John and Mary Ann Tatum v. Julie Hersh

AFFIRM in Part, and REVERSE and REMAND; Opinion Filed December 30, 2015.

S
Court of Appeals
In The

Fifth District of Texas at Dallas
No. 05-14-01318-CV

JOHN TATUM AND MARY ANN TATUM, Appellants/Cross-Appellees
V.
JULIE HERSH, Appellee/Cross-Appellant

On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-04185

OPINION
Before Justices Lang, Evans, and Whitehill
Opinion by Justice Whitehill

The Texas Citizens Participation Act 1 allows a defendant to move for dismissal of a cause

of action if that claim is based on, relates to, or is in response to the defendant’s exercise of an

enumerated right, such as the right of free speech. In Pickens v. Cordia, 433 S.W.3d 179 (Tex.

App.—Dallas 2014, no pet.), however, we held that a defendant who denies making the

communication at issue cannot invoke that procedure.

The present case turns on whether Pickens applies if the defendant’s motion admits

participating in a conversation generally but denies making the specific relevant statements in

particular. For the reasons discussed below, we conclude that Pickens applies to the facts before

us and, thus, reverse the trial court’s judgment to the extent it grants appellee’s motion to dismiss
1
TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011 (West 2015).
and awards appellee conditional appellate attorneys’ fees. We affirm the judgment to the extent

it denies appellee’s requests for trial-level attorneys’ fees and monetary sanctions.

I. BACKGROUND

A. Factual Allegations.

Appellants John and Mary Ann Tatum were the plaintiffs below, and their live petition

alleged the following facts:

The Tatums were Paul Tatum’s parents. Paul committed suicide on May 18, 2010, hours

after being involved in a car accident. A few days later, the Tatums took out a newspaper

obituary that paid homage to Paul’s life and suggested that his death was caused by injuries he

sustained in the accident.

Meanwhile, appellee Julie Hersh had written a book about her personal history of

depression and suicide attempts. In early 2010, she was attempting to gain publicity for the

book. Consequently, a few days before Paul’s death, she wrote a letter to the editor of the Dallas

Morning News newspaper complaining about the newspaper’s coverage of the death of a man

named Ted Pillsbury. Pillsbury had committed suicide, and Hersh complained that the

newspaper’s coverage did not address Pillsbury’s supposed mental illness.

Later, Hersh read Paul’s obituary and heard from acquaintances that Paul had committed

suicide.

After that, she wrote a blog post entitled “Don’t Omit from the Obit,” in which she

encouraged people not to conceal the role that mental illness plays in causing suicide.

Less than a month after Paul’s obituary, Hersh on June 14, 2010 met with Dallas

Morning News columnist Steve Blow and “promoted Paul’s death and the Obituary . . . as a news

story,” “incited Blow to write about suicide in obituaries,” and “encouraged him to make the

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Tatum tragedy public.” The next day, she emailed Blow her unpublished letter to the editor and

her “Don’t Omit from the Obit” blog post.

On June 20, 2010, less than a month after publishing Paul’s obituary, the Dallas Morning

News published a column by Blow in which he discussed Pillsbury’s death, Pillsbury’s

company’s press release about his death, and Paul’s death and obituary. 2 The column also

promoted Hersh’s blog. The column brought unwanted attention to the Tatums for their decision

not to discuss suicide in Paul’s obituary, and it caused the Tatums to suffer humiliation and

embarrassment.

B. Procedural History.

The Tatums sued Hersh for intentional infliction of emotional distress. 3 Hersh answered

and filed a motion to dismiss under the Texas Citizens Participation Act (TCPA). Hersh’s

motion sought (i) dismissal of the Tatums’ claims and (ii) the recovery of her attorneys’ fees and

sanctions against the Tatums.

The Tatums then filed a first amended petition, which remained their live pleading

through final judgment, and a response to the dismissal motion. Hersh filed a reply brief, and the

Tatums filed a sur-reply.

After two hearings, the trial judge signed an order dismissing the case with prejudice.

The judge did not award Hersh any trial-level attorneys’ fees or sanctions, but he did award

Hersh conditional appellate attorneys’ fees.

The Tatums appealed the judgment, and Hersh cross-appealed.

2
According to evidence presented in the motion to dismiss process, the column criticized social norms that cause people not to talk openly
about suicide as a cause of death. The column discussed Pillsbury’s and Paul Tatum’s suicides and their aftermaths as examples, and it argued
that greater honesty and openness about suicide and mental illness would save lives.
3
The Tatums also sued Blow and The Dallas Morning News, Inc. in a separate suit. That lawsuit resulted in its own appeal, John Tatum
and Mary Ann Tatum v. The Dallas Morning News, Inc. and Steve Blow, No. 05-14-01017-CV, which is being decided by a separate opinion also
issuing today.

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 II. ANALYSIS

The Tatums present three appellate issues, each arguing that the trial court erred by

granting Hersh’s motion. We need discuss only their first issue, which is whether the trial court

erred by ruling that Hersh carried her initial burden of showing that the TCPA applies to the

Tatums’ claims. For the reasons discussed below, we conclude that she did not do so.

A. Standard of Review.

A TCPA movant bears the initial burden of showing by a preponderance of the evidence

“that the legal action is based on, relates to, or is in response to the party’s exercise of” a

statutorily protected right, such as the right of free speech. See TEX. CIV. PRAC. & REM. CODE

ANN. § 27.005(b) (West 2015). We review de novo the trial court’s ruling that a defendant

carried its § 27.005(b) burden. See D Magazine Partners, L.P. v. Rosenthal, No. 05-14-00951-

CV, 2015 WL 5156908, at *5 (Tex. App.—Dallas Aug. 28, 2015, pet. filed) (“We review de

novo the trial court’s determinations that the parties met or failed to meet their burdens of proof

under section 27.005.”) (footnote omitted); see also ExxonMobil Pipeline Co. v. Coleman, 464

S.W.3d 841, 845 (Tex. App.—Dallas 2015, pet. filed) (reviewing de novo whether movants

established that challenged statements were exercises of free speech and association rights).

B. TCPA Overview.

The TCPA is an “anti-SLAPP statute,” meaning that the legislature enacted it to curb

“strategic lawsuits against public participation.” Am. Heritage Capital, LP v. Gonzalez, 436

S.W.3d 865, 868 (Tex. App.—Dallas 2014, no pet.). The statute’s stated purpose is to encourage

and protect people’s First Amendment rights while also protecting other people’s related rights

to pursue meritorious claims for redress:

The purpose of this chapter is to encourage and safeguard the
constitutional rights of persons to petition, speak freely, associate freely, and
otherwise participate in government to the maximum extent permitted by law and,

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 at the same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.

CIV. PRAC. § 27.002. The legislature further specified that the TCPA “shall be construed

liberally to effectuate its purpose and intent fully.” Id. § 27.011(b).

The TCPA’s main feature is a motion procedure that enables defendants to seek the

dismissal of frivolous claims and to recover attorneys’ fees and sanctions. See id. §§ 27.003,

27.005, 27.009(a). These features, however, are counterbalanced by providing that a defendant

who files a dismissal motion that is itself frivolous or intended solely to delay can be ordered to

pay the nonmovant’s court costs and reasonable attorneys’ fees. Id. § 27.009(b).

As mentioned above, the motion to dismiss movant has the initial burden of proof. See

Am. Heritage Capital, 436 S.W.3d at 874. Specifically, § 27.005(b)(1) defines that burden as

follows:

Except as provided by Subsection (c), . . . a court shall dismiss a legal
action against the moving party if the moving party shows by a preponderance of
the evidence that the legal action is based on, relates to, or is in response to the
party’s exercise of . . . the right of free speech . . . .

CIV. PRAC. § 27.005(b)(1).

If the movant carries that initial burden, the burden shifts to the claimant to establish “by

clear and specific evidence a prima facie case for each essential element of the claim in

question.” Id. § 27.005(c). If the claimant carries this subsequent burden, the court must deny

the motion unless “the moving party establishes by a preponderance of the evidence each

essential element of a valid defense to the nonmovant’s claim.” Id. § 27.005(d).

“In determining whether a legal action should be dismissed . . . , the court shall consider

the pleadings and supporting and opposing affidavits stating the facts on which the liability or

defense is based.” Id. § 27.006(a).

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C. Tatum Issue 1: Did the trial court err by ruling that Hersh carried her § 27.005(b)
burden to show that the Tatum’s suit was based on, related to, or in response to a
statement by Hersh?

The Tatums’ first issue argues that Hersh failed to establish that the TCPA applied to

their claims because Hersh denied making the statements on which the Tatums’ pleadings are

based. But, before addressing that argument, we must first consider Hersh’s premise that the

Tatums forfeited that argument by not raising it in the trial court.

1. Did the Tatums forfeit their argument that Hersh’s denial of making the
statements on which the Tatums’ claims are based negated Hersh’s motion?

Hersh argues that the Tatums failed to preserve their argument because they did not

include it in their written (1) response to Hersh’s dismissal motion, (2) sur-reply in opposition to

the motion, or (3) two post-hearing letter briefs.

The Tatums, however, reply that they preserved the argument orally at the hearing on

Hersh’s motion to dismiss. Specifically, their attorney argued to the trial court that:

Defendants [sic] have not once, not once, told you what they actually said. They
continue to deny that they went and talked about Paul Tatum in that meeting with
Mr. Blow. They continued to deny it. Continued to deny it. And every part
where they reference it they call it the alleged statements. They have a
preponderance burden, and that preponderance burden means you have to show
that the greater weight of authority proves that you made a communication.

We agree with the Tatums. A complaint must be preserved by a timely request,

objection, or motion in the trial court that:

(A) stated the grounds for the ruling that the complaining party sought
from the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context; and

(B) complied with the requirements of the Texas Rules of Civil or
Criminal Evidence or the Texas Rules of Civil or Appellate Procedure . . . .

TEX. R. APP. P. 33.1(a)(1).

But nothing in Rule 33 requires complaints to be preserved in writing, nor do we find

anything in the rules of evidence, the rules of procedure, or the TCPA imposing that requirement

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in this context. See TEX. R. APP. P. 33.1(a); see also Braglia v. Middleton, No. 13-10-00101-CV,

2012 WL 664947, at *3 (Tex. App.—Corpus Christi Mar. 1, 2012, no pet.) (mem. op.)

(appellant’s oral argument and continuance motion in trial court preserved error).

Because the Tatums’ oral argument made the trial court aware of their argument that

Hersh’s denial that she talked with Blow about Paul Tatum should defeat Hersh’s dismissal

motion, we conclude that the Tatums preserved their argument.

2. Did Hersh carry her initial burden under § 27.005(b) despite her denial that
she made the specific statements at issue?

a. Applicable Law.

Civil practice and remedies code § 27.005(b) provides that a TCPA movant must show

by a preponderance of the evidence that the legal action is based on, relates to, or is in response

to the movant’s exercise of a protected right. CIV. PRAC. § 27.005(b). The Tatums’ argument

that Hersh did not carry her § 27.005(b) burden requires us to interpret and apply that statute to

the pleadings and evidence in this case based on a de novo standard of review. See D Magazine

Partners, L.P., 2015 WL 5156908, at *5.

When construing a statute, we attempt to ascertain and effectuate the legislature’s intent.

City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). We start with the plain

and ordinary meaning of the statute’s words. Id. If a statute is unambiguous, we generally

enforce it according to its plain meaning. Id. We read the statute as a whole and interpret it so

as to give effect to every part. Id.; see also Phillips v. Bramlett, 288 S.W.3d 876, 880 (Tex.

2009) (“We further try to give effect to all the words of a statute, treating none of its language as

surplusage when reasonably possible.”).

The TCPA defines the “exercise of the right of free speech” as “a communication made

in connection with a matter of public concern.” CIV. PRAC. § 27.001(3). The TCPA defines

“matter of public concern” as including, among other things, issues relating to health, safety, or

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community well-being. Id. § 27.001(7)(A), (B). Thus, the statute required Hersh to show that

the Tatums’ claims were based on, related to, or were made in response to a communication

Hersh made that related to an issue of health, safety, community well-being, or some other

matter of public concern.

A question that sometimes arises under the TCPA is whether a movant can carry its

§ 27.005(b) burden if the movant denies making the communication that the claimant bases its

claim on. We recently held that the answer is no. See Pickens v. Cordia, 433 S.W.3d 179, 188

(Tex. App.—Dallas 2014, no pet.).

In Pickens v. Cordia, Pamela Pickens sued her brother Michael Pickens, alleging that he

had sent a harmful email about Pamela to various people. Id. at 181–82, 187–88. Michael filed

a TCPA motion to dismiss. Id. at 182. At the hearing, Pamela’s attorney said, apparently

without contradiction, that Michael had denied sending the email, which was sent under the

name “Robert Barris.” Id. at 188. The trial court dismissed Pamela’s claim, but we reversed

based on Pamela’s argument 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.” Id. We said, “Given that [Michael] has denied sending the email, we

conclude chapter 27 does not apply to this cause of action.” Id.

We acknowledged the Pickens holding in a subsequent case. See Am. Heritage Capital,

436 S.W.3d at 882 n.5 (“We recently held that a defendant could not rely on Chapter 27 as to a

particular claim because his defense was that he did not publish the speech allegedly giving rise

to the claim.”).

And, although it held that Pickens was factually distinguishable, the Fort Worth Court of

Appeals has said, “We agree [with Pickens] that a defendant who denies making any

communication may not obtain dismissal by also simultaneously claiming that he was exercising

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his right of free speech by making a communication.” Rauhauser v. McGibney, No. 02-14-

00215-CV, 2014 WL 6996819, at *5 (Tex. App.—Fort Worth Dec. 11, 2014, no pet.) (dismissal

was proper because petition alleged that the defendant made other communications that the

defendant did not deny making); see also Jardin v. Marklund, 431 S.W.3d 765, 773–74 (Tex.

App.—Houston [14th Dist.] 2014, no pet.) (TCPA did not apply because defendant did not make

the communications made the basis of plaintiffs’ claims).

Building on Pickens, the Fifth Circuit Court of Appeals held that a TCPA movant cannot

carry its threshold burden by relying solely on the plaintiff’s pleadings, even if the movant has

not expressly denied making the relevant communication. Culbertson v. Lykos, 790 F.3d 608,

632 (5th Cir. 2015) (“Palmer has not cited any Texas case that specifically holds that a plaintiff’s

own allegations will by themselves satisfy a defendant’s burden under the TCPA. We will not

create such law.”) (footnote omitted).

b. Application of the Law to the Facts.

(1) What statements are the Tatums’ claims based on?

We first examine the Tatums’ live pleading to see what communications they based their

claims on. 4

The Tatums’ live pleading alleges these facts:

Shortly [after Paul’s death], Defendant—with full knowledge of Plaintiffs’
special vulnerability in a time of bereavement—went to Steve Blow (“Blow”), a
columnist for The Dallas Morning News (the “DMN”), and encouraged him to
write a column that would draw attention to Hersh’s recent blog that called for a
discussion of mental illness in suicide victims’ obituaries. Hersh also encouraged
Blow to use Plaintiffs’ choice of wording in the Obituary as a demonstrative and a
specific example of the alleged problem discussed in her blog. Defendant’s
actions culminated in Blow authoring a column that appeared in the DMN on

4
At least two appellate courts have said that a reviewing court should view the pleadings and evidence in the light most favorable to the
nonmovant when deciding whether the movant carried its initial burden under § 27.005(b). See Sloat v. Rathbun, No. 03-14-00199-CV, 2015
WL 6830927, at *3 (Tex. App.—Austin Nov. 6, 2015, no pet. h.); Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214 (Tex. App.—Houston [1st
Dist.] 2014, no pet.). We need not decide whether this is correct because the Tatums prevail even under our neutral, plain-language review of
their live pleading.

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 June 20, 2010—Father’s Day—which promoted Hersh’s blog and brought
unwanted attention to the Plaintiffs for their decision not to discuss suicide in the
Obituary (the “Column”).

....

Plaintiffs’ claims . . . turn simply on whether Hersh’s actions in exploiting
the tragedy of a grieving family for her personal gain by encouraging a third party
to criticize the Plaintiffs’ choice of wording in the Obituary constitute extreme
and outrageous conduct.

....

Hersh promoted Paul’s death and the Obituary to Blow at the DMN as
“news” only three weeks after Paul’s funeral on Monday, June 14, 2010.

....

Hersh’s meeting, emailing of her blog, and “stoking up” of Blow to write
about “the problem of glossing over suicide in obituaries” took place
immediately before the Column’s publication.

....

As a result [of] Hersh’s actions in encouraging Blow to publish the
Column and publicizing their private tragedy, the Tatums suffered sadness,
anxiety, worry, . . . and feelings of being violated by the sudden, unexpected
public criticism. . . .

....

Hersh clearly viewed Paul’s death and Obituary as an opportunity for self-
promotion through publicity and her deliberate and persistent efforts were the
motive force behind Blow’s Column.

(Bold in original.)

The Tatums’ petition then contains a section under the heading “Count 1: Intentional

Infliction of Emotional Distress.” That section begins with the following passage:

As discussed in detail above, Defendant, with full knowledge of the special
vulnerability of Plaintiffs after having lost their son, went to Blow and
encouraged him to make the Tatum tragedy public. The act of using a family’s
private tragedy for one’s own personal publicity by identifying them (i.e., feeding
the “news story” to Blow so as to garner publicity for herself) was so extreme and
outrageous that it shocks the conscience.

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(Emphasis added.) Their live pleading, however, also alleged that Hersh spoke to Blow about

suicide and obituaries in general.

Based on the above discussion of the Tatums’ live petition, we conclude that they based

their intentional infliction claims on statements Hersh allegedly made to Blow that (i) were about

Paul’s death and obituary and (ii) encouraged Blow to write about those facts in a critical way.

(2) How does Pickens apply to the facts of this case?

Next, we review Hersh’s dismissal motion, the responses and replies, and the evidence

filed by both sides.

Hersh’s dismissal motion consistently denied that she made the relevant statements:

• “[T]he evidence conclusively establishes that Ms. Hersh did not make the
statements the Tatums allege.”

• “In this case, the uncontroverted evidence conclusively establishes that
Ms. Hersh did not make the statements the Tatums have attributed to her.”

• “The record evidence conclusively establishes that Ms. Hersh did not
‘feed’ a news story to Mr. Blow about the Tatums.”

• “While both Mr. Blow and Ms. Hersh have acknowledged discussing Ms.
Hersh’s blog post entitled ‘Don’t Omit From the Obit,’ their
uncontroverted deposition testimony conclusively establishes that Ms.
Hersh never mentioned the Tatums to Mr. Blow before his column was
published, or ever accused them of ‘lying.’”

• “Far from providing clear and specific evidence that Ms. Hersh made the
statements the Tatums attribute to her, the testimony of the only two
witnesses present during their discussion establishes that, at most, Mr.
Blow, and not Ms. Hersh, referred to the obituary of Paul Tatum without
using Paul Tatum’s name.”

(Emphases added.)

Furthermore Hersh’s reply brief also denies that she made the relevant statements:

• “The Tatums allege, falsely, that Ms. Hersh also referred Mr. Blow to their
son’s then-recent obituary, which attributed his death to an automobile
accident and did not disclose the fact of his suicide.”

(Emphasis added, footnote omitted.)

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 Moreover, the evidence also contains testimony by both Hersh and Blow about the

substance of the relevant conversation. Both Hersh and the Tatums filed excerpts from Hersh’s

and Blow’s depositions in the Tatums’ separate lawsuit against Blow and The Dallas Morning

News, Inc. 5 Blow testified that he called Hersh before drafting the column and that they talked

about the column’s subject matter. He also testified that he thought he referred to two recent

cases of suicide during that conversation, but he did not believe that he mentioned any specific

names or the specifics of Paul’s death. Blow did not say that Hersh told him about Paul’s suicide

or that Hersh encouraged him to criticize Paul’s obituary. In fact, Blow said that he learned

about Paul’s suicide from sources within the Dallas Morning News.

Additionally, Hersh testified that she met with Blow in person at his office. She also said

that she and Blow “both talked about this issue of, you know, the secrecy about suicide,” and that

she told Blow that she was in the process of writing a blog about a different case of suicide.

Hersh testified that Blow told her there had been an obituary that was not forthcoming about the

cause of death, but no names were mentioned. Hersh did not say that she told Blow about Paul’s

suicide or that she encouraged him to criticize Paul’s obituary.

In sum, Hersh’s motion papers, in which the statute required her to prove by a

preponderance of the evidence that the Tatums’ suit is based on, relates to, or is in response to

Hersh’s exercise of the right of free speech, deny and offer evidence disproving that she made

those very statements on which her motion’s success first hinges.

Based on the above and for purposes of Hersh’s motion to dismiss, we conclude that

Hersh admitted talking with Blow about suicide and secrecy in general, but she denied making

5
For more information about that lawsuit, see footnote 3 supra.

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the alleged statements that the Tatums based their claims on—statements about Paul’s death and

obituary that encouraged Blow to write critically about those facts. 6

Finally, we apply Pickens to these facts. The Tatums argue that Pickens is controlling.

Hersh, however, argues that Pickens is distinguishable because, unlike the defendant in Pickens,

Hersh does not deny that she made some communications to Blow. Specifically, she does not

deny that they discussed suicide, obituaries, and her blog post on those topics. According to

Hersh, “there is no dispute that this communication is the basis of the Tatums’ claims.”

When a defendant denies making the relevant statements, as Hersh does here, her

dismissal motion necessarily denies that the claim is based on, relates to, or is in response to “the

party’s exercise of . . . the right of free speech.” CIV. PRAC. § 27.005(b). In essence, Hersh asks

us to rewrite § 27.005(b) to require a motion to dismiss to show that the claim is based on, relates

to, or is in response to the defendant’s alleged exercise of a protected right. But “[a] court may

not judicially amend a statute by adding words that are not contained in the language of the

statute.” Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015) (per curiam).

Based on Pickens and a de novo review of the record before us, we are not persuaded

that, for purposes of her TCPA motion to dismiss, Hersh carried her burden of showing that she

made the statements on which the Tatums’ claims are based. 7 Indeed, the record in this case

demonstrates that Hersh’s denial that she made the relevant statements is even more forceful than

the denial in Pickens.

Accordingly, for the above reasons, the trial court erred by granting Hersh’s dismissal

motion.

6
Again, two appellate courts have said that a reviewing court should view the pleadings and evidence in the light most favorable to the
nonmovant in a § 27.005(b) analysis. See Sloat, 2015 WL 6830927, at *3; Cheniere Energy, Inc., 449 S.W.3d at 214. We need not decide
whether this is correct because the Tatums prevail even under a neutral review of the evidence.
7
This conclusion is for purposes of this appeal only, and should not be construed as a ruling either way on the ultimate resolution of that
question.

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 3. Conclusion.

We thus sustain the Tatums’ first appellate issue and need not address their remaining

issues.

D. Hersh’s Cross-Appeal.

Hersh’s cross-appeal argues that the trial court erred by failing to award her attorneys’

fees she incurred for the proceedings in the trial court and by failing to award her any sanctions.

Because Hersh was not entitled to dismissal of the Tatums’ claims, she also was not entitled to

recover attorneys’ fees or sanctions. See CIV. PRAC. § 27.009(a) (fees and sanctions are

contingent on dismissal of a legal action). Accordingly, we reject her arguments that the trial

court erred by failing to award her any sanctions or trial-level attorneys’ fees and affirm the

denial of those sanctions and fees.

III. CONCLUSION

We affirm the trial court’s judgment to the extent it denies appellee’s requests for trial-

level attorneys’ fees and sanctions. We reverse the remainder of the judgment and remand the

case for further proceedings consistent with this opinion.

/Bill Whitehill/
BILL WHITEHILL
JUSTICE
141318F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JOHN TATUM AND MARY ANN On Appeal from the 68th Judicial District
TATUM, Appellants/Cross-Appellees Court, Dallas County, Texas
Trial Court Cause No. DC-14-04185.
No. 05-14-01318-CV V. Opinion delivered by Justice Whitehill.
Justices Lang and Evans participating.
JULIE HERSH, Appellee/Cross-Appellant

In accordance with this Court’s opinion of this date, we AFFIRM the judgment of the
trial court to the extent it denies appellee/cross-appellant Julie Hersh’s requests for trial-level
attorneys’ fees and sanctions. The remainder of the judgment of the trial court is REVERSED
and this cause is REMANDED to the trial court for further proceedings.

It is ORDERED that appellants/cross-appellees John Tatum and Mary Ann Tatum
recover their costs of this appeal from appellee/cross-appellant Julie Hersh.

Judgment entered this 30th day of December, 2015.

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