase District produced by RCS, and the trademarked
logos of some of RCS’ clients from RCS’ website.”
A later version of the “How to Succeed” website revised the text referencing
Rehak Creative Services, Inc. under Step 6 to state as follows:
Jim Murphy has awarded $1.3 million in Westchase District
government contracts to his State Representative campaign
contributors.
Westchase District has awarded $1.3 million worth of government
contracts to the companies below, and the CEOs of those companies
have contributed more than $45,000 in cash and services to Jim’s
campaigns for State Representative. (Copies of these contracts were
obtained by Public Information Act request to Westchase District.)
* * *
Rehak Creative Services has received government contracts from
Westchase District totaling more than $50,000. The company’s CEO,
Robert Rehak, has contributed $7,000 to Jim’s campaigns.
Click here for contributions>>
Click here for contract #1>>
Click here for contract #2>>
Click here for contract #3>>
Click here for contract #4>>
According to Rehak, “[T]he documents that the Witts represented as supporting
their accusations that Rehak and RCS received ‘rewards’ and participated in a
scheme to ‘bilk taxpayers,’ in fact, showed the exact opposite.” Rehak contends:
“People, who knew and worked with Rehak and RCS, and who read the core
7
website from being directed to it by the main campaign website, the radio ads or
the mailers, believed the campaign literature, including the Defamatory Post, was
accusing Rehak and RCS of wrongdoing, and of possible criminal behavior.”
The Witt campaign refused repeated requests for a retraction, and for
removal of all references to Rehak and Rehak Creative Services, Inc. from the
“How to Succeed” website.
PROCEDURAL BACKGROUND
Rehak sued Witt on April 30, 2012 and asserted claims for libel; business
disparagement; tortious interference with business relationships and prospective
business opportunities; intentional infliction of emotional distress; civil conspiracy;
conversion; and misappropriation. Rehak based these claims on Witt’s actions in
connection with the “How to Succeed” website, including the alleged misuse of
trademarked logos belonging to clients of Rehak Creative Services, Inc.
Witt timely filed a motion to dismiss all of Rehak’s claims under Chapter
27. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(b). Witt filed a response and
included supporting affidavit evidence; Rehak objected to certain portions of the
affidavits. Neither side sought discovery. See id. § 27.006(b).
The trial court conducted two hearings. In accordance with the parties’
agreement, the trial court decided the motion based upon the pleadings; motion;
response; arguments of counsel; and affidavits. See id. §§ 27.004, 27.006(a). The
trial court signed an order denying Witt’s objections to affidavits Rehak proffered
as part of his response to the motion to dismiss. It also signed a “Final Judgment
of Dismissal” that dismissed all claims asserted by Rehak and awarded attorney’s
fees to Witt. See id. § 27.009(a)(1). Rehak timely appealed. See id. § 27.008(c).
8
ANALYSIS
I. Chapter 27 Dismissal Mechanism
We begin with a summary of Chapter 27’s dismissal mechanism.
This statute allows a litigant to seek dismissal of a “legal action” that is
“based on, relates to, or is in response to a party’s exercise of the right of free
speech, right to petition, or right of association . . . .” Id. § 27.003(a).
A “‘legal action’ means a lawsuit, cause of action, petition, complaint, cross-
claim, or counterclaim or any other judicial pleading or filing that requests legal or
equitable relief.” Id. § 27.001(6). The “‘[e]xercise of the right of free speech’
means a communication made in connection with a matter of public concern.” Id.
§ 27.001(3).
A “‘[c]ommunication’ includes the making or submitting of a statement or
document in any form or medium, including oral, visual, written, audiovisual, or
electronic.” Id. § 27.001(1). Among other things, a “‘[m]atter of public concern’
includes an issue related to . . . environmental, economic, or community well-being
. . . . the government . . . [or] . . . a public official or public figure . . . .” Id. §
27.001(7)(B), (C), (D).
The motion seeking dismissal “must be filed not later than the 60th day after
the date of service of the legal action.” Id. § 27.003(b). The trial court can extend
this deadline for good cause. Id. The filing suspends all discovery pending a
ruling on the motion unless the trial court allows “specified and limited discovery
relevant to the motion” upon “a showing of good cause.” Id. § 27.006(b).
The trial court must set a hearing on the motion “not later than the 30th day
after the date of service of the motion unless the docket conditions of the court
require a later hearing.” Id. § 27.004. The trial court must rule on the motion “not
9
later than the 30th day following the date of the hearing on the motion.” Id. §
27.005(a). “If a court does not rule on the motion to dismiss under Section 27.003
in the time prescribed by Section 27.005, the motion is considered to have been
denied by operation of law and the moving party may appeal.” Id. § 27.008(a).
Chapter 27 employs a burden-shifting mechanism. With one exception
quoted below, the trial court “shall dismiss a legal action against the moving party
if the moving party shows by a preponderance of the evidence that the legal action
is based on, relates to, or is in response to the party’s exercise of . . . the right of
free speech . . . .” Id. § 27.005(b)(1). The exception: “The court may not dismiss
a legal action under this section if the party bringing the legal action establishes by
clear and specific evidence a prima facie case for each essential element of the
claim in question.” Id. § 27.005(c). Chapter 27 does not define the phrases “clear
and specific evidence” or “prima facie case.”2
II. Issues on Appeal
Rehak does not dispute that the claims for libel, business disparagement,
tortious interference with business relationships and prospective business
opportunities, intentional infliction of emotional distress, and civil conspiracy are
based on, related to, and asserted in response to Witt’s exercise of the “right of
free speech” under sections 27.003(a) and 27.005(b)(1).3 With respect to these
2
Other provisions in Chapter 27 address additional findings; damages and costs; and
exemptions. Id. §§ 27.007, 27.009, 27.010. Discussion of these provisions is not necessary to
resolve this appeal.
3
Rehak’s opening brief contains two different formulations of his sixth issue. One
formulation at the brief’s beginning says Witt failed “to prove by a preponderance of the
evidence that each of the Appellants’ claims other than libel and business disparagement were
based on, related to, or were in response to the Appellees’ exercise of their ‘right to free speech’
as defined by the statute.” As restated in the brief’s argument section, Rehak’s sixth issue says
Witt failed “to prove by a preponderance of the evidence that the Appellants’ claims for misuse
of RCS’[s] copyrighted materials, and of RCS’s clients[’] trademarked logos were based on,
10
claims, the appellate battle focuses on whether Rehak met his section 27.005(c)
burden to establish “by clear and specific evidence a prima facie case for each
essential element of the claim in question.”
In his first five issues, Rehak contends he satisfied section 27.005(c) because
the record establishes that Witt’s statements on the “How to Succeed” website (1)
were “of and concerning” Rehak and Rehak Creative Services, Inc.; (2) were
defamatory; (3) created a substantially false and defamatory impression by
omitting material facts or juxtaposing facts in a misleading way; (4) were
statements of fact rather than opinion; and (5) resulted in damages.
Rehak’s last two issues focus on the remaining claims for conversion and
misappropriation in connection with copyrighted materials and trademarked logos
appearing on the “How to Succeed” website.
In his sixth issue, Rehak contends that Witt did not satisfy her initial burden
under section 27.005(b) to establish by a preponderance of the evidence that the
conversion and misappropriation claims were based on, related to, or asserted in
response to Witt’s exercise of the right of free speech.
In his seventh issue, Rehak contends he satisfied his section 27.005(c)
burden to establish a “prima facie case” by “clear and specific evidence” with
respect to his conversion and misappropriation claims.
III. Standard of Review
Chapter 27’s recent vintage means that the case law has not yet coalesced
around a single, widely accepted formulation of the standard of review for section
related to, or were in response to the Appellees’ exercise of their ‘right to free speech’ as defined
by the statute.” The argument following this restatement of Issue 6 addresses only conversion
and misappropriation. Accordingly, we construe Rehak’s Issue 6 to contend that only the
conversion and misappropriation claims are not based on, related to, or asserted in response to
Witt’s exercise of the right of free speech as required under section 27.005(b)(1).
11
27.005 dismissal orders.
At least one case addressing Chapter 27 has invoked the de novo standard of
review applicable to issues of statutory construction. Avila v. Larrea, 394 S.W.3d
646, 652-53 (Tex. App.—Dallas 2012, pet. filed) (citing Tex. Lottery Comm’n v.
First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010)). De novo review
governs a question-of-law inquiry concerning the meaning of specific words used
in the statute. But invoking the de novo standard alone does not fully explain the
dismissal standard to be applied when an appellate court determines de novo
whether (1) the movant satisfied section 27.005(b)’s initial burden; and (2) the
non-movant satisfied section 27.005(c)’s shifted burden.
Another case has applied an abuse of discretion standard. In re Lipsky, 2013
WL 1715459, at *3, *10-*13. Lipsky’s use of this standard arises from a unique
procedural posture; that case reached the court of appeals on a petition for writ of
mandamus based on an earlier determination by the Second Court of Appeals that
Chapter 27 does not authorize an interlocutory appeal from an express order
denying dismissal. Id.4 Because Rehak’s case does not come to this court via
mandamus, we do not apply an abuse of discretion standard to gauge the propriety
4
The Fourteenth Court of Appeals has concluded that Chapter 27 allows an interlocutory
appeal regardless of whether the motion to dismiss is determined by an express order or by
operation of law. See Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, No. 14-12-
00896-CV, 2013 WL 407029 (Tex. App.—Houston [14th Dist.] Jan. 24, 2013, Order); see also
San Jacinto Title Servs. of Corpus Christi, LLC. v. Kingsley Props., LP., No. 13-12-00352-CV,
2013 WL 1786632 (Tex. App.—Corpus Christi April 25, 2013, no pet. h.); Tex. Civ. Prac. &
Rem. Code Ann. § 27.008(a), (b), (c). The Second Court of Appeals has reached a contrary
conclusion. See Jennings v. WallBuilder Presentations, Inc., 378 S.W.3d 519, 524-29 (Tex.
App.—Fort Worth 2012, pet. filed) (interlocutory appeal is permitted under section 27.008 when
trial court fails to rule on motion to dismiss, but not when trial court signs express order on
dismissal); see also Lipsky v. Range Prod. Co., No. 02-12-00098-CV, 2012 WL 3600014, at *1
(Tex. App.—Fort Worth Aug. 23, 2012, no pet.). This appeal does not require consideration of
section 27.008’s application to an interlocutory order because the order at issue here operated as
a final judgment dismissing all causes of action asserted by Rehak. See Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 205 (Tex. 2001).
12
of dismissal under section 27.005.
We agree with the First Court of Appeals that the first step of this inquiry
under section 27.005(b) is a legal question reviewed de novo on appeal.
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., No. 01-12-00581-
CV, 2013 WL 1867104, at *6 (Tex. App.—Houston [1st Dist.] May 2, 2013, no
pet. h.) (citing City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008)).
With respect to the second step, Rehak invites us to apply de novo review
under section 27.005(c) “[b]ecause the motion to dismiss procedure provided in
Chapter 27 is the functional equivalent of a no-evidence summary judgment
motion . . . .” See Tex. R. Civ. P. 166a(i). Rehak further contends that a non-
movant seeking to satisfy section 27.005(c)’s burden “must come forward with
pleadings and affidavits that contain direct evidence that would provide more than
a scintilla of evidence to support each essential element of respondent’s claim . . .
.” Cf. Ramsey v. Lynch, No. 10-12-00198-CV, 2013 WL 1846886 (Tex. App.—
Waco May 2, 2013, no pet. h.) (applying legal sufficiency standard from City of
Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005), and factual sufficiency
standard from Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on
reh’g), to trial court’s findings of fact under Chapter 27).
We hesitate to embrace the Rule 166a(i) analogy or import into Chapter 27
the “scintilla of evidence” concept applicable in the context of a no-evidence
motion for summary judgment. See, e.g., King Ranch, Inc. v. Chapman, 118
S.W.3d 742, 751 (Tex. 2003).
This reluctance stems from Chapter 27’s distinct terminology. It is doubtful
whether Rule 166a(i)’s no-evidence standard meshes with a Chapter 27 mechanism
that demands a showing of “clear and specific” evidence – not just “some”
evidence – to avoid dismissal. Compare Tex. Civ. Prac. & Rem. Code Ann. §
13
27.005(c) (non-movant must establish “by clear and specific evidence a prima
facie case for each essential element of the claim in question” (emphasis added)
with Romo v. Tex. Dept. of Transp., 48 S.W.3d 265, 269 (Tex. App.—San Antonio
2001, no pet.) (“When a party moves for a no-evidence summary judgment, the
nonmovant must produce some evidence raising a genuine issue of material fact.”).
The purposeful inclusion of a “clear and specific evidence” requirement indicates
that the non-movant must satisfy an elevated evidentiary standard under section
27.005(c). We will follow section 27.005(c)’s express (albeit undefined)
terminology and leave the “scintilla” to other contexts.
“Clear and specific evidence” has been described as evidence that is
“unaided by presumptions, inferences, or intendments.” McDonald v. Clemens,
464 S.W.2d 450, 456 (Tex. Civ. App.—Tyler 1971, no writ); see also S. Cantu &
Son v. Ramirez, 101 S.W.2d 820, 822 (Tex. Civ. App.—San Antonio 1936, no
writ).
“Prima facie evidence is evidence that, until its effect is overcome by other
evidence, will suffice as proof of a fact in issue.” Duncan v. Butterowe, Inc., 474
S.W.2d 619, 621 (Tex. Civ. App.—Houston [14th Dist.] 1971, no writ). “In other
words, a prima facie case is one that will entitle a party to recover if no evidence to
the contrary is offered by the opposite party.” Id. (citing Simonds v. Stanolind Oil
& Gas Co., 134 Tex. 332, 136 S.W.2d 207, 209 (1940)); see also In re Lipsky,
2013 WL 1715459, at *4 (“In cases unrelated to motions to dismiss under chapter
27, Texas courts have defined ‘prima facie’ evidence as the ‘minimum quantum of
evidence necessary to support a rational inference that the allegation of fact is
true.’”) (quoting In re E. I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex.
2004) (orig. proceeding)).
Other circumstances requiring a “prima facie” showing provide apt
14
analogies for section 27.005(c)’s dismissal standard. Cf. Baker v. Goldsmith, 582
S.W.2d 404, 408-09 (Tex. 1979) (In bill of review context, “a prima facie
meritorious defense is made out when it is determined that the complainant’s
defense is not barred as a matter of law and that he will be entitled to judgment on
retrial if no evidence to the contrary is offered. This is a question of law for the
court.”). “Because a determination of whether a party has presented prima facie
proof of a meritorious claim is a question of law, we review the trial court’s
decision of this issue de novo.” In re C.E., 391 S.W.3d 200, 203 (Tex. App.—
Houston [1st Dist.] 2012, no pet.) (citing Baker, 582 S.W.2d at 406, and Nichols v.
Jack Eckerd Corp., 908 S.W.2d 5, 7-8 (Tex. App.—Houston [1st Dist.] 1995, no
writ)); see also Elliott v. Elliott, 21 S.W.3d 913, 917 (Tex. App.—Fort Worth
2000, pet. denied).
A de novo standard likewise governs review of the trial court’s
determination regarding the propriety of dismissal under section 27.005. By the
term “de novo” we mean that the appellate court makes an independent
determination and applies the same standard used by the trial court in the first
instance. See, e.g., Duerr v. Brown, 262 S.W.3d 63, 68 (Tex. App.—Houston
[14th Dist.] 2008, no pet.).
To sum up: On appeal from an order decided under section 27.005(c), we
determine de novo whether the record contains a minimum quantum of clear and
specific evidence that, unaided by inferences, would establish each essential
element of the claim in question if no contrary evidence is offered. See Tex. Civ.
Prac. & Rem. Code Ann. § 27.005(c); Duncan, 474 S.W.2d at 621; McDonald, 464
S.W.2d at 456; see also Newspaper Holdings, Inc., 2013 WL 1867104, at *6.
We now turn to the application of these standards.
15
IV. Application of Chapter 27
A. Libel and Business Disparagement
Rehak’s briefing focuses primarily on his libel and business disparagement
claims. He emphasizes that Witt’s “How to Succeed” website “used the terms
‘reward,’ ‘rip-off,’ and ‘bilk,’ to describe the conduct in which Rehak and RCS
were alleged to have participated.” Rehak contends: “The statements that RCS
received contracts from the Westchase District, and that Rehak made contributions
to Murphy’s campaigns as part of a scheme to ‘reward’ ‘cronies’ by ‘bilking’ and
‘ripping-off’ taxpayers were false and defamatory.” He further contends: “The
false gist of the Witts’ statements about the Appellants is that they participated in a
scheme to ‘rip off’ and ‘bilk’ taxpayers, and to help Jim Murphy to break state
law.” According to Rehak, the “How to Succeed” website conveyed a false gist
“by juxtaposing true facts, while ignoring, misrepresenting and omitting other
material facts.”
We address Rehak’s contentions in light of the extensive body of law that
has developed around claims for libel and business disparagement.
Libel is “a defamation expressed in written or other graphic form . . . .” Tex.
Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 2011). This formulation
encompasses writing that appears as text on an internet website. See Kaufman v.
Islamic Soc’y of Arlington, 291 S.W.3d 130, 144-45 (Tex. App.—Fort Worth
2009, pet. denied). A libel plaintiff must prove that the defendant “(1) published a
statement; (2) that was defamatory concerning the plaintiff; (3) while acting with
either actual malice, if the plaintiff was a public official or public figure, or
negligence, if the plaintiff was a private individual, regarding the truth of the
16
statement.” WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).5
Corporations and individual persons alike can sue for defamation. See Gen.
Motors Acceptance Corp. v. Howard, 487 S.W.2d 708, 712-13 (Tex. 1972).
Although claims for libel and business disparagement bear some similarity
to one another, they are distinct causes of action that protect different interests. A
libel action protects “the personal reputation of the injured party, whereas the
action for . . . business disparagement is to protect the economic interests of the
injured party against pecuniary loss.” Hurlbut v. Gulf Atlantic Life Ins. Co., 749
S.W.2d 762, 766 (Tex. 1987). Business disparagement requires proof of
“publication by the defendant of the disparaging words, falsity, malice, lack of
privilege, and special damages.” Prudential Ins. Co. of Am. v. Fin. Review Servs.,
Inc., 29 S.W.3d 74, 82 (Tex. 2000); see also Hurlbut,, 749 S.W.2d at 766. The
words at issue must be defamatory to be actionable as business disparagement.
Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 427 (Tex. App.—Waco 1997, writ
denied) (citing Hurlbut, 749 S.W.2d at 766).
5
The burden of demonstrating a challenged statement’s truth or falsity depends on the
litigants’ status and the statement’s subject matter. In a case brought by a private plaintiff
against a nonmedia defendant in connection with a matter that is not of public concern, “[t]he
truth of the statement in the publication on which an action for libel is based is a defense to the
action.” Tex. Civ. Prac. & Rem. Code Ann. § 73.005; see also Randall’s Food Mkts., Inc. v.
Johnson, 891 S.W.2d 640, 646 (Tex. 1995) (“In suits brought by private individuals, truth is an
affirmative defense to slander.”). In contrast, “[A] public official . . . must prove that defamatory
statements made about him were false.” Bentley v. Bunton, 94 S.W.3d 561, 586 (Tex. 2002); see
also id. at 586 n.62; Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986) (plaintiff
bears burden of proving falsity when defamatory speech is of public concern and defendant is a
member of the media; reserving question of who bears the burden when defendant is not a
member of the media); New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (public
figure or public official must prove falsity). Because we resolve this appeal on other grounds,
we do not address (1) whether Rehak was a public figure; (2) whether Witt was a media
defendant; (3) whether the challenged statements were false; (4) who bore the burden with
respect to establishing truth or falsity; or (5) the requisite level of fault necessary to establish
liability. We also do not address the nature of any asserted damages attributed to libel or
disparagement. See generally Hancock v. Variyam, No. 11-0772, __WL __ (Tex. May 17,
2013).
17
The threshold inquiry focuses on the requirement of a defamatory statement
because this element is common to both causes of action.
A statement is defamatory when a person of ordinary intelligence would
interpret it in a way that tends to injure the subject’s reputation and thereby expose
the subject to public hatred, contempt, or ridicule, or financial injury, or to impeach
the subject’s honesty, integrity virtue, or reputation. Tex. Civ. Prac. & Rem Code.
Ann. § 73.001; see also Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114-15
(Tex. 2000). This is an objective test. Miranda v. Byles, 390 S.W.3d 543, 550
(Tex. App.—Houston [1st Dist.] 2012, pet. filed) (citing New Times, Inc. v.
Isaacks, 146 S.W.3d 144, 157 (Tex. 2004)); see also Kaufman, 291 S.W.3d at 145.
A statement may be “false, abusive, unpleasant, or objectionable to the plaintiff
without being defamatory.” San Antonio Express News v. Dracos, 922 S.W.2d
242, 248 (Tex. App.—San Antonio 1996, no writ).6
“The person of ‘ordinary intelligence’ described in Turner is a prototype of a
person who exercises care and prudence, but not omniscience, when evaluating
allegedly defamatory communications.” New Times, Inc., 146 S.W.3d at 154-55.
This person “‘is no dullard’” and represents “‘reasonable intelligence and
learning,’” not “‘the lowest common denominator.’” Id. (quoting Patrick v.
6
Rehak submitted affidavits in the trial court from himself and from “members of the
community” who, according to Rehak, “meet the test of being ‘ordinary readers’ or the ‘man on
the street.’” Rehak asserts that “[t]hese individuals all perceived the Defamatory Post in its
entirety as conveying the false gist that Rehak was being accused of participating in a scheme of
theft and bribery involving a public official and a public entity.” Because the defamatory
meaning inquiry is objective rather than subjective, affidavits containing assertions from Rehak
and others regarding their individual subjective perceptions of the validity of his claims are not
competent evidence and do not affect the analysis. See, e.g., Tex. Div.-Tranter, Inc. v. Carrozza,
876 S.W.2d 312, 314 (Tex. 1994); see also Vice v. Kasprzak, 318 S.W.3d 1, 21 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied) (plaintiff’s own characterization of allegedly defamatory
statement cannot form the basis for a viable defamation claim).
18
Superior Court, 27 Cal. Rptr. 2d 883, 887 (Cal. Ct. App. 1994)).
Whether the statement at issue is capable of defamatory meaning initially is
a question of law for the court. Turner, 38 S.W.3d at 114; Musser v. Smith
Protective Servs., 723 S.W.2d 653, 654-55 (Tex. 1987). “The court construes the
statement as a whole in light of the surrounding circumstances based upon how a
person of ordinary intelligence would perceive the entire statement.” Musser, 723
S.W.2d at 655. “Only when the court determines the language is ambiguous or of
doubtful import should the jury then determine the statement’s meaning and the
effect the statement’s publication has on an ordinary reader.” Id.; see also New
Times, Inc., 146 S.W.3d at 154-55.
This inquiry does not examine individual words in isolation. Turner, 38
S.W.3d at 115. Context is important. See id.; see also New Times, Inc., 146
S.W.3d at 154-55. “[P]ublications alleged to be defamatory must be viewed as a
whole – including accompanying statements, headlines, pictures, and the general
tenor and reputation of the source itself.” City of Keller v. Wilson, 168 S.W.3d
802, 811 (Tex. 2005) (citing New Times, Inc., 146 S.W.3d at 158-59; Turner, 38
S.W.3d at 114; Guisti v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874, 877-78
(1912)).
Rehak’s argument based on the website’s asserted “false gist” invokes a
related, context-based concept involving the manner in which particular words are
presented. “Because a publication’s meaning depends on its effect on an ordinary
person’s perception, courts have held that under Texas law a publication can
convey a false and defamatory meaning by omitting or juxtaposing facts, even
though all the story’s individual statements considered in isolation were literally
true or non-defamatory.” Turner, 38 S.W.3d at 114 (citing Golden Bear Dist. Sys.
v. Chase Revel, Inc., 708 F.2d 944, 948-49 (5th Cir. 1983) (applying Texas law);
19
Huckabee v Time Warner Entm’t. Co., 19 S.W.3d 413, 525 (Tex. 2000); Express
Publ’g Co. v. Gonzalez, 350 S.W.2d 589, 592 (Tex. Civ. App.—Eastland 1961,
writ ref’d n.r.e.)). “[A] plaintiff can bring a claim for defamation when discrete
facts, literally or substantially true, are published in such a way that they create a
substantially false and defamatory impression by omitting material facts or
juxtaposing facts in a misleading way.” Turner, 38 S.W.3d at 115.
The analysis now applies these precepts to specific statements from Witt’s
“How to Succeed” website.
Rehak argues that the words “[r]ewarding,” “ripping off,” and “[b]ilking” as
used in the context of Witt’s “How to Succeed” campaign website have “specific
meanings that include ‘theft,’ ‘cheating,’ ‘swindling,’ and ‘defrauding.’” He
contends: “The basis for those accusations cited by the Witts juxtaposed the
history of RCS’ Westchase District contracts with the history of Rehak’s campaign
contribution to Candidate Witt’s primary opponent, misconstrued and
misrepresented the contents of documents, and omitted key information concerning
when her opponent first ran for office . . . .” He further contends that these words
“accuse the Appellants of gaining influence over an elected official to obtain work,
to steal and cheat taxpayers, and to help the elected official break the law.” Thus,
Rehak contends that these words are actionable as defamatory statements of fact.
Viewing the challenged statements as a whole and in context, we conclude
that a person of ordinary intelligence would perceive these words as nothing more
than rhetorical hyperbole. See Am. Broad. Cos. v. Gill, 6 S.W.3d 19, 30 (Tex.
App.—San Antonio 1999, pet. denied) (“‘Rhetorical hyperbole’ is ‘extravagant
exaggeration’ [that is] ‘employed for rhetorical effect.’”) (quoting Webster’s Ninth
20
New Collegiate Dictionary 592, 1011 (1988 ed.)).7 A person of ordinary
intelligence would not perceive these words to be defamatory statements of fact
regarding Rehak or Rehak Creative Services, Inc. See Gill, 6 S.W.3d 19 at 30
(statement by Resolution Trust Corporation investigator, who said that “[a]s a
taxpayer” he “got screwed” by conduct resulting in losses absorbed by the federal
government, constituted rhetorical hyperbole and was not a defamatory statement
of fact as to former officers and directors of savings and loan association); El Paso
Times, Inc. v. Kerr, 706 S.W.2d 797, 800 (Tex. App.—El Paso 1986, writ ref’d
n.r.e.) (assertion that assistant United States attorney engaged in “cheating” during
a criminal trial constituted rhetorical hyperbole and was not a defamatory
statement of fact); see also Church of Scientology of Cal. v. Cazares, 638 F.2d
1272, 1288-89 (5th Cir. 1981) (“uncomplimentary” reference to Church of
Scientology as a “rip-off, money motivated operation” was not defamatory under
Florida law); Raczkowski v. Peters, No. 302606, 2012 WL 5853842, at *4 (Mich.
Ct. App. Nov. 13, 2012) (per curiam) (unpublished) (terms “bilked” and “ripped
off” used in television commercial criticizing political candidate were not
defamatory under Michigan law; terms “amounted to ‘rhetorical hyperbole’ or a
‘vigorous epithet’” and represented “‘the language of the rough-and-tumble world
of politics’”) (citations omitted).
The website’s tone and the campaign context of these statements reinforce
our conclusion regarding the ordinarily intelligent person’s perceptions, and the
non-dullard’s understanding that political advertising cannot necessarily be taken
at face value. This tone includes references to “that pesky Texas Constitution,”
7
The Texas Supreme Court subsequently disapproved a separate portion of Gill
addressing the viability of a “false gist” claim under Texas law. See Turner, 38 S.W.3d at 115
(citing Gill, 6 S.W.3d at 43). The disapproved portion of Gill has no bearing on the opinion’s
separate discussion of specific phrases that constituted rhetorical hyperbole.
21
and to Murphy as a “professional politician” and “bureaucrat.” The website’s
analogy between an elected legislator and a character in a famous musical
demonstrates an attempt to deliver a political message about the use of public
money in an exaggerated, provocative and amusing way.
Regardless of whether the attempt actually succeeded, this type of
communication lies “[a]t the heart of the First Amendment” and its “recognition of
the fundamental importance of the free flow of ideas and opinions on matters of
public interest and concern.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50
(1988). “The sort of robust political debate encouraged by the First Amendment is
bound to produce speech that is critical about those who hold public office . . . .”
Id. at 51. The First Amendment’s protection for “statements that cannot
‘reasonably [be] interpreted as stating actual facts’ about an individual” provides
“assurance that public debate will not suffer for lack of ‘imaginative expression’ or
the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of
our Nation.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990) (citing
Hustler Magazine, Inc. 485 U.S. at 50, 53-55); see also Bentley v. Bunton, 94
S.W.3d 561, 580 (Tex. 2002) (referencing constitutional protection of rhetorical
hyperbole arising “in debate over public matters”).
Rehak acknowledges the political context but stresses that the plaintiff here
is not Jim Murphy, the elected public official running for re-election in 2012 who
was targeted by a primary opponent. Rehak argues that this lawsuit is being
pursued by a non-elected individual and his private company because Witt’s
campaign website accused them of “participating in an alleged scheme by her
primary opponent to improperly control and profit from a state agency.” In
essence, Rehak complains that candidate Witt opened her rhetorical fire hose on
Representative Murphy but indiscriminately hit Rehak with the spray.
22
Rehak’s understandable chagrin at his presence on the “How to Succeed”
website does not change our conclusion or diminish the importance of the political
campaign context in which the challenged statements arose. The ordinary reader
would understand that Witt’s vigorous criticism targeted the incumbent elected
official she hoped to unseat in the primary – not Rehak. See Wheeler v. New
Times, Inc., 49 S.W.3d 471, 474-75 (Tex. App.—Dallas 2001, no pet.).
The circumstances here parallel Wheeler, in which a landlord sued for libel
contending that a newspaper article falsely portrayed him as a slumlord. The
appellate court affirmed summary judgment in favor of the newspaper because the
article was not reasonably capable of a defamatory meaning. Id. In so doing, the
court stressed that “the article in this case does not expressly criticize Wheeler.”
Id. at 474. “Rather, the article is critical of Dallas’s urban rehabilitation efforts.”
Id. at 475. “[W]e cannot conclude that a person of ordinary intelligence would
perceive the article as implying that Wheeler manipulated or exploited the [Urban
Rehabilitation Standards Board] . . . for his own benefit.” Id. “Rather, we
conclude the article suggests that it is the URSB and the City of Dallas, not
Wheeler, who are ultimately responsible for the alleged improprieties that are the
focus of the article.” Id. (original emphasis). Wheeler’s conclusion applies with
equal force to a campaign website that mentions a contributor in the course of a
wide-ranging political attack on its main target – the opposing candidate pictured
prominently at the top of the website, whose “run” it is “time to end.”
Rehak’s invocation of a “false gist” theory likewise fails to change the
outcome here. Rehak acknowledges that some statements on the website are true.
Rehak Creative Services, Inc. received and was paid for work it performed for the
Westchase District starting in 2003. Murphy signed some of the documentation
relating to this work. Rehak contributed to Murphy’s campaigns. He contends that
23
material facts nonetheless were omitted because “. . . Rehak and Murphy had not
known each other before RCS bid for work with the Westchase District in 2003;
RCS received the work from the Westchase District as a result of winning the
competitive proposal process; Murphy did not assign or supervise RCS’s work for
the Westchase District . . . .” He emphasizes that “Murphy did not run for the
office in question, and Rehak did not contribute to his campaign, until 2005 – two
years after RCS[] had won approval to do work for the Westchase District.”
Rehak’s “false gist” argument focuses on linked documents that were
accessible on the “How to Succeed” website. Rehak contends: “To continue to
make their misrepresentation . . . the Witts had to ignore the material true facts
contained in those documents, and juxtaposed others, while continuing to include
the references to Rehak and RCS under ‘Step 6’ of the core website.” Rehak
contends that documents linked to the “How to Succeed” website established the
following facts.
Rehak Creative Services, Inc. obtained contracts #1, #2, and #3 in 2003,
before Rehak made his first campaign contribution to Murphy in 2005.
Rehak reported to Westchase District employee Sherry Fox rather than
Murphy.
Contract #4 was approved by Westchase District employee Dave Gilkeson,
not Murphy, after Murphy was elected.
Rehak Creative Services, Inc. worked at market or below-market rates for
Westchase District.
According to Rehak, these facts demonstrate the website’s “false gist” arising from
its suggestion that “Rehak obtained influence over Murphy with campaign
contributions and, then, RCS received work from Murphy through the Westchase
24
District.”
Rehak’s “false gist” argument founders for two related reasons.
First, the linked documents are part of the context that must be taken into
consideration when assessing what the website actually conveyed about Rehak.
See Kaufman, 291 S.W.3d at 146; see also Nicosia v. De Rooy, 72 F. Supp. 2d
1093, 1103 (N.D. Cal. 1991); Sandals Resorts Int’l, Ltd. v. Google, Inc., 925
N.Y.S.2d 407, 416 (N.Y. 2011); Franklin v. Dynamic Details, Inc., 10 Cal. Rptr.
3d 429, 438-39 (Cal. Ct. App. 2004). Website access to linked documents
distinguishes this case from Bentley, in which the host of a public access cable
television program referenced documents that supposedly supported allegations of
corrupt conduct by a local judge but did not make those documents accessible. See
Bentley, 94 S.W.3d at 584 (“Bunton repeatedly insisted that evidence he had seen
but had not disclosed supported his assertions. He had reviewed many public
records, he said, and talked with courthouse employees.”). Rehak argues that here,
as in Bentley, “the Witts asserted that they had obtained factual information that
corroborated their allegations in the Defamatory Post concerning Rehak and RCS,
but the actual information they obtained and posted clearly did not support their
accusation . . . .” In contrast to Bentley, this case does not involve “an implication
of undisclosed facts.” Id. Rather, the disclosed facts are part of the context we
must consider in addressing how a person of ordinary intelligence would perceive
the website’s message.
Second, the context created by these linked documents confirms that a
person of ordinary intelligence would perceive the website’s statements to be
politically flavored hyperbole rather than defamatory assertions of fact. If, as
Rehak contends, the supporting linked documents unmistakably show “the exact
opposite” of the gist he perceives in the website’s text, then the person of ordinary
25
intelligence could be expected to pick up on this clue and conclude that rhetorical
hyperbole is being employed as part of a political campaign during a contested
primary.
Because this record does not contain a minimum quantum of clear and
specific evidence demonstrating that the Witt campaign’s “How to Succeed”
website made defamatory statements of fact about Rehak and Rehak Creative
Services, Inc., dismissal of the libel and business disparagement claims was
appropriate under section 27.005(c).
B. Remaining Claims
1. Tortious interference, emotional distress, and conspiracy
Rehak does not separately discuss the elements of his claims for tortious
interference, intentional infliction of emotional distress, or conspiracy. He
identifies no evidence – clear and specific or otherwise – addressing these
elements.
Additionally, Rehak states as follows in his opening brief: “The underlying
tortious activity that gives rise to each of the Plaintiffs’ causes of action is
defamation – and more specifically libel.” Because the underlying activity at issue
in this case is not tortious given the absence of defamatory statements of fact about
Rehak, the tag-along tort claims predicated on the same website content also fail.
“The same protections which the First Amendment affords defendants from libel
claims also protect them from non-libel claims” based on the same publication.
Provencio v. Paradigm Media, Inc., 44 S.W.3d 677, 682-83 (Tex. App.—El Paso
2001, no pet.). The scope of free speech protection “do[es] not depend on the legal
theory asserted by an inventive plaintiff.” Wavell v. Caller-Times Pub. Co., 809
S.W.2d 633, 635 (Tex. App.—Corpus Christi 1991, writ denied), abrogated on
26
other grounds by Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994); see also
MKC Energy Invs. v. Sheldon, 182 S.W.3d 372, 378 (Tex. App.—Beaumont 2005,
no pet.); KTRK Television v Felder, 950 S.W.2d 100, 107-08 (Tex. App.—Houston
[14th Dist.] 1997, no pet.).
For these reasons, dismissal under section 27.005(c) was proper with respect
to Rehak’s claims for tortious interference with business relationships and
prospective business opportunities, intentional infliction of emotional distress, and
civil conspiracy.
2. Conversion and misappropriation
Rehak contends that the burden never shifted to him to make a prima facie
case under section 27.005(c) because Witt did not satisfy section 27.005(b)’s
threshold requirement to show by a preponderance of the evidence that these two
claims are based on, relate to, or asserted in response to Witt’s exercise of the right
of free speech.
Rehak argues: “The conversion and misappropriation claims do not arise
from the libelous nature of the statements made on the Defamatory Post, but from a
link on that post to a copyrighted page on RCS’ website . . . that contains the logos
of all of RCS’ customers, many of which are registered trademarks that were used
by the Witts without permission.” He continues: “Other than the Westchase
District, none of the other customers whose trademarks were shown on the linked
page were implicated in the Witts’ accusations. Therefore, there was no ‘public
concern’ . . . served or implicated by linking those trademarks to the Defamatory
Post.”
We reject this contention because section 27.005(b)’s inquiry does not focus
on whether the conversion and misappropriation claims arise from the assertedly
27
libelous nature of the website’s statements. The correct analysis focuses on
Chapter 27’s unambiguous words. The statute broadly encompasses a “cause of
action” that “relates to” the movant’s “exercise of . . . the right of free speech.”
Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001(6), 27.005(b)(1). The “[e]xercise of
the right of free speech” encompasses “a communication made in connection with
a matter of public concern,” which includes “an issue related to . . . the government
. . . [or] a public official . . . .” Id. § 27.001(3), (7)(C), (D). “In ordinary use,
‘relates to’ means to have a connection with, to refer to, or to concern.” Tex. Dept.
of Pub. Safety v. Abbott, 310 S.W.3d 670, 674-75 (Tex. App.—Austin 2010, no
pet.).
On this record, we have no difficulty in concluding that section 27.005(b)’s
initial burden is satisfied because Rehak’s causes of action for conversion and
misappropriation have a connection with a “communication” in the form of a
political campaign website that “relates to” the Texas Legislature and an elected
member of that body. Rehak therefore bore the burden to satisfy section
27.005(c)’s requirement of establishing “by clear and specific evidence a prima
facie case for each essential element” of his claims for conversion and
misappropriation.
Rehak cannot satisfy this burden with respect to conversion because
intangible property cannot be converted unless the underlying intangible right has
been merged into a document that has been converted. Express One Int’l, v.
Steinbeck, 53 S.W.3d 895, 901 (Tex. App.—Dallas 2001, no pet.); see also Real
Estate Innovations, Inc. v. Houston Ass’n of Realtors, Inc., 422 F. App’x 344, 350
(5th Cir. 2011), cert. denied, 132 S. Ct. 249 (2011). He likewise cannot satisfy this
burden with respect to damages in connection with his claim for misappropriation.
Rehak contends on appeal that “RCS lost a lucrative business project after one of
28
its clients complained about the misuse of its logo by the Witts.” In his affidavit,
Rehak states: “Recently, Halliburton chose another agency to handle a project that
RCS would normally have handled. The lost fee was $100,000.” This conclusory
assertion does not rise to the level of “clear and specific” evidence sufficient to
make out a prima facie case of damages caused by and attributable to the alleged
misappropriation.
CONCLUSION
We overrule Rehak’s issues and affirm the trial court’s judgment.
/s/ William J. Boyce
Justice
Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
29