In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00126-CV
___________________________
JAN MOGGED, JAMES RICHARD FLETCHER, AND MICHAEL ALAN
TAYLOR, Appellants and Appellees
V.
BOBBY WAYNE LINDAMOOD JR. AND JR’S DEMOLITION & EXCAVATION,
INC., Appellees and Appellants
On Appeal from the 348th District Court
Tarrant County, Texas
Trial Court No. 348-278342-15
Before the En Banc Court 1
1
The en banc court for this appeal consists of all current members of the court who are not
recused and Chief Justice Brian Quinn (sitting by assignment), who was a member of the panel on
original submission and is eligible for assignment to this court. See Tex. R. App. P. 41.2(a). The
Honorable Bill Meier, former justice of this court, was a member of the panel on original
submission. But Justice Meier did not participate in this opinion because his term of office expired
on December 31, 2018, and he is not eligible for assignment to the court. See id.; see Tex. Gov’t Code
Memorandum Opinion by Justice Kerr
Concurring and Dissenting Memorandum Opinion by Chief Justice Quinn
Ann. § 74.003(b). Justices Dabney Bassel, Dana Womack, and Mike Wallach are recused. See Tex. R.
App. P. 16.2.
2
MEMORANDUM OPINION ON EN BANC RECONSIDERATION
After the panel issued its opinion,2 two of the three appellants moved for
rehearing and en banc reconsideration. On our own motion, we ordered en banc
reconsideration of this appeal and withdrew the panel’s opinion of December 31,
2018 in its entirety; we now substitute the following.
This case involves the Texas Citizens Participation Act. See Tex. Civ. Prac. &
Rem. Code Ann. §§ 27.001–.011. 3 After Jan Mogged, James Richard Fletcher, and
Michael Alan Taylor (collectively, the Mogged Parties) obtained dismissal under the
TCPA of defamation-related claims that were filed against them, they appealed the
trial court’s award of attorney’s fees and sanctions—too little, they say. Bobby Wayne
Lindamood Jr. complains about the dismissal, arguing that he met his TCPA burden
as nonmovant to present clear and specific evidence of each element of his claims.
JR’s Demolition & Excavation, Inc., the business Lindamood owns, had nonsuited its
claims before the trial court ruled on the Mogged Parties’ TCPA motion but, like
Lindamood, seems to challenge the dismissal. (“Plaintiffs cross-appeal that granting
See Mogged v. Lindamood, No. 02-18-00126-CV, 2018 WL 6920502 (Tex. App.—
2
Fort Worth Dec. 31, 2018, pet. abated) (mem. op.).
3
The TCPA was amended in 2019. See Act of May 17, 2019, 86th Leg., R.S., ch.
378, H.B. 2730, §§ 1–9 (amending Act of May 24, 2013, 83d Leg., R.S., ch. 1042, §§ 1–
3, 5, 2013 Tex. Gen. Laws 2499, 2499–500; Act of May 21, 2011, 82d Leg., R.S., ch.
341, § 2, 2011 Tex. Gen. Laws 961, 961–64). These amendments do not apply to this
case. See id. §§ 11–12. All our references are to the pre-2019 version.
3
the TCPA motion was error.”) Lindamood and JR’s Demolition are fine with the trial
court’s attorney’s-fee and sanctions awards if the dismissal stands.4
We will affirm the dismissal of all claims against the Mogged Parties. In light of
intervening authority on how trial courts are to assess reasonable and necessary
attorney’s fees, we will reverse and remand that issue but will affirm the
$1,000 sanctions award as being within the trial court’s discretion.
I. Background
In the spring of 2015, one city-council election in Colleyville, Texas, was
particularly contentious, pitting Lindamood against Taylor, the incumbent. Among
other things, the two men disagreed about the polarizing issue of whether to widen a
major thoroughfare in this wealthy suburban town northeast of Fort Worth.
Lindamood opposed reconstructing Glade Road, while Mogged and Fletcher were
Taylor supporters who agreed with Taylor that Glade Road should be widened.
Mogged is married to former Colleyville councilman Chuck Mogged, and Fletcher is a
businessman who lives in Colleyville. A political-action committee called Protect
Colleyville had been formed to promote the street’s widening.
4
Even though JR’s Demolition nonsuited its claims, the Mogged Parties had
already filed their TCPA motion, so JR’s Demolition remained on the hook for
attorney’s fees and sanctions—hence its inclusion as an appellee to the Mogged
Parties’ appeal.
4
A. Lindamood’s stepmother’s lawyer passes along to Taylor a 2011 deposition
of Lindamood that was not flattering to Lindamood; Taylor shares part of it
with his supporters on April 29, 2015.
This defamation action finds its genesis in a 2011 deposition that Lindamood
had given as part of a nasty family-business dispute with his stepmother, Kayla
Lindamood, following Lindamood Sr.’s death. During the deposition, Lindamood was
questioned about a number of salacious-sounding incidents in which he was or was
not allegedly involved to varying degrees.
Kayla’s attorney called Taylor on April 27—less than two weeks before the
May 9, 2015 Colleyville municipal election—offering information on Lindamood.
Taylor referred the attorney to his own lawyer so that the information’s “authenticity
and legality” could be verified. Two days later Taylor received an email from Kayla’s
attorney with three deposition transcripts attached, one of which was Lindamood’s.
After reviewing that transcript, Taylor printed out a seven-page excerpt (“the
Handout”). Within these pages, Taylor highlighted in yellow and underlined in red the
deposition testimony that he considered important, redacting only the name of
Lindamood’s stepsister “Mandy”; Taylor then made several copies and gave them to
campaign workers who were attending a meeting of the Protect Colleyville PAC later
that same day. Except for the highlights and underlining, Taylor did not further
annotate the Handout by adding any language or marginal notes to it.
According to Taylor, his supporters at that meeting “agreed that the voters
should know this information,” but everyone also agreed that “we could not use the
5
sworn testimony in any way. And I did not.” Although Mogged was not there, her
husband attended the April 29 meeting, obtained a copy of the Handout, and later
showed it to her.
B. While campaigning door-to-door on May 1, 2015, Mogged hints at
forthcoming “bad” information about Lindamood.
Two days after the PAC meeting, Mogged was block-walking in support of
both Nancy Coplen, a candidate for another contested city-council race, and the
widening of Glade Road, but not specifically in support of Taylor on that occasion.
Lindamood’s petition alleged that Mogged was “dressed up in clothes in colors that
affirmed she was a member of and speaking for [the Protect Colleyville] PAC.”
Mogged encountered Richard and Linda Newton, who questioned Taylor’s character
and asked why Mogged would be supporting him. Mogged defended Taylor and
cautioned the Newtons that “information existed about Bobby Lindamood that was
bad for him.” Mogged denied having offered any specifics during this encounter,
although the Newtons both asserted that Mogged had referred to something “bad”
about a “trip to Las Vegas.”
C. Using the Lindamood deposition excerpts and adding scurrilous marginal
commentary, someone works up a negative piece that appears in selected
Colleyville mailboxes on May 4, five days before the election.
Around May 4, an annotated version of the seven-page Handout surfaced in
the mailboxes of some Colleyville residents. This mailer was titled “Colleyville Voter
Alert” and included underlining and editorializing marginalia—all in red print—such
6
as “The name redacted is an underage family member that chose not to be identified”
and “Did ‘It’ stop because Bobby’s Dad walked in while Bobby was sexually
assaulting a drunk minor?” Superimposed on the Alert’s final page was this language:
7
Although the Alert, like the Handout, contained red underlining, it was not in
identical places, nor did the Alert contain yellow highlighting as in the Handout. Also
different was the means of redacting Mandy’s name: the Handout covered it over with
a red-bordered white rectangle, the Alert with a superimposed black rectangle.
The record says nothing about whether Kayla or her lawyer shared
Lindamood’s deposition with anyone other than Taylor. Lindamood acknowledged
that he and Kayla had “a considerable amount of ‘bad blood’” between them
extending over many years.
No direct evidence is in the record of who created or published the Alert to
Colleyville voters, or even whether the creator and publisher was the same person.
D. On the NextDoor social-media site, Fletcher calls Lindamood a “sexual
predator” and cautions against voting for “ethical uncertainty.”
Around the time the Alert was published, Fletcher posted this on NextDoor:
“Vote for a sexual predator? I don’t think Colleyville needs to vote for ethical
uncertainty. Vote for Stability. Vote for Taylor.”
E. Lindamood promptly sues for defamation, tortious interference with his
business, and conspiracy; two days after filing suit, he loses the election.
On May 7, 2015, two days before the municipal election, Lindamood and JR’s
Demolition sued the Mogged Parties, the Protect Colleyville PAC, Kayla, and Mandy.5
Lindamood’s petition alleged that the Mogged Parties and the PAC had defamed him;
5
Lindamood nonsuited the PAC less than a month after this case started; he
nonsuited Mandy and Kayla in May 2016 and December 2016, respectively.
8
had tortiously interfered with his business, JR’s Demolition, by publishing the Alert;
and had conspired to “unlawfully deprive Plaintiffs Bobby [Lindamood] and JR of
their reputations by casting false and defamatory statements about them to the general
public at large.” In addition, Lindamood alleged that on May 4, Fletcher had
“disparaged” him in a social-media post by referring to Lindamood as a “sexual
predator” and an “ethical uncertainty.”
When the votes were counted on May 9, Taylor was reelected.
II. Trial-Court Proceedings on Motion to Dismiss
The Mogged Parties timely moved under the TCPA to dismiss the claims
against them. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003. The movants
summarized their allegations this way:
Plaintiffs allege broadly that Taylor is responsible for the Alert,[6]
Fletcher made the allegedly defamatory post on the internet forum, and
Mogged somehow conspired with them in some manner undefined
other than the color of her clothing and ominous-sounding statements
that contained no factual claims. Plaintiffs also claim that all Movants
published the Alert, although they do not state how, when, where or to
whom.
A. Movants’ TCPA affidavits
Each moving defendant submitted an affidavit supporting their collective
motion. Fletcher admitted making the NextDoor social-media post, explaining that
based on the events described in the Handout, Fletcher “believed that a married man
6
Because Lindamood was unaware of the Handout when he filed suit, he did
not base any claims on the Handout, nor did he amend his petition to add it.
9
who placed his hands on the private anatomy of a woman who is not his wife acted
improperly and worried that such a person on Colleyville’s City Council could act
unethically.”
Each movant addressed the Alert. In her affidavit, Mogged stated that “[o]n
May 4, 2015, David Medlin [a Lindamood supporter and friend] confronted me and
showed me the Alert. That is the first time I saw it.” Taylor similarly swore that he
“received the Alert in the late evening on May 4, 2015, in my home mailbox.” Fletcher
averred that the Alert “arrived at my house on May 4, 2015 but I did not view it until
May 8, 2015 because I was out of town.”
Mogged and Fletcher stated that they had had nothing to do with making,
authoring, publishing, editing, discussing, promoting, endorsing, handing out, hand-
delivering, or mailing the Alert, nor did they direct or work with anyone to do any of
those things. Taylor’s TCPA affidavit was essentially the same, with slight variations:
12. I did not make the Alert.
13. I did not author the Alert.
14. I did not publish the Alert to any other person.
15. I did not edit the Alert or the sworn deposition excerpt of
Bobby Lindamood contained in it.
16. Other than denying the false claim that I created the Alert,
I did not discuss the Alert with anyone because I had no knowledge of
the Alert prior to receiving it on May 4, 2015.
17. I did not promote the Alert.
18. I did not endorse the Alert.
10
19. I did not hand out, hand-deliver, mail or otherwise
distribute or publicize the Alert.
20. I did not direct any person to take any actions listed in
Paragraphs 12-19 above with the Alert.
Taylor acknowledged in his affidavit that he had received Lindamood’s
deposition transcript, selected certain pages containing testimony regarding what he
termed “legitimate issues that an informed voter would be concerned about,”
highlighted and underlined portions of that excerpted testimony, and (without
explaining why) blocked out Mandy’s name where it appeared. These highlighted
pages constituted the Handout that Taylor admittedly copied and circulated at the
April 29 campaign meeting but with “no text annotations” having been added.
Explaining that people at the meeting “agreed that the voters should know this
information but we could not use the sworn testimony in any way,” Taylor added:
And I did not [use the deposition testimony]. Instead, because of the
rhetoric of the campaign, I believed that if I published the information, I
would end up exactly in this situation—with a frivolous lawsuit filed
against me, just before Election Day, by Bobby Lindamood to hurt my
Election Day turnout on May 9th, and it did.[7]
B. Nonmovants’ discovery requests
Before responding to the TCPA motion, Lindamood and JR’s Demolition
sought leave to conduct discovery, proposing to serve 80-plus document requests on
7
Taylor had garnered 53.98% of the early vote, but Lindamood won the May
9 day-of vote, 52.74% to Taylor’s 47.26%. But because roughly twice as many people
had voted early, Taylor won the election, with an overall margin of victory of 3.4%.
11
each of the Mogged Parties, along with interrogatories. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 27.003(c), .006(b) (suspending discovery while a TCPA motion is
pending unless, “on a showing of good cause,” the trial court allows “specified and
limited discovery relevant to the motion”). Plaintiffs’ discovery motion argued that
because each defendant had denied any involvement with creating or publishing the
Alert, “even taking the Affidavits at face value, they still raise questions which need to
be addressed in order to determine whether Plaintiffs have a prima facie case against
them.”8 “Specifically,” as Lindamood and JR’s Demolition put it, requiring the
defendants to produce documents “should not be burdensome if they are telling the truth
in their Affidavits and their Motion. If the Movants are not telling the truth, however,
then these documents will disclose the prima facie validity of Plaintiffs’” claims.
The trial court ultimately approved a limited number of document requests
concerning the Lindamood deposition that Taylor had received on April 29, 2015. In
seeking documents relating to “notes, annotations, changes, deletions, and/or
comments” that any of the Mogged Parties made to that deposition, Lindamood and
JR’s Demolition did not ask to examine Taylor’s (or anyone’s) computer but did
define “document” in the production requests to “specifically include electronic
documents and Communications, such as, but not limited to, email, voice messages,
8
The discovery motion was later amended, and this sentence read, “Beyond
[credibility issues], even taking the Affidavits at face value, they raise questions which
need to be addressed in helping the Court determine that Plaintiffs have a prima facie
case against Defendants.”
12
postings on social media, and text messages.” “Communications” was in turn defined
to “specifically include electronic Documents and Communications of any nature,
such as, but not limited to, email, voice messages, instant messaging, text messages,
postings on social media, wire transfers, and electronic correspondence.” The Mogged
Parties were also instructed that “[i]f any Documents and Communications cannot be
produced in a format that can be shared, Plaintiffs request[] that such Documents and
Communications be made available for inspection by Plaintiffs.”
C. Nonmovants’ TCPA response and evidence proffered to show a prima facie
case
During this time frame, JR’s Demolition nonsuited its claims but joined
Lindamood in responding to the Mogged Parties’ motion to dismiss. The discovery
that the trial court had allowed from the Mogged Parties apparently yielded nothing
helpful, because the evidence supplied with Lindamood and JR’s Demolition’s TCPA
response consisted of affidavits from Lindamood; Colleyville residents Medlin, Linda
Newton, and Richard Newton; and Daniel Fitzgerald, whose affidavit characterized
him as an expert in computer programming, computer forensics, and cell-phone
forensics. None of those affidavits, nor any argument in the TCPA response, pointed
to anything learned in discovery as supporting the existence of a prima facie
defamation case. 9
At the later hearing on attorneys’ fees, counsel for the Mogged Parties noted
9
that
13
The affiants did not claim direct knowledge that any of the Mogged Parties had
created or published the Alert, but many of them expressed opinion, speculation, and
overall certainty that Taylor in particular must have had something to do with the
Alert. The Mogged Parties objected to much of the affidavits’ contents on various
grounds, separately moving to strike Fitzgerald’s affidavit, but did not obtain rulings
on the objections or motion to strike.
1. Evidence regarding Mogged
Lindamood’s and JR’s Demolition’s evidence of Mogged’s involvement with
the Alert was based on (1) her campaigning while wearing some unspecified colors
associated with the PAC, (2) becoming “very defensive” when the Newtons asked
Mogged why she would say that Coplen did not want to serve on the city council with
Lindamood, (3) telling the Newtons that bad news was forthcoming about
Lindamood and a Las Vegas incident, and (4) remaining silent and looking
“embarrassed,” “stunned,” “sheepish,” “as though she had been caught red-handed,”
and with “body language indicat[ing] guilt,” when confronted with the Alert on May 4,
2015 by Medlin while Mogged was working at an election table for the PAC.
[t]here is absolutely nothing that Defendants gave Plaintiffs in
discovery that Plaintiffs used in their response to the motion to dismiss,
and Plaintiffs never compelled different answers. They never complained
about the answers they got. They never complained about the
documents they got. They took what they had, because that’s what we
gave them, and that’s what we had, and today they still say that there’s
something out there . . . .
14
2. Evidence regarding Fletcher
Evidence submitted to counter Fletcher’s request for a TCPA dismissal
centered on his NextDoor post, which Fletcher did not deny having made. Richard
Newton did recount a May 1, 2015 conversation with Fletcher at a Lions Club
meeting. Given the timing, though, Fletcher’s comments seem to have been about the
Handout: according to Newton, “When the election came up and [Fletcher]
discovered that I was supporting Bobby Lindamood, he advised ‘we have a
deposition’ but that ‘Taylor was advised not to use it.’”
3. Evidence regarding Taylor
Lindamood attached to his affidavit a 2006 anti-Taylor editorial that its original
author had reposted on May 8, 2015 at the LocalNewsOnly.com website and that had
criticized Taylor nine years earlier during a different campaign. Among other things,
the 2006 editorial said, “For a guy who declares in bold red ink that he is ‘not a
developer, home builder or mortgage lender’ he sure has been in bed with plenty of
them on a fiscal basis.” 10 The Newtons’ affidavits referred to Taylor’s having “owned
a business known as Revolution Technology where he maintained significant printing
equipment that [they had] personally seen” at some unidentified time and described
Taylor as “very proud he could personally produce his own campaign materials and
10
Linda Newton was at some point the editor of LocalNewsOnly.com, a site
that the Mogged Parties described as “a Lindamood mouthpiece.” The record does
not contain a copy of whatever the 2006 editorial might have been referring to as
being in “bold red ink.”
15
literature.” The Newtons’ affidavits did not indicate a time frame during which Taylor
owned that business or was producing his own campaign literature, but both affidavits
referred to Taylor’s employment in the present—May 2015—as “currently” an
investment advisor for Provident Strategies Group, so it is unclear whether Taylor
owned Revolution Technology or “significant” printing equipment during the
2015 campaign.
Linda Newton averred that she had known Taylor since the 1990s and that
“[t]he expression used in the Alert ‘. . . the attorney drilled down on . . .’ is a phrase I
have heard Taylor use many times before.” She further opined that the Alert, “with
underlining, highlighting and bold red print is reminiscent of previous Taylor type
political ads, bulletins, flyers and handouts I have seen.” As did the 2006 editorial
attached to Lindamood’s affidavit, Linda Newton referred to Taylor’s 2006 campaign
materials and observed that “[t]he Alert adopt[ed] the same effort to declare in bold
red ink as he has done over and over in his political career.” She concluded with her
“opinion that he authored the ‘Colleyville Voter Alert.’ The similarities are simply not
a coincidence.”
According to Medlin’s affidavit, Medlin confronted Taylor about the Alert at a
May 5, 2015 city-council meeting. When Medlin asked, “‘Why did you do this,
Councilman Taylor?’ [h]e just looked at me and said[,] ‘Get out of my way.’ Never
once did he deny my accusations against him for publishing the Alert.” Lindamood,
16
who was at the same meeting, overheard this exchange and repeated its substance in
his own affidavit.
Lindamood’s, Richard Newton’s, and Medlin’s affidavits all stated that they
“[did] not see how” the Alert “could possibly be generated without the underlying file
or email attachment that only went to Taylor,” citing paragraph 6 of Taylor’s TCPA
affidavit for the “only went to Taylor” idea. But that paragraph stated only that on the
morning of April 29, 2015, Taylor “opened an email with three attached deposition
transcripts,” the third of which was Lindamood’s from March 2011. The record does
not confirm or refute whether—as part of Kayla’s “pent-up venom” and apparent
desire to tank her estranged stepson’s election chances—either Kayla’s attorney,
Kayla, Mandy, or someone else altogether might have disseminated the depositions to
other people involved in Colleyville politics.11
4. Expert affidavit regarding the Handout and the Alert
Fitzgerald described himself as having expertise in computer and cell-phone
forensics. Fitzgerald reviewed only the Mogged Parties’ affidavits, a copy of the
Handout, a copy of the Alert, and “three other exemplars of the Alert” received by
the Newtons and two other Colleyville residents.
11
Lindamood did not seek discovery from Kayla or Mandy—who were still
parties to the lawsuit at the time—in connection with responding to the Mogged
Parties’ TCPA motion.
17
As Fitzgerald’s affidavit explained, Lindamood’s attorneys also gave him
“access to additional documents” that were “represented to be copies of original
documents produced by Michael Taylor’s, Jan Mogged’s and James Fletcher’s
attorneys in response to [Lindamood’s] discovery requests.” Fitzgerald did not
identify what those documents were, did not attach any of them to his affidavit, and
did not cite or expressly rely on them in reaching his conclusions.
Fitzgerald described his process of comparing the Handout with the Alert: he
enlarged both documents, “corrected the aspect ratio and size differences caused by
the scanning and bates stamping of the documents for production,” and “then
overlaid the documents allowing them to bleed through making the lower document
visible through the upper document.” After stating that both documents clearly
showed computer alteration, Fitzgerald opined, as did Lindamood, Richard Newton,
and Medlin, that he “[did] not see how the Alert could possibly be generated without
the underlying disk or email attachment that only went to Michael Taylor. (See Taylor
Affidavit, Paragraph 6).” Although Fitzgerald did not review Taylor’s computer or the
electronic files associated with any document, Fitzgerald also gave his opinion that
“both documents were manipulated from the same electronic source document.”
Discussing the redaction of Mandy’s name from both the Handout and the
Alert, and the Alert’s annotation that “The name redacted is an underage family
member that chose not to be identified,” Fitzgerald posited this scenario:
18
If Michael Taylor blocked her name from the people he handed [the
Handout] to as described in his Affidavit, how did the author of the
Alert determine[] she was an underage family member that chose not to
be identified? As a forensics expert, I can only conclude that Michael
Taylor was the only person who knew her name and contacted her to
determine she did not want her name disclosed.
Fitzgerald’s affidavit did not explain how his computer-forensics expertise
informed or led to this conclusion.
D. Trial court’s ruling; attorney’s fees and sanctions
The trial court heard argument on the TCPA motion, allowed post-hearing
submissions, and entered its order granting the motion to dismiss in its entirety in late
October 2015, reserving for later the issue of attorney’s fees and sanctions.
Getting to an order on attorney’s fees and sanctions took until September
2016. The Mogged Parties submitted their attorney’s-fee and sanctions request in late
November 2015, seeking an award of all fees and costs they had collectively incurred
($143,463) and asking for sanctions of “no less than 50% of Defendants’ attorneys’
fees.” The Mogged Parties later supplemented the amount of requested fees as of the
February 19, 2016 hearing for a new total of $177,350. 12
Of that amount, the fees attributed to the Mogged Parties’ Fort Worth counsel
remained the same since November 2015: $3,490 for the services of John Brender of
The Brender Firm and $4,404 for the services of Bradley Poulos of Cantey Hanger
12
This amount did not include costs and other expenses, for which the Mogged
Parties sought $1,106 and $6,658, respectively. We round all amounts to the nearest
dollar.
19
LLP.13 Fees sought by the Mogged Parties’ primary counsel at Dallas’s Shore Chan
DePumpo LLP totaled $169,456 as of February 2016, up from $128,625 in November
2015.
Lindamood vigorously disputed the requested amount, arguing among other
things that Shore Chan’s Dallas rates were too high for a Tarrant County lawsuit and
that the work performed was excessive, and suggested that the trial court award no
more than $30,000 in total fees to the Mogged Parties for Shore Chan’s and The
Brender Firm’s work; $1,500 at most for Cantey Hanger’s services; and a sanction of
no more than $2,000.14
In September 2016, the trial court entered an order, directed at both
Lindamood and JR’s Demolition, and awarded the Mogged Parties the full amounts
for Brender’s and Poulos’s services ($3,490 and $4,404, respectively) and $30,296 for
Shore Chan’s services, amounts that included “court costs, reasonable attorneys’ fees,
Poulos was retained and paid by Mogged’s insurer.
13
Much of Lindamood’s argument for such a discount turned initially on
14
considerations of “justice and equity” under Section 27.009(a)(1) of the TCPA. But
two months after the February 2016 fee hearing, the Texas Supreme Court held that
the statutory phrase “as justice and equity may require” modified only “other expenses
incurred in defending against the legal action” and not the penultimate “reasonable
attorney’s fees” phrase. Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016) (holding
that a “reasonable” attorney’s fee is “one that is not excessive or extreme, but rather
moderate or fair” as determined at the trial court’s discretion, “but that discretion,
under the TCPA, does not also specifically include considerations of justice and
equity”).
20
and other expenses incurred in defending against the legal action.” The trial court also
awarded conditional appellate attorney’s fees along with sanctions of $1,000.
The Mogged Parties requested written findings of fact and conclusions of law,
but none were prepared. See Tex. R. Civ. P. 296, 297.
III. Issues on Appeal
The Mogged Parties contend that the trial court abused its discretion in
determining attorney’s fees and sanctions; they also raise an issue that the trial court
prejudiced them by failing to enter findings of fact and conclusions of law under
Texas Rule of Civil Procedure 296 even after being notified of past-due findings
under Rule 297.
Lindamood 15 contends in his appeal that the trial court erred by granting the
TCPA motion to dismiss because he had established a prima facie case that “the
statements were libelous per se,” that “the Defendants were the perpetrators of the
libelous statements,” and that actual malice existed; as a result, the award of costs,
fees, expenses, and sanctions should be reversed or vacated.
15
We do not consider JR’s Demolition to be a proper appellant on whether the
motion to dismiss was wrongly granted. JR’s Demolition had nonsuited its claims a
little over a month after the Mogged Parties filed their TCPA motion and some two
months before the trial court entered its dismissal order and has not appealed the trial
court’s dismissal of its tortious-interference claim. In any event, Lindamood appears
to recognize that he is the lone appellant regarding this issue, writing in his opening
brief, for example, that “Bobby now turns to his argument on the merits as to his
cross-appeal that the case should not have been dismissed under the [TCPA].” Other
than being named as an appellant in the notice of appeal, JR’s Demolition makes no
argument in its name or otherwise tries to join Lindamood’s arguments.
21
We address Lindamood’s appeal first.
IV. Dismissal of Lindamood’s Claims
A. Overview
1. TCPA
As has been recognized many times, the TCPA has dual purposes: protecting
First Amendment rights to the full extent of the law while also protecting the right to
file meritorious lawsuits. See Tex. Civ. Prac. & Rem. Code Ann. § 27.002; In re Lipsky,
460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding); Smith v. Crestview NuV, LLC,
565 S.W.3d 793, 797 (Tex. App.—Fort Worth 2018, pet. denied). A defendant in a
case that is “based on, relates to, or is in response to a party’s exercise of the right of
free speech” may seek dismissal under the TCPA, a statute that is to be “construed
liberally to effectuate its purpose and intent fully.” See Tex. Civ. Prac. & Rem. Code
Ann. §§ 27.003(a), .011(b).
Dismissal involves two, sometimes three, steps. First, the moving party must
show that the legal action is in fact based on, relates to, or is in response to the
movant’s exercise of free-speech rights. See id. § 27.005(b). If so, the burden shifts to
the nonmovant (typically the plaintiff) to produce clear and specific evidence of a
prima facie case for each element of the claim. 16 See id. § 27.005(c). As a possible third
16
In our original panel opinion, the dissent took the position that the TCPA is
sufficiently different, both procedurally and philosophically, from summary-judgment
proceedings that a TCPA nonmovant should not benefit from a light-most-favorable
review of its evidence. See Mogged, 2018 WL 6920502, at *12–14 (Kerr, J., dissenting
22
step, dismissal is required if the movant then shows by a preponderance of the
evidence each element of a valid defense to the claim. See id. § 27.005(d).
Requiring “clear and specific evidence” at the second step means that the
nonmovant must “provide enough detail to show the factual basis for its claim” and
must provide enough evidence “to support a rational inference that the allegation of
fact is true.” Dall. Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019); Lipsky,
460 S.W.3d at 590–91; see Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). The
nonmovant may rely on circumstantial evidence—that is, “indirect evidence that
creates an inference to establish a central fact,” Hall, 579 S.W.3d at 377—unless “the
connection between the fact and the inference is too weak to be of help in deciding
the case.” Lipsky, 460 S.W.3d at 589. Although the TCPA does not define clear and
specific evidence, the supreme court has stated that “clear” means “unambiguous,
sure, or free from doubt” and “specific” means “explicit” or “relating to a particular
named thing.” Id. at 590 (quoting KTRX Television, Inc. v. Robinson, 409 S.W.3d 682,
689 (Tex. App.—Houston [1st Dist.] 2013, pet. denied)).
and concurring); see also Rogers v. Soleil Chartered Bank, No. 02-19-00124-CV,
2019 WL 4686303, at *7 n.5 (Tex. App.—Fort Worth Sept. 26, 2019, no pet.) (mem.
op.). That is, it seemed to the dissent that the nonmovant’s burden under Section
27.005(c) to produce clear and specific evidence of a prima facie case would be
lessened by viewing that evidence in a light most favorable to the nonmovant.
Although this concern remains, because we conclude that Lindamood’s evidence did
not establish a prima facie case even under the more lenient summary-judgment
review, we need not decide whether a TCPA nonmovant’s evidence should be
reviewed neutrally or in a more favorable light. See Rogers, 2019 WL 4686303, at *7 n.5.
23
If “the term ‘clear and specific evidence’ refers to the quality of evidence
required to establish a prima facie case, . . . the term ‘prima facie case’ refers to the
amount of evidence required to satisfy the nonmovant’s minimal factual burden.”
Serafine v. Blunt, 466 S.W.3d 352, 358 (Tex. App.—Austin 2015, no pet.) (op. on reh’g).
The supreme court has described a prima facie case in the TCPA context consistently
with that concept’s long-standing meaning: “evidence sufficient as a matter of law to
establish a given fact if it is not rebutted or contradicted.” Lipsky, 460 S.W.3d at
590 (citing Simonds v. Stanolind Oil & Gas Co., 136 S.W.2d 207, 209 (Tex. 1940)).
“Conclusory statements are not probative and accordingly will not suffice to establish
a prima facie case.” Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc.,
441 S.W.3d 345, 355 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (citing In re
E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223–24 (Tex. 2004) (orig.
proceeding)). Likewise, a TCPA nonmovant “cannot rely on speculation to satisfy its
burden of proof” of establishing a prima facie case for each element of its claim.
Landry’s, Inc. v. Animal Legal Def. Fund, 566 S.W.3d 41, 63 (Tex. App.—Houston [14th
Dist.] 2018, pet. granted).
We review a trial court’s ruling on a TCPA motion to dismiss de novo. Beving v.
Beadles, 563 S.W.3d 399, 404 (Tex. App.—Fort Worth 2018, pet. denied).
2. Defamation
To maintain a defamation claim, the plaintiff must prove that (1) the defendant
published a false statement of fact to a third person, (2) the statement defamed the
24
plaintiff, (3) the defendant acted with actual malice if (as here) the plaintiff is a public
figure or a public official, and (4) the statement proximately caused damages, unless
the statement is defamatory per se. Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017);
Ghrist v. MBH Real Estate LLC, No. 02-17-00411-CV, 2018 WL 3060331, at *4 (Tex.
App.—Fort Worth June 21, 2018, no pet.) (mem. op.).
Candidates for public elective office are public officials for purposes of
recovering for defamation and thus must show actual malice. See Cruz v. Van Sickle,
452 S.W.3d 503, 516 (Tex. App.—Dallas 2014, pets. denied) (citing Monitor Patriot Co.
v. Roy, 401 U.S. 265, 271–72, 91 S. Ct. 621, 625 (1971)). Actual malice exists when the
defamatory statement is knowingly false or is conveyed with reckless disregard for its
truth. Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 420 (Tex. 2000). To establish
reckless disregard, a plaintiff must show that the defendant subjectively “entertained
serious doubts as to the truth” of the statement. Id. (quoting St. Amant v. Thompson,
390 U.S. 727, 731, 88 S. Ct. 1323, 1325 (1968)); see Weber v. Fernandez, No. 02-18-
00275-CV, 2019 WL 1395796, at *16 & n.8 (Tex. App.—Fort Worth Mar. 28, 2019,
no pet.) (mem. op.). “[T]he mere failure to investigate the facts, by itself, is no
evidence of actual malice.” Bentley v. Bunton, 94 S.W.3d 561, 595 (Tex. 2002).
Defamation per se refers to “statements that are so obviously harmful that
general damages, such as mental anguish and loss of reputation, are presumed.”
Lipsky, 460 S.W.3d at 596. Examples of such statements include accusing someone of
a crime, of having a foul or loathsome disease, or of engaging in serious sexual
25
misconduct. Id. Whether a statement is defamatory per se is generally a legal question.
Id. (citing Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013)). We conclude that the
Alert’s commentary is defamatory per se in its suggestion of sexual misconduct
accompanied by a possible crime (the involvement of an alleged minor).
B. Lindamood did not establish a prima facie case
The parties do not dispute that the TCPA applies to Lindamood’s claims, and
the Mogged Parties did not plead a defense on which they would bear the burden to
counter a prima facie case if Lindamood established one. Our analysis, then, focuses
solely on whether Lindamood produced clear and specific evidence of a prima facie
case of defamation17 against any of the Mogged Parties.
1. The Handout: not defamatory
As we noted, Lindamood’s petition did not allege that he was defamed by the
highlighted and underlined Handout that Taylor circulated at the April 29 meeting,
and he did not amend his petition after learning of it. But because the Handout was
assailed as defamatory in Lindamood’s TCPA response and in his appellate briefing,
we make clear that we agree with a 1999 California decision that held that adding
highlighting or similar emphases to an otherwise accurate document is not
17
Lindamood also sued for civil conspiracy, but because conspiracy is a
derivative claim that depends on an underlying tort, if we conclude—as we do—that
Lindamood’s defamation claim against all the Mogged Parties was properly dismissed,
we need not separately analyze his conspiracy claim. See Weber, 2019 WL 1395796, at
*19 (concluding that because defamation claims failed to withstand TCPA motion to
dismiss, conspiracy claims were also required to be dismissed).
26
defamatory. Smith v. Maldonado, 85 Cal. Rptr. 2d 397, 402, 404 (Cal. Ct. App. 1999)
(holding that because “highlighting is nothing more nor less than emphasis,” it “does
not add any commentary, analysis, rhetoric, opinion, or anything else of substance to
the statement that is highlighted”). Thus, Taylor’s admission that he excerpted pages
from Lindamood’s deposition, highlighted and underlined passages that he found
noteworthy, and shared copies of those pages with others cannot support a
defamation claim: Taylor made no affirmative, false statement of fact in the Handout.
To the extent that Lindamood claimed that the Handout defamed him, the trial
court correctly, if only tacitly, dismissed any such claim.
2. The Alert: defamatory per se—but who published it?
“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” by demonstrating a prima facie case. Lipsky, 460 S.W.3d at 591.
Left unsaid in this passage is the almost always obvious element but the one that here
is the central mystery: who published a defamatory statement? It is axiomatic that the
“who” be a party; after all, the first-listed of the tort’s elements is that “(1) the
defendant published a false statement.” Bedford, 520 S.W.3d at 904.
We examine below Lindamood’s evidence concerning the Mogged Parties to
determine whether a prima facie case exists that any of them published the Alert.
Because we conclude that Lindamood has not established a prima facie case of
27
publication by one of the defendants, his defamation claim fails in its first essential
element, so we need not analyze the additional element of actual malice. See Tex. Civ.
Prac. & Rem. Code Ann. § 27.005(c) (to avoid dismissal under TCPA, plaintiff must
establish prima facie case for “each essential element of the claim in question”).
Moreover, without an identifiable publisher of the allegedly defamatory statement, we
could not meaningfully analyze actual malice anyway because it is subjective in nature.
a. Mogged
Mogged knew of the Handout but denied having had anything to do with the
Alert, which she maintained she first saw on May 4, 2015, when Medlin showed it to
her. Lindamood’s evidence concerning Mogged, as we noted earlier, centered on her
telling the Newtons that “bad news about Bobby Lindamood is coming out about a
trip to Las Vegas” and on Medlin’s interpretation of Mogged’s reaction when he
confronted her with the Alert.
In his 2011 deposition, Lindamood had been asked about an incident in Las
Vegas involving a prostitute. Although the Handout (and the Alert) included his
denial that he had hired one, Lindamood acknowledged that a prostitute was present
in a room with “several people in there, and it was to be funny is what it was.”
Lindamood also acknowledged interacting with his stepsister Mandy in a sexual
manner at his house while he was married and they were both drunk.
Mogged’s husband had given her the Handout after the April 29 PAC meeting,
and Mogged’s comments to the Newtons could have referred to the Handout’s
28
contents alone. Jelinek v. Casas, 328 S.W.3d 526, 536–37 (Tex. 2010) (stating that
where “circumstances are equally consistent with either of two facts, neither fact may
be inferred” (quoting City of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex. 2005))). Indeed,
Mogged said just that in her affidavit: that she had based her statement to the
Newtons on the “unannotated excerpt from Bobby Lindamood’s deposition
transcript” that she had seen, which “described Mr. Lindamood’s physical contact
with a female who was not his wife and described an incident in Las Vegas with a
prostitute.” Additionally, Mogged’s oblique reference to some imminent “bad news”
was not a false statement of fact, nor did it reveal the manner in which such news
might be disclosed. And even if she had been alluding to the Alert, that fact would not
reasonably imply that Mogged published it.
Mogged’s silence and body language as recounted by Medlin are similarly not
clear and specific evidence of her having published the Alert. Lindamood relies on
cases involving a party’s failure to speak up or refute a “definite statement of a matter
of fact, affecting a party or his rights, [that] is made in his presence or hearing” and “is
of such a nature as to call for a reply.” Miller v. Dyess, 151 S.W.2d 186, 191 (Tex. 1941).
In such circumstances, silence “may constitute a tacit admission of what was said.” See
Walker v. Lorehn, 355 S.W.2d 71, 75 (Tex. App.—Houston [1st Dist.] 1962, writ ref’d
n.r.e.).
Here, though, Medlin made no “definite statement of a matter of fact” that
called for a response from Mogged if untrue. Medlin confronted a group of women
29
(of which Mogged was one) who were working the PAC election table on May 4,
2015, asking them all, “Why did you all do this, why did you send this out?”
According to Medlin, Mogged “looked down in an embarrassed manner and said
nothing” even after Medlin told the group that Mogged had talked about “it” at the
Newtons’ house and “kn[ew] all about it”; he then retrieved a copy of the Alert from
another table and returned to hold it in front of Mogged. As Medlin described the
interaction, Mogged “remained silent and never said a word in response to my
question if she did this.”18 Medlin’s affidavit did not describe a definite statement or
accusation that “call[ed] for a reply.” Miller, 151 S.W.2d at 191. We thus conclude that
the interaction between Medlin and Mogged does not rise to the level of clear and
specific, inference-from-silence evidence, even were we to view that evidence in a
light favorable to Lindamood, that Mogged published the Alert.
b. Fletcher
The only putative connection between Fletcher and the Alert turns on
Lindamood’s taking issue with Fletcher’s credibility about the Handout’s attributes.
Fletcher’s affidavit recited that at the April 29 PAC meeting, Taylor had distributed
18
Things obviously got heated, because the police arrived, at which point
Medlin said to them in Mogged’s presence, “These guys sent this out about Bobby
and I raised my voice. I know they were involved in doing this.” The fact that law
enforcement became involved makes it equally plausible that Mogged wanted to avoid
escalation and so chose not to engage with Medlin. Thus, the principle Lindamood
cites—that a party’s silence when he was free to speak, in a situation where one would
not normally remain silent, might equate to tacitly admitting what was said—does not
help in establishing a prima facie case of publication.
30
and Fletcher had received excerpts from Lindamood’s deposition. As Fletcher
described that partial transcript, “Some of the text had been highlighted, but it had no
annotations, underlining, deletions, or comments in the margins.” Seizing upon
Fletcher’s asserting that the PAC-meeting document lacked any underlining (which
the Handout did have) or deletions (also present in the Handout, in the form of
redacting Mandy’s name), Lindamood argues that
we know this is false because of what Taylor testified to, and from the
Taylor handout . . . . So what else is false about Fletcher’s testimony?
Bobby is entitled to rely on “circumstantial” evidence that Fletcher’s
conclusory denials of propagating the Alert, made as an interested party,
are untrue . . . . Fletcher’s denial’s lack of credibility is specific prima facie
circumstantial evidence he did what he denied.
Lindamood cites no authority for this proposition. In effect, he suggests that
because Fletcher ostensibly lied about the Handout, one cannot believe Fletcher when
he denied his involvement in the Alert, and his lack of credibility thus constitutes
circumstantial evidence that he was involved. A witness’s credibility assuredly affects
whether one should believe what the witness said and if testimony is not credible, the
factfinder is free to reject it. But freedom to reject a witness’s testimony about Fact A
is not evidence that Fact B exists. See In re E.V., 255 S.W.3d 389, 394 (Tex. App.—El
Paso 2008, no pet.) (reviewing child-support order and holding that “[a]lthough the
trial judge doubted the credibility of Vieweg’s tax returns and was familiar with the
location and physical size of Vieweg’s business, this does not constitute evidence that
Vieweg’s income was $1,950 per month,” the arbitrary amount chosen by trial court);
31
cf. Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (noting that discredited
testimony is not ordinarily considered sufficient basis for drawing a contrary
conclusion).
We conclude that whether we view the evidence neutrally or in a light favorable
to Lindamood, he has not established a prima facie case that Fletcher published the
Alert.
c. Taylor
Medlin’s and Lindamood’s affidavits describe Taylor’s silence and lack of
rebuttal when on May 5 Medlin confronted him about the Alert after a city-council
meeting. According to both affiants, Taylor “just looked down and said nothing,” and
after Medlin then asked, “Why did you do this, Councilman Taylor?,” Taylor’s only
response was to say, “Get out of my way.” For the same reasons we held similar
failure-to-deny evidence insufficient to establish a prima facie case against Mogged,
we reach the same conclusion concerning this aspect of the allegations against Taylor.
Lindamood’s facts otherwise specific to Taylor can be summarized as:
(1) Kayla’s attorney had emailed Taylor the Lindamood deposition from which Taylor
created and circulated the Handout; (2) both the Handout’s and the Alert’s same
seven pages had red underlining in (nonidentical) places, and Mandy’s name was
redacted in both documents (though in different ways); (3) Taylor had owned printing
equipment and had put out some campaign material in 2006 using what was
characterized as “bold red ink”; (4) Linda Newton found the Alert’s design
32
“reminiscent” of earlier “Taylor type” materials; and (5) she had heard Taylor use the
“drilled down on” expression that appears once in the Alert’s margins. Lindamood
also relied on a computer-forensics expert, Fitzgerald, in an attempt to present clear
and specific evidence that Taylor created the Alert.
i. Lindamood’s circumstantial evidence and inferences
The TCPA does not forbid using circumstantial evidence or rational inferences
in establishing a prima facie case. Lipsky, 460 S.W.3d at 591. But as an overarching
proposition, inferences must be handled carefully:
Circumstantial evidence can establish [a particular fact] but such
evidence must “either directly or by reasonable inference” support that
conclusion. An inference is not reasonable, however, if it is premised on
mere suspicion—“some suspicion linked to other suspicion produces
only more suspicion, which is not the same as some evidence.” “When
the evidence offered to prove a vital fact is so weak as to do no more
than create a mere surmise or suspicion of its existence, the evidence is
no more than a scintilla and, in legal effect, is no evidence.” An inference
is not reasonable if it is susceptible to multiple, equally probable
inferences, requiring the factfinder to guess in order to reach a
conclusion.
Suarez v. City of Tex. City, 465 S.W.3d 623, 634 (Tex. 2015) (citations omitted); see
Alarcon v. Alcolac Inc., 488 S.W.3d 813, 820–21 (Tex. App.—Houston [14th Dist.]
2016, pet. denied) (holding that circumstantial evidence that defendant manufacturer
supplied majority of dangerous product during relevant time frame was insufficient to
raise fact issue that plaintiff was injured by defendant’s product; theory that earlier
quantities of product had been depleted, and thus new supply was attributable to
defendant, was not a reasonable inference).
33
A recent case from our sister court in San Antonio is instructive on the limits
of inferences when it comes to identifying who might have defamed someone. Burgi v.
Hartman, No. 04-17-00501-CV, 2018 WL 3265041 (Tex. App.—San Antonio July 5,
2018, no pet.) (mem. op.). There, a father sued his son’s high-school teacher and the
teacher’s husband (with whom the father worked) for defamation arising out of an
anonymous Child Protective Services report. Id. at *1. During a high-school EMT-
training class run by teacher Mary Jo Hartman, Ronald Burgi’s son had recounted for
Hartman and his classmates a hunting trip with his father two years earlier during
which the son was hit by four pieces of birdshot. Id. As the son described that event
for the class, Burgi had asked whether he wanted to go to the hospital, but the son
chose to first finish hunting. Id. Upon seeking medical attention at day’s end, Burgi
and his son were told that the birdshot was better left in place because surgery to
remove it would be more invasive. Hartman then questioned the son further about
this incident. Id. Two weeks later, police officers showed up at the Burgis’ home at
2:00 a.m. for a child-welfare check, explaining that they were investigating a report
that the son had recently sustained gunshot wounds in a hunting accident and that
Burgi had failed to seek medical attention for over an hour. Id.
Burgi based his defamation claims against Hartman on her questioning of his
son and then either making the false CPS report or making a false statement to her
husband, who made the report himself because of ostensible work-related animus. Id.
Hartman moved for summary judgment arguing that there was no evidence that she
34
had made the CPS report or encouraged her husband or anyone else to do so. Id. at
*2.
Affirming the no-evidence summary judgment, the appellate court recited the
legal principles forbidding unreasonable inferences based on mere suspicion and
equally probable inferences. Id. (citing Alarcon, 488 S.W.3d at 820, 821). The court
then pointed out that other possibilities existed beyond Burgi’s two theories of
Hartman’s liability, including that she could have truthfully reported the discussion to
her husband who took it upon himself to make a false report, or that somebody else
who knew about the hunting accident made the false statement to CPS. Id.
Based on the circumstantial evidence Burgi produced, a factfinder would
be required to guess from at least four possibilities that Hartman made a
false statement about Burgi to CPS or to her husband. We cannot say
Burgi’s circumstantial evidence, taken as true, makes either of the
possibilities implicating Hartman more probable than the other two
possibilities. Taking Burgi’s circumstantial evidence as true, Burgi has
only raised mere suspicions that Burgi [sic] made a false statement to
CPS or to her husband.
Id.
Similarly here, Lindamood’s circumstantial evidence that Taylor published the
Alert leans too heavily on unreasonable inferences, on speculation, and on mere
suspicion. Kayla and her attorney could have shopped Lindamood’s deposition
around town; someone who saw or got a copy of the Handout could have also
received the deposition and created (and published) the Alert from it; and there is
35
nothing to suggest that Taylor was the only one on the receiving end of Kayla’s
obvious desire to create mischief for Lindamood.
Furthermore, the phrase “drill down on” is neither unique nor unusual. Almost
a decade ago it was the first-listed example in an article titled “Glossary: The Most
Annoying Business Jargon.” See https://www.forbes.com/2011/01/06/annoying-
business-jargon-entrepreneurs-business_slide.html#3da649ea129e (last visited Nov. 2,
2020). As for Taylor’s use of “bold red ink” in campaign materials, that assertion is
similarly thin gruel. Without more—such as a sample of Taylor’s past materials that
might reveal some styles or fonts similar to those in the Alert—we cannot agree that
using red ink is a Taylor-specific oddity in the campaign-literature world generally.
Moreover, even if one infers that Taylor ginned up the Alert, no evidence links him to
having published it by getting it into third parties’ hands—and as revealed by the
number of defendants who were originally sued, Lindamood’s personal and politics-
related foes were many.
Additionally, in his motion for leave to conduct discovery before responding to
the Mogged Parties’ TCPA motion, Lindamood admitted lacking clear and specific
evidence that Taylor had published the Alert: “[T]here is good reason to believe that
Taylor also had a hand in the creation and propagation of the ‘Alert.’ However,
Lindamood cannot establish this without the discovery which Plaintiffs seek leave to
propound.” Even after the trial court allowed discovery, Lindamood got no
information from any of the Mogged Parties that advanced this particular ball, and
36
Lindamood did not press further by challenging the accuracy or completeness of what
was produced.
Nor do the conclusory statements in Lindamood’s various responsive affidavits
create a prima facie case based on circumstantial evidence or rational inferences that
Taylor published the Alert, because “the ‘clear and specific’ standard in the TCPA at
least requires us to reject conclusory claims made by an affiant.” Equine Holdings, LLC
v. Jacoby, No. 05-19-00758-CV, 2020 WL 2079183, at *4 (Tex. App.—Dallas Apr. 30,
2020, pet. denied) (mem. op.) (citing Lipsky, 460 S.W.3d at 593); see MVS Int’l Corp. v.
Int’l Advert. Sols., LLC, 545 S.W.3d 180, 192 (Tex. App.—El Paso 2017, no pet.)
(same, and holding, in TCPA context, that conclusory statements are substantive
defects that can be raised for first time on appeal); see also Seim v. Allstate Tex. Lloyds,
551 S.W.3d 161, 166 (Tex. 2018) (holding that appellate court can review such
substantive defects in affidavits even though objecting party failed to obtain trial
court’s ruling on objections).19
At the heart of Lindamood’s evidence—from Medlin, Richard Newton,
Fitzgerald, and Lindamood himself—is the opinion in all four affidavits that they did
“not see how” the Alert “could possibly be generated without” the underlying
electronic file, disk, or email attachment containing Lindamood’s 2011 deposition
Lindamood’s argument that the Mogged Parties waived all objections to
19
Fitzgerald’s affidavit is thus inaccurate; substantive defects can always be reviewed on
appeal.
37
“that only went to” Taylor, inferring that only Taylor could have created and published
the Alert. Each affiant supported this assertion by citing to paragraph 6 of Taylor’s
affidavit, which as we explained earlier did not say that the deposition went only to
him. In fact, if Taylor himself had claimed that Kayla’s lawyer did not provide the
deposition to anyone else, that too would have been a conclusory statement—and one
lacking a basis for personal knowledge to boot. See, e.g., MVS Int’l, 545 S.W.3d at
192 (“A statement is conclusory if it provides a conclusion but no underlying facts in
support of the conclusion.”); Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994)
(holding that an affidavit showing no basis for personal knowledge is legally
insufficient). And “[b]are, baseless opinions do not create fact questions, and neither
are they a sufficient substitute for the clear and specific evidence required to establish
a prima facie case under the TCPA.” Lipsky, 460 S.W.3d at 592–93.
Beyond the “only went to Taylor” problem, Fitzgerald’s affidavit in particular
fails in other ways to establish a prima facie case that Taylor published the Alert. An
expert’s testimony is conclusory “when the expert asserts a conclusion with no basis.”
Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 223 (Tex.
2019) (citing City of San Antonio v. Pollock, 284 S.W.3d 809, 818) (Tex. 2009); see Sw.
Energy Prod. Co. v. Berry–Helfand, 491 S.W.3d 699, 717 (Tex. 2016) (noting that expert
opinion “cannot be considered probative evidence if it lacks a factual basis or is made
in reliance on a basis that does not support the opinion.”). Put differently, an expert’s
opinion may not be based on the expert’s subjective interpretation of the facts. Shaw v.
38
Wells Fargo Bank, No. 02-20-00011-CV, 2020 WL 5241188, at *2 (Tex. App.—Fort
Worth Sept. 3, 2020, no pet.) (mem. op.); Hanson v. Greystar Dev. & Constr., LP,
317 S.W.3d 850, 854 (Tex. App.—Fort Worth 2010, pet. denied) (citing TXI Transp.
Co. v. Hughes, 306 S.W.3d 230, 239 (Tex. 2010)). In addition, “[w]hen an expert’s
opinion is based on assumed facts that vary materially from the actual, undisputed
facts, the opinion is without probative value and cannot support a verdict or
judgment.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). And “even
when some basis is offered for an opinion, if that basis does not, on its face, support
the opinion, the opinion is still conclusory.” Pollock, 284 S.W.3d at 817. Finally, if
analytical gaps between the data and an expert’s opinion are so great as to yield little
more than a “trust me” situation, the expert’s opinion fails. See Elizondo v. Krist,
415 S.W.3d 259, 264–65 (Tex. 2013).
Although Fitzgerald is a computer-forensics expert, he did not explain whether
his resizing and overlaying the Handout and the Alert on the computer screen is an
accepted and reliable methodology in his field for comparing documents and reaching
conclusions about their source. He did not have metadata to compare; he did not
have a computer file containing the Alert; and the Mogged Parties must not have
produced anything relating to the Alert at all, because although Fitzgerald’s affidavit
refers to “additional documents” obtained in discovery, it says nothing about what
they were. Instead, Fitzgerald simply opined that the Handout and the Alert were
both “manipulated from the same electronic source document”—that is, from the
39
Lindamood deposition that Kayla’s attorney (and perhaps others, including Kayla
herself) possessed, and which the attorney emailed to Taylor (and perhaps others). It
could also be that Kayla herself (or others) emailed it to others.
Equally speculative and conclusory is Fitzgerald’s opinion, offered “[a]s a
forensics expert,” that “Michael Taylor was the only person who knew [Mandy’s]
name and contacted her to determine she did not want her name disclosed.”20 The
fact that Taylor had redacted Mandy’s name from the Handout does not mean that no
one but Taylor could have done so in creating the Alert—and the Alert’s claim that
the family member “chose not to be identified” could have been made up out of
whole cloth or merely assumed from the fact that the Handout redacted her name.
Regardless, Fitzgerald provided no factual foundation for this conclusory statement,
nor did he explain how forensic expertise came into play in forming his opinion.
In short, too many dots are left unconnected, too many inferences are needed,
for us to conclude that Lindamood established a prima facie case that Taylor created,
much less published, the Alert.
3. Fletcher’s NextDoor post: not defamatory, no actual malice
The final alleged defamation is Fletcher’s pseudonymous post on the
NextDoor neighborhood forum in which he referred to Lindamood as a “sexual
20
The Alert claimed that “[t]he name redacted is an underage family member
that chose not to be identified.” The Alert does not state whether that choice, if true,
was made after the Alert’s author contacted the family member or whether it was
communicated to the Alert’s author in some other fashion.
40
predator” and said that Colleyville should not vote for “ethical uncertainty.” Unlike
our analysis of the Alert, we examine both the false-statement-of-fact and actual-
malice elements: because actual malice is subjective and because we know who
allegedly defamed Lindamood with this post, we are able to discuss reckless disregard
as an alternative reason for Lindamood’s failure to establish a prima facie case.
a. Fletcher’s comments were opinions
Statements of opinion about a public figure on matters of public concern are
not actionable as defamation because they cannot be proved false. Bentley, 94 S.W.3d
at 579–80 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 19–20, 110 S. Ct. 2695,
2706–07 (1990)). Whether a statement crosses the line between opinion and fact is a
question of law. Robertson v. Sw. Bell Yellow Pages, Inc., 190 S.W.3d 899, 903 (Tex.
App.—Dallas 2006, no pet.). Although we have not located a Texas case interpreting
whether calling someone a “sexual predator” is a falsifiable statement, courts in other
jurisdictions have held this label to be opinion and thus not actionable. In New York,
for example, the appellation “sex predator” is not a defamatory false statement of fact:
By their very nature opinions are not “capable of being true or false.”
Gross v. New York Times Co., 82 N.Y.2d 146, 155 (1993). Statements like
“convicted felon,” or “HIV positive” or “20-weeks pregnant” have
objective, verifiable meaning; “sex predator” does not. Rather, it is the
sort of “loose, figurative or hyperbolic” language that is immunized from
defamation claims. E.g., Dillon v. City of New York, 261 A.D.2d 34, 38 (1st
Dept. 1999). Indeed, sister-state judges have tossed out of court cases
predicated on “sexual predator” language. Burgoon v. Delahunt,
2000 WL 1780285 (Minn. App.) (reasonable person could apply “sexual
predator” to inappropriate touching and offensive sexual comments);
41
Terry v. Davis Cmty. Church, 131 Cal. App. 4th 1534, 1555 (2005)
(inappropriate relationship with minor).
Rosado v. Daily News, L.P., No. 157674/2013, slip op. at 3–4 (N.Y. Sup. Ct. filed Feb.
4, 2014).
We agree with our sister-state courts that have directly addressed this language,
concluding that it falls within the broader principle that a speaker’s individual
judgment that “rests solely in the eye of the beholder” is mere opinion. Falk &
Mayfield, L.L.P. v. Molzan, 974 S.W.2d 821, 824 (Tex. App.—Houston [14th Dist.]
1998, pet. denied).
We come to the same conclusion about Fletcher’s statement that Colleyville
citizens did not “need[] to vote for ethical uncertainty”: Fletcher was voicing his
opinion and not making a statement of verifiable or falsifiable fact. See Milkovich,
497 U.S. at 19–20, 110 S. Ct. at 2706; Bentley, 94 S.W.3d at 579. Unlike cases in which
a speaker has explicitly called someone corrupt or a liar, see Milkovich, 497 U.S. at 18–
19, 110 S. Ct. 2705–06, Fletcher’s concern that a Lindamood victory might lead to
ethical uncertainty is more like the situation in Vice v. Kasprzak, 318 S.W.3d 1 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). There, a letter to the editor accused a
homeowners’ association president who was also legal counsel for the real-estate
developer of engaging in “unethical business” by playing “both sides of the fence.” Id.
at 21–22. The appellate court held that this was the writer’s opinion and thus not
defamatory. Id. at 22.
42
b. No actual malice in any event
Even if Fletcher’s NextDoor post was defamatory, Lindamood still bore the
burden to establish the subjective actual-malice element by clear and specific evidence.
But because Fletcher’s comments were reasonably derived from what Lindamood
himself had said under oath in his deposition, they were neither knowingly false nor
conveyed with reckless disregard for the truth, the alternative components of actual
malice. See Huckabee, 19 S.W.3d at 420.
Fletcher’s TCPA affidavit recited that he based his comments on the
(nondefamatory) Handout and explained the opinions he formed from that
document, including that “a married man who placed his hands on the private
anatomy of a woman who is not his wife acted improperly” and “worried that such a
person on Colleyville’s City Council could act unethically.” The deposition excerpts to
which Fletcher alluded can be fairly read as disclosing not only that Lindamood had
been in the presence of or otherwise interacted with a prostitute while in Las Vegas
but also had fondled his stepsister while she was drunk and while he was married. We
conclude that Lindamood’s own admissions, coupled with Fletcher’s stated
understanding that depositions are sworn testimony, mean that Lindamood did not
establish that Fletcher’s comments were made with actual malice.
C. The trial court did not err by granting the TCPA motion to dismiss
In sum, Lindamood has not made out a prima facie case of defamation against
any of the Mogged Parties—a case, that is, that would “entitle [him] to recover if no
43
evidence to the contrary is offered by” any of the Mogged Parties. Buckingham Senior
Living Cmty., Inc. v. Washington, 605 S.W.3d 800, 808 (Tex. App.—Houston [1st Dist.]
2020, no pet.). We affirm the trial court’s dismissal of Lindamood’s defamation claims
against each of the Mogged Parties and now turn to the latter’s appeal of the
attorney’s-fee and sanctions awards.
V. The Mogged Parties’ Appeal of Attorney’s Fees and Sanctions
A. Attorney’s Fees
Movants who succeed in having claims against them dismissed under the
TCPA are entitled to an award of “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);21 see Sullivan, 488 S.W.3d at
299 (stating that Chapter 27 requires award of reasonable attorney’s fees to successful
movant). The trial court has discretion in determining the amount of attorney’s fees,
but that discretion “does not also specifically include considerations of justice and
equity.” Sullivan, 488 S.W.3d at 299. Although the TCPA refers to “reasonable” fees
rather than to “reasonable and necessary” fees, a claimant “wish[ing] to obtain
attorney’s fees from the opposing party . . . must prove that the requested fees are
both reasonable and necessary” even if a statute, law, or contract uses only
“reasonable” as the metric. Rohrmoos Venture v. UTSW DVA Healthcare, LLP,
21
This TCPA subsection was amended in 2019. As throughout this opinion, we
use the pre-amendment version.
44
578 S.W.3d 469, 489 (Tex. 2019). Under the TCPA, “reasonable” means “not
excessive or extreme, but rather moderate or fair.” Sullivan, 488 S.W.3d at
299 (quoting Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010)).
The supreme court in Rohrmoos confirmed that the lodestar framework should
apply to “any situation in which an objective calculation of reasonable hours worked
times a reasonable rate can be employed.” 578 S.W.3d at 498. As the court explained,
“This base lodestar figure should approximate the reasonable value of legal services
provided in prosecuting or defending the prevailing party’s claim through the
litigation process.” Id. This base can be adjusted up or down in a “step two” based on
consideration of the relevant Arthur Andersen factors, to the extent those factors were
not already taken into account for purposes of the “step one” or base calculation. Id.
at 500 (citing Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.
1997)).
A trial court is not, of course, a mere rubber stamp or bean-counter; even when
evidence of attorney’s fees is uncontroverted, a trial court is not obligated to award
the requested amount. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880,
882 (Tex. 1990). And as part of its exercise of discretion, the court may “consider the
entire record and common knowledge of the participants as lawyers and judges in
making its determination.” In re A.M., No. 02-18-00412-CV, 2020 WL 3987578 at
*4 (Tex. App.—Fort Worth June 4, 2020, no pet.) (mem. op.); see Pro-Care Med. Ctr. &
Injury Med. Grp. v. Quality Carriers, Inc., No. 14-18-01062-CV, 2020 WL 1617116 at
45
*3 (Tex. App.—Houston [14th Dist.] Apr. 2, 2020, no pet.) (mem. op.) (in Rule 91a
case, affirming attorney’s-fee award of $10,000 in face of request for over $53,000 and
noting trial court’s authority to apply his or her personal experience as a lawyer and
judge); Roach v. Turkia, No. 05-18-00142-CV, 2019 WL 516742 at *4–5 (Tex. App.—
Dallas Feb. 11, 2019, no pet.) (mem. op.) (noting that trial court may “look at the
entire record and view the matter in light of the amount in controversy, the nature of
the case, and its own common knowledge and experience as a lawyer and judge” and
affirming award of $3,500 despite evidence of $11,000).
Here, the Mogged Parties used the lodestar method, addressed the Arthur
Andersen factors, and presented detailed evidence of their attorney’s fees, in contrast
with those post-Rohrmoos TCPA cases in which fee awards have been remanded for
trial courts to apply the clarified test. See Robles v. Nichols, No. 08-19-00225-CV,
2020 WL 4814209, at *7–8 (Tex. App.—El Paso Aug. 19, 2020, no pet.); Toledo v.
KBMT Operating Co., LLC, 581 S.W.3d 324, 327 (Tex. App.—Beaumont 2019, no
pet.). Beyond characterizing its award as encompassing “reasonable attorneys’ fees,”
the trial court’s order did not indicate why it reduced the requested fee award, 22 nor
22
Lindamood’s response to the Mogged Parties’ fee request leaned heavily on
notions of justice and equity as reasons to reduce the award. Sullivan was handed
down after the parties’ attorney’s-fees briefing and after the February 2016 hearing
but before the trial court entered its September 2016 order; the Mogged Parties
brought it to the court’s attention in the interim. Announcing its decision on fees and
sanctions in a post-Sullivan letter ruling in June 2016, the trial court wrote: “This
amount ‘is one that is not excessive or extreme, but rather moderate or fair,’” and
“‘does not also specifically include considerations of justice and equity,’” quoting
46
did it make any written findings of fact and conclusions of law as the Mogged Parties
requested.
Reduced attorney’s-fee awards under the TCPA can be and have been upheld
as a proper exercise of the trial court’s discretion if conflicting evidence of their
reasonableness exists. See, e.g., Ruder v. Jordan, No. 05-16-00742-CV, 2018 WL 672091,
at *3 (Tex. App.—Dallas Feb. 2, 2018, no pet.) (mem. op.) (citing Davis v. Huey,
571 S.W.2d 859, 862 (Tex. 1978)). In Ruder, the successful TCPA movant requested
over $30,000 in attorney’s fees and nearly $5,500 for costs and expenses; the
nonmovant countered with its attorney’s affidavit arguing that some of the fees
should have been segregated, that the time spent on some tasks was unreasonable,
and that the fee charged was not the type customarily charged in that location for
similar services. Id. at *2–4. The appellate court affirmed the award of only $9,000 for
attorney’s fees and $600 for costs, which the trial court had entered without
explaining its reasoning, commenting that “the trial court had before it conflicting
evidence raising a fact question on the reasonableness of the fees and expenses, and
exercised its discretion in resolving that question.” Id. at *4. Here, although
Lindamood’s response to the Mogged Parties’ fee evidence was permeated with now-
inoperative “justice and equity” considerations, Lindamood did challenge
Sullivan. This letter ruling does not, however, constitute formal findings and is not
“competent evidence of the trial court’s basis for judgment.” Bell Helicopter Textron, Inc.
v. Burnett, 552 S.W.3d 901, 911 n.7 (Tex. App.—Fort Worth 2018, pet. denied).
47
reasonableness on the basis of locality-driven hourly rates, as well as arguing that the
Mogged Parties should not recover attorney’s fees devoted to pursuing an
unsuccessful motion for protective order and restraining order, nor for Poulos’s fees,
which Mogged’s insurance company paid.
Nonetheless, based on the Mogged Parties’ evidence, the trial court’s award
strikes us as factually insufficient—that is, against the great weight and preponderance
of that evidence—and thus an abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19,
21 (Tex. 1998) (holding that if attorney’s-fee award is not grounded in factually
sufficient evidence, trial court abuses its discretion). But rather than “usurp the trial
court’s discretion by determining whether the amount of attorney’s fees requested was
‘reasonable’” under the TCPA, DeAngelis v. Protective Parent Coal., 556 S.W.3d 836,
862 (Tex. App.—Fort Worth 2018, no pet.), we conclude that the fee issue, including
the trial court’s award of conditional appellate attorney’s fees, should be remanded for
redetermination. In that way, the trial court can also apply Rohrmoos’s guidance, which
it did not have when awarding fees initially and which might inform the fee award
upon a second look at the Mogged Parties’ detailed evidence of their attorney’s fees.
We express no opinion about what an appropriate fee award would be.
B. Sanctions
In addition to awarding reasonable attorney’s fees to a prevailing TCPA
movant, the trial court must also impose sanctions against the nonmovant in an
amount “sufficient to deter” the filing of similar actions. Tex. Civ. Prac. & Rem. Code
48
Ann. § 27.009(a). The Mogged Parties had suggested that a sanctions award of no less
than half their attorney’s fees would be appropriate; Lindamood countered that
sanctions, if any, should be no more than $2,000. The trial court settled on $1,000 as
“sufficient” to deter Lindamood and JR’s Demolition from bringing similar actions.
Although Section 27.009 requires that a trial court award “some amount of
sanctions, it ha[s] the discretion to award only a nominal amount, such as $1.00.” Rich
v. Range Res. Corp., 535 S.W.3d 610, 613–14 (Tex. App.—Fort Worth 2017, pet.
denied) (declining to remand trial court’s failure to award any sanctions at all, because
where trial court has discretion to award nominal amount of $1.00, appellate court will
not reverse “merely to enable” such a recovery); see ADB Int., LLC v. Wallace,
606 S.W.3d 413, 443 (Tex. App.—Houston [1st Dist.] 2020, pet. filed) (citing Rich and
noting trial court’s “broad discretion” in awarding TCPA sanctions). In light of this
broad discretion, we will not second-guess the trial court’s sanctions award simply
because the amount was below even what Lindamood had suggested.
C. Request for Rule 296 findings and conclusions
Finally, the Mogged Parties claim that the trial court was obligated, upon
request and after being timely reminded, to prepare findings of fact and conclusions
of law relating to its order on attorney’s fees, costs, and sanctions. See Tex. R. Civ. P.
296, 297. Whether the procedures for findings of fact and conclusions of law under
Rules 296 through 299 apply in the TCPA context is an open question. E.g., Amanda
49
G. Taylor & Sara B. Churchin, TCPA Procedures: Statutory Requirements and Open
Questions, 84 The Advoc. (Tex.) 48, 51 (2018).
The TCPA explicitly requires findings in only one circumstance: “If the court
awards sanctions under Section 27.009(b),[23] the court shall issue findings regarding
whether the legal action was brought to deter or prevent the moving party from
exercising constitutional rights and is brought for an improper purpose, including to
harass or to cause unnecessary delay or to increase the cost of litigation.” See Tex. Civ.
Prac. & Rem. Code Ann. § 27.007(a). The Mogged Parties have disclaimed any
reliance on Section 27.007. The TCPA “does not otherwise expressly address findings
of fact and conclusions of law, but neither does it forbid them.” Greer v. Abraham,
489 S.W.3d 440, 443 n.3 (Tex. 2016).
As we noted, whether a particular attorney’s fee is reasonable under the TCPA
is a “determination [that] rests within the court’s sound discretion.” Sullivan,
488 S.W.3d at 299. The same is true for sanctions. Rich, 535 S.W.3d at 613–14. When
we review trial courts’ rulings for an abuse of discretion, findings of fact and
conclusions of law can be helpful, but they are not required. E.g., Haddock v. Quinn,
287 S.W.3d 158, 169 n.2 (Tex. App.—Fort Worth 2009, pet. denied). Accordingly, we
23
This introductory clause was new in 2019; the former version of Section
27.007(a) began, “At the request of a party making a motion under Section
27.003, . . . .”
50
hold that the trial court had no absolute duty to enter findings of fact and conclusions
of law in connection with its order on attorney’s fees, costs, and sanctions.
VI. Conclusion
We affirm the trial court’s order dismissing Lindamood’s claims against the
Mogged Parties. We affirm that part of the trial court’s separate order awarding
sanctions in favor of the Mogged Parties and against Lindamood and JR’s Demolition
but reverse and remand to the trial court for a redetermination of the trial and
appellate attorney’s fees awardable to the Mogged Parties.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: December 3, 2020
51
Jan Mogged, James Richard Fletcher and Michael Alan Taylor v. Bobby Wayne Lindamood, Jr., and Jr's Demolition & Excavation, Inc.
Combined Opinion