Theaola Robinson v. KTRK Television, Inc. ( 2015 )

ACCEPTED
01-14-00880-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/25/2015 3:28:27 PM
CHRISTOPHER PRINE
CLERK
CAUSE NO. 01-14-00880-CV
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS
AT HOUSTON 9/25/2015 3:28:27 PM
CHRISTOPHER A. PRINE
Clerk
THEAOLA ROBINSON
Appellant,
v.
KTRK TELEVISION, INC.,
Appellee.
On Appeal from the 234th District Court of Harris County, Texas
the Hon. Wesley Ward, Presiding
BRIEF OF APPELLEE KTRK TELEVISION, INC.
Catherine Lewis Robb
State Bar No. 24007924
Catherine.robb@haynesboone.com
*Laura Lee Prather
State Bar No. 16234200
Laura.prather@haynesboone.com
HAYNES AND BOONE, LLP
600 Congress Avenue
Suite 1300
Austin, Texas 78701
Telephone: (512) 867-8400
Facsimile: (512) 867-8470
COUNSEL FOR APPELLEE
KTRK TELEVISION, INC.
*Lead counsel for Appellee
CAUSE NO. 01-14-00880-CV
IN THE COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT OF TEXAS
AT HOUSTON
THEAOLA ROBINSON
Appellant,
v.
KTRK TELEVISION, INC.,
Appellee.
On Appeal from the 234th District Court of Harris County, Texas
the Hon. Wesley Ward, Presiding
IDENTIFICATION OF PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), the following
are the parties and counsel for this appeal1:
Appellant pro se:
Theaola Robinson
5505 Jensen Drive
Houston, Texas 77028
1
Although Appellant listed “Respondents” as “The Walt Disney Company, ABC Television
Network, Inc., CC Texas Holding Company, Inc. and KTRK Television, Inc.,” only KTRK is a
party to this appeal. The Walt Disney Company (“TWDC”), ABC Television Network, Inc., and
CC Texas Holding Company, Inc. (“CCTHC”) are not, and cannot be, parties to this appeal.
Robinson’s Notice of Appeal states that she desires “to appeal from the judgment rendered
against Plaintiff by the 234th Judicial District Court of Harris County, Texas on October 8,
2014.” CR 622 (Tab A). The only “judgment” rendered against the Plaintiff on October 8, 2014
was the “Order and Final Judgment” in which the 234th District Court awarded attorney’s fees
and sanctions on behalf of KTRK (the sole remaining defendant) against Robinson (the sole
remaining plaintiff) in the trial court proceeding. CR 537 (Tab B). Furthermore, in addition to
not being parties to the Order being appealed, ABC Television Network is not a corporate entity
and was never served in the underlying suit. Additionally, TWDC and CCTHC were dismissed
from the underlying suit pursuant to Special Appearances. CR 536; 796.
i
Trial Counsel For Appellant Theaola Robinson2
Berry Dunbar Bowen
Fed. ID No. 6177
State Bar No. 02721050
3014 Brazos Street
Houston, TX 77006
Telephone: (713) 521-3525
Telecopier: (713) 521-3575
Appellee:
KTRK Television, Inc.
Trial and Appellate Counsel For Appellee KTRK Television, Inc.:
Laura Lee Prather
State Bar No. 16234200
Laura.prather@haynesboone.com
Catherine Lewis Robb
State Bar No. 24007924
Catherine.robb@haynesboone.com
Haynes and Boone, LLP
600 Congress Avenue, Suite 1300
Austin, Texas 78701
Telephone: (512) 867-8400
Facsimile: (512) 867-8470
2
Although Robinson states in the “Identity of Parties and Counsel” section of her Brief that
Berry Dunbar Bowen is her trial and appellate counsel, she has made multiple attestations to the
trial court and to this Court that she is proceeding pro se, and has signed her Brief pro se. CR
557, 607, 609. Mr. Bowen was Robinson’s attorney of record in the first appeal of this matter.
ii
TABLE OF CONTENTS
IDENTIFICATION OF PARTIES .............................................................................i
TABLE OF CONTENTS ......................................................................................... iii
RECORD REFERENCES ......................................................................................... v
TABLE OF AUTHORITIES ....................................................................................vi
STATEMENT OF THE CASE .................................................................................xi
STATEMENT REGARDING ORAL ARGUMENT ........................................... xiii
ISSUES PRESENTED............................................................................................xiv
I. STATEMENT OF FACTS ..................................................................................... 1
II. SUMMARY OF THE ARGUMENT.................................................................... 6
III. ARGUMENT ....................................................................................................... 8
A. Not Only Did This Court Have Jurisdiction To Hear The First
Appeal Of This Case, But This Court Has Already Addressed
– And Denied – Robinson’s Arguments That It Lacked Such
Jurisdiction. .................................................................................................... 8
B. The First Court Of Appeals Did Not Err In Its Opinion In
KTRK Television, Inc. v. Robinson, Dated July 11, 2013, An
Opinion That Was Correctly Decided And For Which All
Appeals Have Been Exhausted, And Over Which This Court
No Longer Has Jurisdiction.......................................................................... 10
1. This Court’s Plenary Power Regarding Its Prior Decision
Expired on September 24, 2013. ...................................................................12
2. This Court’s Prior Decision Is the Law of the Case,
Barring Further Reconsideration of Robinson’s Issues. ..........................14
3. This Case Was Correctly Decided in the First Appeal
and, Should This Court Look at the Substance of
Robinson’s Brief, the Court Should Re-Affirm Its Prior
Decision. ..............................................................................................................17
C. The Trial Court Properly Awarded Attorneys’ Fees, Costs,
And Sanctions To KTRK; Its Order Doing So Does Not Raise
Any Constitutional Questions; Robinson Waived Any
Constitutional Challenge To The TCPA By Failing To Raise It
At The Trial Court. ....................................................................................... 21
iii
1. Robinson’s Arguments that the Trial Court’s Fee Award
Was Punitive and in Violation of Open Courts Are
Without Merit and Were Waived. .................................................................22
2. The Trial Court’s Award of Fees, Costs, Expenses, and
Sanctions Was in Accordance with the TCPA. .........................................25
3. The Trial Court’s Award of Fees, Costs, Expenses, and
Sanctions Was in Accordance with the Mandate of This
Court. ....................................................................................................................30
PRAYER .................................................................................................................. 32
CERTIFICATE OF COMPLIANCE ....................................................................... 33
CERTIFICATE OF SERVICE ................................................................................ 33
APPENDIX .............................................................................................................. 34
iv
RECORD REFERENCES
Citations to the Clerk’s Record are in the form of [supplement ] CR [page #].
For clarification:
CR refers to the Clerk’s Record filed on December 30, 2014;
1st CR refers to the Special Supplemental Clerk’s Record (Pauper’s
Documentation) filed on December 31, 2014.
2nd CR refers to the Second Supplemental Clerk’s Record requested on
September 9, 2015, which has not yet been filed.3 Because the 2nd CR cites are not
yet available, Appellee will include the referenced documents in the Appendix and
reference the Appendix, as well.
Citations to Appellant’s Brief filed on June 10, 2015 are in the form of Br.
[page #].
3
Appellee has been informed that the Second Supplemental Clerk’s Record has not been
completed, but is tentatively scheduled to be filed on October 9, 2015.
v
TABLE OF AUTHORITIES
Cases
Abdel Hazif v. ABC, Inc., 240 S.W.3d 492 (Tex. App.—Fort
Worth 2007, pet. denied) ......................................................................................19
Algae Int’l Grp., Inc. v. Stegman, No. DC-13-03933 (44th Dist.
Ct., Dallas County, Tex. Sept. 13, 2013)..............................................................29
Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865 (Tex.
App.—Dallas 2014, no pet.) .......................................................................... 28, 29
Anderson Dev. Co. v. Tobias, 116 P.3d 323 (Utah 2005)........................................24
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812(Tex. 1997) ...........................................................................................................30
Aycock v. State of Texas, 863 S.W.2d 183 (Tex. App.—Houston
[14th Dist.] 1993, writ denied) ..............................................................................15
Better Bus. Bureau of Metro Dallas, Inc. v. BH DFW, Inc., 402
S.W.3d 299 (Tex. App. Dallas 2013, no pet) .........................................................8
Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs.,
Inc., 441 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2013,
pet. denied) ...........................................................................................................27
Brewer v. Simental, 268 S.W.3d 763 (Tex. App.—Waco 2008,
pet. denied) ...........................................................................................................22
Caplinger v. Allstate Ins. Co., 140 S.W.3d 927 (Tex. App.—
Dallas 2004, pet. denied) ......................................................................................15
Carbajal v. ACCC General Agency, Inc., No. 05-15-00382-CV
(Tex. App.—Dallas September 10, 2015, no pet. h.)(mem.
op.) ..........................................................................................................................5
Cleveland v. Taylor, 397 S.W.3d 683 (Tex. App.—Houston
[1st Dist.] 2012, pet. denied) ................................................................................31
vi
Combined Law Enforcement Ass’ns. of Tex. v. Sheffield, No.
03-13-105-CV, 11 2014 WL 411672 (Tex. App.—Austin Jan.
31, 2014, pet. denied)(mem. op.) .................................................................. 23, 25
Cook v. Cameron, 733 S.W.2d 137 (Tex. 1987) .....................................................14
Cruz v. Van Sickle, 452 S.W.3d 503 (Tex. App.—Dallas 2014,
pet. denied) ...........................................................................................................29
Dallas County v Sweitzer, 971 S.W.2d 629 (Tex. App.—Dallas
1998, no pet.) ........................................................................................................14
Day v. Farrell, No. 97-2722, 2000 WL 33159180 (R.I. May 15,
2000) .....................................................................................................................24
Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC,
2013 WL 407029 (Tex. App.—Hou. [14th] 2013, no pet.) ....................................8
El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012) ..........................................26
Equilon Enters. v. Consumer Cause, Inc., 52 P.3d 685 (Cal.
2002) .....................................................................................................................24
Guam Greyhound v. Brizill, No. CVA07-021, 2008 WL
4206682 (Guam Sept. 11, 2008) ..........................................................................24
Gulf Energy Exploration Corp. v. Fugro Chance, 2012 WL
601413 (Tex. App.—Corpus Christi 2012, no pet.)(mem. op.) .................... 12, 16
Head v. Chicory Media, LLC, No. 2013-0040 (714st Dist. Ct.,
Harrison County, Tex. Sept. 25, 2013), appeal dism’d, 415
S.W.3d 559 (Tex. App.—Texarkana 2013, no pet.) ..................................... 28, 29
Hometown Props., Inc. v. Fleming, 680 A.2d 56 (R.I. 1996)..................................24
Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413 (Tex.
2000) .....................................................................................................................20
Hudson v. Wakefield, 711 S.W.2d 628 (Tex. 1986) ................................... 12, 15, 16
In re Thuesen, No. 2012-49262 (151st Dist. Ct., Harris County,
Tex. Mar. 4, 2013), appeal docketed, No. 14-13-00523-CV
(Tex. App.—Houston [14th Dist.]) ......................................................................29
vii
James v. Calkins, 446 S.W.3d 135 (Tex. App.—Houston [1st
Dist.] 2014, pet. granted) ......................................................................................27
Kinney v. BCG Attorney Search, Inc., No. 03-12-00579-CV,
2014 WL 1432012 (Tex. App.—Austin Apr. 11, 2014, pet.
denied) (mem. op.) ...............................................................................................28
KTRK Television, Inc. v. Robinson, 409 S.W.3d 682 (Tex. App.
—Houston [1st Dist.] 2013, pet. denied) ................................................................8
Lafayette Morehouse, Inc. v. Chronicle Publ’g Co., 37 Cal.
App. 4th 855 (1995) .............................................................................................24
Lee v. Pennington, 830 So. 2d 1037 (La. Ct. App. 2002).........................................24
Miller v. University Sav. Assoc., 858 S.W.2d 33 (Tex. App.—
Houston [14th Dist.] 1993, writ denied)................................................................15
Moore v. Waldrop, 166 S.W.3d 380 (Tex. App.—Waco 2005,
no pet.) ........................................................................................................... 18, 20
Musser v. Smith Protective Servs., 723 S.W.2d 653 (Tex. 1987)............................20
Neely v. Wilson, 418 S.W.3d 52 (2013) ...................................................................13
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
416 S.W.3d 71 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied) ..................................................................................................................27
Newspapers, Inc. v. Matthews, 339 S.W.2d 890 (Tex. 1960) .................................20
Nexus v. Swift, 785 N.W.2d 771 (Minn. Ct. App. 2010) .........................................24
Phillips v. Bramlett, 407 S.W.3d 229 (Tex. 2013) ..................................................14
Ramsey v. Lynch, No. 10-12-00198-CV, 2013 WL 1846886(Tex. App.—Waco May 2, 2013, no pet.) (mem. op.) .........................................28
Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716 (Tex.
App.—Houston [14th Dist.] 2013, pet. denied) ...................................................28
Rustic Cedar Cabins Inc. v. Cortell, No. 28500 (21st Dist. Ct.,
Bastrop County, Tex. Sept. 5, 2012) ....................................................................29
viii
San Jacinto Title Svcs., LLC V. Kingsley Props. LP., 452
S.W.2d 343 (Tex. App.—Corpus Christi 2013, pet. denied) .................................8
Sandholm v. Kuecker, 942 N.E.2d 544 (Ill. App. Ct. 2010) ....................................24
Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983) (internal quotation
marks and citation omitted) ..................................................................................23
Schauer v. Memorial Care Sys., 856 S.W.2d 437 (Tex. App.—
Hou. [1st Dist.] 1993, no writ) ..............................................................................20
Schimmel v. McGregor 438 S.W.3d 847 (Tex. App.—Houston
[1st Dist.] 2014, no pet.) ................................................................................. 26, 27
Schlumberger Ltd. v. Rutherford, No. 01-14-00776-CV (Tex.
App.—Houston [1st Dist.] Aug. 25, 2015, no pet. h.) .................................. 27, 29
Senator Jeff Wentworth v Elizabeth Ames Jones, Cause No.
2012-CI-08201 (73rd Dist. Ct., Bexar Co., Tex. filed May 17,
2012) .....................................................................................................................23
Simpton v. High Plains Broad., Inc., No. 2011-13290 (285th
Dist. Ct., Bexar County, Tex. July 30, 2012) .......................................................29
Spencer v. Pagliarulo, 448 S.W.3d 605 (Tex. App.—Houston
[1st Dist.] 2014) ....................................................................................................13
Texas Pub. Bldg. Auth. v. Mattox, 686 S.W.2d 924 (Tex. 1985) ............................23
Weaver v. Jamar, 383 S.W.3d 805 (Tex. App.—Houston [14th
Dist.] 2012, no pet.) ..............................................................................................26
WFAA v. McLemore, 978 S.W.2d 568 (Tex. 1998), cert. denied,
119 S. Ct. 1358 (1999) .........................................................................................19
Statutes
Tex. Civ. Prac. & Rem. Code § 51.014 .....................................................................9
Tex. Civ. Prac. & Rem. Code § 73.002 ...................................................................19
Tex. Civ. Prac. & Rem. Code Ann. § 27.009 .................................................. passim
ix
Tex. R. App. P. 19.1.......................................................................................... 12, 13
Tex. R. App. P. 19.3.......................................................................................... 12, 13
Tex. R. App. P. 33.1.................................................................................................22
Tex. R. App. P. 42.3.................................................................................................32
Tex. R. App. P. 51.1.................................................................................................14
Tex. R. Civ. P. 13 .....................................................................................................23
x
STATEMENT OF THE CASE
In accordance with Tex. R. App. P. 38.2(a)(1)(B), Appellee disagrees with
Appellant’s statement of the case. Appellant states that “This is an appeal of a
denial of a Motion to Dismiss claims for defamation/libel pursuant to the Texas
Citizens' Participation Act, Tex. Civ. Prac. & Rem. Code Ann. § 27.001, et seq.
(Vernon Supp. 2011).” Appellant is wrong. Appellee has already appealed that
ruling through five different filings before this Court and the Texas Supreme
Court. See discussion in Appellee KTRK Television, Inc.’s Motion to Dismiss
Appellant’s Appeal and Request to Declare Appellant Robinson A Vexatious
Litigant, filed in No. 01-14-008800-CV (Tab H).
NATURE OF THE Defamation
CASE:
COURSE OF Appeal of Order of October 8, 2014 of the 234th Judicial
PROCEEDINGS: Court of Harris County on remand from this Court, ordering
final judgment and dismissal with prejudice in accordance
with this Court’s July 11, 2013 Order, and attorney’s fees,
costs, and expenses. CR 615, 455, 469 (Tabs B, C, and D).
TRIAL COURT’S Appellant Theaola Robinson filed suit against multiple
DISPOSITION: Defendants in September, 2011. CR 560. KTRK filed an
anti-SLAPP motion pursuant to Chapter 27 of the Texas
Civil Practice & Remedies Code, which was denied by the
trial court and timely appealed to this court, which found in
favor of KTRK on July 11, 2013. CR 455 (Tabs C and D).
After exhausting her appeals, on October 8, 2014, the trial
court, on remand and in accordance with this Court’s July
11, 2013 Order and with Tex. Civ. Prac. & Rem. Code §
27.009, awarded KTRK its attorney’s fees, expenses, court
costs, and sanctions and entered its final judgment. CR 615
(Tab B).
xi
APPELLATE Robinson filed a Notice of Appeal on October 30, 2014. CR
PROCEEDINGS: 622 (Tab A).4 This appeal was docketed as No. 01-14-
00880-CV and, on June 10, 2015, Appellant filed her brief.5
4
Robinson failed to serve her Notice of Appeal upon KTRK, thereby failing to properly perfect
this appeal. CR 545, n.15.
5
Although Appellant filed subsequent briefing and appendixes, her motion for leave to file such
was denied by Order of this Court on September 3, 2015; thus, the Appellant’s brief dated June
10, 2015 is the brief before this Court, and to which Appellee responds.
xii
STATEMENT REGARDING ORAL ARGUMENT
KTRK does not request oral argument. KTRK believes that this Court can
determine this case without the necessity of oral argument.
xiii
ISSUES PRESENTED
RESPONSE TO APPELLANT’S ISSUE 1: Not only did this Court have
jurisdiction to hear the first appeal of this case, but this Court has already
addressed – and denied – Robinson’s arguments that it lacked such jurisdiction.
RESPONSE TO APPELLANT’S ISSUE 2: The First Court Of Appeals did not err
in its Opinion in KTRK Television, Inc. v. Robinson, dated July 11, 2013, an
opinion that was correctly decided and for which all appeals have been exhausted,
and over which this Court no longer has jurisdiction.
RESPONSE TO APPELLANT’S ISSUE 3: The trial court properly awarded
attorneys’ fees, costs, and sanctions to KTRK; Its Order doing so does not raise
any constitutional questions; and, Robinson waived any constitutional challenge to
the TCPA by failing to raise them at the trial court.
xiv
I.
STATEMENT OF FACTS
Robinson has been suing KTRK over the same broadcasts for more than four
years and has attempted to appeal this Court’s prior ruling denying her claims on at
least six occasions. It began when Robinson sued The Walt Disney Company in
federal court in January 2011, but dismissed that case when she tried to add The
Walt Disney Company and KTRK to an already pending § 1983 case she had filed
against numerous government defendants. See Original Complaint in Theaola
Robinson v. The Walt Disney Company, Cause No. 4-11-CV-0358, in the Southern
District of Texas, Houston Division (Tab I); Motion for Leave to Amend and
Supplement Complaint in Shenitha Comb, et. al. v. Rick Schneider, et al., Cause
No. 4-10-CV-03498, in the Southern District of Texas, Houston Division (Tab J);
Nonparty KTRK Television, Inc.’s Opposition to Plaintiffs’ Motion for Leave to
Amend and Supplement Complaint in Cause No. 4-10-CV-03498 (Tab K).
Robinson was unsuccessful on both counts. See Notice of Dismissal in Cause No.
4-11-CV-0358 (Tab L); Memorandum and Order in Cause No. 4-10-CV-03498
(Tab M). Then, after the multiple attempts to sue in federal court failed, in
September of 2011, Robinson filed this action for defamation in state court against
KTRK, The Walt Disney Company (“TWDC”), CC Texas Holding Co., Inc.
1
(“CCTHC”), and ABC Television Network.6 CR 560. TWDC and CCTHC
immediately filed Special Appearances. CR 5, 15. KTRK filed an Answer (CR
22) and then filed a Motion to Dismiss (“Anti-SLAPP Motion”) pursuant to
Chapter 27 of the Texas Civil Practice & Remedies Code (“TCPA” or “the Act”).
On January 23, 2012, prior to the hearing on KTRK’s Anti-SLAPP motion,
Robinson filed her First Amended Petition. 2nd CR ___ (Tab N).7 KTRK’s Anti-
SLAPP Motion was denied by the trial court, and KTRK timely appealed to this
Court. CR 309-310, 469 (Tabs C and D).
On July 11, 2013, in KTRK Television, Inc. v. Robinson, No. 01-12-00372-
CV, this Court reversed the trial court’s denial of KTRK’s Anti-SLAPP Motion
and remanded this case back to the trial court to order dismissal of the suit and for
final proceedings on attorneys’ fees as required by Tex. Civ. Prac. & Rem. Code
Ann. § 27.009(a). CR 455, 469 (Tabs C and D). In issuing its Opinion, this Court
also addressed – and denied – Robinson’s Motion to Dismiss the appeal in which
she argued the Court had no jurisdiction to hear the appeal. See Appellee’s Motion
6
As discussed, ABC Television Network is not a corporate entity, was never served, and was
dismissed through the filing of the First Amended Petition. CR 796.
7
Robinson later filed a Second Amended Petition on February 3, 2014 (CR 281) and a
“Supplemental Petition” on October 1, 2014 (CR 533). However, the Second Amended Petition
was filed in contravention of this Court’s order of February 22, 2013 in No. 01-12-00372-CV,
which stayed the proceedings in the trial court pending final resolution of the appeal. 2nd CR ___
(Tab P). Because the Second Amended Petition was filed after the Court’s order staying trial
proceedings, but prior to the issuance of this Court’s mandate on March 14, 2014, it was never
before the trial court. The Supplemental Petition, filed after the trial court’s remand hearing on
KTRK’s attorney’s fees, contained only non-specific and non-justiciable claims against this
Court’s mandate. CR 533. As a result, the Supplemental Petition was also never before the trial
court.
2
to Dismiss For Lack of Jurisdiction, in No. 01-12-00372-CV (Tab O). Robinson
then filed a Motion for Rehearing of this Court’s Opinion (CR 566), which was
overruled by this Court on August 21, 2013. CR 455 (Tab C). Next, Robinson
filed a Petition for Review with the Supreme Court of Texas, which was denied on
January 3, 2014 (CR 569), and a Petition for Rehearing of the Denial, which was
denied on March 7, 2014. 2nd CR __ (Tab F). Lastly, Robinson filed a Petition for
Writ of Mandamus with the Supreme Court of Texas, which was denied on June 6,
2014, followed by a “Motion for Rehearing on Petition for Review of Writ of
Mandamus and Request for Oral Argument,” which was also denied. CR 475,
572; 2nd CR __ (Tab G).
After Robinson had wholly and completely exhausted any and all possible
appeals regarding this Court’s Opinion, in accordance with this Court’s Opinion
and March 14, 2014 mandate and Chapter 27 of the Civ. Prac. and Rem. Code,
KTRK moved the trial court to award its attorney’s fees, costs, and expenses, to
award sanctions, and to enter final judgment. CR 309. In support of KTRK’s
Motion and Brief, KTRK offered and submitted as evidence extensive billing
records as proof of its fees and expenses, provided extensive case law to the trial
court in support of an award of fees, and requested sanctions sufficient to deter
Robinson from filing additional similar claims. CR 309. After properly noticing a
hearing on KTRK’s request for fees (2nd CR ___ (Tab Q)), and after filing a
3
supplemental affidavit on attorney’s fees and costs reflecting the final fees and
costs in the trial court (2nd CR __ (Tab R)), a hearing was held before the
Honorable Wesley Ward on September 29, 2014. Robinson failed to submit or
present any evidence, either prior to or at the hearing, to contradict or refute
KTRK’s evidence of attorney’s fees and costs.8 At that same hearing, TWDC and
CCTHC’s Special Appearances were heard.9 CR 5, 15. Robinson filed her
response to the Special Appearances one day prior to the hearing (CR 524), and
TWDC and CCTHC replied to Robinson’s response. CR 528. On October 8,
2014, the 234th District Court signed an order sustaining the special appearances of
TWDC and CCTHC. CR 536. 10 On the same day, the trial court signed its final
judgment in which it, in accordance with this Court’s Opinion and mandate,
dismissed the case with prejudice, and awarded KTRK attorney’s fees, costs, and
expenses pursuant to the Texas Anti-SLAPP statute.11 CR 615 (Tab B).
8
Although trial counsel Berry Bowen (“Bowen”) had previously filed a Motion to Withdraw
(CR 612), and Robinson had clearly informed KTRK in writing that Bowen no longer
represented her and that she was proceeding pro se (CR 609), Robinson and Bowen both
appeared at the hearing on attorney’s fees and Bowen proceeded to represent Robinson at the
hearing with Robinson’s apparent acquiescence. CR 545. No evidence or argument was ever
offered or filed in contradiction of KTRK’s requested fees.
9
Although the Special Appearances had been on file since the start of the case, they had never
been decided because the interlocutory appeal stayed the underlying trial court proceedings.
10
Robinson has not appealed that Order.
11
The Court also ordered nominal sanctions in the amount of $100. CR 615. (Tab B).
4
Robinson filed a Notice of Appeal on October 30, 2015.12 CR 622. This
Notice of Appeal states that she desires “to appeal from the judgment rendered
against Plaintiff by the 234th Judicial District Court of Harris County, Texas on
October 8, 2014.” CR 622. Thus, it appears Robinson is attempting to appeal the
“Order and Final Judgment,” of the trial court executed in accordance with the
mandate of this Court. CR 469 (Tab D). As a preliminary matter, Robinson failed
to perfect her appeal because it was not served upon KTRK.13 CR 545 n.15. On
October 31, 2014, after Robinson filed her pro se Notice of Appeal, Robinson’s
former counsel Berry Bowen, purporting to act on behalf of Robinson, filed a
Motion for New Trial in the trial court. CR 540. KTRK moved to strike the
Motion for New Trial on the grounds that Robinson and her former counsel were
both simultaneously filing conflicting pleadings. CR 543. A hearing on the
Motion for New Trial was not set, and the motion was eventually overruled by
operation of law. Meanwhile, Robinson’s pro se appeal was docketed as No. 01-
14-00880-CV and, although a docketing statement was due on November 20,
2014, a docketing statement has never been filed. Robinson’s brief was eventually
12
Although Robinson states that she filed a “Request for Facts and Conclusion of Law” in
addition to her Notice of Appeal, no such request was ever filed. Br. 2.
13
See KTRK’s Motion to Dismiss, filed in this Court on July 23, 2015 (Tab H). The fact that
Robinson failed to perfect her appeal and has not served several documents (including her
Appellant’s Brief) upon KTRK has not been refuted by Robinson nor has any evidence of
service ever been provided. Very recently, the Dallas Court of Appeals agreed that “Pro se
litigants are held to the same standard as licensed attorneys.” Carbajal v. ACCC General
Agency, Inc., No. 05-15-00382-CV at *2 (Tex. App.—Dallas September 10, 2015, no pet.
h.)(mem. op.). For this reason, KTRK re-urges its previously filed Motion to Dismiss.
5
filed more than six months later on June 10, 2015. KTRK filed its Motion to
Dismiss on July 23, 2015, on the grounds that Robinson was attempting to re-
litigate previously appealed issues causing this Court to have no jurisdiction over
the appeal. KTRK further demonstrated that Robinson had failed to perfect her
appeal and had failed to comply with the Texas Rules of Appellate Procedure.
KTRK’s Motion to Dismiss was denied on September 3, 2015, in an order signed
by Justice Lloyd acting individually. On that same day, Robinson’s motion to
allow late filed amended briefs and appendixes was denied.
II.
SUMMARY OF THE ARGUMENT
At the heart of this case is the (already answered) question of whether
certain reports broadcast by KTRK were defamatory per se, as alleged by
Robinson, and whether Robinson sustained her burden to provide by clear and
specific evidence a prima facie case for each and every essential element of her
claim for defamation per se, including that no affirmative defenses applied. The
First Court of Appeals correctly decided this case in its Opinion of July 11, 2013 in
No. 01-12-00372-CV – the first appeal of the underlying merits of this matter –
finding that Robinson had not sustained her burden and that the lawsuit should be
dismissed pursuant to the TCPA. In that Opinion, this Court also correctly found
that the Court had jurisdiction to hear the appeal. Although Robinson exhausted
all available appellate remedies in that prior appeal, Robinson now attempts to
6
again re-litigate (for the seventh time)14 the same issues – issues that were decided
by this Court more than two years ago and over which this Court no longer
maintains jurisdiction.15 In addition, Robinson appears to attempt to appeal issues
not the subject of the October 8, 2014 Order and that have been waived or already
decided definitively against her.16
As an initial matter, this Court should not consider the merits of this appeal
because this Court is without jurisdiction to do so, the Opinion being appealed is
the law of the case,17 because all appeals of that Opinion have been exhausted –
unsuccessfully – by Robinson, and because Robinson does not appeal the one issue
that she could have appealed: the amount of attorneys’ fees, other costs and
expenses, or sanctions awarded by the trial court. KTRK re-urges its argument that
this appeal should be dismissed for those reasons.18 Still, however, to the extent the
Court in any way considers Robinson’s current appeal an attack on the amount of
fees, costs, or sanctions, the trial court properly awarded attorney’s fees, costs, and
14
See, e.g., Appellant’s Statement of the Case (“this is an appeal of a denial of a Motion to
Dismiss”), her Statement of Jurisdiction (pertaining to mandamus), her Issues 1 & 2, her
Statement of Facts, etc. Br. viii-x, 1-21.
15
See Br. viii-x, 1-21.
16
See Plaintiff’s Response to Motion to Dismiss in No. 2011-54895 (Tab S).
17
If the Court does address Robinson’s arguments about the appropriateness of review and
dismissal of the underlying lawsuit, KTRK re-urges and adopts by reference all of the arguments
made in the prior appeal of this case. See the following documents in No. 01-12-00372-CV:
Brief of Appellant KTRK Television, Inc. (Tab T); Appellant’s Brief in Reply (Tab U);
Appellant’s Response to Appellee’s Motion to Dismiss for Lack of Jurisdiction (Tab V).
18
(Tab H).
7
sanctions to KTRK in accordance with this Court’s mandate and the evidence on
attorney’s fees and costs that was admitted by the trial court.19
III.
ARGUMENT
A. Not Only Did This Court Have Jurisdiction To Hear The First
Appeal Of This Case, But This Court Has Already Addressed – And
Denied – Robinson’s Arguments That It Lacked Such Jurisdiction.
Robinson’s first point on appeal concerns her argument that this Court did
not have jurisdiction to hear the appeal in No. 01-12-00372-CV, because (1)
appellate courts did not, at the time, have jurisdiction to hear an interlocutory
appeal of the denial of an Anti-SLAPP Motion and (2) Robinson’s lawsuit was
filed before the effective date of the TCPA, thereby making it inapplicable to her
underlying lawsuit. She is wrong on both points – on both the facts and the law.
This Court found in the first go around, “section 27.008 permits an interlocutory
appeal from the trial court’s written order denying a motion to dismiss under the
TCPA.” KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 688 (Tex. App. —
Houston [1st Dist.] 2013, pet. denied).20 Furthermore, if anything, the argument
that this Court properly exercised its jurisdiction over the prior appeal is even
19
CR 309 (Tabs C and D).
20
KTRK attaches as Appendix Tab V its Response to Robinson’s Motion to Dismiss in No. 01-
12-00372-CV, and, to the extent necessary, incorporates it by reference. See also Direct
Commercial Funding, Inc. v. Beacon Hill Estates, LLC, 2013 WL 407029 (Tex. App.—Hou.
[14th] 2013, no pet.); Better Bus. Bureau of Metro Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d
299, 306-07 (Tex. App. Dallas 2013, no pet); San Jacinto Title Svcs., LLC V. Kingsley Props.
LP., 452 S.W.2d 343 (Tex. App.—Corpus Christi 2013, pet. denied).
8
stronger now. In response to a handful of Texas appellate courts incorrectly
finding no right to an interlocutory appeal when an Anti-SLAPP Motion was
denied by written order, but only when denied by operation of law, the Texas
Legislature strengthened the language of the Anti-SLAPP statute to make it even
clearer that an interlocutory appeal was allowed in either circumstance.21 This
Court did not err in finding it had jurisdiction to hear the appeal in No. 01-12-
00372-CV.
With regard to Robinson’s second argument, that the TCPA is being applied
retroactively, the record speaks for itself. The TCPA statute became effective on
June 17, 2011.22 Robinson’s underlying lawsuit was filed on September 14, 2011,
after the effective date of the TCPA. Therefore, the Act, including the section on
interlocutory appeals, applies to Robinson’s lawsuit. Further, although Robinson
argues that she filed a lawsuit prior to the effective date of the TCPA, which she
believes should preclude the application of the TCPA to this lawsuit, she is wrong
for several reasons. To begin with, she fails to cite any authority for her
proposition that filing a federal lawsuit starts the clock for any later-filed state
lawsuits on a similar topic, and there is no such authority. Even if her argument
otherwise held water, the lawsuit Robinson refers to in her Brief was a federal
lawsuit filed against multiple state actors – not KTRK – claiming 1983
21
See Tex. Civ. Prac. & Rem. Code § 51.014(a)(12) (amended by Texas Legislature in 2013).
22
(Tab W).
9
violations.23 Although Robinson did eventually attempt to add KTRK and other
media defendants to that federal lawsuit, she did not seek leave to do so until June
24, 2011 – after the effective date of the TCPA. Further, and decisively, the Court
denied Robinson’s motion for leave to amend her Complaint to add KTRK and the
media defendants; as such, KTRK was never a party to the federal lawsuit. KTRK
was never a party to the federal lawsuit and her ill-fated request for leave to add
KTRK was not even sought until after the TCPA became effective. Thus,
Robinson’s claim that she filed her lawsuit prior to the enactment of the TCPA and
that she is being subject to a “retroactive law” is without merit. This Court
properly exercised its jurisdiction in hearing the appeal in No. 01-12-00372-CV.
B. The First Court Of Appeals Did Not Err In Its Opinion In KTRK
Television, Inc. v. Robinson, Dated July 11, 2013, An Opinion That
Was Correctly Decided And For Which All Appeals Have Been
Exhausted, And Over Which This Court No Longer Has
Jurisdiction.
On July 11, 2013, in KTRK Television, Inc. v. Robinson, this Court reversed
the trial court’s denial of KTRK’s Anti-SLAPP Motion and remanded this case
back to the trial court to order dismissal of the suit and for final proceedings on
attorneys’ fees as required by Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a). On
October 8, 2014,24 after Robinson’s appellate remedies had been exhausted, the
23
(Tab M).
24
The large time delay between the July 2013 judgment of this Court and October 2014
judgment of the trial court was caused by Appellee Robinson’s six filings attempting to overturn
10
234th Judicial Court of Harris County, in accordance with the Order of this
Court, issued its final judgment and dismissed the case with prejudice, awarding
KTRK attorney’s fees, costs, and expenses pursuant to the TCPA.25
Robinson’s Notice of Appeal states that she desires “to appeal from the
judgment rendered against Plaintiff by the 234th Judicial District Court of Harris
County, Texas on October 8, 2014.” The referenced Judgment did only two
things: (1) dismissed Robinson’s claims and entered a final judgment in
accordance with this Court’s Opinion and mandate (a ministerial act), and (2)
awarded KTRK its attorneys’ fees, expenses, court costs, and sanctions pursuant to
this Court’s mandate.26 What Robinson’s Brief makes clear is that she is really
appealing this Court’s earlier decision in Cause No. 01-12-00372-CV, not the more
recent ministerial order.27 This current appeal is Robinson’s attempt to revisit this
Court’s July 11, 2013, Opinion in Cause No. 01-12-00372-CV dismissing
Robinson’s claim for defamation against KTRK.28 Robinson states outright in her
Brief that “This is an appeal of a denial of a Motion to Dismiss claims for
this Court’s ruling. See Robinson’s Motion for Rehearing in this Court (which was denied),
Petition for Review and a Motion for Rehearing on her Petition for Review (in the Supreme
Court of Texas, No. 13-0809)(both denied) and a Petition for Writ of Mandamus and a Motion
for Rehearing on her Petition for Writ of Mandamus (in the Supreme Court of Texas, No. 14-
0321)(both denied). See (Tabs E, F, and G).
25
Also on October 8, 2014, the 234th District Court signed an order sustaining the Special
Appearances of TWDC and CCTHC. That Order was not appealed.
26
See KTRK Television, Inc. v. Robinson, 409 S.W.3d at 682.
27
See Brief viii, 1.
28
See Br. viii-x, 1-21.
11
defamation/libel” and states that the First Court of Appeals “committed clear
29
error/abuse of discretion when it did not affirm trial court decision.” Therefore,
there can be no doubt that Robinson’s appeal in this case is nothing more than one
more appeal of this Court’s decision in Cause No. 01-12-00372-CV, which is not
allowed.30
Under Texas Rule of Appellate Procedure 19.1, this Court’s plenary power
to alter that judgment expired in September of 2013. See Tex. R. App. P. 19.1; see
also Tex. R. App. P. 19.3 (“[a]fter its plenary power expires, the court cannot
vacate or modify its judgment”). Furthermore, this Court’s decision in Cause No.
01-12-00372-CV is the law of the case and this Court does not have jurisdiction to
revisit the issues raised in that first appeal. Hudson v. Wakefield, 711 S.W.2d 628,
630 (Tex. 1986); Gulf Energy Exploration Corp. v. Fugro Chance, 2012 WL
601413 (Tex. App.—Corpus Christi 2012, no pet.)(mem. op.).
1. This Court’s Plenary Power Regarding Its Prior Decision Expired
on September 24, 2013.
Robinson’s attempt to appeal this Court’s July 11, 2013 decision on the
merits is not permitted. This Court “cannot vacate or modify its judgment”
29
See Brief viii, 1.
30
KTRK also re-urges its previously filed Motion to Dismiss this appeal in accordance with Tex.
R. App. P. 42.3 for Robinson’s failure to comply with the Texas Rules of Civil Procedure,
including failing to serve KTRK with her Notice of Appeal and failing to serve KTRK with
filings (although certifying to this Court that she had done so) or serving KTRK with documents
that differ from the ones filed with the Court. See Appellee KTRK Television, Inc.’s Motion to
Dismiss Appellant’s Appeal and Request to Declare Appellant Robinson a Vexatious Litigant,
filed on July 23, 2015.
12
because its plenary power over that decision expired in 2013.31 After this Court’s
ruling on the merits, reversing and remanding to the lower court, Robinson filed a
motion for rehearing on July 25, 2013. The Court’s “plenary power over its
judgment expire[d]… 30 days after the court overruled[d] all timely filed motions
for rehearing....”32 This Court overruled Robinson’s motion for rehearing on
August 21, 2013.33 Accordingly, this Court’s plenary power to vacate or modify
its judgment expired on September 20, 2013.
The fact that Robinson claims to be appealing the trial court’s judgment –
one that is in complete compliance with this Court’s prior mandate – does not
change the fact that what she is really trying to do is appeal, now for the sixth time,
this Court’s earlier decision. Again, Robinson’s brief makes her true aim crystal
clear:
Appellant Robinson has been defamed and it was confirmed when the
lower court dismissed KTRK Channel 13 Motion to Dismiss under the
Texas Anti-Slapp statute. Appellant Robinson asks that her case be
reviewed under Neely v. Wilson, 418 S.W.3d 52 (2013) and Spencer v.
Pagliarulo, 448 S.W.3d 605 (Tex. App.—Houston [1st Dist.] 2014).34
The time and methods for reviewing this Court’s prior decision have expired
(and been exhausted), and Robinson’s prior five attempts to have this Court and
the Texas Supreme Court review that decision have all failed.
31
See Tex. R. App. P. 19.3.
32
See Tex. R. App. P. 19.1(b).
33
See this Court’s August 21, 2013 notice that it denied Robinson’s Motion for Rehearing (Tab
E).
34
See Br. 19-20.
13
2. This Court’s Prior Decision Is the Law of the Case, Barring
Further Reconsideration of Robinson’s Issues.
The Order that Robinson purports to appeal was simply the trial court’s
ministerial act of enforcing this Court’s prior mandate that the trial court dismiss
the case and enter a final judgment in accordance with this Court’s opinion.
“When an appellate court … renders a judgment which the trial court should have
rendered, that judgment becomes the judgment of both courts.” Cook v. Cameron,
733 S.W.2d 137, 139 (Tex. 1987). At that point,
[t]he trial court’s only duty is to enforce the judgment as rendered.
The district court has no jurisdiction to review or interpret that
judgment. Its only authority is to carry out the mandate of the
appellate court. A district’s court’s orders carrying out the mandate
are ministerial.
Dallas County v Sweitzer, 971 S.W.2d 629, 630 (Tex. App.—Dallas 1998, no
pet.)(citations omitted). Furthermore, “[t]he district court must execute the
judgment as it was framed by the appellate court.” Id. It “has no authority to take
any action that is inconsistent with or beyond the scope of that which is necessary
to give full effect to the appellate court’s judgment and mandate.” Phillips v.
Bramlett, 407 S.W.3d 229, 234 (Tex. 2013). See also Tex. R. App. P. 51.1(b)
(“When the trial court clerk receives the mandate, the appellate court’s judgment
must be enforced.”).
This Court’s prior opinion is the law of the case and cannot be further
appealed simply because the trial court has enforced this Court’s mandate through
14
the ministerial act of entering a final judgment. See, e.g., Miller v. University Sav.
Assoc., 858 S.W.2d 33, 37 (Tex. App.—Houston [14th Dist.] 1993, writ
denied)(finding appellant precluded from bringing claims on appeal because court
had already determined issues and “law of the case” applied). Under the law of the
case doctrine, a court of appeals must be consistent with its earlier ruling on legal
questions unless an earlier decision was clearly erroneous. In a case such as this,
when a petition for review is filed and the Texas Supreme Court denies the petition
for review, as a matter of law, this Court of Appeals has not “committed clear
error/abuse of discretion.” See Caplinger v. Allstate Ins. Co., 140 S.W.3d 927, 930
(Tex. App.—Dallas 2004, pet. denied).35 Therefore, this Court cannot and should
not consider Robinson’s appeal of the law of the case.
“The ‘law of the case’ doctrine is defined as that principle under which
questions of law decided on appeal to a court of last resort will govern the case
throughout its subsequent stages.” Hudson v. Wakefield, 711 S.W.2d 628, 630
(Tex. 1986); see also Aycock v. State of Texas, 863 S.W.2d 183, 187 (Tex. App.—
Houston [14th Dist.] 1993, writ denied). (“‘The law of the case’ is a doctrine which
mandates that the ruling of an appellate court on a question of law raised on appeal
will be regarded as the law of the case in all subsequent proceedings of the same
case.”). Because Robinson’s appeal is nothing more than one more attempt at
35
See Br. 1; see also Supreme Court of Texas’ denial of Robinson’s Petition for Review (Tab
G).
15
overturning “the law of the case” by “appealing” the trial court’s unappealable
ministerial entry of the final judgment, this Court is without jurisdiction to hear
this appeal. See, e.g., Gulf Energy Exploration Corp. v. Fugro Chance, Inc., No.
13-10-686-CV, 2012 WL 601413, at *2 (Tex. App.—Corpus Christi 2012, no
pet.)(mem. op.) (finding court was without jurisdiction to hear appeal of issue it
had previously decided in first appeal).
Finally, dismissing this appeal serves the purpose of the “law of the case”
doctrine, which is “based on public policy and is aimed at putting an end to
litigation.” Hudson, 711 S.W.2d at 630. This Court entered its Opinion in this
matter dismissing this case in July of 2013. Since that time, Robinson (either
acting pro se, or through her former attorney) has filed five prior appellate
pleadings in an effort to overturn the decision: a Motion for Rehearing to the First
Court of Appeals, a Petition for Review to the Texas Supreme Court, a Motion for
Rehearing the Denial of her Petition for Review to the Texas Supreme Court, a
Mandamus with the Texas Supreme Court, and a Motion for Rehearing the Denial
of Mandamus.36 In addition, after the trial court issued its order in compliance
with this Court’s Mandate, Robinson filed a Motion for New Trial prior to filing
36
CR 566, 455, 569, 475, 512.
16
this appeal. Thus, public policy and the law of the case dictate that this litigation
must end.37
3. This Case Was Correctly Decided in the First Appeal and, Should
This Court Look at the Substance of Robinson’s Brief, the Court
Should Re-Affirm Its Prior Decision.
Although Robinson attempts to frame her second issue as some sort of due
process challenge, this too is simply an attempt to challenge the merits of this
Court’s July 11, 2013 Opinion. As discussed herein, this Court has previously
heard and decided the issue that Robinson now attempts to again appeal before this
Court – whether the trial court should have granted KTRK’s Anti-SLAPP Motion
and dismissed Robinson’s cause of action against KTRK. Therefore, to the extent
this Court wishes to again review the underlying merits of this case, KTRK
incorporates by reference and re-urges all of the arguments made in its briefing in
the first appeal, No. 01-12-00372-CV, specifically, its: Brief of Appellant KTRK
Television, Inc. (Tab T); Appellant’s Brief in Reply (Tab U); Appellant’s
Response to Appellee’s Motion to Dismiss for Lack of Jurisdiction (Tab V); and,
Clerk’s Record in No. 01-012-00372-CV (where referred to in referenced
pleadings in that appeal).
37
Robinson has already been ordered to pay KTRK’s attorneys’ fees in this matter, but has
indicated that she will be unable to pay; therefore, she has nothing to lose by continuing her
appeals.
17
In short, as argued at the trial court and in the first appeal before this Court,
Robinson sued KTRK for defamation based on its accurate reporting on allegations
about Robinson’s financial mismanagement of Benji’s Special Education
Academy, which was under investigation by the State. The Act required the trial
court to dismiss the defamation claim unless Robinson established, by the
heightened standard of clear and specific evidence, a prima facie case for each
essential element of her claim.
In the underlying lawsuit, Robinson claimed that the broadcasts at issue
were defamatory per se.38 An essential element of defamation per se is the
accusation of the commission of a crime, dishonesty, fraud, rascality, or general
depravity ― which, in this case, was disproven by reading the Complained of
Statements themselves. There was no mention of a crime being committed by
Robinson, nor was there any reference to Robinson committing fraud or dishonest
acts. See Tab W (and references to Clerk’s Record in No. 01-12-00372-CV: CR
4:963-973). In a defamation per se claim one cannot use inference or innuendo to
support such a claim either.39
Another essential element of the defamation claim at issue in the underlying
case was the constitutional requirement of showing “actual malice” – a burden that
38
As this Court previously found, Robinson pled only a claim for defamation per se, not per
quod.
39
Moore v. Waldrop, 166 S.W.3d 380 (Tex. App.—Waco 2005, no pet.).
18
arises when the plaintiff is a public figure or when the statements made are
privileged. Both circumstances exist in this case. Plaintiff was a limited purpose
public figure because she was at the heart of the controversy people were talking
about,40 and the matters discussed were privileged as a fair report on a
governmental proceeding and a fair comment about a matter of public concern.41
To establish actual malice, a plaintiff must demonstrate the defendant published an
allegedly defamatory statement knowing it to be false or having entertained serious
doubts about the truth of the statement. The key issues is the state of mind of the
publisher at the time the statement was made.42 In the trial court and in the first
appeal of this matter, Robinson provided no evidence on KTRK’s state of mind,
instead just speculating about what KTRK might have known or believed. KTRK,
on the other hand, introduced substantial evidence of the absence of actual malice
(CR 36-38, 238-240, 241-243).
Robinson was also required to produce clear and specific evidence that the
Complained of Statements in the broadcasts were materially false, which she was
unable to do. The Court is required to look at what the broadcasts actually said, as
a whole, in light of surrounding circumstances, and how a person of ordinary
40
WFAA v. McLemore, 978 S.W.2d 568 (Tex. 1998), cert. denied, 119 S. Ct. 1358 (1999).
41
Tex. Civ. Prac. & Rem. Code § 73.002.
42
Abdel Hazif v. ABC, Inc., 240 S.W.3d 492 (Tex. App.—Fort Worth 2007, pet. denied).
19
intelligence would perceive the entire broadcast series.43 In the absence of being
able to demonstrate that the Complained of Statements were materially false,
Robinson ignored the statements that were actually made by KTRK and instead
constructed her own version of the broadcasts, distorting the statements with her
own interpretations and conjecture. Such interpretation is not controlling.44
Finally, as KTRK argued at the trial and appellate level, Robinson was not
even mentioned in the Complained of Statements, and Robinson failed to
demonstrate those statements were “of and concerning” her.45
In short, Robinson failed to demonstrate to the trial court, or to this Court in
the first appeal, that she could succeed on the merits of her defamation per se
claim, much less show clear and specific evidence to support each element of her
claim, as required by the TCPA. Robinson failed to establish that KTRK’s
statements were defamatory per se (or even per quod), did not establish material
falsity of the Complained of Statements, did not establish that KTRK made the
statements with actual malice, did not overcome the applicable privilege(s), and
did not establish that the Complained of Statements were of and concerning
Robinson.
43
See Musser v. Smith Protective Servs., 723 S.W.2d 653 (Tex. 1987).
44
Schauer v. Memorial Care Sys., 856 S.W.2d 437, 449 (Tex. App.—Hou. [1st Dist.] 1993, no
writ); Moore v. Waldrop, 166 S.W.3d 380 (Tex. App.—Waco 2005, no pet.).
45
Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 429 (Tex. 2000); Newspapers, Inc. v.
Matthews, 339 S.W.2d 890, 893 (Tex. 1960).
20
After briefing and oral argument, this Court found that KTRK’s Anti-
SLAPP Motion should have been granted and ordered the trial court to dismiss the
lawsuit. This Court correctly found that Robinson failed to adduce clear and
specific evidence that the challenged statements were defamatory per se, and thus
failed to establish a prima facie case for each essential elements of her claim,
requiring dismissal pursuant to the Texas Citizens’ Participation Act.
C. The Trial Court Properly Awarded Attorneys’ Fees, Costs, And
Sanctions To KTRK; Its Order Doing So Does Not Raise Any
Constitutional Questions; Robinson Waived Any Constitutional
Challenge To The TCPA By Failing To Raise It At The Trial Court.
Although the October 8, 2014 “Order and Final Judgment” dismissing the
case with prejudice also awarded to KTRK attorneys’ fees and sanctions in
accordance with this Court’s mandate, Robinson does not challenge the amount of
attorney’s fees or the methodology used to arrive at the fees. The only mention of
fees or sanctions is in Robinson’s “Issue 3” where she attempts to argue that the
trial court’s award of fees was “punitive” and in violation of open courts; such
arguments are without merit and were waived because they were not raised at the
trial court. Nevertheless, out of an abundance of caution, should this Court view
Robinson’s complaint as one attacking the amount of attorneys’ fees, expenses,
costs, or sanctions, KTRK provides briefing on that argument, as well.
21
1. Robinson’s Arguments that the Trial Court’s Fee Award Was
Punitive and in Violation of Open Courts Are Without Merit and
Were Waived.
Robinson argues that the fees award was punitive and violates the open
courts provision of the Texas Constitution.46 Robinson’s assertions are without
merit and have been waived. It is a prerequisite to presenting a complaint on
appeal that the complaint was made to the trial court in a timely manner, and that
the trial court ruled on the request, or refused to do so.47 This is true even when the
issue is a constitutional question.48 Because Robinson did not make any
constitutional challenge argument at the trial court level,49 she has waived it, and it
cannot be considered now. Robinson tried this same argument in her first appeal,
and KTRK raised the issue of waiver then, as well. Robinson lost on this issue in
her first appeal (because the Court dismissed the lawsuit pursuant to the TCPA).
As discussed previously, all appeals of this Court’s earlier Order have been
exhausted and that Opinion – including its implicit denial of Robinson’s argument
on the constitutionality of the statue – is the law of the case.
Even if this Court were to find the constitutional issue has not been waived
and reaches the merits of the question, the anti-SLAPP statute has already been
46
Br. 14-16.
47
See Tex. R. App. P. 33.1.
48
See Brewer v. Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, pet. denied)
(“Constitutional violations must be raised in the trial court to be preserved for appellate
review.”).
49
See, generally, Robinson’s Response to Motion to Dismiss (absent any discussion of
constitutionality).
22
held to be constitutional and not a violation of the open courts doctrine.50
Furthermore, a statute enacted by the Legislature is presumed to be constitutional
and valid.51 “[A] mere difference of opinion, where reasonable minds could differ,
is not a sufficient basis for striking down legislation as arbitrary or
unreasonable.”52
In addition, there is no constitutional right to file a meritless defamation
claim. If a plaintiff can establish prima facie evidence of each element of the
claim, the case will not be dismissed. This is not an insurmountable standard. In
fact, this sort of analysis and research on the validity of one’s claim should have
been done prior to filing suit. See Tex. R. Civ. P. 13. Courts throughout the state
interpreting the statute have found a prima facie case was established in other cases
and denied the relevant motions to dismiss.53 Thus, the standard adopted by the
Legislature is working.
Like Texas, other states considering the constitutionality of similar Anti-
50
Combined Law Enforcement Ass’ns. of Tex. v. Sheffield, No. 03-13-105-CV, 11 2014 WL
411672 at *9 (Tex. App.—Austin Jan. 31, 2014, pet. denied)(mem. op.).
51
See Texas Pub. Bldg. Auth. v. Mattox, 686 S.W.2d 924, 927 (Tex. 1985) (“We begin our
analysis of the issues presented in this case by presuming, as we must, the constitutionality of an
act of the Legislature.”).
52
Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983) (internal quotation marks and citation
omitted).
53
See, e.g., Senator Jeff Wentworth v Elizabeth Ames Jones, Cause No. 2012-CI-08201 (73rd
Dist. Ct., Bexar Co., Tex. filed May 17, 2012) (motion to dismiss denied)(appeal dismissed by
agreement).
23
SLAPP statutes have upheld their constitutionality.54 In fact, California, the statute
upon which Texas’ statute was largely patterned after and a state that has had the
benefit of 20 years of jurisprudence in this area, has repeatedly upheld the
constitutionality of the law.55 The Supreme Court of California, addressing this
very concern, held that the Anti-SLAPP statute of that state “does not bar a
plaintiff from litigating an action that arises out of the defendant’s free speech or
petitioning. It subjects to potential dismissal only those causes of action as to
which the plaintiff is unable to show a probability of prevailing on the merits.”56
Finally, Robinson’s argument that the TCPA is unconstitutional because it imposes
higher standard of proof is also without merit. See In re Lipsky, 460 S.W.3d 579(Tex. 2015)(finding clear and specific standard of TCPA is not heightened
standard).
54
See, e.g., Equilon Enters. v. Consumer Cause, Inc., 52 P.3d 685, 691 (Cal. 2002). See also
Guam Greyhound v. Brizill, No. CVA07-021, 2008 WL 4206682, *3-6 (Guam Sept. 11, 2008)
(rejecting argument that statute limited a right to bring a defamation claim); Anderson Dev. Co.
v. Tobias, 116 P.3d 323, 338 (Utah 2005) (bill of attainder); Sandholm v. Kuecker, 942 N.E.2d
544, 570-71 (Ill. App. Ct. 2010) (finding that statute did not violate state constitution’s guarantee
to a remedy), rev’d on other grounds, 692 N.E.2d 418 (Ill. 2012); Nexus v. Swift, 785 N.W.2d
771 (Minn. Ct. App. 2010) (addressing due process and right to jury trial); Lee v. Pennington,
830 So. 2d 1037, 1041-43 (La. Ct. App. 2002) (rejecting arguments that anti-SLAPP statute
violated open access to courts, jury trial and due process); Day v. Farrell, No. 97-2722, 2000
WL 33159180, at *2-4 (R.I. May 15, 2000) (rejecting constitutional challenge to anti-SLAPP
law based on access and due process); Hometown Props., Inc. v. Fleming, 680 A.2d 56, 60-64
(R.I. 1996) (addressing numerous challenges, including separation of powers and right of
access); Lafayette Morehouse, Inc. v. Chronicle Publ’g Co., 37 Cal. App. 4th 855, 864-68 (1995)
(right of access).
55
See, e.g., Equilon Enters., 52 P.3d at 690-94; Lafayette Morehouse, Inc. v. Chronicle Publ’g
Co., 37 Cal. App. 4th 855 (1995) (right of access).
56
Equilon Enters., 52 P.3d at 691.
24
Robinson’s challenge as it specifically relates to the fees provision has also
been rejected by Texas courts. In Combined Law Enforcement Ass’ns of Texas v.
Sheffield, the plaintiff argued that the TCPA’s “mandatory (non-discretionary) fee
awards and sanctions upon dismissal” unreasonably restricted a plaintiff’s ability
to pursue redress for defamation.57 The Third Court of Appeals rejected the party’s
argument and held that the attorney’s fees provision of the TCPA was not
unconstitutional because, despite the mandatory nature of the language, “the
subsequent language tempers the conditions for making an award with
discretionary terms like ‘justice’ and ‘equity’ and ‘sufficient to deter.’” 58 Thus, the
provision did not violate the open courts guarantee.59
2. The Trial Court’s Award of Fees, Costs, Expenses, and Sanctions
Was in Accordance with the TCPA.
The Mandate of this Court in No. 01-12-00372-CV on March 14, 2014
clearly ordered the trial court on remand to:
dismiss the case, to award court costs, reasonable attorney's fees, and
other expenses incurred in defending against the legal action as justice
and equity may require to the appellant, KTRK Television, Inc., and
to award sanctions against the appellee, Theaola Robinson, as the
court determines sufficient to deter her from bringing similar actions,
as required by section 27.009(a) of the Civil Practice and Remedies
Code.
57
Combined Law Enforcement Ass’ns of Tex. v. Sheffield, No. 03-13-105-CV, 11 2014 WL
411672, at *9 (Tex. App.—Austin Jan. 31, 2014, pet. denied)(mem. op.).
58
Id. at *19.
59
Id.
25
CR 469.
As stated in the Mandate, Section 27.009(a) of the TCPA states that the trial
court shall award court costs, reasonable attorney's fees, and other expenses to the
movant incurred in defending against the legal action as justice and equity may
require. KTRK’s Motion, and its subsequent Amended Motion, not only provided
extensive evidence of its requested fees, but offered extensive authority to the trial
court as to the attorney’s fees, costs, and expenses that had been previously
awarded by other district courts in Texas in accordance with the TCPA. CR 309;
2nd CR ___.
A successful anti-SLAPP movant should submit evidentiary proof of the
attorney’s fees that includes: ‘(1) the nature of the work, (2) who performed the
services and their rate, (3) approximately when the services were performed, and
(4) the number of hours worked.’60 In Schimmel v. McGregor, this Court held the
60
Schimmel v. McGregor 438 S.W.3d 847, 863 (Tex. App.—Houston [1st Dist.] 2014, no pet.)
(quoting El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012)). Reasonableness can also
be established by demonstrating: ‘(1) the time and labor required, the novelty and difficulty of
the questions involved, and the skill required to perform the legal service properly; (2) the
likelihood . . . that the acceptance of the particular employment will preclude other employment
by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the
amount involved and the results obtained; (5) the time limitations imposed by the client or by the
circumstances; (6) the nature and length of the professional relationship with the client; (7) the
experience, reputation, and ability of the lawyer or lawyers performing the services; and (8)
whether the fee is fixed or contingent on results obtained or uncertainty of collection before the
legal services have been rendered.’ Weaver v. Jamar, 383 S.W.3d 805, 813–14 (Tex. App.—
Houston [14th Dist.] 2012, no pet.) (quoting Arthur Andersen & Co. v. Perry Equip. Corp., 945
S.W.2d 812, 818 (Tex. 1997)). The movant, however, need not present evidence on each of
these factors as “[t]he trial court may also consider the entire record, the evidence presented on
reasonableness, the amount in controversy, the common knowledge of the participants as lawyers
26
affidavit evidence submitted by Schimmel stating “the date on which work was
performed, the number of hours spent, the particular tasks involved, and the
applicable billing rate” sufficiently established reasonable attorney’s fees.61 On
appeal, when a denial of an anti-SLAPP motion is reversed, this court (and most of
the appellate courts in Texas), typically have remanded the case to the trial court
for a determination of attorney’s fees.62
Courts throughout Texas have awarded attorney’s fees as appropriate and
reasonable in anti-SLAPP cases. The reported fee awards have ranged from zero
to $350,000.63 The largest award to date has been from a Harris County court in
the 127th District Court wherein the court awarded $350,000 in attorney’s fees to
the defendant–movant after less than a year in the trial court and without any
appellate fees.64 The tortured four year history of this case is even more extensive
and would anticipate similar fees. Likewise, in Harrison County, the district court
awarded a total of $187,310.32 to the defendants and a total of $55,000 in
and judges, and the relative success of the parties.” Id. (citing Rapid Settlements, Ltd. v.
Settlement Funding, LLC, 358 S.W.3d 777, 786 (Tex. App.—Houston [14th Dist.] 2012, no
pet.)); see Acad. Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex.
App.—Houston [14th Dist.] 2000, no pet.).
61
Schimmel, 438 S.W.3d at 863.
62
See, e.g., James v. Calkins, 446 S.W.3d 135, 139–40 (Tex. App.—Houston [1st Dist.] 2014,
pet. granted); Schimmel, 438 S.W.3d at 862; Newspaper Holdings, Inc. v. Crazy Hotel Assisted
Living, Ltd., 416 S.W.3d 71, 90 (Tex. App.—Houston [1st Dist.] 2013, pet. denied); Better Bus.
Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 350 (Tex. App.—
Houston [1st Dist.] 2013, pet. denied).
63
See, e.g., Schlumberger Ltd. v. Rutherford, No. 01-14-00776-CV (Tex. App.—Houston [1st
Dist.] Aug. 25, 2015, no pet. h.) (upholding trial court’s granting of a motion to dismiss and
subsequent award to the defendants of $350,000 in attorney’s fees)
64
Id.
27
sanctions after granting the defendants’ anti-SLAPP motions.65 Texas appellate
courts consistently have upheld reasonable fee awards in anti-SLAPP matters.66
An award of sanctions is also provided for under the TCPA.67 Sanctions can
be particularly appropriate when, as here, the plaintiff has shown a propensity for
retaliating against individuals, corporations, or the media for exercising their
constitutional rights and has clearly shown an intention to harass via the court
system.68 To deter plaintiffs from filing retaliatory legal actions, sanctions
sufficient to deter a plaintiff from filing similar claims are appropriate under
§ 27.009 and may be levied against the party personally, not the plaintiff’s
attorney.69 Under the TCPA, courts have “broad discretion to determine what
amount is sufficient to deter the party from bringing similar actions in the future”.70
In Kinney v. BCG Attorney Search, Inc., an award of $75,000 in sanctions was
upheld because the matters had previously been litigated in a prior action that
65
Head v. Chicory Media, LLC, No. 2013-0040 (714st Dist. Ct., Harrison County, Tex. Sept. 25,
2013), appeal dism’d, 415 S.W.3d 559 (Tex. App.—Texarkana 2013, no pet.).
66
See, e.g., Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 880–81 (Tex. App.—Dallas
2014, no pet.); Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 734 (Tex. App.—Houston
[14th Dist.] 2013, pet. denied); Ramsey v. Lynch, No. 10-12-00198-CV, 2013 WL 1846886, at *3
(Tex. App.—Waco May 2, 2013, no pet.) (mem. op.).
67
Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(2).
68
Id.; see, e.g., Kinney v. BCG Attorney Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012,
at *11 (Tex. App.—Austin Apr. 11, 2014, pet. denied) (mem. op.) (“Section 27.009(a)(2)
requires the trial court to award sanctions if it dismisses a claim pursuant to section 27.003 and
gives the trial court broad discretion to determine what amount is sufficient to deter the party
from bringing similar actions in the future.”).
69
Tex. Civ. Prac. & Rem. Code § 27.009(a)(2).
70
Kinney, 2014 WL 1432012, at *12 (upholding a sanctions award of $75,000 based in part on
“the broad discretion afforded the trial court by section 27.009”).
28
“resulted in an award of attorney’s fees against [the plaintiff] in the amount of
$45,000.”71 The appellate court noted that “[g]iven the history of the litigation, the
trial court could have reasonably determined that a lesser sanction would not have
served the purpose of deterrence.”72 Courts considering the appropriate amount of
sanctions under the statute have awarded between $100 and $350,000.73
Depending upon the tactics employed by the plaintiff, any un-recoupable expenses
incurred (such as expenses from prior proceedings), and the need for a deterrent
effect, a trial court may award a higher amount.74 Although some trial courts
ultimately have denied requests for sanctions,75 all appellate courts to address the
issue have determined that the consideration of sanctions is mandatory.76 Here, the
71
Id.
72
Id.
73
See Am. Heritage Capital, 436 S.W.3d at 880-81 (upholding an award of $15,000 in
sanctions); Schlumberger Ltd. v. Rutherford, No. 01-14-00776-CV (Tex. App.—Houston [1st
Dist.] August 25, 2015, no pet. h.) (upheld award of $350,000 in sanctions); Simpton v. High
Plains Broad., Inc., No. 2011-13290 (285th Dist. Ct., Bexar County, Tex. July 30, 2012)
(awarding $85,000 in sanctions); Head v. Chicory Media, LLC, No. 2013-0040 (714st Dist. Ct.,
Harrison County, Tex. Sept. 25, 2013) (awarding a total of $55,000 in sanctions), appeal
dismissed, 415 S.W.3d 559 (Tex. App.—Texarkana 2013, no pet.); Algae Int’l Grp., Inc. v.
Stegman, No. DC-13-03933 (44th Dist. Ct., Dallas County, Tex. Sept. 13, 2013) (awarding
$29,395.25 in sanctions to the defendants after a nonsuit was filed prior to a hearing on the
defendants’ motion to dismiss); In re Thuesen, No. 2012-49262 (151st Dist. Ct., Harris County,
Tex. Mar. 4, 2013), appeal docketed, No. 14-13-00523-CV (Tex. App.—Houston [14th Dist.])
(awarding $24,000 in sanctions); Rustic Cedar Cabins Inc. v. Cortell, No. 28500 (21st Dist. Ct.,
Bastrop County, Tex. Sept. 5, 2012) (awarding $500 in sanctions).
74
Schlumberger Ltd. v. Rutherford, No. 01-14-00776-CV (Tex. App.—Houston [1st Dist.] Aug.
25, 2015, no pet. h.) (awarding $250,000 in sanctions after only several months on file).
75
Cruz v. Van Sickle, 452 S.W.3d 503, 519 (Tex. App.—Dallas 2014, pet. denied) (noting that
“[t]he trial court denied appellees’ request for sanctions pursuant to section 27.009(2)”).
76
See Am. Heritage Capital, LP, 436 S.W.3d at 881 (“Section 27.009 prescribes that a court that
dismisses a legal action under Chapter 27 shall award the movant ‘sanctions against the party
who brought the legal action as the court determines sufficient to deter the party who brought the
29
trial court awarded KTRK $100 in sanctions, which is hardly an abuse of
discretion.
3. The Trial Court’s Award of Fees, Costs, Expenses, and Sanctions
Was in Accordance with the Mandate of This Court.
After the mandate was issued, KTRK proceeded to finalize the case in
accordance with this Court’s mandate by filing its Motion and Brief in Support of
Award of Award Of Attorneys' Fees, Court Costs, Expenses, And Sanctions And
For Entry Of Final Judgment Pursuant To Chapter 27 Of The Civil Practice And
Remedies Code (“Motion”), and setting the Motion for oral hearing. CR 309. In
its Motion, KTRK provided extensive evidence of attorney’s fees incurred, as well
as authority, in accordance with the requirements of Arthur Andersen & Co. v.
Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). This included
uncontroverted evidence of KTRK’s reasonable and necessary attorney’s fees,
costs and expenses that were incurred in defending against Robinson’s claims and
causes of action for three years of litigation and appeals, including all billing
statements (from two consecutive law firms), and an affidavit from the lead
attorney attesting to the amount of the fees and their necessity, in addition to the
qualifications of the attorneys involved and a summary of the case history for the
benefit of the trial court. Six weeks after filing its Motion, and prior to the hearing
legal action from bringing similar actions described in this chapter.’” (quoting Tex. Civ. Prac. &
Rem. Code Ann. § 27.009(a)(2)).
30
on the Motion, KTRK filed its Supplemental Affidavit, which contained final fees
and costs pertaining to KTRK’s defense, including those final costs and fees
involved in preparing for the hearing and responding to Robinson’s final filings.
2nd CR __. The trial court order issued was consistent with the evidence presented
to it.
The reasonableness of a fee can be established as a matter of law where
clear, direct, and uncontroverted evidence is submitted and the opposing party fails
to disprove the testimony despite having the opportunity to do so. Cleveland v.
Taylor, 397 S.W.3d 683, 701 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
At the hearing on attorney’s fees, for which Robinson had six weeks prior notice,
Robinson failed to submit or provide any controverting evidence regarding
KTRK’s Motion. Further, at the oral hearing on the Motion, at which Robinson
was present and purported to appear pro se, but at which her prior trial counsel
appeared and argued on her behalf (despite previous strenuous attestations that she
was pro se), Robinson (and her counsel) offered no argument or evidence in
contravention of KTRK’s requested fees.77
77
See CR 557, 607, 609. Although Mr. Bowen filed a Motion to Withdraw in the trial court prior
to the hearing on attorney’s fees, Bowen was present at the hearing on attorney’s fees and
proceeded to represent Robinson, seemingly at Robinson’s behest. CR 545. Because Bowen
had failed to set a hearing on his Motion to Withdraw in accordance with the Harris County
Local Rules, the trial court allowed him to proceed on Robinson’s behalf. After the trial court
issued its order on fees and final judgment, and one day after Robinson filed a pro se Notice of
Appeal, Bowen filed a Motion for New Trial with the trial court which was overruled by
operation of law. CR 553, 609, 612.
31
PRAYER
For the above reasons, KTRK moves the Court to uphold its prior Opinion in
this matter and affirm the October 8, 2014 Order of the trial court, reject
Robinson’s appeal, and/or to dismiss Robinson’s appeal because this Court does
not have jurisdiction to hear this appeal and/or in accordance with Tex. R. App. P.
42.3(c) because Robinson has failed to comply with the Rules of Appellate
Procedure.
Respectfully Submitted,
HAYNES AND BOONE, LLP
/s/ Laura Lee Prather
Laura Lee Prather
State Bar No. 16234200
Laura.prather@haynesboone.com
Catherine Lewis Robb
State Bar No. 24007924
Catherine.robb@haynesboone.com
600 Congress Avenue, Suite 1300
Austin, Texas 78701
Telephone: (512) 867-8400
Facsimile: (512) 867-8470
COUNSEL FOR KTRK TELEVISION,
INC., APPELLEE
32
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft
Word 2010 and contains 11,858 words, as determined by the computer software’s
word-count function, excluding the sections of the document listed in Texas Rule
of Appellate Procedure 9.4(i)(1).
/s/ Laura Lee Prather
Laura Lee Prather
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on
the following parties this the 25th day of September, 2015 via certified mail, return
receipt requested:
Theaola Robinson
5505 Jensen Drive
Houston, Texas 77026
/s/ Laura Lee Prather
Laura Lee Prather
33
APPENDIX
Pursuant to Texas Rules of Appellate Procedure 38.1(k)(1)(A) and
38.2(a)(2), Appellee attaches the following items to its Appendix:
TAB
Notice of Appeal filed on October 30, 2014 A
Final Judgment and Order on Attorney’s Fees in Robinson v. KTRK,
No: 2011-54895, (234th Dist. Ct., Harris County, Tex., October 8,
2014) B
Opinion of the First Court of Appeals in No. 01-12-00372-CV, KTRK
v. Robinson, 409 S.W.3d 682 (Tex. App.—Houston [1st Dist.] 2013
reh'g overruled, pet. denied) C
Mandate of the First Court of Appeals in No. 01-12-00372-CV, KTRK
v. Robinson
D
Notice from the First Court of Appeals in No. 01-12-00372-CV,
KTRK v. Robinson, of the denial of Appellant’s Motion for Rehearing E
Notices from the Supreme Court of Texas in No. 13-0809, KTRK v.
Robinson, of the denial of Robinson’s Petition for Review and Motion
for Rehearing on Petition for Review F
Notices from the Supreme Court of Texas in No. 14-0321, In Re
Robinson, of the denials of Robinson’s Petition for Writ of Mandamus
and Motion for Rehearing on Petition for Writ of Mandamus G
Appellee KTRK Television, Inc.’s Motion to Dismiss Appellant’s
Appeal and Request to Declare Appellant Robinson A Vexatious
Litigant, filed in No. 01-14-008800-CV H
34
Original Complaint in Theaola Robinson v. The Walt Disney
Company, Cause No. 4-11-CV- 0358, in the Southern District of
Texas, Houston Division I
Motion for Leave to Amend and Supplement Complaint in Shenitha
Comb, et al. v. Rick Schneider, et al., Cause No. 4-10-CV-03498, in
the Southern District of Texas, Houston Division J
Nonparty KTRK Television, Inc.’s Opposition to Plaintiffs’ Motion
for Leave to Amend and Supplement Complaint in Cause No. 4-10-
CV-03498 K
Notice of Dismissal in Cause No. 4-11-CV-0358 L
Memorandum and Order in Cause No. 4-10-CV-03498 M
First Amended Original Petition in Cause No. 2011-54895 N
Appellee’s Motion to Dismiss For Lack of Jurisdiction, in No. 01-12-
00372-CV O
Order of February 22, 2013 in No. 01-12-00372-CV P
Notice of Hearing in Cause No. 2011-54895 Q
Supplemental Affidavit on Attorney’s Fees in Cause No. 2011-54895 R
Plaintiff’s Response to Motion to Dismiss in No. 2011-54895 S
Brief of Appellant KTRK Television, Inc. No. 01-12-00372-CV T
Appellant’s Brief in Reply in No. 01-12-00372-CV U
Appellant’s Response to Appellee’s Motion to Dismiss for Lack of
Jurisdiction in No. 01-12-00372-CV V
Defendant KTRK Television Inc.’s Motion to Dismiss Pursuant to
Tex. Civ. Prac. & Rem. Code Chapter 27 Anti-SLAPP Motion in
Cause No. 2011-54895 W
35
Anti-SLAPP Statute X
36
APPENDIX TAB A:
Notice of Appeal filed on
October 30, 2014
p /_. H ~l ~I ·i,
,·/.
.... ·'ll11
''I{},
....
0 r.;?
N
CAUSE NO. 20115489,i.5 ,~a
'
0
"1 P,y
'....
0
THEAOLA ROBINSON § IN THE DISTRICT COURT OF l.·Jl~
.. §
P 4111
Hatdo C::'" 1m
By ~/;-. .
Depvtw
7
CERTIFICATE OF SERVICE
In accordance with the Texas Rules of Appellate Procedure I certify that a copy of this Notice of
Appeal was served on Respondent KTRK Channel 13 through counsel of record, Laura Lee
Prather of Haynes & Boone by US. Mail certified mail, via email, and facsimile on October 28,
2014.
Laura Lee Prather
State Bar No. 16234200
Catherine Lewis Robb
State Bar No. 24007924
Haynes and Boone LLP
600 Congress Avenue, Suite 1300
Austin, Texas 78701
Telephone: (512) 867-8400
Facsimile: (512) 867-8470
Emai I: lnuru.pruthcr@hayrn."Sboone.com
Respectfully submitted,
---"Isl_ _ __
Thcaola Robinson
5505 Jensen Drive
Houston, Texas 77028
832-250-4444
bcnji's@wt.net
8
APPENDIX TABB:
Final Judgment and Order on
Attorney's Fees in Robinson v.
KTRK, No: 2011-54895, (234th
Dist. Ct., Harris County, Tex.,
October 8, 2014)
8/14/2014 5:58:21 PM
Chris Daniel • District Clerk
Harris County
Envelope No: 2167749
By: CORNETI, LAWANDA
THEAOLA ROBINSON,
CAUSE NO. 2011-54895
§
§
IN THE DISTRICT COURT OF
-gt;r~
Plaintiff, §
v. §
§
HARRIS COUNTY, TEXAS Aff£X
THE WALT DISNEY COMPANY; § ~fi'tJlX
CC TEXAS HOLDING CO., INC.; and, §
KTRK TELEVISION, INC. §
§
Defendants. § 234TH JUDICIAL DISTRICT
ORDER AND FINAL JUDGMENT
On this day, came to be considered Defendant KTRK Television, Inc.'s ("KTRK")
Motion and Bnef In Support Of Award Of Attorneys' Fees, Court Costs, Expenses, And
Sanct10ns And For Entry Of Final Judgment Pursuant To Chapter 27 Of The Civil Practice And
Remedies Code. The Court having considered the Motion, the Plaintiffs response thereto, if
any, the arguments of counsel, if any, and the pleadings on file, is of the opinion that the Motion
is well taken and should be GRANTED in its entirety. It 1s therefore,
ORDERED, ADJUDGED AND DECREED that Defendant KTRK's Motion and Brief In
Support Of Award Of Attorneys' Fees, Court Costs, Expenses, And Sanctions And For Entry Of
Final Judgment Pursuant To Chapter 27 Of The Civil Practice And Remedies Code, be and 1s
~Nl'f p.J C'o"""""')
hereby GRANTED in~· It is further;
ORDERED, ADJUDGED AND DECREED that the Affidavit of Laura Prather, attached
. '.
to the Motion as Exhibit A, and that the Exhibit No. A-1 attached to such affidavit are hereby
ADMITTED into evidence in their entirety. lt is further,
ORDERED, ADJUDGED AND DECREED that Defendant KTRK recover from Plaintiff
Theaola Robinson for such amounts:
RECORDER'S MEMORANDUM
This instrument 1s of poor quail\)'
pe,/;- I at the lime of 1maqmq 4
·.
1. $ ) $ \ , Co&~. J~ for attorneys' fees, an amount which the Court finds to be
reasonable and necessary based on the evidence admitted and considered in this
cause;
2.$"38'\s.io for expenses, an amount which this Court finds to be
reasonable and necessary based on the evidence admitted and considered in this
cause; and
3. $ '"31 }3. ~) in court costs. It is fmther,
ORDERED, ADJUDGED AND DECREED that Defendant KTRK recover from Plaintiff
Theaola Robinson $ ' 00 • 02> In sanctions under Civil Practice and Remedies Code
§27.009(a)(2), an amount which, based on the evidence admitted and considered in this case, the
Court finds to be sufficient and necessary to deter Plamhff from bringing similar actions
described by Chapter 27 of the Texas Civil Practice and Remedies Code. It is further,
ORDERED, ADJUDGED AND DECREED that Plaintiff shall pay post-judgment
interest on all of the above at the rate of S /. , compounded annually, from the date this
judgment is entered until all amounts are paid in full. It is further,
ORDERED, ADJUDGED AND DECREED that if Plaintiff unsuccessfully appeals this
judgment to an intennediate court of appeals, Defendant will additionally recover from Plaintiff
the amount of $_25~ 090 , representing the anticipated reasonably and necessary fees and
expenses that would be incuITed by Defendant in defending the appeal. It is further,
ORDERED, ADJUDGED AND DECREED that if Plaintiff unsuccessfully appeals this
judgment to the Texas Supreme Court, Defendant will additionally recover from Plaintiff the
amount of $ ;) S, oo :; , representing the anticipated reasonably and necessary fees and
expenses that would be incurred by Defendant in defending the appeal. It is further,
2
5
ORDERED, ADJUDGED AND DECREED that Plamtiff Theaola Robinson TAKE
NOTHING on her claims against Defendant KTRK, and that all such claims are hereby
DISMISSED WITH PREJUDICE.
THIS TS A FINAL JUDGMENT. ALL RELIEF NOT EXPRESSLY GRANTED
HEREIN IS DENIED.
The Court orders execution to issue for this judgment.
SIGNED this _1_ day of CXJ\.o)c-. , 2014
OCT - 8·2014
3
6
APPENDIX TAB C:
Opinion of the First Court of
Appeals in No. 01-12-00372-
CV, KTRK v. Robinson, 409
S.W.3d 682 (Tex. App.-
Houston [1st Dist.] 2013 reh'g
overruled, pet. denied)
Opinion issued July 11, 2013
In The
QCourt of ~pealj
For The
NO. 01-12-00372-CV
KTRK TELEVISION, INC., Appellant
v.
THEAOLA ROBINSON, Appellee
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2011-54895
OPINION
Following a senes of news reports by KTRK Television, Inc. alleging
financial mismanagement, Benji's Special Education Academy ("BSEA"), a
charter school, and Theaola Robinson sued KTRK. KTRK moved to dismiss the
action pursuant to the then-recently enacted Texas Citizens Participation Act
("TCPA"). 1 In a written order, the trial court denied the motion. In five issues,
KTRK contends that the trial court erred in denying KTRK' s motion to dismiss. In
her brief, the school's former director and superintendent, Robinson, also
challenges this Court's jurisdiction to consider KTRK' s appeal. 2 We hold that we
have jurisdiction over this appeal, that the trial court erred by denying KTRK's
motion to dismiss, and we reverse.
Background
A. The Charter School
In May 1980, Robinson founded BSEA, a non-profit corporation, to provide
a day care and education for special needs children ("Benji's"). In November
1998, the Texas State Board of Education ("SBOE") granted BSEA a charter to
operate Benji's as an open-enrollment, publicly funded pre-K through twelfth
grade charter school. 3 As such, compliance with the laws governing public schools
was required.
See TEX. CIV. PRAC. & REM. CODE ANN.§§ 27.001-.011 (West Supp. 2012).
2
BSEA is no longer a party to this case.
3
The original plaintiffs in this suit were BSEA, the non-profit corporation that ran
the charter school, and Robinson. Although both the school and the corporation
use the name "Benji's" or "Benji's Special Education Academy," Benji's (the
school) was never a plaintiff. Robinson amended her petition and dropped BSEA
from the case, leaving Robinson as the sole plaintiff. As a result, Robinson is the
sole appellee.
2
By the mid-2000s, Benji's enrollment had increased nearly five-fold and, on
behalf of BSEA, Robinson applied for a renewal of the charter to the Texas
Education Agency ("TEA") in April 2003. The TEA refused action on the
application, however, pending resolution of BSEA's growing list of problems.
Indeed, five years later, the renewal application was still pending and, in December
2008, the TEA informed Robinson that it would remain pending until resolution of
BSEA's problems in the following areas: financial management, academic
performance, performance-based monitoring activities, audit requirements, and
special education laws and policies.
By letter dated July 8, 2010, TEA Commissioner Robert Scott notified
Robinson that in light of longstanding academic, governance, and financial
concerns, and despite numerous agency investigations and interventions, the TEA
intended to appoint a Board of Managers and a new Superintendent for the school.
Following a hearing on August 19, 2010, Robinson and Benji's board of directors
were notified on September 3, 2010, that the TEA would proceed to appoint a
Board of Managers and Superintendent, which appointments effectively suspended
any and all prior grants of authority to the former board of directors and Robinson.
On September 16, 2010, after the TEA had learned of the extent of the
financial problems at Benji's, it issued an Order Suspending Charter Operations
and Funds, stating, in relevant part, as follows:
3
[The urgent financial conditions at Benji's were not] known either to
the board of managers or to the new superintendent when they met on
September 6, 2010. Rather, the information leading to the conclusion
that an urgent financial condition may exist at the charter school was
disclosed by painstaking effort to assemble and evaluate information
that had not been viewed by the former administration as indicating
such a conclusion. Subsequent events have made plain that the former
administration continues to maintain that there was and is no urgent
financial condition presented by these facts.
The newly appointed Superintendent advised the parents by letter of the
immediate suspension of the school's operations. The letter cited the school's
critical cash flow problem, which included a virtually depleted bank account and
numerous outstanding debts (including one to the Internal Revenue Service), as the
reason that "the school cannot continue to operate as it does not have the necessary
funds to pay its staff members or meet its current financial obligations."
Despite having been relieved of her duties as superintendent, Robinson
directed staff to continue reporting to work as usual and asked parents to continue
sending their children to school. Robinson also conducted a televised press
conference at which she stated that she would not allow the new superintendent to
carry out the TEA's decision and that the school would remain open despite the
board's decision. Notwithstanding the State-mandated closure, on September 15,
2010, Robinson re-opened Benji's as an unaccredited private school using the
same public school property and buses.
4
The next day, TEA Commissioner Scott ordered the immediate suspension
of all of Benji's funding as well as its open-enrollment charter. Commissioner
Scott subsequently sent a letter to Robinson and BSEA's board outlining the
various grounds for revoking Benji's charter, including its "failure to satisfy
generally accepted accounting standards of fiscal management." The letter
detailed examples of the school's fiscal mismanagement, which had resulted in
significant wasting of financial resources. Examples of Benji's financial problems
while under Robinson's direction included the following:
(1) BSEA was the subject of a warrant hold following its nonpayment
to the Teachers Retirement System in the amount of $43,000 for
retirement contributions and $13,000 in health coverage;
(2) The Department of Agriculture cancelled BSEA's participation in
child nutrition programs because of BSEA's failure to demonstrate
fiscal responsibility;
(3)BSEA owed a debt of$87,000 to the IRS in unpaid taxes;
(4) BSEA's board failed to oversee or adequately supervise its
financial resources; and
(5)BSEA had been in poor financial condition for many years.
In his letter, the TEA Commissioner also noted the irregularities in Benji's
rental arrangement and payments: BSEA leased the property from the City of
Houston for $1 per year and re-leased this same property to Benji's for $9,000 per
month, an arrangement for which the City had never given its permission.
5
B. KTRK's Statements at Issue
A public outcry ensued over the charter revocation and the school's closing.
Several local media outlets-including KTRK-broadcast and posted numerous
reports about the ongoing controversy. KTRK's reports included the following
statements upon which Robinson bases her defamation claim:
(1) "According to the State[,] millions in taxpayer dollars cannot be
accounted for" and "[t]he State closure is based on a lack of
sufficient financial records, meaning the State doesn't know where
over three million dollars of taxpayer money given last year has
been spent." (4:30 p.m., September 15, 2010 broadcast) 4
(2)"For the State, the issue is simple-where is the money? They say
millions of taxpayer dollars are unaccounted for . . . The State
closure is based on a lack of sufficient financial records, meaning
the State doesn't know where the more than $3 million of taxpayer
money given last year has been spent .... " (September 15, 2010
article published on KTRK's website)
(3) "Where is taxpayer money going and how is a taxpayer-owned
building being used? . . . The Texas Education Agency says it
doesn't know how Benji's spent $3 million of taxpayer money, and
a lease agreement obtained by Eyewitness News raises even new
questions." (September 25, 2010 article published on KTRK's
website)
(4) "The Texas Education Agency doesn't know how the academy
spent $3 million of state money." (September 27, 2010 article
published on KTRK's website)
(5) "The [S]tate says it had no choice, alleging Benji's did not provide
proper financial records to account for over $3 million in state
4
As an exhibit to its Motion to Dismiss, KTRK attached the affidavit of KTRK
reporter Cynthia Cisneros. In her affidavit, Cisneros states "I was [] informed by
the TEA that Benji's had received $3.3 million in 2009-2010."
6
funding for the past year." (September 30, 2010 article published
on KTRKs website)
(6) "On September 14, the TEA ordered Benji's Academy to close,
citing millions of dollars in State funding that was not accounted
for." (October 11, 2010 article published on KTRK's website)
C. Trial Court Proceedings
On September 14, 2011, Robinson and BSEA sued KTRK for defamation. 5
On December 21, 2011, KTRK filed a motion to dismiss under the TCP A. See
TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001-.011 (West Supp. 2012). KTRK
argued that it was entitled to dismissal because (1) plaintiffs' claim was based on,
related to, or in response to KTRK's exercise of its right of free speech, and (2)
plaintiffs could not establish by clear and specific evidence a prima facie case for
each essential element of their case. Robinson filed a response. 6 Both parties
attached affidavits and other evidence to their pleadings.
The trial court conducted a hearing on February 13, 2012. On February 23,
2012, the trial court entered an amended order denying KTRK's motion to dismiss.
On February 29, 2012, KTRK filed its request for findings and conclusions
regarding the court's denial of its motion to dismiss. On March 20, 2012, the trial
5
Robinson originally filed this suit against KTRK's parent company, The Walt
Disney Company, in federal court. After the suit was dismissed, Robinson
attempted to add Disney and KTRK to a federal lawsuit against the TEA in which
she had joined. The federal court denied leave to add Disney and KTRK as
defendants in the federal action.
6
BSEA was no longer a plaintiff in the case.
7
court issued its "Findings of Fact In Connection with CPRC §27.007." KTRK
timely appealed.
Discussion
A. Appellate Jurisdiction
As a threshold matter, we address Robinson's contention that we do not have
jurisdiction over this interlocutory appeal. See Tex. Dep 't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 228 (Tex. 2004) ("[A] court must not proceed on the
merits of a case until legitimate challenges to its jurisdiction have been decided.")
Generally, courts of appeals have jurisdiction only over appeals from final
judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).
Further, appellate courts have jurisdiction over interlocutory orders only when that
authority is explicitly granted by statute. Tex. A & M Univ. Sys. v. Koseogtu, 233
S.W.3d 835, 840 (Tex. 2007). Statutes authorizing interlocutory appeals are
strictly construed because they are a narrow exception to the general rule that
interlocutory orders are not immediately appealable. CMH Homes v. Perez, 340
S.W.3d 444, 447 (Tex. 2011).
Section 27.008 of the TCPA, entitled "Appeal," provides:
(a) If a court does not rule on a motion to dismiss under Section
27.003 in the time prescribed by Section 27.005, the motion is
considered to have been denied by operation of law and the moving
party may appeal.
8
(b) An appellate court shall expedite an appeal or other writ, whether
interlocutory or not, from a trial court's order on a motion to dismiss a
legal action under Section 27.003 or from a trial court's failure to rule
on that motion in the time prescribed by Section 27.005.
(c) An appeal or other writ under this section must be filed on or
before the 60th day after the date the trial court's order is signed or the
time prescribed by Section 27.005 expires, as applicable.
TEX. CIV. PRAC. & REM. CODE ANN.§ 27.008.
Robinson relies on the Fort Worth Court of Appeals's decision in Jennings
v. Wallbuilders Presentations, Inc. to argue that although section 27.008(a)
authorizes an interlocutory appeal when a movant's motion to dismiss is denied by
operation of law, the TCPA does not authorize an interlocutory appeal of a trial
court's signed order denying a motion to dismiss. See Jennings, 378 S.W.3d 519,
524-27 (Tex. App.-Fort Worth 2012, pet. filed). There, the court held that the
language in the TCPA conferred jurisdiction to review a decision under the TCP A,
but only if the motion is denied by operation of law, and not if the trial court signs
an order denying the motion. See id. at 526-27. The Jennings court concluded
that the legislature intended to ensure that a court would review and rule on the
motion, but not that its ruling would be subject to appellate review. See id. at 527.
Since Jennings, several other courts of appeals have considered the issue. In
Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, the Fourteenth
Court of Appeals declined to follow Jennings. See No. 14-12-00896-CV, 2013
9
WL 407029 (Tex. App.-Houston [14th Dist.] Jan. 24, 2013, order). The Beacon
Hill Estates court noted that section 27.008(b) requires an appellate court to
"expedite an appeal or other writ, whether interlocutory or not, from a trial court
order on a motion to dismiss ... or from a trial court's failure to rule." Id. at *3.
The court reasoned that "[i]f no interlocutory appeal is available when the trial
court expressly rules on a motion to dismiss by signing an order, then the phrase
'from a trial court order on a motion to dismiss' appearing after the phrase
'whether interlocutory or not' is rendered meaningless." Id. The court further
concluded the most natural reading of the phrase "whether interlocutory or not" is
to read it as modifying both of the subsequent references to "a trial court order"
and "a trial court's failure to rule." Id. Finally, the court noted that section
27.008(c) states an appeal "must be filed on or before the 60th day after the date
the trial court's order is signed or the time prescribed by section 27.005 expires, as
applicable." Id. at *4. The court concluded that "[i]f no signed order can be the
subject of an interlocutory appeal, then the reference to the date on which 'the trial
court's order is signed' also is superfluous." Id. The Fifth and Thirteenth Courts
of Appeals have since adopted the Fourteenth Court of Appeals's interpretation of
section 27.008. See Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc.,_
S.W.3d _, No. 05-12-00587-CV, 2013 WL 2077636, at *6 (Tex. App.-Dallas
May 15, 2013, no pet. h.) (finding reasoning of Fourteenth Court of Appeals
10
persuasive and concluding that it had jurisdiction under TCPA over interlocutory
appeal of trial court's order denying defendant's motion to dismiss); San Jacinto
Title Svcs., LLC v. Kingsley Props., LP., _ S.W.3d _, No. 13-12-00352-CV,
2013 WL 1786632, at *4 (Tex. App.-Corpus Christi Apr. 25, 2013, no pet. h.)
(agreeing with Fourteenth Court of Appeals that to conclude that no signed order
can be subject of interlocutory appeal would render portions of section 27.008(b)
and (c) meaningless).
We agree with the Fourteenth Court of Appeals's reasoning in Beacon Hill
Estates. We conclude that section 27.008 permits an interlocutory appeal from the
trial court's written order denying a motion to dismiss under the TCPA.
B. Application of the TCPA
In enacting the TCPA, the Legislature explained that the statute's purpose
"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. The statute is to "be construed liberally to effectuate
its purpose and intent fully." Id. § 27.01 l(b ).
In deciding whether to grant a motion under the TCPA and dismiss the
lawsuit, the statute directs the trial court to "consider the pleadings and supporting
11
and opposing affidavits stating the facts on which the liability or defense is based."
Id. § 27.006. The court must then determine whether (1) the moving defendant has
shown "by a preponderance of the evidence that the legal action is based on, relates
to, or is in response to the party's exercise of the right of free speech, the right to
petition, or the right of association"; and (2) the plaintiff has shown "by clear and
specific evidence a prima facie case for each essential element of the claim in
question." Id § 27.005(b), (c). The first step of this inquiry is a legal question we
review de novo. Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd,
No. 01-12-00581-CV, 2013 WL 1867104, at *6 (Tex. App.-Houston [1st Dist.]
May 2, 2013, no pet. h.).
The Legislature's use of the term "prima facie case" in the second step
implies a minimal factual burden: "[a] prima facie case represents the minimum
quantity of evidence necessary to support a rational inference that the allegation of
fact is true." Id. at *6 (quoting Rodriguez v. Printone Color Corp., 982 S.W.2d 69,
72 (Tex. App.-Houston [1st Dist.] 1998, pet. denied)). Nonetheless, the statute
requires that the proof offered address and support each "essential element" of
every claim asserted with "clear and specific evidence." See TEX. CIV. PRAC. &
REM. CODE ANN. § 27.005(b), (c). Because the statute does not define "clear and
specific" evidence, these terms are given their ordinary meaning. See TGS-
NOP EC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). "Clear"
12
means "unambiguous," "sure," or "free from doubt." BLACK'S LA w DICTIONARY
268 (8th ed. 2004). "Specific" means "explicit" or "relating to a particular named
thing." Id. at 1167. Accordingly, we examine the pleadings and the evidence to
determine whether Robinson marshaled "clear and specific" evidence to support
each alleged element of her cause of action.
As a preliminary matter, we note that Robinson has never asserted, either in
the trial court below or on appeal, that her claim is not covered by the TCPA. That
is, she does not argue that her defamation claim is not based on, related to, or in
response to KTRK's exercise of its right to "petition, speak freely, associate freely,
and otherwise participate in government to the maximum extent permitted by law."
As such, we begin with the second step of the inquiry-whether Robinson has
demonstrated by clear and specific evidence a prima facie case for each essential
element of her claim.
C. Prima Facie Case
To maintain a defamation cause of action, a plaintiff must prove that the
defendant (1) published a 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 with 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). "Whether words are capable of the defamatory
13
meaning the plaintiff attributes to them is a question of law for the court." Carr v.
Brasher, 776 S.W.2d 567, 569 (Tex. 1989). Questions of law are subject to de
novo review. In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994). Whether a
publication is an actionable statement of fact depends on its verifiability and the
context in which it was made. See Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex.
2002).
Defamatory Statement
Robinson argues that she has demonstrated that KTRK "made up" the
complained-of statements and, in doing so, has established a prima facie case of
defamation per se. KTRK contends that Robinson failed to establish with clear
and specific evidence that the complained-of statements were defamatory per se.
We initially address KTRK's contention that Robinson has alleged only a
claim of defamation per se. Defamation claims are divided into two categories-
defamation per se and defamation per quad-according to the level of proof
required to make them actionable. See Texas Disposal Sys. Landfill, Inc. v. Waste
Mgmt. Holdings, Inc., 219 S.W.3d 563, 580 (Tex. App.-Austin 2007, pet.
denied). Statements that are defamatory per quad are actionable only upon
allegation and proof of damages. Id. at 580; Alaniz v. Hoyt, 105 S.W.3d 330, 345
(Tex. App.-Corpus Christi 2003, no pet.). That is, before a plaintiff can recover
for defamation per quad, she must carry her burden of proof as to both the
14
defamatory nature of the statement and the amount of damages caused by its
publication. See Texas Disposal, 219 S.W.3d at 580 (citing Leyendecker &
Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984)). By contrast, in cases
involving defamation per se, damages are presumed to flow from the nature of the
defamation itself and, in most situations, a plaintiff injured by a defamatory per se
communication is entitled to recover general damages without specific proof of the
existence of harm. Bentley, 94 S.W.3d at 604 ("Our law presumes that statements
that are defamatory per se injure the victim's reputation and entitle him to recover
general damages, including damages for loss of reputation and mental anguish.").
KTRK argues that Robinson neither pleaded nor presented any proof of the
amount of alleged damages, and thus, her claim is one for defamation per se only.
In her petition, Robinson alleged that KTRK's statements damaged her reputation.
In her prayer, Robinson sought judgment "[f]or libel per se damages found by the
trier of fact without proof of special damages [and] for actual damages and
exemplary damages for malicious libel .... " In her appellate brief, Robinson does
not dispute KTRK's contention that her claim sounds only in defamation per se.
Indeed, she asserts that she has "established by clear and specific evidence a prima
facie case on each element of her claim that the complained of statements were
defamatory per se." Based upon the record before us, we agree that Robinson has
15
defamatory nature of the statement and the amount of damages caused by its
publication. See Texas Disposal, 219 S.W.3d at 580 (citing Leyendecker &
Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984)). By contrast, in cases
involving defamation per se, damages are presumed to flow from the nature of the
defamation itself and, in most situations, a plaintiff injured by a defamatory per se
communication is entitled to recover general damages without specific proof of the
existence of ham1. Bentley, 94 S. W.3d at 604 ("Our law presumes that statements
that are defamatory per se injure the victim's reputation and entitle him to recover
general damages, including damages for loss of reputation and mental anguish.").
KTRK argues that Robinson neither pleaded nor presented any proof of the
amount of alleged damages, and thus, her claim is one for defamation per se only.
In her petition, Robinson alleged that KTRK's statements damaged her reputation.
In her prayer, Robinson sought judgment "[f]or libel per se damages found by the
trier of fact without proof of special damages [and] for actual damages and
exemplary damages for malicious libel .... " In her appellate brief, Robinson does
not dispute KTRK's contention that her claim sounds only in defamation per se.
Indeed, she asserts that she has "established by clear and specific evidence a prima
facie case on each element of her claim that the complained of statements were
defamatory per se." Based upon the record before us, we agree that Robinson has
15
not alleged a claim for defamation per quad and, therefore, our analysis treats upon
Robinson's claim as one for defamation per se.
The law presumes certain categories of statements are defamatory per se,
including statements that ( 1) unambiguously charge a crime, dishonesty, fraud,
rascality, or general depravity or (2) are falsehoods that injure one in his office,
business, profession, or occupation. Main v. Royall, 348 S.W.3d 381, 390 (Tex.
App.---Dallas 2011, no pet.). Robinson complains of the following statements
made by KTRK:
(1) "According to the State[,] millions in taxpayer dollars cannot be
accounted for" and "[t]he State closure is based on a lack of
sufficient financial records, meaning the State doesn't know where
over three million dollars of taxpayer money given last year has
been spent." (4:30 p.m., September 15, 2010 broadcast)
(2)"For the State, the issue is simple-where is the money? They say
millions of taxpayer dollars are unaccounted for . . . The State
closure is based on a lack of sufficient financial records, meaning
the State doesn't know where the more than $3 million of taxpayer
money given last year has been spent .... " (September 15, 2010
article published on KTRK's website)
(3) "Where is taxpayer money going and how is a taxpayer-owned
building being used? . . . The Texas Education Agency says it
doesn't know how Benji's spent $3 million of taxpayer money, and
a lease agreement obtained by Eyewitness News raises even new
questions." (September 25, 2010 article published on KTRK's
website)
(4) "The Texas Education Agency doesn't know how the academy
spent $3 million of state money." (September 27, 2010 article
published on KTRK's website)
16
(5) "The [S]tate says it had no choice, alleging Benji's did not provide
proper financial records to account for over $3 million in state
funding for the past year." (September 30, 2010 article published
on KTRKs website)
(6) "On September 14, the TEA ordered Benji's Academy to close,
citing millions of dollars in state funding that was not accounted
for." (October 11, 2010 article published on KTRK's website)
Robinson argues these statements to be defamatory per se because they
insinuate that she embezzled over $3 million and thereby falsely imputed criminal
behavior to her. Robinson also contends that KTRK's statements have damaged
her reputation and, in support of her argument, points to the following third-party
comments posted by readers on KTRK's website in response to the broadcasts and
articles:
• "Call and ask where the money went. I'm sure Theola [sic] Robinson
tell you."
• "Could it be in somebody's pockets?"
• "Ms. Robinson should be arrested, not because she's black, because
she's a thief1"
• "I am just amazed as to why the parents are not suing Theaola
Robinson and the old Board of Director[s], they are the ones who are
stealing their children's future .... "
• "You bet they want to keep it open, if its [sic] closed an investigation
will show they were all taking money not to mention they won't be
able to afford their new house, Hummer and boat payments the school
and taxpayers were helping to buy."
17
• "The state is not to blame here. They need to sue the administrators to
find out where the money is followed by prosecution of those who
may have 'mis-spent' it. Put blame where blame is due!"
• "Simple! No money! Can not account for $9 million! Close the
doors and take the administrators to court for mis-use of government
(your) money .... "
• "The only thing organized about this plan is the organized crime."
• "The parents are supporting the administrators who have a little
charisma along with a talent for lining their pockets .... "
• "The mgmt. of this facility will continue to steal under the guide [sic]
of a school, where the kids will continue to suffer."
Robinson's reliance on third-party comments posted on KTRK's comment
board to prove defamation per se is misplaced. To be defamatory per se, the
defamatory nature of the challenged statement must be apparent on its face without
reference to extrinsic facts or "innuendo." Moore v. Walthrop, 166 S.W.3d 380,
386 (Tex. App.-Waco 2005, no pet.) (noting that "the very definition of 'per se,'
'in and of itself,' precludes the use of innuendo"). If the court must resort to
innuendo or extrinsic evidence to determine whether a statement is defamatory,
then it is defamation per quad and requires proof of injury and damages. Main,
348 S.W.3d at 390. There is nothing intrinsically defamatory about KTRK's
reports on the State's investigation into Benji's mismanaged funds. The reports
did not say or imply that the entire $3 million in state funds had been
18
misappropriated or embezzled. Rather, the statements speak to the insufficiency of
financial records to account for spent state funds. Similarly, the September 25th
broadcast questioning the lease situation neither states nor implies that state funds
were misappropriated.
Further, the evidence shows that the TEA's longstanding concern about and
subsequent investigation into Benji's accounting resulted in the suspension and,
ultimately, the revocation of the school's charter due to the urgent financial
conditions and its fiscal mismanagement. Thus, KTRK's reports that the State
found Benji's financial records insufficient to fully account for the money spent,
and that the State did not know how the money had been spent, were based on
evidence that Robinson did not counter. Media defendants cannot be liable for
varying subjective impressions that may have been generated from the broadcast of
true statements. See ABC, Inc. v. Gill, 6 S.W.3d 19, 35-38 (Tex. App.-San
Antonio 1999, pet. denied).
Robinson also argues that because KTRK's broadcasts on questions of
financial mismanagement reported the amount of total funding, the statements
falsely suggest that she failed to account for any of it, when, in fact, she did
provide records to show how part of the funds were spent. KTRK's reports,
however, never recited that she had failed to account for any of it, but that the TEA
had found the records provided were insufficient to account for the full amount.
19
Moreover, discrepancies as to details do not demonstrate material falsity for
defamation purposes. See, e.g., Dolcefino v. Turner, 987 S.W.3d 100, 115 (Tex.
App.-Houston [14th Dist.] 1998), ajf'd, 38 S.W.3d 103 (Tex. 2000) (showing that
insurance fraud "scam" involved $1.7 million, rather than $6.5 million, did not
demonstrate falsity of statement); Rogers v. Dallas Morning News, Inc., 889
S.W.2d 467, 471-73 (Tex. App.-Dallas 1994, writ denied) (misstatement that
charity spent 10% of its donations on actual services, rather than 43%, was
immaterial to gist of articles concerning misuse of charity funds); Finklea v.
Jacksonville Daily Progress, 742 S.W.2d 512, 514-15 (Tex. App.-Tyler 1987,
writ dism'd w.o.j.) (misstatement that plaintiff had four drug convictions, rather
than two, was substantially true); Shihab v. Express-News Corp., 604 S.W.2d 204,
206-08 (Tex. Civ. App.-San Antonio 1980, writ ref'd n.r.e.) (inaccurate
designation of which of several news stories was fabricated was insignificant
where the main charge was fabrication and one story was fabricated); Downer v.
Amalgamated Meatcutters & Butcher Workmen of N Am., 550 S.W.2d 744, 747
(Tex. Civ. App.-Dallas 1977, writ ref'd n.r.e.) (misstatement that plaintiff
embezzled $2,187.77, rather than $840.73, was substantially true); Fort Worth
Press Co. v. Davis, 96 S.W.2d 416, 419-20 (Tex. Civ. App.-Fort Worth 1936,
writ ref'd) (article charging official with wasting $80,000 of tax money rather than
only $17, 500 was substantially true).
20
In sum, there is nothing in the complained-of statements that unambiguously
charged Robinson with engaging in criminal behavior or constituted a falsehood
that injured her in her profession. Because Robinson has not adduced clear and
specific evidence that the challenged statements made by KTRK in its broadcasts
and reports are defamatory per se, she has not made a prima facie case for each
essential element of her defamation claim against KTRK. See TEX. C1v. PRAC. &
REM. CODE ANN.§ 27.005 (b), (c) (West Supp. 2012).
Conclusion
Having concluded that we have jurisdiction over this interlocutory appeal
and that Robinson failed to sustain her burden to show a prima facie case for each
essential element of her defamation claim, we reverse the trial court's denial of
KTRK's motion to dismiss, and remand the case to the trial court for further
proceedings as required by the statute to order dismissal of the suit. See TEX. C1v.
PRAC. & REM. CODE ANN.§ 27.009(a).
Jim Sharp
Justice
Panel consists of Justices Bland, Sharp, and Massengale.
21
APPENDIX TAB D:
Mandate of the First Court of
Appeals in No. 01-12-00372-
CV, KTRK v. Robinson
MANDATE
QI::ourt of ~peals
jfitst llisttitt of «exas
NO. 01-12-00372-CV
KTRK TELEVISION, INC., Appellant
v.
THEAOLA ROBINSON, Appellee
Appeal from the 234th District Comi of Han-is County. (Tr. Ct. No. 2011-54895).
TO THE 234TH DISTRICT COURT OF HARRIS COUNTY, GREETINGS:
Before this Court, on the 1 lth day of July 2013, the case upon appeal to revise or to
reverse your judgment was determined. This Court made its order in these words:
This case is an appeal from the order signed by the trial court on
February 23, 2012. After submitting the case on the appellate record and
the arguments properly raised by the parties, the Comi holds that there was
reversible error in the trial court's judgment. Accordingly, the Court
reverses the trial court's judgment and remands the case with instructions
for the trial court to dismiss the case, to award court costs, reasonable
attorney's fees, and other expenses incurred in defending against the legal
action as justice and equity may require to the appellant, KTRK Television,
Inc., and to award sanctions against the appellee, Theaola Robinson, as the
court determines sufficient to deter her from bringing similar actions, as
required by section 27.009(a) of the Civil Practice and Remedies Code.
The Court orders that the appellee, Theaola Robinson, pay all appellate costs.
The Court orders that this decision be certified below for observance.
Judgment rendered July 11, 2013.
Panel consists of Justices Bland, Sharp, and Massengale.
Opinion delivered by Justice Sharp.
WHEREFORE, WE COMMAND YOU to observe the order of our said Comi in
this behalf and in all things to have it duly recognized, obeyed, and executed.
March 14, 2014
Date CHRISTOPHER A. PRINE
CLERK OF THE COURT
APPENDIX TAB E:
Notice from the First Court of
Appeals in No. 01-12-00372-
CV, KTRK v. Robinson, of the
denial of Appellant's Motion for
Rehearing
Fii.I: ('CW\
~ FIRST COURT OF APPEALS
~· ·ti 301 Fannin Street
';···~:::-.;t::.:",j Houston, Texas 77002-2066
August 21, 2013
RE: Case No. 01-12-00372-CV
Style: KTRK Television, Inc.
v. Theaola Robinson
Please be advised the Court today DENIED Appellee's motion for
rehearing in the above referenced cause.
Panel consists of: Justices Bland, Sharp and Massengale
T. C. Case # 1154895 Christopher A. Prine, Clerk of the Court
Berry D. Bowen
Berry Dunbar Bowen
3014 Brazos St
Houston, TX 77006
DELIVERED VIA E-MAIL
~'"+.,, FIRST COURT OF APPEALS
·~ 301 Fannin Street
\': · / Houston, Texas 77002-2066
...:~t.·:.··
August 21, 2013
RE: Case No. 01-12-00372-CV
Style: KTRK Television, Inc.
v. Theaola Robinson
Please be advised the Court today DENIED Appellee's motion for
rehearing in the above referenced cause.
Panel consists of: Justices Bland, Sharp and Massengale
T. C. Case # 1154895 Christopher A. Prine, Clerk of the Court
Laura Lee Prather
Haynes & Boone, L.L.P.
600 Congress Ave., Suite 1300
Austin, TX 78701
DELIVERED VIA E-MAIL
~'t'if'>l'.·:;:, FIRST COURT OF APPEALS
~~~~ 301 Fannin Street
'; ~~/
..
Houston, Texas 77002-2066
'1.,::;-~t,·:,'!
August 21, 2013
RE: Case No. 01-12-00372-CV
Style: KTRK Television, Inc.
v. Theaola Robinson
Please be advised the Court today DENIED Appellee's motion for
rehearing in the above referenced cause.
Panel consists of: Justices Bland, Sharp and Massengale
T. C. Case # 1154895 Christopher A. Prine, Clerk of the Court
Catherine Lewis Robb
Haynes & Boone, L.L.P.
600 Congress Ave., Suite 1300
Austin, TX 78701
DELIVERED VIA E-MAIL
APPENDIX TAB F:
Notices from the Supreme Court
of Texas in No. 13-0809, KTRK
v. Robinson, of the denial of
Robinson's Petition for Review
and Motion for Rehearing on
Petition for Review
RE: Case No. 13-0809 DATE: 1/17/2014
COA #: 01-12-00372-CV TC#: 2011-54895
STYLE:THEAOLA ROBINSON
v. KTRK TELEVISION, INC.
Today the Supreme Court of Texas denied the
petition for review in the above-referenced case.
MR. CHRIS DANIEL
HARRIS COUNTY DISTRICT CLERK
201 CAROLINE, SUITE 420
HOUSTON, TX 77002
RE: Case No. 13-0809 DATE: 1/17/2014
COA #: 01-12-00372-CV TC#: 2011-54895
STYLE:THEAOLA ROBINSON
v. KTRK TELEVISION, INC.
Today the Supreme Court of Texas denied the
petition for review in the above-referenced case.
MS. LAURA LEE PRATHER
HAYNES AND BOONE, LLP
600 CONGRESS AVENUE, SUITE 1300
AUSTIN, TX 78701
RE: Case No. 13-0809 DATE: 1/17/2014
COA #: 01-12-00372-CV TC#: 2011-54895
STYLE:THEAOLA ROBINSON
v. KTRK TELEVISION, INC.
Today the Supreme Court of Texas denied the
petition for review in the above-referenced case.
MR. BERRY D. BOWEN
BOWEN I LAWYERS
3014 BRAZOS STREET
HOUSTON, TX 77006
RE: Case No. 13-0809 DATE: 1/17/2014
COA #: 01-12-00372-CV TC#: 2011-54895
STYLE:THEAOLA ROBINSON
v. KTRK TELEVISION, INC.
Today the Supreme Court of Texas denied the
petition for review in the above-referenced case.
MR. CHRISTOPHER PRINE
CLERK, FIRST COURT OF APPEALS
301 FANNIN
HOUSTON, TX 77002
RE: Case No. 13-0809 DATE: 3/7/2014
COA #: 01-12-00372-CV TC#: 2011-54895
STYLE:THEAOLA ROBINSON
v. KTRK TELEVISION, INC.
Today the Supreme Court of Texas denied the motion
for rehearing of the above-referenced petition for
.
review.
MR. CHRIS DANIEL
HARRIS COUNTY DISTRICT CLERK
201 CAROLINE, SUITE 420
HOUSTON, TX 77002
RE: Case No. 13-0809 DATE: 3/7/2014
COA #: 01-12-00372-CV TC#: 2011-54895
STYLE:THEAOLA ROBINSON
v. KTRK TELEVISION, INC.
Today the Supreme Court of Texas denied the motion
for rehearing of the above-referenced petition for
.
review.
MS. LAURA LEE PRATHER
HAYNES AND BOONE, LLP
600 CONGRESS AVENUE, SUITE 1300
AUSTIN, TX 78701
RE: Case No. 13-0809 DATE: 3/7/2014
COA #: 01-12-00372-CV TC#: 2011-54895
STYLE:THEAOLA ROBINSON
v. KTRK TELEVISION, INC.
Today the Supreme Court of Texas denied the motion
for rehearing of the above-referenced petition for
.
review.
MR. BERRY D. BOWEN
BOWEN I LAWYERS
3014 BRAZOS STREET
HOUSTON, TX 77006
RE: Case No. 13-0809 DATE: 3/7/2014
COA #: 01-12-00372-CV TC#: 2011-54895
STYLE:THEAOLA ROBINSON
v. KTRK TELEVISION, INC.
Today the Supreme Court of Texas denied the motion
for rehearing of the above-referenced petition for
.
review.
MR. CHRISTOPHER PRINE
CLERK, FIRST COURT OF APPEALS
301 FANNIN
HOUSTON, TX 77002
APPENDIX TAB G:
Notices from the Supreme Court
of Texas in No. 14-0321, In Re
Robinson, of the denials of
Robinson's Petition for Writ of
Mandamus and Motion for
Rehearing on Petition for Writ of
Mandamus
RE: Case No. 14-0321 DATE: 10/10/2014
COA #: 01-12-00372-CV TC#: 1154895
STYLE: IN RE THEAOLA ROBINSON
Today the Supreme Court of Texas denied the motion
for rehearing in the above-referenced petition for writ
of mandamus.
HONORABLE MAURICIO RONDON
JUDGE, 234TH DISTRICT COURT
HARRIS COUNTY CIVIL COURTHOUSE
201 CAROLTNE, 13TH FLOOR
HOUSTON, TX 77002
RE: Case No. 14-0321 DATE: 10/10/2014
COA #: 01-12-00372-CV TC#: 1154895
STYLE: IN RE THEAOLA ROBINSON
Today the Supreme Court of Texas denied the motion
for rehearing in the above-referenced petition for writ
of mandamus.
THEAOLA ROBINSON
5505 JENSEN DRIVE
HOUSTON, TX 77026
RE: Case No. 14-0321 DATE: 10/10/2014
COA #: 01-12-00372-CV TC#: 1154895
STYLE: IN RE THEAOLA ROBINSON
Today the Supreme Court of Texas denied the motion
for rehearing in the above-referenced petition for writ
of mandamus.
MS. LAURA LEE PRATHER
HAYNES & BOONE, L.L.P.
600 CONGRESS AVENUE, SUITE 1300
AUSTIN, TX 78701
RE: Case No. 14-0321 DATE: 10/10/2014
COA #: 01-12-00372-CV TC#: 1154895
STYLE: IN RE THEAOLA ROBINSON
Today the Supreme Court of Texas denied the motion
for rehearing in the above-referenced petition for writ
of mandamus.
MR. CHRISTOPHER PRINE
CLERK, FIRST COURT OF APPEALS
301 FANNIN
HOUSTON, TX 77002
RE: Case No. 14-0321 DATE: 10/10/2014
COA #: 01-12-00372-CV TC#: 1154895
STYLE: IN RE THEAOLA ROBINSON
Today the Supreme Court of Texas denied the motion
for rehearing in the above-referenced petition for writ
of mandamus.
MR. CHRIS DANIEL
HARRIS COUNTY DISTRICT CLERK
201 CAROLINE, SUITE 420
HOUSTON, TX 77002
RE: Case No. 14-0321 DATE: 6/6/2014
COA #: 01-12-00372-CV TC#: 1154895
STYLE: IN RE THEAOLA ROBINSON
Today the Supreme Court of Texas denied the
petition for writ of mandamus in the above-referenced
case.
HONORABLE MAURICIO RONDON
JUDGE, 234TH DISTRICT COURT
HARRIS COUNTY CIVlL COURTHOUSE
201 CAROLINE, 13TH FLOOR
HOUSTON, TX 77002
RE: Case No. 14-0321 DATE: 6/6/2014
COA #: 01-12-00372-CV TC#: 1154895
STYLE: IN RE THEAOLA ROBINSON
Today the Supreme Court of Texas denied the
petition for writ of mandamus in the above-referenced
case.
THEAOLA ROBINSON
5503 JENSEN DRIVE
HOUSTON, TX 77028
RE: Case No. 14-0321 DATE: 6/6/2014
COA #: 01-12-00372-CV TC#: 1154895
STYLE: IN RE THEAOLA ROBINSON
Today the Supreme Court of Texas denied the
petition for writ of mandamus in the above-referenced
case.
MS. LAURA LEE PRATHER
HAYNES & BOONE, L.L.P.
600 CONGRESS AVENUE, SUITE 1300
AUSTIN, TX 78701
RE: Case No. 14-0321 DATE: 6/6/2014
COA #: 01-12-00372-CV TC#: 1154895
STYLE: IN RE THEAOLA ROBINSON
Today the Supreme Court of Texas denied the
petition for writ of mandamus in the above-referenced
case.
MR. CHRISTOPHER PRINE
CLERK, FIRST COURT OF APPEALS
301 FANNIN
HOUSTON, TX 77002
RE: Case No. 14-0321 DATE: 6/6/2014
COA #: 01-12-00372-CV TC#: 1154895
STYLE: IN RE THEAOLA ROBINSON
Today the Supreme Court of Texas denied the
petition for writ of mandamus in the above-referenced
case.
MR. CHRIS DANIEL
HARRIS COUNTY DISTRICT CLERK
201 CAROLINE, SUITE 420
HOUSTON, TX 77002
APPENDIX TAB H:
Appellee KTRK Television,
Inc.' s Motion to Dismiss
Appellant's Appeal and Request
to Declare Appellant Robinson
A Vexatious Litigant, filed in
No. 01-14-008800-CV
(WITHOUT EXHIBITS)
ACCEPTED
01-14-00880-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/23/2015 1:11 :42 PM
CHRISTOPHER PRINE
CLERK
CAUSE NO. 01-14-00880-CV
IN THE FIRST COURT OF APPEALS
HOUSTON, TEXAS
THEAOLA ROBINSON
Appellant,
v.
KTRK TELEVISION, INC.,
Appellee.
Appealed from the 234 th District Court
Harris County, Texas
APPELLEE KTRK TELEVISION, INC.'S MOTION TO DISMISS
APPELLANT'S APPEAL AND REQUEST TO DECLARE APPELLANT
ROBINSON A VEXATIOUS LITIGANT
Catherine Lewis Robb
State Bar No. 24007924
Catherine.robb@haynesboone.com
*Laura Lee Prather
State Bar No. 16234200
Laura.prather@haynesboone.com
HAYNES AND BOONE, LLP
600 Congress Avenue
Suite 1300
Austin, Texas 78701
Telephone: (512) 867-8400
Facsimile: (512) 867-8470
COUNSEL FOR APPELLEE
KTRK TELEVISION, INC.
*Lead counsel for Appellee
APPELLEE'S MOTION TO DISMISS
APPELLANT'S APPEAL
Appellee, KTRK Television, Inc. (hereinafter "KTRK") moves to dismiss
this appeal because this case was already decided by this Court in July 2013, and
petition for review was subsequently denied by the Texas Supreme Court. See
KTRK v. Robinson, 409 S.W.3d 682 (Tex. App.-Houston [1st Dist.] 2013 reh'g
overruled, pet. denied) attached hereto as Exhibit "A." The Court has no
jurisdiction over the issues currently being appealed, and Appellant, Theaola
Robinson (hereinafter "Robinson") has failed to comply with the Texas Rules of
Appellate Procedure. Simply put, this is a pro se litigant seeking endless "bites at
the apple" in an effort to tie up KTRK in Court ad infinitum. Robinson should be
declared a vexatious litigant and prohibited from filing additional pleadings. See,
e.g., Nell Nations Forist v. Vanguard Underwriters Ins. Co., 141 S.W.3d 668 (Tex.
App.-San Antonio 2004, no pet.).
I.
INTRODUCTION & STATEMENT OF FACTS
This is Robinson's second appeal to this Court and fifth attempt to overturn
this Court's ruling. Although she purports to be appealing a final judgment of the
trial court, this appeal is really Robinson's attempt to revisit this Court's July 11,
2013, judgment in Cause No. 01-12-00372-CV dismissing Robinson's claim for
defamation against KTRK. Under Texas Rule of Appellate Procedure 19.1, this
Court's plenary power to alter that judgment expired in September of 2013. See
Tex. R. App. P. 19.1; see also, Tex. R. App. P. 19.3 ("after its plenary power
expires, the court cannot vacate or modify its judgment"). Furthermore, this
Court's decision in Cause No. 01-12-00372-CV is the law of the case and this
Court does not have jurisdiction to revisit the issues raised in that first appeal.
After multiple attempts to sue in federal court (none of which were
successfol), Robinson ultimately sued KTRK, The Walt Disney Company
("Disney"), CC Texas Holding Co., Inc. ("CCTHC"), and ABC Television
Network in state court for defamation in September of 2011. Disney and CCTHC
filed Special Appearances. KTRK filed an Answer and then a Motion to Dismiss
pursuant to Chapter 27 of the Texas Civil Practice & Remedies Code ("Anti-
SLAPP Motion"). 1 The Anti-SLAPP Motion was denied by the trial court, and
KTRK timely appealed to this Court.
On July 11, 2013, in KTRK Television, Inc. v. Robinson, this Court reversed
the trial court's denial of KTRK's Anti-SLAPP Motion and remanded this case
back to the trial court to order dismissal of the suit and for final proceedings on
attorneys' fees as required by TEX. CIV. PRAC. & REM. CODE ANN. §27.009(a).
1
ABC Television Network is not a corporate entity and was never served. In its Anti-SLAPP
Motion, KTRK advised the trial court of ABC's nonexistent status and non-service and also
advised that Disney and CCTHC had filed Special Appearances, but reserved the right to file
Anti-SLAPP motions should the Court decide to exercise jurisdiction over them. The motion
further advised that Disney and CCTHC would have the same defenses and arguments as KTRK
and would asse11 the same in an Anti-SLAPP motion, if necessary.
2
Robinson then filed a Motion for Rehearing, which was denied by this Court on
August 21, 2013. Next, Robinson filed a Petition for Review with the Supreme
Court of Texas, which was denied on January 3, 2014, and a Petition for Rehearing
the Denial, which was denied on March 7, 2014. 2 In all, prior to this latest filing,
Robinson filed a total of five motions and/or writs in an effort to have the Court of
Appeals' decision reversed.
On October 8, 2014, 3 the 234th Judicial Court of Harris County in
accordance with the Order of this Court issued its final judgment and dismissed
the case with prejudice, awarding KTRK attorney's fees, costs, and expenses
pursuant to the Texas Anti-SLAPP Statute. 4
Robinson's Notice of Appeal states that she desires "to appeal from the
judgment rendered against Plaintiff by the 234th Judicial District Court of Harris
County, Texas on October 8, 2014." The October 8, 2014 "Order and Final
Judgment," in accordance with the determination of this Court in KTRK Television,
Inc. v. Robinson, 409 S.W.3d 682, dismissed the case with prejudice and granted
2
Robinson also filed a Writ of Mandamus and a "Motion for Rehearing on Petition for Review
of Writ of Mandamus and Request for Oral Argument," both of which were denied.
3
The large time delay between the July 2013 judgment of this Court and October 2014 judgment
of the trial court was caused by Appellee Robinson's filings of a Motion for Rehearing in this
Court (which was denied); a Petition for Review and a Motion for Rehearing on her Petition for
Review (in the Supreme Court of Texas, No. 13-0809)(both denied); as well as a Petition for
Writ of Mandamus and a Motion for Rehearing on her Petition for Writ of Mandamus (in the
Supreme Court of Texas, No. 14-0321)(both denied).
4
Also on October 8, 2014, the 234th District Court signed an order sustaining the special
appearances of Disney and CC Texas.
3
attorney's fees and sanctions against Robinson, consistent with the mandate.
Robinson's Brief5 makes clear that she is only appealing this Court's earlier
decision in Cause No. 01-12-00372-CV, not the more recent ministerial order. The
Brief only raises issues on appeal that relate to the dismissal of the case. The Brief
does not challenge the amount of attorney's fees or the methodology used to arrive
at the fees. In addition, Robinson states outright in her Brief that "This is an appeal
from a decision of the 1st Court of Appeals in Houston, Texas reversal of a denied
motion to dismiss under the newly enacted TCPA; and the awarding of attorney's
fees and sanctions. Appellant Robinson requests this Court to review its holding." 6
In addition to ignoring the expiration of this Court's plenary power and the
law of the case, Robinson has failed to adhere to other requirements of the Texas
Rules of Appellate Procedure. First, in violation of Tex. R. App. P. 25.l(S)(e),
Robinson never served her Notice of Appeal upon KTRK, thus, failing to timely
perfect her appeal. 7 In addition, Robinson has repeatedly failed to properly serve
KTRK with other motions or briefs pertaining to this appeal, specifically her First
Appellant's Brief, filed with this Court on June 10, 2015 ("the first brief'); her
Second Amended Brief (the "2nd brief'), filed on June 19, 2015; and her "Motion
5
For clarity, KTRK refers only to Robinson's last brief titled "Amended Appellant Brief" filed
on June 19, 2015.
6
See Brief pg. 2. Appellant does not appeal the order granting Disney's or CCTHC's Special
Appearances or even make any argument that their granting was improper.
7
See Affidavit of Laura Lee Prather, attached hereto as Exhibit "B" ("Prather Affidavit").
4
for Leave to File Amended Brief' ("3rd motion"). 8 Robinson has failed to serve
countless other documents on KTRK, and KTRK has only been able to obtain
those documents by diligently monitoring this Court's docket. 9
Robinson has also made several misrepresentations to this Court. Robinson
asserted in her 3rd motion that she needed leave to amend and supplement her brief
only to add an "additional index to Authorities and Appendix," when in fact, the
2nd Brief also included three additional issues of law comprising ten additional
pages of briefing, a "Summary of Argument," and a new 13-page declaration
signed by Robinson (which was not part of the trial court record). 1 Further, in °
Robinson's first request for an extension, she attested that a family illness made
her unable to timely file her brief. However, KTRK later discovered that a week
earlier, Robinson filed pro se a new 136-page lawsuit against the City of Houston,
the Commissioner of the Texas Education Agency, and others, 11 clearly indicating
she had time to spend on her legal matters.
8
See Exhibit B, Prather Affidavit.
9
Other documents Robinson failed to timely serve include documents regarding her proof of
indigence, including the affidavit, and her April 24 and June 10, 2015 Motions to Extend Time to
File Brief, despite representing to the Court that she had served the documents. See Exhibit B,
Prather Affidavit.
10
Robinson did eventually serve portions of the documents on KTRK's counsel via email on
June 23, 2015. See Exhibit B, Prather Affidavit.
11
See Theaola Robinson and Benji's Special Education Academy,, Inc. vs. City of Houston,
Robert Scott, Lisa Beny Dockery, Management Accountability Corporation and Victory
Preparatory Academy, No. 1061237 (Co. Ct. at Law No. 4, Harris County, Tex., April 15, 2015);
see also, Exhibit B, Prather Affidavit. Robinson's case was dismissed earlier this month when
the court sustained the County Attorney's contest to Robinson's paper's oath.
5
II.
ARGUMENT & AUTHORITIES
It is a threshold matter whether this Court has jurisdiction over the appeal
filed by Robinson. KTRK believes it does not and moves this Court to dismiss this
appeal because this Court does not have jurisdiction to vacate or modify its earlier
judgment and the Appellant's Brief only requests the Court to reconsider the
earlier issues that have already been decided. Not only does the law of the case
doctrine require that this Court dismiss the appeal for lack of jurisdiction, but this
Court's plenary power has expired, further depriving it of jurisdiction to rehear the
appeal. Finally, given the plethora of filings made - all seeking to reverse this
Court's prior ruling - there can be no doubt Robinson should be declared a
vexatious litigant under Tex. Civ. Prac. & Rem. Code§ 11.054(2). 12
Additionally, this Court may dismiss the appeal under Tex. R. App. P. 42.3
for failure to comply with the rules. Robinson has repeatedly and flagrantly
refused to comply with the Texas Rules of Appellate Procedure; her failure to
comply with these rules is grounds for dismissal under Tex. R. App. P. 42.3(c).
12
See In re Douglas, 333 S.W.3d 273, 287 (Tex. App.-Houston [lst Dist.] 2010, pet. denied)
("We conclude for the foregoing reasons that the trial court did not err in declaring Douglas a
vexatious litigant on its own motion"). That court noted that "the evident purpose of the statute is
to make it possible for courts to control their dockets rather than permitting them to be burdened
with repeated filings of frivolous and malicious litigation by litigants without hope of success
while, at the same time, providing protections for litigants' constitutional rights to an open court
when they have genuine claims that can survive the scrutiny of the administrative judge and the
posting of security to protect defendants." Id. at 284.
6
A. This Court Should Dismiss This Appeal for Lack of Jurisdiction
Because This Court's Plenary Power Over Its Prior Decision Expired on
September 24, 2013.
This Court should dismiss Robinson's appeal because her current appeal is
simply another attempt to appeal this Court's July 11, 2013 decision on the merits.
However, such an attempt is not permitted. This Court "cannot vacate or modify
its judgment" because its plenary power over that decision expired in 2013. 13 After
this Court's ruling on the merits, reversing and remanding to the lower court,
Robinson filed a motion for rehearing on July 25, 2013. The Court's "plenary
power over its judgment expire[ d] ... 30 days after the court overruled[ d] all timely
filed motions for rehearing .... " 14 This Court overruled Robinson's motion for
rehearing on August 21, 2013. 15 Accordingly, this Court's plenary power to vacate
or modify its judgment expired on September 20, 2013.
The fact that Robinson claims to be appealing the trial court's judgment -
one that is in perfect compliance with this Court's prior mandate - does not change
the reality of her attempt to appeal, now for the sixth time, this Court's earlier
decision. In fact, in her "Summary of Argument" Robinson makes it clear that she
is simply seeking review of the earlier appeals' court decision when she states:
This is an appeal from a decision of the 1st Court of Appeals in
Houston, Texas reversal of a denied motion to dismiss under the
13
See Tex. R. App. P. 19.3.
14
See Tex. R. App. P. 19.l(b).
15
See this Court's August 21, 2013 notice that it denied Robinson's Motion for Rehearing,
attached hereto as Exhibit "C."
7
newly enacted TCPA .... The Court of Appeals decision clearly and
erroneously conflicts with the Texas Supreme Court decision in
Neely v. Wilson, 418 S.W.3d 52 (2013) when it did not broadly
construe defamation issues under the substantial truth doctrine or toll
the statute of limitations for Appellant Robinson's legal action. The
TCPA does not apply to Theaola Robinson legal defamation action.
See Appellant's Brief, p. 2 (emphasis added). The time for doing so has expired,
and Robinson's prior five attempts to have this Court and the Texas Supreme Court
review the decision have all failed.
B. This Court's Prior Decision is the Law of the Case, Barring Further
Reconsideration of the Issues Robinson Attempts to Raise (for the Sixth
Time). Robinson Should be Declared a Vexatious Litigant.
Likewise, in the body of her "Argument," Robinson also makes clear that
the "issues" she raises in this appeal concern her assertion that the First Court of
Appeals erred in its prior holdings in this case. 16 This Court's prior opinion is the
law of the case and cannot be further appealed simply because the trial court has
enforced this Court's mandate through the ministerial act of entering a final
judgment. See, e.g., Miller v. University Savings Assoc., 858 S.W.2d 33, 37 (Tex.
App.-Houston [14th Dist.] 1993, writ denied)(finding appellant precluded from
bringing claims on appeal because court had already determined issues and "law of
the case" applied). Under the law of the case doctrine, a court of appeals must be
consistent with its earlier ruling on legal questions unless an earlier decision was
16
See, e.g., Points of Error in Robinson's Brief all addressing the First Court of Appeals ruling,
pp. 4, 10, 15, 17 and 20.
8
clearly erroneous. In a case such as this, when a petition for review is filed and the
Texas Supreme Court denies the petition for review, as a matter of law, the opinion
is not "clearly erroneous." See Caplinger v. Allstate Ins. Co., 140 S.W.3d 927, 930
(Tex. App.-Dallas 2004, pet. denied). 17
The Order that Robinson purports to appeal was simply the trial court's
ministerial act of enforcing this Court's prior mandate that the trial court dismiss
the case and enter a final judgment in accordance with this Court's opinion.
"When an appellate court . . . renders the judgment which the trial court should
have rendered, that judgment becomes the judgment of both co mis." Cook v.
Cameron, 733 S.W.2d 137, 139 (Tex. 1987). At that point, "the trial court's only
duty is to enforce the judgment as rendered. The district court has no jurisdiction
to review or interpret that judgment. Its only authority is to carry out the mandate
of the appellate court. A district's court's orders carrying out the mandate are
ministerial." Dallas County v Sweitzer, 971 S.W.2d 629, 630 (Tex. App.-Dallas
1998, no pet.)(internal citations omitted). Furthermore, "[t]he district court must
execute the judgment as it was framed by the appellate court." Id. It "has no
authority to take any action that is inconsistent with or beyond the scope of that
which is necessary to give full effect to the appellate court's judgment and
mandate." Phillips v. Bramlett, 407 S.W.3d 229, 234 (Tex. 2013). See also, Tex.
17
See Supreme Comi of Texas' denial of Robinson's Petition for Review, attached hereto as
Exhibit "D."
9
R. App. P. 51.l(b) ("When the trial court clerk receives the mandate, the appellate
court's judgment must be enforced.").
In this second appeal to the First Court of Appeals, Robinson simply
requests this Court reconsider its prior ruling - one that is now the law of the case.
"The 'law of the case' doctrine is defined as that principle under which questions
of law decided on appeal to a court of last resort will govern the case throughout its
subsequent stages." Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); see
also, Aycock v. State of Texas, 863 S.W.2d at 187. ("'The law of the case' is a
doctrine which mandates that the ruling of an appellate court on a question of law
raised on appeal will be regarded as the law of the case in all subsequent
proceedings of the same case."). Because Robinson's appeal is nothing more than
one more attempt to overturn "the law of the case," by "appealing" the trial court's
ministerial entry of the final judgment, which is not appealable, the Court is
without jurisdiction to hear this appeal and this appeal must be dismissed. See,
e.g., Gulf Energy Exploration Corp. v. Fugro Chance, 2012 WL 601413 (Tex.
App.-Corpus Christi 2012, no pet.)(mem. op.)(finding court was without
jurisdiction to hear appeal of issue it had previously decided in first appeal).
Finally, dismissing this appeal serves the purpose of the "law of the case"
doctrine, which is "based on public policy and is aimed at putting an end to
litigation." Hudson v. Wakefield, 711 S.W.2d at 630. This Court entered its
10
Opinion in this matter dismissing this case in July of 2013. Since that time,
Robinson (either acting prose, or through her former attorney) has filed five prior
pleadings in an effort to overturn the decision: a Motion for Rehearing to the First
Court of Appeals, a Petition for Review to the Texas Supreme Court, a Motion for
Rehearing the Denial of her Petition for Review to the Texas Supreme Court, a
Mandamus with the Texas Supreme Court, and a Motion for Rehearing the Denial
of Mandamus. In addition, after the trial court issued its order in compliance with
this Court's Mandate, Robinson filed a Motion for New Trial prior to filing this
appeal. Given the foregoing volume of baseless filings, Robinson should be
declared a vexatious litigant pursuant to Tex. Civ. Prac. & Rem. Code §11.054. 18
19
Public policy and the law of the case dictate that this litigation must end.
C. This Court Should Dismiss This Appeal for Failure to Comply with the
Texas Rules of Appellate Procedure.
It is well settled in Texas that, although a prose appellant's briefing may be
construed liberally in accordance with Tex. R. App. P. 38.9, pro se litigants are
18
Although Robinson has not yet been adjudged a vexatious litigant, she satisfies most, if not all,
of the requirements, especially the requirement that "after a litigation has been finally determined
against the plaintiff, the plaintiff repeatedly relitigates or attempts to relitigate, prose, either: (A)
the validity of the determination against the same defendant as to whom the litigation was finally
determined; or (B) the cause of action, claim, controversy, or any of the issues of fact or law
determined or concluded by the final determination against the same defendant as to whom the
litigation was finally determined .... " Tex. Civ. Prac. & Rem Code § 11.054.
19
Robinson has already been ordered to pay KTRK's attorneys' fees in this matter, but has
indicated that she will be unable to pay. She appears to believe she has nothing to lose by
continuing her baseless appeals. Therefore, a declaration that Robinson is a vexatious litigant
and, pursuant to Tex. Civ. Prac. & Rem Code §11.101, is prohibited from filing any new
litigation pro se without permission of the court is also necessary to ensure that Robinson does
not try new methods to further "appeal" this matter (or the underlying subject matter).
11
held to the same standards as licensed attorneys and are required to comply with
applicable procedural rules. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex.
2005); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).
However, Robinson's failures to adhere to the Texas Rules of Appellate Procedure
are not simply a matter of poor briefing. Robinson has consistently failed to serve
documents upon KTRK in accordance with Tex. R. App. P. 9.5, 10.l(a)(4), and
25 .1 (e). Although a failure to include correct details in a certificate of service may
be overlooked, actually failing to serve any documents upon the parties involved in
an appeal is grounds for dismissal. 20 As one appellate court in Texas has stated
" ... mere recitation of language consistent with Texas Rule of Appellate Procedure
40(a)(2) in the body ... does not constitute a proper notice of appeal." State v.
Organic Composting Resources Co., L.C., 925 S.W.2d 129 (Tex. App.-Austin
1996, no writ).
Further, though a pro se litigant, Robinson is not a "new," uneducated
litigant who is ignorant about the requirements of proper service. In fact, Robinson
20
Pena v. McDowell, 201 S.W.3d 665 (Tex. 2006). See Wells v. Target Corp., No. 02-14-
00359-CV, 2015 WL 1882540 (Tex. App.-Fort Worth, April 23, 2015, no pet.); McCaleb v.
Descisciolo, No. 12-05-00122-CV, 2005 WL 1177062, at* 1 (Tex. App.-Tyler May I 8, 2005,
no pet.); Guajardo v. Guajardo, No. 13-02-364-CV, 2003 WL I 562553, at * 1 (Tex. App.-
Corpus Christi Mar.27, 2003, no pet.); Reiners v. Reiners, No. I 0-04-00359-CV, 2005 WL
114669, at *l (Tex. App.-Waco Jan.19, 2005, no pet.). Rule 37.1 of the Rules of Appellate
Procedure clearly requires an appellate clerk to notify the parties of a defect in the notice of
appeal so that the appealing party can remedy the defect. However, in this case the appellate
clerk could not have correctly identified the defect in Robinson's notice of appeal because the
appellate clerk could not have known that Robinson continually misrepresented her claim that
she had served KTRK.
12
has filed multiple lawsuits in state and federal court concerning the underlying
matters in this very lawsuit. 21 Also, Robinson's "mistake" is not a single failure to
serve KTRK (or failure to include correct service information), but rather a
repeated failure to serve KTRK, failure to file a docket sheet, misrepresentations to
this Comi about her failure to serve KTRK, and misrepresentations about her
reasons for requesting an extension in the documents being filed with this Court. 22
Finally, Robinson did not seek, nor was she granted, leave to file a
supplemental brief raising new points of error not assigned in her original briefing
- although she did so, and did so without notifying this Court. "Generally, a party
must seek leave of court to file an amended or supplemental brief, and the
appellate court has some discretion in deciding whether to allow the filing."
Heritage Res. v. Hill, 104 S.W.3d 612, 619 (Tex. App.-El Paso 2003, no pet.)
(quoting Standard Fruit and Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 65
(Tex. 1998)). Texas courts do not generally favor motions to add new issues unless
"justice requires." Standard Fruit and Vegetable Co., Inc. 985 S.W.2d at 65.
KTRK asks this Court to dismiss Robinson's appeal for all of the above additional
reasons.
21
See Exhibit B, Prather Affidavit.
22 Id.
13
D. This Appeal Should be Determined to be Objectively Frivolous and
Robinson Should be Sanctioned for Filing a Frivolous Appeal.
Finally, this Court should determine that this appeal is frivolous, and award
Appellees damages under Texas Rule of Appellate Procedure 45, which states that
"[i]f the court of appeals determines that an appeal is frivolous, it may-on motion
of any party or on its own initiative, after notice and a reasonable opportunity for
response-award each prevailing party just damages." Tex. R. App. P. 45. The
"just damages" awarded are typically the attorney's fees incurred in defending the
appeal. 23 There is no requirement under Rule 45 for a finding of bad faith for
sanctions to apply. See Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex.
App.-Houston [14th Dist.] 2011, pet. denied) (rejecting earlier rulings that
required a finding of bad faith for sanctions in a frivolous appeal). However, the
court may consider bad faith when determining the amount of damages. Id. As the
Glassman Court so succinctly stated, "No litigant has the right to put an opposing
party to needless burden and expense or to waste this court's time, which otherwise
would be spent on the important task of adjudicating valid disputes." Id. at 783.
"To determine whether an appeal is objectively frivolous, [the court should]
review the record from the viewpoint of the advocate and decide whether the
advocate had reasonable grounds to believe the case could be reversed." Id. at 782.
23
See, e.g., Lookshin v. Feldman, 127 S.W.3d 100, 102 (Tex. App.-Houston [1st Dist.] 2003,
pet. denied) (awarding attorney's fees as sanctions for a frivolous appeal).
14
In Riggins v. Hill, the Fourteenth Court of Appeals held that a litigant who seeks to
appeal claims that have already been resolved finally by an earlier appeal "has no
reasonable grounds to believe that the case could be reversed [and the] appeal is
frivolous." 24 Given that this Court has no jurisdiction to overturn its earlier
decisions, and that the law of the case precludes this Court from making a ruling
contrary to its earlier ruling, there can be no reasonable grounds for Robinson to
believe that the case could be reversed or that her appeal could be granted.
III.
PRAYER
For the above reasons, KTRK moves the Court to dismiss Robinson's appeal
because this Court does not have jurisdiction to hear this appeal. Additionally,
KTRK moves to dismiss Robinson's appeal in accordance with Tex. R. App. P.
42.3( c) because Robinson has failed to comply with the Rules of Appellate
Procedure. KTRK prays that this Court declare Robinson a vexatious litigant and,
pursuant to Tex. Civ. Prac. & Rem. Code § 11.101, prohibit her from filing any
new litigation pro se without permission of the court. KTRK further prays this
Court determine that this appeal is objectively frivolous and grant KTRK sanctions
against Robinson in the amount of KTRK's reasonable attorney's fees in defending
against this appeal.
24
See Riggins v. Hill, No. 14-13-00604-CV, 2015 WL 293270, at *4 (Tex. App.-Houston [14th
Dist.] Jan. 22, 2015), reh'g overruled (Feb. 24, 2015).
15
Respectfully Submitted,
HAYNES AND BOONE, LLP
/s/ Laura Lee Prather
Laura Lee Prather
State Bar No. 16234200
Laura.prather@haynesboone.com
Catherine Lewis Robb
State Bar No. 24007924
Catherine.robb@haynesboone.com
600 Congress Avenue, Suite 1300
Austin, Texas 78701
Telephone: (512) 867-8400
Facsimile: (512) 867-8470
COUNSEL FOR KTRK TELEVISION,
INC., APPELLEE
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft
Word 2010 and contains 4,291 words, as determined by the computer software's
word-count function, excluding the sections of the document listed in Texas Rule
of Appellate Procedure 9.4(i)(l).
/s/ Laura Lee Prather
Laura Lee Prather
16
CERTIFICATE OF CONFERENCE
I certify that on July 21, 2015, I attempted to confer with Ms. Robinson
regarding this motion and she did not respond.
Isl Laura Lee Prather
Laura Lee Prather
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on
the following parties this the 23rd day of July, 2015 via certified mail, return receipt
requested:
Theaola Robinson
5505 Jensen Drive
Houston, Texas 77028
Isl Laura Lee Prather
Laura Lee Prather
17
APPENDIX TAB I:
Original Complaint in Theaola
Robinson v. The Walt Disney
Company, Cause No. 4-1 l-CV-
0358, in the Southern District of
Texas, Houston Division
(WITHOUT EXHIBITS)
Case 4:1 I -cv-00358 Document I Filed in TXSD on 01 /26/11 Page I of 15
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
THEAOLA ROBINSON, §
§
Plaintiff, § Civil Action No. - - - - - - -
§
§ Jury Trial Requested
v. §
§
THE WALT DISNEY COMPANY, §
§
Defendant. §
ORIGINAL COMPLAINT
1. Plaintiff, Theaola Robinson, is a citizen of the State of Texas.
2. Defendant, The Walt Disney Company is a corporation incorporated under the
laws of the State of Delaware and having its principal place of business in the State of
California.
3. The amount in controversy between Mrs. Robinson and The Walt Disney
Company exceeds, exclusive of interest and costs, the sum specified by 28 U.S.C. § 1332.
4. Pursuant to Rule lO(c), Fed.R.Civ.P., Mrs. Robinson adopts by reference
Plaintiffs' current complaint and the joinder of Mrs. Theaola Robinson therein in Comb v.
Benji's Special Education Academy, No. 4-10-CV-03498, In the United States District
Court for the Southern District of Texas, Houston Division.
5. The Walt Disney Company is the owner of a television station and a network of
television stations and is a "broadcaster" as defined by Texas law.
6. On August 8, 2010, Rick Schneider responded in writing to the original overture
from Ron Rowell asking Schneider to become involved in Benji's Special Educational
Academy. Schneider's first point in his response to Rowell succinctly expresses the
Case 4:11-cv-00358 Document 1 Filed in TXSD on 01 /26/11 Page 2 of 15
bottom line situation then prevailing at Benji's, the overarching and defining context in
which all the subsequent damaging actions and devastating events have taken place.
Schneider wrote:
If I understand you correctly, the students and school are doing w~ll
academically.
(Exhibit 1).
7. This statement succinctly expresses the situation at a remarkable institution,
created and nurtured by the mother love and determination of a tireless educator, Mrs.
Robinson.for thirty years, and reveals the context in which the occurrences giving rise to
the rights to relief stated in this action quickly transpired over the next forty days.
8. For the thirty years prior to August 2010, Mrs. Robinson had, in total and
complete obscurity, through much trial and sacrifice, and with virtually no private
support, endeavored to provide for the most helpless and disadvantaged, the most
forgotten and discarded, of the young in our society, a setting where they could find a
loving and caring home, and, just possibly, find a chance at self-respect, self-discipline,
and a foundation for a socially productive and rewarding life.
9. Mrs. Robinson is not and never has been a public figure.
I 0. This thirty years of work began in 1980 with Mrs. Robinson's creation of a day
care academy for young special needs children, her own young son being such a child,
having recently become disabled at age three on account of an injury, forcing her to
abandon other career aspirations in order to care for him, and her abilities, energy, and
love guiding her to care for other similarly needy young children. As detailed herein,
thirty years of dedicated service and objective achievement was demolished, and Mrs.
Robinson's reputation deliberately ruined, in a relative instant.
2
Case 4:11-cv-00358 Document 1 Filed in TXSD on 01/26/11 Page 3 of 15
11. Mrs. Robinson began this work in the heart of Houston's Fifth Ward, one of the
most blighted, impoverished neighborhoods in Houston, Texas, commonly known as a
"ghetto," a place where a host of societal ills routinely conspire to blunt the aspirations of
a majority of even the most physically and mentally able.
12. To begin her endeavor in 1980, Mrs. Robinson caused to be incorporated a Texas
not-for-profit corporation, named Benji's Special Education Academy, ("Benji's"). She
began Benji's by caring for her son and one other child at the Greater Love Missionary
Baptist Church at 6913 Jensen Drive. Almost immediately, she had attracted twenty
children to her program.
13. Over the ensuing years, Benji's enrollment grew to almost 100 children, and
outgrew the facilities at Greater Love, relocating to a previously abandoned building at
5505 Jensen Drive.
14. Benji's continued to flourish with support from the City of Houston, and by 1996,
with an enrollment of 140 students and the cooperation and encouragement of the City of
Houston, Mayor Bob Lanier, and Councilman Ernest McGowen, Benji's acquired a lease
from the City of Houston on another previously abandoned building, formerly known as
White's Appliance Store, located at 2903 Jensen Drive.
15. During all these years, Benji's never charged tuition and the school operated and
developed its facilities exclusively on grants from the City of Houston and Mrs.
Robinson's personal support, primarily from the proceeds of her late husband's
insurance.
16. In 1996, the White's Appliance Building was a boarded-up eyesore, which had
become what is commonly known as a "crack house" at the time Mrs. Robinson
3
Case 4:11-cv-00358 Document 1 Filed in TXSD on 01 /26/11 Page 4 of 15
undertook to renovate, and Benji's to occupy, 5,000 square feet of the 30,000 square foot
structure.
17. Also, by this time, the State of Texas had recently adopted laws providing for the
creation of public charter schools, and Mrs. Robinson determined to expand Benji's
successful program to occupy the entire 30,000 square feet of the White's Building and to
convert Benji's into an open-enrollment public charter school.
18. On November 2, 1998, Benji's was granted a contract for an open-enrollment
charter by the Texas State Board of Education.
19. Benji's is a "charter holder" as defined in Tex. Education Code§ 12.1012.
20. As detailed in the Complaint in No. 4-10-CV-03498 (Docket No. 19 at ii 25), and
as substantially admitted by the Defendants in that action (Docket Nos. 22 and 23 at ii
25), Benji's charter, initially set to expire on July 31, 2003, has been in a state of
perpetual application for renewal since Benji's timely applied for renewal prior to July
31,2003.
21. During the ensuing years, primarily beginning in 2008, Benji's became subject to
close monitoring of all aspects of its operations, with particular emphasis on its special
education programs for disabled students, through appointment of TEA conservators,
primarily Dr. Shelly Swedlaw and Dr. Don W. Hooper.
22. Additionally, Benji's financial management and budgets received detailed
scrutiny and oversight from both Dr. Hooper and TEA finance expert, Mr. Robert "Mike"
Seale.
23. Particularly in light of this intervention and oversight, the objective financial
condition of the school, its impressive facilities and learning tools (buildings, physical
4
Case 4:11-cv-00358 Document 1 Filed in TXSD on 01/26/11 Page 5 of 15
education track, computers, educational laboratory facilities, uniforms, etc.) were at all
times open and obvious to the TEA.
24. During 2009 and 2010, the present use offunds and proposed future budgets were
reviewed and analyzed by the TEA and audited financial reporting detailing all
expenditures and demonstrating the valuable investment made in facilities and equipment
and reflecting a solvent operation, with a net worth of over $1 million, were timely
submitted to and accepted by the TEA. No detail was too small to evade notice, and even
relatively minor purchases, such as a musical instrument, i.e., a harp, were subjected to
criticism by the TEA conservators, themselves being paid out of Bettji's current receipts
from the TEA and thus further burdening Benji's financial operation.
25. Personality conflicts developed in this process, were not satisfactorily resolved,
and culminated in TEA launching a personal vendetta aimed solely at Mrs. Robinson.
26. At the urging of TEA employee Ron Rowell, Drs. Hooper and Swedlaw were
directed to make detailed reports concerning Mrs. Robinson personally and her
uncooperative and controlling behavior and attitude rather than on objective facts
concerning the education and welfare of the students or the financial condition or
management of Benji's.
27. As detailed in the Complaint in No. 4-10-CV-03498, at paragraphs 26-58, and in
Exhibit 1 above, the plan went into effect in August 2010, and resulted in the
appointment of an interim board of managers and interim superintendent on September 3,
20 l 0, displacing Mrs. Robinson from an active role as superintendent. Mrs. Robinson,
however, was not discharged, and she continued to report to the school every day. She
fully cooperated with the interim board and interim superintendent between September
5
Case 4:11-cv-00358 Document 1 Filed in TXSD on 01/26/11 Page 6 of 15
3rd and September 131h, effected changes in the signature cards at the bank and dealt with
any and all questions and problems with the transition, and proposed changes in
management and operation, including a significantly reduced role and salaty for herself.
None of this was considered. Instead, as its first order of business, the interim board
voted to close Benji's on September 13, 2010, and gave notice of the immediate closure
to students, parents, and staff the next day, providing a list of other schools in which to
enroll the children but nothing for the displaced educators and staff.
28. Of particular significance to the instant action, even though the TEA had, as set
out above, complete and detailed access to, and knowledge of, all of Benji's financial
condition, operation, and expenditures, once the interim board of managers took control
of Benji's operating bank accounts, the TEA had full control of, and access to, all
financial records and thus complete and full knowledge of all payments made by Benji's
from the over $3 million in public funds received by Benji's to provide public education
to almost 500 children over the preceding year.
29. The defendants in No. 4-10-CV-03495 have effectively admitted this action by
the interim board and interim superintendent was unauthorized and ultra vires, citing in
their answers (Docket Nos. 22 and 23, at 'II 19), as justification, the provision of law
allowing suspension of operations of a school by the charter holder for not more than
three days, and that on 14 days advance notice, Tex.Admin.Code § 100.1213(c).
30. In the finest tradition of American citizenship, with the displaced administrator,
Mrs. Robinson, leading the fight, the Benji's family stood up to this grossly unlawful
action. Mrs. Robinson vowed that Benji's would remain open, the teachers agreed to
continue to report, the bus drivers to transport the children, and the parents and students
6
Case 4:11-cv-00358 Document 1 Filed in TXSD on 01/26/11 Page 7 of 15
to continue to come to school, all in peaceful disobedience to the grossly unlawful,
arbitrary and malicious conduct of the TEA.
31. On September 14, 2010, all the major local news media, including the television
station owned by Defendant, The Walt Disney Company, reported the abrupt and sudden
closure of the school and the peaceful defiance unfolding at Benji's.
32. Benji's defiance to the events of September 13 and 14, 2010, appeared to surprise
the TEA. Mr. Schneider, with apparent misgivings about what he had been a party to,
abruptly resigned on September 14, 2010.
33. A new plan was immediately hatched to quash the peaceful and exemplary
defiance of the State's arbitrary and malicious action.
34. The first prong of this plan was aimed at quashing public support for Mrs.
Robinson's leadership of the school family's peaceful defiance. This prong of the plan
was so cynical in formulation and execution that it is hard to imagine any responsible
persons charged with carrying out the public trust with even having thought of it, let
alone of pursuing it. This prong of the plan was aimed at destroying Mrs. Robinson's
reputation in the community at large as a means to undermine her support, and provides
the basis of the claim in this action.
35. The plan was simply to report to the major news organizations already involved in
covering the story of the abrupt closure of the school and the defiance thereto that over $3
million in public funds given to Benji's over the past year, i.e., the entire annual budget
for operations, was unaccounted for, with the clear intent to give the impression to
persons of ordinary intelligence that Mrs. Robinson had stolen this vast amount of public
7
Case 4:11-cv-00358 Document 1 Filed in TXSD on. 01 /26/11 Page 8 of 15
money and that Benji's was in effect nothing more than a scam being conducted for the
personal benefit of Mrs. Robinson.
36. The proposition that $3 million m public funds was missing and had been
pocketed by Mrs. Robinson formed no part of any open meeting held on September 13,
2010, no part of any decision by the interim board of managers, and was not reported by
any news organization on September 14, 2010. It only arose after it became clear that
Benji's was not going to "take it lying down" in regard to the arbitrary and unlawful
decision to immediately close the school.
37. All the current defendants in No. 4-10-cv-0349 deny making any such statement
to the news media. (Docket Nos. 22 and 23 at~ 57).
38. It remains for discovery to reveal the original source of this devastating calumny.
39. Some credence may be lent to this denial because only one news organization saw
fit to publish the accusation. 1 To believe the Defendants is to believe that one news
organization concocted the story on its own. That one news organization is Houston
ABC Channel 13, KTRK, ("KTRK"), a television station owned by, The Walt Disney
Company, as confirmed by The Walt Disney Company's most recent annual report.
(Exhibit 2).
40. On September 15, 2010, on the 4:30 PM news, Houston ABC Channel 13, KTRK,
in studio reporter Ilona Carson and field reporter Cynthia Cisneros aired a two and a half
minute segment on the situation at Benji's. Cisneros said, "According to the State
millions in tax payer dollars cannot be accounted for." After playing clips of a parent,
1
KTRK's September 15, 2010 story need only be compared to KHOU or Houston Chronicle, (infra,
Exhibit 6), stories of the same date which both reported that the Benji's receives more than $3 million
annually from the state, but neither report by these other news organizations suggest the entire amount of
public funds received by Benji's over the preceding year were unaccounted for and had been
misappropriated.
8
Case 4:11-cv-00358 Document 1 Filed in TXSD on 01/26/11 Page 9 of 15
Shanika Thompson, and of Benji's spokesmen, Richard Johnson, Cisneros went on to
say, "The state closure is based on a lack of sufficient financial records, meaning the state
doesn't know where over three million dollars of taxpayer money given last year has
been spent." A transcript of the entire broadcast is attached hereto. (Exhibit 3). The
video was later published on ABC's website, along with a printed article "Defiant leaders
refuse to close school," under Cynthia Cisneros byline. Cisneros wrote: "For the state,
the issue is simple - where is the money? They say millions of taxpayer dollars are
unaccounted for .... The state closure is based on a lack of sufficient financial records,
meaning the state doesn't know where the more than $3 million of taxpayer money given
last year has been spent. .. " (Exhibit 4).
41. The article generated 18 Facebook recommendations and 29 comments on
KTRK's website, including:
4. We have been caught with our hand in the cookie jar, shine the activist
bat signal and run out the race card.
***
10 .... I saw the television report of this story last night, and I am suprised
[sic] this school is still open. In true ghetto fashion, our race was made
shame of one again. My prayers go out to the children, because most of
them are delinquents and truants, that no public school will accept them ....
11 .... poor management.
***
23. Think about the former TSU President and all the other crooked
charter schools that have been the news lately. What do they have in
common?
***
26. It is the money's fault. Those $$$$ stuck their heads up and the
people in charge decided they need them for themselves more than the
children.
***
29. I don't understand why they are so upset about the school being
closed up. If they had the proper paperwork, could account for all that
money and follow the rules like every other school then they wouldn't
have this problem.
9
Case 4: 11-cv-00358 Document 1 Filed in TXSD on 01 /26/11 Page 10 of 15
(Exhibit 4).
42. On September 15, 2010, My Fox Houston ran a similar story; however, it made
no mention that "millions of taxpayer dollars are unaccounted for". Yet, readers
obviously now aware of this allegation posted the following:
Jasmine. I use to teach at this school and this is BULL BULL ... RACE
has absolutely NOTHING to do with how misleading this woman Theola
Robinson is and this school. TEA did the right thing ... and yes I am
AFRICAN AMERICAN! This is not a race thing .. this woman really is a
thief ...
***
yjones. Theola will never be able to show where the money has gone she
is a crook.
(Exhibit 5).
43. The Houston Chronicle also ran a story on September 15, 2010, that made no
mention of "millions of taxpayer dollars are unaccounted for." Yet, it had readers saying:
Gspencer. Where did the $3,300,000.00 for last year go?
***
RBBR. Something [sic] stinks. Let's get a PI to do an asset search on the
"chief executive" and you'll find the missing money.
***
babydolly. I wonder if Ms. Robinson made a hefty salary and paid herself
first? Where IS the money? I can't blame the state for shutting it down.
Sooner the better.
***
RBBR. ... Why didn't you find out what "Chief Executive" Theaola
Robinson's annual compensation is? Bet she's not going broke. Dollars
to donuts she drives a new Mercedes and lives in an trendy upscale
neighborhood ... while Benji's swirls down the drain.
***
A-square ... Theaola Robinson where is the remaining 2.3M? TEA should
look into her & her crownies' bank accounts/personal assets,.just follow
the money and you'll find the answer.
(Exhibit 6).
10
Case 4:11-cv-00358 Document 1 Filed in TXSD on 01 /26/11 Page 11 of 15
44. On September 16, 2010, the second part of the plan was executed by TEA
Commissioner Scott in a letter to Ron Rowell, as Interim Superintendent of Benji's,
having replaced Mr. Schneider after his sudden resignation. The letter, while discussing
financial concerns, does not mention anything about $3 million in public funds being
unaccounted for. Instead, in what can only be characterized as a desperate attempt to
bring the TEA action within some semblance of at least the letter of the law,
Commissioner Scott, arbitrarily and without any evidence, deemed that the peaceful
defiance to the TEA's arbitrary action, the determination to simply continue holding
school as usual, was itself endangering the safety, health, and welfare, of the students,
thus warranting his immediate action. (No. 4-10-CV-03498, Docket No. 19-7).
45. The story was repeated by Defendant later that month, on September 25, 2010,
when KTRK's Dave Ward and Gina Gaston in-studio and Jessica Willey reporting, aired
a nearly three minute segment on the situation at Benji's. The video was later published
on KTRK's website, along with a printed article "Questions raised over charter school's
finances," under Jessica Willey's byline. Willey wrote: "Where is taxpayer money going
and how is a taxpayer-owned building being used? ... The Texas Education Agency says it
doesn't know how Benji's spent $3 million of taxpayer money, and a lease agreement
obtained by Eyewitness News raises even new questions."2 (Exhibit 7).
46. The article generated 11 comments on KTRK's website, including:
1. ... Call and ask where the money went. I'm sure Theola [sic] Robinson
tell you.
2. Could it be in somebody's pockets?
2
The "lease" was no lease but merely a bookkeeping entry labeled. "rent in kind," fully accounted for and
well known to the TEA, and specifically to Mr. Seale and Dr. Hooper, though review of the Benji's budgets
and statements of financial activity. (Exhibit 8).
11
Case 4:11-cv-00358 Document 1 Filed in TXSD on 01/26/11 Page 12 of 15
(Exhibit 7).
47. On September 22, 2010, Emi Johnson of the TEA recommended the continued
suspension of charter operations and funding, based not on the financial condition of the
school, not on $3 million being stolen, but on the civil disobedience led by Mrs.
Robinson following September 13, 2010, of simply continuing to keep the school open,
having endangered the safety, health, and welfare of the students. (No. 4-10-CV-03498,
Docket 19-8).
48. The filing of an action in this Court spurred the next incarnation of KTR.K's story
on September 27, 2010. The video was later published on ABC's website, along with a
printed article "Lawsuit filed against Benji's Academy," under Jessica Willey's byline.
Willey wrote: "The Texas Education Agency doesn't know how the academy spent $3
million of state money." (Exhibit 9).
49. The article generated 15 comments on KTRK's website, including:
7 .... Ms. Robinson should be arrested, not because she's black, because
she's a thiefl
8. I am just amazed as to why the parents are not suing Theaola Robinson
and the old Board of Director, they are the ones who are stealing their
children's future ...
***
12. You bet they want to keep it open, if its closed an investigation will
show they were all taking money not to mention they won't be able to
afford their new house, Hummer and boat payments the school and
taxpayers were helping to buy.
(Exhibit 9).
50. KTR.K's Cisneros returned to the story on September 30, 2010. The video was
later published on KTRK's website, along with a printed article "Charter school fight
goes to federal court," under Cynthia Cisneros's byline. Cisneros wrote: "The state says
12
Case 4: 11-cv-00358 Document 1 Filed in TXSD on 01 /26/11 Page 13 of 15
it had no choice, alleging Benji's did not provide proper financial records to account for
over $3 million in state funding for the past year." (Exhibit I 0).
51. The article generated 14 comments on KTRK's website, including:
11. The state is not to blame here. They need to sue the administrators to
find out where the money is followed by prosecution of those who may
have "mis-spent" it. Put blame where blame is due!
***
13. Simple! No money! Can not account for $9 [sic] million! Close the
doors and take the administrators to court for mis-use of government
(your) money ....
(Exhibit 10).
52. The KTRK version of the saga was continued by Katie McCall on October 11,
2010. The video was later published on ABC's website, along with a printed article
"Organizers plan to reopen troubled charter school," under Katie McCall's byline.
McCall wrote: "On September 14, the TEA ordered Benji's Academy to close, citing
millions of dollars in state funding that was not accounted for." (Exhibit 11 ).
53. The article generated 10 comments on KTRK's website, including:
2. the only thing organized about this plan is the organized crime
***
5.... the parents are supporting the administrators who have a little
charisma along with a talent for lining their pockets ...
6 .... The mgmt of this facility, will continue to steal under the guide [sic]
of a school, where the kids will continue to suffer[r]
(Exhibit 11 ).
54. My Fox Houston ran a story about Benji's reopening under new management on
October 11, 2010, with no mention of KTRK's reported "millions of dollars in state
funding that was not accounted for." Yet, reader comments on Fox's website, reflected
13
Case 4: 11-cv-00358 Document 1 Filed in TXS D on 01 /26/11 Page 14 of 15
the damage to Mrs. Robinson's reputation created by KTRK's statements: "Why isn't
Theaola Robinson being charged for misappropriated tax payer funds?" (Exhibit 12).
55. The series of stories broadcast by Defendant, The Walt Disney Company, are
untrue and are libelous defamations as defined by Texas law.
56. These libelous defamations were not privileged and were made with malice and
the express intent to destroy the reputation of Mrs. Robinson.
57. To the extent any statement in the libelous defamations published or uttered as
part of the television broadcast set forth above were uttered or published by one other
than The Walt Disney Company, The Walt Disney Company failed to exercise due care
to prevent the utterance or publication of the statements.
58. The Court and factfinder need not indulge in any ratiocination to determine how a
person of ordinary intelligence would interpret the complained of statements, whether the
complained of statements were capable of defamatory meaning, or whether the public
generally, and those who know or are acquainted with Mrs. Robinson specifically,
understood that the statements referred to Mrs. Robinson. All that is amply demonstrated
by the public comments detailed herein, matters not available to courts and juries at the
time these legal standards were developed but readily available in the modem digital age
and sufficient to prove beyond doubt the wanton and malicious destruction of a good and
honest person's reputation.
WHEREFORE, premises considered, Plaintiff demands judgment:
1. For libel per se damages found by the trier of fact without proof of special
damages;
2. For actual damages and exemplary damages for malicious libel; and
14
Case 4:11-cv-00358 Document 1 Filed in TXSD on 01126111 Page 15 of 15
3. For all other relief, general and special, legal and equitable, to which she may
show herself justly entitled.
Respectfully submitted,
Isl Berry Dunbar Bowen
Berry Dunbar Bowen
Fed ID No.: 6177
State Bar No.: 02721050
3014 Brazos Street
Houston, TX 77006
(713) 521-3525 (voice)
(713) 521-3575 (fax)
berrybowen@comcast.net
ATTORNEY IN CHARGE FOR
PLAINTIFF
15
APPENDIX TAB J:
Motion for Leave to Amend and
Supplement Complaint in
Shenitha Comb, et al. v. Rick
Schneider, et al., Cause No. 4-
10-CV-03498, in the Southern
District of Texas, Houston
Division (WITHOUT
EXHIBITS)
Case 4:10-cv-03498 Document 44 Filed in TXSD on 06/24/ll Page 1of4
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SHENITHA COMB; SHERITA SIMS- §
COTTON; MINNIE ENGLISH; §
TRACEY EADEN; LAKEISHA § Civil Action No. 4-10-cv-03498
PARI<.ER; NAOMI FLEMMING; IRIS §
WILLIAMS; BEYERL Y BASHIR; § Jury Trial Requested
BRENDA WITHFIELD; KATHY §
BUTLER; DEMETRIUS HAWKINS; §
RANDOLPH NICHOLS; and NANCY §
WATTA, §
§
Plaintiffs, §
§
§
v. §
§
RON ROWELL, SUPERINTENDENT §
BENJI'S SPECIAL EDUCATIONAL §
ACADEMY, INC.; KAY CARR, §
MEMBER BOARD OF MANAGERS, §
BENJI'S SPECIAL EDUCATIONAL §
ACADEMY, INC.; JAMES HOLMAN, §
MEMBER BOARD OF MANAGERS §
BENJI'S SPECIAL EDUCATIONAL §
ACADEMY, INC.; EARNESTINE §
PATTERSON, MEMBER BOARD OF §
MANAGERS OF BENJI'S SPECIAL §
EDUCATIONAL ACADEMY, INC.; §
and ROBERT SCOTT, §
COMMISSIONER TEXAS §
EDUCATION AGENCY, §
§
Defendants. §
PLAINTIFFS' MOTION FOR LEAVE TO AMEND
AND SUPPLEMENT COMPLAINT
Pursuant to Rules 15(a) and 15(d), Fed.R.Civ.P., Plaintiffs move for leave to
amend and supplement in order to strengthen their allegations both factually and
jurisdictionally and to effect the joinder of parties both plaintiff and defendant. The facts
alleged in the proposed third amended complaint demonstrate:
Case 4:10-cv-03498 Document 44 Filed in TXSD on 06/24/11 Page 2 of 4
1. The proposed amendment joins parties plaintiff who complain of injuries
arising from the same occurrence as alleged by current parties plaintiff. All plaintiffs
seek redress under 42 U.S.C. § 1983. All issues of fact and law giving rise to the claims
are identical. Only the claims for damages differ as to each plaintiff in nature and
amount.
2. As stated Docket Entry No. 8, part of the story here is the deliberate
dissemination of false and misleading information through the media on September 15,
2010, that stated "over 3 million dollars is unaccounted for," successfully creating a
public perception that Benji's management and Mrs. Theaola Robinson particularly had
simply been running a scam and had stolen millions in public money. This was done in
order to crush at the outset public support for the Benji's community's exemplary
campaign of civil disobedience to clearly unlawful state action. This conduct was
committed the day after the unlawful closure in a direct attempt of furtherance of the
state's efforts to deprive constitutional rights and summarily close Benji's. This is one
occurrence, one event inflicting multiple harms on variously situated persons. The
joinder of parties defendant properly brings before the Court all parties responsible to
redress the harm intentionally inflicted by this calumny maliciously published in order to
quash peaceful resistance to unlawful state action depriving constitutional rights, itself
resulting in grievous damage of various character and amount, to each plaintiff
individually.
3. Joinder of all parties was sought to be effected by the agreed date, but all
previous joinders were stricken as procedurally defective.
2
Case 4:10-cv-03498 Document 44 Filed in TXSD on 06/24/11 Page 3 of 4
4. Further facts have come to light, even without discovery, which has just
commenced, and the proposed amendment also supplements the previous pleading by
setting forth events which have happened since the date of the pleading sought to be
amended.
The question on the instant motion is whether, pursuant to Rule l 5(a),
Fed.R.Civ.P., Plaintiffs should be granted leave to amend and to file the attached
amended complaint in this action. A memorandum in support of Plaintiffs' position is
attached.
WHEREFORE, movants respectfully request and pray that the Court conclude
that justice so requires and freely give leave to Plaintiffs to file the attached amended
complaint. A form of order granting the requested relief accompanies this motion.
Respectfully submitted,
/s/ Berry Dunbar Bowen
Berry Dunbar Bowen
Fed ID No.: 6177
State Bar No.: 02721050
3014 Brazos Street
Houston, TX 77006
(713) 521-3525 (voice)
(713) 521-3575 (fax)
berrybowen@comcast.net
ATTORNEY IN CHARGE FOR
PLAINTIFFS
Of Counsel:
Robert A. Jones, Esq.
State Bar No.: 10941500
2211 Norfolk Street, Suite 600
Houston, TX 77098
(713) 526-1171 (voice)
(713) 528-3415 (fax)
3
Case 4:10-cv-03498 Document 44 Filed in TXSD on 06/24/11 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served to the
parties listed below either via electronic means as listed on the Court's ECF noticing
system or via United States first-class mail, on June 24, 2011.
Nancy K. Juren, Esq.
Drew L. Harris, Esq.
Office of the Attorney General
PO Box 12548, Capital Station
Austin, TX 78711
/s/ Berry Dunbar Bowen
Berry Dunbar Bowen
4
APPENDIX TAB K:
Nonparty KTRK Television,
Inc.' s Opposition to Plaintiffs'
Motion for Leave to Amend and
Supplement Complaint in Cause
No. 4-10-CV-03498 (WITHOUT
EXHIBITS)
Case 4:1 O-cv-03498 Document 47 Filed in TXSD on 07/07/11 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SHENITHA COMB, SHERITA §
SIJVlS-COTTON, MINNIE ENGLISH, §
TRACEY EADEN, LAKEISHA PARKER, §
NAOMI FLEMMING, IRIS WILLIAMS, §
BEVERLY BASHIR, BRENDA §
WITHFIELD, KATHY BUTLER, §
DEMETRIUS HAWKINS, RANDOLPH §
NICHOLS, NANCY 'VATTA, SEDALIA §
PIPPINS, RUFUS PORTER, ANDREA §
JOHNSON, JACQUELINE BELL-TORAN,§
THEAOLA ROBINSON, URICA §
SAMUEL, CHARLES SOLARI, and §
BENJI'S SPECIAL EDlJCA TIONAL §
ACADEMY, INC., §
Plaintiffs, §
§
v. § CIVIL ACTION NO. 4-10-CV-03498
§
RICK SCHNJ~IDER, FORMER § JURY TRIAL REQUESTED
SUPERINTENUENT BEN.Jl'S SPECIAL §
EDUCATIONAL ACADEMY; RON §
ROWELL, SUPERINTENDENT BENJI'S §
SPECIAL EDUCATIONAL ACADEMY; §
KAY CARR, MEMBER BOARD OF §
MANAGERS, BEN.JPS SPECIAL §
EDUCATIONAL ACADEMY; .JAMES §
HOLMAN, MEMBER BOARD OF §
MANAGERS, BENJI'S SPECIAL §
EDUCATIONAL ACADEMY; §
EARNESTINE PATTERSON, MEMBER §
BOARD OF MANAGERS OF BENJI'S §
SPECIAL EDUCATIONAL ACADEMY; §
ROBERT SCOTT, COMMISSIONER, §
TEXAS EDUCATION AGENCY; THE §
WALT DISNEY COMPANY; ABC §
TELEVISION NETWORK, INC.; CC §
TEXAS HOLDING CO., INC.; and §
KTRK TELEVISION, INC., §
Defendants. §
Case 4: 1O-cv-03498 Document 47 Filed in TXSD on 07 /07 /11 Page 2 of 9
NONPARTY KTRK TELEVISION, INC.'S OPPOSITION TO PLAINTIFFS' MOTION
FOR LEA VE TO AMEND AND SUPPLEMENT COMPLAINT
Comes Now, KTRK Television, Inc. and files this its Nonparty Opposition lo Plaintiffs' Motion
for Leave to Amend and Supplement Complaint, and in support thereof would show the Court that one
plaintiff in the foregoing matter, Theaola Robinson, has previously filed a lawsuit against The Walt
Disney Company for which she could never establish jurisdiction, let her summons lapse and ultimately
dismissed the lawsuit without prejudice. She is now trying to incorporate her dismissed libel claims
against media defendants for which there is no jurisdiction into this Section 1983 case against state
actors. Not only do none of the Plaintiffs besides Ms. Robinson have an interest in any claim against the
media, but also, Ms. Robinson's claim, if one exists, belongs only in state cout1 against KTRK
Television, Inc. (and none of the other entities she seeks to join in this lawsuit through her current
Motion for Leave to Amend) (Docket Entry No. 44). In short, plaintiff Robinson is seeking to have the
Cou11 allow her to join improper parties and improper claims after the deadline lo amend her pleadings.
I.
PROCEDURAL BACKGROUND
1. On or about January 26, 2011, one of the plaintiffs in the foregoing case, Theaola
Robinson, through her attorney of record, Berry Dunbar Bowen, filed a completely separate Complaint
against The Walt Disney Company, Robinson v. The Walt Disney Company, Cause No. :/: J l-cv-00358,
S.D. Tex. (J. Sim Lake) (attached hereto as Exhibit A). The jurisdiction vvas allegedly ba706 S.W.2d 135, 139 (Tex. App. - Dallas 1986, writ ref'd n.r.e.). More specifically, Disney is a
Delaware corporation with its principal place of business in Burbank, California. Disney and KTRK are
separate corporate entities and maintain separate corporate identities. Disney has never had any
continuous or systematic contacts with Texas; it is not qualified to do business in Texas, has not
conducted business in Texas, has not incurred or paid any taxes in Texas, has not appointed an agent for
service of process in Texas, has no office or pt ace of business in Texas, has no employees in Texas and
owns no real prope1iy in Texas. See Exhibit B (and attachments thereto). Thus, there is no basis for the
comis to exercise personal jurisdiction over Disney in Texas, and courts time and again have held that
non-resident Disney is not su~ject to personal jurisdiction in Texas and that Disney cannot be sued for
the alleged conduct of its remote subsidiaries simply for being its parent corporation. See, Davis v. Star-
Telegram Operating, LTD., 2000 WL 898839, 29 Media L Rep. 1755 (Tex. App. - Dallas 2000, writ
denied); Disney Ente17Jrises, Inc. v. fa'prit Finance, Inc., 981 S.W.2d 25 (Tex. App. - San Antonio
1998, writ dism'd w.o.j.) (attached to Exhibit B-1). See also, Davidson v. Time Warner, 1997 WL
405907 (S.D. Tex. 1997) (attached to Exhibit B-3) (J. Rainey held no jurisdiction over parent company,
Time Warner, even though its subsidiaries were in the forum state and subject Lo Texas' jmisdiction.
Holding Co., Inc. Further, there is no entity "ABC Television Network, Inc." and, therefore, no such entity can be sued.
KTRK Television, Inc. would be the only proper party to a libel claim against the television station. For convenience sake,
ull of the proposed new defendants are referred to collectively herein as "proposed media defendants."
DlJ2675529vl 3
Case 4:1 O-cv-03498 Document 47 Filed in TXSD on 07/07/11 Page 4 of 9
The court found that simply having a subsidiary corporation in the forum state does not subject the
parent company to the personal jurisdiction of the forum state.)
4. On numerous occasions, Plaintiff Robinson was advised of the corporate and
management structure, the lack of jurisdiction over Disney and the identity of the correct potential
defendant - KTRK Television, Inc. In addition, Plaintiff Robinson was advised of the correct venue
which is state court for her libel claims against KTRK. Still, however, Plaintiff Robinson refused to file
suit in state court against the proper party.
5. As recently as May 11, 2011, Plaintiff Robinson was supplied with four more rulings
from Texas courts demonstrating there is no jurisdiction over Disney. See Exhibit B-5. Having not
heard back from Plaintiff Robinson's counsel, Disney assumed the matter was closed only to learn, by
happenstance, of this latest attempt to drag Disney, ABC Television Network, Inc. (an entity that does
not exist), CC Texas Holding Co., Inc. and KTRK into a pending civil rights lawsuit that bas been
ongoing for more than ten months and for which there is a trial setting in Jess than a year. Plaintiff
Robinson's counsel never afforded counsel for the proposed media defendants the courtesy of a copy of
the proposed Complaint or a "heads up" that the Motion for Leave to Amend had been filed.
6. ln the prior matter, Plaintiff Robinson never did effectuate service on Disney within 120
days after the Complaint was filed as required by Federal Rule of Civil Procedure 4(m) in the Robinson
v. Disney matter.
7. Instead, on or about June 2, 2011 (after the deadline had passed to join additional parties
in the case before this couii - C.A No. 4-1 O-CV-03498)2, Plaintiff Robinson filed a Notice of Dismissal
and, despite having several exchanges of conespondence with Disney's counsel over a period of
approximately two months, never notified Disney's counsel of the dismissal. A true and correct copy or
2
A true and correct copy of the Scheduling/Docket Control Order is attached hereto as Exhibit B-6.
Dl.!26755291'1 4
Case 4:1 O-cv-03498 Document 47 Filed in TXSD on 07/07/11 Page 5 of 9
the Notice of Dismissal and Order of Dismissal without Prejudice signed by Judge Lake arc attached
hereto as Exhibits B-7 and B-8.
II.
ARGUMENT
8. According to this Court's Scheduling Order (Docket Entry No. 35, 36), the deadline to
add new parties passed on June l, 2011. It was not until June 24, 2011 that Plaintiffs filed their Motion
for Leave 10 Amend and Supplement Complaint (Docket Entry No. 44). The claim Plaintiffs are seeking
to add is a stale law libel per se claim that only plaintiff Robinson holds and one that can only be
correctly brought against KTRK Television, Inc. in Harris County, state court pursuant to the mandatory
venue provision contained in Tex. Civ. Prac. & Rem. Code § 15.017. Contrary to the assertions
contained in Plaintiffs' Motion for Leave to Amend and Supplement Complaint, the proposed amended
pleading does not ".strengthen their allegations foctually and jurisdictionally" 3 because all it does is seek
to join improper parties over which there is no jurisdiction and join claims that have no bearing on the
civil rights issues plead against the state actors which are at the crux of the lawsuit before this Court.
9. With regard to Plaintiffs' attempt to join improper parties, the affidavit of Laura Lee
Prather and exhibits attached thereto establish that Disney is an indirect, remote parent corporation that
is a nonresident to which Texas' long~mm statute does not extend. Multiple cases finding no
jurisdiction over Disney are attached to the varim.is letters that were previously sent to Plaintiff
Robinson's counsel, Berry Bowen. See Exhibits B-1, B-3, and B-5. Further, like Disney, CC Texas
Holding Co. is also a remote, indirect owner which is incorporated in Delaware and has its principal
place of business in New York. It is not registered to do business in Texas and there is no personal
jurisdiction over such an entity that has nothing to do with the day-lo-day management of KTRK-TV.
Finally, there is no entity "ABC Television Network, Inc." as listed in Plaintiffs' proposed Complaint.
' D.E. No. 44, p. I.
DlJ2675529v I 5
Case 4:10-cv-03498 Document 47 Filed in TXSD on 07/07/11 Page 6 of 9
10. KTRK Television, Inc. owns and operates the Houston television station KTRK, and i r
there arc any claims to be made arising out of a broadcast that aired on KTRK, the only proper
defendant is KTRK Television, Inc. See Exhibit B (and attachments thereto).
11. With regard to Plaintiffs' attempt to add improper claims, Plaintiffs themselves state
"[a]ll plaintiffs seek redress under 42 U.S.C. §1983. All issues of fact and law giving rise to the claims
are identical. " 1 Plaintiffs also claim that all actions were taken "in a direct attempt of furtherance of the
state's efforts to deprive constitutional rights .... " s This is simply not true. K'I'RK is neither a state actor
nor is the alleged claim against KTRK made under Section 1983. In looking at the Complaint filed in
Robinson v. Disney, Cause No. 4: J J-CV-00358, the only claim she attempts to articulate is for libel per
se. See Exhibit A, p. 14. There was no Section 1983 claim alleged against Disney because none can be
brought against an entity that is not a state actor.
12. Plaintiffs now attempt to circumvent the lack of jurisdiction over the proposed media
defendants by claiming this Court should exercise supplemental jmisdiction, pursuant to 28 U.S.C.
§1367, over a state Jav·i claim against the proposed media defendants. Section 1367, however, does not
apply if the basis for original jurisdiction is founded upon diversity. Because there is no federal question
claim aguinst the proposed media defendants, diversity is the only potential basis for jurisdiction -
albeit flavicd since there is no personal jurisdiction over any of the proposed out of slate media
defendants.
13. Plaintiff's' attempt to cloak the proposed media defendants with the alleged violations of
§ 1983 which they are pursuing against the existing defendant state actors fails on its face. In Plaintiffs'
Joinder, they combine both the addition of Benji's Special Educational Academy, which is making
Section 1983 claims against the nonmedia defendants with the attempt to join the proposed media
defendants, against whom no Section 1983 claims are being brought. In comparing the Joinder of
"See Plaintiffs' Motion for Leave to Amend and Supplement Complaint, para. I. (Docket Entry No. 44).
5
Id at para. 2.
Dl.!26755291'! 6
Case 4:1 O-cv-03498 Document 47 Filed in TXSD on 07/07/11 Page 7 of 9
Benji's Special Educational Academy (Docket Entry No. 37) to the prior Complaint against Disney
(attached hereto as Exhibit A), it is obvious that Plaintiff Robinson has simply cut and pasted virtually
her entire dismissed Complaint against Disney 6 into the new Joinder pleading. The only new
information contained in the Joinder is Ms. Robinson's claims that TEA deprived her of her employment
without clue process.
14. Under § 1983, a plaintiff must show a deprivation of a federal right by a stale actor. See
Nesmith v. Taylor, 715 F.2d 194, 195 (5 111 Cir. 1983). To the extent Plaintiffs attempt a Section 1983
claim against the proposed media defendants, as non-governmental actors, the proposed nonmedia
defendants can only be held liable if Plaintiffs can allege and prove that, as private actors, the proposed
nonmedia defendants were acting under "color of law." To do such, Plaintiffs are required to show that
the proposed nonmedia defendants were "willful pru1icipant[s] in joint action with the State or its
agents." Dennis v. Sparks, 449 U.S. 24, 27, 101 S. Ct. 183 (l980)(emphasis added). Plaintiffa have not
even alleged such in their proposed Third Amended Complaint. (Docket Entry No. 44-3). Thus, because
there is no federal question vis a vis the proposed nonmedia defendants, there is no basis for
supplemental jurisdiction under 28 U.S.C. §1367.
15. As previously indicated in numerous communications with Plaintiff Robinson's counsel,
if there is a claim to be had against KTRK for something that it broadcast, KTRK Television, lnc. is the
conect party defendant for any such libel per se claim that might be alleged. Because KTRK
Television, Inc. is a nondiverse party, there is no basis for federal court jurisdiction. Further, because
the claims are state Jaw claims for libel per se, pursuant to Tex. Civ. Prac. & Rem. Code §15.017,
mandatory venue exists in Harris County state com1.
b The only difference b<:'tween the dismissed Complaint against Disney and the Joinder is that Plaintiff' Robinson has removed
her comments about her public figure status (para. 8) and her comments about KTRK being the only entity reporting on the
misuse of funds (para. 39). Telling, as well, is the fact that she removes paragraph 28 in which she had previously alleged
information that TEA had given to the media.
DL/267 5529v I 7
Case 4: 1O-cv-03498 Document 4 7 Filed in TXSD on 07107 /11 Page 8 of 9
JU.
CONCLUSION AND PRAYER
16. Plaintiff Robinson's attempt to join new parties, out of time, in this lawsuit together with
the wholesale failure to notify Disney's counsel of either the dismissal of the prior case (Cause No. 4: 11-
CV-00358) or the attempt to add Disney, CC Holding Co., Inc., and KTRK Television, Inc. to the
pending case are simply an attempt to circumvent the process and have plaintiff Robinson avoid filing
her ovm lawsuit in state court for the claim that she singularly holds against KTRK for libel per se.
Blatant attempts to circumvent the jurisdictional and procedural laws of the federal and state courts
should not be rewarded, and Plaintiffs' Motion for Leave to Amend and Supplement Complaint should
be denied.
WHEREFORE PREMISES CONSIDERED, KTRK Television, Inc. prays that Plaintiffs'
Motion for Leave to Amend and Supplement Complaint be denied, that this Court refuse to allow
Plaintiffs to amend their complaint to add any claims against The Walt Disney Company, ABC
Television Network, Inc., CC Texas Holding Co., Inc., and KTRK Television, Inc., and for such other
and further relief to which it is justly entitled.
Respectfully submitted,
SEDGWICK, LLP
Catherine L. Robb
State Bar No. 24007924
9 I 9 Congress Avenue, Suite 1250
Austin, TX 7870 l
Telephone: (512) 481-8400
Facsimile: (512) 481-8444
ATTORNEYS FOR NONPARTY KTRK TELEVISION,
INC.
DL/2675529vl 8
Case 4:10-cv-03498 Document 47 Filed in TXSD on 07/07/11 Page 9 of 9
CERTIFICATE OF SERVICl~
I hereby certify that on the 7th day of July, 2011, I electronically filed the foregoing document
with the Clerk of the Court for the United States District Court, Southern District of Texas, using the
CM/ECF system, which will send notification of such filing to the following:
Plaint([f's Counsel
Berry Dunbar Bowen
3014 Brazos Street
Houston, TX 77006
And
Robe11 A. Jones
221 Norfolk Street, Suite 600
Houston, TX 77098
Counsel.for Benji's Special Educational Academy
Lisa R. McBride
Christopher B. Gilbert
Merri Schneider-Vogel
Thompson & Horton, LLP
3200 Southwest Freeway, Suite 2000
Houston, TX 77027
Counsel.for D~fendanls Ron Rowell, Jatnes Holman,
Earnestine Patterson, Robert Scott, Kay Karr and Rick Schneider
Drew L. Harris
Nancy K. Juren
Office of the Attorney General
P.O. Box 12548
Austin, TX 78711-2548
DL/2675529vl 9
APPENDIX TAB L:
Notice of Dismissal in Cause
No. 4-1 l-CV-0358
Case 4:10-cv-03498 Document 47-2 Filed in TXSD on 07/07/11 Page 69 of 70
Case 4:11-cv-00358 Docurnent 4 Filed in TXSD on 06/02/11 Page 1 of 1
IN THE UNITED STATES DISTRJCT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
THEAOLA ROBINSON, §
§
Plaintiff, § Civil Action No. 4: 11-CV-00358
§
§ Jury Trial Requested
v. §
§
THE WALT DISNEY COMP ANY, §
§
Defendant. §
NOTICE OF DISMIS~
Pursuant to Rule 41(a)(1 ), Fed.R.Civ.P., Plaintiff, Theaola Robinson, respectfully
gives notice of her voluntary dismissal of this action. In support thereof Plaintiff would
respectfully show the Comi as follows: Defendant, The Walt Disney Company, has
neither been served nor answered nor filed a motion for summary judgment in this action.
The claims made in this action have been raised in case no. 4: 1O-cv-03498.
Wherefore, premises considered, Plaintiff prays that the her claims against The
Walt Disney Company be dismissed without prejudice, with all costs of court being
assessed against the party who incurred them.
Respectfully submitted,
/s/ Berry Dunbar Bowen
Berry Dunbar Bowen
Fed ID No.: 6177
State Bar No.: 02721050
3014 Brazos Street
Houston, TX 77006
(713) 521-3525 (voice)
(713) 521-3575 (fax)
berrybowen@comcast.net
ATTORNEYINCHARGEFOR
THEAOLA ROBINSON
EXHIBIT
I 7
APPENDIX TAB M:
Memorandum and Order in
Cause No. 4-1 O-CV-03498
Case 4:10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 1of17
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SHENITHA COMB, et al, §
§
Plaintiffs, §
§
vs. § CIVIL ACTION NO. H-10-3498
§
BENJI'S SPECIAL EDUCATION §
ACADEMY, et al, §
§
Defendants. §
MEMORANDUM AND ORDER
Pending before the Court is a Motion for Summary Judgment filed by Defendants
James Holman, Kay Karr, Earnestine Patterson, Ron Rowell, Rick Schneider, and Robert
Scott (collectively, the "Defendants"). (Doc. No. 51.) After considering the motion, all
responses thereto, and the applicable law, the Court determines that the motion must be
GRANTED.
I. BACKGROUND
This is an action by a group of parents, guardians, and teachers challenging the
abrupt closure of Benji's Special Educational Academy, Inc. ("the Academy" or
"Benji's"). Plaintiffs allege that the closure of Benji's violated a number of their rights.
Parents and guardians of former Benji's students (the "Parent-Plaintiffs") bring claims for
violations of the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. §§
1400-1490, and 42 U.S.C. § 1983. Randolph Nichols and Nancy Watta, former teachers
at Benji's who lost their jobs when the school closed (the "Teacher-Plaintiffs"), also
Case 4: 10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 2 of 17
claim violations of 42 U.S.C. § 1983. Defendants are Rick Schneider, the former
superintendent of Benji's; Ron Rowell, the current superintendent; Robert Scott, the
Commissioner of the Texas Education Agency ("TEA"); and Kay Carr, James Holman,
and Earnestine Patterson, members of the Board of Managers installed at Benji's by the
TEA.
The facts of this case-which are undisputed, unless otherwise noted-have been
discussed in two prior Orders from this Court. (Doc. Nos. 16, 50.) The Court outlines the
facts of the case once again, this time considering them in the context of the pending
summary judgment motion.
In 1998, Benji's was granted an open-enrollment charter (the "Charter") by the
Texas State Board of Education ("SBOE"). (Pl. Am. Compl. ~ 24, Doc. No. 19.) The
Charter specified that it would remain in effect from November 2, 1998 through July 31,
2003, unless renewed or terminated. Paragraph 6 of the Charter states that it may be
renewed upon "timely application" by the Academy for an additional period of time to be
determined by the SBOE. Upon the Charter's expiration on July 31, 2003, the Academy
made a timely application for renewal. The TEA allowed the Academy to continue
operating during the pendency of the renewal application.
On July 8, 20 I 0, the Commissioner of the TEA notified the Academy's then-
executive director, Theaola Robinson, that he intended to appoint a Board of Managers
and a new superintendent in light of the ongoing financial, academic, and governance
issues with the Academy. (Pl. Am. Compl., Ex. 2 at 1.) On August 19, 2010, a "record
review" hearing was held to provide Ms. Robinson and the Academy with an opportunity
to respond to the Commissioner's plan to appoint a Board of Managers and a new
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superintendent. (Pl. Am. Comp!., Ex. 2 at 2.) On September 3, 2010, the Commissioner
sent a letter to Ms. Robinson and the members of the Academy's board of directors
notifying them that he had decided to appoint a Board of Managers and a new
superintendent, Rick Schneider. (Pl. Am. Comp!., Ex. 2 at 1, 4.) Under Texas Education
Code ("TEC") § 39.112(b), the Commissioner's appointment of a Board of Managers
suspended the powers of the Academy's board of directors and of Ms. Robinson.
On September 6, 2010, the interim Board of Managers held a meeting at which
they received a report that Benji's was in an urgent financial condition, and might not be
able to continue operating. (Doc. No. 51-2 at 17. 1) On September 10, 2010, the Board of
Managers posted notice of a meeting that the Board would be holding on September 13,
2010. (Pl. Am. Comp!., Ex. 3.) The notice was accompanied by an agenda stating that
meeting would include "discussion and possible action on suspending school programs
and/or operations due to budget shortfall." (Id. at 3.) In addition, the agenda stated that
the Board would consider the "assignment, reassignment, termination or other action"
with respect to the school's superintendent/CEO, administrative staff, instructional staff,
and other employees. (Id.) Neither the notice nor the agenda referred to the possibility of
permanently closing the Academy or revoking its Charter. At the September 13 meeting,
the Board of Managers voted unanimously to declare financial exigency and to suspend
all school programs until further instruction. (Doc. No. 51-2 at 17.)
On September 14, 2010, the new superintendent, Rick Schneider, provided notice
to students (which was to be taken home to their parents) that the Board of Managers had
1
This exhibit, submitted with Defendants' Motion for Summary Judgment, is a Proposal for Decision
issued by the Administrative Law Judge who heard the appeal by Benji's of the Commissioner's revocation
of the Academy's charter. Plaintiffs do not object to this evidence.
3
Case 4:10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 4 of 17
voted the night before to suspend operations of the school effective at the close of that
very same day (September 14th). (Pl. Am. Compl., Ex. 4.) Schneider's notice included an
attached list of approximately forty schools in the Houston, Aldine, and North Forest
school districts with addresses and phone numbers, and informed parents that they should
make arrangements to enroll their students at other schools beginning the next day. (Id.)
Parents were told that they could pick up their children's school records over the next two
business days between 9:00 a.m. and 3:15 p.m. (Id.) After Thursday, September 16, 2010,
parents would have to contact a regional service center to request their children's records.
(Id.)
Believing the Board of Managers' suspension of operations to be unauthorized,
the Academy's former administrator, Ms. Robinson, along with several other Academy
staff members, engaged in a number of activities to prevent the closure of Benji's. On
September 14, Ms. Robinson and other staff members allegedly told students to rip up the
note from Mr. Schneider to their parents relaying the fact of the Academy's suspension of
operations. (Pl. Am. Compl., Ex. 7 at 3.) Ms. Robinson also apparently told students,
during a school assembly held on September 14, that the TEA did not think the students
were "good enough" to be at the Academy, and that it was shutting down the school for
that reason. (Id.) She told the assembled students that she would not allow Mr. Schneider
to carry out the closure of the Academy. (Id.) Both during the assembly and during an
employees-only meeting that day, Ms. Robinson stated that she would ensure that the
Academy would remain open, and she instructed staff to report to work in the morning as
usual. (Id. at 4.) Thereafter, Ms. Robinson conducted a televised press conference inside
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the Academy informing the public that the Academy would continue operating despite
the decisions of the Board of Managers and Mr. Schneider. (Id. at 4.)
The following day, September 15, 2010, the Academy reopened as an
"unaccredited private school," using the Academy's facility and school buses. (Id. at 5.)
By this point, Mr. Schneider had resigned and been replaced by Ron Rowell as
superintendent of the Academy. Mr. Rowell attempted to prepare students' records for
distribution to their parents, but was refused access to these records. (Id. at 5-6.) Staff
from a regional educational service center similarly were refused entrance to the
Academy. (Id. at 5.)
On September 16, 2010, Commissioner Scott issued an order suspending the
Academy's authority to operate as a charter school. (Id.) In his order, the Commissioner
expressed a finding that conditions at the Academy presented a danger to the health,
safety, or welfare of the students, and based this finding upon the actions of the
Academy's staff and former administration during the previous two days. (Id. at 6.) The
Commissioner's letter indicated that a hearing regarding the suspension would be held on
September 21, 20 I 0, as required by TEC § 12.1162(d).
The hearing was held on September 21 before the Commissioner's designated
hearing officer, Emi Johnson. In a report to the Commissioner dated September 22, 20 I 0,
Johnson stated that conditions at the Academy presented a danger to the health, safety, or
welfare of the students, as evidenced by the following incidents: (1) school staff
instructed students to rip up the communication to parents issued by the school
superintendent notifying parents that the school would suspend operations on September
14; (2) school staff told students that TEA did not think the students were "good
5
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enough"; (3) school staff directed students to ride on buses and attend classes on
September 15; and (4) school staff obstructed the superintendent's access to school
records and the school facility. (Pl Am. Comp!., Ex. 8.) Johnson noted that there was no
indication that the Academy would comply with the September 13 decisions of the Board
of Managers. (Id.) The Commissioner adopted Johnson's report the same day that it was
presented to him. (Doc. No. 51-2 at 20.)
On September 24, the Commissioner issued a notice of intention to revoke the
school's open-enrollment charter. (Id. at 21.) The notice informed the Academy that it
could request a hearing if it notified the Commissioner of such a request within ten
business days. (Id.) A formal request for hearing was made on October 7, 2010, leading
to an administrative hearing on August 12-17, 2011. (Id.) Counsel for the Plaintiffs in this
case appeared on behalf of Benji's, opposing the charter revocation. A final order was
issued on January 17, 2012, revoking the Academy's charter and permanently closing the
school. (Doc. No. 51-2.)
II. LEGAL STANDARD
Summary judgment is appropriate where the pleadings and evidence show that no
genuine issue of material fact exists, and that the movant therefore is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56. The party moving for summary judgment must
demonstrate the absence of any genuine issue of material fact; however, the party need
not negate the elements of the nonmovant's case. Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1997). If the moving party meets this burden, the nonmoving party must
then go beyond the pleadings to find specific facts showing there is a genuine issue for
trial. Id. "A fact is material if its resolution in favor of one party might affect the outcome
6
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of the lawsuit under governing law." Sossamon v. Lone Star State of Texas, 560 F.3d 316,
326 (5th Cir. 2009) (quotations and footnote omitted).
Factual controversies should be resolved in favor of the nonmoving party. Liquid
Air Corp., 37 F.3d at 1075. However, "summary judgment is appropriate in any case
where critical evidence is so weak or tenuous on an essential fact that it could not support
a judgment in favor of the nonmovant." Id. at 1076 (internal quotations omitted).
Importantly, "[t]he nonmovant cannot satisfy his summary judgment burden with
conclusional allegations, unsubstantiated assertions, or only a scintilla of evidence." Diaz
v. Superior Energy Servs., LLC, 341 F. App'x 26, 28 (5th Cir. 2009) (citation omitted).
The Court should not, in the absence of proof, assume that the nonmoving party could or
would provide the necessary facts. Liquid Air Corp., 37 F.3d at 1075.
III. ANALYSIS
A. Mootness
Plaintiffs seek injunctive relief asking the Court to order Defendants to rescind the
notice of suspension or termination of operations of the Academy. Defendants argue that
the Court lacks subject matter jurisdiction over Plaintiffs' injunctive relief claim, urging
that the revocation of the Academy's charter on January 17, 2012 renders this claim
moot.
The "case or controversy" requirement of Article III, § 2, of the Constitution
requires that, "throughout the litigation, the plaintiff 'must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely to be redressed by a favorable
judicial decision.'" Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Continental
Bank Corp., 494 U.S. 472, 477 (1990)). "If a dispute has been resolved or if it has
7
Case 4:10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 8 of 17
evanesced because of changed circumstances, including the passage of time, it is
considered moot." American Med. Ass 'n v. Bowen, 857 F.2d 267, 270 (5th Cir. 1988). If
a case becomes moot, it deprives the court of jurisdiction and should be dismissed under
Rule 12(b)(l). Id.
It is "beyond dispute that a request for injunctive relief generally becomes moot
upon the happening of the event sought to be enjoined." Harris v. City of Houston, 151
F.3d 186, 189 (5th Cir. 1998); Marilyn T., Inc. v. Evans, 803 F.2d 1383, 1384 (5th Cir.
1986), abrogated on other grounds by Litton Fin. Printing Div. v. NLRB, 501 U.S. 190(1991) (plaintiffs appeal from the denial of preliminary injunctive relief against the
suspension of a commercial license moot once the license was permanently revoked).
Defendants urge that the request for injunctive relief was mooted by the revocation of the
Academy's Charter, as, under Section 12.1161 of the Texas Education Code, a school
may not continue to operate or receive state funds once its charter has been revoked. Tex.
Educ. Code§ 12.1161.
Plaintiffs respond that "[t]his is the only forum to which these truly aggrieved and
deserving persons can turn to correct a series of injustices that truly outrage all
fundamental and essential values of our Republic." (Doc. No. 55 at 3.) They also urge
that "if peaceful disobedience to damaging unlawful state administrative action can itself
give rise to a new administrative proceeding which moots the damage claims of all
aggrieved parties, then state regulation is a monster with rules without any limits
whatever." (Id. at 4.) Plaintiffs' responses suggest that they misinterpret Defendants'
argument, which is not that Plaintiffs' damage claims are moot, but rather that their
claims for injunctive relief, which this Court can no longer redress, are moot. The Court
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agrees that it cannot issue injunctive relief in this case to force the reopening of the
Academy. Now that the charter has finally been revoked, the school cannot continue to
operate. The Court therefore concludes that Plaintiffs' request for injunctive relief is
moot, and must be dismissed under Rule 12(b)(I) for want of jurisdiction.
B. Teacher-Plaintiffs' Due Process Claims
The Teacher-Plaintiffs bring claims against Defendants under 42 U.S.C. § 1983,
alleging that Defendants' actions in suspending the Academy's operations violated the
Teacher-Plaintiffs' federal constitutional due process rights. Section 1983 reads:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress ....
42 U.S.C. § 1983. To state a cause of action under Section 1983, a plaintiff must (1)
allege a violation of rights secured by the Constitution or laws of the United States, and
(2) demonstrate that the alleged deprivation was committed by a person acting under
color of state law. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998).
In order to prove that their due process rights were violated, Plaintiffs must show
that they have "asse1ted a recognized liberty or property interest within purview of
Fourteenth Amendment and that [they were] intentionally or recklessly deprived of that
interest, even temporarily, under color of state law." Woodard v. Andrus, 419 F.3d 348,
353 (5th Cir. 2005) (quoting Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450 (5th Cir.
1994)). Thus, the threshold requirement of any due process claim is the government's
deprivation of a plaintiffs liberty or property interest. DePree v. Saunders, 588 F.3d 282,
9
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289 (5th Cir.2009). In this case, the Teacher-Plaintiffs allege that they were deprived of
their property rights in continued employment at the Academy without due process.
Public employees, including teachers, are entitled to due process protections prior
to termination only if they have a property interest in continued employment. Ed. of
Regents v. Roth, 408 U.S. 564, 576-578 (1972). In order to have a property interest, one
must have "a legitimate claim of entitlement" to continued employment, rather than a
"unilateral expectation of it." Id. at 577. Entitlement to continued employment may be
founded upon statutory language creating such an entitlement, or contractual or tenure
provisions that require a hearing before dismissal or termination. See Cleveland Ed. of
Educ. v. Loudermill, 470 U.S. 532, 538 (1985); Perry v. Sindermann, 408 U.S. 593, 601
(1972).
In the absence of an explicit contractual provision, a property interest may arise
from an implied contract or mutually understood informal procedures. Perry, 408 U.S. at
601-02. Ultimately, property interests "are created and their dimensions are defined by
existing rules or understandings that stem from an independent source such as state law."
Roth, 408 U.S. at 577; see also McDonaldv. City of Corinth, 102 F.3d 152, 155 (5th Cir.
1996) ("State law controls the analysis of whether [a plaintiff] has a property interest in
his employment sufficient to entitle him to due process protection."). Thus, to determine
whether the Teacher-Plaintiffs had a property interest in continued employment, the
Court must look to Texas law.
"In Texas, there is a presumption that employment is at-will unless that
relationship has been expressly altered by contract or by 'express rules or policies
limiting the conditions under which an employee may be terminated."' Leza v. City of
10
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Laredo, 2011 WL 2078961, at *3 (S.D. Tex. May 26, 2011) (quoting Muncy v. City of
Dallas, 335 F.3d 394, 398 (5th Cir. 2003)). At-will employees may be terminated at any
time, and therefore have no legitimate right to continued employment and no
constitutionally protected property interest in their employment. Conner v. Lavaca Hosp.
Dist., 267 F.3d 426, 439 (5th Cir. 2001). In this case, there was a written agreement
covering the Teacher-Plaintiffs' employment. The agreement, which was signed by both
Teacher-Plaintiffs, has an "At Will Statement." (Doc. Nos. 51-6; 61-7.) The statement
reads as follows:
Employment with Benji's Special Educational Academy is an "At Will
Agreement" and at any period of time wage, benefit and conditions of
employment or employment can be changed or terminated. Either the
employee or Benji's Special Educational Academy may terminate the
employment relationship at any time, for any reason, without notice or
cause.
(Id.) Because the Teacher-Plaintiffs were "at-will" employees, Defendants urge that they
had no property interest in continued employment with Benji's.
The Teacher-Plaintiffs contend that that they worked at the Academy under a
mutual understanding that they could not be dismissed prior to the end of the school year.
They seem to premise this understanding on the fact that, under TEC § 12.l 161(b), the
Commissioner's denial of a charter school's renewal application requires the state to
continue funding the school for the remainder of the year. While the Teacher-Plaintiffs
may have believed that the Commissioner's decision not to renew the Academy's charter
would not result in their immediate termination, they offer no evidence supporting the
notion that they could not be immediately terminated for another reason. Indeed,
Defendants offer evidence demonstrating that teachers at Benji's knew, or should have
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known, that they could be terminated at any time. In a memo sent to Benji's faculty by
then-CEO, Ms. Robinson, Robinson informed employees that any employee who
contacted Child Protective Services without prior approval by Robinson would be subject
to termination. (Doc. No. 51-3.) Although entirely unrelated to the issues in this case,
Robinson's memo shows that the Academy's faculty members were (or should have
been) aware that they could be fired at any time. Ultimately, Plaintiffs have failed to
introduce any evidence of representations made to them regarding a promise or other
understanding that they were entitled to employment through the end of the school year.
More importantly, though, an implicit understanding that one's position will
continue fails in the face of a written policy indicating that it will not. See Staheli v. Univ.
of Miss., 854 F.2d 121, 125 (5th Cir. 1988) (holding that plaintiffs alleged property
interest in tenure, arising from his implicit, mutual understanding that his position would
continue, failed in light of the university's written tenure policy only allowing tenure to
be granted by the chancellor of the university); Batterton v. Tex. Gen. Land Office, 783
F.2d 1220, 1223 (5th Cir. 1986) (holding that an informal understanding leading to a
property interest may stand only in the "absence of an officially promulgated position,
one way or the other, on the issue of a teacher's tenure"). Here, there is both a written
contract specifying at-will status, and evidence that the parties' understanding was or
should have been consistent with that contract. As such, the Teacher-Plaintiffs' claims
must fail.
C. Parent-Plaintiffs' IDEA Claims
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The Parent-Plaintiffs claim violations of their statutory right to notice and hearing
under the IDEA, 20 U.S.C. § 1415. They also bring a claim under 42 U.S.C. § 1983
based upon the same violations of the IDEA.
The purposes of the IDEA are, among others, "to ensure that all children with
disabilities have available to them a free appropriate public education ... [and] to ensure
that the rights of children with disabilities and parents of such children are protected." Id.
§§ 1400(d)(l)(A)-(B). To that end, the IDEA requires that the local education agency
("LEA") or state educational agency effectuate Individualized Education Programs
(IEPs) at the beginning of every school year for each child with a disability in the
agency's jurisdiction. Id. § 1414 (d)(2)(A). In addition, any state educational agency or
LEA that receives funding under the IDEA is required to establish and maintain
procedures in accordance with 20 U.S.C. § 1415 of the IDEA to ensure that children with
disabilities and their parents are "guaranteed procedural safeguards with respect to the
provision of a free appropriate public education." Id. § l 4 l 5(a).
One aspect of the procedural safeguards mandated by IDEA is the requirement of
"written prior notice to the parents of a child, in accordance with subsection (c)( 1),
whenever the local educational agency-(A) proposes to initiate or change . . . the
identification, evaluation, or educational placement of the child, or the provision of a free
appropriate public education to the child." Id. § 1415(b)(3). Subsection (c)(l) specifies
that the notice required must contain a description of the proposed agency action, an
explanation of why the agency proposes to take the action, a description of the agency's
bases for taking such action, and a statement notifying the parents that they have due
process rights under IDEA to challenge such action. Id. § 1415(c)(I). A parent must be
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given an opportunity to present a complaint "with respect to any matter relating to the
identification, evaluation, or educational placement of the child, or the provision of a free
public education to such child." Id. § l 4 l 5(b )(6)(A). A party wishing to make a
complaint under this section must provide "due process complaint notice" to the
adversary party and forward a copy of it to the State. Id. § l 4 I 5(b)(7). The "due process
complaint notice" is distinct from the "written prior notice" required to be given by the
LEA or state educational agency to a parent prior to the proposed change in placement.
The state educational agency or LEA must provide for an impartial due process hearing
and appeal. Id. §§ 1415(f), (g). Parents may seek judicial review of adverse
administrative determinations. Id. § I 4 l 5(i)(2).
The Parent-Plaintiffs' claims focus on the failure of Defendants to provide them
with the prior written notice prior to suspending operations of the Academy. They argue
that Defendants' closure of the Academy and their directive to parents of IEP students to
find new schools constitutes a change in the "educational placement" of students that
triggers the written prior notice requirement of 20 U.S.C. § l 4 l 5(b)(3). Defendants argue
in response that Plaintiffs have not exhausted their administrative remedies, and that,
regardless, the IEP students' transfer to a new school is only a "change in location" and
not a "change in educational placement" requiring prior written notice to parents.
Before seeking judicial review, plaintiffs bringing a complaint under the IDEA
either must exhaust administrative remedies or must show that exhaustion would be futile
or inadequate. Gardner v. Sch. Bd. Caddo Parish, 958 F.2d 108, 112 (5th Cir. 1992); 20
U.S.C. § 1415(1). In the Fifth Circuit, futility may be shown by either "systematic
violations that a hearing officer would have no power to address," or a settled state policy
14
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that cannot be addressed through the IDEA's administrative remedies. Papania-Jones v.
Dupree, 275 F. App'x 301, 304 (5th Cir. 2008) (quoting J.S. v. Attica Cent. Schs., 386
F.3d 107, 113 (2d Cir. 2004)). As the Court has noted before, Plaintiffs cannot escape the
administrative exhaustion requirements of the IDEA by pleading a cause of action under
42 U.S.C. § 1983 based upon violations of their rights to written prior notice. See Marc
V v. N. E. Indep. Sch. Dist., 455 F. Supp. 2d 577, 592 (W.D. Tex. 2006). Thus, if the
Court concludes that Plaintiffs have failed to exhaust their IDEA claims, then their
Section 1983 claims must fail on the same basis.
In the Court's October 15, 2010 Memorandum and Order, the Court considered
Plaintiffs' request for a preliminary injunction. The Court laid out the standard for
administrative exhaustion under the IDEA, and concluded that Plaintiffs had not met their
burden of showing that they were excused from the administrative exhaustion
requirement. (Doc. No. 16 at 25.) Plaintiffs' Response to Defendants' Motion for
Summary Judgment does not even address the administrative exhaustion argument made
by Defendants. Thus, the Court must rely upon Plaintiffs' arguments asserted earlier in
this case: (1) that administrative exhaustion would be futile because Plaintiffs' right to
notice has already been violated; (2) that exhaustion would be inadequate because the
administrative process will take between 45 and 60 days to complete; and (3) that the
violations alleged are systematic and the result of a settled state policy that cannot be
addressed in administrative proceedings.2
The Court has already held that the first two of Plaintiffs' arguments are
insufficient, noting that, though agency review might not be able to remedy Plaintiffs'
2
Plaintiffs did not put forward the third argument explicitly, but the Court has inferred that they intended to
make this argument from the cases relied upon in their preliminary injunction briefing. (Doc. No. I 6 at 26.)
15
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failure to receive written prior notice, it could fashion an appropriate remedy to address
concerns regarding the modification of the students' educational programs. Plaintiffs
have not urged reconsideration of this conclusion.
As to Plaintiffs' third argument, the Court found, in its October 15, 2010
Memorandum and Order, that Plaintiffs had not met their burden of showing a systematic
violation or a settled state policy. (Doc. No. 16 at 26-27.) Plaintiffs have submitted no
further evidence to suggest the presence of either of these factors, and it is clear that they
are not implicated in this case. Courts have found systemic violations or settled state
policies where plaintiffs are challenging a regulation implementing a state statute, or
where deficiencies in the administrative scheme give rise to a plaintiffs injuries. See,
e.g., JS., 386 F.3d at 113-14 (summarizing cases). 3 The "common element" in cases
recognizing an exception based upon systemic violations or settled state policies is "that
the plaintiffs' problems could not have been remedied by administrative bodies because
the framework and procedures for assessing and placing students in appropriate
educational programs were at issue, or because the nature and volume of complaints were
incapable of correction by the administrative hearing process." Id In the instant case,
Plaintiffs' claims do not implicate the framework and procedures for assessing and
placing students in appropriate programs; rather, Plaintiffs allege a single, albeit serious,
breakdown in the functioning of these procedures. There is no evidence to support an
exemption from the administrative exhaustion requirement. Thus, the Parent-Plaintiffs'
claims under both the IDEA and Section 1983 must fail.
D. Qualified immunity
3
The Fifth Circuit has noted that it "find[s] the analysis of the Second Circuit in JS. to be instructive."
Papania-Jones v. Dupree, 275 F. App'x 301, 304 (5th Cir. 2008).
16
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Defendants in this case are all government employees sued in their individual
capacities, and thus are entitled to assert a defense of qualified immunity. Foley v. Univ.
of Houston System, 355 F.3d 333, 338 (5th Cir. 2003). "[G]overnment officials
performing discretionary functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). However, as the Court has concluded that none of Plaintiffs' claims can
proceed, it need not conduct a qualified immunity analysis.
IV. CONCLUSION
For the reasons discussed above, the Court concludes that Defendants' Motion for
Summary Judgment must be GRANTED.
IT IS SO ORDERED.
SIGNED at Houston, Texas, on this the 28 111 day of March, 2012.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
17
APPENDIX TAB N:
First Amended Original Petition
in Cause No. 2011-54895
(WITHOUT EXHIBITS)
No. ~011-54895 FJL )i'1
THEAOLA ROBJNSON. *§ JN THE OJSTRJCT COUR'J~~. 0 ~
Olttrtot g'/J~l
D
Plaint in: § ~N2a ~
~ 1'Jrno:~20f2 [ S'~ \
~s ~
8
v. HARRIS co 0N ' ,, S"l>ty, •t11
s8 ~L
C'Lri'
,-,
THF. WALT DISNEY COMPANY: CC § :
10. T~dtemcnt succinctly expresses the situation at a remarkable institution.
created and nurtured by the mother love and determination of a tireless educator. Mrs.
Robinson . .frJ/' thirty years. and reveals the context in which the occurrences giving rise to
the rights to relief stated in this action quickly transpired over the next forty days.
I I. For the thirty years prior to August 20 I 0. Mrs. Robinson had. in total and
complete obscurity. through much trial and sacrifice. and with virtually no private
support. endeavored to provide for the most helpless and disadvantaged. the most
forgotten and discarded. of the young in our society. a setting where they could find a
loving and caring home. and. just possibly. find u chance at self-respect.~-discipline.
and a foundation for a socially productive and rewarding life.
~
a ~
having endangered the safety. health. and welfare of the students. (t~-1 O-CY-03498.
~
Docket 19-8). "~
~
40. ·n1e filing of an action in this Court spurred the nex~nation or KTRK's story
on September 27. 2010. The video was later publishcg ~l3Cs website. along with a
~
printed article ..Lawsuit filed ugainst Benji·s Actf!· under Jessica Willey·s byHnc.
Willey wrote: "The Texas Education Agenc~~n't know how the academy spent $3
million of state money:· (Exhibit 8). ~
comme~on KTRK"s website. including:
41. The article generated 15
7.... Ms. Robinson shouW~~rrested. not because she's black. because
she's a thief1 n~
{)
8. I am just amazed ~to why the parents arc not suing Theaola Robinson
and the old Board~EJirector. they arc the ones who arc stealing their
childrcn·s futu~p.©J
u- ***
12. You b.,e~y want to keep it open. if its closed an investigation will
show tlI~rc all taking money not to mention they won't be able to
afford ~ new house. Hummer and boat payments the school and
taxp~ were helping to huy.
(Exhibit~
42. KTRK's Cisneros returned to the story on September 30. 2010. The video was
later published on KTRK's website, along with a printed article "Charter school light
goes to federal court:· under Cynthia Cisneros's byline. Cisneros wrote: '"The state says
JO
it had no choice. alleging Benji's did not provide proper linuncial records lo account for
over $3 million in state funding f'or the past year:· (Exhibit 9).
43. The arlick generated 14 comments on KTRK's website. including:
11. The state is not to blame here. They need to sue the administrators to
find out where the money is followed by prosecution or those wl:i..q~1ay
have "mis-spent'· it. Put blame where blame is due! ~
*** ~iPjj)
13. Simple! No money! Can not account for $9 [sicl millioQose thc
doors and take the administrators to court for mis-use t~overnmcnl
(your) money.... ~
(Exhibit 9). i;f
44. The KTRK version of the saga was continued 0b~atie McCall on October 11.
2010. The video was later published on ABC'~· along with a printed article
"Organizers plan to reopen troubled chartcro ~ool."' under Katie McCall" s byline.
r;~
McCall wrote: ··on September 14, the T~rdercd Benji's Academy to close. citing
~not accounted for." (Exhibit I 0).
millions or dollars in state funding that
45. The mticlc generated JO c~a1ts on KTRK's website. including:
~
2. the only thing organ~ about this plan is the organized crime
~ ***
5.... the parents ~~upporting the administrators who have a little
charisma ulong~a talent for lining their pockets ...
6.... The m~of this facility. will continue to steal under the guide fsic]
of a scl~~cre the kids will continue to sufferlrJ
(Exhibit l 0). ~
46. ~~ Houston ran a story about l3enji's reopening under new management on
October 11. 20to. with no mention of KTRK's reported ··millions of dollars in state
funding that was not accounted for:· Yet, reader comments on Fox's website. retfocted
11
the damage to Mrs. Robinson·s reputation created by KTRK's statements: "Why isn't
Theaola Robinson being charged for misappropriated tux payer l'undsT (Exhibit 11).
E. Cuusc of Action - Defamation & Libel
47. The series of stories broadcast by Disney Defendants are untrue and are libelous
defamations as defined by Texas law. if!~
~@
48. These libelous defamations were not privileged and were nu~ith malice and
~
the express intent to destroy the reputation of Mrs. Robinson and 1~~i·s.
,.,_-:;;·J
49. To the extent any statement in the libelous dcfam~publishcd or uttered us
part of the television broadcast set forth above were ~~d or published by one other
than the Disney Defendants. the Disney DetCndanJ!Ji~ to exercise due care to prevent
the utterance or publication of the statements. Q ~
~
50. The Court and fucttinder need not ~e in any rutiocination to dekrmine how a
ii~~rct the complained of statements. whether the
person of ordinary intelligence would
complained nf statements were ~c of defamatory meaning. or whether the public
.~
generally. and those who kriQ) or arc acquainted with Mrs. Robinson specifically.
understood that the statcmii~eferrcd
~
to Mrs. Robinson. All that is amplv demonstrated
-
by the public comm~getnilcd herein. matters not available to courts and juries at the
time these lcg':\{,.rds w"c developed hut readily available in the modem digilal age
and sufticicnt~rove beyond doubt the wanton and malicious destruction of a good and
honest p~ reputation.
51. As detailed above. the school was in continuous operation throughout the
preceding school year. Over forty staff members. from administrators. to teachers. ro
janitors. were continuously employed. The school served meals. ran bus transportation.
12
provided activities, etc .. ull under the watchful eye of the TEA. No rational person could
concluded that the entire oudget of over $3 million was unaccounted for and the reporting
of such an accusation \Vas negligent and malicious.
52. All conditions precedent have been performed or have occurred.
F. Request for Disclosures ~
~ For actual damages and exei~ry damages for malicious libel: and
3. For all other relief. g~~nd special, legal and equitable. to which she may
show hcrselfjustly~~~d.
ug~~ Respectfully submitted.
0~1;
d~~
~ f~~Berry
~© Slutc rNo.:02721050
~ 30 I 4 Brazos Street
f Iouston. TX 77006
(713) 521-3525 (voice)
(713)521-3575 (fox)
berrybowen1g·komcust.nct
ATTORNEY IN Cl !ARCH·: FOR
PLAINTIFF
13
CEnTIFICATE OF SERVICE
This is to certity that a true and correct copy or th.yjlbove and foregoing document
has been sent via ~~~·.3 NI~\ to the following on this~"'tlay or January, 2012.
Luura Lee Prather
Catherine Lewis Robb
919 Congress Ave. Suite 1250
Austin. TX 78701
14
APPENDIX TAB 0:
Appellee' s Motion to Dismiss
For Lael( of Jurisdiction, in No.
01-12-003 72-CV
NO. 01-12-00372-CV
IN THE FIRST COURT OF APPEALS
HOUSTON, TEXAS
KTRK TELEVISION, INC.,
Appellant,
v.
THEAOLA ROBINSON,
Appellee.
APPEAL FROM THE 234rn JUDICIAL DISTRICT COURT
HARRIS COUNTY, TEXAS
APPELLEE 'S MOTION TO DISMISS FOR LACK OF JURISDICTION
Berry Dunbar Bowen
Texas Bar No. 02721050
3014 Brazos Street
Houston, Texas 77006
(713) 521-3525
(713) 521-3575 (facsimile)
berrybowen@com cast. net
www.bowenlawyers.net
Attorneys for Appellee
APPELLEE'S MOTION TO DISMISS FOR LACK OF .JURISDICTION
A. ST A TEMENT FOR RELIEF
I. Appellee, Theaola Robinson, asks this Court to dismiss the appeal for
lack of jurisdiction.
B. BACKGROUND FACTS
2. On September 4, 2011, Theaola Robinson brought a defamation suit
against KTRK Television, Inc. ("KTRK") and others.
3. On December 21, 2011, KTRK filed and served a motion to dismiss
pursuant to Chapter 27, Tex. Civ. Prac. & Rem. Code.
4. On January 12, 2012, Robinson and KTRK filed a Rule 11 Agreement
1
consenting to the hearing of the motion to dismiss being set beyond the 30 h day
after the date of service of the motion.
5. On February 13, 2012, the 234 1h Judicial District Court heard the
motion.
6. On February 23, 2012, the 2341h Judicial District Court issued its order
denying KTRK's motion to dismiss.
7. On April 20, 2012, KTRK filed its notice of appeal.
C. ARGUMENT AND AUTHORITIES
8. This case should be dismissed for lack of jurisdiction, as there is no
statutory provision authorizing an interlocutory appeal in this situation. Unless an
interlocutory appeal is specifically authorized by statute, the appellate court has no
jurisdiction. See Qwest Communications Corp. v. AT&T Corp., 24 S.W.3d 334,
224 (Tex. 2000); Northeast Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895
( 1966).
9. The types of interlocutory orders that may be appealed are strictly regulated
by statute, and an interlocutory appeal is only authorized if it fits one of the exceptions
specifically created by the legislature. Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365
(Tex. 1985). Generally, authorized interlocutory appeals are set out in § 51.014 of the
Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code §
51.014( a)( I )-(10). KTRK has not brought this interlocutory appeal upon any of the
specifically created exceptions in § 51.014, Tex. Civ. Prac. & Rem. Code.
10. KTRK has stated that this appeal is accelerated under § 27.008 Tex.
Civ. Prac. & Rem. Code. It is assumed, therefore, that KTRK is relying on that
statute to create jurisdiction over an interlocutory appeal of the trial court's
February 23, 2012 order denying KTRK's motion to dismiss. However, that
section does not provide for an interlocutory appeal of the trial court's February
23, 2012 order, accelerated or otherwise. The statute provides: 1
Sec. 27.008. APPEAL.
(a) If a court does not rule on a motion to dismiss under Section
27.003 in the time prescribed by Section 27.005, the motion is
considered to have been denied by operation of law and the moving
party may appeal.
1
This is presumably a case of first impression; however, Movant notes that Case
No. 02-12-00047-CV, Jennings v. Wal/Builder Presentations, Inc., is currently
pending in the 2nd Court of Appeals in Fort Worth as an interlocutory appeal of an
express order denying a motion to dismiss brought pursuant to Chapter 27.
2
(b) An appellate court shall expedite an appeal or other writ,
whether interlocutory or not, from a trial court order on a motion to
dismiss a legal action under Section 27.003 or from a trial court 's
failure to rule on that motion in the time prescribed by Section
27.005.
(c) An appeal or other writ under this section must be filed on or
before the 60th day after the date the trial court 's order is signed or
the time prescribed by Section 27.005 expires, as applicable.
Section 27.008, Tex. Civ. Prac. & Rem. Code (emphasis added).
11. This appeal does not present an interlocutory appeal under § 51.0 I4(a)(6)
which allows media defendants who were denied summary judgment upon a free
speech/free press defense to a defamation action under Chapter 73 of the Tex. Civ. Prac.
& Rem. Code, to pursue an interlocutory appeal. The order appealed here is an order
denying a motion to dismiss brought pursuant to Chapter 27, not an order denying a
motion for summary judgment on a claim under Chapter 73. In Chapter 27, the
Legislature very clearly set up a procedure outside of summary judgment that provides
for early consideration of a motion to dismiss a legal action, upon no or limited
discovery, with an expedited time table. The Legislature clearly did not provide for
interlocuto1y appeal of an express denial of a motion to dismiss. By the express terms of
§ 27.008(a) and (b), an express denial of the motion to dismiss does not trigger a right for
a defendant to take an interlocutory appeal. The right to interlocutory appeal is restricted
to situations in which the trial court does not timely rule on the motion, and the motion is
thus considered to have been denied by operation of law. However, in a defamation
action against a media defendant, express denial of a motion to dismiss does not hamper a
media defendant from subsequently filing a motion for summary judgment which, if
3
denied, would trigger a specifically legislated right to an interlocutory appeal under §
5 l .014(a)(6).
12. These schemes are distinct. An interlocutory appeal of the express
denial of the motion to dismiss under Chapter 27 cannot be equated to an appeal
under § 51.0 l 4(a)(6), as that appeal would be untimely. Texas Rules of Appellate
Procedure Rule 26.1 (b) provides that accelerated appeals must be filed within 20-
days of the appealable order being signed. This appeal was taken 57-days after the
order was signed, and while timely if it was an accelerated appeal properly
brought under Chapter 27, it is not timely for an accelerated interlocutory appeal
brought on any grounds in Chapter 51, including an appeal of denial of a motion
for summary judgment brought by a media defendant in a defamation action.
13. If the parties agree, a trial court may issue a written order for
interlocutory appeal in an action not otherwise appealable under §51.014. See
Tex. Civ. Prac. & Rem. Code§ 51.014(d). There has been no such agreement and
order in this action. If the trial court does not issue an order permitting an
interlocutory appeal, and none of the other statutory grounds apply, the appellate
court must dismiss the appeal for lack of jurisdiction. See Tex. Civ. Prac. & Rem.
Code§§ 51.014(a), (d); see also Haase v. Meissner, Bolte & Partner, GBR, No.
14-11-00114-CV (Tex.App. - Houston [14th Dist.], June 19, 2012, n.w.h.)
(Intermediary appellate courts lack jurisdiction to review interlocutory orders
unless a statute specifically authorizes an exception to the general rule, citing
Qwest Communications Corp., supra.).
4
14. The only right to interlocutory appeal by the movant under Chapter 27
arises from a situation where the trial court fails to rule on the motion to dismiss in
a timely fashion. Sections 27.008(a) and (b), Tex. Civ. Prac. & Rem. Code, are
the only sections which provide for an interlocutory appeal, and are clearly not
applicable, as the trial court expressly ruled on KTRK 's motion to dismiss within
the time prescribed by§ 27.005, Tex. Civ. Prac. & Rem. Code. "We strictly apply
statutes granting interlocutory appeals because they are a narrow exception to the
general rule that interlocutory orders are not immediately appealable." Homes v.
Perez, 340 S.W.3d 444, 447 (Tex. 2011) (citing Tex. A & M Univ. Sys. v.
Koseoglu, 233 S.W.3d 835, 84 I (Tex. 2007); Bally Total Fitness Corp. v. Jackson,
53 S.W.3d 352, 355 (Tex. 2001); Tex. S. Univ. v. Gilford, 277 S.W.3d 65, 71
(Tex.App. - Houston [1st Dist.] 2009, pet. filed). No other language in § 27.008,
Tex. Civ. Prac. & Rem. Code, can be interpreted as giving rise to the right to an
interlocutory appeal when the trial court has timely denied the motion to dismiss,
and no language in Section 51.014, Tex. Civ. Prac. & Rem. Code, provides for the
right to an interlocutory appeal of a denial of a motion to dismiss under Chapter
27, Tex. Civ. Prac. & Rem. Code. The statute also provides for accelerated
appeals by the non-movant plaintiff of orders granting motions to dismiss, but
does not provide for an interlocutory appeal where the plaintiff has joined multiple
claims or multiple parties in an action and some claims against some defendants
are not within the kinds of claims susceptible to a motion to dismiss under §
27 .003(a). If the plaintiff has brought only one claim and that claim is dismissed
5
under § 27 .OOS(b ), then an appeal by the plaintiff shall be expedited, but such an appeal
would not be interlocutory, and that is why § 27.008(b) employs the language "whether
interlocutory or not" in mandating expedition of all appeals authorized under Chapter 27,
Tex. Civ. Prac. & Rem. Code.
15. KTRK provided a policy discussion regarding passage of the Texas
1
Anti-SLAPP statute in their motion to dismiss pointing out "Texas is the 28 h state
in the nation to adopt an Anti-SLAPP statute." It is therefore instructive to
contrast the languages of some of those statutes with that of the Texas statute. For
instance, in California, the right to an interlocutory appeal is clearly and explicitly
granted: "An order granting or denying a special motion to strike shall be
appealable under Section 904. l" Cal. Code of Civ. Proc. § 425.16(i). Additionally
compare, Hawaii, Illinois, Missouri, and Vermont which all provide rights to an
interlocutory appeal if an anti-SLAPP motion is denied. See Haw. Rev. Stat. §
634F-2(2)(A) (''. .. an immediate appeal from a court order denying the motion");
735 Ill. Comp. Stat. 110/20(a) (" ... from a trial court order denying that motion");
Mo. Rev. Stat. § 537.528.3 (" ... shall have the right to an expedited appeal from a
trial court order"); and 12 VT. Stat. Ann. Court Procedure § 1041 (g) ("An order
granting or denying a special motion to strike shall be appealable in the same
manner as an interlocutory order."). The Texas Legislature knows how to provide
for interlocutory appeals. If the Texas Legislature had wanted to include the right
to an interlocutory appeal from a trial court's express order denying a motion to
dismiss, it could have; but it didn't. Instead, it specifically limited that right to
6
instances where the trail court does not timely rule and the motion is considered
denied by operation of law. This situation is not presented here. The trial court
timely denied KTRK's motion. Therefore, this Court has no jurisdiction for this
interlocutory appeal.
16. In the specific context of defamation actions against media defendants,
there is ample reason and perhaps even wisdom in the Legislature's express
limitation of a right to interlocutory appeal by an unsuccessful movant under
Chapter 27 to instances in which the trial court fails to rule on a motion to dismiss
within a prescribed time period and the motion is thus considered denied by
operation of law. If the trial court rules on the motion and grants it, the ruling may
result in a final appealable judgment if there are no other claims raised by the
petition. If the trial court expressly denies the motion, the case can proceed to
discovery. If the trial court is vexed or unsure, it can allow the motion to be
denied by operation of law and effectively defer to the appellate court for a ruling
in the first instance. This scheme preserves the right of a media defendant whose
Chapter 27 motion to dismiss is affirmatively denied by the trial court to perfect an
interlocutory appeal if, after adequate opportunity for discovery, a motion for
summary judgment filed in a defamation action is denied, thus allowing the trial
court to exercise discretion over whether to permit interlocutory appeals by media
defendants prior to discovery being had. A plaintiff must be given a right to
discovery prior to dismissal of a defamation action in which liability is governed
by a malice standard. See Herbert v. Lando, 441 U.S. 153, 160-177 (1979). What
7
is avoided by the Texas scheme is the possibility of seriatim interlocutory appeals
in defamation claims against media defendants which trial courts determine to be
prima facie meritorious without discovery but which may still fail after discovery
on motion for summary judgment.
17. Appellate courts have jurisdiction to consider immediate appeals of
interlocutory orders only if a statute explicitly provides appellate jurisdiction.
Stary v. De Bord, 967 S.W.2d 352, 352-3 (Tex. 1998). The Court must strictly
construe statutes authorizing interlocutory appeals. See American Online, Inc. v.
111
WWiams, 958 S.W.2d 268, 271 (Tex.App. - Houston [14 Dist.] 1997, no pet.).
Lacking a statute explicitly providing the right of interlocutory appeal, this appeal
must be dismissed.
WHEREFORE PREMISES CONSIDERED, this appeal should be
dismissed for lack of jurisdiction.
Respectfully submitted,
By: Isl Berry D. Bowen
Berry D. Bowen
Texas Bar No. 02721050
3014 Brazos Street
Houston, Texas 77006
(713) 521-3525
(713) 521-3575 (facsimile)
berrybowen@comcast.net
Attorney for Appellee
8
CERTIFICATE OF CONFERENCE
I certify that as required by Texas Rules of Appellate Procedure I 0.1 (a)(5),
counsel for Appellee, Berry D. Bowen, conferred with Appellant's counsel-of-
record Catherine Robb about the merits of this motion on July 11, 2012, and
Appellant opposes this motion.
Isl Beny D. Bowen
Berry D. Bowen
CERTIFICATE OF SERVICE
Pursuant to Tex. Rules of Appellate Procedure 9.5(e) and 25. l(e), the
foregoing has been served on July 13, 2012 on the following attorney of record.
Laura Lee Prather, Esq. Via Facsimile (512) 867-8609
Catherine Lewis Robb, Esq.
600 Congress Avenue, Suite 1300
Austin, Texas 78701
Attorney for Appellant KTRK Television, Inc.
Isl Berry D. Bowen
Berry D. Bowen
9
APPENDIX TAB P:
Order of February 22, 2013 in
No. 01-12-00372-CV
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTlON
Cause Number: 01-12-00372-CV
Trial Court Cause
Number: 1154895
Style: KTRK Television, Inc.("KTRK")
v Theaola Robinson
Type of motion: Emergency Motion to Stay
Is appeal accelerated? 18] YES D NO
Ordered that motion is:
18] Granted
If document is to be flied. document due:
D Absent extraordinmy circumstances. the Court will not grant additional motions to extend time
D Denied
D Dismissed (e.g.. want of jurisdiction, moot)
18] Other: Trial is stayed pending further action of this Court.
Judge's signature: Isl Jim Sl!\l.IQ
18] Acting individually 0 Acting for the Court
Panel consists of
Date: February 22. 2013
APPENDIX TAB Q:
Notice of Hearing in Cause No.
2011-54895
8/14/2014 3:22:40 PM
Chris Daniel - District Clerk Harris County
Envelope No. 2163547
By: LAWANDA CORNETT
CAUSE NO. 2011-54895
THEAOLA ROBINSON, § IN THE DISTRICT COURT OF
§
Plaintiff, §
v. § HARRIS COUNTY, TEXAS
§
THE WALT DISNEY COMPANY; §
CC TEXAS HOLDING CO., INC.; and, §
KTRK TELEVISION, INC. §
§
Defendants. § 234TH JUDICIAL DISTRICT
DEFENDANTS' NOTICE OF ORAL HEARING
PLEASE TAKE NOTICE that Defendants The Walt Disney Company ("TWDC") and
CC Texas Holding Company, Inc. ("CCTHC") Special Appearances filed on November 18, 2011
are hereby set for oral hearing on September 29, 2014 at 1:30 p.m.
Also, PLEASE TAKE NOTICE that Defendant KTRK Television, Inc.'s ("KTRK")
Motion And Brief In Support Of Award Of Attorneys' Fees, Court Costs, Expenses, And
Sanctions And For Entry Of Final Judgment Pursuant To Chapter 27 Of The Civil Practice And
Remedies Code filed on August 14, 2014 is hereby set for oral hearing on September 29, 2014 at
1:30 p.m.
Respectfully submitted,
HA YNES AND BOONE LLP
By:_/s/ Laura Lee Prather_ _ _ _ _ _ __
Laura Lee Prather
Texas State Bar No. 16234200
Laura.Prather@haynesboone.com
Catherine Lewis Robb
Texas State Bar No. 24007924
Catherine.Robb@haynesboone.com
600 Congress A venue, Suite 1300
Austin, Texas 78701
Tel.: (512) 867-8400
Fax.: (512) 867-8470
ATTORNEYS FOR DEFENDANTS KTRK
TELEVISION, INC., THE WALT DISNEY
COMPANY, AND CC TEXAS HOLDING
COMPANY, INC.
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing document has
been sent to the following counsel of record and party herein in accordance with the Texas Rules
of Civil Procedure on this the 14th day of August, 2014.
Berry Dunbar Bowen
3014 Brazos Street
Houston, Texas 77006
Theaola Robinson
5505 Jensen Drive
Houston, TX 77026
Laura Lee Prather
Catherine Lewis Robb
2
APPENDIX TAB R:
Supplemental Affidavit on
Attorney's Fees in Cause No.
2011-54895
9/26/2014 2:58:36 PM
Chris Daniel - District Clerk Harris County
Envelope No. 2640142
By: LAWANDA CORNETT
CAUSE NO. 2011-54895
THEAOLA ROBINSON, § IN THE DISTRICT COURT OF
§
Plaintiff, §
v. § HARRIS COUNTY, TEXAS
§
THE WALT DISNEY COMPANY; §
CC TEXAS HOLDING CO., INC.; and, § ~7
KTRK TELEVISION, INC. § ~rf!j
JUDICI~QSTRICT
§
Defendants. § 234TH
o~
SUPPLEMENT AL AFFIDAVIT OF LAURA PR.ATHE SUPPORT OF
AWARD OF ATTORNEYS' FEES COSTS EXPENS DSANCTIONS
PU~SUANT TO THE TEXAS ANTI-SLAPP STAT CHAPTER 27 OJ'
THE CIVIL PRACTICE AND REM • .•SCODE
~ .
BEFORE ME, the undersigned authority, on th~ay personally appeared Laura Lee
Prather, known to me to be the person whose na~~qbscribed below and after having been
duly sworn, on her oath stated as follows: #'
1. "My name is Laura Lee Pratb~ I am over the age of eighteen (18) years. I have
never been convicted of a felony or a cr~~pi~olving moral turpitude, am under no disabilities,
and am fully competent and qualifie0d~make this affidavit. Each of the statements in this
affidavit is within my personal kno~e and is true and correct.
2. I am a partner w'tQ:e law firm of Haynes and Boone, LLP, in their Austin,
Texas office. I have been Ii .d to practice law in the State of Texas since 1992. I hold
degrees from The Universi exas in Austin where I obtained a B.B.A. with highest honors
in 1988 and obtained my with honors from the University of Texas in Austin in 1991. After
completing law school,~erved as a judicial clerk to United States District Judge Hayden W.
Head, Jr. for one y9~({_)/j am admitted to practice before the United States Courts for the
Southern, Nort~e
9
~'6stern and Eastern Districts of Texas, the United States Fifth, Ninth and
Tenth Courts of eals, and the Texas Supreme Court. I am also admitted to practice in the
States of CaJJ._.fi 1a, New York and the District of Columbia. I have received various
recognition~m my peers and through publications, which are described on my resume,
attached as Exhibit A-2 hereto.
3. I have more than twenty years of experience practicing general civil litigation and
specializing in First Amendment disputes in both federal and state courts throughout Texas
including in Harris County, Nueces County, Bexar County, Travis County, Dallas County, El
Paso County, and more. I have represented hundreds of companies and individuals in a wide
range of cases, including defamation and other cases involving First Amendment concerns.
Accordingly, I am familiar with the standards for practicing law and the usual and customary
Supplemental Affidavit of Laura Prather In Support Of Award Of Attorneys' Fees, Costs, Expenses and Sanctions
1Of20
fees for litigation of this nature in Hanis County. I am qualified by knowledge, skill, experience,
training, and education to make the statements contained in this affidavit.
4. I am also intimately familiar with the recently enacted Texas Citizens
Participation Act (Tex. Civ. Prac. & Rem. Code, Ch. 27) and the amendments to it contained in
HB 2935 passed during the 2013 Legislative session. I worked to obtain passage of both bills,
which provide the mechanism for dismissal. Since its passage, I have litigated numerous
defamation cases in which we have filed Anti-SLAPP Motions. I have also been called upon as
a consultant with regard to Anti-SLAPP matters throughout the State. ~
5. This affidavit contains infonnation relating to the reasonal1fe~'orneys'
fees and
expenses incurred by Defendant KTRK in defonse of the above-caption~'fuial action. Pursuant
to Texas Civil Practices & Remedies Code §27.009(a)(l ), I he11.~~ submit this affidavit
addressing the following factors: (a) the novelty and difficulty of t~"Uestion involved and the
skill requisite to perfonn the legal services properly; (b) the f~stomarily charged in the
locality for similar legal services; (c) the total dollar amount i~ed and the results obtained;
(d) time limitations imposed by the client or the circumstan~ (e) the experience, reputation,
and ability of the finn and the attorney handling the mai!tt"~e Tex. Civ. Prac. & Rem. Code
§26.003(a); Rule 1.04(b), Texas Disciplinary Rules of Pr sional Conduct. I am familiar with
the factors established by the Texas Supreme C~ ·egarding the determination of the
reasonableness of attorneys' fees, and I have takt~If' of those factors into c. onsideration in
aniving at an opinion as to the reasonable attorney~es and expenses incurred by KTRK in this
legal action. ~
6. Plaintiff filed her Origina~Pe· n against Defendants on September 14, 2011. In
September 2011, I, while a partner at Se ck LLP, was engaged to represent Defendants in
this lawsuit. In June 2012, I became rtner at Haynes and Boone, LLP and continued to
represent Defendants in this lawsuit.~
7. Defendants the irlQsney Company and CC Texas Holding Co., Inc. each filed
special appearances while De , nt KTRK filed its answer, special exceptions, and an anti-
SLAPP motion to dismiss. ©
8. Robinson~ suit against KTRK and/or its parent company over the same
broadcasts, without su~, on two prior occasions, first by improperly suing KTRK's ultimate
parent company,!®¥alt Disney Company ("Disney"), in federal court (Cause No. 4-10-CV-
03498) and then empting to add Disney and KTRK to a lawsuit she had joined against the
TEA (Cause N~ -l 1-CV-00358). Robinson filed these actions despite being shown prior
decisions an~isputed evidence that there was no jurisdiction over Disney. Not surprisingly,
both federal suits were unsuccessful but resulted in substantial unnecessary expenditure of fees
by KTRK. However, this state suit and the basis for the Anti-SLAPP award of attorneys' fees,
was filed on September 14, 2011.
9. The nature of this proceeding involved a new statute in an emerging area of law.
From the outset of this case, Plaintiff chose to ignore the actual statements that were made in the
broadcasts at issue and instead mischaracterize them to the Court. Her repeated lawsuits in
multiple jurisdictions as well as subsequent writs of mandamus and other unrecognized post-
2
A-308484_1
Supplemental Affidavit of Laura Prather In Support or Award or Attorneys' Fees, Costs, Expenses and Sanctions
2 or20
appeal filings, as well as her refusal to recognize the truth of the statements made (that were
further substantiated by discovery responses from the involved state agencies), needlessly
increased the cost of this defense. Furthermore, while continuing to ignore Plaintiffs
evidentiary issues in this case, Plaintiffs uncompromising stance at every stage in the litigation,
including the filing of her 289-page response to Defendant's anti-SLAPP Motion to Dismiss, and
the filing of her Amended Petition on January 23, 2012 (after the filing of Defendant's anti-
SLAPP Motion to Dismiss), and failure to provide prlma facie evidence against Defendant's
anti-SLAPP Motion to Dismiss, resulted both in the delay of the trial date and the expense of
significantly more attorneys' fees than would have otherwise been incurred. ~
10. KTRK's anti-SLAPP motion filed on December 21, 2011 a new statute"~ed
in an emerging area of law which required extensive and thorough resear@~~~~ther Texas state
court rulings. When Plaintiff filed a 283-page response to Defend~~otion contesting the
applicability and the constitutionality of the statute, KTRK was r~~d to defend the statute
requiring lengthy hours of drafting and preparation and research of~er jurisdictions out of state
in preparation for KTRK's Reply. ~
~
11. After the hearing on KTRK' s anti-SLAPP ~on to dismiss, post-submission
briefing was extensive as well. On appeal, KTRK not ~completely briefed the court on a
case that was, at that time, a matter of first impress~~g)
16. The fees, costs, and expenses are ~n out on a monthly basis as follows:
MONTH/YEAR ATTORNEY'S c~ EXPENSES& BILLING TOTALS
BILLING FEES ~TS TRAVEL
DATES
PREVIOUS $2,888.62 $245,038.97
TOTAL'
October 2011 -
Au ust 2014
$0.00 $4.48 $5,647.97
$1,829.70
$6,160.00
NEW TOTAL ___.____$3_,,_,1_2_3_.23__,__ _$3_._8_9_5._80_.__ _ _$_258,676.64
g
17. $.total amount of attorneys' fees incurred on this case between the filing of the
Original Petition and the date of the execution of this affidavit has been $251,689.29.
1
The Affidavit of Laura Prather In Support Of Award Of Attomeys' Fees, Costs, Expenses And Sanctions, Pursuant
To The Texas Anti-Stapp Statute, Chapter 27 Of The Civil Practice And Remedies Code filed with the Court on
August 14, 2014 contained all of the fees lnfonnation and invoices prior to August I, 20 I4 which are reflected in the
previous total and incorporated herein by reference.
4
A-308484_1
Supplemental Affidavit of Laura Prather In Support Of Award Of Attorneys' Fees, Costs, Expenses and Sanctions
4 of20
18. The total amount of expenses incurred on this case between the filing of the
Original Petition and the date of the execution of this affidavit has been $3,895.80.
19. The total amount of costs incurred on this case between the filing of the Original
Petition and the date of the execution of this affidavit has been $3,123.23.
20. Accordingly, the total reasonable and necessary attorneys' fees, costs and
expenses incurred in defending against Plaintiffs suit are $258,676.64, including fees, costs and
expenses incurred up to and including the filing of this affidavit. ~L
~
21. The attorneys' fees incurred are the usual and customary fe~r this work and
are reasonable and necessary and were incurred in the defense of Plainti~laims2 • In making
that evaluation, I considered the fees customarily charged in this arite the same or similar
services; the amount that Plaintiff claimed and placed in contr~ ; the favorable results
obtained for Defendant; the likelihood that acceptance of thi&;. ~P oyment precluded other
employment by me and Haynes and Boone; the experience,~tation, and ability of those
involved in this lawsuit; the novelty of the Texas Anti-§&.7\FPP statute and its dismissal
procedure; and the time limitations imposed by the Texas A~APP statute. I also considered
the amount of evidence that needed to be filed, the di~fic f the appellate filings, and the fact
that the case implicates Defendant's First Amendme s to report on an ongoing matter of
public concern.
()~
22. Counsel in this matter has parti~1zed expertise in this area of the law, has
more litigation experience with the anti-SLAI{j tute than most, if not all, attorneys in Texas,
and was intimately involved in the legislati~s istory. The litigation has been handled in the
most efficient manner possible, and the ;®1-SLAPP motion filed in an expeditious fashion
within the parameters of the statute. Th~easonable and necessary fees incuned in this matter
include, but are not limited to, pr~P, · and filing pleadings and other papers with the court;
conducting legal research; reviewi. evaluating the case to dismissal; developing, exploring,
and implementing legal theories , strategies to present Defendant's defenses to Plaintiffs
claims; investigating the facts,j\~uments, testimony, and other evidence relevant to the dispute;
preparing for hearing; and, r~mg legal arguments presented by Plaintiff.
23. I have rajQed the time allocated to this matter and the work performed by
Haynes and Boon~, L . ~ am familiar with my work and the work that was performed by other
attorneys in this c am also familiar with the work performed by the paralegal, which was
performed under irection and supervision and consists of work traditionally performed by
attorneys. T~e services rendered by the paralegal under my direction and supervision in
this case ha luded assisting in preparing exhibits to the Motion to Dismiss, assistance in
preparing for ourt appearances, and document management. The services rendered by the
2
Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 8 I2 (Tex. 1997) requires the Court to consider: (a) the
time and labor required; (b) the novelty and difficulty of the questions; (c) the skill requisite to perfonn the legal
services properly; (d) the preclusion of other employment by the attorney due to acceptance of the case; (e) the
customary fee; (f) whether the fee Is fixed or contingent; (g) the time limitations imposed by the client or the
circumstances; (h) the amount involved and the results obtained;(i) the experience, reputation, and ability of the
attorneys; (j) the "undesirability" of the case; and, (k) the nature and length of the professional relationship with the
client, Id. at 818.
5
A-308484_1
Supplemental Affidavit of Laura Prather In Support Of Award Of Attorneys' Fees, Costs, Expenses and Sanctions
5 Of 20
paralegal and other professionals in this case were not clerical but were the type of services that
would have been performed by an attorney if not performed by a paralegal or other professional.
The paralegal and other professionals assigned to this case are qualified by education,
experience, and training to perform the services required. I am also familiar with the expenses
incurred by Defendant in this matter. It is my opinion that the time spent by the attorneys and
paralegals, and the expenses incurred by Defendant, were reasonable and necessary in order to
defend Defendant in connection with this legal action.
24. Texas Civil Practice & Remedies Code §27.009 also provides~ a mandatory
award of sanctions in an amount the Court determines is sufficient to a!re ~ Plaintiff from
bringing actions similar to this action in the future, The amount of the sa s award is left to
the Court's discretion. However, sanctions sufficient to deter Plaintiff f~m ·ling similar claims
would be appropriate. It is apparent, from the sheer volume and const~ of Plaintiffs filings
and activities in the Court of Appeals and the Texas Supreme Court, ~~n award of sanctions is
not only appropriate, but is vital and necessary to deter Plaint~iff,
~rn her constant, repetitive
filings with the courts always seeking yet another bite of the . For example, below is a
chart showing the court filings by the Plaintiff since the l st C~ f Appeals opinion was issued
on July 11, 2013 3 : orff»v
Motion for Rehearing in No. 01-12-00372-CV Denied 8/21/2013
Petition for Review filed in Supreme Court No. 13.,- Denied 1/17/2013
0~ ~
Motion for Rehearing of Petition for Review le in Filed 2/03/2014 Denied 3/7/2014
Supreme Court ~
Filed 4/15/2014 Denied 6/06/2014
Motion for Rehearing of Petit~'
o 0
W-ri-t-of---+---F-il-ed-6/-2-5/_2_0_14-4-1----P-en_d_in--g---1
Mandamus and Request for OJ; , rgument filed in
Supreme Court No. 14-032 l
08/04/ I 4 Laura Prather R"iow ~f.P fuo """'';"prop""''"'°' moiloo lb•"" 0.70
08/11/l4 Lucy Netherton Revl~otlon for Attorney's Fees and Revise attorney's fees affidavit. 4.20
08/11/14 Laura Prather ~~ and outline suggested revisions to draft motion for fees. 0.50
08/12114 Alicia Calzada ~Qvlew and revise motion for fees. J.50
08/12/14 Lucy Netherton ;{!ff' Review Motion for Attorney's Fees and all exhibits; prepare and redact all billing 5.80
~~ statements; revise Ms. Prather's affidavit including attorney's foes numbers.
'(!;;:©
08/12/14 Laura Prather Review and revise Motion for Fees and supporting affidavits. 0.80
08/13114 Lucy Nethe~ Revise Motion for Attorney's Fees and prepare all exhibits for filing; review 5.20
current John Moore case for latest exhibit; review Ms. Prather's affidavit; research
additional attorney's fees cases for inclusion In Motion; communicate with Ms.
Prather regarding same; revise exhibit list for inclusion in Motion.
08/13/14 Laura Prather Continue working on Motion and Brief in Support offees and Affidavits and 2. 10
exhibits In support of same; send to client for comment.
Supplemental Affidavit of Laura Prather In Support Of Award Of Attorneys' Fees, Costs, Expenses and Sanctions
10 of 20
The Walt Disney Company September 11, 20 I4
Invoice Number: 21090701 Page 2
ClienVMatter Number: 0049141.00002
08/14/14 Alicia Calzada Locate Rustic Cedars' attorney's fees order for inclusion in motion. 0.10
08/J 4/14 Lucy Netherton Revise Motion for Attorney's Fees; finalize all exhibits for same; draft Order 4.70
Granting Motion on Attorney's Fees; revise Notice of hearing to reflect filing
dates; draft Orders granting special Appearances; review district Court's docket
regarding special appearances.
08/14/14 Laura Prather Review suggested edits to motion and exhibits. 0.30
08/14114 Catherine Robb Review and revise proposed Orders for filing; finalize and file M~or Fees ).10
and Orders, ~
08/J 8/14 Lucy Netherton Communicate with court coordinator regarding new time fqfh~lng; draft 2.30
amended notice of hearing; obtain all cases cited in briefmg~reparation for
hearing. r?~
Q~
08/28/14 Laura Prather Review briefing 1.20
on motion for fees.
Ch11rgeable Hours 30.50
Total Fees $5,700.50
Adjustment (Fee Adjustment Less I%) ($57.01)
Total Adjusted Fees $5,643.49
A.mfiluU
$4.48
$4,48
$5,647.97
USO $5,647.97
Supplemental Affidavit of Laura Prather In Support Of Award Of Attorneys' Fees, Costs, Expenses and Sanctions
11 of 20
The Walt Disney Company September 11, 2014
Invoice Number: 21090701
Client/Matter Number: 0049141.00002
The Walt Disney Company
lndlru Satyendra
ABC Inc
77 West 66th Street 15th Fl
New York NY I0023
Cllenl/M ntter: 0049141.00002
Thenoln Robinson
Billing Attorney: Laura Prather
REMIITANCE PAGE
For Professional Services Through August 31. 2014 0
~cr
~
~
Remit to:
Haynes and Boone LLP
P.O. Box 841399 o~
Dallas, TX 75284-1399 Q~
Total Fees ~
o~ $5,700.50
Adjustment (Fee Adjustment Less 1%) ~
Total Adjusted Fees
Qf@ $5,643.49
Total Expenses o~ $4.48
~
Totnl Fees, Expenses nnd Charges
~ $5,647.97
~
Total Invoice Balance Due USD $5,647.97
<@>
018···
ire fees are tho responsibility oflho sender.
BANK A E !CA 100 West 3Jrd Street Now York, NY IOOOI
For to the Account ofHA YNES AND BOONE, LLP
ABA N0.~0- Operating Account No.:
ri!f), . SWIFT Add"'' BOFAUSJN
0 For ACH Pnyments
"~
r Credit to the Account ofHA YNES AND BOONE, LLP
NO. 111 Operating Account No.:
Please Reference Invoice Number: 21090701
01111•••
Responsible Attorney: Laun Prather
g Client Number: 0049141.00002
~~
Supplemental Affidavit of Laura Prather In Support Of Award Of Attorneys' Fees, Costs, Expenses and Sanctions
12 of 20
Supplemental Affidavit of Laura Prather In Support Of Award Of Attorneys' Fees, Costs, Expenses and Sanctions
13 of 20
Laura Lee Prather
laura.. prather@haynesboone.com
Laura Lee Prather Is a partner In the Litigation Practice Gro~lfl the Austin
office of Haynes and Boone, LLP. Laura focuses her practlc ~rst
Amendment, Intellectual property and media and ente~~ t litigation
and appeals. She has significant government relation rlence as an
advocate at the Texas Legislature on First Amendm~1l Cl open
government concerns. Laura advises an extenslVJl rrJ!Y
of content
providers Including onllne and traditional new~~~' magazines, radio and
broadcasters, cable television stations, produ companies and music and
sports entitles. She regularly wins early d~
"' ') I and summary judgment of
cases - oftentimes without the expens~e o~ overy. For this, she was
recognized In 2011 as a Bll Client Se All-Star.
Q~
Laura was the lead author and nen~or for the three most significant
pieces of First Amendment legwra:~\~?{1~ recent history In Texas - the
reporters' privilege, the ant1-si::/ui# statute, and the Defamation Mitigation
Act. Through her efforts, ~oth formed and led the coalitions In support
of all three of these m~, making Texas the 37th state to pass a
reporters' privilege, t state to adopt an antl·SLAPP statute, and the
32nd state to enac~'f action statute. All three laws are designed to
promote and prot~'JTee speech rights In Texas.
In 2011, Laum.~s named by The American Lawyer as one of the best
0
young i!~~yers In the nation. She was recognized for her substantial
career rce advocate dedicated to preserving First Amendment rights,
defend edla companies In cases Involving reporting on matters of public
con~, and defending entertainment companies In theft of Idea, trademark
arr~-P\.rlght Infringement litigation. Jn addition, Laura Is the first woman to
if'~R/e Texas Daily Newspaper Association's "Legacy Award," and has been
. . ~limed Texas Association of Broadcasters' "Associate of the Year" and as
'·::~~'. .:.~ one of Texas Lawyer's "Extraordinary Women In Texas Law."
:\S~:f{]r Published Decisions
• KTRK Television, Inc. v. Robinson, 409 S.W.3d 6B2 (Tex. App. - Hou.
[1st Dist.] 2013, pet. denied)
• Jehllng v. A.H. Belo Corp., slip copy, 2013 WL 5803813, N.D. Tex.,
October 28, 2013 (No. 3:11-CV-1258-B)
µ~t!n, • Canales v. ALM Media, LLC, slip copy, 2013 WL 5719476, W.D. Tex.
r,6.N!Jhest October 18, 2013 (No. A·12-CV·1036·LY)
,;:~,;· ..·;: • KTRK Television, Inc. v. Robinson, 01·12·00372-CV, 2013 WL 3483773~~ffe:~~J:'···'i;}~i!~ils (Tex. App.-Houston [1st Dist.] July 11, 2013, no, pet. h.)
: ·: •·' ·2013 WL 3240040, 41 Media L. Rep •
.:-court Admissions 2129, 56 Tex. Sup. ct. J. 766, Tex., June 28, 2013 (No. 11-0228)
Supplemental Affidavit of Laura Prather In Support Of Award Of Attorneys' Fees, Costs, Expenses and Sanctions
14 of 20
',,· ( V:'.~ i t,9Vrt,9t Appeals
:·+ti ftfp'1e ,Fifth_ Circuit • Garza v. Eagle Creek Broadcasting, 2012 WL 6061784, 40 Media L. Rep •
2686, Tex. App. - Corpus Christi, December 6, 2012 (No. 13-10-00573-
'. '·•"·U.S. Court of Appeals
·.:·: 'r6r th'e' Ninth circuit CV)
:~. u:~;:court·or Appeals
. . 'WJ~·e Tenth Circuit • Arbor Consulting, Inc. v. Better Business Bureau of Austin, 2011 WL
6160498, Tex. App. - Eastland, December 8, W11 (No. 11-11-00109-
' . ·; • '. U.S. District Court for
CV)
~:{::,;~~i:;.s~ern Dlsrrlct of • McClain v. (]SA Today Newspaper, 2010 WL 2404651, Tex. App. -
":"'~.i1~.U.Sf-!;>,lstrJct court for Dallas, June 17, 2010 (No. 05-08-01123-CV)
:}Ft:.r:,the. ~9rtJl1m1 Dls,trtct
.
~:~~)}~';: ·;:~~,f1~1~·¢,g~rt for
·· &t'i:1l~riroi5tr1et·
):~mijf\?.fIT.~~kf : . i.;. · ·.. · .·.
•
•
31, :W09 {No. 05-09-00857-CV)
Rosenfeld v. Twentieth Century Fox Fflm Corp., 37
*
In re Rabb, 293 S.W.3d 865, 2009 WL 2437212 1 Tex. App. - Dallas, July
~~~· Rep. 1348
(C,D. Cal. 2009) o~
<;::~~\:AH:~~~PJ~f-~ct ~?urt tor
;::i~=.}:.tfie,V/.estern District . · • Busch v. lovers lane United Methodist Church,'Jf@8 WL 345450, Tex.
''i)!~~;~'' . •
App. - Dallas, February 8, 2008 (No. 05-07-~·CV)
Plkl v. Enriching Entertainment, llC, 2ogw00004, E.D. Tex., January
7, 2008 (No. CIV.A. 4:07CV514) Q~
• Huffman v. Best for Texas PAC, 37~dfa L. Rep. 1351 (Tx. Dist. Ct. -
Harris Co. 2008) o~
• KENS-TV, Inc. v. Farias, 36 ~· Rep. 1076 (Tex. App. - Dallas
2007, no pet.) Q
• Bailey v. Bowles, 2006 ~3121678, Tex. App. - Dallas, October 26,
2007 (No. 05-07-006~V)
• Busch v. lovers (ff:;f:jn/ted Methodist Church, 2007 WL 2380293, Tex.
App. - Dallas,~'Yst 22, 2007 (No. 05-07-00761-CV)
• Busch v. Wlllr:ljs, 2007 WL 2254939, N.D. Tex. February 7, 2007 (No.
CIV,A. 3~1352-D)
• In r~ant Corp., 2006 WL 1030153, Tex, App. - Corpus Christi, April
l~v (No. 13-06-166-CV)
• Jl1.re BP Products North America, Inc,, 263 S.W.3d 117 (Tex. App. -
©~cll. [1st Dist.] 2006, no pet.)
Q Topheavy Studios, Inc. v. Doe, 33 Media L. Rep. 2192 (Tex. App. -
~ Austin 2005, no pet.)
"i{/!fl • Boone R. Enterprises, Inc. v. Fox Television Stations, Inc., Paul Adrian
~~ and Ernestor Pena, 189 S.W.3d 795 (Tex. App. - Dallas 2005, no pet.)
~ • UTV of San Antonio, Inc. d/b/a KMOL-1V v. Ardmore, Inc., 82 S.W.3d
~- 609 (Tex. App. - San Antonio 2002, no pet.)
• Provencio v. Paradigm Media, Inc., d/b/a The Texas Network, 44 S.W.3d
677 (Tex. App. - El Paso 2001, no pet.)
• NW Communications of Texas, Inc., David Christopher and Kay Vinson
v. John Power, Ind/vldually and d/b/a Brushleld Systems of America, 28
Media L. Rep. 2483 (Tex. App. - Dallas 2000, pet. denied)
• Sharp v. Cox Texas Publ/catlons, Inc., 943 S.W.2d 206 (Tex. App. -
Austin 1997, no writ)
• Memorial Hosptla/-The Woodlands v. The Honorable F. Scott Mccown,
927 S.W.2d 1 (Tex. 1996)
In a.ddltlon to her orlvate oractl.c.e Laur.a.has server! as the oroar.am
Supplemental Affidavit of Laura nather Jn ::;upport Ot Awara OfAtti5rneys· t-ees, Gosts,Bpenses ana ::;anctlons
15 of 20
attorney for the national television shows Christina's Court and Judge Alex,
serves as an adjunct professor at the University of Texas School of Law in
Media & Entertainment Law, and was the editor of the E-Copyright /Aw
Handbook published by Aspen Law and Business.
Laura works on legislative initiatives and lobbying as a member of the Texas
Association of Broadcasters' Legislative Task Force, the Pubflc Participation
Project's National Board of Directors, the General Counsel for the Legislative
Advisory Committee of the Texas Dally Newspaper Association and the
Texas Press Association, and as a co-chair of the Freedom of Information
Foundation of Texas' Legislative Committee. She has also Initiated and
chairs the Media Libel Resource Center's State Legislative ~!flmlttee,
bringing together lobbyists from virtually every state that~ on
Jeglslatlon impacting the media industry and governme~~sparency.
Laura has been elected to the National Board of Dlre~"%r the Student
Press Law Center for the 2011-2013 term. ~
"~
In May 2009, Texas became the 37th state ti~ a reporter's privilege
when Gov. Rick Perry signed the Texas Fre~ of Information Act. Laura
represented the Texas Daily Newspaper !fSS« ation, the Texas Press
Association, the Texas Association of o~sters and the Freedom of
Information Foundation of Texas on 0t · ue. She was at the forefrorit of
the efforts to get this law passed sl 05 and 2007. Laura was the chief
drafter and negotiator for the Fr
multiple times before various tlve committees In the process of
gaining Its passage.
o~
Selected l>ubllcatlo~ Speeches
• "A Victory Fo~QAnti-SLAPP Laws," Law360, July 16, 2014.
• "Texas News~m Legal Toolbox," Speaker, Texas Association of
Broadca~, Austin, Texas, August 21, 2013.
• "Ey~e Lege," Panelist, Freedom of Information Foundation of
T~nual State Conference, Austin, Texas, August 9, 2013.
• ~ntl-SLAPP laws," Speaker, American legislative Exchange Council,
~d\h Annual Meeting, August B, 2013.
IF'~
'V "A Trlfecta Of 1st-Amendment Advances In Texas," I.aw 360, July 29,
~ 2013.
o~ • "The New Defamation Mitigation Act - How It Affects Texas Newsrooms,"
~(() TABulletln, July 1, 2013.
~© • •open Government Seminar," panellst, State Bar of Texas Annual
Meeting June 21, 2013.
~ • "New Laws Protecting Texas Newsrooms," Freedom of Information
Foundation of Texas website, June 2013.
• "Antl-SLAPP Update: Texas' Citizen Participation Act Gets Stronger,"
Freedom of Information Foundation of Texas website, June 21, 2013.
• "Texas Adopts the Defamation Mitigation Act," Freedom of Information
Foundation of Texas website, June 21, 2013.
• "FOI Report," panelist, Texas Associated Press Managing Editors Annual
Convention, April 7, 2013.
• "Newsroom Outlook," panelist, Texas Association of Broadcasters 2013
legislative Day, January 2B, 2013.
Supplemental Affidavit of Laur« PnMatJkS6.QJJIJ')tll@i!A~ltl~Atterllll}l$l;fi~~ ~:!}
• "Let the Free Flow of Information Beg_fi~xas Adopts 'Reporter's
Privilege'," author, Texas Press Ass~~n's eBulletln, July 2009.
• "Legislative Update on Free F f , f l ' Speaker, Texas Press Association
Annual Convention, June 19,
Cl
• "Texas Becomes Number~ States that have a Reporter's Privilege,"
author, MLRC Media LaWl't<ter, May 2009.
"~dl
• "The Television Decen~ Cases: Are F-Words and Fleeting Expletives
Sanctlonable7" ~~tor, American Bar Association Section of
Litigation Ann~Mference, April 30, 2009.
• "Hot Issues 1i©hbpoenas," speaker, American Bar Annual Conference
Forum on @nmunlcatlons Law, Scottsdale, AZ, February 5, 2009.
• "A~v,"~the Free Flow of Information Act," speaker, Texas
A ~lon of Broadcasters Legislative Day on the Free Flow Initiative,
, TX, February 2, 2009.
~sr
• ~~\edom of Information/Open Government Panel,• panelist, Texas
(f' ~'Associated Press Managing Editor's Legislative Conference, Austin, TX,
'VJ January 7, 2009,
(·~. "Golly, I Just Got Fined by the FCC Again I" author, Sedgwick's Media
Law Bulletin, January 2009.
~
{0©
• "Recent Attempts to Enact State Shield Laws," author, MLRC Committee
Report, December 2008.
~ • "Newsroom Legal Issues I Free Flow of Information Act (FFOIA),"
speaker, Southwest Broadcast Newsroom Workshop, Austin, TX,
October 4, 2008.
• "What the $-#*&Is up with the fleeting expletives (and fleeting Images)?"
speaker on co-authored article, State Bar of Texas - 18th A11nual
Entertainment Law Institute, October 2-3, 2008.
• "The Journalist's Privilege and Shield Law," speaker, Austin Bench Bar
Conference, San Antonio, TX, April 18, 2008.
• "free Flow of Information," speaker, Texas Dally Newspaper
Association's Statewide Convention, Austin, TX, March 11, 2008.
• "Hot Issues In Newsgatherlng," facilitator, American Bar Association
Supplemental Affidavit of Laura pfaffi'~Plh 'mi~9iW'aP~~dl~cm5A\tortiJ%t~e"?,Q~t!8!tlf.~~~&nmi1iRa>~r\bYit9~·
18 of20
FL, February 2008.
Professional Recognition
• Nominated for 2014 Americas Women In Business Awards, presented by
Euromoney Legal Media Group
• Named one of the top 45 women lawyers In the nation younger than age
45 by The American Lawyer, 2011
• Named to the BTI Client Service All-Stars Team for Law Firms, 2011
• Recipient of the Texas Dally Newspaper Association's L&l~ Award,
2010 ~'-':}'
• Named Associate of the Year by Texas Assoclatlo~roadcasters,
2009 ~
• Profiled In Texas Lawyer In "Extraordlnary#:n In Texas Law," as
one of the state's top 30 leading women I rs, 2008
0 ,
• Recipient of the Texas Association of~casters' Award of Honor for
•outstanding Efforts In the Contlnu~~tle to Pass the Texas Free Flow
of Information Act" during the BQ~glslature, 2007 Regular Session
• Awarded the Special Preslden~ard by the Texas Association of
Broadcasters, 2005 Q'{)
• Selected as a Rising S~a@~fhe Legal Field, Austin Business Journal,
2004 ~
• Received the "Au~~der 40 Legal Award,• the Austin Young Men's
Business Leag~ W Austin Young Women's Alliance, 2001
• Chosen as on~ the top 10 "Up-and-Comers on the Texas legal
Scene• b_¥,~as Lawyer, 2000
• Mar:_~~ubbell® Law Directory with a Peer Review Rating of AV®
Pr~nt™
P~lonal Leadership
Qi5) American Bar Association Forum on Communications Law, Internet chair
~ • American Bar Association Utlgatlon magazine, editorial board, 2004-
"~ 2012
~l~y~'il.<:mosts, Expenses and Sanctions
19 of20
• Colorado River Foundation, former board member
• Center for Child Protection, former advisory board member
• Leadership Austin, 1998-1999 graduate
Supplemental Affidavit of Laura Prather In Support Of Award Of Attorneys' Fees, Costs, Expenses and Sanctions
20 of 20
APPENDIX TABS:
Plaintiffs Response to Motion to
Dismiss in No. 2011-54895
(WITHOUT EXHIBITS)
No. 2011-54895
THEAOLA ROBINSON, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
§
v. § HARRIS COUNTY, TEXAS
§
THE WALT DISNEY COMP ANY; §
ABC TELEVISION NETWORK, INC.; §
CC TEXAS HOLDING CO., INC.; and, §
KTRK TELEVISION, INC. §
§ 234th JUDICIAL DISTRICT
Defendants. §
§
§
PLAINTIFF'S RESPONSE TO MOTION TO DISMISS
Introduction
Last year, Texas lawmakers unanimously passed the Texas Citizen Participation
Act ("TCP A"), codified at § 27 .003 et seq. of the Texas Civil Practice and Remedy Code.
Generally termed an anti-SLAPP code, the TCPA took effect June 17, 2011 and controls
any actions filed after that date. SLAPP stands for "Strategic Lawsuit Against Public
Participation." As an idea it refers to the type of lawsuit filed in retaliation for speaking
out on a public issue or controversy, particularly the type oflawsuit that would ultimately
fail if fully litigated, but is brought to chill free speech by intimidating critics with the
prospects of defending an expensive litigation. In short, the lofty goals of anti-SLAPP
laws are to protect the free speech rights of those that Jack money in the face of the
resources that those they speak out against may bring to bear. This is an early anti-
SLAPP case in Texas, and we see the abuse potential of this statue when a large media
entity uses an anti-SLAPP motion to fight a defamation lawsuit. Indeed, in other states,
such as California, anti-SLAPP motions came to be viewed as "a cloak of invincibility
for the professional liability defense bar, insurance companies, collection agents and
unscrupulous attorneys." McClelland, M. Dylan, SLAPPLash: the Courts Finally turn on
California's Anti-SLAPP Motion, January 2009 (available at
http://works.bepress.com/m_dylan_mcclelland/3).
Summary of the Argument
Upon defendant filing a motion under the TCP A, "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." Tex.Civ.P.&Rem. Code § 27.00S(b).
Therefore, KTRK bears the burden on its motion, and must show "by a preponderance of
the evidence that the legal action is based on," KTRK's exercise of its right to free
speech. Tex.Civ.P. & Rem. Code§ 27.00S(b)(I). The TCPA defines the exercise of free
speech as "communication made in connection with a matter of public concern."
Tex.Civ.P.&Rem. Code§ 27.001(3).
Following KTRK's establishment of its burden, the burden then shifts to Plaintiff,
and the Court may not dismiss if Plaintiff establishes by clear and specific evidence a
prima facie case for the essential elements of her claim. Tex.Civ.P. & Rem. Code §
27.00S(c). In determining whether this case should be dismissed, the Court shall consider
the pleadings and supporting and opposing affidavits stating the facts on which the
liability or defense is based. Tex.Civ.P. & Rem. Code§ 27.006.
The elements of defamation against a media defendant brought by private
individuals include: ( 1) publication of a statement; (2) that the statement was defamatory
as to plaintiff; and (3) negligence by defendant. WFAA-TV, Inc. v. Mclemore, 978
2
S.W.2d 568, 571 (Tex. 1998). Plaintiffs can make a prima facie case on these elements,
therefore the motion must be denied. Prima facie evidence is evidence that until
overcome by other evidence suffices as proof of a fact in issue. Duncan v. Butterowe,
Inc., 474 S.W.2d 619, 621 (Tex.Civ.App. -Houston [14 111 Dist.] 1971, n.w.h).
KTRK freely admits that they published the statements complained of, and attach
the publications as part of their exhibits. Falsity is an essential element of a defamation
claim. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986); Cain v.
Hearst Corp., 878 S.W.2d 577-580 (Tex. 1994). A statement is defamatory if it tends to
injure the person's reputation. Means v. ABCABCO, Inc., 315 S.W.2d 209, 214
(Tex.App. -Austin 2010, no pet.). The statements were false, and injured Plaintiffs
reputation.
"Negligent conduct is determined by asking whether the defendant acted
reasonably in checking the truth or falsity or defamatory character of the communication
before publishing it." Scripps Texas Newspapers, L.P. v. Belalcazar, 99 S.W.3d 829, 837
(Tex. App. - Corpus Christi 2003, pet. denied)(internal quotations and citations omitted).
As shown by the evidence, no allegation was made by the State of Texas of a missing $3
million. No allegation has anywhere been made by the State of Texas that any money
was unaccounted for. Defendant has made no affidavit showing that it checked the facts
in this regard. To establish that the defamatory statements were published with actual
malice, the publication must be shown to be done "with knowledge that it was false or
with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan,
376 U.S. 254, 279-80 (1964). Even if the Court were to apply the actual malice standard
to this claim of a non-public figure, the evidence presented by Plaintiff establishes the
3
legally sufficient standards for an inference of actual malice. Moreover, if the Comi
concludes malice standard applies and that the objective circumstances do not make a
prima facie showing of malice, the Court must allow limited discovery to effectuate the
TCPA savings provision in Section 27.011, or else the TCPA would violate the U.S. and
Texas Constitutions and the common law.
Common sense must be taken into account in the Court's decision. As a
California court succinctly put it, "SLAPP suits 'masquerade as ordinary lawsuits' the
conceptual features which reveal them as SLAPP'S are that they are generally meritJess
suits brought by large private interests to deter common citizens from exercising their
political or legal rights or to punish them for doing so." Paul v. Friedman, 95
Cal.App.4111 853, 862 (2002)(citations omitted). This suit was not brought by public
figures or large private interests, rather it was brought by one private senior citizen,
struggling to do good in one of Houston's most depressed communities. This suit was
not brought against common citizens, but brought against one of the largest media
corporations in the country and its local affiliate. This suit was not brought to deter the
freedom of the press from reporting on the sad story of Benji's closure, rather it was
brought to hold the sole outlet of the press accountable for a blatantly false statement.
All the major news organizations reported the events which unfolded at Benji's on and
after September 13, 2010. As detailed in the petition, none of the other news
organizations reported anything like the statements made by Defendants and falsely
attributed to the state. If Plaintiffs were attempting to deter free speech, they would have
to go after all of them. There is a large difference between reporting the TEA's
Commissioner's statement that his state board of managers alleged financial non-
4
viability, and falsely insinuating the embezzlement of over $3 million. Defendants
should not be allowed to hide behind an anti-SLAPP shield to destroy the last bit of
human dignity remaining to Mrs. Robinson.
Argument
1. Plaintiffs have established a prima facie case of libel
The specific statements alleged to be defamatory are fully laid out in the petition:
40. On September 15, 2010, on the 4:30 PM news, Houston ABC
Channel 13, KTRK, in studio reporter Ilona Carson and field reporter
Cynthia Cisneros aired a two and a half minute segment on the situation at
Benji's. Cisneros said, "According to the State millions in tax payer
dollars cannot be accom1ted for." After playing clips of a parent, Shanika
Thompson, and of Benji's spokesmen, Richard Johnson, Cisneros went on
to say, "The state closure is based on a lack of sufficient financial records,
meaning the state doesn't know where over three million dollars of
taxpayer money given last year has been spent." A transcript of the entire
broadcast is attached hereto. (Exhibit 3). The video was later published
on ABC's website, along with a printed article "Defiant leaders refuse to
close school," under Cynthia Cisneros byline. Cisneros wrote: "For the
state, the issue is simple - where is the money? They say millions of
taxpayer dollars are unaccounted for .... The state closure is based on a lack
of sufficient financial records, meaning the state doesn't know where the
more than $3 million of taxpayer money given last year has been spent. .. "
(Exhibit 4).
***
45. The story was repeated by Defendant later that month, on September
25, 2010, when KTRK's Dave Ward and Gina Gaston in-studio and
Jessica Willey reporting, aired a nearly three minute segment on the
situation at Benji's. The video was later published on KTRK's website,
along with a printed aiticle "Questions raised over charter school's
finances," under Jessica Willey's byline. Willey wrote: "Where is
taxpayer money going and how is a taxpayer-owned building being
used? ... The Texas Education Agency says it doesn't know how Benji's
spent $3 million of taxpayer money, and a lease agreement obtained by
Eyewitness News raises even new questions." (Exhibit 7).
46. The article generated 11 comments on KTRK's website, including:
I. ... Call and ask where the money went. I'm sure Theola
[sic] Robinson tell you.
5
2. Could it be in somebody's pockets?
(Exhibit 7).
***
48. The filing of an action in this Court spurred the next incarnation of
KTRK's story on September 27, 2010. The video was later published on
ABC's website, along with a printed article "Lawsuit filed against Benji's
Academy," under Jessica Willey's byline. Willey wrote: "The Texas
Education Agency doesn't know how the academy spent $3 million of
state money." (Exhibit 9).
49. The article generated 15 comments on KTRK's website, including:
7.... Ms. Robinson should be arrested, not because she's
black, because she's a thief!
8. I am just amazed as to why the parents are not suing
Theaola Robinson and the old Board of Director, they are
the ones who are stealing their children's future ...
***
12. You bet they want to keep it open, if its closed an
investigation will show they were all taking money not to
mention they won't be able to afford their new house,
Hummer and boat payments the school and taxpayers were
helping to buy.
(Exhibit 9).
50. KTRK's Cisneros returned to the story on September 30, 2010. The
video was later published on KTRK's website, along with a printed article
"Charter school fight goes to federal court," under Cynthia Cisneros's
byline. Cisneros wrote: "The state says it had no choice, alleging Benji's
did not provide proper financial records to account for over $3 million in
state funding for the past year." (Exhibit 10).
51. The article generated 14 comments on KTRK' s website, including:
11. The state is not to blame here. They need to sue the
administrators to find out where the money is followed by
prosecution of those who may have "mis-spent" it. Put
blame where blame is due!
***
13. Simple! No money! Can not account for $9 [sic]
million! Close the doors and take the administrators to
court for mis-use of government (your) money ....
6
(Exhibit 10).
52. The KTRK. version of the saga was continued by Katie McCall on
October 11, 2010. The video was later published on ABC's website,
along with a printed article "Organizers plan to reopen troubled charter
school," under Katie McCall's byline. McCall wrote: "On September 14,
the TEA ordered Benji's Academy to close, citing millions of dollars in
state funding that was not accounted for." (Exhibit 11).
53. The article generated 10 comments on KTRK's website, including:
2. the only thing organized about this plan is the organized
crime
***
5.... the parents are supporting the administrators who have
a little charisma along with a talent for lining their
pockets ...
6.... The mgmt of this facility, will continue to steal under
the guide [sic] of a school, where the kids will continue to
suffer[r]
(Exhibit 11 ).
Plaintiff's Original Petition,~~ 40, 45-46, 48-53.
These allegations as to the precise content of both the oral and written statements
alleged to be slanderous and libelous defamation are undisputed and are made part of the
record for purposes of this motion by both the Movant and Respondent. The per se
defamatory nature of these utterances is virtually self-evident, and even if this were not
the case, they are amply provenprimafacie by the comments posted on the Defendant's
website.
As stated in the petition:
58. The Court and factfinder need not indulge in any ratiocination to
determine how a person of ordinary intelligence would interpret the
complained of statements, whether the complained of statements were
capable of defamatory meaning, or whether the public generally, and those
who know or are acquainted with Mrs. Robinson specifically, understood
that the statements referred to Mrs. Robinson. All that is amply
7
demonstrated by the public comments detailed herein, matters not
available to courts and juries at the time these legal standards were
developed but readily available in the modern digital age and sufficient to
prove beyond doubt the wanton and malicious destruction of a good and
honest person's reputation.
Plaintiffs Original Petition,~ 58.
The legal test, prima facie, is to determine whether "the words used were
reasonably capable of a defamatory meaning." New Times, Inc. v. Isaacks, 146 S.W.3d
144, 155 (Tex. 2004); Musser v. Smith Protective Services, Inc., 723 S.W.2d 653, 655
(Tex. 1987); Gumpert v. A~f Freight System, Inc., 293 S.W.3d 256, 264 (Tex.App. -
Dallas 2009, pet. denied). To answer this question the Court must determine how a
person of ordinary intelligence would perceive the statement. Isaacks, 146 S.W.2d at
154; Musser, 723 S. W.2d at 656. Disputed issues are for the fact finder
False imputation of criminal behavior is, of course, per se defamatory.
Leyendecker & Associates, Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984); Christy v.
Stauffer Publications, Inc., 437 S.\V.2d 814. 815 (Tex. 1969). Thus, the compelling
evidentiary force of the website posts by ordinary persons:
1. ... Call and ask where the money went. I'm sure Theola [sic] Robinson
tell you.
2. Could it be in somebody's pockets?
***
7 .... Ms. Robinson should be arrested, not because she's black, because
she's a thief!
8. I am just amazed as to why the parents are not suing Theaola Robinson
and the old Board of Director, they are the ones who are stealing their
children's future ...
***
11. The state is not to blame here. They need to sue the administrators to
find out where the money is followed by prosecution of those who may
have "mis~spent" it. Put blame where blame is due!
***
8
13. Simple! No money! Can not account for $9 [sic] million! Close the
doors and take the administrators to court for mis-use of government
(your) money ....
***
2. the only thing organized about this plan is the organized crime
***
5 .... the parents are supporting the administrators who have a little
charisma along with a talent for lining their pockets ...
Plaintiffs Original Petition, ~~ 46, 49, 51, 53.
The defamatory per se nature of all Defendant's published utterances is summed
up in one such posted comment:
7.... Ms. Robinson should be arrested, not because she's black, because
she's a thief!
Plaintiffs Original Petition, ~49.
So the issue becomes, is the imputation of criminal behavior by Mrs. Robinson
and Benji's of misappropriating to themselves $3 million dollars in public funds false?
On this point, the Court will look in vain for any evidence that the State of Texas has ever
claimed "that millions in taxpayer dollars cannot be accounted for." The very suggestion
is absurd for a number of reasons. These facts also provide ample evidence warranting
the conclusion that Defendant's statements were both negligent and malicious.
1. First, the Court's attention is drawn to the annual independent audited financial
reports of the school filed for many years. (Exhibit 1 to Robinson Affidavit). These
reports contain cash flow statements fully accounting for receipts and disbursements for
all prior years. All the money received and spent is accounted for by the independent
public accountants. These reports show that the entire annual operation of the school
funded by the state was near the $3 million level. Additional funding above this amount
9
came from federal grants primarily related to Benji's historic mission to provide for
special needs children, who comprised almost 20% of Benji's emollment.
2. At all times material, Benji's was subject to detailed State oversight,
specifically including on-site TEA conservators. Continuously, throughout the preceding
school year, the State observed school busses being run, teachers and staff working,
utilities functioning, equipment and supplied being used and replenished, and nutritious
meals being served to all of nearly 500 students and staff. Basic common sense and
reality mandate that the State would never claim that it did not know where any of the $3
million allocated by law to pay for all this had been spent. It is simply inconceivable,
absent pure malice that the State or anyone else would make any such statement
attributed to it and made by Defendants, that the entire $3 million was unaccounted for.
3. Most significantly, Defendants in their affidavits offer no evidence that anyone
from the State made any such statements to them. All they offer is the press release from
the TEA made September 14, 2010, the day before the Defendants began their campaign
of defamation. This press release, Defendant's Exhibit V, which Plaintiff has never seen
until its attachment to Defendant's motion, simply states that "A state-appointed board of
managers ... determined that the school is no longer financially viable and voted to close it
at the end of school today." This press release belies the assertion made by the state
managers in the SOAH and civil rights proceedings that their vote was to merely
''temporarily suspend" operations on an emergency basis rather than to permanently close
the school. This seems as good a place as any to object to all evidence offered from the
SOAH proceeding, and in particular the proposal for decision issued in that proceeding.
Out of an abundance of caution, Respondents submit Benji's pending exception to that
10
proposal for decision. (Exhibit A to Archambault Affidavit). That proceeding has not
been finally adjudicated. In the uncharted waters of this anti-SLAPP law motion, this
response sets fo1ih in great detail the demonstration that the asserted temporary
suspension is but a feeble, after the fact effort of the board of managers to bring their
action within some lav.rful authority. But the real point is that nowhere in the record of
any of the State's intervention or subsequent administrative proceedings to first remove
Benji's board and superintendent and then to revoke Benji's charter based on the
remarkable sacrifice of the affected community in continuing operation of the school in
defiance of the state appointed board's unlawful action and, by so doing, preserving to
the extent possible, the continuity of education for these children until, through their own
initiated efforts, they succeeded in getting the school reopened a month later, is there any
suggestion that $3 million in taxpayer revenue was unaccounted for. In fact, in a hearing
lasting a full four days in Austin, the word "unaccounted" was not even uttered once.
(Exhibit B to the Archambault Affidavit). The Movant's effort to put all this evidence
before the Court is simply an effort to distract the Court from the very narrow and precise
question of whether Defendants' repeated statements that $3 million in taxpayer money
could not be accounted for were maliciously or negligently uttered defamatory statements
which present a prima facie case of defamation per se of the Plaintiff
2. Movant presents no evidence of substantial truth
In Turner v. KTRK Television, Inc., 38 S.W.3d 103, 123 (Texas 2000), the Texas
Supreme Court observed: "An average viewer, however, would not view a 1. 7 million
dollar insurance swindle -- or even an $875,000 insurance swindle -- with any less
opprobrium than a 6.5 million dollar swindle." But in this case there is no evidence that
11
the State ever claim that any money had been misappropriated. There is no fact in the
record that the State of Texas ever claimed that any money had been unaccounted for or
misappropriated. The only communication from the State proffered by Movant is the
September 14, 2010, press release where the TEA Commissioner simply stated that his
appointed managers concluded that the school was no longer financially viable. There is
simply no evidence of any claim of unaccounted for disappearances and misappropriation
of any sum.
Movant searches far and wide for some basis to claim substantial truth, claiming
that there is evidence of financial mismanagement resulting in indebtedness to the IRS
and the State and of poor internal record keeping and poor financial condition. Even
granting these facts for purposes of this motion, none of this is any evidence of
misappropriation. Indeed, the long history of audited financial statements show that in
past years Benji's had indebtedness to the IRA and the State well in excess of the
amounts owed these two creditors at the time the State took control. 1 There was no
allegation of failure to account for expenditures as the cause for the incurrence of these
debts.
The final analysis on this issue is merely one of common sense. Companies go
bankrupt every day because of "mismanagement" without any suggestion of
misappropriation by the controlling persons. Mismanagement and misappropriation are
qualitatively different, not separate points on a continuum, not matters of degree. Finally,
it must be pointed out that there is no support in Movant's affidavits to support any
1
Over time these debts were extinguished and then reincurred. But from 2003 until 2009
these debts were enumerated and Benji's net assets increased from $200,000.00 to over
$1, 100,000.00. (Exhibit 1 to the Robinson Affidavit).
12
assertion that, at the time of the broadcasts, Benji's was being investigated for anything.
At the time of the broadcasts beginning September 15, 2010, the state appointed board of
managers and superintendent were in complete control of Benji's.
3. Malice is not applicable to non-public figures
Movant attempts no showing by affidavit that Mrs. Robinson is a public figure.2
Therefore, a negligence standard applies. As argued above, any reasonable person would
entertain doubt that a public school could operate for an entire year and yet the entire
annual funding for the school for that year would be completely "unaccounted for."
4. Malice can be inferred from the circumstances
If the Court finds that without any proof that Mrs. Robinson is a public figure and
that therefore a malice standard applies, Movant still cannot defeat Plaintiffs prim a facie
showing. A plaintiff may prove malice through objective evidence about the
publication's circumstances. Turner, 38 S. W.3d at 120. In this case, the objective
circumstances of the publication are that it was made when the TEA had been involved in
exacting oversight for the two previous years, and was in complete control of all financial
records and bank accounts at the time of publication. There is simply no way that anyone
could conclude that a school had operated for a year without paying payroll or utilities.
Furthermore, many payments had been regularly made to TEA and its conservators. (See
Exhibit 2 to Robinson Affidavit). Nor are Movant's statements that its reporters believed
what they said is true enough to defeat aprimafacie case. As the United States Supreme
Court has held.
2
Texas courts have not determined whether voluntariness is a criterion for becoming a
limited purpose public figure. See WFAA-TV. Inc. v. Mclemore, 978 S.W.2d 568, 572
(Texas 1998).
13
The defendant in a defamation action brought by a public official cannot,
however, automatically insure a favorable verdict by testifying that he
published with a belief that the statements were true. The finder of fact
must determine whether the publication was indeed made in good faith.
Professions of good faith will be unlikely to prove persuasive, for
example, where a story is fabricated by the defendant, is the product of his
imagination, or is based wholly on an unverified anonymous telephone
call. Nor will they be likely to prevail when the publisher's allegations are
so inherently improbable that only a reckless man would have put them in
circulation. Likewise, recklessness may be found where there are obvious
reasons to doubt the veracity of the informant or the accuracy of his
reports.
St Amant v. Thompson, 390 U.S. 727, 732 (1968).
Again, for emphasis, on the basis of the objective circumstances surrounding the
publication, the Defendant's allegations that the entire $3 million budget for the previous
school year is unaccounted for and that the State has no idea where any of this vast sum
of money was spent "are so inherently improbable that only a reckless man would have
put them in circulation." Id.
Finally, the United States Supreme Court has held that, if necessary, a plaintiff
must be accorded discovery on the issue of malice. Herbert v. Lando, 441 U.S. 153, 160-
177 (1979). The TCPA at Section 27.011 provides that it does not abrogate or lessen any
remedy under the Constitution or common law. 3 Therefore, if the Court should find that
malice is the standard and the objective circumstances themselves are not sufficient to
make a prirna facie case of malice, Plaintiff for good cause moves for limited discovery
under TCP A §27 .006(b).
Conclusion
For the reasons presented, Plaintiff prays this Court deny the motion to dismiss.
A proposed order is attached.
3
See Texas Constitution, Art. 1, §§ 8 and 14, set out in Turner, 38 S.W.3d at 117.
14
Respectfully submitted,
3014 Brazos Street
Houston, TX 77006
(713) 521-3525 (voice)
(713) 521-3575 (fax)
berrybowen@comcast.net
ATTORNEY IN CHARGE FOR
PLAINTIFF
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing document
has been sent via Federal Express to the following on this 5th day of January, 2012.
Laura Lee Prather FedEx Tracking #: 871811542346
Catherine Lewis Robb
919 Congress Ave, Suite 1250
Austin, TX 78701
15
APPENDIX TAB T:
Brief of Appellant KTRK
Television, Inc. No. 01-12-
00372-CV
(WITHOUT EXHIBITS)
CAUSE NO. 01-12-00372-CV
IN THE FIRST COURT OF APPEALS
HOUSTON, TEXAS
KTRK TELEVISION, INC.
Appellant,
v.
THEAOLA ROBINSON,
Appellee.
On Appeal from the 234th Judicial District Court of Harris County, Texas,
the Hon. Reece Rondon, Presiding
BRIEF OF APPELLANT KTRK TELEVISION, INC.
Laura Lee Prather
State Bar No. 16234200
Catherine Lewis Robb
State Bar No. 24007924
Haynes and Boone, LLP
600 Congress A venue, Suite 1300
Austin, Texas 7870 I
Telephone: (512) 867-8400
Facsimile: (512) 867-8470
ATTORNEYS FOR APPELLANT
KTRK TELEVISION, INC.
APPELLANT REQUESTS ORAL ARGUMENT
IDENTITY OF PARTIES & COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.2(1 )(A), the following are parties and
counsel for this appeal:
Appellant:
KTRK Television, Inc.
Attornevs For Appellant KTRK Television, Inc.:
Trial and Appellate Counsel:
Laura Lee Prather
State Bar No. 16234200
Catherine Lewis Robb
State Bar No. 24007924
Haynes and Boone, LLP
600 Congress Avenue, Suite 1300
Austin, Texas 78701
Telephone: (512) 867-8400
Facsimile: (512) 867-8470
Appellee:
Theaola Robinson
Attorney For Appellee Theaola Robinson
Trial and Appellate Counsel:
Berry Dunbar Bowen
Fed. ID No. 6177
State Bar No. 02721050
3014 Brazos Street
Houston, TX 77006
Telephone: (713) 521-3525
Telecopier: (713) 521-3575
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL ...................................................................... ii
TABLE OF CONTENTS ............................................................................................. iii
ST A TEMENT OF THE CASE .................................................................................... xi
STATEMENT ON ORAL ARGUMENT ................................................................... xii
ISSUES PRESENTED ............................................................................................... xiii
STATEMENT OF FACTS ............................................................................................. 2
I. Benji's Special Education Academy Was Being Investigated by the
State at the Time of the Broadcast. ...................................................................... 3
A. Appellee Habitually Provided Inadequate Financial
Documentation When Accounting for the Use of State Funds
to TEA ...................................................................................................... 4
B. Appellee Thwarted the State's Eff01is to Investigate and
Refon11 Benji's ......................................................................................... 5
C. Appellee Does Not Dispute Receiving a $9,000/Month Profit
From The Land Leased to Benji's .......................................................... 10
IT. Appellant Reported on the Allegations Being Made in the
Investigation Into Appellee and the Public Controversy Surrounding
the Investigation, School Closure, and Defiance of TEA 's Order .................... 10
III. Appellee Has Sued or Attempted to Sue Appellant Three Times Over
the Broadcasts at Issue ....................................................................................... 12
SUMMARY OF THE ARGUMENT ........................................................................... 13
ARGUMENT & AUTHORITIES ................................................................................ 15
I. Recent Legislation Provides New Protections for Those Exercising
Their Right of Free Speech ............................................................................... 15
A. Appellant Established that the Claims at Issue Fall Under the
Citizens' Participation Act's Protection ................................................. 16
iii
B. Appellee's Burden Was to Establish By "Clear and Specific
Evidence" a "Prima Facie Case" for Each Essential Element of
Her Claims Against Appellant. .............................................................. 17
C. Appellee Failed to Establish a Prima Facie Case for
Defan1ation ............................................................................................. 18
D. The Trial Court's Findings of Fact and Conclusions of Law
Den1onstrate Error. ................................................................................. 19
E. Standard of Review in this Citizens' Participation Act Appeal ............. 22
II. Appellee Failed to Establish With Clear and Specific Evidence that
the Complained of Statements Were Defamatory Per Se ................................. 24
ITT. Appellee Was Required to and Failed to Show Clear and Specific
Evidence of Actual Malice ................................................................................ 28
A. Appellee is a Public Figure .................................................................... 28
B. The Complained of Statements Were Privileged ................................... 33
IV. Appellee Failed to Prove By Clear and Specific Evidence the
Complained of Statements were Published with Actual Malice ....................... 35
V. Appellee Failed to Establish With Clear and Specific Evidence That
The Complained of Statements Were Materially False .................................... 37
A. Appellant's Broadcasts Were Substantially True ................................... 37
B. The Substantial Truth Test Applies to Appellant's Reporting
on Ongoing Allegations Under Investigation by the TEA .................... .40
VI. Appellee Failed to Establish With Clear and Specific Evidence That
The Complained of Statements Were "Of and Concerning" Appellee ............ .41
PRAYER ...................................................................................................................... 42
CERTIFICATE OF SERVICE ..................................................................................... 43
APPENDIX .................................................................................................................. 44
IV
TABLE OF AUTHORITIES
Page(s)
CASES
ABC, Inc. v. Gill,
6 S.W.3d 19 (Tex. App. - San Antonio 1999, pet. denied) ........................... 25, 30, 40, 41
ABC, Inc. v. Shanks,
I S.W.3d 230 (Tex. App. - Corpus Christi 1999, pet. denied) ........................................ 36
Abdel-Hafiz v. ABC, Inc.,
240 S.W.3d 492 (Tex. App. - Fort Worth 2007, pet. denied) ............................. 23, 36, 37
Ampex Corp. v. Cargyle,
128 Cal. App. 4th 1569 (Cal. App. 1st Dist. 2005) ........................................................... 28
Beck v. Lone Star,
970 S.W.2d 610 (Tex. App. - Tyler 1998, pet. denied) ................................................... 29
Bose C01p. v. Consumers Union of the United States, Inc.,
466 U.S. 485, I 04 S. Ct. 1949 (1984) ................................................................................. 23
Brewer v. Capital Cities/ABC, Inc.,
986 S.W.2d 636 (Tex. App. - Fort Worth 1998, no pet.) ................................................ 34
Brewer v. A1emphis Pub. Co.,
626 F.2d 1238 (5th Cir. 1980) ............................................................................................... 30
Briggs v. Eden Council/or Hope & Opportunity
(1999) 19 Cal. 4th 1106 ......................................................................................................... 22
Brownlee v. Brownlee,
665S.W.2d11 (Tex.1984) .................................................................................................. 36
Brueggemeyer v. ABC, Inc.,
684 F. Supp. 452 (N.D. Tex. 1988) ..................................................................................... 31
CACI Premier Technology, Inc. v. Rhodes, et. al.,
536 F.3d 280 (4 1h Cir. 2008) .................................................................................................... 32
Capuano v. The Outlet Co.,
579 A.2d 469 (R.I. 1990) ......................................................................................................... 32
v
Carr v. Brasher,
776 S.W.2d 567 (Tex. 1989) ................................................................................................ 22
Carr v. Forbes,
11
259 F.3d 273 (4t Cir. 2001) ................................................................................................. 31
Carter, et. al. v. NW Communications of Texas, Inc., dlb/a KDFW Fox 4 and
KDFW-TV, Inc., et. al.,
111
Cause No. 12-02166 ( 160 Dist. Ct., Dallas County, Tex., May 24, 2012) .................. 20
Casso v. Brand,
776 S.W.2d 551 (Tex. 1989) .......................................................................................... 32, 35
Channel Two Television v. Dickerson,
725 S.W.2d 470 (Tex. App. - Hou. [1st Dist.] 1987, no writ) ......................................... 17
Christian Research Institute v. A/nor,
148 Cal. App. 4th 71 (Cal. App. 4th Dist. 2007) ............................................................... 29
City ofKeller v. Wilson,
168 S.W.3d 802 (Tex. 2005) ................................................................................................ 23
Clyburn v. New World Communications, Inc.,
705 F. Supp. 635 (D.D.C. 1989), aff'd,. 903 F.2d 29 (D.C. Cir. 1990) ................................... 32
Curtis Publishing Co. v. Butts,
388 lJ.S. 130 (1967) .............................................................................................................. 32
Diamond Shamrock Refining and Marketing Co. v. Mendez,
844 S.W.2d 198 (Tex. 1992) ................................................................................................ 19
Downer v. Amalgamated Meatcutters and Butcher Workmen ofN. Am.,
550 S.W.2d 744 (Tex. Civ. App. - Dallas 1977, writ ref d n.r.e.) .................................. 38
Fort Worth Press Co. v. Davis,
96 S.W.2d 416 (Tex. Civ. App. - Fort Worth 1936, writ denied) .......................................... 38
Fox Entm 't Group, Inc. v. Abdel-Hafiz,
240 S.W.3d 524 (Tex. App. - Fort Worth 2007, pet. denied) ......................................... 18
Freedom Communications, Inc. v. Sotelo,
2006 WL 1644602 Media L. Rep. 2207 (Tex. App. - Eastland 2006, no pet.) ............. 33
Gertz v. Robert Welch, Inc.,
418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 789 (1974) ............................................. 32, 33, 35
VI
Green v. CBS, Inc.,
286 F.3d 281 (5t 11 Cir. 2002) ................................................................................................. 38
Harte-Hanks Communications, Inc. v. Connaughton,
491 U.S. 657, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989) ................................................... 35
Hearst Corp. v. Skeen,
159 S.W.3d 633 (Tex. 2005) ................................................................................................ 23
Herald-Post Publishing Co., Inc. v. Hill,
891S.W.2d638 (Tex. 1994) .......................................................................................... 33, 39
Huckabee v. Time Warner,
19 S.W.3d 413 (Tex. 2000) ...................................................................................... 33, 36, 42
Humane Sodety of Dallas v. Dallas Morning Nei-vs, L.P.,
180 S.W.3d 921 (Tex. App. - Dallas 2005, no pet.) ......................................................... 34
In re: Does,
242 S.W.3d 805 (Tex. App. -Texarkana 2007, no pet.) .................................................. 17
Jee v. New York Post,
671 N.Y.S.2d 920 (N.Y. Sup. Ct. 1998), a.ffd, 688 N.Y.S.2d 49 (App. Div. 1999) ............... 30
Johnson v. Robinsda/e lndep. Sch. Dist. No. 281,
827 F. Supp. 1439 (D. Minn. 1993) ......................................................................................... 30
Kapi/ofj'v. Dunn.,
343 A.2d 251 (Md. Ct. Spec. App. 1975) ................................................................................ 30
KTRK Television v. Felder,
950 S.W.2d 100 (Tex. App. -Hou. [14th Dist.] 1997, no writ) .......................... 39, 40, 41
Langston v. Eagle Publishing Co.,
719 S.W.2d 612 (Tex. App. - Waco 1986, writ re-fd n.r.e.) ........................................... 33
Larson v. Family Violence & Sexual Assault Prevention Center,
64 S.W.3d 506 (Tex. App. -Corpus Christi 2001, pet. denied) ..................................... 38
Leyendecker & Assocs. v. Wechter,
683 S.W.2d 369 (Tex. 1984) ................................................................................................ 28
Main v. Royall,
348 S.W.3d 381 (Tex. App. - Dallas 2011, no pet.) ....................................... 19, 24, 25, 28
vii
A1cDonald v. Clemens,
464 S.W.2d 450 (Tex. Civ. App. -Tyler 1971, no writ) ................................................. 18
McDowell v. Paiewonsky,
769 F.2d 942 (3d Cir. 1985) ........................................................................................... 31, 32
A1cilvain v. Jacobs,
794 S.W.2d 14 (Tex. 1990) .................................................................................................. 39
A1clntyre v. Ramirez,
109 S.W.3d ............................................................................................................................. 36
Moore v. Waldrop,
166 S.W.3d 380 (Tex. App. - Waco 2005, no pet.) .................................................... 24, 25
Musser v. Smith Protective Servs.,
723 S. W .2d 65 3 (Tex. 1987) ................................................................................................ 25
Neely v. Wilson,
331 S.W.3d 900 (Tex. App. - Austin 2011, pet. granted) ............................................... .40
New Times, Inc. v. Isaacks,
146 S. W .3d 144 (Tex. 2004) .......................................................................................... 23, 3 7
Newspapers, Inc. v. Matthews,
339 S.W.2d 890 (Tex. 1960) ................................................................................................ 42
Patton v. UPS,
910 F. Supp. 1250 (S.D. Tex. 1995) ................................................................................... 25
Provencio v. Paradigm Media . et al.,
44 S.W.3d 677 (Tex. App. - El Paso 2001, no pet.) ......................................................... 39
Purvis v. Ballantine,
487 S.E.2d 14 (Ga. Ct. App. 1997) .......................................................................................... 29
Randall's Food Market, Inc. v. Johnson,
891 S.W.2d 640 (Tex. 1995) ................................................................................................ 37
Reliance Steel & Aluminum Co. v. Sevcik,
267 S.W.3d 867 (Tex. 2008) ................................................................................................ 21
Rogers v. Dallas Morning News, Inc.,
889 S.W.2d 467 (Tex. App. - Dallas 1994, writ denied) ................................................. 38
viii
Rosanova v. Playboy Enters., Inc.,
580 F.2d 859 (5t 11 Cir. 1978) ................................................................................................. 30
Rosenblatt v. Baer,
383 U.S. 75, 86 S. Ct. 669 (1966) ..................................................................... 29, 30, 32, 42
Salvaggio v. High Plains Broadcasting, Inc.,
Cause No. 2011-CI-I 0 I 27 (I 3 I st Dist. Ct., Bexar County, Tex., Feb. 27, 20 I 2) ......... 20
Schauer v. Memorial Care Sys.,
856 S.W.2d 437 (Tex. App. - Hou. [I st Dist.] 1993, no writ) ......................................... 25
Scott v. News-Herald,
25 Ohio St. 3d 243, 496 N.E.2d 699 (Ohio 1986) .................................................................... 29
Scripps Texas Newspapers, LP v. Belalcazar,
99 S.W.3d 829 (Tex. App. - Corpus Christi 2003, pet. denied) ..................................... 25
Simpton, et. al. v. High Plains Broadcasting, Inc.,
Cause No. 2011-CI-13290 (285 111 Dist. Ct., Bexar County, Tex., March 23,
2012) ....................................................................................................................................... 20
Southwest Olshan Found. Repair Co., LLC v. Gonzales,
345 S.W.3d 431 (Tex. App. - San Antonio 2011, no pet.) .............................................. 18
Standridge v. Ramey,
733 A.2d 1197 (N.J. Super. Ct. App. Div. 1999) ..................................................................... 30
State v. De.fley,
395 So. 2d 759 (La. 1981) ........................................................................................................ 29
Swate v. Schiffers,
975 S.W.2d 70 (Tex. App. - San Antonio 1998, pet. denied) ................................... 31, 34
Texas Monthly, Inc. v. Transamerican Natural Gas Corp.,
7 S.W.3d 80 l (Tex. App. - Hou. [1st Dist.] 1999, no pet.) ............................................. 33
Turner v. KTRK Television, Inc.,
38 S.W.3d 103 (Tex. 2000) .................................................................................................. 18
UTV of San Antonio, Inc. v. Ardmore, Inc.,
82 S.W.3d 609 (Tex. App. - San Antonio 2002, no pet.) ............................................... .40
Viera v. Hearst Newspapers, LLC dlb/a The Houston Chronicle, KHOU-TV, Inc.
and Post-Newsweek Stations Houston, Inc. dlbla KPRCT-TV,
Cause No. 201 1-42884 (l 90 1h Dist. Ct., Harris County, Tex., Sept. 11, 2011) ............. 20
ix
WFAA-TV, Inc. v. McLemore,
978 S.W.2d 568 (Tex. 1998), cert. denied, 119 S. Ct. 1358 (1999) ............. 18, 28, 30, 32
Wilcox v. Superior Court
(1994) 27 Cal. App. 4th 809 .................................................................................................. 22
STATUTES
Tex. Civ. Prac. & Rem. Code §22.02, et seq . .......................................................................... 17
Tex. Civ. Prac. & Rem. Code §27.002 (the "Act") ............................................... 15, 16, 20, 22
Tex. Civ. Prac. & Rem. Code §27.005(c) .................................................................. xiii, 22, 24
Tex. Civ. Prac. & Rem. Code §27.006(a) ................................................................................ 22
Tex. Civ. Prac. & Rem. Code §27.007 ..................................................................................... 19
Tex. Civ. Prac. & Rem. Code§ 73.002 (a) and (b) ........................................................... 33, 34
Tex. Civ. Prac. & Rein. Code §73.005 ..................................................................................... 37
Texas Citizens' Participation Act, TEX. CIV. PRAC. & REM. CODE ANN. §27.001,
et seq. (Vernon Supp. 2011 ) ....................................... xii-xiv, 1, 13, 15-17, 22-24, 32, 42, 44
OTHER AUTHORITIES
U.S. Constitution, First Amendment.. ........................................................................... 17, 22, 23
x
ST A TEMENT OF THE CASE
Nature of the Case: This is an appeal of a denial of a Motion to Dismiss claims
for defamation pursuant to the Texas Citizens' Participation
Act, TEX. CIV. PRAC. & REM. CODE ANN. §27.001, et seq.
(Vernon Supp. 2011).
111
Trial Court: The Honorable Reece Rondon, Judge Presiding, in the 234
District Court, Harris County, Texas
Trial Court Disposition: The trial court denied Appellant KTRK Television, Inc. 's
Motion to Dismiss. See Appendix, Tab A.
xi
STATEMENT ON ORAL ARGUMENT
Appellant requests oral argument. This case concerns issues of first impression in
the application of the Texas Citizens' Participation Act, and it also concerns important
protections for speech concerning matters of public concern involving use of taxpayer
dollars and matters concerning public figures entrusted with public funds. The Citizens'
Participation Act requires that a plaintiff whose claims arise from an exercise of free
speech rights establish for the trial court a prima facie case for each essential element of
his or her claim with "clear and specific evidence." Tex. Civ. Prac. & Rem. Code
§27.005(c). Oral argument will assist this Court's decisional process in determining
whether the evidence produced by Appellee met this high burden in the trial court and
proved each element of her claim with "clear and specific evidence," including
overcoming the affirmative defenses and constitutional protections raised by Appellant.
xii
ISSUES PRESENTED
Point No. 1: The Texas Citizens' Participation Act statute requires a court to
dismiss a lawsuit where the claims arise out of a defendant's exercise of the right of free
speech, unless the plaintiff can establish by clear and specific evidence a prima facie case
for each essential element of every one of his or her claims. Did the trial court err in
denying Appellant's Motion to Dismiss brought pursuant to this statute?
Point No. 2: Did Appellee establish a prima facie case that the Complained of
Statements were defamatory per se by clear and specific evidence as required by the
Texas Citizens' Participation Act?
Point No. 3: Did Appellee establish a prima facie case of actual malice by clear
and specific evidence as required by the Texas Citizens' Participation Act?
Point No. 4: Did Appellee establish a prima facie case of material falsity by clear
and specific evidence as required by the Texas Citizens' Participation Act?
Point No. 5: Did Appellee establish a prima facie case that the Complained of
Statements were "of and concerning" Appellee by clear and specific evidence as required
by the Texas Citizens' Participation Act?
xiii
CAUSE NO. 01-12-00372-CV
IN THE FIRST COURT OF APPEALS
HOUSTON, TEXAS
KTRK TELEVISION, INC.
Appellant,
v.
THEAOLA ROBINSON,
Appellee.
On Appeal from the 234th Judicial District Court of Harris County, Texas,
the Hon. Reece Rondon, Presiding
BRIEF OF APPELLANT KTRK TELEVISION, INC.
TO THE HONORABLE FIRST COURT OF APPEALS:
This appeal concerns both issues of first impression in the application of the Texas
Citizens' Participation Act (also known as the Anti-SLAPP Statute' or "the Act"), and
important protections for speech concerning matters of public concern involving
investigations into use of taxpayer dollars and public figures entrusted with State funds.
lt is just this type of action that the Legislature envisioned when enacting the Citizens'
Participation Act - the Act protects those who exercise their free speech rights from
lawsuits brought against them for speaking out about matters of public concern. The Act
requires a preliminary showing by the plaintiff of clear and spec~fic evidence of her
1
"SLAPP'" stands for Strategic Lawsuit Against Public Participation, and Anti-SLAPP statutes provide a mechanism
for early dismissal of meritless lawsuits filed against one out of retaliation for what he or she has said.
claims before the speaker is caught up in a myriad of discovery and the expense of
defending against a meritless lawsuits brought for the purpose of retaliating against the
speaker for bringing issues of public concern to light. In this instance, Theola Robinson
("Robinson" or "Appellee") has brought not one, but three lawsuits, against Appellant (or
its parent company) for reporting on the State's investigation into her use of $3 million in
taxpayer funds as head of a chatier school. It is difficult to fathom a more egregious
example of retaliation against a media outlet for bringing to light issues of concern to the
Houston community. The Act required the Appellee to establish a prima facie case of her
defamation 2 claim with clear and specific evidence, and she failed to meet this burden.
Thus, the trial court's denial of Appellant's Motion to Dismiss should be reversed.
STATEMENT OF FACTS
This lawsuit concerns KTRK's reporting on matters of grave public concern. The
reports discuss: the allegations of financial and other mismanagement of Benji's Special
Education Academy ("Benji's"), which was run by Appellee 3 , the State's resulting
revocation of Benji's chatier, and Appellee's willful violation of the State's orders. The
following are undisputed facts taken from the Texas Education Agency's records from its
investigation into Appellee's management of the school and her accounting for the use of
2
Plaintifrs Petition attempts to describe a per se claim and does not plead any actual damages: however, she does
not label her claim. Presumably, she is claiming defamation per se. Regardless, under either per se or per quod, her
claim fails.
3
The original plaintiffs in this suit were both the non-profit corporation that ran Benji's (hereinafter ''Charter
Holder") and the charter school's former director/Superintendent. Robinson, who was also on the board of the
Charter Holder and is now the sole Appellee. (CR 2:220-232). Both the school itself and the Charter Holder use the
name "Benji's" or "Benji's Special Education Academy"····- often without distinguishing between the two and have.
until recently. effectively operated as one. But, while the Charter Holder is a non-profit corporation and was an
original plaintiff in this lawsuit, Benji's (the school), has been taken over by the State and was not a plaintiff in this
suit. There is a question as to whether Robinson had proper authority to sue on behalf of the Charter Holder at the
outset. Regardless, Robinson amended her Petition (CR 4:796-874) and dropped the Charter Holder from the case.
2
the millions of taxpayer dollars entrusted to her and from the court records in Appellee's
lawsuit against TEA for closure of the school.
I. Benji's Special Education Academy Was Being Investigated by the State at
the Time of the Broadcast.
At the time of the KTRK broadcasts at issue, Benji's was being investigated by the
Texas Education Agency ("TEA") for, among other things, mismanagement and poor
financial practices regarding use of State taxpayer funds. (CR 4:903-908). In fact, for
more than half a decade TEA had expressed dissatisfaction with Appellee's habitually
poor recordkeeping and financial accountability. (CR 2:311-312, 355, 357, 360, 492-
493; 3:551-553, 585-586; 623, 679-680, 712-713). By the Fall of 2010, Benji's was
taken over by TEA who ordered the school's closure and eventually revoked the school's
charter. (CR 2:259-263, 470-471; 4:894). It is undisputed that Benji's was responsible
for educating hundreds of students and was tasked with utilizing, and accounting for,
more than $3 million in State taxpayer funds each year to do so. (CR 2:408, 415, 418,
421 ). After years of receiving either no response or inadequate responses to their
inquiries about the school's use of taxpayer money, in Fall 2010, TEA appointed a new
Board of Managers and new Superintendent to assist Benji's with its financial and
mismanagement woes. (CR 2:259-263). This was just the latest in a series of actions
taken by TEA against the Charter Holder. Starting in 2007, TEA had previously
appointed one, and, then two, conservators to oversee the school (CR 2:312-314) and
had, on at least one prior occasion, threatened to revoke Benji's charter - in 2009.
(CR 2:265-270). Benji's had been in continuously poor financial condition and had kept
3
and provided poor financial records to the State throughout the bulk of its existence
(CR 2:304-367). Despite the State's attempts to assist the school, Appellee sought to
thwart any intervention by the State, only compounding the problems at hand (CR 2:266-
267, 271-272, 328, 332, 455, 463; 4:901-904).
A. Appellee Habitually Provided Inadequate Financial Documentation
When Accounting for the Use of State Funds to TEA.
The Charter Holder was granted an open-enrollment charter to operate Benji's by
the Texas State Board of Education ("SBOE") on or around November 2, 1998.
(CR 2:449-454). In 2003, the Charter Holder applied for a renewal of the cha1ier, which
was still pending at the time of the controversy that is the subject of this lawsuit. (CR
2:310-313). Appellee's refusal to provide proper documentation of the use of State funds
contributed to the failure to approve the Charter Holder's application for renewal during
this seven year period (CR 2:310-311). Over the years, TEA's concerns with Benji's
grew, including concerns about:
( 1) the school's academically unacceptable state accountability rating for the
years 2005, 2007, 2009, and 2010 and federal academic accountability
rating as failing to meet Adequate Yearly Progress Standards in 2005,
2006, 2007, and 2009 (CR 2:350);
(2) the accuracy in reporting student attendance data for the purpose of
receiving Foundation School Program funds for four years (CR 2:31 I);
(3) the Department of Agriculture's termination of the school's agreement to
participate in school breakfast and lunch programs because of failure to
maintain a proper financial management system (CR 2:311 ); and
(4) its noncompliance with lDEA and No Child Left Behind laws and
guidelines. (CR 2:310-311, 350).
4
On July 8, 2010, Appellee, then-executive director of Benji's, was notified by the
TEA Commissioner that TEA intended to appoint a Board of Managers and a new
Superintendent for the school in light of ongoing financial, academic, and governance
concerns with Benji's. (CR 2:455-469). On August 19, 20 I 0, a hearing was held to
allow Appellee an opportunity to respond to the Commissioner's plan to appoint a Board
and Superintendent. (CR 2:259-263). On September 3, 2010, TEA notified Appellee and
Benji's board of directors that TEA would be going forward with the original
recommendation to appoint a Board of Managers and a new Superintendent. (CR 2:259-
263). This appointment of a Board of Managers and Superintendent suspended the
powers of Benji's previous board of directors and Appellee. (CR 2:259-263).
B. Appellee Thwarted the State's Efforts to Investigate and Reform
Benji's.
The new Board and Superintendent met immediately after being appointed and
began investigating the situation at Benji's, including the finances of the school. (CR
2:476-482). Although they did not fully understand the gravamen of the financial
problems until they got access to the school's records, TEA had been concerned about the
financial situation since at least 2005. (CR 2:312). The record is clear - until the time
that TEA finally took over complete control of Benji's (or as compete control as they
could in light of Appellee's insubordination and overt efforts to kick TEA officials off
Benji's property and restrict their access to records), TEA had no idea of the full extent of
Benji's financial emergency. (CR 2:400; 2:403; 2:407; 2:414) This is, in part, because
the audit reports from 2004-2009 were all found deficient. (CR 2:313; 2:465; 2:471;
5
2:477). It is also, in paii, because of Appellee's and other Benji's officials repeatedly
failing to follow TEA directives aimed at remedying the school's numerous deficiencies.
(CR 2:313, 455, 463). Appellee not only interfered with TEA's ability to properly review
and address the many deficiencies (including openly preventing TEA from being able to
access Benji's financial and other records), but she also disobeyed TEA orders and
attempted to prevent TEA officials who had been assigned to oversee Benji's from
effectively doing their job. (CR 2:271, 313-15, 328, 463, 488).
It was not until September, 20 I 0, that TEA understood the extent of the financial
problems at Benji 's 4 and issued its Order Suspending Charter Operations and Funds,
stating:
[The exigent financial conditions at Benji's were not] known
either to the board of managers or the new superintendent
when they met on September 6, 2010. Rather, the
information leading to the conclusion that that an urgent
financial condition may exist at the charter school was
disclosed by painstaking effort to assemble and evaluate
information that had not been viewed by the former
administration as indicating such a conclusion. Subsequent
events have made plain that the former administration
continues to maintain that there was and is no urgent financial
condition presented by these facts.
(CR 2:477). After discovering that Benji's had vi1iually no money in its bank account,
TEA issued a statement that Benji's was being closed down at the end of the day because
it was no longer financially viable. (CR 2:407, 470). On that same date, the recently
appointed Superintendent sent a letter to parents advising them of the decision to
immediately close the school. (CR 2:471-475). The letter further advised that recently
4
See CR 2:400, 403, 407, 414, 477.
6
available information indicated that the "school ha[d] vitiually no money in the bank and
owe[d] numerous creditors, including the Internal Revenue Service." (CR 2:471-475).
When TEA and other state officials attempted to distribute packets to students
explaining the suspension of Benji's operations and providing information about alternate
public schools in the area, Appellee and other members of the former administration
ripped up the materials and encouraged the students to engage in open defiance of state
officials. (CR 2:478). Furthermore, despite having been replaced as Superintendent and
relieved of her duties, Appellee continued to direct the students and staff, conducting her
own staff meeting, calling a press conference about the situation, and inviting the media
to comment. (CR 2:479). Over the course of the next few days, Appellee also
endeavored to prevent state officials from entering and/or conducting business at the
school, and took physical control of the school and its records and facilities without
authority. (CR 2:478-481).
Despite the State-mandated closure, on September 15, 2010, Appellee defied TEA
and the new Benji's Board and Superintendent by re-opening Benji's as an unaccredited
private school using the same facilities and school buses (which were all paid for by the
State). (CR 2:476-482). As with the prior days' events, this continuing public
controversy was reported on by virtually every local media outlet. (CR 2:414-423). TEA
representatives were refused access to the school and its student records. Id. (CR 2:476-
482). The next day, the TEA Commissioner issued an order effective immediately
suspending all funding of Benji's and suspending Benji's open-enrollment charter. (CR
2:476-482). TEA issued another notice to Appellee and others regarding the school's
7
closure and revocation of its open-enrollment charter. A hearing was held on September
21, 2010, at which TEA determined that the acts of Robinson and some of her staff
constituted conditions that presented a danger to the health, safety or welfare of the
Benji's students. (CR 2:483-487).
On September 24, 2010, the TEA Commissioner sent a Jetter to Appellee and the
Charter Holder's Board outlining the various grounds for revoking Benji's charter,
including:
(1) failure to protect the health, safety, or welfare of students; material
violations of the open-enrollment charter; two consecutive years of
unsatisfactory ratings;
(2) serious unsatisfactory fiscal performance; unsatisfactory compliance
performance for three consecutive years, and
(3) failure to renew a lease for the school facility.
(CR 2:488-495). The letter also discussed the fact that "[s]pecial program concerns,
academic concerns, governance issues, financial management issues," and failures to
comply with TEA requirements and directives had plagued the school for many years.
Id. (CR 2:489). The letter detailed examples of the school's fiscal mismanagement,
which resulted in significant wasting of financial resources and the school's financial
insolvency. (CR 2:492). Examples of some of Benji's financial woes while under the
direction of Appellee included:
A. the Charter Holder was the subject of a warrant hold for nonpayment to the
Teachers Retirement System in the amount of $43,000.00 for retirement
contributions and $I 3,000.00 in health coverage;
B. the Department of Agriculture cancelled the Charter Holder's participation
in child nutrition programs because of the Charter Holder's failure to
demonstrate fiscal responsibility;
8
C. the Charter Holder owed the IRS a debt of $87,000.00 for unpaid taxes;
D. the Charter Holder's board of directors failed to oversee or adequately
supervise its financial resources, and
E. the Charter Holder failed to properly account for accrued unreimbursed
leave as a liability.
(CR 2:360-361). Specifically, the Commissioner of Education found that:
The charter holder and charter school's extensive history of
special education program deficiencies, its persistent failures
to follow conservator directives and comply with statute and
intervention requirements, its continued failure to cooperate
with Texas Education Agency ("TEA" or "agency") staff to
resolve identified deficiencies and areas of noncompliance, its
academic and financial deficiencies, and its recent defiance of
my Board of Managers, compel me to revoke the open-
enrollment charter of Benji's Special Educational Academy.
Problems with the charter holder's operation of its charter
school date back many years. Special program concerns,
academic concerns, governance issues, financial management
issues, failure to follow directives made by a TEA-assigned
conservator, and/or failure to comply with Intervention
requirements have plagued the charter holder over many
years. Despite extensive agency intervention, progress has
been sporadic, and regression has been frequent. A recent
intervention included the assignment of a second conservator
to oversee all charter school activities, as well as charter
holder activities, with respect to the operation of the charter
school. My interventions culminated in the appointment of a
Board of Managers to exercise the powers and duties of the
governing body of the charter school operated by the charter
holder.
(CR 2:488-489) (footnotes omitted). Thus, Appellee's continual defiance of TEA's
mandates and her habitual failure to properly account for the use of State funds
contributed to, if not resulted in, the school's chatier being revoked.
9
C. Appellee Does Not Dispute Receiving a $9,000/Month Profit From The
Land Leased to Benji's.
The TEA Commissioner's September 24 111 letter also noted some financial
irregularities in Benji's rental arrangement and payments. Comparing the lease between
the Charter Holder and the City of Houston and the lease between the Charter Holder and
the school itself - for the exact same property - the rental payments paid by Benji's to
the Charter Holder for the use of the property appeared to be excessive. (CR 2:493). The
Charter Holder (under Appellee's leadership) had been leasing the property from the City
of Houston for $1/year and was re-leasing the same property to Benji's for $9,000/month,
an arrangement the City was unaware of and for which it had not given permission to the
Chaiier Holder. (CR 2:233-258, 264-303, 492-494). This meant the Charter Holder, run
by Appellee, profited almost $9,000/month from this untoward arrangement.
Additionally, the July 1, 2010, Tenancy Agreement, which still called for Benji's to pay
the Charter Holder $9,000/month, had a term of 10 years - another agreement and term
the City did not approve. (CR 2:238-242). Ironically, Appellee does not deny the lease
arrangement at issue.
II. Appellant Reported on the Allegations Being Made in the Investigation Into
Appellee and the Public Controversy Surrounding the Investigation, School
Closure, and Defiance of TEA's Order.
A public outcry arose over the initial takeover, charter revocation, and attempted
closing of Benji's by TEA. The allegations of financial mismanagement of taxpayer
funds and indebtedness of the school, as well as the efforts to keep the school open in
defiance of the State's orders, were clearly matters of public concern in the Houston
10
community. As a result, beginning on September 14, 2010, Appellant (and several other
media outlets) broadcast and posted numerous reports about the ongoing controversy.
(CR 2:217-219, 371-373, 433-435).
Appellant was not alone in reporting on Benji's financial problems and lack of
accountability, TEA's closure of the school and the actions of Appellee. (CR I :34-60,
85-87 and 2:303, 368-370, 374-393, 399-400, 403-423). Other media organizations
similarly reported that "TEA says ... the school is unable to document where the state
funding is being spent" (CR l :35) and that TEA stated that "everyday [the newly
appointed Board of managers has] been in place they've uncovered additional alarming
problems." (CR 2:407) The public interest in this topic can be seen not only by the
many articles and broadcasts published, but also by the numerous comments that the
stories elicited. (CR I :38-60). Of all the publications, Appellant was the only station to
be sued out of retaliation for what it said.
Appellee bases her sole claim of defamation per se on the following statements
("Complained of Statements" or "Statements at Issue"), none of which discuss the
commission of a crime or mention Appellee Robinson by name:
(I) "According to the State, millions in taxpayer dollars cannot be accounted
for" and "The State closure is based on a lack of sufficient financial
records, meaning the State doesn't know where the over three million
dollars of taxpayer money given last year has been spent." (CR I :26) (4:30
p.m., September 15, 2010 broadcast).
(2) "For the State, the issue is simple - where is the money? They say
millions of taxpayer dollars are unaccounted for . . . . The State closure is
based on a lack of sufficient financial records, meaning the State doesn't
know where the more than $3 million of taxpayer money given last year
l1
has been spent ... " (CR I :30) (September 15, 2010, story published on
Appellant's website).
(3) "Where is taxpayer money going and how is a taxpayer-owned building
being used? . . . The Texas Education Agency says it doesn't know how
Benji's spent $3 million of taxpayer money, and a lease agreement obtained
by Eyewitness News raises new questions." (CR I :63) (September 25,
20 I 0, story published on Appellant's website).
(4) "The Texas Education Agency doesn't know how the academy spent $3
million of State money." (CR 1:73) (September 27, 20 I 0, article published
on Appellant's website).
(5) "The State says it had no choice, alleging Benji's did not provide proper
financial records to account for over $3 million in State funding for the past
year." (CR 1:78) (September 30, 2010 article published on Appellant's
website).
(6) "On September 14, the TEA ordered Benji's Academy to close, citing
millions of dollars in State funding that was not accounted for." (CR 1:82)
(October 11, 2010, article published on Appellant's website).
III. Appellee Has Sued or Attempted to Sue Appellant Three Times Over the
Broadcasts at Issue.
Not only has Appellee sued Appellant in this lawsuit out of retaliation for what it
said, Appellee previously sued Appellant and/or its parent company over the same
broadcasts, without success, on two prior occasions. (CR 4:886; 5: 1289). Originally,
Appellee improperly sued Appellant's ultimate parent company, The Walt Disney
Company ("Disney"), in federal court (Cause No. 4-1 O-CV-03498) and then she tried to
add Disney and Appellant to a lawsuit she had joined against TEA (Cause No. 4-11-CV-
00358). Appellee took these actions despite being shown prior decisions and undisputed
evidence that there was no jurisdiction over Disney. Not surprisingly, both attempts were
unsuccessful but resulted in substantial unnecessary expenditure of fees by Appellant.
12
(CR 4:886). Ultimately, on September 14, 2011, Appellee and Benji's 5 filed this lawsuit
in state court. (CR 1:2-87). Appellant moved to dismiss the case under the Texas
Citizens' Participation Act, and its motion was denied. (CR 4:994).
SUMMARY OF THE ARGUMENT
Appellee Robinson sued KTRK for defamation based on its accurate reporting on
allegations about Appellee's financial mismanagement of Benji's Special Education
Academy, which was under investigation by the State. The Texas Legislature recently
passed the Citizens' Participation Act to protect persons who are sued for exercising their
right to free speech. Tex. Civ. Prac. & Rem. Code §27.001, et seq. (Tab D). The claims
against Appellant fall squarely under the protections of the Act. The Act required the
trial court to dismiss the defamation claim unless Appellee established, by the heightened
standard of clear and specific evidence, a prima facie case for each essential element of
her claim. The record shows a glaring absence of evidence on every element of the
defamation claim. Therefore, the trial comt was in error and must be reversed.
Appellee claims the broadcasts at issue are defamatory per se. 6 An essential
element of defamation per se is the accusation of the commission of a crime, dishonesty,
fraud, rascality, or general depravity - which, in this case, is disproven by reading the
Complained of Statements themselves. There was no mention of a crime being
committed by Appellee, nor was there any reference to Appellee committing fraud or
dishonest acts. (CR 4:963-973).
5
See fn. 3, supra.
6
See fn. 2, supra. Appellee's claims sound in per se because she argues that she was accused of embezzlement and
she only references presumed damages. Even if she is trying to atiiculate a per quod claim. that too fails because,
among other things, she has not plead actual damages.
13
Another essential element of the defamation claim at issue in this case is the
constitutional requirement of showing "actual malice." This burden arises when the
Appellee is a public figure or when the statements made are privileged. Both
circumstances exist in this case.
To establish actual malice, a plaintiff must demonstrate the defendant published an
alleged defamatory statement knowing it to be false or having entertained serious doubts
about the truth of the statement. Appellee provided no evidence and only supposition
(which does not constitute evidence) concerning Appellant's state of mind. Appellant, on
the other hand, introduced substantial evidence of the absence of actual malice (CR
2:217-219, 3 71-3 73, 433-435).
Appellee was also required to produce clear and specific evidence that the
Complained of Statements in the broadcasts were materially false. To do this, Appellee
ignores the actual statements made by KTRK and instead concocts her own version of the
broadcasts, distorting the statements with her own interpretations and suppositions. The
Court must look at what the broadcasts actually said, as a whole, in light of surrounding
circumstances, and it must review them based upon how a person of ordinary intelligence
would perceive the entire broadcast series. Appellee's after-the-fact spin is not clear and
specific evidence of material falsity.
Furthermore, Appellee is not even mentioned in the Complained of Statements,
and Appellee failed to demonstrate those statements are "of and concerning" her.
In short, Appellee did not demonstrate to the trial court that she could succeed on
the merits of her defamation claim, much less show clear and specific evidence to support
14
each element of her claim, as required by the Act. Appellee did not establish that
Appellant's statements are defamatory per se (or per quad), did not establish material
falsity of the Complained of Statements, did not establish that Appellant made the
statements with actual malice, did not overcome the applicable privilege(s), and did not
establish that the Complained of Statements were of and concerning Appellee. If she
could not meet her burden on a single element, Appellant should have prevailed. In this
case, Appellee failed to establish a primafacie case for all of the essential elements of her
claim, thus, the Texas Citizens' Participation Act clearly required dismissal of her claims.
ARGUMENT & AUTHORITIES
The Trial Corni improperly denied Appellant's Motion to Dismiss and, by doing
so, incorrectly found that Appellee has proved a prima facie case of each essential
element of her claims for defamation per se with clear and specific evidence.
I. Recent Legislation Provides New Protections for Those Exercising Their
Right of Free Speech.
Texas' Citizens' Patiicipation Act, signed into law on June 17, 2011, is designed
to encourage and safeguard the constitutional rights of persons to speak freely to the
maximum extent permitted by law. Tex. Civ. Prac. & Rem. Code §27.002 (the "Act").
The Act applies to any legal action based on, relating to, or in response to a person's
exercise of the right of free speech. Id. §27.00S(b). It specifically provides for a motion
to dismiss, and an interlocutory appeal, both in response to a trial comi's order and one
entered by operation of law, to protect defendants who have been sued for exercising
their right to free speech. Id. §§27.003 and 27.008(b).
15
A. Appellant Established that the Claims at Issue Fall Under the Citizens'
Participation Act's Protection.
In applying the Act, the Court engages in a two-step inquiry. Upon a party's filing
of a motion to dismiss, the Act requires a court to dismiss the action if the moving party
shows the legal action was "based on, relates to, or is in response to" the moving pa1iy's
exercise of free speech. Id. §27.005(b)(l). "Exercise of the right of free speech" means
any communication "made in connection with a matter of public concern." Id.
§27.001(3). The definition of "matter of public concern" includes any issue related to
economic or community well-being, the government, or about a public official or public
figure. Id. §27.001(7).
KTRK was reporting on the ongoing dispute between Benji's and the TEA and
allegations under investigation by the State. Appellee was the Superintendant of Benji's
and on the Board of the Charter Holder, and, as such, was a public figure. Appellee had
been brought under scrutiny by the State in the past for her financial mismanagement of
the school and her lack of accountability for the use of taxpayer funds. Reporting on
matters of public concern, such as these, squarely fall within the protection of the Act.
Appellee has conceded that the claims in this action fall within the Act. (CR 3 :500-504).
The burden, therefore, shifted to Appellee to establish a prima facie case for each
essential element of her claims with clear and specific evidence. Section 27 .005
mandates dismissal of the claims at issue if this burden is not met.
16
B. Appellee's Burden Was to Establish By "Clear and Specific Evidence"
a "Prima Facie Case" for Each Essential Element of Her Claims
Against Appellant.
The standard in the Act comes from the In re: Does case in which the Court held
that before being able to obtain an order mandating a third party to identify an
anonymous speaker for the purposes of pursuing a defamation claim, the potential
plaintiff had to establish the claim was viable. In re: Does, 242 S.W.3d 805 (Tex. App. -
Texarkana 2007, no pet.). The Couti found the correct balance of interests would be to
require a prim a facie showing of each essential element of the claims at the outset. This
meant that, in order to get the names of the anonymous speakers, the plaintiff was
required to provide actual proof and not just allegations - that would be sufficient to
preclude the granting of summary judgment. In re Does, 242 S.W.3d 805 (Tex. App. -
Texarkana 2007, no pet.). By adopting this standard in the Anti-SLAPP statute, the
Legislature chose to apply the same standard to claims brought against non-anonymous
speakers as anonymous ones. One must be able to establish the viability of a claim
against one who exercises their free speech rights before being permitted to go forward
with a lawsuit.
Furthermore, the term "clear and specific" is a heightened standard of evidence
that has recently been implemented in First Amendment legislation in Texas. It is taken
from the Channel Two Television v. Dickerson, 725 S.W.2d 470, 472 (Tex. App. - Hou.
[1st Dist.] 1987, no writ), and is found in the reporters' privilege statute, Tex. Civ. Prac.
& Rem. Code §22.02, et seq., as well as the statute at hand. It requires more than a
preponderance of evidence but less than clear and convincing evidence. (CR 2:436-445)
17
There can be no doubt that the Act's "clear and specific evidence" requirement
precludes a plaintiff from relying on mischaracterizations of what the broadcasts say,
circumstantial evidence, and baseless inferences. See, e.g., Southwest Olshan Found.
Repair Co., LLC v. Gonzales, 345 S.W.3d 431, 440-41 (Tex. App. - San Antonio 2011,
no pet.) (although fraud invariably must be proven by circumstantial evidence, a vital fact
may not be established with inference stacking); McDonald v. Clemens, 464 S.W.2d 450,
456 (Tex. Civ. App. - Tyler 1971, no writ) (affirmative defense of fraud must be
established "by clear and specific evidence unaided by presumptions, inferences or
intendments"). Appellee has provided nothing more than mischaracterizations,
inferences and suppositions - none of which constitute clear and specific evidence.
C. Appellee Failed to Establish a Prima Facie Case for Defamation.
Appellee sued Appellant for defamation. To maintain a claim for defamation,
Appellee must show that Appellant: ( 1) published a statement; (2) that was defamatory
concerning the plaintiff; (3) which was false; and (4) while acting with "actual malice"
regarding the statement's truth where, as here, the plaintiff is a public figure. See WFAA-
TV, Inc. v. Mclemore, 978 S.W.2d 568, 571 (Tex. 1998); cert. denied, 526 U.S. 1051,
119 S. Ct. 1358, 143 L. Ed. 2d 519 (1999) (elements of defamation claim); Fox Entm't
Group, Inc. v. Abdel-Hafiz, 240 S.W.3d 524, 531 (Tex. App. - Fort Worth 2007, pet.
denied) (same); see also, Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000)
(public figure has burden to prove falsity as essential element). If a plaintiff cannot
establish any one of these elements by clear and specific evidence, the anti-SLAPP
motion should be granted. Furthermore, because Appellee 's claim was one for
18
defamation per se, she must demonstrate that that the words were so obviously hurtful to
her - such as accusing her of a crime - that they require no proof of injury. Main v.
Royall, 348 S.W.3d 381, 390 (Tex. App. - Dallas 2011, no pet.). Appellee failed to
establish the statements were per se libelous and, because she did not even allege (and
did not prove) actual damages, she also failed to establish a per quad claim (where
damages are not presumed and must be specially pied and proven). Leyendecker &
Assoc.s'. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984). Appellant's Motion to Dismiss
should have been granted because Appellee failed to establish, with clear and specific
evidence, a prima fade case of each essential element of her claim.
D. The Trial Court's Findings of Fact and Conclusions of Law
Demonstrate Error.
After denying Appellant's Motion to Dismiss, Appellant requested the Court enter
Findings of Fact and Conclusions of Law pursuant to Tex. Civ. Prac. & Rem. Code
§27.007. The findings and conclusions entered indicate multiple errors on the part of the
trial court. To begin with, the trial court committed error in finding that a lawsuit brought
over a prior broadcast could not have been brought to deter or prevent the Appellant from
exercising its constitutional rights. See Appendix, Tab B. This finding completely
ignores the impact such a lawsuit (and the two prior ones) has on future speech and the
fact that prior restraints are disfavored under constitutional jurisprudence. Texas
Supreme Court precedent requires that the CoUJi consider such important factors.
Diamond Shamrock Re.fining and Marketing Co. v. Mendez, 844 S.W.2d 198 (Tex. 1992),
citing New York Times v. Sullivan, 376 U.S. 254, 272, 84 S. Ct. 710, 721 (1964)
19
("whatever is added to the field of libel is taken from the field of free debate.") The
express purpose of the Anti-SLAPP statute is to "encourage and safeguard the
constitutional rights of persons to ... speak freely ... to the maximum extent permitted by
law .... " Tex. Civ. Prac. & Rem. Code, §27.002. The statute requires the court to
consider whether a legal action was brought to deter or prevent the Appellant from
exercising its constitutional rights as well as whether it was brought for an improper
purpose, including to harass the Appellants. Id. Keeping this in mind, courts across
Texas have consistently applied the new Anti-SLAPP statute to lawsuits filed over
broadcasts that have already aired. See, e.g., Viera v. Hearst Newspapers, LLC dlb/a The
Houston Chronicle, KHOU-TV, Inc. and Post-Newsweek Stations Houston, Inc. dlb/a
KPRCT-TV, Cause No. 2011-42884 (190 1h Dist. Ct., Harris County, Tex., Sept. 11, 2011 );
Salvaggio v. High Plains Broadcasting, Inc., Cause No. 2011-CI-10127 ( 131 st Dist. Ct.,
Bexar County, Tex., Feb. 27, 2012); Simpton, et. al. v. High Plains Broadcasting, Inc.,
Cause No. 2011-CI-13290 (285 111 Dist. Ct., Bexar County, Tex., March 23, 2012); Carter,
et. al. v. NW Communications a/Texas, Inc., dlbla KDFW Fox 4 and KDFW-TV. Inc., et.
al., Cause No. 12-02166 (160 1h Dist. Ct., Dallas County, Tex., May 24, 2012). In fact, to
conclude differently, as the trial court did in this matter, would eviscerate the statute and
make it virtually impossible to dismiss any case brought against the media arising out of
past publications.
KTRK repotied on a public figure entrusted with significant State funds to educate
our youth who, not only failed to properly account for those funds, but also thwarted the
efforts of TEA to improve financial accounting and governance. This is the type of core
20
speech entitled to the protection of the Anti-SLAPP statute. Yet, the trial court
erroneously determined otherwise.
To trigger the Act, Appellant was only required to demonstrate that it was
exercising its right to free speech on an issue of public concern, which it did. It was error
for the trial court to consider the relative financial means of Appellee in comparison to
Appellant in its determination of whether the lawsuit was filed in retaliation for
Appellant's speech or publication of the reports. See Appendix, Tab B, p. 3. Not only
was the court, at best, guessing as to Appellee's resources and type of engagement
agreement (e.g., retainer, flat fee, or hourly), but deciding liability or fault on the basis of
financial resources was improper and is not called for in the Act. In fact, the Texas
Supreme Court has held that the prejudicial effect of a party's wealth is so strong that
evidence of a party's wealth should not be admitted in a to1i case. See Rehance Steel &
Aluminum Co. v. Sevcik, 267 S.W.3d 867, 870 (Tex. 2008). Therefore, the trial court's
consideration of the relative wealth of the parties was improper and should not have been
the basis for any ruling.
Even more egregious, though, was the trial court's apparent disregard for the fact
that this lawsuit was the third lawsuit filed by Appellee against these defendants. A
consistent theme with SLAPP lawsuits, and one that the Anti-SLAPP law sought to
curtail, is that they are brought for the purposes of tying up the defendant's resources for
a sufficient length of time to accomplish the underlying goal of stifling further speech or
coverage of an issue or person. As long as a media defendant is forced to devote its time,
energy, and resources to combating the lawsuit, its ability to gather and report on the
21
news and report on matters of public concern is compromised. See, e.g., W;/cox v.
Superior Court (1994) 27 Cal. App. 4111 809, 815, fn.2; Briggs v. Eden Council for Hope
& Opportunity (1999) 19 Cal. 4 111 1106, 1126. "The core values of the First Amendment
reflect a 'recognition of the fundamental importance of the free flow of ideas and
opinions on matters of public interest and concern."' Carr v. Brasher, 776 S.W.2d 567,
570 (Tex. 1989), quoting Hustler Magazine v. Falwell, 485 U.S. 46, 108 S. Ct. 876, 879
( 1988). By attempting to drag Appellant into three different defamation lawsuits (in both
state and federal comis) in an effo1i to stifle speech, discourage fu1iher speech or punish
Appellant for speaking out, Appellant's ability to report on matters of public concern and
exercise its core First Amendment rights is severely compromised.
E. Standard of Review in this Citizens' Participation Act Appeal.
The purpose of the Citizens' Participation Act is to protect freedom of speech, and
the heightened evidentiary standard of "clear and specific evidence" requires an appellate
court to conduct an independent examination of the entire record. Tex. Civ. Prac. &
Rem. Code §§27.002, 27.005(c).
Appellant filed affidavits giving full context to the Complained of Statements and
demonstrating that the statements were true or substantially true. The affidavits also
showed that none of the individuals who worked on the broadcasts at issue had any
knowledge that the statements were false in any way.
The Act provides that "in determining whether a legal action should be dismissed
under this chapter, the court shall consider the pleadings and supporting and opposing
a.ffidavits stating the facts on which the liability or defense is based." Tex. Civ. Prac. &
22
Rem. Code §27.006(a) (emphasis added). The Act clearly requires the Court to consider
all affidavits stating the facts that relate to liability or to any defense. While Appellee has
the burden to establish a prima facie case, the Act requires the Court to consider all
factual evidence presented.
Further, where First Amendment freedoms are at issue, the appellate court is to
review the entire record. Bose Corp. v. Consumers Union of the United States, Inc., 466
U.S. 485, 508, l 04 S. Ct. 1949, 1964 (1984) (First Amendment requires that an appellate
court make an independent examination of the whole record to protect against a
forbidden intrusion on the field of free expression); Hearst Corp. v. Skeen, I 59 S.W.3d
633, 639 (Tex. 2005) (viewing the summary judgment evidence in its entirety and
deciding no fact issue was raised as to whether the article was published with actual
malice); Abdel-Hafiz v. ABC, Inc., 240 S.W.3d 492, 504 (Tex. App. - Fort Worth 2007,
pet. denied) (review entire record to determine whether there was some evidence of
actual malice).
In libel cases, publications "must be viewed as a whole - including
accompanying statements, headlines, pictures, and the general tenor and reputation of the
source itself." Ci(Y of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005); New Times,
Inc. v. Isaacks, 146 S.W.3d 144, 158-59 (Tex. 2004). Where a plaintiff relies on
circumstantial evidence to establish actual malice, the court must "view each piece of
circumstantial evidence, not in isolation, but in light of all the known circumstances."
City of Keller, 168 S.W.2d at 813-14.
23
The standard of review in this Citizens' Participation Act appeal, therefore, is that
the Couti is to review all of the evidence and determine, as a matter of law, whether
Appellee established a pr;ma fade case as to each essential element of the claims against
Appellant with "clear and specific evidence." Tex. Civ. Prac. & Rem. Code §27.005(c).
II. Appellee Failed to Establish With Clear and Specific Evidence that the
Complained of Statements Were Defamatory Per Se.
Appellee brought her claim not for defamation per quod, but only for defamation
per se - that is, that the words are so obviously hurtful that they require no proof of
injury, such as a statement that "unambiguously charge[s] a crime, dishonesty fraud,
rascality, or general depravity[.]" Main v. Royall, 348 S.W.3d 381, 390 (Tex. App. -
Dallas 2011, no pet.) (emphasis added). Because the Complained of Statements did not
unambiguously charge Robinson with any of the per se indicia, Appellee has tried to
convince the Court she has a viable per se claim based on what she felt like the
statements insinuated. Appellee argues the statements ( 1) ;nsinuated that she embezzled
over $3 million (CR 3:504) and (2) falsely imputed criminal behavior (CR 3:508). As
proof for this proposition, Appellee refers to third-party comments posted on various
comment boards - many of which were commenting on broadcasts by media
organizations other than Appellant KTRK (CR 4:822-824, 826-847, 873-874). To be
defamatory per se, however, the defamatory nature of the challenged statement must be
apparent on its face without reference to extrinsic facts or "innuendo." Moore v.
Waldrop, 166 S.W.3d 380 (Tex. App. - Waco 2005, no pet.). "If the court must resort to
innuendo or extrinsic evidence to determine that the statement was defamatory, then it is
24
libel per quod and requires proof of injury and damages." Main v. Royall, 348 S. W.3d at
390. Appellee has provided no such proof. Appellee's per se claim fails because there
was nothing intrinsically defamatory about Appellant's report on the State's investigation
into Benji's mismanaged funds. Any innuendo Appellee attempted to raise is subjective,
is not sufficient to sustain a per se claim of defamation, and should not have been
considered by the trial court.
In fact, even under a per quad analysis, Appellee's opinion of a statement has no
bearing on whether a statement is defamatory. The test is what construction would be
placed on the language by the average reasonable person or the general public, not by the
Appellee. See Patton v. UPS, 910 F. Supp. 1250, 1274 (S.D. Tex. 1995); Schauer v.
Memorial Care Sys., 856 S.W.2d 437, 449 (Tex. App. - Hou. [1 51 Dist.] 1993, no writ);
Moore v. Waldrop, 166 S.W.3d 380 (Tex. App. - Waco 2005, no pet.). Furthermore,
media defendants cannot be liable for varying subjective impressions that may have been
generated from the broadcast of true statements. See ABC, Inc. v. Gill, 6 S.W.3d 19, 35-
38 (Tex. App. - San Antonio 1999, pet. denied); see also, Scripps Texas Newspapers, LP
v. Belalcazar, 99 S.W.3d 829, 835 (Tex. App. - Corpus Christi 2003, pet. denied).
Instead, allegedly defamatory statements are to be construed as a whole in light of the
surrounding circumstances based upon how a person of ordinary inte!hgence would
perceive it. See Afusser v. Smith Protective Servs., 723 S.W.2d 653 (Tex. 1987).
Appellee's argument that Appellant said or insinuated the entire $3 million was
embezzled is without merit. The broadcasts did not say this nor did they imply it. It is
clear from the broadcasts that the school was operating until the time TEA closed it. The
25
problem being investigated (and what Appellant reported) was Appellee's accounting for
the use of the funds, because all of the $3 million given to the school, was not accounted
for in a proper manner. This is a true statement supported by considerable evidence in
the record.
Despite Appellee 's unsupported assertions that Appellant has accused her of
criminal behavior, it is clear from looking at the broadcasts that Appellant never accused
Appellee of embezzling funds or other criminal behavior. (CR 1:26-27, 29-30, 63, 72-73,
77-78, 82-83). None of the broadcasts ever mention the words embezzlement or
misappropriation (or assert that such has happened), or any allegations of possible
criminal behavior. In the September l 51h broadcast, KTRK discusses the fact that State
money was not fully accounted for, the "lack of sufficient financial records," the debts
Benji's owed and the State's contention that Benji's had not provided many receipts.
(CR 1:26-27, 29-30). Never does KTRK state that Robinson (or even, Benji's) has
misappropriated or embezzled funds. Similarly, the September 25th broadcast discusses
the questionable lease situation, the fact that the State does not know how the State
money was spent and that the charter was suspended over "concerns about money
mismanagement." (CR 1:63). The September 27th article discusses the school's closing,
the suspension of the charter, the fact that the State did not know how the money was
spent and the lawsuit. (CR 1:72-73). Nowhere in the Complained of Statements, or in
the broadcasts as a whole, does Appellant "unambiguously charge" Appellee with a
crime, dishonesty, fraud, rascality, or general depravity. (CR 1:26-27, 29-30, 63, 72-73,
77-78, 82-83).
26
In fact, just the opposite was reported. Rather than unambiguously alleging - or
even implying - criminal behavior, one of the broadcasts shows a school representative
stating just the opposite - that he did not know of any fraud or abuse. (CR 1:63). What
the broadcasts consistently say is that the State of Texas was concerned about Benji's
financial mismanagement and failure to properly account for the use of State funds.
These statements are indisputably true, do not allege any criminal conduct and are
entirely consistent with the Final Order revoking Benji's charter. (CR 4: 1099-1112).
TEA's concern for Benji's financial situation and failure to properly account for State
funds was also demonstrated by statements made by TEA officials in other media reports
on the brewing controversy. (CR 1:35; 2:400, 407-408, 415, 418, 421).
Appellee also contended in the trial court that the comments made by others - in
response to KTRK 's articles and in response to articles by other news organizations -
demonstrated defamation per se because, in those internet comments, third parties
accused her of criminal behavior, misappropriation, or other malfeasance. 7 (CR 3:504-
508; 1:31-33, 36-37, 41-60, 64-65, 74-74-75, 79-80, 83-84, 87). In a claim for
defamation per se, however, Appellant can only be held responsible for statements it
actually made - and whether it actually unambiguously accused her of a crime, which it
clearly did not. Furthermore, Appellant cannot be held responsible for what others say
7
Additionally, Appellee alleged that it did not sue the other media outlets that reported on the ongoing controversy
because they did not ''report[] anything like the statements made by" KTRK (CR 3:503 ). But, if the gauge of
whether a report is defamatory per se is what internet commenters say on the comment message board for an article,
as Appellee alleges, then Appellee's own evidence would indicate that the most defamatory (and, perhaps, harmful)
report was an article by the Houston Chronicle, printed on their website on September 15, 20 I 0, that generated 168
comments (CR I :41-60), the most (and some of the most damning) comments of any of the reports that Appellee
introduced into evidence at the trial court. But, neither the Houston Chronicle article nor the KTRK broadcasts
accuse Appellee of a crime and none of the comments attached to the broadcasts change that fact.
27
about Robinson. WFAA-TV, Inc. v. Mclemore, 978 S.W.2d 568, 571 (1998) (stating that
to maintain a defamation cause of action, the Appellee must prove that the Appellant
published a statement). If the Court must resort to such extrinsic evidence to make the
determination, as Appellee requested the trial court to do, then the claim may not be
sustained for defamation per se (but instead is only per quad, which Appellee did not
plead and certainly did not provide evidence of in the trial court). Main v. Royall, 348
S.W.3d at 390. Finally, even if Appellee were now to take the position that the
statements were defamatory per quad, Appellee has not pied nor proven a prima facie
case of (and has introduced no evidence of) actual damages. See, e.g., Leyendecker &
Assocs. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984) (for libel per quad, actual damages
must be pleaded and proved before general damages can be recovered).
Because Appellee did not and could not demonstrate clear and specific evidence
that what Appellant actually said about Appellee (and not any innuendo or reference of
extrinsic evidence and not what unrelated parties feel about Robinson) was defamatory
per se, it was error for the trial court to deny Appellant's Motion to Dismiss.
III. Appellee Was Required to and Failed to Show Clear and Specific Evidence of
Actual Malice.
A. Appellee is a Public Figure
The trial comt failed to even address the fact that Appellee is a public figure and,
therefore, required to prove actual malice as an essential element of her claim. Because
the Appellee's status as a public figure is outcome determinative, it was error for the
court to gloss over this critical issue. See, e.g., Ampex Corp. v. Cargyle, 128 Cal. App.
284th 1569, 1578 (Cal. App. 1st Dist. 2005) (Reversing the denial of an Anti-SLAPP
motion when limited purpose public figure did not produce any evidence or inferences
from evidence concerning Appellant's attitude or state of mind with respect to the
veracity of the messages posted on message boards); Christian Research Institute v.
Alnor, 148 Cal. App. 4th 71 (Cal. App. 4th Dist. 2007) (Reversing lower court's denial of
an Anti-SLAPP motion and holding that although the Appellee had shown falsity it had
failed to demonstrate "actual malice by clear and convincing evidence").
State charter schools receive state and federal funding, but have less oversight than
schools that are run by a district; therefore, because Appellee held a position of
substantial responsibility for or control over the school, the public had an independent
interest in the qualifications and performance of Robinson as the person who ran such a
school. See, e.g., Rosenblatt v. Baer, 383 U.S. 75, 85-86, 86 S. Ct. 669, 676 (1966). As a
superintendent of a charter school that received more than $3 million in funds from the
State each year, Appellee's occupation was one that invited independent interest beyond
the general interest in the qualifications and performance of all governmental employees.
See, e.g., Beck v. Lone Star, 970 S.W.2d 610, 614-15 (Tex. App. - Tyler 1998, pet.
denied) (holding assistant superintendent is public official for all purposes). 8
Furthermore, there exists significant precedent holding that an array of public school and
8
See also, Purvis v. Ballanti11e, 487 S.E.2d 14, 17 (Ga. Ct. App. 1997) (holding superintendent public official
because he routinely made personnel. administrative and budgetary decisions affecting the public school system);
Scott '" News-Herald, 25 Ohio St. 3d 243, 496 N .E.2d 699 (Ohio 1986) (holding school superintendent is public
official because he was responsible for implementing policies, expected to serve as a role model for students, and
exercised supervisory authority over students); State v. Defley, 395 So. 2d 759 (La. 1981) (holding positions of
school superintendent and school supervisor are such that the public has an independent interest in the qualifications
and performance of the persons who hold them, beyond the public interest in the qualifications and performance of
all govemment employees and, thus, both are ''public officials" for defamation purposes).
29
other public employees with administrative responsibility are public officials within the
meaning of Rosenblatt. 9 Thus, because of her role at Benji's, Appellee is a public figure
and/or public official for purposes of this Court's defamation analysis.
In addition, as a government contractor who was paid close to $3 million annually
in taxpayer money, at a time when charter schools were embroiled in public controversy
(CR 5:1267-1286), Appellee, by her own conduct, was involved in a subject of legitimate
public concern that was sufficient to invite public comment. This fact alone makes
Appellee a public figure. Brewer v. Memphis Pub. Co., 626 F.2d 1238, 1254 (5 1h Cir.
1980) (by choosing to engage in activities that necessarily involved increased public
exposure and media scrutiny, plaintiff played more than a trivial or tangential role in the
controversy and, therefore, bore the risk of injury to his reputation); Rosanova v. Playboy
Enters., Inc., 580 F.2d 859, 862 (5 1h Cir. 1978) (individual's desire not to be a public
figure does not matter if his activities are of legitimate public concern that invited public
comment). See also, WFAA-TV, Inc. v. Mclemore, 978 S.W.2d 568 (Tex. I 998), cert.
denied, 119 S. Ct. 1358 (1999); Amerz'can Broadcasting Co. v. Gill, 6 S.W.3d 19 (Tex.
App. - San Antonio 1999, pet. denied) (brothers who maintained ownership interests in
savings and loans during the savings and loan crisis and who were the subject of
9
See. e.g.. Standridge v. Ramey, 733 A.2d 1197, 1201-02 (N.J. Super. Ct. App. Div. 1999) (public school athletic
director was public official because his position involved "public visibility and responsibility for the conduct of
governmental affairs" which included "managing and supervising" duties); Jee v. New York Post, 671 N.Y.S.2d 920,
923-24 (N.Y. Sup. Ct. 1998) (public school principal is public official because she "appeared to have responsibility
over the conduct of education at the school [which] was sufficient to trigger public official standards, even if she did
not actually have the power that the public perceived [she had]"), affd. 688 N. Y .S.2d 49 (App. Div. 1999); Johnson
v. Robinsdale lndep. Sch. Dist. No. 281, 827 F. Supp. 1439, 1443 (D. Minn. 1993) (public elementary school
principal was a public official where he managed school employees and "appeared to have responsibility over the
conduct of education" at the school "sufficient to trigger public official standards"); Kapiloff v. Dunn., 343 A.2d
251, 258 (Md. Ct. Spec. App. 1975) (high school principal was within the public figure-public official classification
and his "suitability for the position was a matter of public or general interest or concern'').
30
numerous investigations regarding the institution were public figures); Swate v. Schiffers,
975 S.W.2d 70, 75-76 (Tex. App. - San Antonio 1998, pet. denied) (trial court properly
concluded Swate was a public figure even if he may not have voluntarily injected himself
into the controversy when his behavior described by the articles was the type that
interests the public); Brueggemeyer v. ABC, Inc., 684 F. Supp. 452, 458 (N.D. Tex. 1988)
(trial court properly concluded Brueggemeyer was a public figure even if he did not, of
his own volition, undertake to become one, because he voluntarily engaged in a course
that was bound to invite attention and comment).
Although one does not become a public figure merely by contracting with the
government or accepting public money, one who contracts with the government can
become a public figure because of the way in which she conducts herself in connection
with those public contracts. See, e.g., McDO"well v. Paiewonsky, 769 F.2d 942, 949 (3d
Cir. 1985); Carr v. Forbes, 259 F.3d 273 (4th Cir. 2001 ). Appellee claims to have not
voluntarily injected herself into the controversy; however, the fact that she chose to be
the Founder, Superintendent and Executive Director of Benji's Special Academy at a
time when such involvement in charter schools generally, and Benji's in particular, was
inviting a tremendous amount of public comment and scrutiny by law enforcement
(looking into the double payment of rent issue), government agencies (the TEA revoking
its chaiier), and the general public is enough. There can be no doubt that by ignoring
TEA's financial rep01iing requirements and orders, by encouraging parents to defy the
State's closure of the school, by calling her own press conference to announce the school
remaining open despite the State's order, by refusing to allow the auditors to do their
31
work at the school, and through speaking to the media, Appellee conducted herself in a
manner in connection with her government contract that invited public comment and
scrutiny . 10
Finally, it has long been the law that when a person "thrust herself to the forefront
of any particular public controversy to influence the resolution of the issues involved in
it," she becomes a limited purpose public figure. See Gertz v. Robert Welch, Inc., 418
U.S. 323, 351-2, 94 S. Ct. 2997, 3013, 41 L. Ed. 789 (1974). Appellee frequently spoke
out in public venues, to the media, and to TEA in an effort to influence the outcome of
the controversy concerning the accreditation of Benji's. (CR I :39; 2:358-59, 2:403-404,
407, 415, 418, 420, 423; 2:478-481,484-85; 5: 1291-1292, 1296-1300). Whether a person
is a public official or public figure is a question of Jaw, and the evidence presented to this
Court clearly establishes Appellee is just that. See Rosenblatt v. Baer, 383 U.S. 75, 88,
86 S. Ct. 669, 15 L. Ed. 2d 597 (1966); WFAA-TV. Inc. v. Mclemore, 978 S.W.2d 568,
571 (Tex. 1998). As such, Appellee must establish KTRK knew what it said about
Appellee was false and purposefully lied in its broadcasts. See, CurUs Publishing Co. v.
Butts, 388 U.S. 130, 154-55 (1967); Casso v. Brand, 776 S.W.2d 551, 557-58 (Tex.
1989). Appellee has failed to provide any evidence of this essential element of her claim.
10
See. e.g.. CACI Premier Technology, Inc. 1·. Rhodes, et. al., 536 F.3d 280 (4 1h Cir. 2008) (government contractor
held public figure); Capuano v. The Outlet Co., 579 A.2d 469 (R.I. 1990) (owners of waste management companies
who functioned in implementation of quasi-governmental program through two municipality contracts considered
public figures); C(vb11rn v. New World Communications. Inc., 705 F. Supp. 635 (D.D.C. 1989), a.[f'd. 903 F.2d 29(D.C. Cir. 1990) (government contractor held public figure); McDowell v. Paiewonsky, 769 F.2d 942, 950 (3d Cir.
1985) (decision to work on public projects is a voluntary act rendering one a limited purpose public figure, since
such projects ········· especially controversial ones -·· engender public scrutiny).
32
B. The Complained of Statements Were Privileged.
Even if she were not found to be a public figure, Appellee must still prove actual
malice because the statements involve matters of public concern and are privileged. See
Gertz v. Welch, 418 U.S. 323 (1974); Huckabee v. Time Warner, 19 S.W.3d 413 (Tex.
2000). All of the Complained of Statements are protected by constitutional, statutory and
common law privileges, including the fair report and fair comment privileges.
The fair report privilege includes repmiing the contents of pleadings filed with the
courts, investigations by governmental bodies, and substantially true accounts of official
or judicial proceedings. The use of the phrase "fair, true and impartial" in the privilege
has been construed to mean "substantially true." Herald-Post Publishing Co., Inc. v.
Hill, 891 S.W.2d 638 (Tex. 1994); Langston v. Eagle Publishing Co., 719 S.W.2d 612(Tex. App. - Waco 1986, writ ref'd n.r.e.). Appellee herself describes TEA's plan "to
report to the major news organizations ... that over $3 million in public funds given to
Benji's over the past year, i.e. the entire annual budget for operations, was unaccounted
for." (CR I :9, ~37). And, to the extent Appellee complains that the information provided
by TEA to KTRK was incorrect, this does not overcome the privilege protecting
Appellant's broadcasts. See Freedom Communications, Inc. v. Sotelo, 2006 WL
1644602, 34 Media L. Rep. 2207 (Tex. App. - Eastland 2006, no pet.) (the privilege also
extends to reporting based on erroneous government information.) Furthermore, the
"fair, true and impartial privilege" has been construed to provide "great latitude" to
reports of official proceedings. Texas Monthly, Inc. v. Transamerican Natural Gas
Co1p., 7 S.W.3d 801 (Tex. App. - Hou. [I st Dist.] 1999, no pet.). See Tex. Civ. Prac. &
33
Rem. Code §73.002 (a) and (b). Thus, there is no doubt Appellant's reporting on TEA's
investigation of Appellee's financial mismanagement of Benji's falls within the fair
report privilege.
In addition, the broadcasts and articles at issue are privileged as a reasonable and
fair comment on a matter of public concern published for general information pursuant to
the common law and the Texas and the United States Constitutions. Humane Society of
Dallas v. Dallas Morning Ne>vs, L.P., 180 S.W.3d 921, 923 (Tex. App. - Dallas 2005, no
pet.). Because the broadcasts focused on highly relevant political issues and government
investigations, such as whether over $3 million in state funds was properly accounted for,
and the chaiier revocation and closure of a school in the Houston community, Appellant
is protected by the fair comment privilege. See Tex. Civ. Prac. & Rem. Code
§73.002(b)(2). The fair comment privilege extends to reports on what state agencies and
officials are doing. See Brewer v. Capital Cities/ABC, Inc., 986 S.W.2d 636, 644-45
(Tex. App. - Fort Worth 1998, no pet.) (fair comment privilege applied to primarily
factual account of state agency inspections); Swate v. Schiffers, 975 S.W.2d 70, 77 (Tex.
App. - San Antonio 1998, pet. denied) (Broadcasts concerning complaints made to the
medical board constituted privileged reports of an official proceeding about medical care,
which constitutes a matter of public concern). Thus, Appellant's reporting on allegations
of improper, undocumented or unaccounted for use of government funds certainly falls
within the purview of the privilege.
34
IV. Appellee Failed to Prove By Clear and Specific Evidence the Complained of
Statements were Published with Actual Malice.
Despite having the burden to do so, Appellee did not provide a prima fade case,
by clear and specific evidence, of actual malice by Appellant. To the contrary,
Appellant's uncontroverted affidavits squarely establish a lack of actual malice.
(CR 2:217-219, 371-373, 433-435). To establish actual malice one must ask whether the
speaker subjectively believed what was published at the time of publication. Casso v.
Brand, 776 S.W.2d 551, 558-59 (Tex. 1989). Actual malice, which Appellee repeatedly
confused with "malice" in the trial court, is a term of art in defamation law. It does not
mean ill will, but rather publication of a false statement knowing the statement was false,
or with reckless disregard as to the truth of the statement. Gertz v. Welch, 418 U.S. at
349, 94 S. Ct. at 3013; Casso v. Brand, 776 S.W.2d at 554. "Reckless disregard" means
not mere "sloppiness", but that the publisher in fact ente1iained serious doubts about the
truth of the statement. Id. at 558 (quoting St. Armant v. Thompson, 390 U.S. 727, 731, 88
S. Ct. 1323, 1325 (1968).
Although it was not its burden, KTRK introduced in the trial court the affidavits
from its employees who worked on the reports establishing their belief in the truth of the
statements published by KTRK. (CR 2:217-219, 371-373, 433-435). See Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 688, I 09 S. Ct. 2678, 105 L. Ed. 2d
562 (11989). Appellee, on the other hand, provided no evidence - let alone clear and
specific evidence - of Appellant's state of mind. Instead, Appellee attempts to
manipulate what Appellant has said to bolster her case asking how Appellant could have,
35
in the absence of "malice," "conclude[d] that a school had operated for a year without
paying payroll or utilities" or believed that "the State had no idea where any of this vast
sum of money was spent." (CR 3:512). The answer is simple: Appellant never made the
statements Appellee is now trying to attribute to it. As with the other elements of her
claim, Appellee has merely thrown up suppositions and hypotheticals - none of which
are evidence of the elements of her claim. See Brownlee v. Bruwnlee, 665 S.W.2d 111(Tex. 1984); Mcintyre v. Ramirez, I 09 S.W.3d 741 (Tex. 2003); see also, ABC, Inc. v.
Shanks, 1 S.W.3d 230, 237 (Tex. App. - Corpus Christi 1999, pet. denied). "To prove
malice, the Appellee must offer proof of the Appellant's state of mind at the time of
publication." Abdel-Hafiz, 240 S.W.3d 492, 519 (Tex. App. - Fort Worth 2007, pet.
denied) (citing Skeen 159 S.W.3d at 637). Appellee has failed to do so.
Instead, essentially conceding that she has no evidence of actual malice, Appellee
argued that actual malice was demonstrated circumstantially through Appellee's
improper mischaracterizations of what Appellant said. (CR 3:512-513). Even if
Appellee did not like the choice of words used by Appellant, a "poor choice of words,
without any showing to indicate that the authors thought they were making a false
statement or at least had serious doubts about its truth, does not create evidence of actual
malice." Abdel-Hafiz, 240 S.W.3d at 520. To demonstrate actual malice, it is not enough
to demonstrate an error in judgment or to claim that different words might have been
better used. Id. Instead, Appellee must demonstrate that Appellant was aware that its
choice of words could create a false impression. Abdel-Hafiz, 240 S.W.3d at 522; see
also, Huckabee v. nme Warner, 19 S.W.3d 413, 426 (libel plaintiff must show that
36
publisher selected the material "with the awareness that the om1ss1011 could create a
substantially false impression."); Isaacks, 146 S.W.3d at 162 ("When the words lend
themselves to more than one interpretation, the plaintiff must establish either the
defendant knew that the words would convey a defamatory message, or had reckless
disregard for their effect."). An error in judgment is not sufficient to demonstrate actual
malice. Abdel-Hafiz, 240 S.W.3d at 519. Instead, Appellee was required to demonstrate
that Appellant "purposefully published mistaken facts or that the circumstances were 'so
improbable that only a reckless publisher would have made the mistake.'" Id. (quoting
Freedom Ne'rvspapers of Tex. v. Cantu, 168 S.W.3d 847, 855 (Tex. 2005)). Appellee has
not provided any evidence to support a claim that Appellant acted with actual malice.
Therefore, it was error for the cou1t to find that Appellee established by clear and specific
evidence that Appellant acted with actual malice.
V. Appellee Failed to Establish With Clear and Specific Evidence That The
Complained of Statements Were Materially False.
A. Appellant's Broadcasts Were Substantially True
Appellee failed to provide any evidence, let alone clear and specific evidence, of
material falsity of the Complained of Statements. This is not surprising, because
KTRK's reporting was true or substantially true as a matter of law.
Truth is an absolute defense in libel cases in Texas. See Tex. Civ. Prac. & Rem.
Code §73.005; Randall's Food Jvfarket, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.
1995). KTRK reported truthfully and accurately that the TEA was investigating Appellee
and her charter school for not properly accounting for, among other things, over
37
$3 million in government funding for one year. Appellee's narrow complaint is that
because KTRK stated the total amount of funding when repotiing on questions over
mismanagement, she thinks people might infer that she failed to account for any of it,
arguing that she did indeed provide records to show how some of that funding was spent.
A publisher cannot be held liable for a true account of events, regardless of what
someone may infer from the statements. See Green v. CBS, Inc., 286 F.3d 281, 285 (5 111
Cir. 2002); Larson v. Fami(y Violence & Sexual Assault Prevention Center, 64 S.W.3d
506, 515-516 (Tex. App. - Corpus Christi 2001, pet. denied).
In any event, KTRK did, in fact, report that Appellee provided some records and
receipts for the use of State funds, but the TEA's concern was that it was insufficient to
account for all of the moneys given. Essentially, Appellee admits the truth of the
Complained of Statements and instead quibbles over the specifics - a position Texas
courts do not recognize as establishing material falsity. See, e.g., Rogers v. Dallas
Morning News, Inc., 889 S.W.2d 467 (Tex. App. - Dallas 1994, writ denied) (finding
newspaper's inaccurate statement that a charity only spent I 0% of its donations on actual
services, when, in fact, the charity spent 43% of its donations on services, was a minor
error and did not affect the "gist" of the story, which was accurate); Dmvner v.
Amalgamated Meatcutters and Butcher Workmen of N. Am., 550 S.W.2d 744, 747 (Tex.
Civ. App. - Dallas 1977, writ refd n.r.e.) (Affirming summary judgment where
Appellant published statement that Appellee embezzled $2,187.77 instead of $840.73);
Fort Worth Press Co. v. Davis, 96 S.W.2d 416, 419 (Tex. Civ. App. - Fort Worth 1936,
writ denied) (reversing trial court judgment and finding for media defendant where
38
defendant incorrectly stated plaintiff wasted $80,000 in taxpayer funds rather than
$17,575.00).
The question is whether a statement is substantially true and that is a question of
law for the court to decide. Herald-Post Publishing Co. v. Hill, 891 S.W.2d 638 (Tex.
1994) (Newspaper reported that witness at trial accused an attorney and his investigator
of threatening her when in fact only the investigator made the threat. The court
dismissed, as a matter of law, on substantial truth grounds); Mcilvain v. Jacobs, 794
S.W.2d 14, 16 (Tex. 1990) (Despite the presence of several minor mischaracterizations,
the court held as a matter of law the report was substantially true and affirmed summary
judgment). Further, in Texas, it is not enough to prove that a stated fact was literally
false. Instead, Appellee must show that the statements were materially false - meaning
the alleged defamatory statement had to have been more damaging to the Appellee's
reputation, in the mind of the average listener, than a truthful statement would have been.
Mcilvain v. Jacobs, 794 S.W.2d 14, 16 (Tex. 1990); KTRK Televisfon v. Felder, 950
S.W.2d 100, 105-106 (Tex. App. - Hou. [14th Dist.] 1997, no writ). If the underlying
gist of the Complained of Statements is true and undisputed, "any variance with respect
to items of secondary importance" can be disregarded. Id.; Provencio v. Paradigm
~Media, et al., 44 S.W.3d 677 (Tex. App. - El Paso 200 I, no pet.) (misleading return
address on postcard from news organization to sex offender did not defeat truth defense).
Appellee has not denied that it is true that Benji's was in debt at the time of the
KTRK broadcasts, or that TEA had been investigating Benji's finances and had found
State money unaccounted for, and, as a result, had closed the school. She also does not
39
contest that TEA provided Benji's with over $3 million in taxpayer funds in just one year,
that the financial management issues had been going on for years, and that the State did
not know where substantial taxpayer funds provided to Benji's had gone. Benji's failed
to account for significant State funds advanced by TEA, suffered from severe financial
mismanagement, and lacked accountability in its record keeping with the State. (CR
4:918-925, 945, 948-949, 953). These continual problems ultimately caused the closure
of the school and the revocation of Benji's charter by the State. Thus, the "gist" of
KTRK's broadcasts is true and undisputed.
B. The Substantial Truth Test Applies to Appellant's Reporting on
Ongoing Allegations Under Investigation by the TEA.
It is also the law in Texas that "a media defendant's reporting of third-party
allegations and any investigation thereof is substantially true if it accurately depicts the
allegations being made and the existence of any investigation, regardless of whether the
underlying allegations are themselves substantially true." Neely v. Wilson, 331 S.W.3d
900, 919 (Tex. App. - Austin 2011, pet. granted); UTV of San Antonio, Inc. v. Ardmore,
Inc., 82 S.W.3d 609, 611 (Tex. App. - San Antonio 2002, no pet.); ABC Inc. v. Gill, 6
S.W.3d 19, 33 (Tex. App. - San Antonio 1999, pet. denied). When a case involves a
media defendant, coLnis have held the defendant need only prove that third party
allegations reported in a broadcast were, in fact, made and under investigation, and, the
defendant does not need to demonstrate the underlying allegations themselves are
substantially true. Ardmore, Inc., 82 S.W.3d at 612. This extends to investigations or
charges made even by non-governmental organizations or individuals. See KTRK
40
Television v. Felder, 950 S.W.2d 100 (Tex. App. - Hou. [14th Dist.] 1997, no writ); see
also, ABC Inc. v. Gill, 6 S.W.3d 19. In the Felder case, a report that a school with a
history of discipline and personnel problems was embroiled in another controversy in
which there were allegations of physical threats and verbal abuse was substantially true,
whether or not the details were literally true. Similarly, Appellant's reporting on the
allegations under investigation by TEA concerning Appellee's financial mismanagement
of Benji's is substantially true.
Because Appellee failed to demonstrate by clear and specific evidence that the
Complained of Statements were materially false, and Appellant provided uncontroverted
evidence that they are substantially true, it was error for the trial court to deny
Appellant's Motion to Dismiss.
VI. Appellee Failed to Establish With Clear and Specific Evidence That The
Complained of Statements Were "Of and Concerning" Appellee.
Appellee failed to establish by clear and specific evidence a prima facie case that
the Complained of Statements were "of and concerning" Appellee. As is clear from the
record in this case, none of the Complained of Statements ever mentions Appellee by
name or position. (CR I :26-27, 29-30, 63, 72-73, 77-78, 82-83). Instead, the
Complained of Statements all refer to Benji's or "the school." In fact, in looking at the
broadcasts themselves, only two broadcasts even mention Appellee Robinson - and
neither in the context of the $3 million. In one broadcast, in discussing how many
students stood by Benji's, despite the problems, the report includes a statement from a
student praising Robinson for giving students a second chance, saying "Ms. Robinson,
41
she sit down and talk to you other schools would just suspend you." This is hardly a
defamatory statement. (CR 1:26-27, 29-30).
The only other mention of Robinson is in the September 25th and September 27th
broadcasts which involve a discussion about the lease issue that Appellee does not
dispute. (CR 1:63, 72). Those broadcasts discuss the fact that the City of Houston was
looking into the lease issue, and note that Robinson is listed in the Secretary of State's
records as a founder of both the school board and the Charter Holder board. (CR 1:63,
72). Robinson does not deny any of this. None of the other broadcasts and none of the
Complained of Statements ever name Appellee. For there to be a cause of action for
defamation, the allegedly defamatory statements must be "of and concerning" the
plaintiff. See Huckabee v. Time Warner Entm 't Co., 19 S.W.3d 413, 429 (Tex. 2000);
Neu'Spapers, Inc. v. J\1atthews, 339 S.W.2d 890, 893 (Tex. 1960). "There must be
evidence showing that the attack was read as specifically directed at the plaintiff."
Rosenblatt v. Baer, 383 U.S. 75, 81, 86 S. Ct. 669 (1966). Because the Complained of
Statements were not of and concerning Appellee and she did not introduce clear and
specific evidence that they were, it was error for the trial court to so find.
PRAYER
The Texas Citizens' Patiicipation Act requires a court to dismiss a lawsuit where
the claims arise out of a defendant's exercise of the right of free speech, unless the
plaintiff can establish by clear and specific evidence a prima facie case for each essential
element of every one of his or her claims. Appellee has failed to meet her burden, and
42
the trial court erred in denying Appellant's Motion to Dismiss brought pursuant to this
statute.
Respectfully submitted,
HA YNES AND BOONE, LLP
By: _ _ /s/_ _ _ _ _ _ _ _ _ _ __
Laura Lee Prather
State Bar No. 16234200
Catherine Lewis Robb
State Bar No. 24007924
600 Congress Avenue, Suite 1300
Austin, TX 78701
Telephone: (512) 867-8400
Telecopier: (512) 867-8470
ATTORNEYS FOR APPELLANT
KTRK TELEVISION, INC.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been
sent, as indicated below, on this 21st day of June, 2012, to the following counsel of
record:
Via Certified Mail, Return Receipt Requested
Berry Dunbar Bowen
3014 Brazos Street
Houston, TX 77006
Counsel for Appellee
43
APPENDIX
Pursuant to Texas Rules of Appellate Procedure 38. I (k)(I )(A) and 38.2(a)(2),
Appellee attaches the following items to the Appendix:
TAB
Order Denying Defendant's Motion to Dismiss A
Findings of Fact and Conclusions of Law B
Order Denying Defendant's Motion for Reconsideration c
Tex. Civ. Prac. & Rem. Code §27.001 et seq. D
254284_8.DOC 44
APPENDIX TAB U:
Appellant's Brief in Reply in
No. 01-12-00372-CV
(WITHOUT EXHIBITS)
ACCEPTED
221 EFJ017154720
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12 October 29 P1 :35
M KARINNE McCULLOUGH
CAUSE NO. 01-12-00372-CV CLERK
IN THE FIRST COURT OF APPEALS
HOUSTON, TEXAS
KTRK TELEVISION, INC.
Appellant,
v.
THEAOLA ROBINSON,
Appellee.
On Appeal from the 234 1h Judicial District Court of Harris County, Texas,
the Hon. Reece Rondon, Presiding
APPELLANT KTRK TELEVISION, INC.'s BRIEF IN REPLY
Laura Lee Prather
State Bar No. 16234200
Catherine Lewis Robb
State Bar No. 24007924
Haynes and Boone, LLP
600 Congress A venue, Suite 1300
Austin, Texas 78701
Telephone: (512) 867-8400
Facsimile: (512) 867-8470
ATTORNEYS FOR APPELLANT
KTRK TELEVISION, lNC.
APPELLANT REQUESTS ORAL ARGUMENT
TABLE OF CONTENTS
I. SlJMMARY ........................................................................................................ 1
II. STANDARD OF REVIEW ................................................................................. 4
III. ROBINSON'S IMPROPER RECITATION OF "FACTS" ................................ 7
A. Robinson's Statement of Facts ................................................................. 7
B. Other Facts ............................................................................................... 8
C. KTRK 's Undisputed Facts ....................................................................... 9
IV. THE TRIAL COURT IMPROPERLY FOUND THAT A LEGAL ACTION
OVER PRIOR BROADCASTS COULD NOT HA VE BEEN BROUGHT
TO DETER FREE SPEECH ............................................................................... 9
V. ROBINSON DID NOT ESTABLISH EACH ELEMENT OF HER
CLAIM OF DEFAMATION PER SE BY CLEAR AND
SPECIFIC EVIDENC.E ..................................................................................... I 0
A. Robinson did not establish that the statements were
defamatory per se ................................................................................... 11
B. Robinson did not establish that the statements were materially
false ........................................................................................................ 14
C. Robinson did not establish that the statements were made with
actual malice ........................................................................................... 16
D. Robinson did not establish the statements were of and
concerning her ........................................................................................ 20
VI. THE ANTI-SLAPP STATUTE IS CONSTITUTIONAL ................................ 22
VII. PRAYER ........................................................................................................... 24
ii
TABLE OF AUTHORITIES
Page(s}
CASES
ABC, Inc. v. Shanks,
l S.W.3d 230 (Tex. App. - Corpus Christi 1999, pet. denied) .................................... 19
Abdel-Hafiz v. ABC, Inc.,
240 S.W.3d 492 (Tex. App. - Fort Worth 2007, pet. denied) ............................... 16, 18
Abdenour v. Mid Nat 'l Holdings, Inc.,
190 S.W.3d 237 (Tex. App. - Hou. [1 51 Dist.] 2006, no pet.) ........................................ 8
Anderson Dev 't Co. v. Tobias,
116 P.3d 323 (Utah 2005) ............................................................................................ 23
Barber v. Colorado Indep. Sch. Dist.,
901 S.W.2d447(Tex.1995) .......................................................................................... 4
Bentley v. Bunton,
94 S.W.3d 561 (Tex. 2002) .................................................................................... 19, 20
Berg v. AMF Inc.,
29 S.W.3d 212 (Tex. App. - Hou. [14th Dist.] 2000, no pet.) ...................................... 5
Brewer v. Simental,
268 S.W.3d 763 (Tex. App. - Waco 2008) ................................................................. 22
Brownlee v. Brownlee,
665 S.W.2d 111 (Tex. 1984) ........................................................................................ 19
Cabral v. Martins,
177 Cal. App. 4th 4 71, 99 Cal. Rptr. 3d 394 (2009) ...................................................... 4
Casso v. Brand,
776 S.W.2d 551 (Tex. 1989) .................................................................................. 17, 24
Channel Two Television v. Dickerson,
725 S.W.2d 470 (Tex. App. - Hou. [I st Dist.] 1987, no writ) ...................................... 6
City of Dallas v. Reed,
258 S.W.3d 620 (Tex. 2008) .......................................................................................... 4
iii
Columbia Valley Regional Medical Center v. Bannert,
112 S.W.3d 193 (Tex. App. - Corpus Christi 2003, no pet.) ...................................... 12
Cullum v. White,
No. 2011 WL 6202800 (Tex. App. - San Antonio 2011, n.w.h.) ................................ 21
Day v. Farrell,
Cause No. 97-2722, 2000 WL 33159180 (R.I. Sup. Ct. May 15, 2000) ..................... 23
Diamond Shamrock Re.fining and Marketing Co. v. Mendez,
844 S.W.2d 198 (Tex. 1992) ........................................................................................ 10
Doe v. CahUl,
884 A.2d 451 (Del. 2005) .............................................................................................. 7
Dolcefino v. Turner,
987 S.W.2d 100 (Tex. App. 1998) affd sub nom. Turner v. KTRK Television,
Inc., 38 S.W.3d I 03 (Tex. 2000) .................................................................................. 15
Dmvner v. Amalgamated Meatcutters and Butcher Workmen ofN. Am.,
550 S.W.2d 744 (Tex. Civ. App. - Dallas 1977, writ ref d n.r.e.) .............................. 16
Duncan v. Better474 S.W.2d 619 (Tex. Civ, App. -Hou. [14 h Dist.) 1971, n.w.h.) ............................. 11
Equilon Enterprises v. Consumer Cause, Inc.,
29 Cal. 4th 53, 52 P.3d 685 (2002) ........................................................................ 23, 24
Fort Worth Press Co. v. Davis,
96 S.W.2d 416 (Tex. Civ. App. - Fort Worth 1936, writ denied) ............................... 16
Fredonia State Bank v. General Am. Life Ins. Co.,
881 S.W.2d279(Tex.1994) ...................................................................................... 8,9
Furst v. Smith,
176 S.W.3d 864 (Tex. App. - Hou. [1st Dist.] 2005, no pet.) ....................................... 6
Gertz v. Robert Welch, Inc.,
418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 789 (1974) .................................................... 17
Gone v. Gone,
993 S.W.2d 845 (Tex. App. -Hou. [14th Dist.] 1999, pet. denied) .............................. 5
Green v. CBS, Inc.,
286 F .3d 281 (5th Cir. 2002) ....................................................................................... 12
iv
Guam Greyhound v. Brizill,
No. CV A07-021, 2008 WL 4206682 (Guam Sept. 11, 2008) ..................................... 23
Gu:::man v. State,
955 S.W.2d 85 (Tex. Crim. App. 1997) ......................................................................... 5
Habib v. Winther,
146 Wash. App. 1025 (2008) ......................................................................................... 4
Hancock v. Variyam,
345 S.W.3d 157 (Tex. App. -Amarillo 2011, pet. granted) ....................................... 12
Harte-Hanks Communications, Inc. v. Connaughton,
491 U.S. 657, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989) ............................................. 17
HBO, A Div. of Time Warner Entm't Co., L.P. v. Huckabee,
995 S.W.2d 152 (Tex. App. - Hou. [14th Dist.] 1998), affd sub nom.,
Huckabee v. Time Warner Entm't Co. L.P., 19 S.W.3d 413 (Tex. 2000) .................... 16
Herald-Post Publishing Co. v. Hill,
891 S.W.2d 638 (Tex. 1994) ........................................................................................ 16
Hinojosa v. Columbia/St. David's Healthcare System, L.P.,
I 06 S.W.3d 380 (Tex. App. - Austin 2003, no pet.) ................................................... 11
Hometown Props., Inc. v. Fleming,
680 A.2d 56 (R.I. 1996) ............................................................................................... 23
Huckabee v. Time Warner Entm't Co. L.P.,
19 S.W.3d 413 (Tex. 2000) ........................................................................ 15, 17, 19, 20
In re C.E.,
01-12-00371-CV, 2012 WL 4717882 (Tex. App-Hou. [1st Dist.] Oct. 4,
2012, n.p.h.) ................................................................................................................... 5
In re Does,
242 S.W.3d 805 (Tex. App. -Texarkana 2007, no pet.) ............................................... 7
In Re J.F.K.,
345 S.W.3d 706 (Tex. App. - Dallas 2011, no pet.) ...................................................... 8
In re R.J.H.,
79 S.W.3d 1 (Tex. 2002) ................................................................................................ 5
Lafayette Morehouse, Inc. v. Chronicle Pub! 'g Co.,
37 Cal. App. 4th 855 (Cal. App. 1995) ........................................................................ 23
v
Lee v. Pennington,
830 So. 2d 1037 (La. App. 2002) .................................................................................. 23
Main v. Royall,
348 S.W.3d 381 (Tex. App. -Dallas 2011, no pet.) .............................................. 11, 14
Mann v. Quahty Old Time Serv., Inc.,
120 Cal. App. 4th 90, 15 Cal. Rptr. 3d 215 (2004) ........................................................ 4
Mcilvain v. Jacobs,
794S.W.2d 14(Tex.1990) .................................................................................... 15, 16
Mcintyre v. Ramirez,
I 09 S.W.3d 741 (Tex. 2003) ........................................................................................ 19
Miami Herald Pub. Co. v. Tornillo,
418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974) ............................................... 15
New Times, Inc. v. Isaacks,
146 S.W.3d 144 (Tex. 2004) ........................................................................................ 19
Newspapers, Inc. v. Matthews,
339 S.W.2d 890 (Tex. 1960) ........................................................................................ 20
Nexus v. Swift,
785 N.W.2d 771 (Minn. App. 2010) ............................................................................ 23
Nguyen-Lam v. Cao,
171 Cal. App. 4th 858, 90 Cal. Rptr. 3d 205 (2009) ...................................................... 4
Owens Corning v. Carter,
997 S.W.2d 560 (Tex. 1999) ........................................................................................ 22
Poe v. San Antonio Exp. News Corp.,
590 S.W.2d 537 (Tex. Civ. App. - San Antonio 1979, writ ref'd n.r.e.) .............. 20, 21
Ramos v. State,
31 S.W.3d 762 (Tex. App. - Hou. [!st Dist.] 2000, no pet.) ......................................... 6
Ramsey v. State,
249 S.W.3d 568 (Tex. App. - Waco 2008, no pet.) ...................................................... 5
Reid v. Dalton,
I 00 P .3d 349 (Wash. Ct. App. 2004) ........................................................................... 23
vi
Roberts v. McAfee, Inc.,
660 F.3d 1156 (9th Cir. 2011) ....................................................................................... 4
Rogers v. Dallas Morning Nevvs, Inc.,
889 S.W.2d 467 (Tex. App. - Dallas 1994, writ denied) ............................................ 16
Rosenblatt v. Baer,
383 lJ.S. 75, 86 S. Ct. 669 (1966) .................................................................... 17, 20, 21
S. Cantu & Son v. Ramirez,
101S.W.2d820 (Tex. Civ. App. -San Antonio 1936, no writ) ................................... 7
Salvaggio v. High Plains Broadcasting, Inc.,
Cause No. 2011-CI-10127 (13 lst Dist. Ct., Bexar County, Tex., Feb. 27, 2012) ....... 10
Sandholm v. Kuecker,
405 Ill. App. 3d 835, 942 N .E.2d 544 (20 I 0) .............................................................. 23
Sax v. Votteler,
648 S.W.2d 661 (Tex. 1983) ........................................................................................ 22
Schauer v. Memorial Care Systems,
856 S.W.2d 437 (Tex. App. - Hou. [1Dist.]1993, no writ) ....................................... 19
Senator Jeff Wentworth v Elizabeth Ames Jones,
Cause No. 2012-CI-08201 (73rd Dist. Ct., Bexar Co., Tex. filed May 17, 2012) ...... 23
Shoreline Towers Condo. Ass'n v. Gassman,
404 Ill. App. 3d 1013, 936 N.E.2d 1198 (2010) ............................................................ 4
Simmons v. Ware,
920 S.W.2d 438 (Tex. App. -Amarillo 1996, no writ) ............................................... 19
Simpton v. High Plains Broadcasting, Inc.,
Cause No. 20 l l-Cl-13290 (285th Dist. Ct., Bexar County, Tex., March 23,
2012) ............................................................................................................................ 10
State v. Stone,
137 S.W.3d 167 (Tex. App. - Hou. [l st Dist.] 2004, pet. refd) .................................... 6
Surgitek, Bristol-Myers Corp. v. Abel,
997 S.W.2d 598 (Tex. 1999) .......................................................................................... 6
Texas Pub. Bldg. Auth. v. Mattox,
686 S.W.2d 924 (Tex. 1985) ........................................................................................ 22
vii
Turner v. KTRK Television, Inc.,
38 S.W.3d 103 (Tex. 2000) .......................................................................................... 12
Viera v. Hearst Newspapers, LLC dlb/a The Houston Chronicle, KHOU-TV. Inc.
and Post-Newsweek Stations Houston, Inc. dlb/a KP RC-TV,
Cause No. 20 I 1-42884 (I 90th Dist. Ct., Harris County, Tex. Sept. 11, 2011) ..... I 0, 22
Wallbuilder Presentations, Inc., et al. v. W.S. Smith, et al.,
Cause No. CV-11-1349 ( 4 I 5th Dist. Ct., Parker Co., Tex., 2011, pet. filed) .............. 23
Western Steel Co. v. Altenberg,
206 S.W.3d 121 (Tex. 2006) .......................................................................................... 9
STATUTES
42 U.S.C. § 1983 .................................................................................................................. 9
Tex. Civ. Prac. & Rem. Code §27.005 (b) ...................................................................... 5, 6
Tex. Civ. Prac. & Rem. Code §27.005 (c) .......................................................................... 5
Tex. Civ. Prac. & Rem. Code §27.006(a) .......................................................................... 6
Tex. Civ. Prac. & Rem. Code §27.008 ................................................................................ 4
OTHER AUTHORITIES
Texas Rule of Appellate Procedure 33. I ........................................................................... 22
Texas Rule of Appellate Procedure 38. I (t) ..................................................................... 7, 8
Texas Rule of Appellate Procedure 38.1 (i) ......................................................................... 9
viii
I.
SUMMARY
It is important to reiterate what this appeal is - and is not - about. This appeal
is about whether or not KTRK can report on a matter of significant public interest
without being subject to lawsuits brought in retaliation for that speech. If KTRK cannot
avail itself of the protections of the Anti-SLAPP statute to protect its reporting on how
millions of tax-payer dollars were mismanaged by a charter school - closed by the State
for mismanagement of funds - it is difficult to conceive of what kind of speech would
fall under that statute. The appeal is not about Robinson's grievances against the TEA
for closing the school and firing her, those were the subject of her separate litigation
against the TEA, which the court dismissed. In her failed attempt to demonstrate a prima
facie case of defamation, Robinson (1) misinterprets and mischaracterizes KTRK's
reporting that the TEA did not have a proper and full accounting of the State funds
Benji's received to mean that she, Robinson, did something criminal; and (2) claims that
KTRK had no basis to question how the funds were spent because the TEA had full
access to her financial records. Neither of Robinson's asse1iions is supported by the
evidence in the record before this Court or the actual statements in the KTRK reports.
Appellee did not challenge KTRK's uncontroverted Statements of Facts resulting
in her confirmation of substantial truth. TEA had spent years attempting to gain a proper
accounting of how its funds were being spent by Benji's. These efforts proved fruitless
and often were met with the direct interference and intransigence of Robinson, 1 what she
I CR 2:304-367, 455. 463; CR 4: I 099-1112; CR 4: 918-925, 945. 948-949, 953.
calls "peaceful disobedience. 2 Regardless of what may have been Robinson's good
intentions in staiiing and running the school, the evidence is clear that Robinson and her
fellow Benji's board members or employees were poor financial managers, did not
properly account for their use of State funds (which included multi-million dollar budgets
each year), and did not cooperate with TEA in its attempts to investigate and properly
account for the use of those State funds. 3 Ultimately, because of Benji's and Robinson's
inability to satisfy TEA in many critical areas for maintenance of a charter school, TEA
took over the school and revoked its charter. 4 Whether that was the right or wrong
decision is not at issue in this case. 5 What is paramount is Robinson cannot make out a
primafacie showing of her claim and cannot prevent KTRK from reporting on this grave
matter of public concern - the education of the State's school age children, the viability
of a charter school, and the use of and accounting for significant public funds.
Robinson fails to establish a prima facie case of defamation chiefly because she
relies on statements that KTRK never said. Robinson repeatedly misquotes the
broadcasts, claiming that KTRK said she was "caught stealing,"14
Tex. Civ. Prac. & Rem. Code §27.008 (emphasis added).
15
See. e.g., Cabral\'. Martins, 177 Cal. App. 4th 471. 478, 99 Cal. Rptr. 3d 394, 400 (2009) (applying de nova
review to an anti-SLAPP appeal). Texas' anti-SLAPP statute was modeled after California's law. See Cal. C.C.P.
§§425.16. Other states with similar statutes review anti-SLAPP rulings de nol'o. See e.g.. Cabral v. Martins. 177
Cal. App. 4th 4 71, 4 78. 99 Cal. Rptr. 3d 394, 400 (2009) ("A ruling on a special motion to strike under section
425.16 is reviewed de 11ovo."); Nguye11-Lam v. Cao, 171 Cal. App. 4th 858, 866, 90 Cal. Rptr. 3d 205, 211 (2009)
(reviewing a court's denial of a California anti-SLAPP motion de nova); Shoreline Towers Co11do. Ass'11 v.
Gass111a11, 404 III. App. 3d 1013, 1019, 936 N.E.2d 1198, 1205 (2010) (applying de nova review to an anti-SLAPP
motion to dismiss); Habib'" Winther, 146 Wash. App. 1025 (2008) ("The trial court's interpretation and application
of the anti-SLAPP statute is reviewed de 110vo.").
10
See City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008) (holding that "The existence of a special defect is a
question of law, which we review de novo"); Barber v. Colorado lndep. Sch. Dist., 901 S.W.2d 447, 450 (Tex.
1995) (holding that ''we are obliged to decide de nova the issues of law" despite a mixed finding of fact and Jaw).
17
California, whose law the Texas anti-SLAPP statute was patterned after, uses a similarly worded two-pronged
approach to an anti-SLAPP motion to dismiss, evaluating first whether the claim is based on the protected activity
and second whether the party that brought the claim has a probability of prevailing on the claims. With this test in
place, both federal and state courts in California consistently have applied de novo review to trial court anti-SLAPP
rulings. See 1\!lan11 v. Quality Old Time Serv .. J11c., 120 Cal. App. 4th 90, I 03, 15 Cal. Rptr. 3d 215, 221 (2004)
("We apply the de 1101•0 standard of review to both prongs of the anti-SLAPP statute."); see also, Roberts v. McAfee,
Inc., 660 F.3d 1156, 1163 (9th Cir. 2011) ("We review de novo a district court decision on a motion to strike under
4
based on, relates to, or is in response to the party's exercise of: (I) the right of free
speech; (2) the right to petition; or (3) the right of association." 18 Second, is whether "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." 19 The establishment of a prima
facie case is a question of law. 20 Although the Citizen's Participation Act (the Anti-
SLAPP statute) is relatively new, Texas courts are not new to reviewing prima .facie
showings. In other areas of Texas jurisprudence, whether or not a party has made a
pr; ma .facie showing is a question of law which is reviewed de novo. 21
Generally, appellate review of a trial court's findings of fact is deferential, but
appellate "review of the application of the law to the facts is de novo because the trial
court is in no better position to decide legal issues than the appellate court." 22 Further,
while an appellate court gives deference to trial court rulings on mixed questions of law
and fact when their resolution turns on credibility, if the mixed questions of law and fact
do not fall into that category, the appellate court should apply a de nova review. 23
California's anti-SLAPP statute. The anti-SLAPP statute requires a two-part analysis: ( 1) the defendant must make a
prima .facie showing that the suit arises "from an act in fotiherance of the defondant's rights of petition or free
speech"; and (2) once the defendant makes this showing, "the burden shifts to the plaintiff to demonstrate a
probability of prevailing on the challenged claims.").
18
Tex. Civ. Prac. & Rem. Code§ 27.005 (b).
19
Tex. Civ. Prac. & Rem. Code§ 27.005 (c).
20
See Berg v. AMF l11c., 29 S.W.3d 212, 219 (Tex. App. - Hou. [14th Dist.] 2000, no pet.) (holding that "Whether
this burden [of a prima.facie showing] has been met is a question of law for the court.").
21
See Jn re C.E., 01-12-00371-CV, 2012 WL 4 717882 (Tex. App Hou. [I st Dist.] Oct. 4, 2012, n.p.h.) (in a genetic
testing case, holding that "[b]ecause a determination of whether a patiy has presented prima .facie proof of a
meritorious claim is a question of law, we review the trial court's decision of this issue de noi·o."); Ramsey v. State,
249 S. W .3d 568, 574 (Tex. App. ···- Waco 2008, no pet.) ("the determination of whether a bill-of-review plaintiff has
made a prim a fl1cie showing of a meritorious claim or defense (or of a meritorious ground for appeal) is a question
of law."); Go11e v. Go11e, 993 S.W.2d 845, 848 (Tex. App. - Hou. [14th Dist.] 1999, pet. denied) (reviewing
determination of a prim a fl1cie case de nova).
n In re R.J.H., 79 S.W.3d 1, 6 (Tex. 2002).
23
See. e.g.. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
5
As was the case here, a court examines evidence consisting of "the pleadings and
supporting and opposing affidavits stating the facts on which the liability or defense is
based" 24 in making an Anti-SLAPP ruling, but does not determine facts that turns on
witness credibility. Accordingly, the application of the law to the facts in this case
should be reviewed de novo. Indeed, there is precedent in Texas for doing so. 25
Further, Robinson's reliance on typical summary judgment standards is misplaced.
An Anti-SLAPP ruling is not a summary judgment ruling in which evidence favorable to
a non-movant will be taken as true. According to Tex. Civ. Prac. & Rem. Code
§27 .005(b ), the Court shall dismiss the legal action if the moving party shows by a
preponderance of evidence that the action "is based on, relates to, or is in response to the
party's exercise of: (I) the right of free speech; (2) the right to petition; or (3) the right of
association." To avoid dismissal, the non-moving party must meet the very heavy burden
of establishing by the heightened standard of clear and specific evidence, 26 a prima .facie
case for each essential element of the claim in question. To meet this burden, the non-
moving party must provide clear and specific evidence that would be sufficient to
24
Tex. Civ. Prac. & Rem. Code Ann. §27.006(a). Subsection (b) of §27.006 allows for limited discovery, but there
was no discovery conducted in this case.
25
See. e.g., Surgitek. Bristol-Myers Corp. v. Abel. 997 S. W .2d 598, 603 (Tex. 1999) (holding that. in an appellate
review of a joinder determination based on prima facie evidence, "we conclude that a court of appeals should
conduct a de nova review of the entire record"); Furst v. Smith, 176 S.W.3d 864, 868 (Tex. App.···- Hou. [!st Dist.]
2005. no pet.) (reviewing the question of whether a court had jurisdiction de novo, based in part on supporting
affidavits); Ramos v. State, 31 S.W.3d 762, 764 (Tex. App.····· Hou. [!st Dist.] 2000, no pet.) (conducting a de nova
review of an affidavit in an appeal challenging probable cause for a search warrant because ''the facts of this case do
not involve an evaluation of credibility of any witness by the trial course and probable cause is a question of law").
But see, State '" Stone, 137 S.W.3d 167, 174 (Tex. App.-. Hou. [I st Dist.] 2004, pet. refd) (''Appellate review of an
affidavit in support of a search warrant, however, is not de novo; rather. great deference is given to the magistrate's
determination of probable cause." The reasoning behind this standard relates to public policy).
26
This is a heightened standard, greater than just the preponderance of evidence. See, e.g .. Channel Two Television
1'. Dickerson, 725 S.W.2d 470, 472 (Tex. App. ···Hou. [1st Dist.] 1987, no writ).
6
preclude the granting of summary judgment. 21 Under the standard of "clear and specific
evidence," the charges "may not be aided by presumptions or inferences, or
intendment." 28 Robinson cannot prevail here because she cannot demonstrate with clear
and specific evidence a prima facie case for each essential element of her claim. 29
III.
ROBINSON'S IMPROPER RECITATION OF "FACTS"
Appellee has violated Texas Rule of Appellate Procedure 38.1 (t) by including
argument and unverified facts in her Statement of Facts. Virtually half of her Brief is
devoted to argument disguised as "facts." 30 Appellee's unsupported and argumentative
facts contained in her Statement of Facts, as well as the litany of unsupported "facts"
found (without reference to the Record) in the Argument section of her Brief, should be
disregarded accordingly.
A. Robinson's Statement of Facts
Robinson's Statement of Facts is rife with alleged "facts" unsupported by record
references. Pursuant to Texas Rule of Appellate Procedure 38.1 (f), a party's statement of
facts must include parenthetical references to the record to indicate where the record
supports each statement. Robinson fails to provide any record cite for the facts contained
in the initial statement, the summary and many of the paragraphs contained in her
27
See. e.g.. In re Does, 242 S.W.3d 805 (Tex. App. -Texarkana 2007, no pet.). In the 111 re Does case, adopting this
standard, the court required a defamation plaintiff to establish a prima facie case for each essential element of his
claim before he could obtain the identity of an anonymous defendant. The court found it necessary for the plaintiff
first to support his defamation claim with facts sufficient to defeat a motion for summary judgment before the
identity of the potential defendant would be ordered disclosed. Id. at 821; see also, Doe '" Cahill, 884 A.2d 451,
460 (Del. 2005).
28
See, S. Cantu & Son v. Ramire::, IOI S.W.2d 820, 822 (Tex. Civ. App.··- San Antonio 1936, no writ) (court of
appeals reversed a jury verdict that had found fraud because evidence wasn't "clear and specific.'').
29
This means she must establish that the statements are defamatory per se, are not substantially true, are not
privileged, are of and concerning her, and that they were made with actual malice.
311
See. e.g.. Appellee's Briet: Statement of Facts ifif3, 5, 7, 13, 14, 21, 22, 23-26.
7
Statement of Facts. 31 They should be disregarded by this Court accordingly. 32 In
addition, there is no evidence for the bulk of her assertions. For example, in paragraph
25, Robinson attempts to introduce, for the first time on appeal, an argument that TEA
formally disbanded the interim board in the Spring of 2011 (well after the broadcasts at
issue) and turned over funds to Robinson and other Benji's board members. Not only are
these claims irrelevant, there is no evidence for them in the record and Robinson does not
purport to provide any. They are not to be considered by this Court.
Additionally, pursuant to Texas Rule of Appellate Procedure 38.1 (f), the
Statement of Facts should be presented without argument. With the exception of
paragraphs 26-34, Robinson's Statement of Facts does not comply with this rule. 33
Therefore, none of the arguments improperly contained in her Statement of Facts should
be considered by this Court.
B. Other Facts
Furthermore, Robinson also includes other unsupported "facts" and arguments in
pages 42 through 45 of her Brief. These include reference to a letter that is not part of the
record 34 and unsupported argument about Robinson's motivations for filing three different
31
More specifically, see Appellee's Brief. Statement of Facts ifif3, 5, 23-26 (including footnotes).
32
See. e.g., Fredonia State Bank v. General Am. Life Ins. Co .. 881 S.W.2d 279, 283-284 (Tex. 1994); Abdenour v.
Mid Nat 'l Holdings, Inc .. 190 S.W.3d 237, 241-42 (Tex. App.····· Hou. [I st Dist.] 2006, no pet.).
33
See Appellee's Brief, Statement of Facts, the first sentence of ill 3, the first two sentences and the second to last
sentence oqp4, i!23, if24, the last sentence and fn. 6 ofi!25, and if27 and its corresponding fn. 7.
34
See Appellee's Brief, Appendix A. A party may not attempt to supplement the record by including documents or
evidence in the Appendix that are not part of the appellate record. See In Re J.F.K., 345 S. W .3d 706, 710 (Tex.
App. ···- Dallas 2011, no pet.). Furthermore, even were the Court to consider Appendix A, it does not support the
proposition for which it is cited. KTRK admittedly submitted affidavits to this Court in the course of this appeal
(See Exhibits B and C to Appellant's Response to Appellee's Motion to Dismiss for Lack of Jurisdiction), but the
affidavits were not an attempt to supplement the trial court record or address the underlying issues, as Robinson
attempts to do, but rather to assist this Court in evaluating its own jurisdiction.
8
lawsuits arising out of the same broadcasts against K TRK and distantly related entities. 35
KTRK objects to each of these improper facts and arguments, and they should not be
considered by this Court. 36
C. KTRK's Undisputed Facts
Notably, Robinson does not contest KTRK 's Statement of Facts. Therefore, all of
KTRK 's Facts contained in its Appellant's Brief must be accepted as true by this Court. ·11
In particular, Robinson does not dispute that TEA had been dissatisfied with Benji's lack
of accountability for many years, that TEA attempted to oversee and improve Benji's (to
no avail and in the face of Robinson's attempts to thwart such efforts), or that TEA had
grave concerns over the school's poor accounting, poor financial management,
unsatisfactory audits, and failure to maintain State accountability standards in the area of
finance, governance, and educational achievement. 38
IV.
THE TRIAL COURT IMPROPERLY FOUND THAT A LEGAL ACTION
OVER PRIOR BROADCASTS COULD NOT HAVE BEEN BROUGHT TO
DETER FREE SPEECH.
In its Findings and Conclusions 39 , the trial court incorrectly found that a lawsuit
brought over a prior broadcast could not have been brought to inhibit free speech - an
improper conclusion contrary to established law. To determine whether a legal action
35
In fact, at the bottom of page 43, Robinson demonstrates KTRK's point about Robinson's repeated and ill-
founded attempts to sue KTRK. For instance, she attempted to sue KTRK's ultimate parent company, Disney, for a
civil rights claim under 42 U.S.C. §1983. It is undisputed that Disney is not and never has been a government actor
so that it could be liable for such a claim. Tims, what Robinson's argument reveals is that she has tried repeatedly to
find a \Vay to blame and punish KTRK (and its ultimate parent company) for the school's closure.
36
See Texas Rule of Appellate Procedure 3 8.1 (i ).
37
See TRAP 38.l(g); see also. Western Steel Co. \'. Altenberg, 206 S.W.3d 121, 124 (Tex. 2006); Fredonia State
Bank 1·. General A 111. L(fe Ins. Co., 881 S. W .2d 279, 283 (Tex. 1994 ).
38
See Appellants' Brief, Statement of Facts, I A-C.
39
CR 4:999-100 I.
9
was brought to deter or prevent a party from exercising its constitutional rights, the Court
must consider the impact on future speech, such as a reporter's continued coverage of an
issue of public interest. As the Texas Supreme Court has long held, "[ e]very defamation
action that the Jaw permits necessarily inhibits free speech. " 40 Thus, courts throughout
Texas have consistently applied the new Anti-SLAPP statute to lawsuits filed over
broadcasts (as well as other past speech) that have already aired. 41 To conclude otherwise
would eviscerate the statute and make it impossible to dismiss any case arising out of past
speech. The Legislature intended for the Anti-SLAPP statute to apply to all citizens -
including the media - who have reported on significant matters of public concern in
their community and been retaliated against for doing so. To interpret the law otherwise
would render it meaningless.
v.
ROBINSON DID NOT ESTABLISH EACH ELEMENT OF HER CLAIM OF
DEFAMATION PER SE BY CLEAR AND SPECIFIC EVIDENCE
Because Robinson did not meet her burden on at least one element of her claim for
defamation per se, the Anti-SLAPP statute required dismissal of her claims. As
40
Diamond Shamrock Refining and Marketing Co. v. 1He11de::, 844 S. W .2d 198 (Tex. 1992), citing Nell' York Times
r. S11lliva11, 376 U.S. 254, 272, 84 S. Ct. 710, 721 (1964) ("whatever is added to the field of libel is taken from the
field of free debate.").
41
For example, Judge Kerrigan, in the 190th District Court of Harris County, granted the media defendants' Anti-
SLAPP Motion arising out of a prior broadcast mistakenly identifying the plaintiffs as wanted by law enforcement.
Viera 1•. Hearst Newspapers, LLC d!bla The Houston Chronicle, KHOU-TV, Inc. and Post-Newsweek Stations
Houston, Inc. d!bla KP RC-TV, Cause No. 2011-42884 (l 90th Dist. Ct., Harris County, Tex. Sept. I 1, 2011)
included in the Record at CR 2:448. Similarly, two Bexar County courts have granted media defendants' Anti-
SLAPP Motions arising out of prior broadcasts. See Salvaggio v. High Plains Broadcasting. Inc., Cause No. 201 l-
CI-10127 (!31st Dist. Ct., Bexar County, Tex., Feb. 27, 2012) (Judge Cathy Stryker) (granting the media
defendants' Anti-SLAPP Motion arising out of a series of television reports on allegations that a Police Lieutenant
had cheated on his promotional exam) and Simpton v. High Plains Broadcasting. Inc., Cause No. 201 l-CI-13290
(285th Dist. Ct., Bexar County, Tex., March 23, 2012) (Judge David Berchelmann) (granting the media defendants'
Anti-SLAPP Motion arising out of an investigative series conducted over a six month period reporting on
allegations that a local dental chain was providing unnecessary and improper dental work and was under
investigation for Medicaid fraud by the Texas Attorney General's Office).
10
discussed more fully in KTRK 's opening Brief, Robinson failed to establish a prima facie
case for any element of her claim - including that the statements KTRK published were
defamatory per se, that they were materially false, that they were not privileged, that they
\Vere "of and concerning" Robinson, and that they were made with actual malice. 42
Additionally, Robinson does not argue in her Response that she is not a public figure and
43
does not address any of the litany of cases establishing she would qualify as such.
Thus, Appellee appears to concede the actual malice standard applies.
A. Robinson did not establish that the statements were defamatory per se
Robinson brought a claim for defamation per se. 44 She claims the Complained of
Statements are so obviously hurtful they require no proof of injury, such as a statement
that "unambiguously charge[s] a crime, dishonesty fraud, rascality, or general
depravity[.]" 45 But, Robinson's argument that the statements were defamatory per se is
based on her own highly charged interpretation of them - not on the words that KTRK
actually said and the context in which KTRK said them. This is not a permissible
42
Appellee's Brief cites to two cases in discussing what constitutes prima facie evidence, Hi11ojosa v. Columbia/St.
David's Healthcare System, LP., 106 S.W.3d 380, 386 (Tex. App. - Austin 2003, no pet.) and Duncan v. Betterowe,
Inc. 474 S. W .2d 619, 621 (Tex. Civ, App ...... Hou. [ 1410 Dist.) 1971, n.w.h.). In Hinojosa. the court found that prima
facie evidence sufficient to raise a fact issue (of live birth) had been established because plaintiff submitted a
properly filed death certificate indicating the baby survived birth and died 20 minutes after birth. Similarly, in
Duncan v. Betterowe, while the opinion does not specity what evidence was found insufficient to establish a prima
jacie case, the court again explains that it requires evidence at least sufficient to raise a fact issue. Thus, Appellee
appears to agree with Appellant that she must at a minimum present evidence sufficient to raise a fact issue on each
required element of her claim for defamation per seas a requirement of presenting a prima.facie evidence.
43
Appellee does make the nonsensical assertion that Appellant did not provide affidavit evidence demonstrating she
is a public figure; however, affidavits are not necessary on this point of law.
44
Appellee has only brought a claim for defamation per se and not for defamation per quad, which requires proof of
injury and damages. Main v. Royall, 348 S.W.3d 381, 390 (Tex. App. - Dallas 2011, no pet.).
45
lvlai11 v. Royall, 348 S.W.3d 381, 390 (Tex. App ..... Dallas 2011, no pet.) (emphasis added).
11
application of the law in defamation cases. 41' "The parties' opinion of the statement[], or
the defendant's intent in making the statement[] have no bearing on whether [it is]
defamatory. 'Common sense requires courts to understand the statement as ordinary men
and women would. "' 47 Robinson misstates and twists the broadcasts' language to claim
KTRK alleged that not one cent of State money was spent on Benji's or that Robinson
was charged with criminal conduct. Robinson's argument that KTRK said or insinuated
that the entire $3 million was "embezzled" is simply without merit. KTRK never
claimed that none of the budgeted money was spent on the school or that Robinson
misappropriated the money, but simply explained that it had been mismanaged and not
properly accounted for by Benji's. KTRK also never accused Robinson of embezzling
funds or other criminal behavior or said that TEA or others were investigating criminal
conduct by Robinson. 48 None of the broadcasts ever mention the words "embezzlement"
or "misappropriation" (or assert that such has happened), or any allegations of possible
criminal behavior. 49 Nowhere in the Complained of Statements, or in the broadcasts as a
whole, does KTRK "unambiguously charge" Robinson with a crime, dishonesty, fraud,
rascality, or general depravity as required in a per se libel case. 50
46
See Green v. CBS, Inc., 286 F.3d 281, 285 (5th Cir. 2002); Turner 1>. KTRK Television, Inc., 38 S.W.3d 103, 114
(Tex. 2000); Columbia Valley Regional Medical Center v. Bannert, 112 S.W.3d 193, 198 (Tex. App. ··-Corpus
Christi 2003, no pet.).
47
Hancock v. Variyam, 345 S. W .3d 157, 164 (Tex. App. -- Amarillo 2011, pet. granted) (citations, parentheticals
and quotations omitted).
4
R CR 1:26-27, 29-30, 63, 72-73. 77-78, 82-83. In fact, as discussed elsewhere, KTRK did not make ill1Y. statements
about Robinson except to include a quote from a former student praising her and to briefly discuss a lease issue over
which Robinson has not brought any claim. Furthermore, in arguing that no criminal threat had been made against
her - a charge that only Robinson herself (and not KTRK) has suggested. Robinson makes a nonsensical assertion
that a KTRK reporter once charged her with criminal prosecution, despite the fact that a private citizen does not
have the power to prosecute. See Appellee's Brief, fn. 3 I.
49
CR l :26-27. 29-30, 63, 72-73, 77-78, 82-83.
50 Id.
12
The broadcasts clearly state that the TEA was concerned with the "lack of
financial record" (or "lack of sufficient financial records") and "money mismanagement"
and that it had not been provided with "proper financial records." 51 The truth of these
statements is unequivocally set forth in the Record. 52 TEA, as the steward of public
funds, had every right to be concerned that it had not been provided with sufficient or
proper financial records to account for the use of public money that was entrusted to a
charter school. TEA also had every right to demand a proper accounting, according to
their public requirements and standards 53 , and to be concerned when such was not done.
Further, when such public funds were not properly accounted for, KTRK had a right and
responsibility to report on this matter of public concern. But, reporting that TEA wanted
answers or a proper accounting of how all (not just part) of the funds were spent does not
mean that either TEA or KTRK accused Benji's or Robinson of engaging in criminal
behavior. There is a vast difference between stating that a governmental body,
understandably concerned with a failure to properly account for public money, is trying
to figure out how taxpayer dollars are being spent by a charter school and stating that its
founder has committed a crime or misappropriated the funds.
The problem being investigated (and what KTRK reported) was Benji's
accounting for the use of the funds, because all of the $3 million given to the school was
not accounted for in a proper manner. 54 This is a true statement supported by
51
CR I :26-27, 30, 63, 78.
52
CR 2:266-267, 271-272, 312, 328, 332, 335-336, 357-358, 361, 455, 463; 4:901-904.
53
CR 2:265-274, 283-284, 311-313, 330-334, 360-361.
54
In her Brief, Appellee conveniently ignores years of findings by TEA of financial instability and mismanagement.
Compare Appellee 's Brief, th. I to Appellant's Brief, pp. 3-6. She also ignores the impropriety of the lease
13
considerable undisputed evidence in the Record 55 and does not unambiguously charge
Robinson with a "crime, dishonesty fraud, rascality, or general depravity[.]" It is a long-
standing principle in libel law that if the court must resort to innuendo or extrinsic
evidence to determine that the statement was defamatory, then it is libel per quad and
requires proof of injury and damages. Main v. Royall, 348 S.W.3d 381, 390 (Tex. App. -
Dallas 2011, no pet.). Robinson did not plead (and could not demonstrate) defamation
per quad, and because of her reliance on innuendo, Robinson has failed to establish that
the statements are defamatory per se.
B. Robinson did not establish that the statements were materially false
Robinson argues that the broadcasts are false because Benji's closure was due to
reasons other than the poor accounting for State money. Robinson's semantics fail.
Indeed, the TEA declared a state of "financial exigency" prior to the school shutting
down. 56 Contrary to Robinson's repeated claim TEA had access to all of Benji's financial
information since 2008 57 , the TEA records clearly discuss Robinson's refusal to cooperate
with Robert Seale, the individual hired by TEA to provide Benji's and Robinson with
"financial management leadership." 58 According to TEA, Robinson mounted an ongoing
effort to block Seale's access to the school's financial data, even forbidding the school's
chief bookkeeper from speaking to Mr. Seale. 59 At the same time, Benji's and Robinson,
in particular, had repeatedly failed to provide acceptable accounting and financial records
arrangement she entered where she leased out City property for a profit of $8,999.00 a year. Compare Appellee's
Brief, Statement of Facts 23, if 11 to CR 2 :232-254. These facts are undisputed.
55
See. e.g.. CR 2:304-367.
56
CR2:316,361.
57
See, e.g., Appellee's Brief, pp. 18, 24.
58
CR 2:331-332.
59 Id.
14
to TEA. Thus, despite the State's attempts to assist the school, Robinson sought to thwart
any intervention by the State, only compounding the problems at hand. 60 It was not until
Rick Schneider took over as superintendent on September 7, 2010 that, within a few
days, he discovered the school's bank account held less than $100. 61 Schneider reported
to TEA that the school was in urgent financial condition, and on September 13, 2010, the
board of managers accepted Schneider's recommendation to "declare a financial
exigency" and voted to close the school."2 Given the foregoing, none of which is
contested by Appellee, it is apparent the statements are substantially true, and Appellee
has failed to meet her burden of establishing material falsity.<»
To be clear, Robinson does not deny that TEA had been overseeing Benji's for a
number of years, that Benji's had significant financial problems and was in debt, or that it
was closed due to financial exigency. Robinson further admits that she is not arguing the
gist of the Complained of Statements is false. 64 Instead, Robinson objects to KTRK's
characterization of the State's concerns. Under long-standing Texas law, Robinson, and
the Court are not permitted to act as an after-the-fact editor of substantially true accounts
about matters of public concern. 65
6
°CR 2:266-267, 271-272, 328, 332, 455, 463; 4:901-904.
61
CR 2:334; see also, CR 2:361, 400, 425, 477.
62
CR 2:316, 334.
63
See Mcilvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990) (to recover for defamation against a media defendant, plaintiff
must show material falsity).
64
See Appellee's Brief, page 25.
65
Dolcejino v. Tumer, 987 S.W.2d 100, 121 (Tex. App. 1998) ( "the exercise of editorial judgment to omit
information favorable to the plaintiff is no evidence of actual malice.") a.fl'd sub nom. Turner v. KTRK Television,
Inc., 38 S.W.3d 103 (Tex. 2000). See also, lvfiami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258. 94 S. Ct. 2831.
2840, 41 L. Ed. 2d 730 (1974) ("The choice of material to go into a newspaper, and the decisions made as to
limitations on the size and content of the paper, and treatment of public issues and public officials - whether fair or
unfair - constitute the exercise of editorial control and judgment."); Huckabee v. Time Warner E11t111 1t Co. L.P., 19
S. W .3d 413, 426 (Tex. 2000) ("the First Amendment protects the organization's choice of which material to include
15
In addition, to the extent Appellee is quibbling over details, Texas courts do not
recognize minor errors as establishing material falsity. 06 The question of whether a
statement is substantially true is a question of law for the court to decide. 67 Tn light of the
overwhelming evidence that Benji's and Robinson had habitually failed to provide
adequate financial records and properly account for the considerable State funds
advanced to them over the course of several years; in light of the fact that the financial
accounting problems and financial exigency caused the closure of the school, and in light
of Robinson's admission that she was not contesting the gist of the statements, Robinson
failed to establish that the Complained of Statements were materially false.
C. Robinson did not establish that the statements were made with actual malice
The actual malice standard applies here because Appellee is a public figure and
because the Complained of Statements are privileged as a matter of law. As discussed
more fully in Appellant's Brief, Appellee, as the Superintendent of a school that received
in its broadcast"); HBO. A Div. of Time Warner Entm't Co .. L.P. v. Huckabee, 995 S.W.2d 152, 161 (Tex. App.··
Hou. [14th Dist.] 1998} qfj'd sub 110111. Huckabee v. Time IVarner Entm't Co. L.P., 19 S.W.3d 413 (Tex. '.2000)
("[T]he editorial choice to exclude certain information ... is not specific, anirmative proof that shows appellant
knew the publication was false or entertained serious doubts about its truthfulness. Appellant's decision to exclude
certain information from the documentary is a protected exercise of editorial control and judgment, not evidence of
actual malice."); Abdel-Hafi:: v. ABC, Inc., 240 S.W.3d 492, 520 (Tex. App. - Fort Worth 2007, pet. denied).
6
~ See, e.g.. Rogers v. Dallas Morning News. Inc., 889 S. W .2d 467 (Tex. App. - Dallas 1994, writ denied) (finding
newspaper's inaccurate statement that a charity only spent I 0% of its donations on actual services, when, in fact, the
charity spent 43% of its donations on services, was a minor error and did not affect the "gist" of the story, which
was accurate}; Downer v. Amalgamated Meatcutters and Butcher Workmen of N. Am., 550 S.W.2d 744, 747 (Tex.
Civ. App. - Dallas 1977, writ ref'd n.r.e.) (Affirming summary judgment where defendant published statement that
said plaintiff embezzled $2,187.77 instead of$840.73); Fort Worth Press Co. v. Davis, 96 S.W.2d 416, 419 (Tex.
Civ. App. - Fort Worth 1936, writ denied) (reversing trial court judgment and finding for media defendant where
defendant incorrectly stated plaintiff wasted $80,000 in taxpayer funds rather than $17,575.00).
17
' Herald-Post Publishing Co. v. Hill, 891 S. W .2d 638 (Tex. 1994) (Newspaper reported that witness at trial accused
an attorney and his investigator of threatening her when in fact only the investigator made the threat. The court
dismissed, as a matter of law, on substantial truth grounds); lvlcllvain v. Jacobs, 794 S.W.2d 14. 16 (Tex. 1990}
(Despite the presence of several minor mischaracterizations, the court held as a matter of law the report was
substantially true and affirmed summary judgment).
16
considerable state and federal funding, is a public figure. 68 Further, by speaking out
concerning the school and its closing, Appellee "thrust herself to the forefront of [the]
particular public controversy to influence the resolution of the issues involved in it," and,
thus, became a limited purpose public figure." 9 But, even if she were not, Appellee would
still be required to prove actual malice because the statements involve matters of public
concern - specifically, the use of public funds and the education of the State's school
children - and, as such, are privileged. 70 All of the Complained of Statements are
protected by constitutional, statutory and common law privileges, including the fair
report and fair comment privileges. To overcome these privileges and defeat Appellant's
Anti-SLAPP motion, Appellee had the burden of establishing actual malice.
Not only did Robinson fail to present any evidence of actual malice, KTRK
actually disproved actual malice through its employees' affidavits establishing their belief
in the truth of the statements at issue and the steps they took to formulate such a belief. 71
Texas courts have repeatedly permitted affidavits to establish a lack of actual malice in
defamation cases. And the Texas Supreme Court ruled that "it would be a mistake" to
refuse to rely on uncontroverted affidavits of reporters testifying to their own lack of
actual malice. 72
KTRK repmier Cisneros stated in her affidavit that she conducted an investigation
into Benji's financial troubles, including speaking with TEA representatives, who
r.s See, e.g., Rosenblatt v. Baer, 383 U.S. 75, 85-86, 86 S. Ct. 669, 676 (1966).
9
<> See Gert='" Robert Welch, Inc., 418 U.S. 323, 351-2, 94 S. Ct. 2997, 3013, 41 L. Ed. 789 ( 1974).
70
See Id.; see also, Huckabee v. Time Warner £111111 't Co., 19 S. W .3d 413 (Tex. 2000).
71
CR 2:217-219, 371-373, 433-435. See Harte-Hanks Co1111111111ications, Inc. v. Connaughton, 491 U.S. 657, 688,
l 09 S. Ct. 2678, l 05 L. Ed. 2d 562 (1989).
72
See Casso v. Bm11d, 776 S.W.2d 551, 558 (Tex. 1989).
17
informed her about the financial insolvency and mismanagement at Benji's, the numerous
debts owed by Benji's, and Benji's failure to properly account for monies provided to it. 73
Cisneros' affidavit reflects that the rep01i was based on her research into Benji's and her
conversations with TEA officials who told her about their mounting concerns over
Benji's. Even if Cisneros could have chosen more precise words in explaining TEA's
concerns, which is essentially what Robinson claims, poor word choice 74 or an error in
judgment cannot demonstrate actual malice. 75
Nevertheless, Robinson, ignoring what KTRK actually stated, argues that she has
demonstrated actual malice because "any reasonable person would entertain doubt that a
public school could operate for an entire year and yet the entire annual funding for the
school for that year, over $3 million, would be completely 'unaccounted for"' 76 and
'[t]here is simply no way that anyone could conclude that a school had operated for a
year without paying payroll or utilities or food services workers or the like." 77 KTRK
never stated that the school was, or could have been, operating for entire year without
paying for any services or that the State money was not used for the school. KTRK also
never stated the entirety of the 2010 funding was unaccounted for, but rather Benji's was
not able to properly account for all the money. Robinson simply relies on her own
73
CR 2:372.
74
Abdel-Ha.fl= v. ABC. Inc., 240 S.W.3d 492, 520 (Tex. App.-Fort Worth 2007, pet. denied).
75
Id. at 519.
7
b Robinson's Brief, page 34.
77
· Id. at 35.
18
interpretation of the statements in asse1ting her claim - which is not evidence of the
elements of her claim. 78
To prove actual malice, Robinson must demonstrate that KTRK knew that its
choice of words could create a false impression 79 or that KTRK "purposefully published
mistaken facts or that the circumstances were 'so improbable that only a reckless
publisher would have made the mistake. "' 80 There is no such evidence in the Record.
Appellee tries to assert recklessness by comparing KTRK 's broadcasts to other
reports in the Houston area about Benji's closure. 8 ' But the other reports demonstrate that
this was a matter of significant public concern in Houston and that KTRK did not
"ma[k]e this up." 82 Appellee relies on Bentley v. Bunton, 83 but does not articulate how it
supports her case. In Bentley, the defendant, a talk show host, repeatedly accused the
plaintiff, a local judge, of being corrupt - actually using the word "corrupt" on many
occasions - and did so despite expressing his own doubt to a friend and being told by
others that they did not believe the accusation to be true. Due to the nature of the accused
n See Brownlee v. Brow11lee, 665 S.W.2d 111 (Tex. 1984); Mcl11~vre i·. Ramire=, 109 S.W.3d 741 (Tex. 2003); see
also, ABC. Inc. v. Shanks, I S.W.3d 230, 237 (Tex. App. - Corpus Christi 1999, pet. denied) (finding import of
statements to be clear and unambiguous as to meaning under standard of how average person would read statements
and rejecting Plaintiff's argument of innuendo); Simmons v. Ware, 920 S.W.2d 438, 451, (Tex. App. ····· Amarillo
1996, no writ) ("The test for actionable "innuendo" is not what construction a plaintiff might place upon the
statements, but rather, how the statement would be construed by the average reasonable person or the general
public"); Schauer v. Memorial Care ,~vstems, 856 S.W.2d 437, 448 (Tex. App. - Hou. [I Dist.] 1993, no writ)
(rejecting plaintiff's argument that the statements - that the Plaintiff ;'was not enforcing the documentations of
narcotics wastage" - were defamatory and finding that no reasonable person would find the Complained of
Statements accused plaintiff of a crime).
79
Id. at 522; see also, Huckabee v. Time Warner Entm 't Co., 19 S.W.3d 413, 426 (Tex. 2000) (libel plaintiff nrnst
show that publisher selected the material "'with the awareness that the omission could create a substantially false
impression."'); New Times, Inc. v. Isaacks, 146 S.W.3d 144, 162 (Tex. 2004) (''When the words lend themselves to
more than one interpretation, the plaintiff must establish either the defendant knew that the words would convey a
defamatory message, or had reckless disregard for their effoct.").
80
Jd. (quoting Freedom Nell'spapers of Tex. v. Cantu, 168 S.W.3d 847, 855 (Tex. 2005)).
81
See Appellee's Brief: page 6, 7.
82
Id .. page 18. (The reports also support the proposition that Appellee is a public figure.)
83
94 S.W.3d 561 (Tex. 2002).
19
statements and the evidence that defendant lacked a good faith belief in the truth of the
statements or, at least, had good reason to question them, the Bentley court found the
plaintiff had established actual malice. 84 In contrast, KTRK never accused Robinson of
being "corrupt" or of any other crime and KTRK has provided considerable evidence that
its reporters had a good faith belief in the truth of the statements.
D. Robinson did not establish the statements were of and concerning her
"There must be evidence showing that the attack was read as specifically directed
at the plaintiff." 85 However, Robinson did not and cannot establish that the statements
were "of and concerning" her. 86 Citing to Rosenblatt and to Poe v. San Antonio Exp.
News Corp./' and various website posts (only some of which actually mention
Robinson), Robinson claims the "United States Supreme Court has already ruled the
Complained of Statements in this action are capable of being libelous per se as to
Robinson." 88 Robinson mischaracterizes both Rosenblatt and Poe in making such claims.
In Rosenblatt, the Supreme Court found error in the trial judge's instruction to the
jury that "an imputation of impropriety or a crime to one or some of a small group that
cast suspicion upon all is actionable." The court also held that it was error for the trial
judge to authorize the jury to award the plaintiff 9 a recovery without regard to evidence
that the asserted implication of the column was made specifically of and concerning him,
84
Id. at 602.
85
Rosenblatt v. Baer, 383 U.S. 75. 81, 86 S. Ct. 669 ( 1966).
86
See Huckabee v. Time Wamer £111111 '1 Co., 19 S.W.3d 413, 429 (Tex. 2000); Newspapers. Inc. '" Matthews, 339
S. W .2d 890, 893 (Tex. 1960).
87
590 S.W.2d 537 (Tex. Civ. App. - San Antonio 1979, writ rerd n.r.e.).
88
See Appellee's Brief, page 29. Because Poe is a Texas case. Robinson presumably refers to Rosenblatt in making
this assertion.
89
Plaintiff was a supervisor of a County Recreation Area and was considered a public figure.
20
the instruction was erroneous. 90 As in this case, there had been no explicit charge of
embezzlement, and the Rosenblatt court found that without a finding of actual malice
there could be no liability. 91
Poe is also distinguishable. In Poe, while the publication did not specifically refer
to the plaintiff by name, it did provide significant description referring to "a middle aged
male teacher" and a "mid-fortyish teacher" in discussing allegations of sexual
impropriety made against him. 92 Here, the broadcasts refer to the academy or to Benji's
in discussing the Complained of Statements; they never refer to any individual person -
even by reference, description, or title - and only refer to the institution. 93
Additionally, although Plaintiff points to comments left on KTRK 's website in
response to its stories as "proof' that the stories were "of and concerning" her, all of the
comments she cites to were posted after KTRK's broadcast of September 25, 2010, in
which Robinson's name was mentioned only in connection with the lease issue - a
contention she does not (and cannot) dispute - and not in connection with the
Complained of Statements. 94
90
Additionally, although Robinson states she is citing to Judge Harlan's concurrence in Rosenblatt, the portion
referenced is actually the dissent.
91
Rosenblatt v. Baer, 383 U.S. at 88.
91
Poe, 590 S.W.2d 538.
93
Like Poe, the Complained of Statements in the other case cited to by Plaintiff, Cullum v. White, No. 2011 WL
6202800 (Tex. App. - San Antonio 20 IL n.w.h.), also more explicitly referred to the plaintiff and is distinguishable.
In Cullum, while the Complained of Statements contained in emails did not specifically mention plaintiff by name,
they referred to "Damon's mother" (where Damon was her son) and the Ranch owner and operator (which she was).
In addition, a website that contained allegedly defamatory comments referred to a cosmetic connection and plaintiff
was well known as a long time Mary Kay representative. Tlrns, in both instances, the statements referred to plaintiff
by using her well known characteristics. In contrast, the Complained of Statements in question in this case never
referred to Plaintiff by title, characteristic, or affiliation - instead simply referring to the school or Benji's (and not
any identifiable individual such as the school's superintendent, founder, or leader).
94
Furthermore, while neither KTRK's September 15, 2010 broadcast, nor the comments posted in response thereto
mention Robinson, the two other broadcasts/stories of that same day that she attached to her Petition (from the
Houston Chronicle and My Fox Houston) do mention Robinson by name - as do the comments in response. ln
21
VI.
THE ANTl-SLAPP STATUTE IS CONSTITUTIONAL
On appeal, Robinson argues for the first time that the Texas Anti-SLAPP statute is
unconstitutional. 95 However, it is a prerequisite to presenting a complaint on appeal that
the complaint was made to the trial court in a timely manner, and that the trial court ruled
on the request, or refused to do so. '!6 This is true even when the issue is a constitutional
question. 97 Thus, because Robinson did not make this argument at the trial court level,
she has waived it, and it cannot be considered now.
Even if this Court were to find the constitutional issue has not been waived and
reaches the merits of the question, a statute enacted by the Legislature is presumed to be
constitutional and valid. 98 "[A] mere difference of opinion, where reasonable minds
could differ, 1s not a sufficient basis for striking down legislation as arbitrary or
unreasonable." 99 Robinson urges an open courts violation and cites Owens Corning v.
Carter for the rule that "to establish an open courts violation in this context, plaintiffs
must show that: (I) they have a well-recognized common-law cause of action that is
being restricted; and (2) the restriction is unreasonable or arbitrary when balanced against
the purpose and basis of the statute."'°0 Robinson's constitutional challenge fails on both
fact, the Chronicle stated in its article that Robinson was paid $120,000 salary in 2009, refused to comment for the
story, and kicked a reporter off campus stating "if you want to talk to my parents you have to talk to me first." This
story receive the most comments - both in terms of numbers and vitriol. The Chronicle has not been sued by
Robinson.
95
See. generally, Robinsons Response to Motion to Dismiss (absent any discussion of constitutionality).
96
See Texas Rule of Appellate Procedure 33.l.
97
See Brewer v. Simental, 268 S.W.3d 763, 767 (Tex. App.-·- Waco 2008) ("Constitutional violations must be raised
in the trial court to be preserved for appellate review.").
?K See Texas Pub. Bldg. Auth. v. Mattox. 686 S.W.2d 924, 927 (Tex. 1985) ("We begin our analysis of the issues
presented in this case by presuming, as we must, the constitutionality of an act of the Legislature").
99
Sax'" Votte/er, 648 S.W.2d 661, 664 (Tex. 1983).
1110
Owens Coming r. Carter, 997 S. W .2d 560, 573 (Tex. 1999).
22
prongs.
First, there is no restriction on the cause of action of defamation under the Anti-
SLAPP statute; there is only a restriction on groundless claims. If a plaintiff can establish
prima facie evidence of each element of the claim, the case will not be dismissed. Courts
throughout the state have interpreted the statute and have found a prima facie case was
established in other cases, thus denying the relevant motions to dismiss. 101 Thus, the
standard adopted by the Legislature is working.
Second, every other state considering the constitutionality of similar Anti-SLAPP
statutes has upheld their constitutionality. 102 California, the state upon which Texas'
statute was patterned and a state that has had the benefit of 20 years of jurisprudence in
this area, has repeatedly upheld the constitutionality of the law. 103 The Supreme Court of
California, addressing this very concern, held that the Anti-SLAPP statute of that state
"does not bar a plaintiff from litigating an action that arises out of the defendant's free
speech or petitioning. It subjects to potential dismissal only those causes of action as to
101
See, e.g., Senator Jeff Wentworth v Elizabeth Ames Jones, Cause No. 20l2-Cl-08201 (73rd Dist. Ct., Bexar Co.,
Tex. filed May 17, 2012) (motion to dismiss denied); Wal/builder Presentations, Inc., et al. v. W.S. Smith, et af..
Cause No. CV-11-1349 (415th Dist. Ct., Parker Co., Tex., 2011, pet. filed) (motion to dismiss denied).
102
See, e.g., Equilon Enterprises v. Consumer Cause, Inc., 29 Cat. 4th 53, 63, 52 P.3d 685 (2002). See also, Guam
Greyhound v. Brizill, No. CV A07-021, 2008 WL 4206682, (Guam Sept. 11, 2008) (rejecting argument that statute
limited a right to bring a defamation claim); A11derso11 Dev 't Co. v. Tobias, 116 P.3d 323, 338 (Utah 2005) (bill of
attainder); Sandholm v. Kuecker, 405 lll. App. 3d 835, 855, 942 N.E.2d 544 (2010) (finding that statute did not
violate state constitution's guarantee to a remedy); Nexus v. Swift, 785 N.W.2d 771 (Minn. App. 2010) (addressing
due process and right to jury trial): Reid v. Dalton, 100 P.3d 349, 356 (Wash. Ct. App. 2004) (rejecting argument
that there is a constitutional right to file litigation that does not involve a bona fide grievance): Lee v. Penni11gton,
830 So. 2d 1037 (La. App. 2002) (rejecting arguments that anti-SLAPP statute violated open access to courts, jury
trial and due process); Day v. Farrefl, No. 97-2722, 2000 WL 33159180 (R.I. Sup. Ct. May 15, 2000) (rejecting
constitutional challenge to anti-SLAPP law based on access and due process); Hometown Props.. Inc. v. Fleming,
680 A.2d 56 (R.l. 1996) (addressing numerous challenges, including separation of powers and right of access);
Lafayette Morehouse. Inc. '" Chronicfe Pub/ 'g Co., 37 Cal. App. 4th 855 (Cal. App. 1995) (right of access).
iu.i See. e.g., Equilo11 Ente1prises v. Consumer Cause. inc., 29 Cal. 4th 53, 63, 52 P.3d 685 (2002); La/aye/le
Morehouse, Inc. v. Chronicle Pu bf 'g Co., 37 Cal. App. 4th 855 (Cal. App. 1995) (right of access).
23
merits." ~
10
which the plaintiff is unable to show a probability of prevailing on the
As for Robinson's proposal that the Legislature should have imposed a mens rea
requirement on Anti-SLAPP movants, "[a] requirement that courts confronted with Anti-
SLAPP motions inquire into the plaintiff's subjective intent would commit scarce judicial
resources to an inquiry inimical to the legislative purpose that unjustified SLAPP's be
terminated at an early stage. Imposing a requirement of establishing bad faith or ulterior
motive adds a needless burden to SLAPP targets seeking relief."!05
In addition, Robinson's argument about the standard of proof required in an Anti-
SLAPP motion, ignores that Texas already applies a higher standard of proof in
defamation cases. At trial, Robinson would be required to prove by "clear and
convincing evidence" that KTRK made "false and defamatory statements about [her]
with actual malice."wr. Since the Anti-SLAPP statute's "clear and specific" evidentiary
burden is lighter than defamation's "clear and convincing" standard, Robinson's fear of
losing her defamation case at the Anti-SLAPP stage, when it is winnable at the trial stage,
is unfounded. Thus, Appellee's last minute challenge to the constitutionality of the Texas
Anti-SLAPP statute should be denied.
vn.
PRAYER
Because Robinson failed to meet her burden of establishing by clear and specific
evidence a prima facie case for each essential element of every one of her claims, this
in~ Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53. 63, 52 P.3d 685 (2002).
10s Id.
106
Casso '" Brand, 776 S.W.2d 551, 554 (Tex. 1989) (holding that the clear and convincing standard applies when a
public figure sues for defamation, whether the defendant is a media defendant or not).
24
Court should reverse the trial court's order denying KTRK 's Motion to Dismiss and
render judgment that the case be dismissed.
Respectfully submitted,
HA YNES AND BOONE, LLP
By: Isl Laura Lee Prather
Laura Lee Prather
State Bar No. 16234200
Catherine Lewis Robb
State Bar No. 24007924
Laura.prather@haynesboone.com
Catherine.robb@haynesboone.com
600 Congress A venue, Suite 1300
Austin, TX 7870 I
Telephone: (512) 867-8400
Telecopier: (512) 867-84 70
ATTORNEYS FOR APPELLANT
KTRK TELEVISION, INC.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been
sent, as indicated below, on this 29th day of October, 2012, to the following counsel of
record:
Via Certified Mail, Return Receipt Requested
Berry Dunbar Bowen
3014 Brazos Street
Houston, TX 77006
Counsel for Appellee
Isl Laura Lee Prather
A-269881 5
25
APPENDIX TAB V:
Appellant's Response to
Appellee 's Motion to Dismiss
for Lack of Jurisdiction in No.
01-12-003 72-CV
(WITHOUT EXHIBITS)
CAUSE NO. 01-12-00372-CV
IN THE FIRST COURT OF APPEALS
HOUSTON, TEXAS
KTRK TELEVISION, INC.
Appellant,
v.
THEAOLA ROBINSON,
Appellee.
On Appeal from the 234 111 Judicial District Court of Harris County, Texas,
The Hon. Reece Rondon, Presiding
APPELLANT'S RESPONSE TO APPELLEE'S
MOTION TO DISMISS FOR LACK OF JURISDICTION
Laura Lee Prather
State Bar No. 16234200
Catherine Lewis Robb
State Bar No. 24007924
Haynes and Boone, LLP
600 Congress Avenue, Suite 1300
Austin, TX 7870 I
Telephone: (512) 867-8400
Telecopier: (512) 867-8470
ATTORNEYS FOR APPELLANT
KTRK TELEVISION, INC.
TABLE OF CONTENTS
T. The Legislative Intent of Section 27.008 Demonstrates a Clear Desire to Allow
lnterlocutory Appeals of All Rulings on Anti-SLAPP Motions to Dismiss ....................... I
A. The Plain Meaning of the Statute is Clear ................................................................. 2
B. The Code Construction Act Mandates Jurisdiction ................................................... 5
C. Appellee's Interpretation Runs Afoul of the Purpose of the Anti-SLAPP Law ........ 8
D. Appellee's Construction Would Leave Portions of the Law Meaningless .............. 11
II. Appellee Misplaces Her Reliance on Other State's Laws ................................................ 12
Ilf. Appel lee Misplaces Her Reliance on Tex Civ. Prac. & Rem. Code§ 51.014 and Her
Strict Construction Argument ........................................................................................... 14
IV. Conclusion ........................................................................................................................ 16
CERTIFICATE OF SERVICE ..................................................................................................... 18
APPENDIX ................................................................................................................................... 19
ii
TABLE OF AUTHORITIES
Page(s)
CASES
All One God Faith, Inc. v. Hain Celestial Group, Inc.,
Cause No. C 09-03517 JF (HRL), 2009 WL 4907433 (N.D. Cal. Dec. 14, 2009) .............. 14, 6
Bailey v. Clark,
407 S.W.2d 520 (Tex. Civ. App. - Ft. Worth 1966, no writ) .................................................. 15
Batzel v. Smith,
333 F.3d I 018 (9th Cir. 2003) ........................................................................................... 13, 14
Bridgestone/Firestone, Inc. v. Glyn-Jones,
878 S.W.2d 132 (Tex. 1994) ...................................................................................................... 8
Bruce C. Carter, et. al. v. NW Communications l~f Texas, Inc. et. al.,
Cause No. DC-12-02166 (160th Judicial District, Dallas Co., Tex. May 24, 2012)
[Appendix J] ............................................................................................................................. l 0
Cameron v. Terrell & Garrell, Inc.,
618 S.W.2d 535 (Tex. 1981 ) ...................................................................................................... 4
City qf LaPorte v. Bmjield,
898 S.W.2d 288 (Tex. 1995) .................................................................................................... 12
City ofSan Antonio v. City of Boerne,
111 S.W.3d 22 (Tex. 2003) .................................................................................................... 1, 4
Cont 'l Cas. Ins. Co. v. Functional Restoration Assocs.,
19 S.W.3d 393 (Tex. 2000) ........................................................................................................ 4
Dwayne Viera and Kerwin Jordan v. Hearst Newspapers, et. al.,
Cause No. 2011-42884 (I 90th Dist. Ct., Harris County, Tex., Nov. 22, 2011)
(2 CR 448) ................................................................................................................................ l 0
East Tex. Salt Water Disposal Co. v. Werline,
307 S.W.3d 267 (Tex. 2010) .................................................................................................... 16
Enochs v. Brmi·n,
872 S.W.2d 312 (Tex. App. - Austin 1994, no writ) ................................................................. 5
Entergy Gu((States, Inc. v. Summers,
282 S.W.3d 433 (Tex. 2009) .................................................................................................. 2, 4
iii
Fitzgerald v. Advanced Spine Fixation Sys., Inc.,
996 S.W.2d 864 (Tex. 1999) .................................................................................................... 11
Grant v Wood,
916 S.W.2d 42 (Tex. App. - Hou. [I st Dist.] 1995, orig. proceeding) ....................................... 3
Herbert v. Lando,
441 lJ.S. 153 (1979) ................................................................................................................. 13
Hilton v. Hallmark Cards,
599 F.3d 894 (9th Cir. 2010) ................................................................................................... 13
In re D.B.,
80 S.W.3d 698 (Tex. App. - Dallas 2002, no pet.) .................................................................. 15
In re Estate ofNash,
220 S.W.3d 914 (Tex. 2007) ..................................................................................................... 2
In re NCAA Student-Athlete Name & Likeness Litig.,
Cause No. C 09-1967 CW, 2010 WL 5644656 (N.D. Cal. 2010) ........................................... 14
Jones v. Fowler,
969 S.W.2d 429 (Tex. 1992) ...................................................................................................... 2
Judy A. Jennings and Rebecca Bell-Metereau v. Wal/builder Presentations, Inc., et. al.,
11
Cause No. 02-12-047-CV, Appellee's Brief(2 d Judicial District, Ft. Worth,
April 26, 2012) ........................................................................................................................... 1
Klein v. Hernandez,
315 S.W.3d 1(Tex.2010) ........................................................................................................ 16
Marks v. St. Luke's Episcopal Hospital,
319 S.W.3d 658 (Tex. 2010) .................................................................................................... 12
Nootsie, Ltd. v. Wilfiamson Co Appraisal Dist.,
925 S.W.2d 659 (Tex. 1996) .................................................................................................... 16
Ortiz v. Flores,
2010 WL 4259360 (Tex. App - San Antonio 2010, no pet. )................................................... 15
Sipple v. Foundation for Nat'! Progress,
71 Cal. App. 4111 226 ( 1999) ..................................................................................................... 10
State v. Gonzalez,
82 S.W.3d 322 (Tex. 2002) ........................................................................................................ 1
State v. Shumake,
199 S.W.3d 279 (Tex. 2006) ...................................................................................................... 4
iv
Stephen Simpton, et. al., v. High Plains Broadcasting, Inc., et. al.,
Cause No. 201 l-CI-13290 (285th Dist. Ct., Bexar Co., Tex., March 23, 2012)
[Appendix I] ............................................................................................................................. I 0
Surgitek v. Able,
997 S.W.2d 598 (Tex. 1999) .................................................................................................... 16
Texas A&M University System v. Koseoglu,
233, S. W .3d 835, 843 (Tex. 2007) ........................................................................................... 16
Texas Workers' Compensation Insurance Fund v. Del Industrial, Inc.,
35 S.W.3d 591 (Tex. 2000) .................................................................................................... 2, 4
The Garment Workers Center v. Superior Court,
117 Cal. App. 4th 1156 (2004) ................................................................................................. 10
Traxler v. Entergy Gulf States, Inc.,
_ S.W.3d _ , 2012 WL 753682, 55 Tex. Sup. Ct. J. 431 (Tex. March 9, 2012)
[Appendix D] ................................................................................................................... 2, 3, 11
Wholesale TV and Radio Advertising, LLC v. Better Business Bureau of Metropolitan
Dallas, Inc., Cause No. CC-11-08382-A, 14th Dist. Ct., Dallas Co., Tex.,
Sept. 6, 2011) (2 CR 446-447) ................................................................................................. 10
Yolanda Flores v. Houston Community College System, et. al.,
Cause No. 2011-49084 (51 st Dist., Harris Co., Tex., Nov. 11, 2011 ),
(CR 4:956-957) ........................................................................................................................ 10
STATUTES
Mo. Rev. Stat. §537.528(3) (Supp. 2006) [Appendix E] ........................................................... 3, 13
N.M. Stat. Ann 38.2-9.1-9.2 (2011) [Appendix F] .................................................................... 3, 13
Tex. Civ. Prac. & Ren1. Code, §15.003(b) ..................................................................................... 14
Tex. Civ. Prac. & Rein. Code, § 15.0642 ....................................................................................... 15
Tex. Civ. Prac. & Rein. Code, Ch. 27 .......................................................................................... 2, 7
Tex. Civ. Prac. & Rem. Code §27.002 ............................................................................................ 9
Tex. Civ. Prac. & Rem. Code §27.007 ...................................................................................... 5, 11
Tex. Civ. Prac. & Rem. Code §27.008 ...................................................................... 1, 2, 3, 6, 7, 16
Tex. Civ. Prac. & Ren1. Code, §27.008(a) ....................................................................................... 3
Tex. Civ. Prac. & Rem. Code §27.008(b) ........................................................................ 1, 3, 12, 15
v
Tex. Civ. Prac. & Renl. Code §27.008(c) .................................................................................. I 5, 5
Tex. Civ. Prac. & Rein. Code §27.01 l(b) .................................................................................. 12, 9
Tex Civ. Prac. & Retn. Code §51.014 ........................................................................................... 14
Tex. Civ. Prac. & Rem. Code, §51.014(a)(6) ................................................................................ l4
Tex. Civ. Prac. & Rein. Code, §171.098 ....................................................................................... 14
Texas Family Code, §§56.0l(c) and 56.03(b) ............................................................................... 15
Tex. Gov't Code, Ch. 311, §311.01 l(a) ...................................................................................... 4, 5
Tex. Gov't Code §311.021 (2) .......................................................................................................... 2
Tex. Gov't Code §312.005 ....................................................................................................... I, 6, 8
Tex. Govt. Code § 1205.068 ........................................................................................................... 15
Tex. Health & Safety Code, §574.070(a) ...................................................................................... 15
Tex. Rev. Civ. Stat. art. 4447cc, §7(e) ........................................................................................... 15
Wash. Rev. Code 4:24.525(2011) [Appendix G] ..................................................................... 3, 13
OTHER AUTHORITIES
Texas Rule of Appellate Procedure 26.l (b ) ................................................................................... 14
Texas Rule of Civil Procedure 76a(a) ............................................................................................ l 5
Michol O'Connor, O'Connor's Texas Rules: Civil Trial, Ch. 3, §9 (2012) ................................... 7
Jerry D. Bullard, "Peering Over the 82 11 d Lege: An Update of Bills that Passed and Those
That Didn't (But You Ought to Know About Anyway)," 21 51 Annual Conference on
State and Federal Appeals, the University of Texas School of Law, p. 6 [Appendix HJ .......... 8
vi
APPELLANT'S RESPONSE TO APPELLEE'S
1
MOTION TO DISMISS FOR LACK OF JURISDICTION
2
ln her Motion to Dismiss , Appellee attempts to turn Texas Supreme Court precedent on
its head by advocating ignoring the plain meaning and legislative intent of Tex. Civ. Prac. &
Rem. Code §27.008 in an effort to persuade this Court it lacks jurisdiction over Appellant's
appeal of the trial court's denial of its Motion to Dismiss. Appellee contends that this Court has
no jurisdiction over a signed Order Denying Appellant's Motion to Dismiss - while
acknowledging that if the Motion had been denied by operation of law or had been granted, there
would be jurisdiction. To come to this conclusion, one must ignore both the express language in
the statute and the legislative intent. 3 The right to an interlocutory and expedited appeal of a
ruling on an Anti-SLAPP motion to dismiss is specifically authorized by Tex. Civ. Prac. & Rem.
Code §27 .008(b ).
I. The Legislative Intent of Section 27.008 Demonstrates a Clear Desire to Allow
Interlocutory Appeals of All Rulings on Anti-SLAPP Motions
In construing a statute, the Court's objective is to determine and give effect to the
Legislative intent. City of San Antonio v. City ofBoeme, 111 S.W.3d 22, 25 (Tex. 2003); Stale
v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); see also, Tex. Gov't Code §312.005; American
Home Products Corp. v. Clark, 38 S.W.3d 92, 95 (Tex. 2000). In doing so, the Court looks first
to the "plain and common meaning of the statute's words." Gonzalez, 82 S.W.3d at 327. If a
statute's meaning is unambiguous, the Court interprets the statute according to the plain
meaning. Id. Next, the Court determines the legislative intent and, in doing so, looks at the
1
To the extent this Court determines there is no jurisdiction, Appellant would request this matter be converted to a
mandamus proceeding. See In re J.P.L., 359 S. W .3d 695 (Tex. App. -·· San Antonio 2011, pet. filed).
2
Appellee's arguments appear to be taken almost verbatim (all but two paragraphs) from the arguments made by the
Appellee in the pending case of Judy A. Jennings and Rebecca Be/l-Metereau v. Wal/builder Presentations, Inc .. et.
al., Cause No. 02-12-04 7-CV, before the 2"" Judicial District Court of Appeals in Ft. Worth.
3
See Appendix A, B and C; see also, CR 424-432, 436-44.
267533_3.doc
entire act and not just isolated provisions. Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1992).
Finally, the Court presumes the Legislature intended the entire statute to be effective. See Tex.
Gov't Code §311.021(2). To give full effect to Chapter 27 of the Tex. Civ. Prac. & Rem. Code,
this Court must acknowledge the right to appeal any order on a motion to dismiss brought under
Tex. Civ. Prac. & Rem. Code, Ch. 27 (the "Anti-SLAPP statute").
A. The Plain Meaning of the Statute is Clear
According to Texas Supreme Court precedent, courts are to look at the plain meaning of a
statute as the best evidence of legislative intent. Traxler v. Entergy Gu(f States, lnc., _ S. W.3d
_ , 2012 WL 753682, 55 Tex. Sup. Ct. J. 431 (Tex. March 9, 2012) 4 (When engaging in
statutory construction, the Court's primary objective is to determine the Legislature's intent
which, when possible, the Court discerns from the plain meaning of the words chosen.). In fact,
the cardinal rule of statutory construction is that each word is presumed to have been used for a
purpose. Texas Workers' Compensation Insurance Fund v. Del Industrial, Inc., 35 S.W.3d 591,
594 (Tex. 2000). "Where the text is clear, text is determinative of that intent." Entergy Gu(f'
States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). Therefore, "the words [the
Legislature] chooses should be the surest guide to legislative intent." Id., citing Fitzgerald v.
Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999). "lf a statute is clear and
unambiguous, we apply its words according to their common meaning without resort to rules of
construction or extrinsic aids." ln re Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007).
Here the words of the statute are clear and unambiguous. Section 27.008 provides for the
appeal of rulings on anti-SLAPP motions, articulating the deadline for filing said appeals and
mandating the expedited treatment of the appeals by the appellate court. Because all forms of
rulings on motions to dismiss can be appealed, Section 27.008 deals first, in section (a), with
4
A true and correct copy is attached hereto as Appendix D.
2
situations where a trial judge refuses to rnle. Section 27.008(a) addresses the circumstance when
a trial court does not rule in a timely manner on a Motion to Dismiss, and it provides that, in
those circumstances, the motion is considered denied by operation of law. Tt also specifies that a
motion that is denied by operation of law may be appealed. This is to avoid a situation such as
this Court faced in Grant v Wood, 916 S.W.2d 42 (Tex. App. - Hou. [1st Dist.] 1995, orig.
proceeding), in which the trial judge refused to rule on a summary judgment thereby causing the
right to an interlocutory appeal to effectively be held in abeyance by her inaction. Then, Section
27.008(b) deals with the expediting of all appeals under the statute. It addresses the fact that all
appeals under the new statute - whether they are appeals from denial by operation of law or
appeals from a trial court's order 011 a Motion to Dismiss 5 (meaning whether the court grants or
denies the motion) are to be conducted on an expedited basis. The statute means exactly what it
says. See In re Canales, 52 S.W.3d 698,704 (Tex. 2001 ). It is hard to interpret the word "on" to
mean anything but a ruling either way. See Traxler v. Entergy Gu(f States, Inc., 55 Tex. Sup. Ct.
J. 431, 2012 WL 753682, *4, fn. 25 (string cite omitted)( courts rely on the common meaning of
the words chosen by the Legislature, "a preference we have described as cardinal law.")
Appellee's hype1iechnical and disjointed analysis gives no meaning to the words "order on a
motion to dismiss." This is counter to the fundamentals of statutory construction.
If Appellee's interpretation of Section 27.008 were to prevail, it would essentially strike
the language below from the statute and insert the new language in brackets that the Legislature
never wrote into the law:
(a) If a court does not rule on a motion to dismiss under
Section 27.003 in the time prescribed by Section 27.005, the
5
Texas is not unique in its choice of language. The Missouri, New Mexico and Washington state anti-SLAPP
statutes use the same verbiage indicating the right to appeal all rulings 011 motions to dismiss. See Mo. Rev. Stat.
§537.528(3) (Supp. 2006); N.M. Stat. Ann 38.2-9.1-9.2 (2011); Wash. Rev. Code 4:24.525 (2011). A true and
correct copy of each of these statutes is attached hereto as Appendix E, F and G.
3
motion is considered to have been denied by operation of law and
the moving party may appeal.
(b) An appellate court shall expedite an appeal or other writ,
whethel' intel'l0eutal'y 01' net, from a trial court order 6ff-
[granting] a motion to dismiss a legal action under Section 27.003
or from a trial cou1i's failure to rule on that motion in the time
prescribed by Section 27.005.
(c) An appeal or other writ under this section must be filed on
or before the 60th day after the trial court's order is signed
[granting a motion to dismiss] or the time prescribed by Section
27.005 expires, as applicable.
A complete re-writing of the statute by the Court, such as Appellee is advocating, would
defeat every rule of statutory construction ever mandated by the courts 6 . According to the Texas
Supreme Court,
[i]t is a rule of statutory construction that every word of a statute must be
presumed to have been used for a purpose. Likewise, we believe every
word excluded from a statute must also be presumed to have been
excluded for a purpose. Only when it is necessary to give effect to the
clear legislative intent can we insert additional words or requirements into
a statutory provisions.
Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981 ). When possible to do so,
effect must be given to every sentence, clause and word of a statute so that no part thereof is
rendered superfluous or inoperative. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29
(Tex. 2003 ), citing Spence v. Fenchler, 107 Tex. 443, 180 S.W. 597, 60 I (1915 ); see also, Cont 'l
Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 402 (Tex. 2000). In this
6
When called on to interpret a statute, courts should ascertain and give effect to the Legislature's intent as expressed
by the language of the statute. E11tergy Gulf States, inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009): State v.
Shumake, 199 S.W.3d 279, 284 (Tex. 2006) C'When possible we discern [legislative intent] from the plain meaning
of the words chosen."). Words and phrases are read in context and construed according to the rules of grammar and
common usage. Tex. Gov't Code §311.01 l(a)(West 2005). "[E]very word in a statute is presumed to have been
used for a purpose, and a cardinal rule of statutory construction is that each sentence, clause and word is to be given
effect if reasonable and possible.'' Tex. Workers· Comp. Ins. Fund v. Del Indus., Inc .. 35 S.W.3d 591, 593 (Tex.
2000) (citing Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963).
4
instance, it is not necessary to butcher the statute, as suggested by the Appellee, when the plain
meaning as written in clear.
B. The Code Construction Act Mandates Jurisdiction
Pursuant to the Code Construction Act, words and phrases shall be read in context and
7
construed according to the rules of grammar and common usage. Courts are also to presume
that the Legislature intended just and reasonable results in enacting the statute. Enochs v. Brown,
872 S. W .2d 312 (Tex. App. - Austin 1994, no writ). Herein, the only just and reasonable result
would be providing an appellate right to all litigants who are the subject of rulings on Anti-
SLAPP motions to dismiss. The statements contained in concurrent legislative analysis, the
explanation of lawmakers involved in the drafting and negotiations of the bill and the
commentary of legal analysts interpreting the bill after it became law, all come to the same
conclusion. The only aberrant voice is that of a self-interested litigant who would rather not go
through the interlocutory appeal process.
According to the statute's plain language and the House Research Organization's Bill
8
Analysis (http://www.capitol.state.tx.us/B i llLookup/Text.aspx?LegSess=82R&B ii l=HB2973 ) ,
the bill provides for an expedited appeal of the motion to dismiss from any form of a ruling.
Pursuant to Section 27.008(c), an appeal would have to be filed within 60 days "afier the date
the trial court order is signed or the time prescribed by Section 27.005 (requiring the trial court
to rule within 30 days) expires. " 9 It does not say "after the order is granted," it says "after the
order is signed" - meaning the court could sign it and choose to either grant or deny it.
7
See Tex. Gov't Code, Ch. 311, §311.011 (a).
8
Attached hereto as Appendix A. for the Court's convenience. See ''Compiling Texas Legislative History."
Legislative Reference Library, Part Vlll listing House Research Organization reports as helpful in identifying
legislative intent.
9
The reason for the 60 day deadline to appeal is because of the provision in which the parties are given the
opportunity to request Findings of Fact and Conclusions of Law under Tex. Civ. Prac. & Rem. Code §27.007 and
the deadlines that ensue from such a request.
5
Subsection (a) simply clarifies that even those orders that are not signed can be appealed, and
section (a) works in tandem with section (b) providing that all appeals under the statute are to be
expedited.
In interpreting a statute, a court is required to diligently attempt to ascertain the
legislative intent. Tex. Gov't Code §312.005. The affidavits of the co-sponsor and lead
negotiator of HB 2973 (the anti-SLAPP bill) make it clear the Legislature intended there to be an
immediate appeal right from all forms of orders on anti-SLAPP motions to dismiss. In fact, the
affidavits of Senator Rodney Ellis and former Senator Don Adams explain exactly how the
language in Section 27.008 came to be. See Appendix B and C. Paragraph 4 of Senator Ellis'
(co-sponsor of HB 2973) affidavit explains how this portion of the bill was drafted:
4. "Given the desire for an expedited resolution, this law was
also meant to provide for a right to immediate and expedited
appeal by both the movant and the respondent. Pre-filing drafts of
the legislation included only the right to appeal by the movant and
provided no means of resolution ifthe court did not rule within the
thirty day deadline prescribed in Section 27.005(a). I believed that
there should be the right to appeal by everyone - no matter if the
motion was denied by the court or granted by the court, and I
believed there needed to be a mechanism by which there would be
a resolution to the motion even if the court did not rule so that the
case could continue to be resolved in an expeditious fashion. Both
issues were addressed and remedied by the language in Section
27.008 which, in section 27.008(a) outlines the mechanism for a
motion being denied by operation of law if not ruled on by the
court within 30 days, and which, in section 27.008(b) was changed
from providing for an expedited appeal only of orders on the denial
of a motion to appeals of any orders on a motion to dismiss, as
well as those orders that were denied by operation of law. The
intent was to provide the broadest right to appeal in an expedited
fashion. The modified version of the bill is what was introduced
when the bill was filed."
See Appendix B, ~ 4. Similarly, former Senator Don Adams' (lead negotiator of HB 2973)
explains in his affidavit how the appeals provisions were drafted.
6
5. "Given the desire for an expedited resolution, this law was
also meant to provide for a right to immediate and expedited
appeal by both the movant and the respondent. Pre-filing drafts of
the legislation included only the right to appeal by the movant and
provided no means of resolution if the court did not rule within the
thirty day deadline prescribed in Section 27.005(a). Jn discussing
the draft of the bill with Vice Chairman of the House Civil
Jurisprudence and Judiciary Committee (and former trial court
judge) Tryon Lewis, he expressed concern that there should be the
right to appeal by everyone - no matter if the motion was denied
by the court or granted by the court. He also expressed concern
that there needed to be a mechanism by which there would be a
resolution to the motion even if the couti did not rule so that the
case could continue to be resolved in an expeditious fashion.
6. "Both of Vice Chairman Lewis' concerns were addressed
and remedied by the language in Section 27.008 which, in section
27.008(a) outlines the mechanism for a motion being denied by
operation of law if not ruled on by the court within 30 days, and
which, in section 27.008(b) was changed from providing for an
expedited appeal only of orders on the denial of a motion to
appeals of any 'orders on' a motion to dismiss, as well as those
orders that were denied by operation of law. The intent was to
provide the broadest right to appeal in an expedited fashion. The
modified version of the bill was approved by Vice Chairman Lewis
as appropriately addressing his concerns and is what was
introduced when the bill was filed."
See Appendix C, iiir ° Furthermore, after the fact commentators and legal authorities
5 and 6. 1
have come to the same logical and rational conclusion in interpreting the right of appeal under
§27.008. See O'Connor's Texas Rules, Ch. 3, Motion to Dismiss - Anti-SLAPP Motion,
Section 9 Appellate Review:
§9.1. Deadline - An appeal or other writ must be filed within 60 days
after the court signs its order or, if the comi does not rule, within 90 days
after the date of the hearing. CPRC §§27.005, 27.008(c).
§9.2 Expedited - An appeal or other writ, whether interlocutory or not,
must be expedited by the appellate court. CPRC §27.008(b). The appeal
In~~ 14-16, Appellee opines about the Legislative rationale behind Ch. 27 and attempts to theorize about the
0
'
Legislature and what it was thinking when it passed the law at issue. The affidavits of Senator Rodney Ellis (a
sponsor of the bill at issue) and former Senator Don Adams (lead negotiator of the bill at issue) should clarify
exactly what the Legislature was thinking, how the language at issue in §27.008, Tex. Civ. Prac. & Rem. Code,
came to be and should cease the need for private litigants like Appellee to offer unsupported hypotheses to this
Court with no basis for doing so.
7
or writ is expedited whether the trial court issues an order on a motion to
dismiss or the motion is denied by operation of law.
Id.; see also, Jerry D. Bullard, "Peering Over the 82 11d Lege: An Update of Bills that Passed and
Those That Didn't (But You Ought to Know About Anyway)," 21st Annual Conference on State
and Federal Appeals, the University of Texas School of Law, p. 6 ("The trial court's decision on
the motion to dismiss ... is reviewable by appeal on an expedited basis.") 11 Appellee's proposed
interpretation of the statute not only ignores the plain meaning of the word "on," but also
advocates a strained, hyper-technical reading of the statute ignoring the context and purpose of
the entire statutory scheme. See Bridgestone/Firestone, Inc. v. G(vn-Jones, 878 S.W.2d 132, 133
(Tex. 1994) (when construing a statute, courts do not view disputed portions in isolation.).
The labyrinthine interpretation advocated by Appellee that would only give rise to an
appeal for grants of motions to dismiss or denials by operation of law would, among other things,
require this Court to ignore the plain meaning of the terms "trial court order on a motion to
dismiss" and "after the trial court order is signed." It would also, without explanation,
deprive one entire segment of litigants involved in anti-SLAPP cases - those whose motions are
denied by the Court signing an order - the right to an appeal but maintain the right for litigants
whose motions have been denied by operation of law. This interpretation is both counter-
intuitive and also contrary to the plain meaning and legislative intent of the statute.
C. Appellee's Interpretation Runs Afoul of the Purpose of the Anti-SLAPP Law
The Code Construction Act mandates that a court "diligently attempt to ascertain
legislative intent" when interpreting a statute. See Tex. Gov't Code, §312.005. If attempting to
construe the language of the statute does not lead to a clear understanding (which Appellant
11
A copy of which is attached as Appendix H.
8
argues it does), the Court may consider the purpose of the statute. Texas Civil Practices &
Remedies Code §27 .002 states the express purpose of the statute:
The purpose of this chapter is to encourage and safeguard the
constitutional rights of persons to petition, speak freely, associate freely,
and otherwise participate in government to the maximum extent permitted
by law and, at the same time, protect the rights of a person to file
meritorious lawsuits for demonstrable injury.
Section 27.011 (b) confirms that the chapter should be construed liberally to effectuate this
purpose and intent fully. In addition, the affidavits of Senator Ellis and former Senator Adams
also explain the purpose of the bill they shepherded through the legislative process:
The purpose of HB 2973 was to protect the rights of individuals who are
the victims of frivolous lawsuits for exercising their First Amendment
rights. The legislation was designed to protect speakers from the burdens
of trial itself (including discovery) rather than merely from ultimate
judgments of liability. In particular, this law was designed to protect
journalists, whistleblowers, and others from abusive litigation filed against
them by those who disagree with or otherwise do not like the content of
their speech. One of the key issues in this legislation is for meritless cases
to be resolved in an expeditious fashion without the expense of needless
discovery.
See Appendix B, il 3 and C, il 4. The legislative history contained in the record, including the
committee hearing before the House Judiciary and Civil Jurisprudence committee, establishes the
overarching concern and importance in anti-SLAPP cases of curtailing costly legal battles and
discovery before there is a ruling on whether a plaintiff's claims have merit. See CR 2:424-432,
436-445, 4:787- 789; see also, Appendix A.
In fact, the lynch pin for anti-SLAPP legislation is the ability for the court to make a
determination and the litigants to get a resolution of whether the case has merit prior to costly
discovery being undertaken. The 28 states, District of Columbia, and territory of Guam, all of
whom have recognized the need to pass anti-SLAPP legislation, have recognized the need for a
mechanism for early disposition of cases involving free speech rights, prior to lengthy and costly
9
discovery, when there is no valid basis for the claim going fonvard. The Texas Jaw was
patterned, in large part, after the California anti-SLAPP statute - a jurisdiction in which the law
has more than twenty years of judicial interpretation. In California, similar to Texas, discovery
is stayed during the pendency of the anti-SLAPP proceedings and either pa1ty is entitled to
immediately appeal the cou1t's decision on the anti-SLAPP motion. Courts there explain that
allowing discovery during the anti-SLAPP proceedings, absent a clear showing of good cause
"would subvert the intent of the anti-SLAPP legislation." Sipple v. Foundation for Nat 'l
Progress, 71 Cal. App. 4th 226, 24 7 ( 1999). If the issues raised in an anti-SLAPP motion can be
resolved without discovery "the court should consider resolving those issues before permitting
what may otherwise turn out to be unnecessary, expensive and burdensome discovery
111
proceedings." The Garment Workers Center v. Superior Court, 117 Cal. App. 4 1156, 1162
(2004 ). fn Texas, there have already been multiple anti-SLAPP motions granted prior to
.
d1scovery ta I.
150 Tex. 18, 237 S.W.2d 273, 275, 279 (1951).
Courts are required to give meaning to a legislative act, yet Appellee is advocating just
the opposite - that this statute be stripped of its plain meaning giving rise to an appeal on all
orders on motions to dismiss (explicitly granting or denying a motion, as well as those that are
denied by operation of law). Moreover, in determining how certain words might be interpreted,
the courts look at the entire act, and not a single section in isolation. Fitzgerald v. Advanced
Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999). Given this, it is important to note
that if Appellee's interpretation of the statute were to prevail, it would leave §27.007
meaningless - which would be directly contrary to Texas Supreme cowi mandate. Section
27.007 provides a mechanism for an anti-SLAPP movant whose motion has been denied to
request findings and a deadline for a court to enter same. Thus, it anticipates those litigants
whose motions to dismiss have been denied by a court order may want to obtain Findings from
the trial court prior to appealing the denial of the motion. If that same movant did not have the
right to an immediate appeal, what would be the purpose of requesting and obtaining findings in
a 30-day period from the trial court? Furthermore, Appellant's proposal is a direct assertion that
11
the appeal process would never include a point of error on denial of an anti-SLAPP motion. If
that were the case, what would the point of 27.007 be and how could the purpose of the law be
achieved?
Also, under Appe\lee's proposed construction the word "on" in Section 27.008(b) would
be meaningless when, in fact, it demonstrates that the legislative purpose was to cover all
possible actions by the trial court and recognizes that one of the three possible rulings by the trial
court is a final disposition and the other two are interlocutory. Finally, the reference in Section
27 .008(b) to "an appeal or other writ, whether interlocutory or not" anticipates the fact that the
grant of a Motion to Dismiss would not be considered an interlocutory appeal - it would just be
a regular appeal - but the denial of a Motion to Dismiss (whether by a signed order or by
operation of law) would be an interlocutory appeal. If the Legislature did not intend for all
dispositions of the motion to be appealable, then the words "whether interlocutory or not" would
be meaningless. This is because there would need to be no provision for appeal if it only applied
to the grant of Motion to Dismiss - that would be a final judgment and would be appealable
regardless. The ultimate goal is for the Court to understand the Legislature's intent and apply
that intent according to the statute's purpose. 13 All of the foregoing establishes an immediate
right to appeal from all forms of orders on anti-SLAPP motions to dismiss.
II. Appellee Misplaces Her Reliance on Other State's Laws
In paragraphs 15 and 16 of her Motion to Dismiss, Appellee attempts to distinguish the
Texas law from the other state's laws and makes a misguided reference to the need for discovery
" See Aiarks v. St. Luke's Episcopal Hospital, 319 S.W.3d 658, 663 (Tex. 2010), citing Tex. Gov't Code §312.005
(West 2005); City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995) (referring to legislative intent as the
"polestar of statutory construction."). See also, Tex. Civ. Prac. & Rem. Code §27.01 l(b).
12
when no such motion was made at the trial court level. 14 The Court need not go beyond the plain
language in the statute to reach an analysis of any of this; however, to the extent the Court does
indulge any portion of Appellee's argument allegedly taken from other state's anti-SLAPP laws,
it is worth noting that Texas is not the only state that provides for a full right of appeal arising
from any order on a motion to dismiss. The Missouri, New Mexico and Washington state anti-
SLAPP statutes use the same verbiage indicating the right to appeal all rulings on motions to
dismiss. 15 Some states choose to use the terms "grant or denial" and others choose to use the
term "on" - either way, the outcome is the same.
In reviewing other jurisdictions, such as California, where there has been twenty years of
precedent interpreting anti-SLAPP legislation 16 , it is clear that the denial of an anti-SLAPP
Motion constitutes a collateral order that is immediately appealable. Hilton v. Hallmark Cards,
599 F.3d 894, 900 (9th Cir. 2010); Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003). In
Baize!, the Ninth Circuit explained that California law provides a "substantive immunity" from
the burdens of litigation and for that reason, includes the right to immediately appeal the denial
of an anti-SLAPP motion. "This provision, along with the legislative history behind §425.16,
demonstrates that California lawmakers wanted to protect speakers from the trial itself rather
than merely from liability. If the defendant were required to wait until final judgment to appeal
the denial of a meritorious anti-SLAPP motion, a decision by this court reversing the district
14
In addition, Appellee cites to Herbert v. Lando. 441 U.S. 153 ( 1979) improperly claiming that it stands for the
proposition that a plaintiff ''must be given a right to discovery prior to dismissal of a defamation action if liability is
governed by a malice standard." Appellee's Motion, p. 7. That is simply not the law. Herbert v. Lando stands for
the proposition that the United States Supreme Court refused to recognize an absolute privilege concerning the
editorial process. It says nothing about mandatory discovery.
15
See Mo. Rev. Stat. §537.528(3) (Supp. 2006)(from a trial court order on the special motions); N.M. Stat. Ann
38.2-9.1-9.2 (2011) ("from a trial court order on the special motions"); Wash. Rev. Code 4:24.525 (2011) ("from a
trial court order on the special motion"). A true and correct copy of each of these statutes is attached hereto as
Appendix E, F and G.
16
California's anti-SLAPP statute has served as the model for other states, such as Texas, Washington D.C.,
Washington state and others who have recently enacted or amended such legislation.
13
court's denial of the motion would not remedy the fact that the defendant had been compelled to
defend against a meritless claim brought to chill rights of free expression. Thus, a defendant's
rights under the anti-SLAPP statute are in the nature of immunity; they protect the defendant
from the burdens of trial, not merely from ultimate judgments of liability." Batzel v. Smith,
supra, 333 F.3d at I 025. Furthermore, in federal court, if an anti-SLAPP motion is appealed, all
discovery is stayed in the trial court - precisely because of the "immunity" from liability
analysis. See, e.g., In re NCAA Student-Athlete Name & Likeness Litig., Cause No. C 09-1967
CW, 20 l 0 WL 5644656, *3 (N.D. Cal. 201 O); All One God Faith, Inc. v. Hain Celestial Group,
Inc., No. C 09-03517 JF (HRL), 2009 WL 4907433, *2 n.2 (N.D. Cal. December 14, 2009).
Similarly, Texas lawmakers sought to protect those who had been SLAPPed with rneritless
lawsuits for exercising their free speech rights from trial, as well as liability, unless and until it
could finally be determined that there was a valid claim.
III. Appellee Misplaces Her Reliance on Tex Civ. Prac. & Rem. Code§ 51.014 and Her
Strict Construction Argument
Appel lee spends a significant amount of her briefing focusing on the fact that this does
not qualify as an interlocutory appeal under Section 51.014(a)(6) of the Tex. Civ. Prac. & Rem.
Code because it is not an appeal from a summary judgment and because it is not an appeal made
17
within twenty days under Texas Rule of Appellate Procedure 26.l(b). Appellant does not
disagree with Appel lee on either of these points. However, neither of these points is relevant to
the Coutt's inquiry herein. Contrary to Appellee's assertion, the Texas Legislature has provided
for interlocutory appeals of trial court orders in a number of statutes other than Texas Civil
Practice & Remedies Code, Section 51.014. See, e.g., Tex. Civ. Prac. & Rem. Code, § 171.098
(providing for interlocutory appeal of ce1tain orders under Texas Arbitration Act); Tex. Civ.
17
See Appellee's Motion to Dismiss, ifil 11-14.
14
Prac. & Rem. Code, §I 5.003(b) (providing for interlocutory appeal in certain instances involving
inability to establish venue where there are multiple plaintiffs); Tex. Civ. Prac. & Rem. Code,
§ 15.0642 (essentially allowing interlocutory appeal where statute allows for mandamus to
enforce mandatory venue provisions); Tex. Govt. Code § 1205.068 (allowing certain
interlocutory appeals under Texas Public Security Declaratory Judgment Act); Tex. Health &
Safety Code, §574.070(a) (allowing for interlocutory appeal of orders requiring, renewing, or
modifying court ordered mental health services); Texas Family Code, §§56.0l(c) and 56.03(b)
(allowing for interlocutory appeal of certain family law matters); Tex. Rev. Civ. Stat. art.
4447cc, §7(e) (allowing for interlocutory appeal under Texas Environmental, Health, and Safety
Audit Privilege Act of order requiring disclosure of audit report). Additionally, Texas Rule of
Civil Procedure 76a(a) allows for an immediate appeal of an order relating to the sealing or
unsealing of court records, which, in practice, operates as a grant of a right to an interlocutory
appeal. Thus, the interlocutory appeal rights provided for all orders on a motion to dismiss found
in Tex Civ. Prac. & Rem. Code §27.008(b) is well founded in the law. Further, the sixty day
deadline to appeal any signed trial court order provided in Tex. Civ. Prac. & Rem. Code
§27.008(c) is entirely consistent with Texas precedent holding that "when a statute provides the
deadline for perfecting an appeal, compliance with that statutory deadline, not the deadline in the
rules of appellate procedure is necessary to give the appellate court jurisdiction." Bailey v.
Clark, 407 S.W.2d 520, 521 (Tex. Civ. App. - Ft. Worth 1966, no writ). See also, In re D.B., 80
S.W.3d 698, 702, fn. 8 (Tex. App. - Dallas 2002, no pet.); Ortiz v. Flores, 2010 WL 4259360(Tex. App- San Antonio 2010, no pet.).
Finally, despite Plaintiffs argument, that interlocutory appeals should be strictly
construed, the Texas Supreme Court has on many occasions interpreted statutes so as to allow
15
interlocutory appeals. See, e.g., Klein v. Hernandez, 315 S.W.3d I (Tex. 2010) (finding resident
physician could file interlocutory appeal of denial of defense of immunity under provision
allowing for interlocutory appeal of grant or denial of defense of immunity for state employee);
East Tex. Salt Water Disposal Co. v. Werline, 307 S.W.3d 267 (Tex. 2010) (allowing
interlocutory appeal under Texas Arbitration Act despite argument that reading of statute did not
allow appeal); see also, Surgitek v. Able, 997 S.W.2d 598, 60 I (Tex. 1999) (adopting functional
rather than formalistic approach to determine whether order fit within interlocutory appeal
statute). This Court is obligated to reject interpretations of a statute that defeat the purpose of the
legislation so long as another reasonable interpretation exists. Nootsie, Ltd. v. Williamson Co
Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996), citing, Citizens Bank v. First State Bank, 580
S.W.2d 344, 347-48 (Tex. 1979). Thus, Appellee's strict construction analysis is a red herring
since section 27.008 provides the express right to an interlocutory and immediate appeal from fill.
orders on anti-SLAPP motions to dismiss.
IV. Conc1usion
Appellee's interpretation would preclude an aggrieved a right to appeal. For the entire
phrase "from a trial court order on a motion to dismiss" to be given effect, the statute must allow
an appeal to be filed by both a plaintiff challenging the grant of a motion to dismiss and a
movant challenging the denial of one. See, e.g.. Texas A&M University System v. Koseoglu, 233,
S.W.3d 835, 843 (Tex. 2007). This construction is supported not only by the plain language of
Section 27.008, but also by its logical application. A person sued for exercising his free speech
rights should be able to appeal the denial of a motion to dismiss in the same way whether the
trial court entered an actual ruling or let the motion lapse as a matter of law. Both defendants'
interests in having an interlocutory review of whether there is basis for a claim against them are
identical. There is no sound rationale for distinguishing one from the other.
16
Thus, this Court needs look no further than the statute's plain language which is clear and
unambiguous. Even so, if the Court chooses to consider, the statute's objectives, its legislative
history, and the consequences of Appellee's proposed construction, the outcome is still the same,
there is simply no basis to permit appeals of only those orders that were denied by operation of
law or granted by a trial judge's ruling and foreclose the same opportunity for litigants' whose
motions have been denied by a trial judge's ruling.
WHEREFORE PREMISES CONSIDERED, Appellee's Motion to Dismiss should be
denied because this Court has jurisdiction over this appeal.
Respectfully submitted,
HA YNES AND BOONE, LLP
By:_/s/ Laura Lee Prather_ _ _ _ _ __
Laura Lee Prather
State Bar No. 16234200
Catherine Lewis Robb
State Bar No. 24007924
600 Congress A venue, Suite 1300
Austin, TX 78701
Telephone: (512) 867-8400
Telecopier: (512) 867-8470
ATTORNEYS FOR APPELLANT
KTRK TELEVISION, INC.
17
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been sent via
certified mail, return receipt requested, to the following parties on this the 14th day of August,
2012:
Berry Dunbar Bowen
3014 Brazos Street
Houston, TX 77006
Counsel for Appellee
~~~
Isl Laura Lee Prather ~~~~~~~-
18
APPENDIX
A. House Research Organization Bill Analysis of HB 2973, May 2, 2011
B. Affidavit of Senator Rodney Ellis, Senate Sponsor of HB 2973
C. Affidavit of Senator Don Adams, Lead Negotiator ofHB 2973
D. Traxler v. Entergy Gu(f'States, Inc.,_ S.W.3d _ , 2012 WL 753682, 55 Tex. Sup. Ct.
J. 431 (Tex. March 9, 2012)
E. Mo. Rev. Stat. §537.528(3) (Supp. 2006)
F. N.M. Stat. Ann 38.2-9.1 (2011)
G. Wash. Rev. Code 4:24.525 (2011)
H. Jerry D. Bullard, "Peering Over the 82°d Lege: An Update of Bills that Passed and Those
That Didn't (But You Ought to Know About Anyway)," 21st Annual Conference on State
and Federal Appeals, the University of Texas School of Law
I. ( l) Stephen Simpton, D. D.S., et al. v. High Plains Broadcasting, Inc., Cause No. 2011-
CI- I 3290, 285 111 Judicial District, Bexar County - Order Granting Defendant's Motion
to Dismiss
(2) Stephen Simpton, D.D.S.. et al. v. High Plains Broadcasting, Inc., Cause No. 20 I l-
CI-13290, 285th Judicial District, Bexar County - Final Judgment and Order on
Defendants' Attorney's Fees and Sanctions
J. Bruce Carter, et al. v. NW Communications of Texas, Inc., et al., Cause No. 12-02166,
I 60th Judicial District, Dallas County - Order Granting Defendants' Motion for
Summary Judgment and Motion to Dismiss
267533_3.doc
19
APPENDIX TAB W:
Defendant KTRK Television
Inc.' s Motion to Dismiss
Pursuant to Tex. Civ. Prac. &
Rem. Code Chapter 27 Anti-
SLAPP Motion in Cause No.
2011-54895
(WITHOUT EXHIBITS)
Filed 11 December21 P12:15
Chris Daniel - District Clerk
Harris County
ED101J016646899
CAUSE NO. 2011-54895 By: candice d. haynes
THEAOLA ROBINSON, and § IN THE DISTRICT COURT OF
BENJI'S SPECIAL EDUCATION §
ACADEMY, INC, §
§
§
§
Plaintiffs, §
§
v. § HARRIS COUNTY, TEXAS
§
THE WALT DISNEY COMPANY; §
ABC TELEVISION NETWORK, INC.; §
CC TEXAS HOLDING CO., INC.; and, §
KTRK TELEVISIONS, INC. §
§
Defendants. § 234TH JUDICIAL DISTRICT
DEFENDANT KTRK TELEVISION INC.'S MOTION TO DISMISS PURSUANT TO
TEX. CIV. PRAC. & REM. CODE CHAPTER 27 ANTI-SLAPP MOTION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, KTRK Televisions, Inc. ("Defendant" or "KTRK"), 1 by and through its
undersigned attorneys, and files this its Motion to Dismiss pursuant to Chapter 27 of the Texas
Civil Practice & Remedies Code (hereinafter "Defendant's Anti-SLAPP Motion" or "Motion to
Dismiss"), and in support thereof, states as follows:
I.
INTRODUCTION AND FACTUAL BACKGROUND
Plaintiffs are a former charter school director and the charter school that has been closed
down and had its charter revoked by the State for financial mismanagement. Despite the fact
1
The Walt Disney Company ("TWDC") and CC Texas Holding Company, Inc. ("CCTHC") have filed Special
Appearances contesting this Court's jurisdiction, and ABC Television Network which is not a corporate entity and
has not been served in this matter; therefore, at this time, filing an Anti-SLAPP motion on behalf of these named
defendants would be premature. Should the Court ultimately exercise jurisdiction over these Defendants, TWDC,
CCTHC, and "ABC Television Network" reserve the right to file their own Anti-SLAPP motion asserting the same
defenses and arguments as KTRK asserts herein.
that the State has found that Plaintiffs have demonstrated repeated unaccountability for the use of
State funds, have failed to make retirement contributions and health coverage payments, have
failed to pay their taxes owed to the IRS, and more, Plaintiffs are now trying to silence those
critics, like KTRK, who are making the public aware of the unaccountability of their taxpayer
dollars and are giving exposure to this matter of public concern. Plaintiffs have sued KTRK for
reporting on this matter of public concern. Texas law no longer permits frivolous lawsuits filed
out of retaliation by one who wants to silence a critic or who sues simply because they do not
like what was said about them. The Texas Citizens Participation Act (known as the Anti-SLAPP
statute) was passed unanimously by the Texas Legislature earlier this year to put an early and
definitive end to lawsuits aimed at retaliating against one for exercising his free speech rights.
This is precisely the type of lawsuit to which the new law applies.
This lawsuit concerns KTRK's reporting on the allegations of financial (and other)
mismanagement at, and the State's revocation of the charter for, the Benji's Special Education
Academy ("Benji's"). Plaintiffs in this suit are the non-profit corporation that ran Benji's
(hereinafter "Charter Holder"/, and the charter school's f01mer director/Superintendent, Theaola
Robinson ("Robinson"), who was also on the board of the Chruter Holder. 3 At the time of the
KTRK broadcasts at issue, Plaintiffs were being investigated by the Texas Education Agency
for, among other things, mismanagement and poor financial practices regarding State taxpayer
funds. At that time, Benji's had been taken over by the Texas Education Agency ("TEA") who
ordered the school's closure and eventually revoked the school's charter. Benji's was
2
Both the school itself and the Charter Holder use the name "Benji's" or "Benji's Special Education Academy" -
often without distinguishing between the two. But, while the Charter Holder is a non-profit corporation and a
Plaintiff in this lawsuit, Benji's (the school), has been taken over by the State and is not a Plaintiff in this suit. In
fact, Plaintiff Robinson sued Benji's (the school) recently in federal court. For ease, only the school itself will be
referred to as Benji's.
3
Ms. Robinson's involvement in both organizations can be seen by the attached Secretary of State documents for
Benji's and the Charter Holder. See Secretary of State documents for Benji's, attached hereto as Exhibit A-1;
Secretary of State documents for Charter Holder, attached hereto as Exhibit A-2.
2
DU278 I 540v4
responsible for educating hundreds of students and was tasked with utilizing more than $3
million in State taxpayer funds to do so. 4 TEA, after years of receiving either no response or
inadequate responses to their inquiries about the school's use of State taxpayer funds, ultimately
appointed a new Board of Managers and new Superintendent to assist Benji's with its financial
and mismanagement woes. 5 Plaintiffs' financial woes included, but was not limited to, the
following:
(1) the Charter Holder was the subject of a warrant hold for nonpayment to the
Teachers Retirement System in the amount of $43,000.00 for retirement
contributions and $13,000.00 in health coverage;
(2) the Department of Agriculture cancelled the Charter Holder's participation in
child nutrition programs because of the Charter Holder's failure to demonstrate
fiscal responsibility;
(3) the Charter Holder owed the IRS a debt of $87,000.00 for unpaid taxes;
(4) the Charter Holder's board of directors failed to oversee or adequately supervise
its financial resources; and,
(5) the Chaiier Holder failed to properly account for accrued unreimbursed leave as a
liability. 6
KTRK, like several other local media outlets, reported on these significant matters of public
concern to the Houston community. 7 Of all the reports, KTRK was the only station to be sued
out of retaliation for what it said.
4
Plaintiffs do not contest that they received over $3 million in state funds in the 2009-20 I 0 time frame.
j See September 3, 2010, Jetter from Commissioner of Education, Robert Scott, to Members of the Charter Holders
Board and Theaola Robinson, attached hereto as Exhibit B. This was just the latest in a series of actions taken by
the TEA against the Charter Holder. The TEA had previously appointed one, and, then two, conservators to oversee
the school and had, on at least one prior occasion, threatened to revoke the Charter Holder's/school's charter. See
May 14, 2009, Jetter from Commissioner Scott to Theaola Robinson, attached hereto as Exhibit C. Additionally, the
Charter Holder/school had been in poor financial condition for years and had poor financial records. See State Office
of Administrative Hearings Proposal for Decision in Docket No. XXX-XX-XXXX; Texas Education Agency v. Benji's
Special Education Academy, Inc., attached hereto as Exhibit D.
6
See Exhibit D, pp. 54-55, Findings 58-68.
7
See Affidavit of Cynthia Cisneros, attached hereto as Exhibit E; see also, Exhibits 5, 6, and 12 attached to
Plaintiffs' Original Petition attached hereto as Exhibit F; see also, e.g., September 14, 2010 article "School Closing
Due to Lack of Funds" on Click2Houston.com, attached hereto as Exhibit G; September 14, 20 I 0 article "State
Orders 30-Year Old School Closed" on myfoxhouston.com, attached hereto as Exhibit H; September 15, 20 I 0, story
"Fifth Ward charter school defies state order to close" on praisehouston.com, attached hereto as Exhibit I;
3
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II.
SUMMARY OF ARGUMENT
Plaintiffs' lawsuit is directly aimed at preventing Defendant from exercising its First
Amendment right to speak out on issues of public concern (and at pw1ishing Defendant for doing
so). It is the exact scenario the Texas Legislature sought to address in its passage of the recently
enacted Anti-SLAPP statute, and it is this type of reporting, the law is designed to protect. 8 The
new statute requires early dismissal of a lawsuit when a movant establishes that it is being sued
for the exercise of its free speech rights. In the instant case, Defendant was sued 9 for airing a
series of reports about Plaintiffs and the allegations and investigations surrounding Benji's
Academy. As demonstrated below, Defendant has met its statutory burden and dismissal is
mandated. Plaintiffs cannot overcome the basis for dismissal because they cannot establish by
clear and specific evidence each essential element of their claim. Specifically, because the
complained of statements were substantially true, as well as an accurate reporting of ongoing
allegations, Plaintiffs cannot establish that the broadcast(s) over which they sue are materially
false. Additionally, because the statements are privileged as a reasonable and fair comment on a
matter of public concern and because Plaintiffs' claims are barred by common law, statutory and
September 15, 2010 article "School Ordered to Shut Down Opens Anyway" on click2houston.com, attached hereto
as Exhibit J; September 15, 2010, article "Charter school stays open in defiance of state order to close, accuses TEA
of racism" on khou.com, attached hereto as Exhibit K; September 15, 2010 article "Defiant Fifth Ward charter
school vows to stay open" on chron.com, attached hereto as Exhibit L; September 16, 2010, Staff Editorial in The
Daily Cougar "Charter school should adhere to TEA ruling" on the dailycougar.com, attached hereto as Exhibit M.
8
See House Bill 2973 (The Texas Citizens Participation Act also known as the "Anti-SLAPP" statute), attached
hereto as Exhibit N, Tex. Civ. Prac. & Rem. Code §27.001(7) ("'Matter of public concern' includes an issue related
to: (A) health or safety; (B) environmental, economic, or community well-being; (C) the government; (D) a public
official or public figure; or (E) a good, product, or service in the marketplace.").
9
Plaintiffs have actually attempted to sue Defendants three different times. They sued Disney originally in federal
court (Cause No. 4-1 O-CV-03498). Then, they tried to add Defendants to the lawsuit between Plaintiffs and the
TEA (Cause No. 4-l 1-CV-00358), and finally, they now sue in this court but still against parties that either do not
exist or that they know the Court has no jurisdiction over and solely for the purpose of harassment. The Anti-
SLAPP statute not only mandates the award of attorney's fees in favor of the successful movant but also mandates
sanctions be awarded to deter the party who brought the legal action from bringing similar actions in the future.
Tex. Civ. Prac. & Rem. Code §27.009. The Plaintiffs extraordinary actions in this case and the litany of previous
cases filed against Defendants clearly demonstrates the justification for such an award of fees and sanctions.
4
DU2781540v4
constitutional privileges found in Section 73.002 of the Texas Civil Practice and Remedies Code
and Article I, Section 8 of the Texas Constitution, as well as the First and Fourteenth
Amendments to the United States Constitution, Plaintiffs' suit cannot survive. Further, Plaintiffs
cannot establish the essential element of actual malice 10 to overcome the applicable privileges.
Thus, because Plaintiffs cannot meet their burden, dismissal is warranted under the Anti-SLAPP
statute, fees should be awarded to Defendant, and Plaintiffs should be sanctioned for bringing
such a suit. See Tex. Civ. Prac. & Rem. Code §27.009.
III.
TEXAS' ANTI-SLAPP STATUTE MANDATES DISMISSAL OF THIS CLAIM
The purpose of Texas' new Anti-SLAPP statute 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. See Tex. Civ. Prac. &
Rem. Code. §27.002. Plaintiffs' lawsuit squarely falls within the protection of the Anti-SLAPP
statute and should be immediately dismissed.
A. Passage of the Texas Anti-SLAPP Statute Effective June 17, 2011
During the 82nd Legislative Session, Texas lawmalcers unanimously adopted House Bill
2973 - the Texas Citizens Participation Act, also known as the Anti-SLAPP statute. Texas is
the 28th state in the nation to adopt an Anti-SLAPP statute for the purpose of protecting public
participation in discussions about matters of public concern. The bill was intended to remedy the
nationally recognized problem of abusive lawsuits against those who speak out on issues of
public debate or who expose wrong-doing. The newly enacted law provides defendants with
10
See, e.g., Affidavit of Cynthia Cisneros, attached hereto as Exhibit E; Affidavit of Jessica Wiley, attached hereto
as Exhibit A, and Affidavit of Katie McCall, attached hereto as Exhibit 0 -- all of which demonstrate the absence of
actual malice.
5
DL/2781540v4
substantive rights to expeditiously and economically dispense with litigation brought for the
purposes of retaliation or silencing public comment. Because the law was passed unanimously
in both the Texas House and Senate, it went into immediate effect upon the Governor's signature
- June 17, 2011. 11 Pursuant to Section 3 of the bill, the law applies to "a legal action filed on or
after the effective date of this Act." Plaintiffs' lawsuit was filed on September 14, 2011, almost
three months after the June 17, 2011 effective date of the statute. 12 In order to further the Court's
understanding of the intent behind HB 2973, Defendant offers the legislative history of the Anti-
SLAPP statute, 13 which clearly shows that the purpose behind the Act is to encourage and
safeguard the constitutional rights of persons to speak freely about matters of public concern. It
also sets out the basic operation of the new law, which is quite straightforward: if a claim in a
lawsuit arises out of a party's exercise of the right of free speech, then the claim is subject to a
motion to dismiss, which must be granted unless the Plaintiffs can establish by clear and specific
14
evidence a prima facie case for each essential element of their claim. Tex. Civ. Prac. & Rem.
Code § 27.00S(b). Anti-SLAPP Motions have recently been filed in a number of Texas courts
and have already been granted in both Dallas and Harris Counties for, among other things,
lawsuits brought against media entities reporting on government investigations and consumer
concerns. 15
11
See ExhibitN.
12
See Exhibit F.
13
The audio CD of the March 28, 2011 Committee of Judiciary and Civil Jurisprudence Hearing regarding the
passage ofHB 2973 is attached hereto as Exhibit P and the list of witnesses from the March 28, 2011 Committee of
Judiciary and Civil Jurisprudence Hearing regarding the passage ofHB 2973 is attached hereto as Exhibit Q.
14
This is a heightened standard greater than just the preponderance of evidence. See, e.g., Channel Two Television v.
Dickerson, 725 S.W.2d 470, 472 (Tex. App. -- Hou. [!st Dist.] 1987, no writ).
15
See Order Granting Motion to Dismiss (and attached Motion to Dismiss) in Wholesale TV and Radio Advertising,
LLC v. Better Business Bureau of Metropolitan Dallas, Inc., Cause No. CC-11-08382-A, in the 14th Judicial District,
Dallas County, Texas, attached hereto as Exhibit R; Order Granting Motion to Dismiss (and attached Motion to
Dismiss) in Dwayne Veira and Kenvin Jordan v. Hearst Newspapers, LLC dlbla The Houston Chronicle, KHOU-
TV, Inc., and Post-Newsweek Stations, Houston, Inc. d/bla KPRC-TV. Cause No. 2011-42884, in the 334 1h Judicial
District, Han-is County, Texas, attached hereto as Exhibit S.
6
DL/2781540v4
B. Plaintiffs' Lawsuit Falls Within the Protection of the Anti-SLAPP Statute.
This lawsuit was served on Defendant KTRK on October 31, 2011. 16 As required by the
statute, this Motion is being timely filed within sixty days of service. Tex. Civ. Prac. & Rem.
Code §27.003(b). After the motion to dismiss is filed under the Anti-SLAPP statute, the court
engages in an analysis to determine whether the statute applies to the lawsuit. If the lawsuit is
"based on, relates to, or is in response to a party's exercise of the right of free speech, right to
petition, or right of association," the statute applies. See Tex. Civ. Prac. & Rem. Code
§27.003(a). Exercise of the right of free speech is defined as a communication made in
connection with a matter of public concem 17 which the KTRK broadcasts clearly fall within.
KTRK's reports concerned the Texas Education Agency's investigations into financial
mismanagement at Benji's, Benji's difficulty in accounting for state funds, and the TEA's
closure of Benji's. Reporting on governmental proceedings and use of taxpayer funds squarely
fall within the purview of the statute.
C. Dismissal of the Case is Mandated by the Anti-SLAPP Statute.
Once a defendant establishes that the Anti-SLAPP statue applies to the plaintiffs'
complaint, the burden shifts to plaintiffs. Dismissal is required unless the plaintiffs can meet
their very heavy burden of establishing a prima facie case for each essential element of their
claims under the heightened standard of clear and specific evidence. 18 This means the Plaintiffs
must provide actual proof and not just allegations that would be sufficient to preclude the
granting of summary judgment. In re Does, 242 S.W.3d 805 (Tex. App. -Texarkana 2007, no
pet).
16
See Executed Return of Service attached to Plaintiffs' Original Petition, attached hereto as Exhibit F.
17
Tex. Civ. Prac. & Rem. Code §27.001(2).
18
Tex. Civ. Prac. & Rem. Code §27.005(c).
7
DU2781540v4
The court adopted this standard in the In re Does case and required the defamation
plaintiff to establish a prima facie case for each essential element of his claim before he could
obtain the identity of an anonymous defendant. The court found it necessary for the plaintiff first
to support his defamation claim with facts sufficient to defeat a motion for summary judgment
before the identity of the potential defendant would be ordered disclosed, otherwise disclosure
would not be warranted. Id. at 821; see also, Doe v. Cahill, 884 A.2d 451, 460 (Del. 2005). In
Doe, the plaintiff could not meet this burden, and neither can the Plaintiffs herein.
D. Dismissal of a Similar Case was Recently Granted Pursuant to the Anti-SLAPP
Statute.
Despite its relative newness 19, Motions to Dismiss pursuant to the Anti-SLAPP statute
have already been granted in at least two Texas cases. See, Exhibits R and S. In Viera v.
Jordan, a case similar to the one at issue, also involving an investigative report, a Harris County
court granted the media defendants' motion to dismiss where Defendants identified plaintiffs as
suspects in a criminal investigation although it was later determined that the plaintiffs were not
involved in the crimes. See Exhibit S. In that case, the local Crime Stoppers and law
enforcement identified seven individuals who were being sought in connection with a crime at an
area HEB store. After Crime Stoppers (and HEB) released the videotape of the crime scene and
information about the suspected perpetrators, the defendants broadcast such information -
infom1ation on a matter of public concern. It was later discovered that two of the seven
photographed (the plaintiffs) were not involved in the crime. The media defendants moved for
dismissal under the Anti-SLAPP statute arguing that the plaintiffs could not meet their burden of
establishing clear and specific evidence of each essential element of their claim because the
19
Although the statute is new to Texas, it is not new in First Amendment jurisprudence. Twenty-seven other states
and the District of Columbia have Anti-SLAPP laws, and courts in those jurisdictions regularly dismiss cases, like
this one, aimed at encroaching upon one's free speech rights.
8
DL/2781540v4
statements were privileged as an accurate summary of records released by law enforcement.
Defendants also argued that plaintiffs could not establish material falsity because the report was
about a criminal investigation, and the existence of that investigation was true even though the
individuals had incorrectly been identified as having been involved in the crime. As in the
instant case, the gist of the underlying story was true. In Viera, a government agency was
seeking to apprehend the perpetrators of a crime. In our case, a government agency was seeking
to account for mismanaged taxpayer money. Either way, the media defendants accurately
reported on an ongoing investigation, and, as a result, the plaintiffs cannot establish clear and
specific evidence of each essential element of their claim. The court granted the Motion to
Dismiss in Viera and should do the same in this case.
IV.
THE COMPLAINED OF STATEMENTS
Based on Plaintiffs Original Petition20, it appears that Plaintiffs take issue with the
following statements made by Defendants and claim they are defamatory (hereinafter referred to
as the "Complained of Statements"):
1) "According to the State, millions in taxpayer dollars cannot be accounted for" and
"The state closure is based on a lack of sufficient financial records, meaning the
state doesn't know where the over three million dollars of taxpayer money given
last year has been spent." (4:30 p.m., September 15, 2010 broadcast)
2) "For the state, the issue is simple - where is the money? They say millions of
taxpayer dollars are unaccounted for . . . . The state closure is based on a lack of
sufficient financial records, meaning the state doesn't know where the more than
$3 million of taxpayer money given last year has been spent ... " (September 15,
2010, story published on Defendant's website)
3) "Where is taxpayer money going and how is taxpayer-owned building being
used? .. . The Texas Education Agency says it doesn't know how Benji's spent
$3 million of taxpayer money, and a lease agreement obtained by Eyewitness
20
Defendant has also filed Special Exceptions because of the vagueness of Plaintiffs' assertions; however, the Court
can and should rule on Defendants' Anti-SLAPP motion without delay since there is no doubt Plaintiffs' case was
brought against KTRK for its exercise of its free speech rights.
9
DL/2781540v4
News raises new questions." (September 25, 2010 story published on
Defendant's website)
4) "The Texas Education Agency doesn't know how the academy spent $3 million
of state money." (September 27, 2010 article published on Defendant's website)
5) "The state says it had no choice, alleging Benji's did not provide proper financial
records to account for over $3 million in state funding for the past year."
(September 30, 2010 article published on Defendant's website)
6) "On September 14, the TEA ordered Benji's Academy to close, citing millions of
dollars in state funding that was not accounted for." (October 11, 2010 article
published on Benji's website)
Thus, the gist of the allegedly defamatory statements in the above broadcasts is that millions in
taxpayer dollars and/or state funds have not been properly accounted for by Benji's. This is
indisputably true. 21 It could be that Plaintiffs' complaint is simply about the amount that was
reported as mismanaged and/or unaccounted for, and not the fact that a significant amount of
funds were mismanaged and unaccounted for by Plaintiffs. The gist is the same regardless. 22
v.
UNDISPUTED FACTS
Although Defendant has met its burden of establishing this lawsuit was brought by
Plaintiffs for Defendant's exercising its First Amendment rights, out of an abundance of caution,
Defendant demonstrates herein and through these undisputed facts why Plaintiffs cannot meet
their burden of establishing clear and specific evidence of a prima facie case for each essential
element of their claim as required by the Texas Citizens Participation Act.
1. Plaintiff Benji's Special Education Academy, Inc. (the "Charter Holder") was granted an
open-enrollment charter to operate Benji's Special Education Academy ("Benji's") by the
Texas State Board of Education ("SBOE") on or around November 2, 1998 (see Contract
21
See Section V, below.
22
See, e.g., Rogers v. Dallas Morning News, Inc., 889 S.W.2d 467 (Tex. App. - Dallas 1994, writ denied)(finding
newspaper's inaccurate statement that a charity only spent I 0% of its donations on actual services, when, in fact, the
charity spent 43% of its donations on services, was a minor error and did not affect the "gist" of the story, which
was accurate); Downer v. Amalgamated Meatcutters and Butcher Workmen of N. Am., 550 S.W.2d 744, 747 (Tex.
Civ. App. - Dallas 1977, writ refd n.r.e.) (Affirming summary judgment where defendant published statement that
plaintiff embezzled $2, 187. 77 instead of $840.73 ).
10
DU2781540v4
for Charter for Benji's Special Education Academy, attached hereto as Exhibit T). In
2003, the Charter Holder applied for a renewal of the charter, which was pending until
around the time of the controversy that is the subject of this lawsuit. See Exhibit D, pp.
4-5.
2. Over the years, TEA's concerns with the school/Charter Holder grew, including concerns
about: the school's academically unacceptable state accountability rating for the years
2005, 2007, 2009, and 2010 and federal academic accountability rating as failing to meet
Adequate Yearly Progress Standards in 2005, 2006, 2007, and 2009; concerns about the
accuracy in reporting student attendance data for the purpose of receiving Foundation
School Program funds for four years; Department of Agriculture's termination of the
school's agreement to participate in school breakfast and lunch programs; and
noncompliance with IDEA and No Child Left Behind laws and guidelines. See Exhibit
D, pp. 5-6, 44.
3. On July 8, 2010, Plaintiff Theaola Robinson ("Robinson"), then-executive director of
Benji's, was notified by the Commissioner of the Texas Education Agency ("TEA") that
it intended to appoint a Board of Managers and a new Superintendent for the school in
light of ongoing financial, academic, and governance issues with Benji's/Charter Holder.
See July 8, 2010 Letter from the TEA, attached hereto as Exhibit U.
4. On August 19, 2010, a hearing was held to allow Plaintiffs an opp01iunity to respond to
the Commissioner's plan to appoint a Board and Superintendent. See September 3, 2010,
letter from Commissioner of Education, Robert Scott, to Members of the Charter Holders
(Benji's) Board and Ms. Robinson, attached hereto as Exhibit B. Then, on September 3,
2010, the Commissioner sent a letter to Robinson and Benji's board of directors notifying
them that he had decided to appoint a Board of Managers and a new Superintendent. See
Exhibit B. This appointment of a Board of Managers and Superintendent suspended the
powers of Benji's previous board of directors and Robinson. Id.
5. The new Board and Superintendent met immediately after being appointed and began
investigating the situation at Benji's, including the finances of the school. See Exhibit X.
6. In fact, although the TEA did not fully understand the extent of the financial problems
until they got access to the school's financial records, the TEA had been concerned about
the financial situation for years. See. e.g., Exhibit D, p. 6 (discussing TEA Auditor's
concerns with the school as far back as 2004).
7. On or around September 14, 2010, the TEA issued a statement that Benji's was being
closed down as of the end of the day because it was no longer financially viable. See
TEA Statement, attached hereto as Exhibit V.
8. On that same date, the recently appointed Superintendent sent a letter to parents advising
that the school was being closed at the close of business that day. See September 14,
2010, letter to parents of Benji's students from Superintendent Rick Schneider, attached
hereto as Exhibit W. The letter further advised that recently available infonnation
11
DU2781540v4
indicated that the "school ha[d] virtually no money in the bank and owe[d] numerous
creditors, including the Internal Revenue Service." See Exhibit W.
9. Despite being officially closed the previous day, on September 15, 2010, through the
efforts of Plaintiff Robinson and others and in defiance of the TEA and the new Benji's
Board and Superintendent, the school reopened as an unaccredited private school using
the same facilities and school buses (which were all paid for by the State). See
September 16, 2010 letter from Commissioner Scott to Benji's Board of Managers and
Superintendent, attached hereto as Exhibit X. Representatives of TEA were refused
entrance to the school or access to school and student records. Id.
10. On September 16, 2010, the Commissioner issued an order effective immediately
suspending all funding of Benji's and suspending Benji's open-enrollment charter. See
Exhibit X. TEA issued another notice to Plaintiff Robinson and others regarding the
school and the open-enrollment charter and a hearing was held on September 21, 2010.
See September 22, 2010, Recommendation from Commissioner Scott to designee Emi
Johnson discussing the meeting, attached hereto as Exhibit Y.
11. On September 24, 2010, the Commissioner sent a letter to Plaintiff Robinson and
Members of the Charter Holder Board outlining the various grounds for revoking the
charter of Benji's, including:
failure to protect the health, safety, or welfare of students; material violations
of the open-enrolment charter; two consecutive years of unsatisfactory ratings;
serious unsatisfactory fiscal performance; unsatisfactory compliance
performance for three consecutive years, and
failure to renew a lease for the school facility.
See September 24, 2010, Notice of Intent to Revoke Open-Enrollment Charter from
Commissioner Scott to Members of the Charter Holder Board, attached hereto as Exhibit
Z. The letter also discussed the fact that "[s]pecial program concerns, academic
concerns, governance issues, financial management issues," and failures to comply with
TEA requirements and directives had plagued the school for many years. Id.
12. The September 24th letter went on to discuss in detail the fiscal mismanagement of the
school. See Exhibit Z. In particular, it noted that the mismanagement had resulted in
significant wasting of financial resources and financial insolvency. Id Additionally, the
September 24th letter noted that, comparing the lease for the school location between the
Charter Holder and the City of Houston and the lease between the Charter Holder and the
school itself, the rental payments paid by the charter school (Benji's) to the Charter
Holder for the use of the prope11y appeared to be excessive. Id.
13. In fact, it was discovered that the Charter Holder - who was leasing the property from
the City of Houston for $1 a year - was leasing the property (which it did not own, but
12
DL/2781540v4
merely leased from the City) to Benji's for $9,000.00 a month. 23 See Exhibit Z; see also,
Lease Agreement between the City of Houston and Benji's Special Education Academy,
Inc. (Charter Holder) dated August 30, 1996, attached hereto as Exhibit AA; July 23,
1998 Open Enrollment Charter School Facilities Letter of Intent, attached hereto as
Exhibit BB, July 8, 2010 Letter from City of Houston to Theaola Robinson, attached
hereto as Exhibit CC, Tenancy Agreement between Benji's Special Education Academy,
Inc. (Charter Holder) and Benji's Special Education Academy Charter School dated
December 18, 2008, attached hereto as Exhibit A-3; Tenancy Agreement between Benji's
Special Education Academy, Inc. (Charter Holder) and Benji's Special Education
Academy Charter School dated July 1, 2010, attached hereto as Exhibit A-4.
Additionally, the July 1, 2010, Tenancy Agreement, which still called for Benji's to pay
the Charter Holder $9,000.00 a month, had a term of 10 years, despite the fact that the
City did not know that the Charter Holder had entered into such a sub-lease agreement
and had not approved such an agreement. See Exhibit A-4.
14. The Charter Holder had been in poor financial condition for years and had poor financial
records. See Exhibit D, p. 55, Finding Nos. 65 and 68. Plaintiffs financial woes
included the following:
the Charter Holder was the subject of a warrant hold for nonpayment to the
Teachers Retirement System in the amount of $43,000.00 for retirement
contributions and $13,000.00 in health coverage;
the Department of Agriculture cancelled the Charter Holder's participation in
child nutrition programs because of the Charter Holder's failure to
demonstrate fiscal responsibility;
the Charter Holder owed the IRS a debt of $87,000.00 for unpaid taxes;
the Charter Holder's board of directors failed to oversee or adequately
supervise its financial resources, and
the Charter Holder failed to properly account for accrued unreimbursed leave
as a liability.
See Exhibit D, pp. 54-55, Findings 58-68.
15. Because of the pubHc controversy and concern over, among other issues, the initial
takeover, revocations of charter, and attempted closing of the school by the TEA, the
allegations of financial mismanagement of State funds and indebtedness of the school,
and the efforts to keep the school open in defiance of the State's orders, starting on
around September 14, 2010, Defendant broadcast and posted numerous stories about
Plaintiffs. See Affidavit of Cynthia Cisneros, attached hereto as Exhibit E; Affidavit of
23
As evidenced by the fact the that the City did not even know of this arrangement between the Charter Holder and
Benji's, the Charter Holder did not get permission from the City to enter into a sublease for the property/facilities,
which it was required to do if it wanted to lease the City's property.
13
DU2781540v4
Jessica Wiley, attached hereto as Exhibit A, and Affidavit of Katie McCall, attached
hereto as Exhibit 0.
16. At or around that same time, numerous other media organizations broadcast and/or
published stories about Plaintiffs that discussed the money problems the school was
facing, the closure by the TEA, and the actions of Plaintiffs. See, e.g., Exhibits 5, 6, and
12 to Plaintiffs' Original Petition, attached as Exhibit F; see also, September 14, 2010
article "School Closing Due to Lack of Funds" on Click2Houston.com, attached hereto as
Exhibit G; September 14, 2010 article "State Orders 30-Year Old School Closed" on
myfoxhouston.com, attached hereto as Exhibit H; September 15, 2010, story "Fifth Ward
charter school defies state order to close" on praisehouston.com, attached hereto as
Exhibit I; September 15, 2010 article "School Ordered to Shut Down Opens Anyway" on
click2houston.com, attached hereto as Exhibit J; September 15, 2010, article "Charter
school stays open in defiance of state order to close, accuses TEA of racism" on
khou.com, attached hereto as Exhibit K; September 15, 2010 article "Defiant Fifth Ward
charter school vows to stay open" on chron.com, attached hereto as Exhibit L; September
16, 2010, Staff Editorial in The Daily Cougar "Charter school should adhere to TEA
ruling" on the dailycougar.com, attached hereto as Exhibit M; September 30, 2010 article
"Judge considers stopping closure of Benji's charter school" on chron.com, attached
hereto as Exhibit CC; October 12, 2010 article "Northeast Houston: Classes resume at
Benji's Academy" on khou.com, attached hereto as Exhibit EE; and, October 15, 2010,
article "Carol Mims Galloway Says Sending Benji's Academy Students to Another
Charter is Just Dumping on Her District" on blogs.houstonpress.com, attached hereto as
Exhibit FF. Additionally, the public interest in this topic can be seen not only by the
many articles and broadcasts, but by the numerous comments that the stories elicited.
See, e.g., Exhibit 6 to Plaintiffs Original Petition - the 168 comments concerning the
September 15, 2010 Houston Chronicle story.
In an act of apparent retaliation for the prior broadcasts and, in an effort to prevent or discourage
Defendant from reporting on such matters, Plaintiffs filed this lawsuit in direct contravention of
the Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Code Ch. 27. Given the foregoing
undisputed facts, Plaintiffs cannot provide clear and specific evidence of a prima facie case for
each element of their defamation claim including that the Complained of Statements were non-
privileged or that they were materially false. Thus, Defendant's Motion to Dismiss should be
granted.
14
DU278 I 540v4
VI.
PLAINTIFFS CANNOT MEET THEIR BURDEN TO A VOID DISMISSAL
Because Defendant has established that the lawsuit arises out of KTRK's exercise of its
free speech rights about a matter of public concern, the burden has now shifted to the Plaintiffs to
provide evidence that they can prevail on their claims. Plaintiffs cannot meet their burden. In
short, Plaintiffs cannot demonstrate that they can succeed on the merits of their defamation
claim, much less show clear and specific evidence to supp01i each element of their claim, as
required by the Anti-SLAPP statute. Plaintiffs cannot prevail on their defamation claim because
they cannot establish material falsity of the Complained of Statements, cannot establish that
Defendant's statements are not privileged, and cannot overcome the privilege(s) by showing that
Defendant acted with actual malice.
In order to prevail on a libel claim against a media defendant in Texas, Plaintiffs have the
burden of establishing that defendant (1) published a non-privileged statement, (2) that was
defamatory as to the plaintiffs, (3) while acting with actual malice regarding the truth of the
statement. See WFFA TV Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). Further, in suits
against media defendants, it is the plaintiffs burden to prove material falsity. Mcllvain v.
Jacobs, 794 S.W.2d 14 (Tex. 1990). In addition, the First Amendment to the United States
Constitution and Article I, Section 8 of the Texas Constitution protect expressions of opinion.
Columbia Valley Regional Medical Center v. Bannert, 112 S.W.3d 193, 198 (Tex. App. --
Corpus Christi 2003, no pet.). Therefore, a plaintiff must prove that the complained of
statements contained false, defamatory facts rather than opinions or characterizations. Id. (citing
A.H Belo Corp. v. Rayzor, 644 S.W.2d 71, 79 (Tex. App. -- Ft. Worth 1982, writ refd n.r.e.)).
Finally, the Court must construe the statements at issue as a whole, in light of surrounding
circumstances based upon how a person of ordinary intelligence would perceive the entire
15
DU2781540v4
statement. Robertson v. Southwestern Bell Yellaw Pages, 190 S.W.2d 899, 902 (Tex. App. --
Dallas 2006, no pet.); Bannert, 112 S.W.3d at 198 (citing Turner v. KTRK Television, Inc., 38
S.W.3d 103, 114 (Tex. 2000)); see Musser v. Smith Protective Services, 723 S.W.2d 653, 655
(Tex. App. -- Corpus Christi 2003, no pet.). A statement that may be false, abusive, unpleasant,
or objectionable to the plaintiff may still not be defamatory in light of the surrounding
circumstances. See Banner!, 112 S.W.3d at 198; Musser, 723 S.W.2d at 655 (Tex. 1987). This
means that the entire broadcast series (not just one, or a few, lines viewed out of context) and
surrounding complaints and controversy must be considered by the Comt as a whole. Given the
fact that Plaintiffs were at the center of an ongoing controversy which arose out of their financial
mismanagement and lack of accountability of State funds and which culminated in their charter
being revoked, it would be impossible for Plaintiffs to establish material falsity of the
Complained of Statements. Furthermore, to overcome the constitutional, statutory and common
law privileges, Plaintiffs have the burden of establishing Defendant acted with actual malice24 -
which they cannot. 25
A. Plaintiffs Have the Burden of Showing Material Falsity and Cannot Sustain that
Burden Because Defendant's Broadcasts Are SubstantiaHy True.
Plaintiffs cannot meet their burden of establishing clear and specific evidence of material
falsity. Plaintiffs do not deny that they were in debt at the time of these broadcasts, that the TEA
had been investigating Benji's/the Charter Holder finances and had found State money
unaccounted for, or that the school was closed down by the TEA. Similarly, Plaintiffs do not
deny that the Charter Holder was leasing the school prope11y from the City of Houston and then
leasing the same to the charter school for an excessive amount. It is clear that the statement that
24
Austin v. !NET Technologies, Inc., 118 S.W.3d 491, 496-98 (Tex. App. - Dallas 2003, no pet.).
25
See, e.g., Affidavit of Cynthia Cisneros, attached hereto as Exhibit E; Affidavit of Jessica Wiley, attached hereto
as Exhibit A; and, Affidavit of Katie McCaJI, attached hereto as Exhibit 0, all of which demonstrate the absence of
actual malice.
16
DU278 l 540v4
millions of dollars of taxpayer money was unaccounted for is substantially true. Plaintiffs do not
contest that the TEA provided them with over $3 million in taxpayer funds the previous year, nor
do they contest that substantial taxpayer funds provided to them were unaccounted for by them.
In fact, it appears Plaintiffs complaint is over the exact amount of public funds that was not
accounted for, but not over the fact that significant public funds were unaccounted for by
Plaintiffs. As demonstrated herein, Plaintiffs cannot demonstrate material falsity and the
substantial truth test has been met.
Truth is an absolute defense in libel cases in Texas. See Tex. Civ. Prac. & Rem. Code
§73.005; Randall's Food Market, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). The
question of whether a statement is substantially true is a question of law for the court to decide, 26
and Texas courts apply the "substantial truth" test. In Texas, it is not enough to prove that a
stated fact was literally false. Instead, the plaintiff must show that the statements were materially
false - meaning the alleged defamatory statement had to have been more damaging to the
plaintiffs reputation, in the mind of the average listener, than a truthful statement would have
been. Mcilvain v. Jacobs, 794 S.W.2d 14, 16 (Tex. 1990); KTRK Television v. Felder, 950
S.W.2d 100, 105-106 (Tex. App. -Hou. [14th Dist.] 1997, no writ). If the underlying gist of the
complained of statements are true and undisputed, "any variance with respect to items of
secondary importance" can be disregarded. Id.; Provencio v. Paradigm Media, et al., 44 S.W.3d
677 (Tex. App. - El Paso 2001, no pet.) (misleading return address on postcard from news
organization to sex offender did not defeat truth defense).
26
Herald-Post Publishing Co. v. Hill, 89 I S. W.2d 63 8 (Tex. 1994) (It is not uncommon for a court to find
substantial truth as a matter of law) (Newspaper reported that witness at trial accused an attorney and his
investigator of threatening her when in fact only the investigator made the threat. Court dismissed, as a matter of
law, on substantial truth grounds); Mcilvain v. Jacobs, 794 S.W.2d 14, 16 (Tex. 1990) (Despite the presence of
several minor mischaracterizations, the court held as a matter of law the report was substantially true and affirmed
summary judgment).
17
DU278 I 540v4
Plaintiffs do not dispute that they received more than $3 million from the State of Texas
in 2009-2010 nor do they dispute that the State expressed concerns about Benji's financial
mismanagement, or that the State closed Benji's down and took away its charter27 • Plaintiffs
simply mischaracterize KTRK's statements by complaining that the Broadcasts and stories allege
that the "entire" $3 million in state funds is unaccounted for- rather than just part of it. Even if
the broadcasts and stories erroneously reported that the entire $3 million was unaccounted for, it
does not render the broadcast "materially false." In fact, there are a litany of cases in which the
precise amount of funds being discussed in an investigative report may not have been accurate,
but the courts found the publications to be substantially true. See, e.g., Rogers v. Dallas Morning
News, Inc., 889 S.W.2d 467 (Tex. App. - Dallas 1994, writ denied) (error in reporting amount of
funds did not affect the "gist" of the story); Downer v. Amalgamated Meatcutters and Butcher
Workmen of N. Am., 550 S.W.2d 744, 747 (Tex. Civ. App. - Dallas 1977, writ refd n.r.e.)
(affirming summary judgment incorrect report of amount embezzled); Fort Worth Press Co. v.
Davis, 96 S.W.2d 416, 419 (Tex. Civ. App. -Fort Worth 1936, writ denied) (reversing trial court
judgment and finding for media defendant where defendant incorrectly stated plaintiff wasted
$80,000 in taxpayer funds rather than $17,575.00). The "gist" of the KTRK broadcasts is true:
Plaintiffs failed to account for significant State funds advanced by the TEA, suffered from severe
financial mismanagement and lacked accountability in their record keeping with the State. These
continual problems ultimately caused the closure of the school and the revocation of Benji's
charter by the State. For that reason alone it is abundantly clear Plaintiffs cannot meet their
burden of establishing clear and specific evidence of the required element of material falsity.
27
In fact, the Revocation of Benji's charter was recently upheld by the State Office of Administrative Hearings. See
State Office of Administrative Hearings Proposal for Decision in Docket No. XXX-XX-XXXX; Texas Education
Agency v. Benji's Special Educational Academy, Inc., attached hereto as Exhibit D.
18
DL/278 J540v4
Furthermore, it is clear that what was reported is no more damaging than other truthful
information Defendant could have published about Plaintiffs. See Mel/van v. Jacobs, 794
S. W .2d at 15-16 (no defamation if allegedly defamatory statement is no more harmful to
reputation than a truthful statement would have been). For instance, Defendants could have
published that Benji's, under Plaintiffs' leadership, had an academically unacceptable state
accountability rating for the years 2005, 2007, 2009, and 2010, and federal academic
accountability rating as failing to meet Adequate Yearly Progress standards in 2005, 2006, 2007,
and 2009' that there were concerns about the accuracy in reporting student attendance data for
the purpose of receiving Foundation School Program funds for four years, that the Department of
Agriculture terminated the school's agreement to participate in school breakfast and lunch
programs, or that the Charter Holder's application for renewal of its charter had been in limbo
for 7 years because of its numerous and continuing difficulties. These statements all would have
been true and also would have been far more damaging to Plaintiffs' reputation than the
broadcasts at issue.
B. Accurate Reporting on Allegations Under Investigation Constitute Substantial
Truth.
It is also the law in Texas that "a media defendant's reporting of third-party allegations
and any investigation thereof is substantially true if it accurately depicts the allegations being
made and the existence of any investigation, regardless of whether the underlying allegations are
themselves substantially true." Neely v. Wilson, 331 S.W.3d 900, 919 (Tex. App.-Austin 2011,
pet. filed); UTV of San Antonio, Inc. v. Ardmore, Inc., 82 S.W.3d 609, 611 (Tex. App.-San
Antonio 2002, no pet.); ABC Inc. v. Gill, 6 S.W.3d 19, 33 (Tex. App. -San Antonio 1999, pet.
denied). When a case involves a media defendant, courts have held the defendant need only
prove that third party allegations reported in a broadcast were, in fact, made and under
19
DU2781540v4
investigation, and, the defendant does not need to demonstrate the allegations themselves are
substantially true. Ardmore, Inc., 82 S.W.3d at 612. This extends to investigations or charges
made even by non-governmental organizations or individuals. See KTRK Television v. Felder,
950 S.W.2d 100 (Tex. App. - Hou. [14th Dist.] 1997, no writ); see also, ABC Inc. v. Gill, 6
S.W.3d 19. In the Felder case, a report that a school with a history of discipline and personnel
problems was embroiled in another controversy in which there were allegations of physical
threats and verbal abuse was substantially tiue, whether or not the details were literally true. The
court explained the rationale behind this doctrine:
[The plaintiff] argues that Mcilvain requires not only the fact of an
investigation to be true, but also that the allegations under
investigation be proven true. We disagree. Based on our reading
of both the Supreme Court and appellate court opinions, we are
convinced that when, as in this case, the report is merely that
allegations were made and they were under investigation, Mel/vain
only requires proof that allegations were in fact made and under
investigation in order to prove substantial truth. Otherwise, the
media would be subject to potential liability every time it reported
an investigation of alleged misconduct or wrongdoing by a private
person, public official, or public figure. Such allegations would
never be reported by the media for fear an investigation or other
proceeding might later prove the allegations untrue, thereby
subjecting the media to suit for defamation. Furthermore, when
would an allegations be proven true or untrue for purposes of
defamation? After an investigation? After a court trial? After an
appeal? Undoubtedly, the volume of litigation and concomitant
chilling effect on the media under such circumstances would be
incalculable.
Felder, 950 S.W.2d at 106. See also, Associated Press v. Boyd, 05-04-01172-CV, 2005 WL
1140369 (Tex. App.-Dallas 2005, no pet.) (not designated for publication) (the 'sting' of the
articles was the accurate reporting of SEC allegations of securities fraud, which was substantially
true). Similarly, in the Ardmore case, the court found the television station's report on a daycare
center experiencing problems that subjected them to inspections by a state agency was
substantially true. Ardmore, Inc., 82 S.W.3d at 612; see also, Grotti v. Belo Corp., 188 S.W.3d
20DU278 l 540v4
768, 777 (Tex. App.-F01i Worth 2006, pet. denied) ("[B]ecause the broadcast accurately
reported on third-party allegations and an investigation [the gist of the] broadcast was
substantially truthful."); Hearst Newspaper P'ship, L.P. v. Macias, 283 S.W.3d 8, 14 (Tex.
App.-San Antonio 2009, no pet.) (gist was that housing authority official resigned amidst audits
and an investigation). The gist of the stories was that the TEA was investigating the Charter
Holder for financial mismanagement and failure to properly account for substantial funds. The
specific amount of funds at issue is immaterial. It is undisputed that a significant amount of
public money was not properly accounted for by Plaintiffs; Plaintiffs were fraught with severe
financial mismanagement, and Plaintiffs owed numerous creditors whom they could not pay.
Although it is not Defendants' burden to show that the underlying statements of the third-party
allegations are substantially true, the evidence attached illustrates that the "gist" of the broadcasts
are substantially true.
C. The Broadcasts at Issue in this Lawsuit Are Privileged as a Matter of Law.
Plaintiffs are unable to meet their burden of establishing clear and specific evidence of
the elements of their defamation claim because the statements at issue are protected by
constitutional, statutory and common law privileges, including the fair report and fair comment
privileges. The fair report privilege includes reporting the contents of pleadings filed with the
courts, investigations by governmental bodies, and substantially true accounts of official or
judicial proceedings. The use of the phrase "fair, true and impartial" in the privilege has been
construed to mean "substantially true." Herald-Post Publishing Co., Inc. v. Hill, 891 S.W.2d
638 (Tex. 1994); Langston v. Eagle Publishing Co., 719 S.W.2d 612 (Tex. App. -- Waco 1986,
writ ref d n.r.e.). The privilege also extends to reporting based on erroneous government
information. See Freedom Communications, Inc. v. Sotelo, 2006 WL 1644602, 34 Media L.
Rep. 2207 (Tex. App. -- Eastland 2006, no pet.). So, to the extent Plaintiffs complain that the
21
DU2781540v4
information provided by TEA to KTRK was incorrect, this does not overcome the privilege
protecting KTRK's broadcasts. Fm1hermore, the "fair, true and impartial privilege" has been
construed to provide "great latitude" to reports of official proceedings. Texas Monthly, Inc. v.
Transamerican Natural Gas C01p., 7 S.W.3d 801 (Tex. App. -- Hou. [1st Dist.] 1999, no pet.).
See Tex. Civ. Prac. & Rem. Code § 73.002 (a) and (b). Plaintiffs themselves admit that the TEA
advised Defendant that $3 million in State funds were unaccounted for by Plaintiffs. See
Plaintiffs' Original Petition (Exhibit B), para. 37. Thus, Defendant's reporting on the TEA's
investigation of Plaintiffs' financial mismanagement of, and inability to account for, State funds
was substantially true and privileged.
In addition, the broadcasts and articles at issue are privileged as a reasonable and fair
comment on a matter of public concern published for general information pursuant to the
common law and the Texas and the United States Constitutions. Humane Society of Dallas v.
Dallas Morning News, L.P., 180 S.W.3d 921, 923 (Tex. App. - Dallas 2005, no pet.). Because
the broadcasts focused on highly relevant political issues and government investigations, such as
whether over $3 million in state funds was properly accounted for, and the revocation of a
charter for (and closing of) a charter school that affected area school children, Defendant is
protected by the fair comment privilege. See Tex. Civ. Prac. & Rem. Code§ 73.002(b)(2). The
fair comment privilege extends to reports on what state agencies and officials are doing. See,
Exhibit BB; Brewer v. Capital Cities/ABC, Inc., 986 S.W.2d 636, 644-45 (Tex. App. - Ft. Worth
1998, no pet.) (fair comment privilege applied to primarily factual account of state agency
inspections); Swate v. Schijfers, 975 S.W.2d 70, 77 (Tex. App. -- San Antonio 1998, pet. denied)
(Broadcasts concerning complaints made to the medical board constituted privileged reports of
an official proceeding about medical care, which constitutes a matter of public concern). Thus,
22
DU278 I 540v4
Defendant's reporting on allegations of improper and/or undocumented or unaccounted for use
of government funds certainly falls within the purview of the privilege, and Plaintiffs cannot
meet their burden of establishing the Complained of Statements were nonprivileged.
D. Plaintiffs Cannot Establish the Essential Element of Actual Malice.
Because the broadcasts are protected by numerous qualified privileges, Plaintiffs cannot
defeat these privileges unless they can prove actual malice by the heightened standard of clear
and convincing evidence. Randall's Food Market, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.
1995) (Actual malice is required to defeat the application of a qualified privilege); see also,
Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771 (Tex. 1994). "Actual malice" means not
ill will, but rather publication of a false statement knowing the statement was false, or with
reckless disregard as to the truth of the statement. Gertz v. Welch, 418 U.S. 323, 349, 94 S. Ct.
2997, 3013 (1974); Casso v. Brand, 776 S.W.2d 551, 554 (Tex. 1989). "Reckless disregard"
does not mean sloppiness, but rather that the publisher in fact entertained serious doubts about
the truth of the statement. Id. at 558 (quoting St. Armant v. Thompson, 390 U.S. 727, 731, 88 S.
Ct. 1323, 1325 (1968).) The affidavits of Defendant's employees - specifically, the Affidavits
of Cynthia Cisneros, Jessica Wiley, and Katie McCall - establish their belief in the truth of the
broadcasts published by KTRK. See Exhibits E, A, and 0. Harte-Hanks Communications, Inc.
v. Connaughton, 491 U.S. 657, 688, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989).
As the Texas Supreme Court found in Casso v. Brand, the relevant inquiry as to actual
malice focuses on the minds of the speakers and asks whether they subjectively believed that
what was published was true at the time of publication. Casso v. Brand, 776 S. W.2d at 558-59.
Texas law permits summary dispositions to rest solely upon the affidavit of an interested party if
it is "clear, positive and direct, otherwise credible and free from contradictions and
inconsistencies, and could have been readily controverted." Id. at 558-59; Ross v. Labatt, 894
23
DU2781540v4
S.W.2d 393, 396 (Tex. App. - San Antonio 1994, writ dism'd w.o.j.); see also, San Antonio
Express News v. Dracos, 922 S.W.2d 242 (Tex. App. - San Antonio 1996, no writ) (to negate
summary judgment plaintiff had to offer specific affirmative proof to show that the Defendant
either knew the publication was false or entertained serious doubts as to its truth). Moreover, the
Texas Supreme Court, in WFAA-TV, Inc. v. Mclemore, confirmed its position that a libel
defendant can negate actual malice by presenting evidence that shows that he or she did not
publish the alleged defamatory statement with actual knowledge of any falsity or with reckless
disregard of the truth. 978 S.W.2d 568, 574 (Tex. 1998); see also, Brady v. Cox Enterprises,
Inc., 782 S.W.2d 272 (Tex. App. - Austin 1990, writ denied) (affidavit negating actual malice
sufficient for summary judgment); Carr v. Brasher, 776 S.W.2d 567 (Tex. 1989) (summary
judgment granted based on a defendant's affidavit of absence of actual malice). Cisneros',
Willey's, and McCall's affidavits clearly establish their belief in the truth of the statements they
published, and their lack of actual malice. See Exhibits E, A, and 0. Thus, because of the lack
of actual malice, Plaintiffs cannot meet their onerous burden of establishing clear and specific
evidence to overcome the statutory, constitutional, and common law privileges that protect
Defendant's broadcasts, and Defendant's Motion to Dismiss should be granted.
VII.
EVIDENCE
The following pleadings and affidavits are provided as evidence in support of
Defendant's Anti-SLAPP motion, pursuant to Tex. Civ. Prac. & Rem. Code § 27.006, each of
which is attached hereto and incorporated herein for all purposes:
Exhibit A: Affidavit of Jessica Willey
A-1: Documents obtained from the Texas Secretary of State's website
showing corporate management for Benji's Special Education Academy
Independent School District
24
D1J2781540v4
A-2: Documents obtained from the Texas Secretary of State's website
showing corporate management for Benji's Special Education Academy
(Charter Holder)
A-3: Tenancy Agreement between Benji's Special Education Academy,
Inc. (Charter Holder) and Benji's Special Education Academy Charter
School dated December 18, 2008
A-4: Tenancy Agreement between Benji's Special Education Academy,
Inc. (Charter Holder) and Benji's Special Education Academy Charter
School dated July 1, 2010
ExhibitB: September 3, 2010 letter from Commissioner of Education, Robert Scott,
to Members of the Charter Holders (Benji's) Board and Ms. Robinson
Exhibit C: May 14, 2009 Letter from Commissioner of Education, Robert Scott, to
Members of the Charter Holders (Benji's) Board and Ms. Robinson
Exhibit D: State Office of Administrative Hearings Proposal for Decision in Docket
No. XXX-XX-XXXX; Texas Education Agency v. Benji's Special Educational
Academy, Inc., December 7, 2011
Exhibit E: Affidavit of Cynthia Cisneros
Exhibit F: Plaintiffs' Original Petition
Exhibit G: September 14, 2010 article "School Closing Due to Lack of Funds" on
Click2Houston.com
Exhibit H: September 14, 2010 article "State Orders 30-Year Old School Closed" on
myfoxhouston.com
Exhibit I: September 15, 2010, story "Fifth Ward chmier school defies state order to
close" on praisehouston.com
Exhibit J: September 15, 2010 article "School Ordered to Shut Down Opens
Anyway" on click2houston.com
Exhibit K: September 15, 2010, article "Charter school stays open in defiance of state
order to close, accuses TEA of racism" on khou.com
Exhibit L: September 15, 2010 article "Defiant Fifth Ward charter school vows to
stay open" on chron.com
Exhibit M: September 16, 2010, Staff Editorial in The Daily Cougar "Charter school
should adhere to TEA ruling" on the dailycougar.com
25
DLl2781540v4
Exhibit N: House Bill 2973 (The Texas Citizens Participation Act also known as the
"Anti-SLAPP" statute)
Exhibit 0: Affidavit of Katie McCall
Exhibit P: The audio CD of the March 28, 2011 Committee of Judiciary and Civil
Jurisprudence Hearing regarding the passage of HB 2973
Exhibit Q: The list of witnesses from the March 28, 2011 Committee of Judiciary and
Civil Jurisprudence Hearing regarding the passage ofHB 2973
Exhibit R: Order Granting Motion to Dismiss (and attached Motion to Dismiss) in
Wholesale TV and Radio Advertising, LLC v. Better Business Bureau of
Metropolitan Dallas, Inc., Cause No. CC-11-08382-A, in the 14111 Judicial
District, Dallas County, Texas
Exhibit S: Order Granting Motion to Dismiss (and attached Motion to Dismiss) in
Dwayne Veira and Kerwin Jordan v. Hearst Newspapers, LLC d/b/a The
Houston Chronicle, KHOU-TV, Inc., and Post-Newsweek Stations,
Houston, Inc. d/bla KPRC-TV, Cause No. 2011-42884, in the 334th
Judicial District, Harris County, Tex as
Exhibit T: Contract for Charter for Benji's Special Education Academy dated
November 2, 1998
Exhibit U: July 8, 2010 Letter from the TEA to Members of the Charter Holder Board
and Theaola Robinson
Exhibit V: Commissioner's Statement concerning Closure of Benji's, dated
September 14, 2010
Exhibit W: September 14, 2010 letter to parents of Benji's students from
Superintendent Rick Schneider
Exhibit X: September 16, 2010 letter from Commissioner Scott to Benji's Board of
Managers and Superintendent
Exhibit Y: September 22, 2010 Recommendation from Commissioner Scott to
designee Emi Johnson
Exhibit Z: September 24, 2010 Notice oflntent to Revoke Open-Enrollment Charter
from Commissioner Scott to Members of the Charter Holder Board
Exhibit AA: Lease Agreement between the City of Houston and Benji's Special
Education Academy, Inc. (Charter Holder) dated August 30, 1996
Exhibit BB: July 23, 1998 Open Enrollment Charter School Facilities Letter of Intent
26
DL/2781540v4
Exhibit CC: July 8, 2010 Letter from City of Houston to Theaola Robinson
Exhibit DD: September 30 2010 article "Judge considers stopping closure of Benji's
chruter school" on chron.com
Exhibit EE: October 12, 2010 article "Northeast Houston: Classes resume at Benji's
Academy" on khou.com
Exhibit FF: October 15, 2010 article "Carol Mims Galloway Says Sending Benji's
Academy Students to Another Charter is Just Dumping on Her District"
on blogs.houstonpress.com
Exhibit GG: Affidavit of Lucy Netherton
VIII.
ATTORNEYS, FEES
Should Defendant prevail on this motion, Defendant is entitled to recover attorneys' fees
and associated costs pursuant to Tex. Civ. Prac. and Rem. Code §27.009(a). Defendant will
submit to this Comt evidence of its reasonable and necessary attorneys' fees within 14 days after
the Court rules on this motion. Defendant is also entitled to an award of sanctions which is
expressly provided for in the statute:
If the comt orders dismissal of a legal action under this Chapter, the Court shall
award to the moving party: (1) court costs, reasonable attorneys fees, and other
expenses incurred in defending against the legal action as justice and equity may
require; and (2) sanctions against the party who brought the legal action as the
court determines sufficient to deter the party who brought the legal action from
bringing similar actions described in this Chapter.
Id. Especially in light of the extensive procedural history of Plaintiffs' complaints against
Defendants, and Plaintiffs' filing of two prior lawsuits against Defendants in federal court where
jurisdiction was clearly not proper, Defendants have incun-ed exponentially more legal costs in
defending their free speech rights than should ever have to be spent on a frivolous claim, and an
award of sanctions could not be more appropriate than in this case.
27
DU278 l 540v4
IX.
CONCLUSION AND PRAYER
Plaintiffs bring fatally defective claims based on Defendant's exercising its free speech
rights. Plaintiffs' claims are barred by Chapter 27 of the Texas Civil Practice & Remedies Code.
The Anti-SLAPP statute mandates dismissal, and Defendant must be awarded its attorneys' fees
and cost for defending against this lawsuit, and sanctions must be awarded against Plaintiffs to
deter future similar actions.
WHEREFORE, PREMISES CONSIDERED Defendant prays that the Court set this
matter for hearing within 30 days, as provided by the Anti-SLAPP statute and that upon hearing,
the Court grant this motion and dismiss Plaintiffs' claims against Defendant with prejudice in
their entirety, award Defendant the reasonable costs and attorneys' fees it incurred in defending
this lawsuit; award sanctions against Plaintiffs to deter future similar actions; and such other and
further relief, at law and in equity, to which Defendant may show itself justly entitled.
Respectfully submitted,
SEDGWICK LLP
By:C~f~;;c;a~~
auraLeePrather
Texas State Bar No. 16234200
Catherine Lewis Robb
Texas State Bar No. 24007924
919 Congress Avenue, Suite 1250
Austin, Texas 7870 I
Tel.: (512) 481-8400
Fax.: (512) 481-8444
ATTORNEYS FOR DEFENDANT KTRK
TELEVISION, INC.
28
DU2781540v4
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing document has
been sent via certified mail, return receipt requested to the following on this the 21 51 day of
December, 2011.
Berry Dunbar Bowen
3014 Brazos Street
Houston, Texas 77006
(713) 521-3525
(713) 521-3575
~cLClu&
Laura Lee Prather
Catherine Lewis Robb
29
DU278 I540v4
APPENDIX TAB X
Anti-SLAPP Statute
t - - - · . - ..... -· -
Chapter 341 -· ....
-· .......... . . - _, I
H.B. No. 2973
1 D~T
2 relating to encouraging public participation by citizens by
3 protecting a person's right to petition, right of free speech, and
4 right of association from meritless lawsuits arising from actions
5 taken in furtherance of those rights.
6 BE IT ENACTEO BY THE LEGISLATURE OF THE STATE OF TEXAS 1
7 SECTION l, This /\Ct may be cited as the Citizens
B Participation Act,
9 SECTION 2. Subtitle B, Title 2, Civil Practice and Remedies
10 Code, is amended by adding Chapter 27 to read as follows;
11 CHAPTER 27. ACTIONS INVOLVING THE EXERCISE OF CERTAIN
12 CONSTITUTIONAL RIGHTS
13 Sec. 27.001. DEFINITIONS. In this chapter:
14 ( 1) "Communication" includes the making or submitting
15 of a st.atement.or document in any form or medium, including oral,
16 visual, written, audiovisual, or electronic .
17 . (2) "Exercise of the right of association" means a
18 communication between individuals who ioin together to
19 collectively express, promote, pursue, or defend common interests.
20 (3) "Exercise of the right of free speech" means a
21 conununication made in connection with a matter of public concern.
22 (4) "Exercise of the right to petition" means any of
23 the following1
24 (A) a communication in or pertaining to:
EXHIBIT
IN
H.B. No, 2973
1 (i) a judicial p.roceedin97
2 ( i.i,) . an .official proceeding, other than a
3 judic~al proce'eding, to administer the law1
4 (iij) an executive or other proceeding
5 before a department of the state or federal government or a
6 subdivision of the state or .federal government 1
7 (iv) a legislative proceeding, including a
8 proceeding of a l.egislative committee 1
9 (v) a proceeding before an entity that
10 reguires by rule that public notice be given before proceedings of
11 that eritity1
12 (vi) a proceeding in or before a managing
13 board of an educational or eleemosynary institution supported
14 directly or indirectly from public revenue1
15 (vii) a proceeding of the governing body of
16 any political subdivision. of this state1
17 (viii) a reRort of or debate and statements
18 mad·e in a proceeding described by Subparaqraph (iii), (iv), (v),
19 (vi), or (vii) 1 or
20 • (ix l a public meeting dealing with a public
21 purpose, including· statements apd discussions at the meeting or
22 other matters of public concern occurring at the meeting;
23 (Bl a communication in connection with an issue
24 under consideration or review by a legislative, executive,
25 judicial, or other governmental body or in· another governmental or
26 official prof!eedinq1
27 (C) a communication that is reasonably likely to
2
H.a. No. 2973
l encourage consideration or review of an issue b.y a legislative,
2 executive, judicial, or other governmental body or in another
3 governmental or official proceedingz
4 (D) a communication reasonably likely to enlist
5 public participation in an effort to effect consideration of an
6 issue by a legislative, executive, judicial, or other governmental
1 body or in another governmental or official proceedinq1 and
8 (E) any other communication that falls within the
9 protection of the right to petition government under the
10 Constitution of the United States or the constituti.on of this
ll llill..:.
12 (5 l "Governmental proceeding" means a proceeding,
13 other than a judicial proceeding, by an officer, offioia:l, or body
14 of this state or a political subdivision of this state, including a
15 board or commission, or by an officer, official, or body of the
16 federal government.
17 (6) "Legal action" means a lawsuit, cause of action,
18°
19 judicial pleading or
.
petition, complaint, cross-claim, or counterclaim ox any other
filing that uguests legal or equitable
20 relief,
21 (7) "Hatter of public concern" includes an issue
22 related to:
23 (A) health or safetyi
24 (Bl environmental, economic, or community
25 we 11-being 1
26 (C) the govexnment1
27 ID) a public official or public fisrnre1 or
3
H.B. No. 2973
l (E) a good 1 Eroduct 1 or service in the
2 matket12lace.
3 (8) "Official 12roceeding" means an):'. · t~Ee of
4 administrative 1 executive 1 legislative 1 or judicial eroceeding
5 that may be conducted before a Eublic servant.
6 (9) "Public servant" means a person elected, selected 1
7. aEpointed, employed, or otherwise designated as one of the
8 following 1 even if the person has not yet qualified for office or
9 assumed the person's duties1
10 pq an officer, employee 1 or agent of government r
ll (B ! a iuror c
12 (Cl an arbitrator, referee 1 or other person who
13 is authorized by law or private written agreement to hear or
14 determine a cause or controversv1
15 (D) an attorney or notary public when
16 participating in the performance of a governmental function1 or
17 (E) a person who is performing a governmental
18 function under a claim of right but is not legally qualified to do
l9 !2.:.
20 Sec, 27.002. PURPOSE. The purpose of this chapter is to
21 encourage and safeguard the constitutional rights of persons to
22 petition, speak freely 1 associate freely, and' otherwise
23 participate in. government to the maximum extent permitted by law
24 and, at the same time, protect the rights of a person to file
25 meritorious lawsuits for.demonstrable injury.
26 Sec, 27.003, MOTION TO DISMISS, (a! If a legal action is
27 based on, relates to, or is in response to a party's exercise of the
4
H.D. NQ, 2973
1 right of free speech, right to petition, or right. of association,
2 that party may fila a motion to disrnil>S the legal action.
3 (b) A motion to dismiss a legal action under this section
4 must be filed not later than the 60th day after the date of service
5 of the legal act.ion. The court may extend the time to file a mot ion
6 under this El.ection on a showing of good cause.
7 (c) Except as provided by Section 27.006(b), on the filing
B of a motion under this section, all discover¥ in the legal action is
9 suspended until the court has ruled on the motion to dismi'ss.
10 Sec~ 27.004, HEARING. A hearing on a motion under Section
11 27.003 must be set not later than the 30th day after the date of
12 serVice of th~ motion unless the docket conditions of the court
13 reguire a later hearing.
14 Sec. 27.005. RULING. (a! The court must rule on a motion
15 under Section·27.003 not later than the 30th day following the date
16 of the hearing on the motion,
17 (b) Except as provided by Subsection (c), on the motion of a
18 party under Section 27,003, a court shall dismiss a legal action
19 against the moving party if the moving party shows by a
20 preponderance of the evidence that the legal action ls based on,
21 relates to, or is in response to the party's exercise of:
22 ( l) the right of free speech 1
23 ( 2') the r iqht to petition 1 or
24 ( 3) the right of association.
2!:1 (c) The court may not dismiss a legal action under this
26 section if the party bringing the legal action establishes by clear
27 and specific evidence a prima.facie case for each essential element
5
H.B. No. 2973
l of the claim in question.
2 Sec. 27.006, EVlDENCE. (a) In determining whether a legal
3 action should be dismissed under this chapter, the court shall
4 consider the pleadl.ngs and supporting and opposing affidavits
5
(b)
.
stating the facts on which the liabilit:y or defense is based •
On a motion by a party or on the court's own motion and
7 on a showing of good cause, the court may allow specified and
B limited discove.ry .re leyant to the motion.
9 Sec. 27.007. ADDITIONAL FINDINGS. (a) At the ·request of a
10 party making a motion under section 27.003, the court shall issue
ll findings regarding whether the legal action was brought to deter or
12 prevent the moving party from exercising constitutional rights and
13 is brought for an improper purpose,. including to harass or to cause
14 unnecessary delay or to increase the cost of litigation.
15 (b) The court must issue findings under Subsection (a) not
16 later than the 30th day after the date a request under that
17 subsectionismade,
18 Sec. 27,008. APPEAL. (a) If a court does not rule on a
19 motion to dismiss under Section 27.003 in the time prescribed bY
20 Section 27.005, the motion is considered to have been denied by
21 operation of law and the moving party may appeal.
22 !b) An appellate court shall expedite an appeal or other
23 writ, whether interlocutory or not, from a trial court order on a
24 motion to dismiss a legal action undet Section 27.003 or. from a
25 trial court's failure to rule on that motion in the time pzescribed
26 bySection27.00S.
27 (c) An appeal or other writ under 'this section must be filed
H.B. No. 2973
l on or before the 60th day after the date the trial court's order is
2 signed or the time prescribed by Section 27 .005 expires, as
3 applicable.
4 Sec. 27.009. DAMAGES ANO COSTS. (a) If the court orders
5 ·dismissal of a legal action under this chapter, the court shall
6 award to the moving party:
7 (1) court costs, reas?nable attorney's fees, and other
8 expenses incurred in defending against the legal action as iustice
9 and equity may require 1 and
lO (2) Ranctjons against the party who brought the legal
11 action as the court determines sufficient to deter the pa:rty who
12 brought the legal action from bringing similar actions described in
13 this chapter.
14 (bl If the court finds that a motion to dismiss filed under
15 this chapter is frivolous or solely intended to delay, the court may
16 award court costs and reasonable attorney's fees to the responding
17 E.!llL..
18 sec. 27.010, EXEMPTIONS, (a) This chapter does not apply
19 to an enforceme'nt action that is brought in the name of this state
20 or a political subdivision of this i;;tate by the attorney general, a
21 district attorney, a criminal district attorney, or a county
22 attorney.
23 (bl This chapter does not apply to a legal action brought
24 against a person primarily engaged in the business of selling or
25 leasing goods or services, if the statement or conduct arises out of
26 the sale or lease of goods, sexvices, ox an insurance product or a
27 commercial transaction in which the intended audience is an actual
7
H.B. No. 2973
l or potential buyer or customer,
2 (c) This chapter does not apply to a legal action seeking
3 recovery for bodily injury, wrongful death, or survival or to·
4 statements made r eqarding that legal act ion.
5 Sec, 27.011, CONSTRUCTION. (a) This chapter does not
6 abrogate or leasen any other defense, .remedy, immunity, or
7 privilege available under other constitutional, statutory, case,
8 or common law or rule provisions.
9 (b) This chapter shall be construed liberally to effectuate
10 its purpose and intent fully.
ll SECTION J. The change in law made by this Act applies only
12 to a legal action filed on or after the effective date of this Act,
13 A legal action filed before the effective date of this Act is
14 governed by the law in effect immediately before that dat:e, and that
15 law is continued in effect fot that purpose.
16 SECTION 4. This Act takes effect illlJ'l\ediately if it receives
17 a vote of two-thirds o! all the members elected to each house, as
18 provided by Section 39, Article III, Texas constitution. I! this
19 Act does not receive the vote necessaxy for inunediate effect, this
20 Act takes effect Septembel' 1, 2011.
8
H.B. No. 2973
President of the Senate
I ce:rtify that H.B. No. 2973 was passed by the House on May 4,
2011, by the following vote: Yeas 142, Nays O, 2 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 2973 on Hay 21, 2011, by the following vote: Yeas 141, Nays o,
2 present, not voting.
I certify that H.B. No. 2973 was passed by the Senate, with
amendments, on May 18, 2011, by the following ~ote1 Yeas 31, Nays
o. .. '
APPROVED1 17JvtJ 'I/
Date
FILED IN THE OFFICE. OF THE
SEVIJ~~OF STATE
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