Rodney Pat Ramsey v. Phil Lynch ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00198-CV
RODNEY PAT RAMSEY,
Appellant
v.
PHIL LYNCH,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 84242
MEMORANDUM OPINION
Rodney Pat Ramsey filed suit against Phil Lynch for defamation. 1 Lynch filed a
motion to dismiss the suit pursuant to Chapter 27 of the Texas Civil Practice and
Remedies Code. After a hearing, the trial court granted the motion to dismiss the cause,
and Ramsey appeals from the trial court’s order of dismissal. We affirm.
1Ramsey also filed suit for defamation and civil conspiracy against Morris Gresham, Mike Dooley, and
Randy Whiteman. They are not parties to the proceedings before us.
Background Facts
Ramsey is the former city prosecutor for the City of Ovilla and Bill Vansyckle is
the former mayor of the City of Ovilla. Lynch filed a written complaint against Mayor
Vansyckle with the City of Ovilla alleging violations of the City of Ovilla Code of
Ethics. Included in the written complaint was an allegation that Vansyckle and Ramsey
were involved in “fixing code enforcement citations for certain Ovilla residents.”
Ramsey filed suit against Lynch for defamation based upon the statements in the
written complaint.
Lynch filed a motion to dismiss pursuant to Chapter 27 of the Texas Civil
Practice and Remedies Code, the Texas Citizen’s Participation Act (TCPA), asserting
that the written complaint was an exercise of his right to free speech and right to
petition. The trial court found that the defamation suit was based solely upon Lynch’s
written complaint, and that the Texas Citizen’s Participation Act, TEX. CIV. PRAC. & REM.
CODE ANN. § 27.001 et seq applies to the written complaint, and that the suit should be
dismissed under TEX. CIV. PRAC. & REM. CODE ANN. § 27.006 (West Supp. 2012).
Sufficiency of Evidence
In his first and third issues on appeal, Ramsey argues that the evidence is legally
and factually insufficient to support the trial court’s findings of fact. The motion to
dismiss shifts the burden to the non-movant to prove a prima facie case. Thus, the
failure to prove in essence “insufficient evidence,” falls on the party with the burden to
prove – in this case Ramsey. Thus the findings of fact essentially found the negative of
what Ramsey was required to prove. In determining whether evidence is legally
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sufficient to support the finding under review we must consider evidence favorable to
the finding if a reasonable fact finder could and disregard evidence contrary to the
finding unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005). When reviewing a challenge that the evidence is factually insufficient
to support a finding, a reviewing court will set aside the finding only if, after
considering and weighing all of the evidence in the record pertinent to that finding, the
court determines that the credible evidence supporting the finding is so weak, or so
contrary to the overwhelming weight of all the evidence, that the finding should be set
aside. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g).
Ramsey first challenges the legal and factual sufficiency of the trial court’s
findings that Ramsey’s claims against Lynch are based solely upon the written
complaint, that the complaint is not false and was not published with negligence or
actual malice, and that there was no agreement between two or more persons to
accomplish a wrong or lawful purpose.
In his first amended petition, Ramsey’s claims against Lynch for defamation are
based upon Lynch’s written complaint with the City of Ovilla. The purpose of the
TCPA is "to encourage and safeguard the constitutional rights of persons to petition,
speak freely, associate freely, and otherwise participate in government to the maximum
extent permitted by law and, 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 (West Supp. 2012). “If a legal action is based on, relates to, or is in response to a
party’s exercise of the right to free speech, right to petition, or right of association, that
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party may file a motion to dismiss the legal action.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.003(a) (West Supp. 2012). Section 27.005 provides that:
(b) Except as provided by Subsection (c), on the motion of a party under
Section 27.003, a court shall dismiss a legal action against the moving
party if the moving party shows by a preponderance of the evidence that
the legal action is based on, relates to, or is in response to the party's
exercise of:
(1) the right of free speech;
(2) the right to petition; or
(3) the right of association.
(c) The court may not dismiss a legal action under this section if the party
bringing the legal action establishes by clear and specific evidence a prima
facie case for each essential element of the claim in question.
TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)& (c) (West Supp. 2012).
Therefore, Ramsey was required to establish by clear and specific evidence a
prima facie case for each element of his defamation claim. To maintain a defamation
cause of action, the plaintiff must prove that the defendant: (1) published a false
statement; (2) that was defamatory concerning the plaintiff; (3) while acting with either
actual malice, if the plaintiff was a public official or public figure, or negligence, if the
plaintiff was a private individual, regarding the truth of the statement. WFAA-TV, Inc.
v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.
1989).
In his written complaint, Lynch states: “Based upon information gained through
the Texas Public Information Act, I charge Bill Vansyckle with the unlawful exercise of
fixing code enforcement citations for certain Ovilla residents.” The complaint
references previous allegations of “fixing tickets” and quotes statements and affidavits
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of third parties. Ramsey was required to establish by clear and specific evidence the
falsity of the written complaint. Ramsey denied all of the allegations and provided an
affidavit of Vansyckle that also denied the allegations.
The statements in the written complaint are accurate quotations of statements
made by third parties. See McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex. 1990). Ramsey did
not present any evidence that Lynch’s complaint was a false representation of the
statements.
Ramsey does not challenge the trial court’s finding that he was a public official.
Therefore, he was required to show that Lynch’s complaint was made with actual
malice. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d at 571. In the defamation context, a
statement is made with actual malice when the statement is made with knowledge of its
falsity or with reckless disregard as to its truth. Randall's Food Markets, Inc. v. Johnson,
891 S.W.2d 640, 646 (Tex. 1995). Proof of actual malice requires "sufficient evidence to
permit the conclusion that the defendant in fact entertained serious doubts as to the
truth of his publication." Nelson v. Pagan, 377 S.W.3d 824, 831 (Tex.App.-Dallas 2012, no
pet.). Ramsey did not present any evidence that Lynch made the complaint knowing
the allegations were false or with doubts as to the truth of the allegations. Ramsey also
did not present any evidence that Lynch made the allegations in the complaint in an
agreement with two or more persons to accomplish a wrongful act or improper
purpose.
Ramsey next challenges the trial court’s findings on attorney’s fees. The trial
court found Lynch’s reasonable and necessary attorney’s fees to be $6,200.00 and also
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found reasonable and necessary attorney fees in the event of an appeal. At the hearing
on the motion to dismiss, Lynch’s attorney testified as to his fees, the complexity of the
case, and the time spent on the case. Lynch’s attorney further testified that his fees were
fair and reasonable based upon attorney fees in Ellis County. Ramsey disputed that the
fees were reasonable, but did not present any evidence to refute the testimony. In his
brief, Ramsey does not point to any evidence refuting the findings on attorney fees.
We find that the evidence is legally and factually sufficient to support the
challenged findings of fact by the trial court. We overrule Ramsey’s first and third
issues.
In his fourth issue on appeal, Ramsey argues that the evidence is legally
insufficient to support the trial court’s conclusions of law. We review the trial court's
conclusions of law de novo. Under de novo review, the reviewing court exercises its
own judgment and redetermines each legal issue. Wells Fargo Bank, N.A. v. Citizens Bank
of Tex., N.A., 181 S.W.3d 790, 796 (Tex.App.-Waco 2005, pet. den’d).
Ramsey complains of the trial court’s conclusions of law that the TCPA applies to
Lynch’s complaint and to the lawsuit against Lynch. Ramsey further challenges the
conclusions of law that Lynch’s complaint was an exercise of his right to free speech
and his right to petition and that Ramsey’s lawsuit is based upon and relates to Lynch’s
exercise of his right to free speech and his right to petition. See TEX. CIV. PRAC. & REM.
CODE ANN. § 27.001 et seq.
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"Exercise of the right of free speech" means a communication made in connection
with a matter of public concern. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 (3) (West
Supp. 2012). "Exercise of the right to petition" means any of the following:
(A) a communication in or pertaining to:
(i) a judicial proceeding;
(ii) an official proceeding, other than a judicial proceeding, to
administer the law;
(iii) an executive or other proceeding before a department of the
state or federal government or a subdivision of the state or federal
government;
(iv) a legislative proceeding, including a proceeding of a legislative
committee;
(v) a proceeding before an entity that requires by rule that public
notice be given before proceedings of that entity;
(vi) a proceeding in or before a managing board of an educational
or eleemosynary institution supported directly or indirectly from public
revenue;
(vii) a proceeding of the governing body of any political
subdivision of this state;
(viii) a report of or debate and statements made in a proceeding
described by Subparagraph (iii), (iv), (v), (vi), or (vii); or
(ix) a public meeting dealing with a public purpose, including
statements and discussions at the meeting or other matters of public
concern occurring at the meeting;
(B) a communication in connection with an issue under
consideration or review by a legislative, executive, judicial, or other
governmental body or in another governmental or official proceeding;
(C) a communication that is reasonably likely to encourage
consideration or review of an issue by a legislative, executive, judicial, or
other governmental body or in another governmental or official
proceeding;
(D) a communication reasonably likely to enlist public participation
in an effort to effect consideration of an issue by a legislative, executive,
judicial, or other governmental body or in another governmental or
official proceeding; and
(E) any other communication that falls within the protection of the
right to petition government under the Constitution of the United States
or the constitution of this state.
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TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 (4) (West Supp. 2012).
Lynch’s written complaint alleged that Mayor Vansyckle violated the City of
Ovilla Code of Ethics. The complaint concerned the mayor’s performance as a public
official, which is a matter of public concern. Ramsey’s lawsuit against Lynch for
defamation is based upon the statements in the written complaint. We find that the
TCPA is applicable to the complaint and to the defamation lawsuit. Further, as
previously discussed, Ramsey was required to establish by clear and specific evidence a
prima facie case for each essential element of the claim in question to prevent
mandatory dismissal of the cause of action. See TEX. CIV. PRAC. & REM. CODE ANN. §
27.005(b)& (c) (West Supp. 2012). Ramsey did not meet his burden.
The trial court concluded that there was no good cause for discovery pursuant to
TEX. CIV. PRAC. & REM. CODE ANN. § 27.006 (West Supp. 2012). On a showing of good
cause, the trial court may allow specified and limited discovery relevant to the motion.
Ramsey has not shown specifically the discovery necessary to further his cause of
action.
If the court orders dismissal of a legal action under this chapter, the court shall
award to the moving party court costs, reasonable attorney's fees, and other expenses
incurred in defending against the legal action as justice and equity may require. T EX.
CIV. PRAC. & REM. CODE ANN. § 27.009 (a) (West Supp. 2012). Because the trial court
correctly dismissed the cause of action, court costs and attorney’s fees were properly
awarded. We find that the evidence is legally sufficient to support the trial court’s
conclusions of law. We overrule the fourth issue.
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Timely Hearing
In the second issue, Ramsey argues that the trial court failed to timely hold a
hearing on the motion to dismiss. A hearing on a motion to dismiss under Section
27.003 must be set not later than the 30th day after the date of service of the motion
unless the docket conditions of the court require a later hearing. T EX. CIV. PRAC. & REM.
CODE ANN. § 27.004 (West Supp. 2012). The motion to dismiss was filed on March 15,
2012 and the hearing on the motion was held May 4, 2012. Following the filing of the
motion to dismiss, the trial judge recused himself from the cause of action. The hearing
on the motion could not be heard until a new judge was assigned to the cause of action.
Therefore docket conditions required a later hearing. We overrule the second issue.
Conclusion
We affirm the trial court’s judgment.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 2, 2013
[CV06]
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