ACCEPTED 01-15-00011-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 2/17/2015 11:31:40 AM CHRISTOPHER PRINE CLERK
NO. 01-15-00011-CV *** IN THE COURT OF APPEALS FILED IN 1st COURT OF APPEALS FIRST COURT OF APPEALS DISTRICT HOUSTON, TEXAS HOUSTON, TEXAS 2/17/2015 11:31:40 AM *** CHRISTOPHER A. PRINE BOB DEUELL, Clerk Appellant,
v.
TEXAS RIGHT TO LIFE COMMITTEE, INC., Appellee __________________________________________________________________
On Appeal from the 152nd Judicial District Court Of Harris County, Texas Trial Court Cause No. 2014-32179 Honorable Robert Schaffer, Presiding Judge __________________________________________________________________
APPELLANT’S BRIEF __________________________________________________________________
DENTON NAVARRO ROCHA BERNAL HYDE & ZECH, P.C. 2500 W. William Cannon Drive, Suite 609 Austin, Texas 78745-5292 (512) 279-6431 (512) 279-6438 (Facsimile) George E. Hyde State Bar No. 45006157 Scott M. Tschirhart State Bar No. 24013655 ATTORNEYS FOR APPELLANT
i IDENTITY OF PARTIES AND COUNSEL
Appellant: BOB DEUELL
Appellant’s Counsel: George E. Hyde State Bar No. 45006157 Scott M. Tschirhart State Bar No. 24013655 Denton Navarro Rocha Bernal Hyde & Zech, P.C. 2500 W. William Cannon Drive, Suite 609 Austin, Texas 78745-5292 (512) 279-6431 (512) 279-6438 (Facsimile) George E. Hyde Scott M. Tschirhart george.hyde@rampage-aus.com scott.tschirhart@rampage-aus.com
Appellee: TEXAS RIGHT TO LIFE COMMITTEE, INC.
Appellee Counsel: N. Terry Adams, Jr. State Bar No. 00874010 Joseph M. Nixon State Bar No. 15244800 Beirne, Maynard & Parsons, L.L.P. 1300 Post Oak Blvd., Suite 2500 Houston, Texas 77056 (713) 623-0887 (713) 960-1527 (Facsimile tadams@bmpllp.com jnixon@bmpllp.com
James E. “Trey” Trainor, III State Bar No. 24042052 Beirne, Maynard & Parsons, L.L.P. 401 W. 15th Street, Suit 845 Austin, Texas 78701 (512) 623-6700 (512) 623-6701 (Facsimile) ttrainor@bmpllp.com ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES .....................................................................................v
JURISDICTIONAL STATEMENT ..........................................................................1
STATEMENT OF THE CASE ..................................................................................1
ISSUES PRESENTED...............................................................................................3
1. Whether Appellee’s Motion to Dismiss should have been granted because the communications complained of related to Appellee’s exercise of his right to free speech. .....................................................................................................................3
2. Whether Appellee’s Motion to Dismiss should have been granted because Appellee established by a preponderance of the evidence a valid defense of judicial privilege. ....................................................................................................3
3. Whether Appellee’s Motion to Dismiss should have been granted because Appellee established by a preponderance of the evidence a valid defense of illegal contract.........................................................................................................3
STATEMENT OF FACTS ........................................................................................3
STANDARD OF APPELLATE REVIEW................................................................5
SUMMARY OF THE ARGUMENT ........................................................................5
ARGUMENTS AND AUTHORITIES .....................................................................6
Exercise of Free Speech ..........................................................................................6
Shift of Burden........................................................................................................8
iii Judicial Immunity .................................................................................................13
Illegal Contract......................................................................................................18
PRAYER ..................................................................................................................20
CERTIFICATE OF COMPLIANCE .......................................................................21
CERTIFICATE OF SERVICE ................................................................................22
iv TABLE OF AUTHORITIES Cases ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426 (Tex. 1997) ........................8, 9
Araiza v. Chapa, 319 S.W.2d 742 (Tex. App.—San Antonio 1958, writ ref’d n.r.e) ..................................................................................... 10, 18
Better Business Bureau of Metropolitan Houston, Inc. v. John Moore Serv., Inc., 441 S.W.3d 345 (Tex. App.—Houston [1st Dist] 2013, pet. denied) .....................5
Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994) .........................................................14
Crain v. Smith, 22 S.W.3d 58 (Tex. App.—Corpus Christi 2000, no pet.) .............15
Crain v. Unauthorized Practice of Law Comm., 11S.W.3d 328 (Tex. App.— Houston [1st Dist.] 1999, pet. denied) ............................................................ 14, 16
Dallas Ind. Sch. Dist. v. Finlan, 27 S.W.3d 220 (Tex. App.—Dallas 2000, pet. denied)..................................................................................................... 16, 17
Daystar Residential, Inc. v. Collmer, 176 S.W.3d 24 (Tex. App.—Houston [1st Dist] 2004, writ denied) ........................................................................................16
Flynn Bros. V. First Med. Assocs., 715 S.W.2d 782 (Tex. App.—Dallas 1986, writ refd. n.r.e.) .......................................................................................9, 18
GNG Gas Systems v. Dean, 921 S.W.2d 421 (Tex. App.—Amarillo 1996 writ denied) .................................................................................................... 10, 18
Griffin v. Rowden, 702 S.W.2d 692 (Tex. App.—Dallas 1985, writ ref’d n.r.e) ......................................................................................................16
Krishnan v. Law Offices of Preston Henrichson, P.C., 83 S.W.3d 295 (Tex. App.—Corpus Christi 2002, pet. denied) ...................................................15
v Laub v. Pesikoff, 979 S.W.2d 686 (Tex. App.—Houston [1st Dist.] 1998 pet. denied)............................................................................................................14
Lewis v. Davis, 199 S.W.2d 146 (Tex. 1947) ................................................... 10, 18
Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909 (Tex. 1942) ............................14
Russell v. Clark, 620 S.W.2d 865 (Tex. App-Dallas 1981, writ ref’d n.r.e.) ........................................................................................ 14, 15, 16
Watson v. Kaminski, 51 S.W.3d 825 (Tex.App--Houston [1st Dist] 2001, no pet) .........................................................................................................15
Statutes Chapter 27 of the Texas Civil Practice & Remedies Code............................. 1, 2, 20
Tex. Civ. Prac. & Rem. Code § 27.001(1).................................................................6
Tex Civ. Prac. & Rem. Code § 27.001(3)..............................................................5. 6
Tex. Civ. Prac. & Rem. Code § 27.005 .....................................................................5
Tex Civ. Prac. & Rem. Code § 27.005(1)..................................................................5
Tex Civ. Prac. & Rem. Code § 27.005(b)(1) .............................................................8
Tex. Civ. Prac. & Rem Code § 27.005(c) ........................................... 8, 9, 11, 12, 13
Tex. Civ. Prac. & Rem. Code § 27.005(d)........................................ 6, 13, 17, 18, 20
Tex. Civ. Prac. & Rem. Code § 27.008(a) .................................................................1
Tex Civ. Prac. & Rem. Code § 27.009 ................................................... 8, 13, 18, 20
Tex Civ. Prac. & Rem. Code § 27.009(1)................................................................20
vi Tex Civ. Prac. & Rem. Code § 27.009(2)................................................................20
Tex. Elec. Code § 255.001 ............................................................................ 4, 10, 19
Texas Advance Directives Act of 1999 .................................................................4, 7
Texas Citizens Participation Act...................................................................... passim
Texas Election Code ........................................................................................ passim
Other Authorities Senate Bill 303 .................................................................................................. 4, 5, 7
United States Constitution and Section 8, Article 1 of the Bill of Rights .................4
vii MAY IT PLEASE THE COURT:
NOW COMES APPELLANT, Bob Deuell (hereinafter “Appellant” and/or
“Deuell” and files this Appellant’s Brief in accordance with the Texas Rules of
Appellate Procedure (“TRAP”).
JURISDICTIONAL STATEMENT
This is an interlocutory appeal from the failure of the trial court to timely rule
on a motion to dismiss pursuant to Chapter 27 of the Texas Civil Practice &
Remedies Code, the Texas Citizens Participation Act. Specifically, Section
27.008(a) allows a moving party to appeal if a court does not timely rule on a motion
to dismiss.
STATEMENT OF THE CASE
Appellee, Texas Right to Life Committee, Inc. filed a tortious interference
lawsuit against Appellant, Bob Deuell who was a sitting state Senator. The lawsuit
arises out of a series of political attack ads that were run by Appellee and the letters
written by Appellant’s lawyer to the radio stations that were running the ads. These
letters complained of false and defamatory content and that the ads were illegal
because they did not contain the disclosures required by the Texas Election Code.
This is an appeal from a failure of the trial court to timely rule on a motion to dismiss
the lawsuit pursuant to the Texas Citizens Partition Act (“the TCPA”).
1 Procedurally, Appellee’s lawsuit was filed on June 5, 2014 [C.R. at 4-10]
however, Appellant was not served immediately. Appellant filed a timely Original
Answer on August 11, 2014. [C.R. at 15-17]. Defendant’s Motion to Dismiss was
filed on September 5, 2014. [C.R. at 18-72]. Appellant timely set the Motion to
Dismiss for hearing on September 26, 2014. [C.R. at 78-79]. Two days prior to the
hearing on Appellant’s Motion to Dismiss, Appellee filed a First Amended Petition
alleging a federal cause of action pursuant to 42 U.S.C. 1983. [C.R. at 86-95].
Appellant filed a Notice of Removal the next day. [C.R. at 105-110]. On October
15, 2014, Appellant filed Motions to Dismiss under Rule 12 and Chapter 27 of the
Texas Civil Practice & Remedies Code in federal court [C.R. at 225-281]. Before
the Court could rule on Appellant’s Motions to Dismiss, Appellee voluntarily
dismissed its federal cause of action and asked the federal court to remand the case
to the state trial court. [C.R. at 282-293].
On December 23, 2014, the federal court remanded the case back to the trial
court. [C.R. at 111-113, 373-375]. At that time, all of the time limits for ruling on
Appellant’s Motion to Dismiss had expired and Appellant filed a Notice of Appeal
to this Honorable Court. [C.R. at 378-383].
The trial court below was deprived of the opportunity to rule within the time
periods specified in the TCPA, but if the trial court had the opportunity to rule, it
should have dismissed the tortious interference claim for three reasons. First, the
2 trial court should have dismissed Appellee’s lawsuit because the communications
complained of were based on, related to and in response to Appellant’s exercise of
the right of free speech. Second, the trial court should have dismissed Appellee’s
lawsuit because Appellant established the affirmative defense, by a preponderance
of evidence, that the communications complained of were privileged under the
judicial privilege. And finally the trial court should have dismissed Appellee’s
lawsuit because Appellant established the affirmative defense, by a preponderance
of evidence, that the communications complained of were privileged because the
contract that was allegedly interfered with was for an illegal purpose.
ISSUES PRESENTED
1. Whether Appellee’s Motion to Dismiss should have been granted because the communications complained of related to Appellee’s exercise of his right to free speech.
2. Whether Appellee’s Motion to Dismiss should have been granted because Appellee established by a preponderance of the evidence a valid defense of judicial privilege.
3. Whether Appellee’s Motion to Dismiss should have been granted because Appellee established by a preponderance of the evidence a valid defense of illegal contract.
STATEMENT OF FACTS
Appellee’s lawsuit alleges only one cause of action, that being that Appellant
tortuously interfered with Plaintiff’s contracts to run certain radio ads with Cumulus
Media and Salem Communications. [C.R. at 4-7, 282-289].
3 The ads in question were aired during the leadup to the Texas Republican
Primary runoff election held on May 27, 2014. [C.R. at 5-6, 30-32, 284-285] The
ads were political ads that Appellant believes misrepresented the purpose and effect
of certain legislation sponsored by Appellant as a State Senator for the State of
Texas. That bill was Senate Bill 303 which was designed to add more protection to
human life than the existing Texas Advance Directives Act of 1999. The ads
contained what Appellant believes to be false information about Senate Bill 303 and
false and defamatory information regarding Appellant. [C.R. at 33-70]
Appellee’s ads also violated the Texas Election Code in that they did not contain
the disclosures required by Texas Election Code 255.001. [C.R. at 33-70]
In an exercise of Appellee’s free speech rights under the First Amendment of
the United States Constitution and Section 8, Article 1 of the Bill of Rights contained
in the Texas Constitution, Appellant’s lawyers, acting on his behalf, wrote letters to
the broadcasters explaining in detail why the ads in question contained false and
defamatory information and did not contain the proper disclosures required by Texas
Election Code 255.001. [C.R. at 33-70, 71-72] These letters also threatened legal
action if the ads were not edited to omit the defamatory content and to include the
disclosures required by the Texas Election Code. [C.R. at 33-70, 71-72].
4 STANDARD OF APPELLATE REVIEW
In order to obtain a dismissal under the TCPA, a defendant must show ‘by a
preponderance of 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.” Tex. Civ. Prac. & Rem. Code § 27.005. This determination
is reviewed de novo as an application of law to the facts. See Better Business Bureau
of Metropolitan Houston, Inc. v. John Moore Serv., Inc., 441 S.W.3d 345, 353 (Tex.
App.—Houston [1st Dist] 2013, pet. denied).
SUMMARY OF THE ARGUMENT
The TCPA defines “the exercise of the right of free speech” as “a
communication made in connection with a matter of public concern.” Tex Civ. Prac.
& Rem. Code § 27.001(3). A sitting State Senator commenting on legislation he
sponsored in the Texas Senate is pure political speech and exactly the kind of free
speech that the TCPA was designed to protect. Such comments were about a matter
of public concern (the election contest and the intent and effect of Senate Bill 303)
as defined in Texas Civil Practice & Remedies Code § 27.001(3). The trial court
should have dismissed Appellee’s lawsuit because Appellant proved by a
preponderance of the evidence that Appellee’s lawsuit was based on Appellant’s
exercise of his right of free speech. See Texas Civil Practice & Remedies Code §
27.005(1). If Appellant met his burden, then the burden shifts to Appellee to
5 establish, by clear and specific evidence, a prima facie case for each element of the
claim in question.
Regardless of whether Appellee was able to establish a prima facie case for
each element of its tortious interference claim, the TCPA requires that the Court
dismiss a Appellee’s legal action against Appellant because Appellant established
by a preponderance of the evidence each essential element of the valid defense of
judicial immunity. Tex. Civ. Prac. & Rem. Code § 27.005(d)
Regardless of whether Appellee was able to establish a prima facie case for
each element of its tortious interference claim, the TCPA requires that the Court
dismiss an Appellee’s legal action against Appellant because Appellant established
by a preponderance of the evidence each essential element of the valid defense of
illegal contract. Tex. Civ. Prac. & Rem. Code § 27.005(d)
ARGUMENTS AND AUTHORITIES
Exercise of Free Speech
“Exercise of the right of free speech” means a communication made in connection with a matter of public concern.
Tex. Civ. Prac. & Rem. Code § 27.001(3)
“Communication” includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.
Tex. Civ. Prac. & Rem. Code § 27.001(1)
6 Appellant hired an attorney to send letters to Cumulus Media and Salem
Communications in order to complain about certain political attack ads that
misrepresented the purpose and effect of certain legislation sponsored by Appellant
as a State Senator for the State of Texas. [C.R. at 30-32]. That bill was Senate Bill
303 which was designed to add more protection to human life than the existing Texas
Advance Directives Act of 1999. The ads in question were aired during the leadup
to the Texas Republican Primary runoff election held on May 27, 2014. The ads
contained false information about Senate Bill 303 and false and defamatory
information regarding Appellant.
Appellant’s attorney wrote a series of letters to Cumulus Media and Salem
Communications demanding that they cease and desist in running the false and
defamatory ads. [C.R. at 33-70 and 71-72]. A sitting State Senator commenting on
a matter of public concern, in this case commenting on political ads that contained
false and defamatory information related to the Senator and legislation that he
sponsored in the Texas Senate, is pure political speech. This is exactly the kind of
speech that the TCPA is designed to protect. Appellee’s lawsuit is designed
specifically to discourage candidates and office holders from opposing Appellee in
any way or even to question the legality of their ads. As the Affidavit of Scott M.
Tschirhart shows, the scripts were changed to delete certain defamatory and false
7 information and modified to include the language required by the Texas Election
Code. [C.R. at 71-72].
Appellant has established, based on a preponderance of the evidence, that the
communications complained of involve the exercise of the right of free speech as
required by Texas Civil Practice & Remedies Code §27.005(b)(1). Therefore the
Court should dismiss Appellee’s lawsuit. In connection with the dismissal, the Court
should award attorneys’ fees and costs to Appellant as set forth in Texas Civil
Practice & Remedies Code § 27.009 or remand the case back to the trial court to
make a determination of the proper measure of attorneys’ fees and costs to be
awarded to Appellant.
Shift of Burden
Since Appellant has established that the communications complained of
involve the exercise of the right of free speech, the burden shifts to Appellee to
establish, by clear and specific evidence, all of the elements of a cause of action for
tortious interference with contact. Tex. Civ. Prac. & Rem Code §27.005(c).
In order to establish a cause of action for tortious interference, a plaintiff must
prove (1) that a contract subject to interference exists; (2) that the defendant
committed a willful and intentional act of interference with the contract; (3) that the
plaintiff sustained actual damages or loss. See ACS Investors, Inc. v. McLaughlin,
943 S.W.2d 426, 430 (Tex. 1997). In order to avoid dismissal pursuant to the TCPA,
8 a plaintiff must establish each of these elements by clear and specific evidence. Tex.
Civ. Prac. & Rem Code § 27.005(c). The only evidence submitted by Appellee in
the present case is the Affidavit of James J. Graham. [C.R. at 101-104].
Appellee fails to establish the first element, that a contract subject to
interference exists, because the Affidavit of James J. Graham is conclusory and does
not reference the terms of any specific contract(s). There simply is no clear and
specific evidence that the contract(s) exist. Because Appellee failed to attach copies
of the alleged contracts, there is no way to determine that the contracts are not subject
to interference. See ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 431(Tex.
1997)(finding that the express terms of the contract in question showed that it was
not subject to tortious interference allegations, and therefore the defendant could not
have interfered as a matter of law.). Absent the express language of the alleged
contracts, there is no clear and specific evidence that the alleged contracts are not
subject to interference.
Additionally, Appellee fails to establish the first element, that a contract
subject to interference exists, because the Affidavit of James J. Graham does not
address the illegality of the alleged contracts.
A defendant cannot be held liable for tortious interference with a contract that
is unenforceable because it is illegal. See Flynn Bros. V. First Med. Assocs., 715
S.W.2d 782, 785 (Tex. App.—Dallas 1986, writ refd. n.r.e.). A contract is illegal if
9 the contract or its performance will result in a willful violation of a constitution,
statute or ordinance. GNG Gas Systems v. Dean, 921 S.W.2d 421, 427 (Tex. App.—
Amarillo 1996 writ denied); Araiza v. Chapa, 319 S.W.2d 742, 743 (Tex. App.—
San Antonio 1958, writ ref’d n.r.e). “A contract to do a thing which cannot be
performed without a violation of the law is void.” Lewis v. Davis, 199 S.W.2d 146,
148-49 (Tex. 1947).
In this case, the contracts called for the radio stations to run political
advertisements that violated Texas Election Code 255.001. Texas Election Code
255.001 prohibits a person—including a corporate entity—from broadcasting
political advertising containing express advocacy that does not indicate in the
advertising the following: (1) that it is political advertising; and (2) the full name of
the person who paid for the political advertising. These advertisements ended with
“Proudly paid for by Texas Right to Life.” [C.R. at 30-32]. The scripts of the
advertisements do not contain an acknowledgement that they are, in fact, “political
advertising.” [C.R. at 30-32]. Nor do they contain the full name of the person who
paid for the advertising. [C.R. at 30-32]. Therefore, the alleged contracts and the
performance thereof, would have resulted in a willful violation of a statute, the Texas
Election Code.
10 Because the Affidavit of James J. Graham does not address the illegality of
the alleged contracts, it does not provide the clear and specific evidence required to
avoid dismissal. Tex. Civ. Prac. & Rem Code § 27.005(c).
The Affidavit of James J. Graham likewise fails to provide clear and specific
evidence with regard to the second and third elements as well.
With regard to the required element that the defendant committed a willful
and intentional act of interference with the contract, the Affidavit only refers to a
hearsay statement:
On or about May 14, 2014, Texas Right to Life Committee, Inc., received notice from Cumulus Media and Salem Communications that agents of Mr. Deuell had contacted them and that they were suspending the airing of our commercials based upon the legal threats made by Mr. Deuell.
[C.R. at 102]. This allegation is not only hearsay, but it is not clear and specific
about what individual from either Cumulus Media or Salem Communications sent
the notice. It is not clear and specific about what the form of the notice was. It is
not clear and specific about what individual employee or agent of Texas Right to
Life Committee, Inc. received the notice. It is not specific as to the contents of the
notice. It is not even specific as to the nature of the alleged tortious act. The Affidavit
of James J. Graham does not provide the clear and specific evidence necessary to
prove that Appellant committed a willful and intentional act of interference with any
11 specific contract and it does not provide the clear and specific evidence required to
avoid dismissal. Tex. Civ. Prac. & Rem Code § 27.005(c).
Likewise, the Affidavit of James J. Graham fails to provide clear and specific
evidence with regard to the required element that the plaintiff sustained actual
damages or loss. The Affidavit merely contains a conclusory statement that:
Recognizing that Mr. Deuell’s interference had disrupted the timing and effectiveness of the radio advertisements originally contemplated by Texas Right to Life Committee, Inc., the organization recognized that it needed to take remedial measures to make up for the lost advertising time so it contracted with CBS Radio Texas for additional airtime in the Dallas/Ft Worth media market for the new radio advertisement. Texas Right to Life Committee, Inc., paid approximately $15,037 for the placement and airing of the new radio advertisements with CBS Radio Texas.
[C.R. at 103]. This statement does not provide clear and specific evidence as to how
many times the existing ads did not run. The statement does not provide clear and
specific evidence of the content of the replacement ads. The statement does not
provide clear and specific evidence of the number of times the ads on CBS Radio
Texas were run. The statement does not provide clear and specific evidence that the
ads were targeted in any way to the same audience or time spots that the Cumulus
Media or Salem Communications ads would have reached, in fact, because the ads
were run on different stations, it would be logical to conclude that these ads were
targeted at a different audience.
12 Therefore, the Affidavit of James J. Graham does not provide the clear and
specific evidence necessary to prove that Appellee sustained any actual damages
required to avoid dismissal. Tex. Civ. Prac. & Rem Code § 27.005(c).
Because Appellee cannot carry the burden of showing, by clear and specific
evidence, every element of its tortious interference claim, the Court must dismiss
Appellee’s lawsuit. In connection with the dismissal, the Court should award
attorneys’ fees and costs to Appellant as set forth in Texas Civil Practice & Remedies
Code § 27.009 or remand the case back to the trial court to make a determination of
the proper measure of attorneys’ fees and costs to be awarded to Appellant.
Judicial Privilege
Even if the Appellee could establish, by clear and specific evidence, every
element of its tortious interference claim (and it cannot do so), the Court must
dismiss Appellee’s lawsuit if Appellant establishes, by a preponderance of the
evidence, each essential element of a valid defense to Appellee’s tortious
interference claim. Tex. Civ. Prac. & Rem. Code §27.005(d).
The Texas Supreme Court described the judicial privilege in this manner:
“Any communication, oral or written, uttered or published in the due course of a
judicial proceeding is absolutely privileged and cannot constitute the basis of a civil
action in damages for slander or libel. The falsity of the statement or the malice of
the utterer is immaterial, and the rule of nonliability prevails even though the
13 statement was not relevant, pertinent and material to the issues involved in the case.”
Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942). The Court
later expanded the scope of the privilege beyond slander and libel. See Bird v.
W.C.W., 868 S.W.2d 767, 771-72 (Tex. 1994) (extending the absolute privilege to
pre-trial proceedings and statements defeating the plaintiff’s negligence claim where
plaintiff’s damages were basically defamation damages.). “Although most cases
addressing the judicial communications privilege involve claims of libel or slander,
Texas courts have consistently applied the privilege to claims arising out of
communications made in the course of judicial proceedings, regardless of the label
placed on the claim.” Laub v. Pesikoff, 979 S.W.2d 686, 690 (Tex. App.—Houston
[1st Dist.] 1998 pet. denied). The judicial immunity recognized in Bird is not limited
only to claims styled as defamation claims, but instead extends to “claims arising
out of communications made in the course of judicial proceedings, regardless of the
label placed on the claim.” Crain v. Unauthorized Practice of Law Comm.,
11S.W.3d 328, 335 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).
It is well established under Texas law that letters written by attorneys in
anticipation of litigation are absolutely privileged. See Russell v. Clark, 620 S.W.2d
865, 869 (Tex. App-Dallas 1981, writ ref’d n.r.e.) “An attorney at law is absolutely
privileged to publish defamatory matter concerning another in communications
preliminary to a proposed judicial proceeding, or in the institution of, or during
14 the course and as a part of, a judicial proceeding in which he participates as counsel,
if it has some relation to the proceeding.” Id.(emphasis added); see also Watson v.
Kaminski, 51 S.W.3d 825, 827-28 (Tex. App.—Houston [1st Dist] 2001, no
pet)(holding that an attorney’s letter alleging that a prisoner was trying to extort
money from appellants and that he was likely to be sued if he attempted to do so
came within the judicial privilege even though no litigation was pending.); Krishnan
v. Law Offices of Preston Henrichson, P.C., 83 S.W.3d 295, 301-03 (Tex. App.—
Corpus Christi 2002, pet. denied)(finding that an attorney’s letters sent to a doctor
to give notice of a negligence claim [under 4590i] and to request records, even
though suit was never actually filed, were made in contemplation of judicial
proceeding and were therefore privileged); Crain v. Smith, 22 S.W.3d 58, 62-63
(Tex. App.—Corpus Christi 2000, no pet.). Even if the potential litigants later
decide not to file suit, “[t]here is no requirement that a person actually get sued for
the privilege to apply; only that the statements are related to a contemplated judicial
proceeding.” Krishnan, 83 S.W.3d at 302-03.
Whether a lawyer’s out-of-court statement is related to a proposed or existing judicial proceeding is a question of law to be determined by the court. When deciding the issue, “the court must consider the entire communication in its context, and must extend the privilege to any statement that bears some relation to an existing or proposed judicial proceeding.” All doubt should be resolved in favor of the relevancy of the statement.
15 Dallas Ind. Sch. Dist. v. Finlan, 27 S.W.3d 220, 239 (Tex. App.—Dallas 2000, pet.
denied)(quoting Russell.); see also Daystar Residential, Inc. v. Collmer, 176 S.W.3d
24, 28 (Tex. App.—Houston [1st Dist] 2004, writ denied)(finding that statements
made by a lawyer to a newspaper in contemplation of and preliminary to filing suit
were absolutely privileged).
The absolute judicial privilege applies to tortious interference with contract
claims. See Griffin v. Rowden, 702 S.W.2d 692, 695 (Tex. App.—Dallas 1985, writ
ref’d n.r.e)(holding that the filing of a lis pendens was absolutely privileged in an
action for tortious interference with contract.); Crain v. Unauthorized Practice of
Law Committee, 11 S.W.3d 328, 335 (Tex. App.—Houston [1st Dist.], 1999 pet
denied)(concluding that prior testimony by a witness was subject to the affirmative
defense of absolute immunity to a claim of tortious interference).
In the present case, the communications complained of were demand letters
sent to radio stations. [C.R. at 33-70]. Each of these letters was sent by Scott
Tschirhart, an attorney representing Senator Deuell. [C.R. at 33-70 and 71-72].
Each of these letters specifically warn of anticipated litigation. The letters contain
statements like:
If your company does not immediately cease the broadcast of the illegal advertisements purchased by the Houston-based Texas Right to Life Committee, Inc., Senator Deuell will exercise his right to injunctive relief in court to prevent the continuing harm.
16 [C.R. at 46, 49]. These letters request if the recipient will accept service of process
or whether suit must be served on their registered agents. [C.R. at 46, -49]. These
letters contain notices of litigation hold and preservation demands, including:
LITIGATION HOLD & PRESERVATION DEMAND
You are hereby on notice and should have reason to believe that litigation may result from the claims described above. . . pursuant to state and federal law, you are now under a legal duty to preserve all evidence, whether printed or electronic that might become relevant in this matter. . .
[C.R. at 35, 41]. Finally, these letters include admonitions for the recipients to
contact their legal counsel immediately. [C.R. at 36, 42].
Since the communications complained of are clearly demand letters sent from
an attorney in anticipation of litigation, “’the court must consider the entire
communication in its context, and must extend the privilege to any statement that
bears some relation to an existing or proposed judicial proceeding.’ All doubt should
be resolved in favor of the relevancy of the statement.” Dallas Ind. Sch. Dist. v.
Finlan, 27 S.W.3d 220, 239 (Tex. App.—Dallas 2000, pet. denied).
Appellee has offered no controverting evidence, and Appellant has
established, by a preponderance of the evidence, each essential element of a valid
defense of judicial privilege to Appellee’s tortious interference claim. Tex. Civ.
Prac. & Rem. Code §27.005(d).
17 The Court must dismiss Appellee’s lawsuit. In connection with the dismissal,
the Court should award attorneys’ fees and costs to Appellant as set forth in Texas
Civil Practice & Remedies Code § 27.009 or remand the case back to the trial court
to make a determination of the proper measure of attorneys’ fees and costs to be
awarded to Appellant.
Illegal Contract
Even if the Appellee could establish, by clear and specific evidence, every
element of its tortious interference claim (and it cannot do so), the Court must
dismiss Appellee’s lawsuit if Appellant establishes, by a preponderance of the
evidence, each essential element of a valid defense to Appellee’s tortious
interference claim. Tex. Civ. Prac. & Rem. Code §27.005(d).
A defendant cannot be held liable for tortious interference with a contract that
is unenforceable because it is illegal. See Flynn Bros. V. First Med. Assocs., 715
S.W.2d 782, 785 (Tex. App.—Dallas 1986, writ refd. n.r.e.). A contract is illegal if
the contract or its performance will result in a willful violation of a constitution,
statute or ordinance. GNG Gas Systems v. Dean, 921 S.W.2d 421, 427 (Tex. App.—
Amarillo 1996 writ denied); Araiza v. Chapa, 319 S.W.2d 742, 743 (Tex. App.—
San Antonio 1958, writ ref’d n.r.e). “A contract to do a thing which cannot be
performed without a violation of the law is void.” Lewis v. Davis, 199 S.W.2d 146,
148-49 (Tex. 1947).
18 In this case, the contracts called for the radio stations to run political
advertisements that violated Texas Election Code 255.001. Texas Election Code
255.001 prohibits a person—including a corporate entity—from broadcasting
political advertising containing express advocacy that does not indicate in the
advertising the following: (1) that it is political advertising; and (2) the full name of
the person who paid for the political advertising. These advertisements ended with
“Proudly paid for by Texas Right to Life.” [C.R. at 30-32]. The scripts of the
advertisements do not contain an acknowledgement that they are, in fact, “political
advertising.” [C.R. at 30-32]. Therefore, the alleged contracts and the performance
thereof, would have resulted in a willful violation of a statute, the Texas Election
Code. After the letters dated May 19, 2014 (which specifically complained about
the violation of the Texas Election Code) were sent, the scripts of the advertisements
were changed to include language that complied with the Texas Election Code and
no further letters were sent to the radio stations. [C.R. at 71-72].
Appellee has produced no controverting evidence.
Because the contracts and the performance thereof, would have resulted in a
willful violation of a statute, namely the Texas Election Code, the Court must find
that Appellant has established, by a preponderance of the evidence, that the contracts
were illegal and Appellant has established the affirmative defense of illegality.
Therefore, the Court must dismiss Appellee’s lawsuit pursuant to Texas Civil
19 Practice & Remedies Code §27.005(d). In connection with the dismissal, the Court
should award attorneys’ fees and costs to Appellant as set forth in Texas Civil
Practice & Remedies Code § 27.009 or remand the case back to the trial court to
make a determination of the proper measure of attorneys’ fees and costs to be
awarded to Appellant.
PRAYER
WHEREFORE PREMISES CONSIDERED, Appellant Bob Deuell prays the
Court dismiss Appellee’s lawsuit pursuant to Appellant’s Motion to Dismiss
pursuant to Chapter 27 of the Texas Civil Practice & Remedies Code, and award
Appellant his appellate costs and remand the case to the trial court for a
determination of court costs, reasonable attorney’s fees, and other expenses incurred
in defending this legal action pursuant to Section 27.009(1) of the Texas Civil
Practice & Remedies Code as well as sanctions against Appellee that the trial court
may determine would be sufficient to deter Appellee from bringing similar actions
in the future pursuant to Section 27.009(2) of the Texas Civil Practice & Remedies
Code and for such further relief to which Appellant is justly entitled.
SIGNED on this the 17th day of February, 2015.
20 Respectfully submitted
DENTON NAVARRO ROCHA BERNAL HYDE & ZECH, P.C. 2500 W. William Cannon Drive, Suite 609 Austin, Texas 78745-5292 (512) 279-6431 (512) 279-6438 (Facsimile) george.hyde@rampage-aus.com scott.tschirhart@rampage-aus.com
By: /s/SCOTT M. TSCHIRHART George E. Hyde State Bar No. 45006157 Scott M. Tschirhart State Bar No. 24013655
ATTORNEYS FOR APPELLANT BOB DEUELL
CERTIFICATE OF COMPLIANCE
In compliance with Tex. R. App. P. 9.4(i)(3), this is to certify that the Appellant’s Brief contains 4,707 words, which does not include the caption, identity of parties and counsel, statement regarding oral arguments, table of contents, table of authorities, signature, proof of service, certificate of compliance and appendix.
/s/SCOTT M. TSCHIRHART George E. Hyde Scott M. Tschirhart
21 CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has been served upon the below named individuals as indicated, and according to the Texas Rules of Civil Procedure and/or via electronic notification on this the 17th day of February, 2015:
N. Terry Adams, Jr. via electronic notification Beirne, Maynard & Parsons, L.L.P. tadams@bmpllp.com 1300 Post Oak Blvd., Suite 2500 Houston, Texas 77056
Joseph M. Nixon via electronic notification Beirne, Maynard & Parsons, L.L.P. jnixon@bmpllp.com 1300 Post Oak Blvd., Suite 2500 Houston, Texas 77056
James E. “Trey” Trainor, III via electronic notification Beirne, Maynard & Parsons, L.L.P. ttrainor@bmpllp.com 401 W. 15th Street, Suit 845 Austin, Texas 78701
/s/SCOTT M. TSCHIRHART George E. Hyde Scott M. Tschirhart