NUMBERS 13-20-00341-CV & 13-20-00383-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MEGALOMEDIA, INC., Appellant,
v.
MAJA RADNOVIC, JEANNE COVEY,
BARBARA J. FALLAW,
DOROTHY “DOTTIE” PERKINS,
ANNJEANETTE WHALEY, ALICIA KIRGAN,
AND MATTHEW VENTRESS
AKA DESTINEE LASHAEE, Appellees.
On appeal from the 55th District Court
of Harris County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Longoria
In two appeals, appellant Megalomedia, Inc. argues the trial court erred in failing
to dismiss the claims against it filed by appellees Maja Radanovic, Jeanne Covey,
Barbara J. Fallaw, Dorothy “Dottie” Perkins, Annjeanette Whaley, Alicia Kirgan, and
Matthew Ventress a/k/a Destinee Lashaee. Appellant asserts that these claims should
have been dismissed pursuant to: (1) the Texas Citizen’s Participation Act (TCPA); and
(2) its established affirmative defenses. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001–
.011. The trial court originally did not rule on appellant’s motions to dismiss, and thus the
motions were denied by operation of law, and appellant filed a notice of appeal in
appellate cause number 13-20-00341-CV. After appellant filed its notice of appeal, the
trial court issued an order granting in part and denying in part appellant’s TCPA motions
to dismiss, which appellant subsequently appealed in cause number 13-20-00383-CV.
We reverse and render in appellate cause number 13-20-00341-CV, and we dismiss
appellate cause number 13-20-00383-CV for want of jurisdiction.
I. BACKGROUND 1
Appellant is a television production company that produces reality television
shows, including “My 600-lb Life” (the show). Except for Fallaw, who is the mother of
Covey and only appeared on the show as a family member, appellees were participants
on the show, which “follows the lives of morbidly obese individuals and documents their
attempts to reduce their weight to a healthy level.” Prior to their appearance on the show,
appellant asserts that appellees had to sign certain documents including: a talent
agreement, an appearance release, and an acknowledgment and agreement to filming
1 These causes are before this Court on transfer from the Fourteenth Court of Appeals in Houston
pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§ 73.001.
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(collectively, the agreements). 2
Following their appearances on the show, appellees 3 filed separate lawsuits
against appellant 4 asserting claims for negligence, gross negligence, intentional infliction
of emotional distress (IIED), promissory estoppel, and fraudulent inducement. Appellant
answered, asserting seventeen affirmative defenses, including: “assumption of risk and
release of liability based on provisions” in the agreements. The lawsuits were
consolidated into one action.
Appellant subsequently filed separate TCPA motions to dismiss as to each
appellee, arguing that: (1) appellees’ claims are based on or in response to appellant’s
exercise of the rights of free speech and association, and arise from appellant’s acts
related to the gathering of information for the production and promotion of the show; (2)
appellees could not meet their TCPA burden to avoid dismissal; and (3) appellant was
entitled to judgment as a matter of law on its affirmative defenses of express contractual
assumption of risk, release of liability, and preclusion based on the parole evidence rule.
To each motion, appellant attached each respective appellee’s agreements and the
declaration of its CFO, Toni Westberry, which stated, in pertinent part, that the
agreements were true and correct copies of the agreements signed by appellees.
2 Because she was not a participant in the show, Fallaw only signed an appearance release and
an agreement to film.
3 Although they are not parties to these appeals, the underlying consolidated lawsuit includes
additional plaintiffs, Karen Sue Bonner, James Bonner, Sr., and Tera Ann Shumaker, Personal
Representative of the Estate of James Edward Bonner, Jr. Appellant did not file TCPA motions to dismiss
their claims.
4 Appellees also sued Megalomedia Studios, LLC, Mansfield Films, LLC, DBA Holdings, LLC, and
Discovery Communications, LLC., but the claims were nonsuited.
3
Appellant filed a supplemental declaration of Westberry, wherein she stated that she is
the custodian of records for appellant and was familiar with the “manner in which
[appellant’s] records are created and maintained.”
Appellees responded, arguing that clear and specific evidence was presented for
each essential element of their “negligence, [IIED,] and promissory estoppel claims,” and
that appellant was not entitled to dismissal because it did not establish any affirmative
defense and “fact issues exist concerning the enforceability of [the agreements].” Each
appellee attached a declaration in which they stated, along similar lines, that they were
not given the opportunity to review the agreements before signing them, nor were they
advised that they “would be waiving all [their] legal rights against [appellant].”
Appellant replied, arguing that appellees conceded the TCPA’s applicability and
that they failed to present any evidence to support their gross negligence or fraudulent
inducement claims. Further, appellant argued that the evidence presented by appellees
on their remaining claims “failed to establish a prima facie case” and disputed appellees’
assertions regarding the authenticity of the agreements. A hearing was held, and the trial
court took the motions under advisement.
A. Appellate Cause Number 13-20-00341-CV
After thirty days had passed with no ruling, the motions were denied by operation
of law. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.005(a), 27.008. Appellant filed a
notice of appeal, assigned appellate cause number 13-20-00341-CV, arguing the trial
court erred in allowing its motion to dismiss to be denied by operation of law. We address
those issues raised in appellate cause number 13-20-00341-CV below.
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B. Appellate Cause Number 13-20-00383-CV
Subsequently to appellant filing its notice of appeal in appellate cause number 13-
20-00341-CV, the trial court issued an order granting in part and denying in part
appellant’s TCPA motion. However, because the trial court’s order was issued after the
TCPA motions to dismiss were denied by operation of law, it is untimely and the operative
ruling in this cause is the denial by operation of law. See Better Bus. Bureau of Metro.
Houst., Inc. v. John Moore Servs, Inc., 500 S.W.3d 26, 39 (Tex. App.—Houston [1st Dist.]
2016, pet. denied); see also Dall. Morning News, Inc. v. Mapp, No. 05-14-00848-CV, 2015
WL 3932868, at *3 (Tex. App.—Dallas June 26, 2015, no pet.) (mem. op.). Accordingly,
because the trial court was without authority to issue the untimely order, we dismiss
appellate cause number 13-20-00383-CV for want of jurisdiction.
II. TCPA
In its first issue, appellant contends that the trial court erred in allowing its TCPA
motions to dismiss to be denied by operation of law. Arguing that appellees did not dispute
that the TCPA applies to the claims in this case, appellant states that appellees failed to
establish clear and specific evidence of a prima facie case for each element of their
negligence, gross negligence, IIED, promissory estoppel, and fraudulent inducement
claims, thereby warranting dismissal pursuant to the TCPA.
A. Standard of Review
We review de novo a trial court’s ruling on a TCPA motion to dismiss. Dall. Morning
News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019). In conducting our review, we
consider the pleadings and evidence in a light favorable to the nonmovant. Dyer v. Medoc
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Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas 2019, pet. denied).
The TCPA is an anti-SLAPP law; “SLAPP” is an acronym for “Strategic Lawsuits
Against Public Participation.” Fawcett v. Grosu, 498 S.W.3d 650, 654 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied) (op. on reh’g). The TCPA is intended “to
encourage and safeguard the constitutional rights of persons to petition, speak freely,
associate freely, and otherwise participate in government to the maximum extent
permitted by law and, at the same time, protect the rights of a person to file meritorious
lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002; Cox Media
Grp., LLC v. Joselevitz, 524 S.W.3d 850, 859 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). The TCPA “protects citizens from retaliatory lawsuits that seek to intimidate or
silence them” from exercising their First Amendment freedoms and provides a procedure
for the “expedited dismissal of such suits.” In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015).
We construe the TCPA liberally to effectuate its purpose and intent fully. See Adams v.
Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018); ExxonMobil Pipeline
Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017); see also TEX. CIV. PRAC. & REM. CODE
ANN. § 27.011(a).
A defendant invoking the act’s protections must show first, by a preponderance of
the evidence, that the plaintiff’s legal action is “based on, relates to, or is in response to”
the defendant’s exercise of one or more of the enumerated rights. In re Lipsky, 460
S.W.3d at 586. If the defendant makes the initial showing, the burden shifts to the plaintiff
to establish by clear and specific evidence a prima facie case for each essential element
of the claim in question. See id. at 587. “Prima facie case” refers to the quantum of
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evidence required to satisfy the nonmovant’s minimum factual burden and generally
refers to the amount of evidence that is sufficient as a matter of law to support a rational
inference that an allegation of fact is true. See id. at 590.
The evidence offered to support a prima facie case must be “clear and specific.”
Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per curiam). Clear and specific
evidence means that the nonmovant must provide enough detail to show the factual basis
for its claim. Id. at 904. If the movant’s constitutional rights are implicated and the
nonmovant has not met the required showing of a prima facie case, the trial court must
dismiss the nonmovant’s claim. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005. The trial
court considers “the pleadings and supporting and opposing affidavits stating the facts on
which the liability or defense is based.” Id. § 27.006(a).
Because appellees do not dispute the applicability of the TCPA to their claims, only
the second step is at issue—accordingly, we address each claim to determine whether
appellees met their burden to establish by clear and specific evidence a prima facie case
for each element of the claims in question. In re Lipsky, 460 S.W.3d at 587.
B. Negligence
The elements of a negligence cause of action are the existence of a legal duty, a
breach of that duty, and damages proximately caused by the breach. Kroger Co. v.
Elwood, 197 S.W.3d 793, 794 (Tex. 2006). In their responses to appellant’s motions to
dismiss, appellees alleged that appellant’s “acts and omissions constituted negligence
because their failure to provide mental health treatment to [appellee] both during the
filming of [appellee’s] episode and after the bariatric surgery proximately caused harm.”
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Appellees argued that their “mental and physical trauma . . . was a foreseeable
result of the deplorable and negligent actions of [appellant].” However, at the hearing on
appellant’s motions to dismiss, counsel seemingly conceded that there is no recovery for
negligent infliction of emotional distress, the underlying basis of appellees’ negligence
claims: “Although it’s pled, if you were to drop that that [sic] case—or drop those claims,
we would understand, but, obviously, the intentional claims are where the . . . rubber
meets the road in these cases.”
The Texas Supreme Court has held that “although we do not recognize an
independent cause of action for negligent infliction of mental anguish, mental anguish
damages may be available when they are ‘caused by defendant’s breach of some other
legal duty.’” SCI Tex. Funeral Servs., Inc. v. Nelson, 540 S.W.3d 539, 546 (Tex. 2018)
(quoting Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex. 1993)). In response to appellant’s
motions to dismiss, aside from asserting that appellees’ alleged injuries were foreseeable,
appellees did not present evidence of any legal duty breached by appellant. Accordingly,
because appellees failed to establish a prima facie case for an element of negligence by
clear and specific evidence, we sustain appellant’s first issue as it relates to appellees’
negligence action. See In re Lipsky, 460 S.W.3d at 587.
C. Gross Negligence
“Gross negligence has both an objective and a subjective component.” Reeder v.
Wood Cty. Energy, LLC, 395 S.W.3d 789, 796 (Tex. 2012). First, “viewed objectively from
the actor’s standpoint, the act or omission complained of must involve an extreme degree
of risk, considering the probability and magnitude of the potential harm to others.” Lee
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Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). An extreme risk is “not
a remote possibility of injury or even a high probability of minor harm, but rather the
likelihood of serious injury to the plaintiff.” Mobil Oil Corp. v. Ellender, 968 S.W.2d 917,
921 (Tex. 1998). Second, “the actor must have actual, subjective awareness of the risk
involved, but nevertheless proceed in conscious indifference to the rights, safety, or
welfare of others.” Id. To establish the subjective component, “the plaintiff must show
that the defendant knew about the peril, but his acts or omissions demonstrate that he
did not care.” Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164, 173 (Tex. 2005). The
risk should be “examined prospectively from the perspective of the actor, not in
hindsight.” Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex.
2008). The defendant need not have anticipated the precise manner of harm or to whom
the injury would befall to have had awareness of the extreme risk. U-Haul Int’l., Inc., v.
Waldrip, 380 S.W.3d 118, 139 (Tex. 2012).
Appellant argues that appellees did not “offer[] evidence nor argument to support
their gross negligence . . . claims; in fact, they failed to even mention those claims in
response to [appellant’s] [m]otions to dismiss them.” We agree. Having reviewed the
record, including appellees’ responses to appellant’s TCPA motions to dismiss and
appellees’ brief on appeal, we note that appellees do not address their gross negligence
claims against appellants. Therefore, we sustain appellant’s first issue as it relates to
appellees’ gross negligence claims. See O’Hern v. Mughrabi, 579 S.W.3d 594, 605 (Tex.
App.—Houston [14th Dist.] 2019, no pet.) (finding appellee failed to establish a prima
facie case where the elements of appellee’s claim were not addressed in response to
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appellants’ motion to dismiss).
D. IIED
In response to appellant’s motions to dismiss, appellees alleged that appellant’s
“acts and omissions caused [IIED] because such actions were so deplorable and so
depraved in nature that they fell well below any reasonable standard of common
decency.” “To recover damages for [IIED], a plaintiff must establish that: (1) the defendant
acted intentionally or recklessly; (2) the defendant’s conduct was extreme and
outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and (4)
the resulting emotional distress was severe.” Hoffmann–La Roche Inc. v. Zeltwanger, 144
S.W.3d 438, 445 (Tex. 2004). Appellees did not, in their response at trial or in their brief
on appeal, set out the elements of their IIED cause of action or apply the evidence to
each element, but citing to GTE Sw., Inc. v. Bruce, appellees argued that appellants
subjected appellees to a pattern of harassment which appellees contend is sufficient for
a jury to find that appellant “intentionally and recklessly subjected [appellees] to
outrageous conduct.” 998 S.W.2d 605, 615 (Tex. 1999). To their responses, appellees
attached their individual affidavits, in which they averred, similarly though not identically,
that appellant forced them to do voiceovers for their episodes for up to fourteen hours a
day, would “threaten” appellees with breach of contract if they refused or tried to stop,
and “subjected [appellee] to routine, repeated[,] and ongoing harassment.” There were
also contentions that appellant “forced” appellees to lie to “create dramatic effect” and to
eat things they did not want to while on camera.
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The Supreme Court has set a high standard for “extreme and outrageous” conduct
holding that the element is only satisfied if the conduct is “so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community.” Hersh v. Tatum, 526 S.W.3d
462, 468 (Tex. 2017) (internal citations omitted). Thus, “[l]iability does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”
Hoffmann–La Roche Inc., 144 S.W.3d at 445 (citing Bruce, 998 S.W.2d at 612).
Appellees rely on the holding from the Bruce court to argue that the pattern of harassment
rose to the level of outrageous conduct. However, in Bruce, the evidence provided
showed that the employer subjected the employees to “grossly abusive, threatening, and
degrading conduct” for a period of “more than two years.” Bruce, 998 S.W.2d at 613.
There was testimony of regular “abusive profanity” and vulgar language, as well verbal
and physical threats that the employees testified “terrorized them.” Id.
Appellees contend that like the employer in Bruce, appellant subjected them to
repeated and ongoing harassment. While we do not belittle the allegations made by
appellees regarding the conduct of appellant, we find that the alleged conduct does not
rise to the level of “extreme and outrageous.” Appellees’ affidavits presented allegations
that appellant subjected them to long hours of filming, sometimes through the night,
forced them to do things for “dramatic effect,” including telling lies and eating food, and
threatened canceling episodes or breach of contract if appellee tried to stop. Appellees
were in a contractual relationship with appellant, and while appellees contend the course
of conduct they were subjected to by appellant was extreme and outrageous, we note
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that none of the alleged actions of appellant included physical threats or harm, or
otherwise contained threats unrelated to the contract. See Tiller v. McLure, 121 S.W.3d
709, 715 (Tex. 2003). Further, here, as in Tiller, while the alleged acts were
“unquestionably insensitive given the situation . . . rude or insensitive behavior generally
does not rise to the level of extreme and outrageous conduct.” Id. at 714 (quoting
Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994)). “We certainly understand
judicial reticence to dismiss claims like this one stemming from heinous acts. But except
in circumstances bordering on serious criminal acts, we repeat that such acts will rarely
have merit as intentional infliction claims.” Creditwatch, Inc. v. Jackson, 157 S.W.3d 814,
818 (Tex. 2005). Accordingly, because appellees’ pleadings and evidence do not amount
to extreme and outrageous conduct, we sustain appellant’s first issue as it relates to
appellees’ claims for IIED.
E. Promissory Estoppel
The elements of promissory estoppel are: (1) a promise, (2) foreseeability of
reliance thereon by the promisor, and (3) substantial reliance by the promisee to his
detriment. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 n.25 (Tex. 2002) (citing
English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983)) (listing requisites of promissory
estoppel, including detrimental reliance). Promissory estoppel is not applicable to a
promise covered by a valid contract between the parties but can apply to a promise
outside a contract. Trevino & Assocs. Mech., L.P. v. Frost Nat. Bank, 400 S.W.3d 139,
146 (Tex. App.—Dallas 2013, no pet.).
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Appellees alleged in their response that appellant “made a promise to [appellees]
concerning payment of [their] medical treatment, including surgery, to which [appellees]
detrimentally relied.” Although the specifics of the alleged promises vary among the
appellees, the allegations are generally the same. While each appellee alleges that a
promise was made to them regarding payment of their medical bills, they presented no
evidence of an actual promise. To support a finding of promissory estoppel, a successful
promissory estoppel claim must be based on “an actual promise.” See Stable Energy,
L.P. v. Kachina Oil & Gas, Inc., 52 S.W.3d 327, 336 (Tex. App.—Austin 2001, no pet.).
The asserted “promise” must be sufficiently specific and definite so that it would be
reasonable and justified for the promisee to rely on it as a commitment to future action.
Comiskey v. FH Partners, LLC, 373 S.W.3d 620, 635 (Tex. App.—Houston [14th Dist.]
2012, pet. denied). Appellees presented no evidence of a promise, nor did they present
sufficiently specific evidence that appellant definitively and unconditionally promised to
pay their medical bills. See Davis v. Tex. Farm Bureau Ins., 470 S.W.3d 97, 108 (Tex.
App.—Houston [1st Dist.] 2015, no pet.). Therefore, appellees failed to establish a prima
facie case as to the promise element of promissory estoppel. See Comiskey, 373 S.W.3d
at 635. We sustain appellant’s first issue as it relates to appellees’ promissory estoppel
claims.
F. Fraudulent Inducement
Fraudulent inducement is a species of common-law fraud that shares the same
basic elements: (1) a material misrepresentation, (2) made with knowledge of its falsity or
asserted without knowledge of its truth, (3) made with the intention that it should be acted
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on by the other party, (4) which the other party relied on, and (5) which caused injury.
Anderson v. Durant, 550 S.W.3d 605, 614 (Tex. 2018) (citing Zorrilla v. Aypco Constr. II,
LLC, 469 S.W.3d 143, 153 (Tex. 2015); Formosa Plastics Corp. USA v. Presidio Eng’rs
& Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998) (op. on reh’g)).
Appellant argues that appellees did not “offer[] evidence nor argument to support
their . . . fraudulent claims; in fact, they failed to even mention those claims in response
to [appellant’s] [m]otions to dismiss them.” We agree. While appellees briefly address
their fraudulent inducement claims in their appellate brief, in their response to appellant’s
motions to dismiss, appellees did not address the elements of fraudulent inducement and
they provided no clear and specific evidence of their claim. Accordingly, appellees failed
to establish a prima facie case as to their fraudulent inducement claims. See O’Hern, 579
S.W.3d at 605. We sustain appellant’s first issue as it relates to appellees’ fraudulent
inducement claims. 5
III. CONCLUSION
We reverse the order of the trial court in appellate cause number 13-20-00341-CV
and render judgment dismissing appellees’ claims. We dismiss appellate cause number
13-20-00383-CV for want of jurisdiction.
NORA L. LONGORIA
Justice
Delivered and filed on the
14th day of April, 2022.
5 Having sustained appellant’s first issue, we do not address appellant’s second issue as it is not
dispositive. See TEX. R. APP. P. 47.1.
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