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.

----------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 067-270669-14

----------

OPINION

----------

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.).

9
 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