Neal Rauhauser v. James McGibney and ViaView, Inc.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00215-CV
NEAL RAUHAUSER APPELLANT
V.
JAMES MCGIBNEY AND VIAVIEW, APPELLEES
INC.
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 067-270669-14
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OPINION
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I. INTRODUCTION
This is an interlocutory appeal under the Texas Citizens’ Participation Act
(TCPA) from the denial by operation of law of a motion to dismiss filed pursuant
to the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.008(a) (West Supp.
2014). Because Appellant Neal Rauhauser, as the party filing the motion to
dismiss, met his burden to show by a preponderance of the evidence that the
legal action against him was based on, was related to, or was in response to his
exercise of free speech; because Appellees James McGibney and ViaView, Inc.
did not attempt to establish by clear and specific evidence a prima facie case for
each essential element of their claims against Rauhauser but instead nonsuited
their claims; and because Rauhauser’s motion to dismiss survived Appellees’
nonsuit, we hold that the trial court erred by permitting Rauhauser’s motion to be
denied by operation of law. See id. § 27.005(a), (b) (West Supp. 2014),
§ 27.008(a). For the reasons set forth below, we will reverse the denial by
operation of law of Rauhauser’s motion to dismiss and remand the case to the
trial court to order dismissal of all claims except ViaView’s business
disparagement claim and tortious interference with business relationships claim
to the extent that those claims are not based on communications by Rauhauser
made in connection with an issue relating to McGibney; to award court costs,
reasonable attorney’s fees, and other expenses incurred by Rauhauser in
defending against Appellees’ suit as justice and equity may require; and to award
sanctions against McGibney, ViaView, or both in an amount that the trial court
determines sufficient to deter them from bringing similar actions. See id. §
27.009 (West Supp. 2014).
2
II. FACTUAL AND PROCEDURAL BACKGROUND
McGibney is the CEO of ViaView and the founder and operator of
ViaView’s websites.1 McGibney has appeared on many television and radio talk
shows to promote “vigilante justice” through ViaView’s websites.
McGibney and ViaView filed suit against Rauhauser––and nine other
defendants who are not parties to this appeal––pleading claims for defamation,
defamation per se, business disparagement, intentional infliction of emotional
distress, tortious interference with business relationships, and other
nondefamation torts. Appellees’ petition attributed the posting of four specific
threats and defamatory statements on ViaView’s websites to a Mr. Retzlaff and
alleged that Rauhauser and the other defendants had “joined with” Mr. Retzlaff
“in this pattern of cyber-stalking, cyber-terrorism, defamation[,] and harassment.”
Appellees alleged that all of the defendants’ postings were verbal acts
specifically directed against McGibney and ViaView and constituted cyberstalking
and harassment and that the defendants had created dozens of sock accounts
on Twitter and Facebook to harass McGibney. Appellees’ pleading sought a
temporary injunction order “that would prohibit and enjoin any . . . [T]witter or
social media statements or blog entries by each and all Defendants that
constitute unlawful verbal acts, or are criminal misconduct . . . .”
1
The websites include www.bullyville.com, www.cheaterville.com,
www.judgeville.com, and several others. The websites provide a forum for users
to publically shame bullies, unfaithful paramours, judges, and others,
respectively, for perceived wrongs.
3
After being sued, Rauhauser filed a motion to dismiss Appellees’ claims
pursuant to the provisions of the TCPA and sought attorney’s fees and sanctions
pursuant to the TCPA. See id. (entitled “Damages and Costs”). Approximately
five hours after Rauhauser filed his motion to dismiss, Appellees filed a notice of
nonsuit, nonsuiting all of their claims against all defendants without prejudice to
refiling them. Appellees’ notice of nonsuit indicated that they had decided to
pursue their claims in federal court in California, and a copy of that petition—
asserting the same claims as the petition in this suit—was attached. A couple of
days later, the trial court signed an order granting Appellees’ motion to dismiss
without prejudice.
Subsequently, Rauhauser filed a supplemental motion to dismiss,
providing an affidavit concerning his attorney’s fees and again requesting
sanctions to deter future similar suits by Appellees. Appellees then filed a plea to
the jurisdiction, plea in abatement, motion to stay, and a reply and a
supplemental reply to Rauhauser’s motion to dismiss. The trial court conducted
a hearing on Rauhauser’s motion to dismiss but failed to sign an order ruling on
the motion, which resulted in the motion being denied by operation of law. See
id. § 27.008(a). Rauhauser timely perfected this interlocutory appeal from the
denial of his motion. See id.
III. RAUHAUSER’S ISSUES
In his first four issues, Rauhauser argues that the trial court erred by failing
to grant his motion to dismiss because he established by a preponderance of the
4
evidence that the suit against him was based on, related to, or was in response
to his exercise of free speech; Appellees failed to marshal clear and specific
evidence of a prima facie case for each element of their claims against him; and
his motion to dismiss survived Appellees’ nonsuit. In his fifth issue, Rauhauser
requests that, if this court holds that the trial court erred by not granting his
motion to dismiss, we render judgment for him on his claim for attorney’s fees
and sanctions.
IV. RAUHAUSER’S TCPA MOTION TO DISMISS SURVIVED APPELLEES’ NONSUIT
We address Rauhauser’s fourth issue first. In that issue, Rauhauser
asserts that the trial court erred by failing to grant his motion to dismiss because
it survived Appellees’ nonsuit.
Under Texas law, parties have an absolute right to nonsuit their own
claims for relief at any time during the litigation until they have introduced all
evidence other than rebuttal evidence at trial. Tex. R. Civ. P. 162; Villafani v.
Trejo, 251 S.W.3d 466, 468–69 (Tex. 2008). Although a plaintiff decides which
of its own claims to pursue or to abandon, that decision does not control the fate
of a nonmoving party’s independent claims for affirmative relief. Tex. R. Civ. P.
162; CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 390
S.W.3d 299, 300–01 (Tex. 2013); Villafani, 251 S.W.3d at 468–69; Klein v.
Dooley, 949 S.W.2d 307, 308 (Tex. 1997).
The law is well-settled that a defendant’s motion to dismiss that may afford
more relief than a nonsuit affords constitutes a claim for affirmative relief that
5
survives a nonsuit, as evidenced by three Texas Supreme Court per curiam
opinions. See, e.g., CTL/Thompson, 390 S.W.3d at 300–01; Villafani, 251
S.W.3d at 468–69; Klein, 949 S.W.2d at 308. CTL/Thompson involved a suit
against a design professional; the Texas Supreme Court held that, despite the
plaintiff’s nonsuit, the defendant design professional was entitled to be heard on
its statutorily-based motion to dismiss, asserting that the plaintiff had failed to file
a certificate of merit and moving for dismissal with prejudice as authorized by the
statute. 390 S.W.3d at 300. Villafani involved a health care liability claim; the
Texas Supreme Court held that, despite the plaintiff’s nonsuit, a health care
provider defendant was entitled to be heard on his statutorily-based motion to
dismiss, asserting that the plaintiff’s expert reports did not satisfy statutory
requirements and moving for dismissal with prejudice and for attorney’s fees as
authorized by the statute. 251 S.W.3d at 470. Klein involved a suit under the
Deceptive Trade Practices Act (DTPA) by homebuyers against the seller and real
estate agents; the Texas Supreme Court explained that, despite the plaintiffs’
nonsuit, the trial court properly heard the DTPA defendants’ statutorily-based
motion, asserting that the DTPA claims were groundless or made in bad faith or
for the purposes of harassment and seeking costs and attorney’s fees as
authorized by the DTPA. 949 S.W.2d at 307. Applying the holdings of these
cases to the present facts, despite Appellees’ nonsuit, Rauhauser was entitled to
be heard on his statutorily-based motion to dismiss seeking dismissal with
prejudice, attorney’s fees, and sanctions; Rauhauser’s motion to dismiss may
6
afford him more relief than the nonsuit and therefore constitutes a claim for
affirmative relief that survives Appellees’ nonsuit. See CTL/Thompson, 390
S.W.3d at 300–01; Villafani, 251 S.W.3d at 468–69; Klein, 949 S.W.2d at 308.
Appellees nonetheless contend that this line of cases should not apply to
the present facts because Rauhauser had not been served with citation when he
filed an answer and the motion to dismiss2 and because Rauhauser was aware
before filing the motion to dismiss that Appellees were going to nonsuit the
present case and to instead include him as a defendant in an almost identical
federal case in California. Appellees point out that they attached a copy of the
California federal court petition to their notice of nonsuit. Appellees also
complain that Rauhauser’s TCPA motion to dismiss is a procedural tactic that he
intends to use to his advantage in the federal lawsuit in California. The truth of
these facts, however, does not alter the applicability of the above cases.
Appellees do not cite, and we have not located, any cases indicating that a
defendant’s choice to file an answer before service of citation, a defendant’s
knowledge of an upcoming nonsuit, a plaintiff’s good faith in filing a nonsuit, or a
defendant’s intent to use a dismissal in another lawsuit against him by the same
plaintiffs are relevant factors in determining whether a defendant’s motion to
2
Rauhauser also filed a special appearance and filed his answer and
motion to dismiss subject thereto.
7
dismiss constitutes a claim for affirmative relief that survives a nonsuit.3 Instead,
when dismissal under a statutory provision enacted for the purpose of deterring
the filing of frivolous lawsuits would grant the defendant moving for dismissal
under that statutory provision more relief than the nonsuit, the defendant’s
dismissal motion survives the nonsuit without regard to the defendant’s
knowledge of the upcoming nonsuit or the plaintiff’s good faith in filing the
nonsuit. See, e.g., Villafani, 251 S.W.3d at 470 (explaining that when purpose of
statutory provision authorizing a motion for dismissal, sanctions, and attorney’s
fees is deterrence of frivolous claims, “[r]emoving a defendant’s ability to appeal
a denial of [the motion for dismissal, sanctions, and attorney’s fees] after a
nonsuit frustrates this purpose; a claimant could simply nonsuit a meritless claim
and later re-file the claim with impunity”).
Because Rauhauser’s statutorily-based motion to dismiss—asserting that
Appellees’ claims were based on, related to, or were in response to his exercise
of free speech and moving for dismissal with prejudice, sanctions, and attorney’s
fees as authorized by the TCPA—constituted a claim for affirmative relief that
survived Appellees’ nonsuit, we sustain Rauhauser’s fourth issue. See
3
We note, however, that these facts may be relevant on remand to the trial
court’s determination and award of “court costs, reasonable attorney’s fees, and
other expenses incurred in defending against the legal action as justice and
equity may require.” See Sullivan v. Abraham, No. 07-13-00296-CV, 2014 WL
5140289, at *1 (Tex. App.—Amarillo Oct. 13, 2014, no pet. h.).
8
CTL/Thompson, 390 S.W.3d at 300–01; Villafani, 251 S.W.3d at 468–69; Klein,
949 S.W.2d at 308.
V. DENIAL OF RAUHAUSER’S MOTION TO DISMISS WAS ERROR
A. The TCPA
The Texas Legislature enacted the TCPA “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 (West Supp.
2014). To achieve these ends, the legislature provided that if a legal action is
brought in response to the party’s exercise of the right of free speech, the right to
petition, or the right of association, that person may move to dismiss the action.
Id. § 27.003(a) (West Supp. 2014). The movant bears the initial burden to show
by a preponderance of the evidence that the action “is based on, relates to, or is
in response to a party’s exercise” of any of the aforementioned constitutional
rights. Id. § 27.005(b). If the movant satisfies this burden, the trial court must
dismiss the legal action unless the party who brought the action “establishes by
clear and specific evidence a prima facie case for each essential element of the
claim in question.” Id. § 27.005(b), (c); see United Food & Commercial Workers
Int’l Union v. Wal-Mart Stores, Inc., 430 S.W.3d 508, 511 (Tex. App.––Fort Worth
2014, no pet.).
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B. Standard of Review
We review de novo a trial court’s ruling on a motion to dismiss under the
TCPA. See United Food, 430 S.W.3d at 511; Rehak Creative Servs., Inc. v. Witt,
404 S.W.3d 716, 724–27 (Tex. App.––Houston [14th Dist.] 2013, pet. denied).
Accordingly, we review de novo whether (1) the movant satisfied the initial
burden imposed by section 27.005(b), and (2) the nonmovant satisfied the
burden imposed by section 27.005(c). In reviewing the trial court’s determination
of whether the burdens imposed by section 27.005(b) and (c) have been met, we
consider the pleadings and supporting and opposing affidavits stating the facts
on which the liability is based. Accord Tex. Civ. Prac. & Rem. Code Ann.
§ 27.006(a) (West Supp. 2014) (requiring the trial court to consider these items);
United Food, 430 S.W.3d at 511; Sierra Club v. Andrews Cnty., 418 S.W.3d 711,
715 (Tex. App.––El Paso 2013, pet. filed).
C. Application of the Law to the Present Facts
In his first, second, and third issues, Rauhauser asserts that the trial court
erred by not granting his motion to dismiss because the statutory requisites for
dismissal were satisfied. We address his first and third issues in turn.4
4
In his second issue, Rauhauser argues that even hateful statements on
matters of public concern do not lose constitutional protection. We need not
address whether Rauhauser’s alleged “terroristic threats” to, “cyber-stalking” of,
and “harassment” of McGibney via online postings constitute protected speech
because Appellees generally plead this conduct (see infra footnote 6) and
because proof of protected speech is not part of a defendant’s initial burden
under section 27.005(b) of the TCPA; instead, a plaintiff may offer proof of
unprotected speech by a defendant as part of the plaintiff’s clear and specific
10
1. Rauhauser Met His Initial Burden Under the TCPA
Rauhauser bore the initial burden on his motion to dismiss to show by a
preponderance of the evidence that Appellees’ action “is based on, relates to, or
is in response to” the exercise of the right to free speech. See Tex. Civ. Prac. &
Rem. Code Ann. § 27.005(b); Sierra Club, 418 S.W.3d at 715. The “[e]xercise of
the right of free speech” is defined as “a communication made in connection with
a matter of public concern.” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3)
(West Supp. 2014). “Communication” is defined as including “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). The phrase “[m]atter
of public concern” is defined as “an issue related to: (A) health or safety; (B)
environmental, economic, or community well-being; (C) the government; (D) a
public official or public figure; or (E) a good, product, or service in the
marketplace.” Id. § 27.001(7).
Rauhauser’s motion to dismiss alleged that McGibney was a public figure.
Accordingly, the motion asserted that any communications Rauhauser had made
concerning McGibney—by virtue of application of the TCPA’s definitions—
constituted communications in connection with a public figure and therefore met
evidence of each essential element of each claim against the defendant. See
Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b), (c); accord In re Lipsky, 411
S.W.3d 530, 543 (Tex. App.––Fort Worth 2013, orig. proceeding [mand.
pending]) (explaining that TCPA’s section 27.005(b)’s initial burden does not
require a defendant to prove that his communication was not false).
11
the TCPA’s definition of the exercise of free speech. Rauhauser’s motion to
dismiss alleged that Appellees had sued him in response to this exercise of free
speech. Rauhauser denied making the four specific statements concerning
McGibney that were alleged in Appellees’ petition to have been made by
“Retzlaff and other Defendants” but pointed out that Appellees had sued him for
“the same, indivisible misconduct as Retzlaff’s misconduct at issue in this case”
and for “this pattern of cyber-stalking, cyber-terrorism, defamation and
harassment.” Rauhauser does not deny posting comments about McGibney; he
denies posting the four comments itemized in Appellees’ pleading as attributed to
“Retzlaff and other Defendants.”
In support of his motion to dismiss, Rauhauser attached affidavits and
evidence. To establish that McGibney was a public figure, Rauhauser attached
affidavit testimony offered on behalf of McGibney in other litigation. The affidavit
was made by an Associate Professor of Advertising and Public Relations and
states that McGibney is the main operator and public face of numerous online
properties owned by ViaView and its subsidiary company, CheaterVille, Inc.; that
McGibney regularly talks to the press about important issues such as bullying
and infidelity; and that McGibney makes regular appearances on behalf of the
internet social media services BullyVille and CheaterVille, including media
appearances on Univision, The Dr. Phil Show, The Anderson Cooper Show, The
Maury Povich Show, Extra!, KSNV My News 3 (Las Vegas’s NBC-affiliate
station), KXTI Fox 40 (Sacramento, California’s FOX–affiliate station), The
12
Huffington Post, The Las Vegas Sun, BetaBeat, and others. Rauhauser also
attached to his motion to dismiss a copy of an online CBS news article. That
article is dated June 4, 2012, and announced that McGibney would be launching
and hosting a new radio show called VocalVille; that the program would air on
CBS radio in Las Vegas and would “stream live to the millions of online Ville fans
across the globe”; and that the program would “allow people to sound off and
speak their minds on numerous topics including bullying, karma, cheating, love,
lust[,] and everyday lifestyle matters.” The article quotes McGibney as thanking
CBS and stating, “When we launched our CheaterVille ad campaign on the CBS
Super Screen in Times Square last year, over 22.5 million people learned about
CheaterVille for the first time[,] and we haven’t looked back since.” The article
ends with the statement, “It’s time for everyone to be heard and say what they
feel, VocalVille – the choice for your voice!” Finally, Rauhauser attached a copy
of an online article discussing a “revenge porn”5 website purchased by McGibney
for the purpose of shutting it down.
Appellees assert that Rauhauser failed to meet his burden of showing by a
preponderance of the evidence that their action against him is based on, is
related to, or is in response to his exercise of free speech for two reasons. First,
Appellees assert that, as a matter of law, chapter 27 does not apply because
5
According to the article, “revenge porn” websites provide a website “where
disgruntled exes upload naked and sexually explicit photos of their former
paramours.” Also according to the article, several states have criminalized such
conduct.
13
Rauhauser denied making the four statements set forth in Appellees’ petition.
Second, Appellees contend that Rauhauser did not show by a preponderance of
the evidence that McGibney is a public figure. We address both of these
contentions.
Appellees first assert that—because the purpose of the TCPA 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—the TCPA cannot apply to protect free speech when the
defendant denies making the statement at issue. See Pickens v. Cordia, 433
S.W.3d 179, 188 (Tex. App.––Dallas 2014, no pet.) (agreeing that “since Michael
denied sending the email, there can be no evidence the lawsuit was related to
Michael’s exercise of free speech and no chapter 27 basis for dismissing the
claim”); see also Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 881
n.16 (Tex. App.––Dallas 2014, no pet.) (relying on Pickens). We agree that a
defendant who denies making any communication may not obtain dismissal by
also simultaneously claiming that he was exercising his right of free speech by
making a communication. See Pickens, 433 S.W.3d at 188. But here,
Rauhauser does not deny making any communication about McGibney; he
denies making the four specific statements itemized in Appellees’ petition, and he
filed Retzlaff’s affidavit, in which Retzlaff denied involvement with Rauhauser. A
review of Appellees’ petition demonstrates that Appellees’ claims against
Rauhauser are not based only on the four statements itemized in Appellees’
14
petition but are also based on other, non-itemized statements in postings and
online activities by Rauhauser concerning McGibney.6 As such, Appellees’
claims against Rauhauser are based on “communications” under the TCPA. See
Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1) (defining “[c]ommunication” as
including “the making or submitting of a statement or document in any form or
medium, including oral, visual, written, audiovisual, or electronic”). We hold that
neither Rauhauser’s assertion that he did not make the four statements listed in
Appellees’ pleading and attributed to Retzlaff, nor Retzlaff’s denial that he was
involved with Rauhauser, preclude application of the TCPA as a matter of law as
claimed by Appellees.
Appellees also assert that Rauhauser failed to meet his burden of showing
by a preponderance of the evidence that their claims against him are based on,
related to, or are in response to his exercise of free speech because Rauhauser
did not show by a preponderance of the evidence that McGibney is a public
figure. The TCPA does not provide a definition for the term “public figure,” so we
look to the technical meaning that the term “public figure” has acquired in First
6
For example, in addition to alleging that all Defendants joined with Retzlaff
in the four itemized statements, Appellees’ petition alleges in a different
paragraph that “Defendants have made multiple terroristic threats against
McGibney, . . . . Defendants are engaging in cyber-stalking and harassment of
McGibney, . . . . Defendants have engaged in blackmail and extortion, . . . .
Defendants’ postings are in fact verbal acts that are specifically intended to
harass, intimidate, [and] annoy . . . [McGibney] . . . .” Appellees also sought
punitive damages “against each and every Defendant, jointly and severally . . . to
deter any future misconduct [the only misconduct alleged is internet postings].”
15
Amendment cases. See Tex. Gov’t Code Ann. § 311.011(b) (West 2013)
(instructing that “[w]ords and phrases that have acquired a technical or particular
meaning, whether by legislative definition or otherwise, shall be construed
accordingly”).
There are two classes of “public figures”: (1) general-purpose public
figures, who are individuals who “achieve such pervasive fame or notoriety that
[they] become[] . . . public figure[s] for all purposes and in all contexts”; and (2)
limited-purpose public figures, who are persons who “thrust themselves to the
forefront of particular public controversies in order to influence the resolution of
the issues involved . . . invit[ing] attention and comment”; who voluntarily “inject[]
[themselves] or [are] drawn into a particular public controversy . . . assum[ing]
special prominence in the resolution of public questions”; and who “thrust
[themselves] into the vortex of [a] public issue . . . [or] engage the public’s
attention in an attempt to influence its outcome.” Klentzman v. Brady, 312
S.W.3d 886, 904–05 (Tex. App.––Houston [1st Dist.] 2009, no pet.) (quoting
Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 351, 352, 94 S. Ct. 2997, 3009,
3012, 3013 (1974)). To determine whether a person is a limited-purpose public
figure, Texas courts apply a three-part test: (1) the controversy at issue must be
public both in the sense that people are discussing it and in the sense that
people other than the immediate participants in the controversy are likely to feel
the impact of its resolution; (2) the plaintiff must have more than a trivial or
tangential role in the controversy; and (3) the alleged defamation must be
16
germane to the plaintiff’s participation in the controversy. WFAA-TV v.
McLemore, 978 S.W.2d 568, 572 (Tex. 1998), cert. denied, 526 U.S. 1051
(1999).
The evidence attached to Rauhauser’s motion to dismiss is sufficient to
show by a preponderance of the evidence—for purposes of meeting the burden
imposed by section 27.005(b) of the TCPA—that McGibney is a limited-purpose
public figure with respect to promoting “vigilante justice” through public, online
disclosures and postings by victims of bullies and cheaters to punish and
humiliate perpetrators. The issues publicized on these websites and the
discussions encouraged are public in the sense that people are discussing them
and are public in the sense that people other than these participants are likely to
feel the impact of resolution of the issues. See, e.g., Pickens, 433 S.W.3d at
185–87 (explaining that evidence supporting defendant’s TCPA motion to
dismiss “suggests” that T. Boone Pickens was a limited-purpose public figure
with respect to energy-related issues). McGibney has more than a trivial or
tangential role in the controversy; he is the founder of the websites and
frequently personally responds to the postings on them. Rauhauser’s evidence
shows that McGibney thrust himself to the forefront of the public controversy of
“vigilante justice”—attained by publically shaming alleged bullies and unfaithful
paramours via postings on BullyVille and CheaterVille, respectively—in part via a
2012 ad campaign on the CBS Super Screen in Times Square where over 22.5
million people learned about CheaterVille for the first time. And by posting his
17
comments and views, McGibney invites public criticism and rebuttal; a person
entering voluntarily into one of the submarkets of ideas and opinions consents to
the rough competition in the marketplace. See McLemore, 978 S.W.2d at 573.
And finally, the defamatory conduct Rauhauser allegedly engaged in is germane
to McGibney’s participation in the controversy; the allegedly defamatory postings
by Rauhauser allegedly occurred on the “ville” websites, primarily BullyVille.
Thus, Rauhauser met his burden to show by a preponderance of the evidence
that McGibney is a limited-purpose public figure with respect to the controversy
of “vigilante justice” attained by victims of bullying and cheating via posting
photos and information about their perpetrators on BullyVille and CheaterVille.
See Vice v. Kasprzak, 318 S.W.3d 1, 15–16 (Tex. App.––Houston [1st Dist.]
2009, pet. denied) (explaining that plaintiff met all three prongs of the limited-
purpose public-figure test); accord Pickens, 433 S.W.3d at 187 (explaining that
defendant met his initial burden under the TCPA of establishing the first two
prongs of the three-part, limited-purpose public-figure test but failed to establish
the third prong—that the allegations in the lawsuit were germane to T. Boone’s
participation in the energy controversy). We hold that Rauhauser met his burden
under section 27.005(b) of the TCPA of establishing by a preponderance of the
evidence that McGibney is a limited-purpose public figure.7 See Tex. Civ. Prac.
7
Our holding that Rauhauser established that McGibney is a limited-
purpose public figure is a narrow one. We express no opinion on whether a
different conclusion on McGibney’s public-figure status could be reached in a trial
on the merits. We hold only that for purposes of meeting his initial burden under
18
& Rem. Code Ann. § 27.005(b). Therefore, all “communications” made by
Rauhauser in connection with an issue related to McGibney, as a limited-purpose
public figure, fall within the TCPA’s definition of “[e]xercise of the right of free
speech.” See id. § 27.001(1) (defining “[c]ommunication” as the submitting of a
statement in any medium); § 27.001(7)(D) (defining “[m]atter of public concern” to
include an issue related to a public figure); § 27.001(3) (defining “[e]xercise of the
right of free speech” to mean a “communication made in connection with a matter
of public concern”). Having addressed Appellees’ contentions that Rauhauser
failed to meet his initial burden under section 27.005(b) of the TCPA and having
reviewed the record before us de novo, we hold that Rauhauser established by a
preponderance of the evidence that McGibney’s claims against him are based
on, are related to, or are in response to his exercise of free speech, and we
sustain in part Rauhauser’s first issue. Accord id. § 27.005(b); United Food, 430
S.W.3d at 511.
Appellees argue that even if Rauhauser established by a preponderance of
the evidence that McGibney is a public figure, Rauhauser did not attempt to
establish ViaView’s public-figure status. We agree that Rauhauser did not
attempt to establish ViaView’s public-figure status; in fact, Rauhauser’s motion to
dismiss affirmatively states that ViaView is not a public figure. Consequently, to
section 27.005(b) of the TCPA, Rauhauser established by a preponderance of
the evidence that McGibney is a limited-purpose public figure with respect to the
issue of “vigilante justice” promoted on the BullyVille and CheaterVille websites.
See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b).
19
the extent that ViaView asserts claims against Rauhauser for damages arising
from communications other than communications in connection with an issue
related to McGibney, Rauhauser has failed to establish by a preponderance of
the evidence that those claims were based on his exercise of the right of free
speech. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1), (3), (7). ViaView’s
claim for business disparagement and for tortious interference with business
relationships are the only two such claims pleaded; in those claims, ViaView
alleges that “Defendants consistently and habitually disparage the business of
ViaView through false statements, outright lies, and accusations of misconduct
by ViaView and its website that have no basis in fact.” ViaView alleges that
“Defendants’ tortious business disparagement and interference with ViaView’s
business relationships have proximately caused ViaView substantial actual
business losses and pecuniary damages,” including the loss of advertisers on
BullyVille. To the extent that ViaView’s claims against Rauhauser for business
disparagement and for tortious interference with business relationships are not
based on alleged communications by Rauhauser made in connection with an
issue related to McGibney, Rauhauser did not establish by a preponderance of
the evidence that these claims by ViaView were based on, were related to, or
were in response to his exercise of free speech as required to meet his initial
burden under section 27.005(b). See id. § 27.005(b). We overrule Rauhauser’s
first issue in part.
20
2. Appellees Did Not Meet Their Burden Under the TCPA
Once Rauhauser met his initial burden under the TCPA concerning the
claims against him that are based on communications by Rauhauser made in
connection with an issue related to McGibney, the trial court was required to
dismiss those claims unless Appellees established by clear and specific evidence
a prima facie case for each essential element of the claims in question. See id.
§ 27.005(b), (c); United Food, 430 S.W.3d at 511. Appellees did not attempt to
meet this burden in the trial court; instead, Appellees asserted through the filing
of a reply to Rauhauser’s motion to dismiss and through the filing of various other
documents in the trial court that Rauhauser’s motion to dismiss did not survive
the nonsuit, that the trial court lacked jurisdiction over Rauhauser’s motion to
dismiss after the nonsuit because the controversy between the parties was moot,
that Rauhauser had knowledge of the upcoming nonsuit when he filed his motion
to dismiss, that Appellees had nonsuited their claims in good faith, and that the
trial court should stay the motion to dismiss in light of the federal suit in
California.8 Likewise, Appellees’ brief does not assert that Appellees met this
burden. Accordingly, we hold that although Appellees urged the trial court to
dismiss, deny, or stay Rauhauser’s motion to dismiss for numerous reasons, they
did not meet their burden under the TCPA to establish by clear and specific
8
Appellees also asserted that Rauhauser had not met his initial burden
under the TCPA; we have addressed Appellees’ arguments related to whether
Rauhauser met his initial burden in the preceding section of this opinion.
21
evidence a prima facie case for each essential element of their claims against
Rauhauser. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); United Food,
430 S.W.3d at 511. The trial court was therefore required to dismiss all claims
based on communications by Rauhauser made in connection with an issue
related to McGibney. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b); Shipp
v. Malouf, 439 S.W.3d 432, 442 (Tex. App.––Dallas 2014, pet. filed) (rendering
judgment of dismissal because defendant established the action was based on or
related to his exercise of his right of free speech, but the plaintiffs failed to
establish by clear and specific evidence a prima facie case for each essential
element of their claims). We sustain Rauhauser’s third issue.
VI. REMAND OF RAUHAUSER’S CLAIM FOR ATTORNEY’S FEES AND SANCTIONS
In his fifth issue, Rauhauser argues that if this court determines that the
trial court erred by not granting his motion to dismiss, we should render judgment
for him on his claim for attorney’s fees and sanctions pursuant to section 27.009
of the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.009. He claims that
he attached uncontested evidence of attorney’s fees and sanctions to the
supplement to his motion to dismiss.
Section 27.009 provides, in pertinent part:
(a) If the court orders dismissal of a legal action under this chapter,
the court shall award to the moving party:
(1) court costs, reasonable attorney’s fees, and other
expenses incurred in defending against the legal action as justice
and equity may require; and
22
(2) 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.
Id. § 27.009(a). This section requires a trial court to award court costs, attorney’s
fees, and other expenses incurred in defending the legal action as justice and
equity may require. Id. § 27.009(a)(1). Although an award of costs, attorney’s
fees, and expenses is mandatory under this section, the sums awarded can be
no more than what is reasonable and may be less than that in view of pertinent
considerations of justice and equity. Sullivan, 2014 WL 5140289, at *2.
Likewise, the trial court’s obligation to award a sanction against the party who
brought a legal action that is dismissed under the TCPA is mandatory. Id. at *4–
5 (remanding section 27.009 dismissal order to trial court to impose sanction).
But the trial court possesses discretion to determine the sanction amount that is
required to deter the party who brought the legal action from bringing similar
actions in the future. Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(2).
Because section 27.009’s mandatory provisions requiring an award of court
costs, attorney’s fees, expenses, and sanctions nonetheless require the trial
court to exercise its discretion to determine the amount of court costs, attorney’s
fees, and other expenses that justice and equity require to be awarded and the
amount of sanctions sufficient to deter the party who brought the legal action
from bringing similar actions, and because the trial court here has not had the
opportunity to make these determinations, we must remand the case to the trial
court for entry of an order of dismissal and for purposes of compliance with
23
section 27.009(a)(1) and (2). See Schimmel v. McGregor, 438 S.W.3d 847, 863
(Tex. App.––Houston [1st Dist.] 2014, no pet. h.) (reversing trial court’s order
denying motion to dismiss under the TCPA and remanding the case to the trial
court for further proceedings consistent with section 27.009(a)); Shipp, 439
S.W.3d at 442 (same); Young v. Krantz, 434 S.W.3d 335, 344–45 (Tex. App.––
Dallas 2014, no pet.) (same); Farias v. Garza, 426 S.W.3d 808, 820 (Tex. App.––
San Antonio 2014, pet. filed) (same); Avila v. Larrea, 394 S.W.3d 646, 662 (Tex.
App.––Dallas 2012, pet. denied) (same).
Appellees argue that Rauhauser is not entitled to attorney’s fees and
sanctions because a party moving for dismissal is eligible for an award of
attorney’s fees and sanctions only after a trial court grants a dismissal and orders
dismissal. Appellees point out that no order granting dismissal exists in this
case; Rauhauser’s motion for dismissal was denied by operation of law.
Because we have held that Rauhauser met his initial burden under the TCPA
concerning the claims against him that are based on communications by him
made in connection with an issue related to McGibney, because Appellees filed a
nonsuit instead of attempting to establish by clear and specific evidence a prima
facie case for each essential element of those claims, because Rauhauser’s
motion to dismiss survives Appellees’ nonsuit, and because this case is
remanded to the trial court for entry of an order of dismissal, Rauhauser is
eligible for an award of costs, attorney’s fees, expenses, and sanctions. See
Tex. Civ. Prac. & Rem. Code Ann. § 27.009.
24
We overrule Rauhauser’s fifth issue requesting that we render judgment
for him for costs, attorney’s fees, expenses incurred, and sanctions.
VII. CONCLUSION
Having sustained Rauhauser’s first issue in part and his third and fourth
issues, having overruled his fifth issue, and having determined that we need not
address his second issue, we reverse the denial by operation of law of
Rauhauser’s motion to dismiss under the TCPA as to all McGibney’s claims
against Rauhauser and as to all ViaView’s claims against Rauhauser that are
based on alleged communications made by Rauhauser in connection with an
issue related to McGibney. To the extent that ViaView’s claims against
Rauhauser for business disparagement and for tortious interference with
business relationships are not based on alleged communications made by
Rauhauser in connection with an issue related to McGibney, Rauhauser has
failed to meet his section 27.005(b) burden to obtain dismissal under the TCPA
of those claims. We remand this case to the trial court to enter an order of
dismissal in accordance with this opinion and for further proceedings relating to
Rauhauser’s court costs, attorney’s fees, expenses, and sanctions under section
27.009(a)(1) and (2) of the TCPA.
PER CURIAM9
DELIVERED: December 11, 2014
9
Pursuant to rule 2, the requirements of rule 47.2(a) are suspended from
operation in this case. See Tex. R. App. P. 2, 47.2(a).
25