COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ERIC B. DARNELL, Individually. and §
ERIC B. DARNELL, P.C.,
§
Appellants, 08-17-00067-CV
§
v. Appeal from the 205th District Court
§
LEE H. ROGERS, JR., DOROTHY R. of El Paso County, Texas
KEEBLE, BARBARA R. ROWE, and §
LINDA R. FITE (TC# 2016DCV0857)
§
Appellees.
§
OPINION
Appellants Eric B. Darnell, individually, and Eric B. Darnell, P.C. (collectively, “Darnell”)
appeal from the trial court’s dismissal of their claims against Appellees Lee H. Rogers, Jr., Dorothy
R. Keeble, Barbara R. Rowe, and Linda R. Fite. The court dismissed Darnell’s claims against
Rogers pursuant to the Texas Citizen’s Participation Act (“TCPA”). It dismissed Darnell’s claims
against the remaining Appellees pursuant to Rule 91a of the Texas Rules of Civil Procedure. See
TEX.CIV.PRAC.&REM.CODE ANN. §§ 27.001, et seq.; TEX.R.CIV.P. 91a.
BACKGROUND
Lee Rogers retained Darnell to probate his mother’s will. Rogers became dissatisfied with
Darnell’s representation because the matter was not pursued within the time promised and Darnell
would not return either Rogers’ or his sisters’ telephone calls. Darnell moved to withdraw from
representing Rogers and made statements in the motion to withdraw that Rogers asserts are false.
Rogers demanded that Darnell return the $1,500 he had paid him, but Darnell refused. On
February 24, 2016, Rogers filed a grievance against Darnell with the State Bar of Texas.
Darnell filed suit on March 4, 2016, against Rogers and his sisters, Dorothy R. Keeble,
Barbara R. Rowe, and Linda R. Fite. He did not, however, serve Appellees with process until
August 1, 2016. In his petition, Darnell asserts causes of action for libel, slander, negligent
misrepresentation, defamation, business disparagement, aiding and assisting in each claim, aiding
and participating in each claim, acting in participation in each claim, and conspiracy. We note that
libel and slander are merely the means by which defamation occurs.1 Dallas Morning News, Inc.
v. Tatum, 554 S.W.3d 614, 623 (Tex. 2018), cert. denied, 139 S.Ct. 1216, 203 L.Ed.2d 208 (2019).
We will, therefore, address those claims under the umbrella of defamation rather than separately.
Darnell alleges that, in 2015 and into 2016, Appellees began making negative statements
about him to “various individuals,” including court personnel. Darnell then makes the following
fact statement, which he incorporates by reference into his various causes of action.
14. The DEFENDANTS would alternate leaving borderline psychotic messages
on the voice message system making claims related to and alleging that this Firm
had or agreed to represent each of them when, in fact, each of the DEFENDANTS,
including DEFENDANT KEEBLE, DEFENDANT ROWE and DEFENDANT
FITE, and that they had retained this Firm to represent them knowing that the
foregoing statements were not true and, not only were the statements not true, the
statements were false because this Firm was representing an individual,
DEFENDANT ROGERS, who was adverse to each of them and who had adverse
interests to their interests.
15. Said representations included misstatements such as the following:
1
Slander is an oral defamatory statement; libel is a written defamatory statement. Dallas Morning News,
554 S.W.3d at 623.
2
a. DEFENDANTS demanded return phone calls despite being adverse to a Client
of this Firm;
b. DEFENDANTS demanded personal and confidential information related to a
Client of this Firm; and,
c. as well as other defamatory statements and representations.
Appellees answered and raised a variety of defensive matters, including an allegation that
Darnell’s suit was filed in retaliation for Rogers filing an ethics complaint against him with the
State Bar of Texas. Appellees also filed numerous special exceptions asserting defects in Darnell’s
pleadings. The record does not contain any ruling on these special exceptions.
Rogers filed a motion to dismiss the suit against him pursuant to the TCPA. He alleges
that filing a grievance against Darnell with the State Bar of Texas is an exercise of his right to
petition, as protected under the TCPA. The motion to dismiss is supported by Rogers’ affidavit, a
copy of the grievance, and a copy of a letter Rogers sent to Darnell on October 20, 2015. That
letter states, in part, “I hereby demand that you return the $1,500 that I paid you. If I don’t receive
the money within 10 days, I will do whatever is afforded to me by law to collect it.” Rogers also
filed a supplemental affidavit, in which he stated that his sister, Keeble, had left a message for
Darnell telling him she knew how to get in touch with the bar association.
Appellees Keeble, Rowe, and Fite filed a motion to dismiss the suit against them pursuant
to Rule 91a of the Texas Rules of Civil Procedure. They assert that those claims have no basis in
law or in fact. In particular, they assert that, “[b]ecause the Plaintiffs have failed to plead any facts
supporting of any cause of action, it is not possible to determine whether the Plaintiffs are entitled
to any relief on any cause of action. No reasonable person could believe the facts pleaded because
there are none.”
On November 14, 2016, the trial court signed an order granting Keeble, Rowe, and Fite’s
Rule 91a motion and dismissing Darnell’s claims against them. The order states that Darnell’s
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petition “fails to state sufficient facts to allow reasonable inference to be reasonably drawn from
the allegations that the Plaintiffs are entitled to the relief sought.” The court ordered Darnell to
pay attorney’s fees in the amount of $4,754.03.
On the same day, the trial court signed an order granting Rogers’ TCPA motion and
dismissing Darnell’s claims against him. The order states that Darnell’s claims are “based on
statements made by Defendant Rogers to the State Bar of Texas which is protected speech.” The
court ordered Darnell to pay attorney’s fees in the amount of $5,335.00.
On December 5, 2016, the two dismissal orders were incorporated into a final take-nothing
judgment which orders Darnell to pay a total of $10,089.03 in attorney’s fees. This appeal
followed.
ISSUES
Darnell raises twelve issues, which fall into three general categories: (1) error in granting
the motion to dismiss under the TCPA, so the award of attorney’s fees based on TCPA cannot
stand (Issues One, Two, Three, and Twelve); (2) error in granting the motion to dismiss pursuant
to Rule 91a (Issues Four, Five, Six, Eight, and Ten); and (3) error in awarding attorney’s fees
(Issues Seven, Nine, and Eleven).
STANDARD OF REVIEW
Dismissal under the TCPA
A trial court’s order dismissing a claim under the TCPA is reviewed de novo. Dallas
Morning News, Inc. v. Hall, No. 17-0637, 2019 WL 2063576, at *5 (Tex. May 10, 2019); MVS
Int’l Corp. v. Int’l Advert. Sols., LLC, 545 S.W.3d 180, 190 (Tex.App.—El Paso 2017, no pet.).
The court first examines whether the defendant invoked the TCPA by showing, by a preponderance
of the evidence, that the plaintiff’s claim “is based on, relates to, or is in response to the
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[Defendant’s] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of
association.” TEX.CIV.PRAC.&REM.CODE ANN. § 27.005(b); see MVS Int’l, 545 S.W.3d at 190.
If that burden is sustained, then the court examines whether the plaintiff “establishe[d] by clear
and specific evidence a prima facie case for each essential element of the claim in question.”
TEX.CIV.PRAC.&REM.CODE ANN. § 27.005(c); see MVS Int’l, 545 S.W.3d at 190.
Dismissal under Rule 91a
The merits of a Rule 91a motion to dismiss are reviewed de novo “because the availability
of a remedy under the facts alleged is a question of law and the rule’s factual-plausibility standard
is akin to a legal-sufficiency review.” City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016);
see Aguilar v. Morales, 545 S.W.3d 670, 676–77 (Tex.App.—El Paso 2017, pet. denied). In
conducting that review, the Court applies the Texas fair notice pleading standard, under which a
petition is sufficient “if it gives fair and adequate notice of the facts upon which the pleader bases
his claim.” Aguilar, 545 S.W.3d at 677 (quoting Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)).
In other words, the court must “assess the sufficiency of pleadings by determining whether an
opposing party can ascertain from the pleading the nature, basic issues, and the type of evidence
that might be relevant to the controversy.” Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007).
A court applying the fair notice standard to a Rule 91a motion to dismiss must construe the
pleadings liberally in the plaintiff’s favor, look to the pleader’s intent, and accept as true the
pleading’s factual allegations. In re RNDC Texas, LLC, No. 05-18-00555-CV, 2018 WL 2773262,
at *1 (Tex.App.—Dallas June 11, 2018, orig. proceeding)(mem. opn.); In re Odebrecht Constr.,
Inc., 548 S.W.3d 739, 746 (Tex.App.—Corpus Christi 2018, orig. proceeding). “If a petition
provides sufficient facts to give fair notice of the claim, then a motion seeking dismissal based on
lack of a basis in fact should be denied. Similarly, if nothing in the pleading itself triggers a clear
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legal bar to the claim, then there is a basis in law and the motion should be denied.” [Citation
omitted]. In re RNDC, 2018 WL 2773262, at *1.
DISCUSSION
Dismissal under the TCPA
The threshold question under the TCPA is whether the defendant established, by a
preponderance of the evidence, that the lawsuit against him is based on, related to, or made in
response to his exercise of the right of free speech, the right to petition, or the right of association.
Dallas Morning News, 2019 WL 2063576, at *4; Deaver v. Desai, 483 S.W.3d 668, 672
(Tex.App.—Houston [14th Dist.] 2015, no pet.); TEX.CIV.PRAC.&REM.CODE ANN. § 27.003(a).
Rogers asserted in his motion to dismiss that Darnell’s suit against him was related to, or made in
response to, his exercise of the right to petition by filing a grievance with the State Bar of Texas.
Darnell asserts that Rogers failed to sustain his burden of proof on this issue. We agree.
In evaluating a motion to dismiss under the TCPA, the court is directed to consider “the
pleadings and supporting and opposing affidavits stating the facts on which the liability or defense
is based.” TEX.CIV.PRAC.&REM.CODE ANN. § 27.006(a). Rogers supported his motion with an
affidavit stating that he filed a grievance against Darnell on February 24, 2016, and that Darnell
filed his lawsuit on March 4, 2016. Rogers was not served with the lawsuit until August 1, 2016.
Rogers then states, “although Mr. Darnell never specifies any defamatory statement made by me
or my sisters, I know it must be in relation to the grievance that I filed with the State Bar of Texas.”
In a supplemental affidavit, Rogers states that Darnell “knew full well that I would be filing a
grievance.” The basis for this assertion is that Keeble had left a message for Darnell in September
2015 informing him that she “knew how to get ahold of the state bar,” and Rogers had sent Darnell
a letter demanding that he return the fee Rogers paid him. Rogers maintains that the “only
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conclusion” he could draw from these facts is that Darnell “probably filed this lawsuit as a
preemptive measure” and did so “in relation for [sic] my filing the grievance against him.”
A review of Darnell’s petition shows that his claims against Rogers are based on alleged
false, defamatory, or disparaging statements made by Rogers to “various individuals, including
but not limited to Court personnel.” There is no mention of a grievance or any other
communication with the State Bar of Texas. And, more problematically for Rogers’ position,
Darnell demonstrated that he did not receive notice of the grievance against him until after he filed
his lawsuit. Rogers argues on appeal that Darnell’s suit “can only be characterized as a preemptive
effort” to dissuade him from filing a grievance. But there is no evidence to support this argument.
Rogers’ affidavit statements that he “knew” the lawsuit “must be in relation to the grievance,” and
that the “only conclusion” is that Darnell “probably” filed suit as a preemptive measure, are mere
speculation. Those statements have no probative value and do not constitute any evidence. See
Kramer v. Kastleman, 508 S.W.3d 211, 231 n.100 (Tex. 2017)(speculative evidence is no
evidence).
In addition, neither the fact that Keeble told Darnell that she knew how to get in touch with
the bar association nor Rogers’ demand for the return of his fee supports an inference that Darnell
was so concerned that Keeble or Rogers might actually file a grievance that, four or five months
later, he filed suit to discourage them from doing so.
Finally, Rogers finds significance in the fact that Darnell waited three or four months after
filing suit to request service of process. He maintains that this delay “seems to speak volumes
about [Darnell’s] intent.” There is, however, no evidence of the reason for the delay in requesting
service of process. Rogers’ speculation that the delay somehow relates to his grievance does not
constitute any such evidence. See id.
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Rogers did not establish, by a preponderance of the evidence, that Darnell’s claims against
him are related to, or made in response to, Rogers’ exercise of the right to petition. See Dallas
Morning News, 2019 WL 2063576, at *4; TEX.CIV.PRAC.&REM.CODE ANN. § 27.003(a). He
therefore failed to sustain his threshold burden under the TCPA. See Dallas Morning News, 2019
WL 2063576, at *4; Deaver, 483 S.W.3d at 672. For this reason, the burden never shifted to
Darnell to establish by clear and specific evidence a prima facie case for each essential element of
his claims. See TEX.CIV.PRAC.&REM.CODE ANN. § 27.005.
The trial court erred by granting Rogers’ motion to dismiss under the TCPA. The judgment
is reversed insofar as it dismisses and orders a take-nothing judgment on Darnell’s claims against
Rogers. Darnell’s argument in issue one that asserts a dismissal based on the TCPA is erroneous
is sustained.
Dismissal under Rule 91a
A party may move to dismiss a cause of action “on the grounds that it has no basis in law
or fact.” TEX.R.CIV.P. 91a.1. “A cause of action has no basis in law if the allegations, taken as
true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief
sought. A cause of action has no basis in fact if no reasonable person could believe the facts
pleaded.” Id. The motion “must identify each cause of action to which it is addressed, and must
state specifically the reasons the cause of action has no basis in law, no basis in fact, or both.” Id.
at 91a.2. The trial court may not hear evidence on the motion, but must decide it “based solely on
the pleading of the cause of action.” Id. at 91a.6; see AC Interests, L.P. v. Texas Comm'n on Envtl.
Quality, 543 S.W.3d 703, 706 (Tex. 2018).
In five issues, Darnell contends that the trial court erred by granting the Rule 91a motion
to dismiss because: (1) his claims have a basis in law and fact; (2) his pleadings were not required
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to contain “evidence or any factual detail;” (3) the court failed to apply “the factual basis test;” (4)
the court erred by concluding his claims had no basis in law based on its determination that
Darnell’s pleading contained insufficient facts; and (5) the court employed a definition unrelated
to the rule’s definitions of “no basis in law” or “no basis in fact.” These five issues, in essence,
assert that the trial court did not properly apply the law in assessing whether his petition sufficiently
demonstrated that his causes of action have a basis in fact.
Whether a petition sufficiently alleges a cause of action to survive a Rule 91a motion to
dismiss is determined by applying Texas’s “fair notice” pleading standard. Thomas v. 462 Thomas
Family Properties, LP, 559 S.W.3d 634, 639 (Tex.App.—Dallas 2018, pet. denied); Reaves v. City
of Corpus Christi, 518 S.W.3d 594, 599 (Tex.App.—Corpus Christi 2017, no pet.); Koenig v.
Blaylock, 497 S.W.3d 595, 599 (Tex.App.—Austin 2016, pet. denied). Under this standard, “[a]
petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases
his claim.” Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982).
Defamation and business disparagement
Darnell alleged in his petition that in 2015 and into 2016, Appellees “began publishing
negative statements regarding [Darnell]” . . . “to various individuals, including but not limited to
Court personnel.” The petition does not indicate the manner of publication, the content of any
“negative” statements, whether or how any such statements were false, the identity of the “various
individuals” to whom the statements were made, or the context of any statements to court
personnel, such as whether those statements were contained in a legal pleading. This allegation is
insufficient to give fair and adequate notice of the facts on which Darnell bases his claims. See
Roark, 633 S.W.2d at 810.
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Darnell next alleges as fact that Keeble, Rowe, and Fite (1) left voicemail messages falsely
stating that Darnell represented, or agreed to represent, them; (2) demanded return phone calls
even though they were not clients and were adverse to a firm client (presumably Rogers); and (3)
demanded confidential information about a firm client (again, presumably Rogers). Claims for
defamation and business disparagement both require that the defendant publish a falsehood to a
third party. See Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017)(defamation);
In re Lipsky, 460 S.W.3d 579, 592 (Tex. 2015)(business disparagement). A demand from a non-
client that a lawyer return phone calls or provide confidential information may be unwarranted,
but it does not constitute a falsehood. In addition, each of the statements cited above was alleged
to have been made to Darnell, not to a third party. As a result, those allegations, taken as true and
together with inferences reasonably drawn from them, do not entitle Darnell to relief for
defamation or business disparagement. See TEX.R.CIV.P. 91a; Rincones, 520 S.W.3d at 579; In
re Lipsky, 460 S.W.3d at 592.
Our analysis does not end, however, with the facts alleged in the general fact statement
section of Darnell’s petition. While the petition, for the most part, simply incorporates that general
fact statement by reference and then recites the elements of the various causes of action, Darnell
does allege additional facts in support of his claim for defamation. In particular, Darnell alleges
that “DEFENDANTS have published multiple statements, both written and verbal, individually
and in combination, asserting as fact that PLAINTIFFS improperly took or accepted or demanded
payments as well as other wrongful activities.” He further alleges that those statements were “false
because the statements misrepresented the operations, policies, and practices of Plaintiff.”
Keeble, Rowe, and Fite, relying on Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002), contend
that these allegations are insufficient because they are too vague to be objectively verifiable. But
10
Bentley’s discussion of verifiability concerns distinguishing between a statement of fact and an
expression of opinion. See id. at 583. Our concern here is whether the allegations, taken as true
and together with inferences reasonably drawn therefrom, are sufficient to give fair and adequate
notice of the facts upon which Darnell bases his claim for defamation. Roark, 633 S.W.2d at 810.
We conclude that they are. Read in the context of the pleading as a whole, Darnell alleges that
Keeble, Rowe, and Fite made false statements accusing him and his law firm of financial
misconduct in relation to providing legal services. While Darnell does not specifically allege to
whom those false statements were published, unlike his earlier allegations, he does not negate that
element by alleging that the statements were made directly to him. See In re RNDC, 2018 WL
2773262, at *1 (pleading has basis in law if contents do not trigger clear legal bar to claim).
“Rule 91a provides a harsh remedy that should be strictly construed.” Id. Darnell’s petition
alleges sufficient facts to give fair notice of a claim for defamation based on the publication to
third persons of false accusations of financial wrongdoing, and does not trigger a clear legal bar to
that claim. See id. The trial court therefore erred by granting the Rule 91a motion to dismiss
Darnell’s claim against Keeble, Rowe, and Fite for defamation.
Darnell’s allegations in support of his claim for business disparagement are similar, but not
identical, to the allegations in support of his claim for defamation. He alleges that Appellees
published multiple statements “which included disparaging words about the PLAINTIFFS which
disparaged the business of the PLAINTIFFS,” but does not include the more specific allegation of
financial misconduct. He does, however, reiterate the allegation that the statements misrepresented
his and his law firm’s practices, policies, and procedures.
Again, construing the petition liberally in Darnell’s favor, we conclude that it alleges
sufficient facts to give fair notice of a claim for business disparagement and does not trigger a clear
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legal bar to that claim. See id. The trial court therefore erred by granting the Rule 91a motion to
dismiss Darnell’s claim against Keeble, Rowe, and Fite for business disparagement.
The judgment is reversed insofar as it dismisses and orders a take-nothing judgment on
Darnell’s claims against Keeble, Rowe, and Fite for defamation and business disparagement. We
find the slander and libel cause of action are subsumed by defamation. The claims, defamation
and business disparagement, are remanded to the trial court for further proceedings.
Negligent misrepresentation
A claim for negligent misrepresentation requires that a defendant “suppl[y] false
information for the guidance of others in their business.” Ramirez v. First Liberty Ins. Corp., 458
S.W.3d 568, 576 (Tex.App.—El Paso 2014, no pet.). The factual underpinning of Darnell’s claim
for negligent misrepresentation is that Appellees “negatively published multiple statements and
representations . . . asserting as a fact that [Darnell] wrongfully and improperly or wrongfully and
improperly attempted to obtain funds from various Family members.” This allegation, taken as
true and together with inferences reasonably drawn from it, cannot be read to allege that this false
information was supplied for the guidance of others in their business. Darnell’s claim for negligent
misrepresentation thus lacks any basis in law or fact. See TEX.R.CIV.P. 91a.
In addition, another essential element of negligent misrepresentation is that the plaintiff
show “actual and justifiable reliance.” Grant Thornton LLP v. Prospect High Income Fund, 314
S.W.3d 913, 923 (Tex. 2010). The false information alleged in Darnell’s petition concerned a
matter about which Darnell had personal knowledge. Although Darnell summarily alleges that he
relied on this false information, no reasonable person could believe that he did so. See
TEX.R.CIV.P. 91a. In addition, no such reliance would be justifiable, as a matter of law. See Grant
Thornton, 314 S.W.3d at 923. For this additional reason, the claim for negligent misrepresentation
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lacks any basis in law or fact.
The trial court did not err by granting the Rule 91a motion to dismiss Darnell’s claim
against Keeble, Rowe, and Fite for negligent misrepresentation. The judgment is affirmed insofar
as it dismisses and orders a take-nothing judgment on that claim.
Remaining claims
Darnell also alleged, and the trial court dismissed, claims for aiding and assisting, aiding
and participating, acting in participation, and conspiracy. Darnell’s petition contains no facts
supporting any of the elements of any of these claims. Rather, the petition merely recites those
elements in general terms. In addition, Darnell makes no attempt in his brief on appeal to identify
any factual allegations supporting these claims. In fact, he offers no argument or analysis
specifically addressed to these claims.
While a plaintiff is not required to plead evidence or provide a detailed rendition of the
facts underlying his claims, fair notice pleading does require that the petition give “fair and
adequate notice of the facts upon which the pleader bases his claim.” Roark, 633 S.W.2d at 810.
Darnell’s petition fails to give any notice of the facts on which he bases his claims for aiding and
assisting, aiding and participating, acting in participation, and conspiracy. For this reason, the trial
court did not err by concluding that those claims lack any basis in fact or law and by granting the
Rule 91a motion to dismiss those claims.
The judgment is affirmed insofar as it dismisses and orders a take-nothing judgment on
Darnell’s claims against Keeble, Rowe, and Fite for aiding and assisting, aiding and participating,
acting in participation, and conspiracy. Darnell’s Issues Four, Five, Six, Eight, and Ten are
overruled as to all the alleged causes of action except for defamation and business disparagement
which are sustained.
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Attorney’s fees
The TCPA mandates that, if the court dismisses a claim pursuant to that statute, it shall
award to the movant “court costs, reasonable attorney’s fees, and other expenses incurred in
defending against the legal action as justice and equity may require.” TEX.CIV.PRAC.&REM.CODE
ANN. § 27.009(a)(1). The judgment in this case orders Darnell to pay Rogers $5,335.00 for
attorney’s fees. While the judgment does not expressly state the basis for this award, the only
basis asserted by Rogers is the TCPA.
We have held above that the trial court erred by granting Rogers’ TCPA motion and
dismissing Darnell’s claims against him. Because Rogers is not entitled to dismissal under the
TCPA, he is not entitled to an award of attorney’s fees under that statute. That portion of the
judgment ordering Darnell to pay Rogers $5,335.00 for attorney’s fees is reversed and judgment
is rendered that Rogers take nothing on his claim for attorney’s fees under the TCPA. Darnell’s
Issue One is sustained in toto. 2
Like the TCPA, Rule 91a also mandates that the court award to the prevailing party “all
costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of
action . . . .” TEX.R.CIV.P. 91a7. The judgment here orders Darnell to pay Keeble, Rowe, and
Fite $4,754.03 for attorney’s fees. The only basis asserted for this award is Rule 91a.
We have held above that the trial court erred by granting the Rule 91a motion to dismiss
as to Darnell’s claims for defamation and business disparagement. Thus, Keeble, Rowe, and Fite
remain prevailing parties on the motion to dismiss in regard to some, but not all, of Darnell’s
claims against them. As a result, they are entitled to an award of reasonable and necessary
attorney’s fees incurred with respect to the dismissed claims—Darnell’s claims for negligent
2
Due to our resolution of Issue One, it is unnecessary to address Issues Two, Three and Twelve. TEX.R.APP.P.47.1.
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misrepresentation, aiding and assisting, aiding and participating, acting in participation, and
conspiracy. The amount of such fees is a matter to be determined by the trial court.
That portion of the judgment awarding attorney’s fees to Keeble, Rowe, and Fite is
reversed and judgment is rendered that they take nothing on their claims for attorney’s fees relating
to their Rule 91a motion to dismiss Darnell’s claims for defamation and business disparagement.
Keeble, Rowe, and Fite’s claim for attorney’s fees relating to their Rule 91a motion to dismiss
Darnell’s remaining claims is remanded to the trial court of further proceedings. Darnell’s Issues
Seven, Nine, and Eleven are sustained in part (as to defamation and business disparagement) and
overruled in part (all other alleged causes of action).
CONCLUSION
That portion of the final judgment dismissing Darnell’s claims against Keeble, Rowe, and
Fite for defamation and business disparagement is reversed and those claims are remanded to the
trial court for further proceedings. The award of attorney’s fees to Rogers pursuant to the TCPA
is reversed and judgment is rendered that Rogers take nothing on that claim for fees.
That portion of the final judgment dismissing Darnell’s remaining claims against Keeble,
Rowe, and Fite is affirmed. The award of attorney’s fees to Keeble, Rowe and Fite pursuant to
Rule 91a is reversed and that claim for fees is remanded to the trial court for further proceedings
to determine the reasonable and necessary fees incurred with respect to the claims for negligent
misrepresentation, aiding and assisting, aiding and participating, acting in participation, and
conspiracy.
July 5, 2019
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
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