ACCEPTED
06-13-00051-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
8/3/2015 12:31:05 PM
DEBBIE AUTREY
CLERK
No. 06-13-00051-CV
RECEIVED IN
In the Court of Appeals for the 6th COURT OF APPEALS
TEXARKANA, TEXAS
Sixth Judicial District at Texarkana, Texas
8/3/2015 12:31:05 PM
DEBBIE AUTREY
Clerk
W ARREN W HISENHUNT ,
Appellant/Cross-Appellee,
v.
M ATTHEW L IPPINCOTT and C REG P ARKS ,
Appellees/Cross-Appellants.
On Appeal from the County Court at Law of Hopkins County, Texas
Cause No. CV41303
APPELLANT/CROSS-APPELLEE’S BRIEF ON REMAND
Farbod Farnia
State Bar No. 24078493
ffarnia@mccathernlaw.com
MCCATHERN, PLLC
3710 Rawlings, Suite 1600
Dallas, TX 75219
Phone: (214) 741-2662
Fax: (214) 741-4717
Appellant/Cross-Appellee
RECORD REFERENCES
Throughout this Brief, references to the record and other documents
on file with this Court will be cited as follows:
Clerk’s Record – “CR [page no.]”
Reporter’s Record – “RR [page no.]:[line no.]”
Supplemental Reporter’s Record – “SRR [page no.]:[line no.]”
Appellees’ Brief on Remand – “Remand Br., at [page no.]”
Whisenhunt’s Appellant’s Brief – “App. Br., at [page no.]”
Appellees’ Response Brief – “Resp. Br., at [page no.]”
Whisenhunt’s previous Reply Brief – “Reply Br., at [page no.]”
Cross-Appellants’ Brief – “Cross Br., at [page no.]”
Whisenhunt’s Cross-Response Brief – “Cross Resp., at [page no.]”
ii
TABLE OF CONTENTS
Record References ........................................................................................ii
Table of Contents ........................................................................................iii
Index of Authorities ...................................................................................... v
Summary of the Argument ............................................................................ 1
Argument and Authorities ............................................................................ 3
I. For the Purposes of the TCPA, Pleadings Are Evidence. ............... 3
II. To Determine Whether Whisenhunt Met his Prima Facie
Burden, this Court Should Review the Facts in the Light
Most Favorable to Whisenhunt. ..................................................... 7
III. Appellees Misstate the Elements of Defamation. ...........................8
IV. The TCPA’s Commercial-Speech Exemption Requires
Proof of Only Two Elements. ....................................................... 13
A. The development (and awkwardness) of the
commercial-speech exemption highlights the
differences between Texas and California. ........................... 14
B. Not every element of the California commercial-
speech exemption applies under the TCPA ......................... 17
1. First element: both exemptions require the
defendant to be primarily engaged in the
business of selling or leasing goods or services. ............ 19
2. Second element: both exemptions require a
connection between the lawsuit and the
defendant’s speech, but from there they
diverge. ........................................................................20
iii
3. Third element: the California exemption
requires proof of the defendant’s mental state,
but the TCPA exemption does not. .............................. 25
4. Fourth element: both the California and the
TCPA exemptions require proof of an intended
audience, but they differ with respect to the
scope of its applicability. .............................................. 26
C. The TCPA commercial-speech exemption requires
proof only of a commercial speaker and commercial
speech. ................................................................................. 32
V. The Trial Court Erred in Denying Whisenhunt’s Motion
for Limited Discovery. ................................................................. 33
VI. This Court Should Remand to Allow Whisenhunt to
Replead. .......................................................................................40
Conclusion and Prayer ................................................................................ 45
Certificate of Compliance ........................................................................... 46
Certificate of Service................................................................................... 46
iv
INDEX OF AUTHORITIES
S TATUTES AND R EGULATIONS
Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973) .............................. 15, 27, 37
Acts 2013, 83rd Leg., R.S., Ch. 1042 (H.B. 2935) ........................................ 37
CAL. CIV. P. CODE § 425.17......................................................................... 23
TEX CIV. PRAC. & REM. CODE § 27.001 .................................................. 16, 17
TEX CIV. PRAC. & REM. CODE § 27.005 ....................................................... 16
TEX. CIV. PRAC. & REM. CODE § 27.004 ...................................................... 37
TEX. CIV. PRAC. & REM. CODE § 27.006 .............................................. 6, 8, 34
TEX. CIV. PRAC. & REM. CODE § 27.010 .......................... 19, 23, 25, 29, 31, 32
TEX. CIV. PRAC. & REM. CODE § 73.005 ...................................................... 39
Tex. H.B. 2973, 82nd Leg., R.S., § 3 (2011) ........................................... 15, 16
TEX. R. APP. P. 60.2 ................................................................................... 42
TEX. R. EVID. 101 ......................................................................................... 6
T EXAS S UPREME C OURT C ASES
Cardiac Perfusion Services, Inc. v. Hughes,
436 S.W.3d 790 (Tex. 2014) ................................................................... 42
City of Dallas v. VSC, LLC,
347 S.W.3d 231 (Tex. 2011) .................................................................... 44
Dallas County Cmty. Coll. Dist. v. Bolton,
185 S.W.3d 868 (Tex. 2005) .................................................................... 34
v
Gray v. McFarland,
29 Tex. 163 (1867) .................................................................................. 44
Hamrick v. Ward,
446 S.W.3d 377 (Tex. 2014) .................................................................... 43
Hancock v. Variyam,
400 S.W.3d 59 (Tex. 2013) ....................................................................... 9
Harrell v. Houston,
66 Tex. 278, 17 S.W. 731 (1886) .............................................................. 42
Iliff v. Iliff,
339 S.W.3d 74 (Tex. 2011) ................................................................. 34, 40
In re Alford Chevrolet-Geo,
997 S.W.2d 173 (Tex. 1999) ..................................................................... 34
In re Am. Home Assur. Co.,
88 S.W.3d 370 (Tex. App.—Texarkana 2002, no pet.) ............................ 34
In re Doe 2,
19 S.W.3d 278 (Tex. 2000) ...................................................................... 43
In re Lipsky,
460 S.W.3d 579 (Tex. 2015) .......................... 4, 7, 8, 9, 10, 11, 12, 13, 35, 41
Lippincott v. Whisenhunt,
No. 13-0926, 2015 WL 1967025 (Tex. Apr. 24, 2015) ............... 3, 24, 25, 31
Ludwig v. State,
931 S.W.2d 239 (Tex. Crim. App. 1996) .................................................. 27
Mission Consol. Indep. Sch. Dist. v. Garcia,
372 S.W.3d 629 (Tex. 2012) ................................................................... 44
Morrow v. Shotwell,
477 S.W.2d 538 (Tex. 1972) .................................................................... 42
vi
State v. Shumake,
199 S.W.3d 279 (Tex. 2006) ................................................................... 28
Stracener v. United Servs. Auto. Ass’n,
777 S.W.2d 378 (Tex. 1989) ............................................................... 27, 28
Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) ...................................................................... 8
Texas Mut. Ins. Co. v. Ledbetter,
251 S.W.3d 31 (Tex. 2008) ..................................................................... 44
Timpte Indus., Inc. v. Gish,
286 S.W.3d 306 (Tex. 2009) ................................................................... 44
Univ. of Texas Sw. Med. Ctr. at Dallas v. Estate of Arancibia ex rel.
Vasquez-Arancibia,
324 S.W.3d 544 (Tex. 2010) ................................................................... 44
Valenzuela v. Aquino,
853 S.W.2d 512, 514 (Tex. 1993) ............................................................. 42
Walker v. Gutierrez,
111 S.W.3d 56 (Tex. 2003) ....................................................................... 33
WFAA-TV, Inc. v. McLemore,
978 S.W.2d 568 (Tex. 1998) ..................................................................... 9
Yowell v. Piper Aircraft Corp.,
703 S.W.2d 630 (Tex. 1986) .............................................................. 34, 40
T EXAS C OURTS OF A PPEALS C ASES
Avila v. Larrea,
394 S.W.3d 646 (Tex. App.—Dallas 2012, pet. denied)........................... 38
vii
Backes v. Misko,
No. 05-14-00566-CV, 2015 WL 1138258 (Tex. App.—Dallas
Mar. 13, 2015, no pet.) ......................................................................... 5, 18
Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Sers., Inc.,
441 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied) ....................................................................................................30
Bilbrey v. Williams,
No. 02-13-00332-CV, 2015 WL 1120921 (Tex. App.—Fort
Worth Mar. 12, 2015, no. pet. h.) ..................................................... 4, 6, 35
Cheniere Energy, Inc. v. Lotfi,
449 S.W.3d 210 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ............. 14
Cruz v. Van Sickle,
452 S.W.3d 503 (Tex. App.—Dallas 2014, no pet. h.) ......................... 4, 28
Dial v. Wilke,
127 S.W.2d 379 (Tex. Civ. App.—Amarillo 1939 writ ref’d).................... 41
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, no pet.) ........................................................... 38
Fitzmaurice v. Jones,
417 S.W.3d 627 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ............ 8
In re Avila,
No. 05-12-00094-CV, 2012 WL 215141 (Tex. App.—Dallas Jan.
24, 2012, no pet.) ..................................................................................... 38
In re Sierra Club,
No. 08-12-00282-CV, 2012 WL 5949789 (Tex. App.—El Paso
Nov. 28, 2012, no pet.) ............................................................................ 38
Jennings v. WallBuilder Presentations, Inc. ex rel. Barton,
378 S.W.3d 519 (Tex. App.—Fort Worth 2012, pet. denied) ................... 38
viii
Kinney v. BCG Attorney Search, Inc.,
No. 03-12-00579-CV, 2014 WL 1432012 (Tex. App.—Austin
Apr. 11, 2014, pet. denied) ........................................................... 18, 23, 24
Klentzman v. Brady,
312 S.W.3d 886 (Tex. App.—Houston [1st Dist.] 2009, no pet.) ........ 11, 39
KSNG Architects, Inc. v. Beasley,
109 S.W.3d 894 (Tex. App.—Dallas 2003, no pet.) ................................ 42
Lipsky v. Range Prod. Co.,
No. 02-12-00098-CV, 2012 WL 3600014 (Tex. App.—Fort
Worth Aug. 23, 2012, pet. denied) (dismissing appeal for want of
jurisdiction) ............................................................................................. 38
Martin v. Bravenec,
No. 04-14-00483-CV, 2015 WL 2255139 (Tex. App.—San
Antonio May 13, 2015, no. pet. h.) ............................................................. 5
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
416 S.W.3d 71 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied) ............................................................................... 8, 15, 18, 21, 24
Neyland v. Thompson,
No. 03-13-00643-CV, 2015 WL 1612155 (Tex. App.—Austin
Apr. 7, 2015, no pet.) ................................................................................. 5
Park v. Escalera Ranch Owners’ Ass’n, Inc.,
457 S.W.3d 571 (Tex. App.—Austin 2015, no pet.) ................................. 43
Reyna v. Baldridge,
No. 04-14-00740-CV, 2015 WL 4273265 (Tex. App.—San
Antonio July 15, 2015, no. pet. h.) .............................................................. 5
Schimmel v. McGregor,
438 S.W.3d 847 (Tex. App.—Houston [1st Dist.] 2014 pet.
denied) .............................................................................................. 18, 30
ix
Serafine v. Blunt,
No. 03-12-00726-CV, 2015 WL 3941219 (Tex. App.—Austin
June 26, 2015, no. pet. h.) .................................................................... 4, 14
Texas Allergy, Asthma & Immunology Soc’y v. United Biologics, LLC,
No. 03-12-00008-CV, 2012 WL 5494282 (Tex. App.—Austin
Nov. 8, 2012, no pet.) .............................................................................. 38
United Copper Indus., Inc. v. Grissom,
17 S.W.3d 797 (Tex. App.—Austin 2000, pet dism’d) .................35, 37, 40
Williams v. Bank One, Texas, N.A.,
15 S.W.3d 110 (Tex. App.—Waco 1999, no pet.) ..................................... 33
F EDERAL C ASES
Charalambopoulos v. Grammer,
No. 3:14-CV-2424-D, 2015 WL 390664 (N.D. Tex. Jan. 29,
2015) ....................................................................................................... 36
Lamons Gasket Co. v. Flexitallic L.P.,
9 F. Supp. 3d 709 (S.D. Tex. 2014) .................................................... 18, 21
NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C.,
745 F.3d 742 (5th Cir. 2014) .............................................................. 21, 22
Ohralik v. Ohio State Bar Ass’n,
436 U.S. 447 (1978) ................................................................................. 31
Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503 (1969) ................................................................................. 17
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, Inc.,
425 U.S. 748 (1976) ................................................................................. 31
x
O THER S TATE C ASES
Brill Media Co., LLC v. TCW Group, Inc., 132 Cal. App. 4th 324, 33
Cal. Rptr. 3d 371 (2005) ...........................................................................30
Simpson Strong–Tie Co., Inc. v. Gore,
230 P.3d 1117 (Cal. 2010) ........................................ 15, 17, 18, 20, 21, 23, 25
S ECONDARY S OURC ES
BLACK’S LAW DICTIONARY (10th ed. 2014) .......................................... 12, 35
xi
SUMMARY OF THE ARGUMENT
First, Whisenhunt will once again counter Appellees’ charge that his
pleadings do not count as evidence. Last time he and Appellees were before
this Court, this issue was unresolved in Texas. Now, however, there is ample
guidance from other courts to add to the fact that the plain language of the
TCPA requires courts to consider pleadings as evidence.
Second, Whisenhunt will clarify the standard of review by which this
Court should review his evidence. Whisenhunt again asks this Court to adopt
the standard of review applied by the First and Fourteenth Courts of Appeals
and review the pleadings and evidence in the light most favorable to him.
Third, Whisenhunt will show that his interpretation of the commercial-
speech exemption has been vindicated, and his burden to show that his claims
are exempt from the TCPA’s protections is not as onerous as Appellees
initially argued.
Fourth, Whisenhunt will show why the Trial Court erred in refusing his
request for limited discovery. Specifically, Whisenhunt requested limited
discovery, showed what issues he needed discovery for, and explained his
good-cause basis for it. As such, the Trial Court’s refusal was an abuse of
1
discretion, and this Court should remand with instructions to allow
Whisenhunt to take limited discovery.
Finally, Whisenhunt will explain why remand is appropriate in light of
recent rulings by the Texas Supreme Court. In Lipsky, the Court held that the
TCPA establishes a pleading standard. That being the case, Whisenhunt was
deprived of an opportunity to appropriately plead his case. Therefore, in the
interest of justice, this Court should remand to allow Whisenhunt to replead.
2
ARGUMENT AND AUTHORITIES
On April 24, 2015, the Texas Supreme Court reversed this Court’s
opinion that the TCPA requires speech to be publicly communicated.1 It also
held that Appellees established the applicability of the TCPA, and remanded
the case to this Court to consider “among other matters, whether Whisenhunt
met the prima facie burden the Act requires.”2
Whisenhunt files this Brief to discuss developments in the law since this
appeal was last before this Court. To the extent necessary, Whisenhunt
incorporates herein his prior briefing, including his Appellant’s Brief, his
Appellant’s Reply Brief, and his Cross-Appellee’s Response Brief.
I. F OR THE P URPOSES OF THE TCPA, P LEADINGS A RE E VIDENCE .
As they did in their initial briefing before this Court, Appellees again
raise their argument that “pleadings should not be considered as evidence.”3
They point out that the supreme court in Lipsky “did not explicitly hold that
1 Lippincott v. Whisenhunt, No. 13-0926, 2015 WL 1967025, at *2 (Tex. Apr. 24, 2015).
2 Id.
3 Remand Br. 21.
3
pleadings can be considered as ‘evidence.’”4 They cite Lipsky, along with a
slew of other cases, where courts considered affidavits and other documents
in deciding a TCPA motion.5 The problem is that these cases do not resolve
the issue. Of course there are cases in which courts consider affidavits as
evidence; the TCPA requires them to. The real question is whether there are
courts that consider pleadings as evidence.
Contrary to Appellees’ position, several have expressly held that
pleadings are to be considered as evidence under the TCPA, including one
cited by Appellees. In Serafine v. Blunt, the Third Court of Appeals expressly
held, “[u]nder Section 27.006 of the Act, the trial court may consider
pleadings as evidence.”6 Similarly, in Martin v. Bravenec, the Fourth Court of
Appeals held, “unlike other types of cases where pleadings are not considered
4 Id.
5Id. at 21–24 (citing In re Lipsky, 460 S.W.3d 579, 592 (Tex. 2015); Serafine v. Blunt, No.
03-12-00726-CV, 2015 WL 3941219, at *4 (Tex. App.—Austin June 26, 2015, no. pet. h.);
Bilbrey v. Williams, No. 02-13-00332-CV, 2015 WL 1120921, at *12 (Tex. App.—Fort
Worth Mar. 12, 2015, no. pet. h.); Cruz v. Van Sickle, 452 S.W.3d 503, 523 (Tex. App.—
Dallas 2014, no pet. h.)).
6 Serafine, 2015 WL 3941219, at *4.
4
evidence, [under Section 27.006], we may consider the [non-movant’s]
pleadings as evidence in this case.”7
Not only have courts expressly rejected Appellees’ position, they have
applied it to the non-movant’s prima facie burden. For example, in Reyna, the
Fourth Court of Appeals held that the non-movant presented clear and
specific evidence regarding actual malice (to prove her defamation claim) in
her “pleadings and affidavits.”8 Further, in Neyland, the Third Court of
Appeals held that the non-movant’s “pleadings and affidavit testimony
establish that she performed property management services to the HOA.”9
And in Backes, the Fifth Court of Appeals considered, without striking for lack
of evidentiary support, the non-movant’s reliance on “her original petition”
that the movant was her competitor.10 Finally, in Bilbrey, the Second Court of
7Martin v. Bravenec, No. 04-14-00483-CV, 2015 WL 2255139, at *7 (Tex. App.—San
Antonio May 13, 2015, no. pet. h.).
8Reyna v. Baldridge, No. 04-14-00740-CV, 2015 WL 4273265, at *6 (Tex. App.—San
Antonio July 15, 2015, no. pet. h.).
9Neyland v. Thompson, No. 03-13-00643-CV, 2015 WL 1612155, at *4 (Tex. App.—Austin
Apr. 7, 2015, no pet.).
10 Backes v. Misko, No. 05-14-00566-CV, 2015 WL 1138258, at *11 (Tex. App.—Dallas Mar.
13, 2015, no pet.).
5
Appeals held that the plaintiff failed to carry his prima facie burden in part
because the context of the allegedly defamatory statements were provided in
“neither [his] petition nor his affidavit.”11
Moreover, Appellees wholly ignore the plain language of the TCPA.
Under the heading “EVIDENCE,” the TCPA directs a trial court to consider
“the pleadings and supporting and opposing affidavits stating the facts on
which the liability or defense is based.”12 In other words, the TCPA requires
courts to consider the factual statements in pleadings as evidence. And there
can be no real question that the Legislature has the power to modify the rules
of evidence for determining TCPA motions.13
In sum, the plain language of the TCPA and the body of case law
construing it require—clearly, expressly, and unequivocally—that courts
treat the non-movant’s pleadings as evidence to determine whether he met his
prima facie burden.
11 Bilbrey, 2015 WL 1120921, at *12.
12 TEX. CIV. PRAC. & REM. CODE § 27.006(a).
13 See TEX. R. EVID. 101(d) (“Despite these rules, a court must admit or exclude evidence
if required to do so by . . . a federal or Texas statute.”)
6
II. T O D ETERMINE WHETHER W HISENHUNT M ET HIS P RIMA F ACIE
B URDEN , THIS C OURT S HOULD R EVIEW THE F ACTS IN THE
L IGHT M OST F AVORABLE TO W HISENHUNT .
Not only must this Court treat Whisenhunt’s pleadings as evidence, but
it must also treat his factual allegations as true and resolve all doubts and
inferences in his favor. Under the TCPA, once the movant meets his burden
to invoke the TCPA’s protections, the burden shifts to the non-movant to
“establish[] by clear and specific evidence a prima facie case for each essential
element of the claim in question.”14 Prima facie means “evidence sufficient as
a matter of law to establish a given fact if it is not rebutted or contradicted.”15
That is, prima facie refers to “the minimum quantum of evidence necessary
to support a rational inference that the allegation of fact is true.”16 The phrase
“clear and specific evidence” refers to “the clarity and detail required to
avoid dismissal.”17
14 TEX. CIV. PRAC. & REM. CODE § 27.005(c).
15 Lipsky, 460 S.W.3d at 590.
16 Id. (internal quotations omitted).
17 Id.
7
As explained above, the TCPA allows the non-movant to make this
showing with its pleadings and evidence.18 On appeal, this Court must “review
the pleadings and evidence in a light favorable” to the non-movant.19 This
means “tak[ing] as true all evidence favorable to the nonmovant” and
“indulg[ing] every reasonable inference and resolv[ing] any doubts in the
nonmovant’s favor.”20
Whisenhunt respectfully requests that the Court use this standard of
review in determining whether Whisenhunt established a prima facie case for
each of his causes of action.
III. A PPELLEES M ISSTATE THE E LEMENTS OF D EFAMATION .
The elements of defamation are that: (1) the defendant 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,
18 TEX. CIV. PRAC. & REM. CODE § 27.006(a).
19Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80-81 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied) (citing Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 227 (Tex. 2004)); Fitzmaurice v. Jones, 417 S.W.3d 627, 632
(Tex. App.—Houston [14th Dist.] 2013, no pet.) disapproved of on other grounds by
Lipsky, 460 S.W.3d at 588.
20 Miranda, 133 S.W.3d at 228.
8
or negligence, if the plaintiff was a private individual, regarding the truth of
the statement.21 There are three ways in which Appellees are wrong about the
elements of defamation and Whisenhunt’s required proof.
First, Appellees place heavy reliance on this statement from the Lipsky
opinion: “In a defamation case that implicates the TCPA, pleadings and
evidence that establishes the facts of when, where, and what was said, the
defamatory nature of the statements, and how they damaged the plaintiff
should be sufficient to resist a TCPA motion to dismiss.”22 They claim that
these facts are “required” under Lipsky.23 In doing so, Appellees commit the
classic fallacy of confusing what is sufficient with what is necessary. Just
because making these showings might be sufficient does not mean that every
plaintiff in every defamation case must make each showing. Rather, a court
must determine whether a statement is defamatory “from the perspective of
an ordinary reader in light of the surrounding circumstances.”24
21 WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).
22 Lipsky, 460 S.W.3d at 591.
23 Remand Br. 19.
24 Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013).
9
Here, the facts in Whisenhunt’s pleadings and evidence, together with
the inferences drawn from those facts, were more than sufficient to meet the
low threshold of a prima facie burden. Indeed, Whisenhunt showed what
statements Appellees made.25 He showed to whom the statements were
made.26 He showed when the statements were made.27 And he showed the
defamatory nature of the statements.28
Second, Appellees claim that Whisenhunt failed to prove that their
allegedly defamatory statements were false.29 Courts often list the first
element as requiring a “false statement of fact,” implying that the plaintiff
must not only prove that the defendant published the statement, but also that
it was false.30 However, if the case does not involve a media defendant, the
25 CR 4–5; 40–45.
26 Id.
27 Id.
28 CR 6.
29 Remand Br. 11.
30 See Lipsky, 460 S.W.3d at 591.
10
burden is on the defendant to prove that the statement was true, rather than
on the plaintiff to prove it was false.31
In any event, Whisenhunt established that these statements were false.
Appellees claim that Whisenhunt failed to establish, for each defamatory
statement, “how it was false.”32 But that is not the burden. Even if he had the
burden to prove falsity, Whisenhunt was not required to establish how the
statements were false, but rather that they were false. Here, Whisenhunt
stated that Appellees falsely accused him (of sexual harassment, fraud,
incompetence, etc.), and went so far as to file false allegations with the Board
of Nursing.33 In the absence contradictory or rebuttal evidence, these claims
are the “minimum quantum of evidence needed to support a rational
inference” that Appellees’ statements were false.34
31 Klentzman v. Brady, 312 S.W.3d 886, 898 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
32 Remand Br. 20.
33 CR 5 (“Defendants falsely accused Whisenhunt . . . .”) (emphasis added); (“[Defendants
went] so far as to file false allegations against Whisenhunt with the Texas State Board of
Nursing”); (“The statements and representations made by Defendants about Whisenhunt
were false . . . .”);
34 See Lipsky, 460 S.W.3d at 590.
11
Finally, Appellees spuriously argue that Whisenhunt did not show
“how Whisenhunt was damaged” by their false accusations of sexual
harassment, fraud, and incompetence. As an initial matter, the supreme court
mentioned this factor in the context of “defamation” (i.e., defamation per
quod), not defamation per se.35 As the Court noted, “defamation per se refers
to statements that are so obviously harmful that general damages may be
presumed.”36 It would make little sense then, for a court to find that a
statement is defamatory per se, only then to require a plaintiff to show how
the statement was defamatory. The very definition of “per se” demonstrates
that no further explanation is needed.37
Here, Appellees’ statements were defamatory per se. There are two
categories of per se defamation. The first includes “accusing someone of a
crime, of having a foul or loathsome disease, or of engaging in serious sexual
misconduct.”38 The second includes statements that “adversely reflect on a
35 Id. at 591.
36 Id. at 593 (emphasis added).
37Per se, BLACK’S LAW DICTIONARY (10th ed. 2014) (“Of, in, or by itself; standing alone,
without reference to additional facts”).
38 Lipsky, 460 S.W.3d at 593.
12
person’s fitness to conduct his or her business or trade.”39 Appellees’
accusations of sexually harassment and fraud fit squarely in the first category,
and their accusations of incompetence fit squarely in the second. Because this
case involves defamation per se, there is no need for Whisenhunt to show how
he was defamed.
For these reasons, and the reasons stated in Whisenhunt’s prior briefs,
Whisenhunt met his prima facie burden.
IV. T HE TCPA’ S C OMMERCIAL -S PEECH E XEMPTION R EQUIRES
P ROOF OF O NLY T WO E LEMENTS .
Regarding the commercial-speech exemption, Whisenhunt asks this
Court to construe the plain language of the statute, and not add additional
elements absent from the TCPA as other courts have done. Here, Whisenhunt
will compare the TCPA’s commercial-speech exemption to California’s
similar exemption, show what elements are and are not required in Texas, and
explain why Texas courts have erred in blindly following California law on this
issue.
39 See id.
13
A. The development (and awkwardness) of the commercial-
speech exemption highlights the differences between Texas
and California.
The TCPA is not a model of excellent drafting. Its various provisions
have been called “awkward”40 and difficult to navigate.41 The commercial-
speech exemption is no different. To understand its awkwardness, one must
review its evolution. At the time the TCPA was enacted, California was the
only other state whose anti-SLAPP law contained a commercial-speech
exemption. That state’s exemption requires proof of four elements:
(1) the cause of action is against a person primarily engaged in
the business of selling or leasing goods or services;
(2) the cause of action arises from a statement or conduct by
that person consisting of representations of fact about that
person’s or a business competitor’s business operations, goods,
or services;
(3) the statement or conduct was made either for the purpose
of obtaining approval for, promoting, or securing sales or leases
of, or commercial transactions in, the person’s goods or services
or in the course of delivering the person’s goods or services; and
40 Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 219 (Tex. App.—Houston [1st Dist.] 2014,
no pet.) (Jennings, J., concurring).
41 Serafine, 2015 WL 3941219, at *7 (Pemberton, J., concurring).
14
(4) the intended audience for the statement or conduct [is an
actual or potential buyer or customer].42
The California exemption was the template of the TCPA exemption. Indeed,
the first draft of the TCPA closely tracked the California language:
This chapter does not apply to [(1)] a legal action brought
against a person primarily engaged in the business of selling or
leasing goods or services, [(2)] if the statement or conduct from
which the claim arises is a representation of fact [(3)] made for
the purpose of promoting, securing, or completing the sale or
lease of, or a commercial transaction in, the person’s goods or
services, and [(4)] the intended audience is an actual or
potential buyer or customer.43
But that language was rejected. Instead, the Legislature enacted this version:
This chapter does not apply to a legal action brought against a
person primarily engaged in the business of selling or leasing
goods or services, if the statement or conduct arises out of the
sale or lease of goods, services, or an insurance product or a
commercial transaction in which the intended audience is an
actual or potential buyer or customer.44
42Newspaper Holdings, 416 S.W.3d at 88 (citing Simpson Strong–Tie Co., Inc. v. Gore, 230
P.3d 1117, 1129 (Cal. 2010))
43 See Tex. H.B. 2973, 82nd Leg., R.S., § 3 (2011) (filed Mar. 10, 2011) (numbers supplied
to show similarities to the California exemption), available at http://www.legis.state.tx.us/
tlodocs/82R/billtext/html/HB02973I.htm (last visited Aug. 3, 2015).
44See Acts 2011, 82nd Leg., R.S. Ch. 341 (H.B. 2973), § 2, eff. June 17, 2011, available at
http://www.legis.state.tx.us/tlodocs/82R/billtext/html/HB02973F.HTM (last visited
Aug. 3, 2015). In 2013, the TCPA was amended, the effects of which are discussed further
below.
15
The awkwardness here involves the phrase “the statement or
conduct.” What statement or conduct? The article “the” implies some
previously mentioned statement or conduct. But that phrase is found nowhere
else in the TCPA.45 Rather, it appears to be residual language left over from
the first draft of the bill.46 If so, then it refers to the statement or conduct
“from which the claim arises.”47 The result is this strange double-use of
“arise” language:
This chapter does not apply to a legal action brought against a
person primarily engaged in the business of selling or leasing
goods or services, if the statement or conduct (from which the
legal action arises) arises out of the sale or lease of goods,
services, or an insurance product or a commercial transaction in
which the intended audience is an actual or potential buyer or
customer.
Although awkward, this seems to be the correct approach. The TCPA is
triggered when the legal action filed by the plaintiff “is based on, relates to, or
is in response to” the exercise of one of three protected rights.48 All three of
45 See generally TEX CIV. PRAC. & REM. CODE § 27.001 et seq.
46 See Tex. H.B. 2973, 82nd Leg., R.S., § 3 (2011).
47 Id.
48 TEX CIV. PRAC. & REM. CODE § 27.005(b).
16
those rights begins with a “communication.”49 While the statutory definition
of “communication” does not expressly include conduct, First Amendment
jurisprudence has traditionally protected conduct-based communications.50
So it makes sense for the commercial-speech exemption to refer to the
communication (i.e. “the statement or conduct”) that the legal action is based
on, relates to, or is in response to (i.e. “from which the legal action arises”).
B. Not every element of the California commercial-speech
exemption applies under the TCPA
As stated above, the California Supreme Court held in Gore that the
exemption in that state required proof of four elements. The first element
addresses the type of speaker needed.51 The second element addresses three
sub-elements: the nexus between the lawsuit and the speech, the nature of the
speech, and the subject of the speech.52 The third element requires that the
49 Id. § 27.001(2)–(4).
50Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969) (holding that the
wearing of armbands is protected speech under the First Amendment).
51 Gore, 230 P.3d at 1129 (requiring that the defendant be “primarily engaged in the business
of selling goods or services”).
52Id. (requiring, as proof of nexus, nature, and subject respectively, that: (1) the cause of
action arise out of the defendant’s speech or conduct; (2) that consist of representations of
fact; (3) about the defendant’s or a competitor’s goods or services).
17
speech be self-serving.53 And the fourth element addresses the intended
audience for the speech.54
One of the first Texas cases to consider the TCPA’s commercial-speech
exemption was Newspaper Holdings. That case imported all four elements from
Gore.55 Other Texas courts have followed suit in applying the Gore elements.56
But this blind application of California law to the TCPA was inappropriate.
To show why requires a side-by-side comparison highlighting the differences
between the two exemptions:
Element California Texas
Type of speaker Defendant must be primarily Same
(i.e. defendant) engaged in the business of
selling or leasing goods or
services.
53 Id. (requiring that the speech be made “for the purpose of obtaining approval for,
promoting, or securing sales or leases of, or commercial transactions in, the person’s goods
or services or in the course of delivering the person’s goods or services”).
54Id. (requiring that the speech be addressed to “an actual or potential buyer or customer,
or a person likely to repeat the statement to, or otherwise influence, an actual or potential
buyer or customer”).
55 See Newspaper Holdings, 416 S.W.3d at 88–89.
56See, e.g., Schimmel v. McGregor, 438 S.W.3d 847, 857 (Tex. App.—Houston [1st Dist.]
2014 pet. denied); Lamons Gasket Co. v. Flexitallic L.P., 9 F. Supp. 3d 709, 711 (S.D. Tex.
2014); Backes, 2015 WL 1138258, at *10; Kinney v. BCG Attorney Search, Inc., No. 03-12-
00579-CV, 2014 WL 1432012, at *6 (Tex. App.—Austin Apr. 11, 2014, pet. denied).
18
Nexus between Cause of action must arise Legal action must arise from a
speech and lawsuit, from a statement or conduct statement or conduct that
and the nature, that consists of representations arises from the sale or lease of
subject, and/or of fact about the defendant’s goods or services or an
context of the or a competitor’s goods or insurance product or a
defendant’s speech services. commercial transaction.57
Purpose of To obtain approval for, to N/A
defendant’s speech promote, or to secure sales of
defendant’s goods or services.
Intended audience An actual or potential buyer or Same, but only applies to
for defendant’s customer commercial transactions
speech
The following sections explain these differences in greater detail.
1. First element: both exemptions require the defendant to be
primarily engaged in the business of selling or leasing goods or
services.
There is no significant difference between the two exemptions with
respect to the first element. Both exemptions require that the defendant be a
commercial speaker. That is, the legal action must be “brought against a
person primarily engaged in the business of selling or leasing goods or
services.”58
57 This double-use of the “arise from” language was explained supra, at 15–16.
58 See TEX. CIV. PRAC. & REM. CODE § 27.010(c); Gore, 230 P.3d at 1129.
19
2. Second element: both exemptions require a connection between
the lawsuit and the defendant’s speech, but from there they
diverge.
The second element is the most complex. Both exemptions require a
connection between the defendant’s speech and the lawsuit. The California
exemption requires that “the cause of action arise[] from a statement or
conduct by [the defendant].”59 And, as explained previously, the TCPA
exemption’s awkward phrase, “the statement or conduct,” implies that the
legal action must arise from the defendant’s speech or conduct.
But then the two exemptions diverge. While the California exemption
requires proof of the nature and subject of the speech, the TCPA exemption
requires proof of the context of the speech.
(a) The California exemption requires proof of the
nature and subject of the speech.
Under the California exemption, the nature of the defendant’s
statement or conduct must be “representations of fact” while the subject of
the speech must be “[the defendant’s] or a business competitor’s business
59 Gore, 230 P.3d at 1129.
20
operations, goods, or services.”60 Although some courts have imported this
element into the TCPA’s exemption, none have applied it to the facts of the
case.61 The Fifth Circuit Court of Appeals, however, has rejected the position
that the TCPA’s commercial-speech exemption includes this element.62
In NCDR, the speech in question was an ad campaign by a law firm to
secure potential clients alleging that a nationwide chain of dental clinics was
performing unnecessary, and often harmful, procedures on children.63 The
clinic sued, and the law firm moved to dismiss under the TCPA. In response,
the clinics argued that the ads were commercial speech and thus exempt from
the TCPA. The law firm, relying on the “similarly worded” California
exemption, argued that its ads did not consist of representations of fact about
its own or a competitor’s services.64 But the Fifth Circuit rejected this
argument. It held that the law firm “neglects the fact that the California
60 Id.
61 Lamons Gasket, 9 F. Supp. 3d at 711; Newspaper Holdings, 416 S.W.3d at 88.
62 NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 755 (5th Cir. 2014).
63 Id. at 745.
64 Id. at 755.
21
Supreme Court’s holding rested on a clause in the California statute that is
not present in Texas’s anti-SLAPP statute.”65 Specifically, there is no
requirement under the TCPA that the speech contain “representations of fact
about that person’s or a business competitor’s business operations, goods, or
services.”66 Thus, according to NCDR, the TCPA’s commercial-speech
exemption does not require proof of the second element announced by the
California Supreme Court and recited in Newspaper Holdings.
The NCDR court’s holding is bolstered by the legislative history of the
TCPA. As noted above, the original TCPA bill closely tracked the language of
California’s exemption, but that version was rejected, and the current version,
which contains no similar language, was enacted in its stead.67 This legislative
history, combined with the plain language of the TCPA, leaves no room for
doubt. The TCPA’s commercial-speech exemption does not require proof
that the defendant’s statements or conduct “consist[ed] of representations of
65 Id.
66 Id.
67 See supra, at 14–15.
22
fact about [the defendant’s] or a business competitor’s business operations,
goods, or services.”68
(b) The TCPA exemption requires proof of the context
of the speech.
Rather than requiring proof of what the defendant said, the TCPA
requires proof of the context in which she said it.69 By its clear terms, the
TCPA’s commercial-speech exemption requires that the defendant’s speech
or conduct arise “out of the sale or lease of goods, services, or an insurance
product or a commercial transaction.”70
Because of the similarity between this language and the purpose element
of the California exemption, at least one court has held that the two are the
same.71 In Kinney, the plaintiff, a recruiting firm, sued a former employee for
68 Compare TEX. CIV. PRAC. & REM. CODE § 27.010(b), with Gore, 230 P.3d at 1129.
69 Actually, the California anti-SLAPP statute has a context provision too. As an alternative
to the intended-audience element, a California plaintiff can prove that “the statement or
conduct arose out of or within the context of a regulatory approval process, proceeding, or
investigation” with one state-specific exception. CAL. CIV. P. CODE § 425.17(c)(2). This
language bolsters Whisenhunt’s interpretation that the “arises out of” language is a
context-based requirement.
70 TEX. CIV. PRAC. & REM. CODE § 27.010(b).
71 Kinney, 2014 WL 1432012, at *6.
23
posting allegedly disparaging remarks about it on the internet.72 The employee
moved to dismiss under the TCPA, but the recruiting firm argued that the
commercial-speech exemption applies.73 The Third Court of Appeals noted:
Section 27.010(b) thus provides, in relevant part, that a
statement is exempt from the TCPA if the action is against a
person primarily engaged in selling services and the statement
arises from the sale of services. This provision has been
construed to mean that for the exemption to apply, the
statement must be made for the purpose of securing sales in
the goods or services of the person making the statement.74
Thus the court equated “arises out of” from the TCPA exemption with “for
the purpose of” from the California exemption.
The Kinney court went too far. As the supreme court explained in
reversing and remanding this case, the primary goal of statutory construction
is “to give effect to the Legislature’s intent, which requires us to first look to
the statute’s plain language.”75 The Court went on to hold that the TCPA
does not require speech to be publicly communicated, because the plain
72 Id. at *1.
73 Id. at *6.
74 Id. (citing Newspaper Holdings, 416 S.W.3d at 88–89).
75 Lippincott, 2015 WL 1967025, at *1.
24
language of the statute contains no such requirement. “Had the Legislature
intended to limit the Act to publicly communicated speech, it could have
easily added language to that effect.”76
The same goes for the Kinney decision. The plain language of the
TCPA’s commercial-speech exemption states that the statement or conduct
must “arise out of” the sale or lease of goods.77 Had the Legislature intended
to include a state-of-mind requirement, it could have easily done so.78
3. Third element: the California exemption requires proof of the
defendant’s mental state, but the TCPA exemption does not.
This element was discussed in the immediately preceding section. The
third element under the California exemption requires that the defendant’s
speech be self-serving.79 There is no such purpose requirement in the TCPA
exemption.
76 Id. at *2.
77 TEX. CIV. PRAC. & REM. CODE § 27.010(b).
78 See Lippincott, 2015 WL 1967025, at *2.
79 Gore, 230 P.3d at 1129.
25
4. Fourth element: both the California and the TCPA exemptions
require proof of an intended audience, but they differ with
respect to the scope of its applicability.
The intended-audience element is found in both statutes. But there are
two issues about its scope. First, the intended-audience prong of the TCPA
exemption plainly applies only to speech or conduct that arises from “a
commercial transaction.” Second, courts have erred in holding that it applies
only to speech aimed at the defendant’s customers.
(a) Under the Texas commercial-speech exemption,
the intended-audience prong applies only to
statements or conduct that arises from commercial
transactions.
Whisenhunt explained in his original briefing before this Court that the
California exemption uses the conjunctive (all four elements must be met),
while the Texas exemption uses the disjunctive (either element may be met).80
This matters primarily for the intended-audience element of the exemption.
The TCPA, as originally enacted, exempted commercial speech by a
commercial speaker if the speech arose out of:
80 Reply Br., at 22–23.
26
[T]he sale or lease of goods, services, or an insurance product or
a commercial transaction in which the intended audience is an
actual or potential buyer or customer.81
The question is: which provisions are modified by the clause, “in which the
intended audience is an actual or potential buyer or customer”? There are two
possibilities. Either the intended-audience clause modifies only “a commercial
transaction” or it modifies both (1) a commercial transaction and (2) the sale
or lease of goods, services, or an insurance product. For three reasons,
Whisenhunt maintains that the clause modifies only commercial transactions.
First, Whisenhunt’s interpretation is favored by the last-antecedent
rule. The last-antecedent rule states that “a qualifying phrase . . . modif[ies]
the words or clause immediately preceding it.”82 The way to get a qualifying
phrase to modify multiple preceding words or clauses, there should be a
comma between the modifying clause and the last antecedent.83 Of course, the
81 Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), § 2, eff. June 17, 2011.
82 Stracener v. United Servs. Auto. Ass’n, 777 S.W.2d 378, 383 (Tex. 1989).
83See Ludwig v. State, 931 S.W.2d 239, 241 (Tex. Crim. App. 1996) (“Generally, the
presence of a comma separating a modifying clause in a statute from the clause immediately
preceding is an indication that the modifying clause was intended to modify all the
preceding clauses and not only the last antecedent one).
27
last-antecedent rule is “neither controlling nor inflexible.”84 Rather, it “must
give way when there are indications that [it is] inapplicable.”85 But here, there
are two other indications that support Whisenhunt’s reading.
Second, Whisenhunt’s interpretation is favored by the rule against
surplusage. “In construing a statute, we give effect to all its words and, if
possible, do not treat any statutory language as mere surplusage.”86 Here,
however, commercial transactions include sales and leases, so to hold that the
intended-audience element applies to sales and leases creates a redundancy. As
an analogy, assume a statute exempts from subsidies “apples, oranges, or
fruits that do not contain antioxidants.” Does the statute exempt all apples or
only apples that lack antioxidants? If the latter, then the inclusion of apples is
redundant. The statute could simply exempt “all fruits that do not contain
antioxidants.” Similarly, had the Legislature wanted the intended-audience
element to apply to sales or leases, it should have left those words out.
84 Cruz, 452 S.W.3d at 523.
85 Stracener, 777 S.W.2d at 383.
86 State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006).
28
Finally, the 2013 amendments to the commercial-speech exemption
show more clearly that intended-audience element applies only to commercial
transactions. Thus far, Whisenhunt has been quoting from the version of the
exemption that applied at the time Appellees filed their motion. But later that
year, the exemption was amended (to add the underlined phrase) as follows:
This chapter does not apply to a legal action brought against a
person primarily engaged in the business of selling or leasing
goods or services, if the statement or conduct arises out of the
sale or lease of goods, services, or an insurance product,
insurance services, or a commercial transaction in which the
intended audience is an actual or potential buyer or customer.87
Notably, the Legislature did not add a comma after “commercial transaction”
but did add one after “insurance product” and “insurance services.” The
addition of the latter phrase, set off by commas, enhances the clarity of the
exemption. Now, there are three clearly distinct categories, and the effect of
the last-antecedent rule is more marked.
For these reasons, the intended-audience element under the TCPA
applies only to commercial transactions.
87 TEX. CIV. PRAC. & REM. CODE § 27.010(b).
29
(b) Under both exemptions, the intended audience can
be the potential buyers or customers of the plaintiff
or the defendant.
At least two Texas courts have held that the intended audience must be
the actual or potential buyers or customers of the defendant, not the plaintiff.88
The California commercial-speech exemption, however, does not contain this
requirement.89 As one California court noted:
[The commercial-speech exemption] does not require the
potential purchaser be a “buyer or customer” of the defendant.
There are no legislative committee reports which suggest that
the potential purchaser be a “buyer or customer” of the
defendant. Commercial speech directed at any “buyer or
customer” including that of a plaintiff is within the scope of [the
exemption. The language of [the exemption] does not require
that the customer or buyer be one entering into a commercial
relationship with the defendant.90
88Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 354
(Tex. App.—Houston [1st Dist.] 2013, pet. denied) (holding the exemption does not apply
because the defendant’s business ratings were aimed at the public at large (i.e. plaintiff’s
potential customers) rather than business who would potentially buy services from the
ratings company); Schimmel, 438 S.W.3d at 858 (holding that lawyer’s statements were not
commercial speech because they were aimed at the City of Galveston, which was plaintiff’s
potential business partner not the lawyer’s).
89Brill Media Co., LLC v. TCW Group, Inc., 132 Cal. App. 4th 324, 342, 33 Cal. Rptr. 3d
371, 384 (2005) disapproved of on other grounds by Gore, 230 P.3d at 1117.
90 Id.
30
The same is true of the TCPA’s expemtion. There is no express language that
prohibits its application to buyers or customers of the plaintiff.91 Further,
Whisenhunt could find no language in the legislative history to suggest such a
reading. “Had the Legislature intended to limit the [exemption] to
[defendant’s potential customers], it could have easily added language to that
effect.”92
It is not surprising that the Legislature included no such limitation—it
would make no sense to differentiate them. Under the First Amendment,
commercial speech is afforded less constitutional protection than other types
of speech.93 But it is still protected to some extent, because consumers have
an interest in the “free flow of commercial information.”94 Certainly,
advertisements to one’s own potential customers constitute commercial
speech.95 But speech about someone else’s product must similarly invoke “the
91 See TEX. CIV. PRAC. & REM. CODE § 27.010(b).
92 See Lippincott, 2015 WL 1967025, at *2.
93 Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978).
94Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748,
764 (1976).
95 See id.
31
free flow of commercial information.” Such speech is just as “commercial”
as speech about one’s own.
C. The TCPA commercial-speech exemption requires proof
only of a commercial speaker and commercial speech.
Once all the superfluous California elements are stripped away, the
elements of the TCPA commercial-speech exemption are exposed. As
Whisenhunt stated in his original briefing,96 there are two elements. The
TCPA does not apply to a legal action if:
1. The defendant is primarily engaged in the business of selling
or leasing goods or services; and
2. The defendant’s statement or conduct (on which the legal
action is based) arises out of:
a. the sale or lease of goods, services or an insurance
product,
b. insurance services, or
c. a commercial transaction in which the intended audience
is an actual or potential buyer or customer.97
96 See Reply Br., at 21.
97 See TEX. CIV. PRAC. & REM. CODE § 27.010(b).
32
Whisenhunt rests on his prior briefing for the application of this provision to
the facts of this case.
V. T HE T RIAL C OURT E RRED IN D ENYING W HISENHUNT ’ S
M OTION FOR L IMITED D ISCOVERY .
Should this Court decide that Whisenhunt has not met his prima facie
burden and further holds that the commercial-speech exemption does not
apply, Whisenhunt respectfully requests that this Court remand the case to
allow him to take limited discovery. Here, Whisenhunt made both a written
and oral request for limited discovery under Section 27.006(b).98 The Trial
Court ruled on Appellees’ motion without resolving these requests.99 As such,
the Trial Court implicitly denied the request for limited discovery.100 This
Court should reverse that denial.
98 CR 37; RR 44.
99 CR 49–50.
100See Walker v. Gutierrez, 111 S.W.3d 56, 60 (Tex. 2003) (“While the trial court did not
explicitly rule on the [plaintiffs’] request for a grace period under section 13.01(g), we agree
with the court of appeals that, by granting the motion to dismiss, the trial court implicitly
denied the motion seeking a grace period.”); Williams v. Bank One, Texas, N.A., 15 S.W.3d
110, 114 (Tex. App.—Waco 1999, no pet.) (holding that trial court implicitly denied a
motion to continue a summary judgment hearing by granting summary judgment).
33
Section 27.006(b) provides: “On a motion by a party or on the court’s
own motion and on a showing of good cause, the court may allow specified and
limited discovery relevant to the motion.”101 Because the statute uses the
word “may,” the standard of review is abuse of discretion.102 Ordinarily, a trial
court has broad discretion over discovery matters.103 However, a trial court
“can abuse its discretion by acting unreasonably.”104 Further, the trial court
“is not vested with unlimited discretion, and is required to exercise a sound
and legal discretion within the limits created by the circumstances of a
particular case.”105 For example, reversal is appropriate when “there has been
a disregard of the rights of a party.”106 Additionally, “[b]asic due process
requires that when a decision maker is called upon to make a decision
101 TEX. CIV. PRAC. & REM. CODE § 27.006(b).
102 Dallas County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 873 (Tex. 2005).
103 In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999).
104 In re Am. Home Assur. Co., 88 S.W.3d 370, 373 (Tex. App.—Texarkana 2002, no pet.).
105 Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex. 2011).
106 Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986).
34
grounded on evidence, the parties involved should be provided fair notice and
a meaningful opportunity to present their evidence.”107
The TCPA does not define “good cause,” so its technical or plain-
meaning definition applies.108 Good cause is generally defined as “the burden
placed on a litigant (usually by court rule or order) to show why a request
should be granted or an action excused.”109 Texas courts have not arrived at a
uniform standard for making the good-cause showing. In Bilbrey, the court
held that the plaintiff did not meet the standard because he failed to state the
purpose for the discovery he sought.110 Conversely, in Charalambopoulos v.
Grammer, the court held that the plaintiff met the good-cause standard
because he “sought discovery of evidence that is effectively within the
exclusive control of [the defendant] and/or her agents, and this evidence may
107United Copper Indus., Inc. v. Grissom, 17 S.W.3d 797, 805 (Tex. App.—Austin 2000, pet
dism’d) (emphasis added).
108See Lipsky, 460 S.W.3d at 590 (“Words and phrases that are not defined by statute and
that have not acquired a special or technical meaning are typically given their plain or
common meaning.”).
109 Cause, BLACK’S LAW DICTIONARY (10th ed. 2014).
110 Bilbrey, 2015 WL 1120921, at *15.
35
enable him to establish by clear and specific evidence a prima facie case as to
the remaining grounds for his defamation claims.”111
Here, Whisenhunt’s request for limited discovery should have been
granted for several reasons. First, Whisenhunt stated his purpose for seeking
additional discovery—if the trial court were inclined to hold that he failed to
meet his prima facie burden, he should be allowed limited discovery to make
that showing.112 Second, he pointed out the specific discovery he needed.113
And third, Whisenhunt showed good cause for seeking limited discovery. He
explained that he needed limited discovery because he believed he could rely
on his pleadings for proof and that there had not been adequate time to
discover any additional facts necessary to make the showing.114
111
Charalambopoulos v. Grammer, No. 3:14-CV-2424-D, 2015 WL 390664, at *19 (N.D.
Tex. Jan. 29, 2015).
112 RR 44.
113RR 28 (explaining the need for discovery on damages); RR 31–32 (explaining that
Whisenhunt needed discovery to prove: (1) to whom the defamatory statements were; and
(2) which surgeons did not want to work with Whisenhunt as a result of Appellees’
accusations).
114 Id.
36
It is indisputable that Whisenhunt was deprived of a “meaningful
opportunity” to present his prima facie evidence.115 The short history of the
TCPA itself bears this out. As originally enacted, the TCPA provided that a
party may request limited discovery.116 But the court had no discretion to
continue the hearing on the motion to dismiss—it had to be held within 30
days.117 In 2013, the Legislature amended the TCPA to allow more time.118 As
amended, a hearing has to be held within 60 days, and if the request for
additional discovery is granted, the hearing can be held as late as 120 days after
the motion is served.119 Thus, even the Legislature has recognized that 30 days
is not enough time to respond to a TCPA motion, especially if discovery is
needed to meet the prima facie burden.
115 See Grissom, 17 S.W.3d at 805.
116 Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), § 2, eff. June 17, 2011.
117 Id.
118See Acts 2013, 83rd Leg., R.S., Ch. 1042 (H.B. 2935), § 1, eff. June 14, 2013, available at
http://www.legis.state.tx.us/tlodocs/83R/billtext/html/HB02935F.HTM (last visited
Aug. 3, 2015).
119 See TEX. CIV. PRAC. & REM. CODE § 27.004(a), (c).
37
Here, Whisenhunt had just two weeks to respond to Appellees’
motion.120 Further, at the time of the hearing, there were seven appellate cases
citing the TCPA, but six of them did not reach the merits of the TCPA motion
to dismiss.121 The only one that did was Avila v. Larrea, which involved a
media defendant and thus a different set of standards.122 For example, the
Avila court held that the plaintiff had the burden to prove falsity.123 It is
unclear from the opinion whether the parties argued the truth/falsity burden
120 CR 25 (showing date of service of motion); RR 1 (showing date of hearing).
121Jennings v. WallBuilder Presentations, Inc. ex rel. Barton, 378 S.W.3d 519, 529 (Tex.
App.—Fort Worth 2012, pet. denied) (dismissing appeal for want of jurisdiction); Direct
Commercial Funding, Inc. v. Beacon Hill Estates, LLC, No. 14-12-00896-CV, 2013 WL
407029, at *4 (Tex. App.—Houston [14th Dist.] Jan. 24, 2013, no pet.) (denying a motion
to dismiss for want of jurisdiction); In re Sierra Club, No. 08-12-00282-CV, 2012 WL
5949789, at *1 (Tex. App.—El Paso Nov. 28, 2012, no pet.) (denying, without opinion, a
mandamus petition from a TCPA discovery order); Texas Allergy, Asthma & Immunology
Soc’y v. United Biologics, LLC, No. 03-12-00008-CV, 2012 WL 5494282, at *1 (Tex.
App.—Austin Nov. 8, 2012, no pet.) (granting a request for additional briefing); Lipsky v.
Range Prod. Co., No. 02-12-00098-CV, 2012 WL 3600014, at *1 (Tex. App.—Fort Worth
Aug. 23, 2012, pet. denied) (dismissing appeal for want of jurisdiction); In re Avila, No. 05-
12-00094-CV, 2012 WL 215141, at *1 (Tex. App.—Dallas Jan. 24, 2012, no pet.) (denying
a mandamus petition from a TCPA discovery order as premature).
122Avila v. Larrea, 394 S.W.3d 646, 657 (Tex. App.—Dallas 2012, pet. denied) (explaining
that media defendants “can defeat a defamation cause of action by establishing the
‘substantial truth’ of the broadcast”); id. at 659 (explaining that a media defendant can
defeat a defamation claim by proving that it was merely reporting third-party allegations
and the content is accurately reported, even if the underlying statement was false).
123 Id. at 657.
38
or whether the court simply assumed it. Nevertheless, the court was correct
that the burden to prove falsity was on the plaintiff, because case involved a
media defendant.124 Thus the one case on which Whisenhunt could rely was
inapplicable.
So Whisenhunt had two weeks to respond to Appellees’ TCPA motion
and virtually no guidance regarding his burden of proof. He explained to the
Trial Court that his pleadings and evidence established each element of his
causes of action.125 But he also explained to the court that there had not been
enough time to conduct discovery.126 And he expressly requested additional
time to conduct discovery.127 This request was implicitly denied, with no
analysis or explanation as to why, when the Court ruled on Appellees’ motion
to dismiss about a month later.128
124See TEX. CIV. PRAC. & REM. CODE § 73.005 (establishing truth as an affirmative defense
to libel); Klentzman, 312 S.W.3d at 898 (explaining that at common law, falsity was
presumed and truth was an affirmative defense, but in cases involving media defendants
and matters of public concern, the First Amendment shifts the burden to the plaintiff to
prove falsity).
125 CR 30–36; RR 32–34.
126 RR 28, 32.
127 RR 44.
128 CR 49–50.
39
Under the “circumstances of [this] particular case,” the Trial Court’s
denial of Whisenhunt’s request to take limited discovery was a “disregard of
[Whisenhunt’s] rights.”129 Specifically, the denial deprived Whisenhunt of
any “meaningful opportunity” to present his prima facie case.130 As such, the
Trial Court abused its discretion and should be reversed. In the event this
Court finds that Whisenhunt did not meet his prima facie burden and this case
does not fall within the commercial-speech exemption, Whisenhunt prays that
this Court reverse the Trial Court’s denial of his request for limited discovery
and remand the case back to the Trial Court with instructions to allow
Whisenhunt to conduct the limited discovery he sought.
VI. T HIS C OURT S HOULD R EMAND TO A LLOW W HISENHUNT TO
R EPLEAD .
In Lipsky, the supreme court held that the TCPA creates a pleading
standard. The Court noted that while ordinarily, fair-notice pleading is
sufficient, the TCPA requires more: “mere notice pleading—that is, general
129 Iliff, 339 S.W.3d at 81; Yowell, 703 S.W.2d at 635.
130 Grissom, 17 S.W.3d at 805.
40
allegations that merely recite the elements of a cause of action—will not
suffice.”131
This presents an obvious conundrum. Does the heightened pleading
standard attach when the plaintiff files the lawsuit or does it attach when the
defendant files a TCPA motion to dismiss? If it attaches when the lawsuit is
filed, then the plaintiff would need to anticipate a TCPA motion and plead
accordingly. But this sort of preemptory pleading has never been required in
Texas.132 Thus the heightened pleading burden must attach when the
defendant invokes the TCPA by filing a motion to dismiss. But that too poses
a problem. If the plaintiff fails to anticipate the TCPA motion, dismissal is
certain in light of Lipsky. That is, a defendant could secure dismissal by merely
showing that the plaintiff failed to meet the Lipsky pleading standard.133
131 Lipsky, 460 S.W.3d at 590–91.
132Cf. Dial v. Wilke, 127 S.W.2d 379, 384 (Tex. Civ. App.—Amarillo 1939 writ ref’d)
(holding that the plaintiff does not have to plead that the defendant is a non-subscriber to
workers’ compensation laws until the defendant raises prohibited defenses, because, at the
time the plaintiff filed his petition, “he could not anticipate what defenses the appellee
would present.”).
133
See Lipsky, 460 S.W.3d at 591 (holding that to avoid dismissal, a plaintiff must plead
“enough detail to show the factual basis for its claim”).
41
The only way around this conundrum is to allow the plaintiff to amend
his pleading once the defendant files the TCPA motion and the pleading
deficiency is illuminated. The opportunity to cure defective pleadings has
been enshrined in Texas law for at least a century.134 And as the Fifth Court of
Appeals has pointed out, “Texas law does not favor dismissal on pleadings,
death-penalty sanctions, or hearings without notice. It does favor liberal
amendment of pleadings and affording litigants the opportunity to cure
defects in pleadings whenever possible.”135
Moreover, both the Texas Supreme Court and this Court may remand
a case to the trial court in the interest of justice.136 Texas courts have applied
this rule to circumstances where the law was changed while the case was on
appeal and where the applicable law was unsettled at the time of trial.137 Courts
134See Harrell v. Houston, 66 Tex. 278, 281, 17 S.W. 731, 732 (1886) (holding that where
pleadings are “prolix and confused” a trial court should “require the parties to replead”).
135 KSNG Architects, Inc. v. Beasley, 109 S.W.3d 894, 899 (Tex. App.—Dallas 2003, no pet.).
136TEX. R. APP. P. 60.2(f); Morrow v. Shotwell, 477 S.W.2d 538, 542 (Tex. 1972) (holding
that former Civil Rule 505, the predecessor to Appellate Rule 60.2, applies to the courts of
appeals).
137 Cardiac Perfusion Services, Inc. v. Hughes, 436 S.W.3d 790, 792 (Tex. 2014) (remanding
in the interests of justice where plaintiff relied on precedent that was overruled); Valenzuela
v. Aquino, 853 S.W.2d 512, 514 (Tex. 1993) (same).
42
have applied the rule where justice required an opportunity to replead,138 a
new hearing, 139 or a new trial.140 Further, remand in the interest of justice “is
particularly well-suited to situations . . . where courts must apply the
requirements of a unique or novel statutory scheme.”141
In the event that this Court disagrees that Whisenhunt met his prima
facie burden, Whisenhunt respectfully requests that this Court remand this
case to provide him an opportunity to replead his causes of action in the
interests of justice. When Whisenhunt filed his petition, he had no reason to
know that the Legislature had revoked fair-notice pleading for his causes of
action. Fair-notice pleading is a standard that had been at the heart of Texas
138
Park v. Escalera Ranch Owners’ Ass’n, Inc., 457 S.W.3d 571, 603 (Tex. App.—Austin
2015, no pet.).
139 In re Doe 2, 19 S.W.3d 278, 283 (Tex. 2000).
140 Hamrick v. Ward, 446 S.W.3d 377, 385 (Tex. 2014).
141 In re Doe 2, 19 S.W.3d at 283.
43
jurisprudence for a century and a half,142 and upheld by the Texas Supreme
Court at least five times in as many years before he filed his lawsuit.143
This Court should remand this case in the interests of justice. The new
pleading standard was adopted during the pendency of Whisenhunt’s appeal.
And the new pleading standard was derived from a “unique or novel statutory
scheme.” In light of the unique procedural posture of this case, if this Court
finds that Whisenhunt’s pleadings do not satisfy the standard announced in
Lipsky, it should, in the interest of justice, remand to the trial court to allow
Whisenhunt to replead with the required factual specificity.
142Gray v. McFarland, 29 Tex. 163, 166 (1867) (“The object of all pleading is to put the
opposite party upon fair notice of the facts relied on as the cause of action or the ground of
the defense.”).
143 Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 648 (Tex. 2012) (holding that
the plaintiff’s pleadings met the fair-notice standard); City of Dallas v. VSC, LLC, 347
S.W.3d 231, 248 (Tex. 2011) (same); Univ. of Texas Sw. Med. Ctr. at Dallas v. Estate of
Arancibia ex rel. Vasquez-Arancibia, 324 S.W.3d 544, 552 (Tex. 2010) (noting that
“pleadings must give fair notice of a claim”); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306,
311 (Tex. 2009) (noting similarities between summary judgment standard and fair-notice
pleading standard); Texas Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 37 (Tex. 2008) (noting
that fair-notice standard requires pleadings that allow the opposing party to ascertain “the
nature, basic issues, and the type of evidence that might be relevant to the controversy”).
44
CONCLUSION AND PRAYER
For the foregoing reasons, Whisenhunt respectfully requests that this
Court (1) affirm as to the non-dismissal of his defamation claim but reverse as
to the dismissal of his other claims; or (2) remand to take limited discovery or
in the interest of justice. Whisenhunt further prays for all other relief, at law
or in equity, to which he shows himself justly entitled.
Respectfully Submitted,
/s/ Farbod Farnia
Farbod Farnia
State Bar No. 24078493
ffarnia@mccathernlaw.com
H. Arnold Shokouhi
State Bar No. 24056315
ashokouhi@mccathernlaw.com
Ty M. Sheaks
State Bar No. 24042416
tsheaks@mccathernlaw.com
Stephanie M. Almeter
State Bar No. 24078141
salmeter@mccathernlaw.com
MCCATHERN, PLLC
Regency Plaza
3710 Rawlins, Suite 1600
Dallas, Texas 75219
(214) 741-2662 – Phone
(214) 741-4717 – Fax
Attorneys for Appellant
45
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4, I certify that this
Brief contains 8,824 words.
/s/ Farbod Farnia
Farbod Farnia
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing brief was served on the following
counsel and parties in the manner indicated on August 3, 2015.
/s/ Farbod Farnia
Farbod Farnia
46
Warren Whisenhunt v. Matthew Lippincott and Creg Parks
Combined Opinion