Theaola Robinson v. KTRK Television, Inc.

Opinion

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

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

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

~ § HARRIS COUNTY, TEXAS P

NOTICE OF APPEAL

Pursuant to Texas Rule of Appellate Procedure 25.1, Thenoln Robinson, ~laintiff in the nbove-

styled and numbered action, files this notice of appeal to Fourteenth Court of Appeals. Plaintiff

desire to appeal from the judgment rendered against Plaintiff by the 2341h Judicial District Court

of Harris County, Texas on October 8, 2014.

Doted: October 28, 2014.

_ _Isl _ __ Theaola Robinson 5505 Jensen Drive Houston, Texas 77028 832-250-4444 benji 's@wt.net

FlILlED Chrfs Danlel District Clerk OCT 3 0 20V. Tho: ct'~o &> 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

---"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,

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

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

Please be advised the Court today DENIED Appellee's motion for rehearing in the above referenced cause.

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

Please be advised the Court today DENIED Appellee's motion for rehearing in the above referenced cause.

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

IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS

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

*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,

/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

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).

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

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

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.

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.

/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

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 ba

diversity grounds and the claim was for libel per se arising out of a broadcast that aired on KTRK on or

about September 15, 2010. KTRK Television, Inc. is the owner and operator of the television station

KTRK and is the only proper party to any claim that would be brought as a result of a broadcast that

aired on KTRK. 1

1 Plaintiff Robinson has been advised repeatedly as to why there is no jurisdiction over The Walt Disney Company and why it is not a proper party to any claim made against KTRK. The same rationale applies to the distant parent company, CC Texas 2

DL/2675529vl Case 4:10-cv-03498 Document 47 Filed in TXSD on 07/07/11 Page 3 of 9

2. As demonstrated by the voluminous correspondence between counsel in the Robinson v.

Disney suit and attached to the Affidavit of Laura Lee Prather (Exhibit B), jurisdiction over The \Valt

Disney Company (hereinafter "Disney") was not proper, and Plaintiff Robinson never effectuated

service against Disney. In short, and as advised by Disney to Plaintiff Robinson, Disney is an indirect,

remote parent corporation that is a nonresident to which Texas' long~arm statute does not extend.

3. Jn general, a foreign parent corporation is not subject to the jurisdiction of the forum state

merely because its subsidiary conducts business in that forum. See 3-D Elec. Co., Inc. v. Barnett Const.

Co., 706 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.

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.

/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

2 Case 4:10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 3 of 17

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

4 Case 4:10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 5 of 17

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 Case 4:10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 6 of 17

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 Case 4:10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 7 of 17

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

8 Case 4:10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 9 of 17

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 Case 4:10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 10 of 17

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 Case 4:10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 11of17

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

11 Case 4:10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 12 of 17

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

12 Case 4:10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 13 of 17

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

13 Case 4:10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 14 of 17

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 Case 4: 10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 15 of 17

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 Case 4: 10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 16 of 17

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 Case 4: 10-cv-03498 Document 61 Filed in TXSD on 03/28/12 Page 17 of 17

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 § :

FIRST AMENDED ORIGINAL PE~N

A. Discovery Control Plan 0 ~ ~ I. Plaintiff intends to conduct discovery unde~·I 3 of Ruk 190.2. Tex. R. Civ. P.

B. Parties 0 ~

"' .~ Plaintift: Theaola Robinson. a naturer... rson residing in !Iarris County. Texas. s~~; 3. Defendant. The Walt Disney Q@'ipuny is a corporution incorporated under the

laws of the State of Delaware a~~~ng its principal place of business in the State of ~ California and has entered a s~l appearance in this action.

4. Defendant CC T~~olding Co .• Inc.• is a corporation incorporated under 1he laws of Delaware un~Oing its principal place of husiness in the State of California and ~~ has entcre d a sp~~-appearancc ' h'ts action. mt . (~~ 5. Defen~. KTRK Television. Inc.. is a corporation incorporated under the laws of Michi'ga)~nd having its principal place of business in the State of Texas and has appeart:d and answered in this action.

RE CORO ER'S 1lEllOAAllD~M This lnsll\lmenl is~~ qual~Y al \he Ume of imaQlnU C. Venue & .Jurisdiction

6. Venue is proper in Harris County because all or substantiully all of the events or

omissions giving rise to the claims occurred in Harris County. At all relevant limes lo the

lawsuit, Plaintiff resided and worked in llarris County.

7. The Defendants have all submitted to the jurisdiction of this c:;:.£=7pursuant to

Chapter 73, Tex.Civ.Pruc. & Rem. Code or are otherwise generally p~I. The amount ~~~~ in controversy exceeds the minimum jurisdictional limits of the ~"":!,J.

D. Statement of Facts Q~ 8. The Walt Disney Company is the owner of a t~l~ion station and a network of ~ television stations and is a "broadcaster- as dcline~xus luw. 9. On August 8. 2010. Rick Schneider res~dcd in writing to the original overture

from Ron Rowell asking Schneider to b~involved in Bcnji"s Special Educational Academy. Schneider"s tir~t point in ~response to Rowell succinctly expresses the

bottom line situation •hen preva"rl' llenj i" s. the overarching and dcfi ning conlext iu

which all the subsequent dad~ng actions and devastating events have taken place. Schneider wrolc: ~~ If I understan~ correctly, the students and school arc doing well academically.0 ~

(Exhibit I). ~if;J ©> 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 ~

12. Mrs. Robinson is not and never has been a public figure.~~

13. This thirty years of work began in 1980 with Mrs.~son's creation of a day

cure academy for young special needs children. her ow ...~ung son being such u child. o~~'

having recently become disabled at age three on ~nt of an injury. forcing her to

abandon other career aspirations in order to c~~?. him. and her abilities. energy, and ~ love guiding her to care for other similar~cdy young children. As detailed herein.

thirty years of dedicated service and ~tivc achiewmcnt was demolished. and Mrs.

Robinson· s rcpulati on deli bcrate~~d. in a relative inslanl.

14. Mrs. Robinson began ~work in the heart of Houston's Fifth Ward. one of the

most blighted. impoverish@»~ighborhoods in 1louston. Texas. commonly known as a Q~ ..ghetto," a place wh~t:Jhost of societal ills roulinely conspire to blunt the aspirations of a majority of eve1 °(.',_uWmost physically and mentally able. it~r 15. To be~er endeavor in 1980. Mrs. Robinson caused to be incorporated a Texas not-for-p~~orporation, named Benji's Special Education Academy. ("Benji's'·). She

began Benji's by caring for her son and one other child al the Greater Love Missionary

Baptist Church at 6913 Jensen Drive. Almost immediately. she had attrncted twenty

children to her program. 16. 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

17. 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 cncourageme1_*the City of ~ Houston. Mayor Bob Lanier. and Councilman Ernt!sl McGowen. Ben.~cquircd a lease -~ from the City of Houston on another previously abandoned bui~ formerly known as

White's Appliance Store. located at 2903 Jensen Drive. ~ 18. During all these years. Be1~ji's newr charged t~~ and the school operated and

developed its facilities exclusively on gronts ~e City of Houston and Mrs.

Robinson's personal support. primarily frow1e proceeds of her late husband's

insurance. ~ ~ 19. In 1996. the White's Applianc~ilding was a boarded-up eyesore. which had

become what is commonly k n r s o ··crack house·· al the time Mrs. Robinson

undertook to renovate. and Be(~ to occupy. 5,000 square feet of the 30.000 square foot structure. (~ o~ 20. Also. bythis;~Q the State of Texas had recently adopted laws providing for the creation of pub~rter schools. and Mrs. Robinson determined to expond neqji's

successful prolm to occupy th~ entire 30.000 squarl! feet ol' the Whit~·s Building and to convert~~ into an open-enrollment public charter school. 21. On November 2. 1998. Benji's was granted a contract for an open-enrollment

chartl!r by the Texas State Board of Education.

22. Bel"\ii's is a "charter holder" as defined in Tex. Education Code~ 12.1012.

4 23. During the ensuing years. primarily beginning in 2008, Benji's became subject to

close monitoring of ull aspects or its operations. with particular emphasis on its special

education programs for disabled students, through appointment of TEA conservators.

primarily Dr. Shelly Swcdlaw and Dr. Don W. Hooper.

24. Additionally, Benji's tinancial management and budgets rccf'tbd ifi}~I detailed

scrutiny and oversight from both Dr. Hooper and TEA finance cxpcrt.~Robert "Mike" Seale. .# ~

25. Particularly in light of this intervention und ovc~ the objective financial

condition of the school. its impressive facilities and l~~1g tools (buildings. physical

education track. computers, educational laborato~~tics. unifonns. etc.) were at all times open and obvious to the TEA. ,, ~ '~ 26. During 2009 and 20 I 0. the presentO~r funds and proposed future budgets were reviewed and analyzed by the TE~d audited financial reporting detailing all expenditures and demonstrating t)l~~ablc investment made in facilities and equipment ~ and reflecting a solvent ope~n. with a net worth of over $I million. wen: timely submitted to and accepte~c TEA. No detail was too small to evade notice, and even

relatively minor pur~~Jt such as a musical instnnnent. i.

from the TE~~ thus further burdening Benji's financial operation.

27. P~nality conflicts developed in this process. were not satisfactorily resolved.

and culminated in TEA launching u personal vendetta aimed solely at Mrs. Robinson.

28. At the urging of TEA employee Ron Rowdl. Drs. Hooper and Swedlaw were

directed to make detailed reports concerning Mrs. Robinson personally and her

5 uncooperative and controlling behavior and uttitudc rather than on o~jective facts

concerning the educution and welfare of the students or the financial condition or

management of Benji"s.

29. 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, 2~ displacing ~!@ Mrs. Robinson from an active role ui:; i:;uperintendcnt. Mrs. RobinsoOwcvcr, was not ~ dischurged. and she continued to report to the school every d~~he fully cooperated

with the interim board and interim superintendent between~bcr 3rJ and September J3 • 111 effected changes in the signature cards at the bn~ and dealt with any and all ;~v questions and problems with the transition. and o~d changes in management and

operation, including a significantly reduced rolc~~alary for herself. None of this was ~ considered. Instead. as its first order ol'bu@s. the interim board voted to close Benji"s

on September 13. 2010. und gave noti~f the immcdiatt: closure to students, parents.

and staff the next day~ providin~i@)~f other schools in which to enroll the children but nothing for the displaced educ~ and staff. 30. Of particular signit~e ©~ to the instant action. even though the TEA had. as set

out ahove. completid»dctailed access lo. and knowledge ot: all of Benji"s finuncial

con d.. 1t1on. ·~.I anu expen d'rturcs. once t hc .mtcr1m operatl~T . board o J' managers too k· contro I

of Benji's s g hank accounts. the TEA had l\Jll control ol'. and access to. all

financial~s and thus complete and Cull knowledge or all payments made by Benji"s from the over $3 million in public funds received by Benji"s to provide public education

lo almost 500 children over the preceding year.

6 31. The proposition that $3 million in puhlic funds \Vas missing and had heen

pockt::ted by Mrs. Robinson formed no part ol' any open meeting held on Septemhcr 13.

20 I0. no part of any decision hy the interim board of managers. and was not reported hy

uny news organization on September 14. 20 I0.

32. On September 14. 2010. all the m~jor local news media. includi~ lelt!vision station owned by Ddendant. The Walt Disnt:y Company. reported lh~upt and sudden closurt: of the school and the peaceful defiance unfolding at Ben~~

33. On September 15. 2010. on the 4:30 PM nt:ws. Hou~l3C Channel 13. KTRK. in studio reporter Jlona Carson und field reporter Cyntl},i~neros aired a two and a hulf ~ minute segment on the situation at Benji"s. c~ifi said. "According to the State

millions in tux payer dollars cannot be accou~for." /\fter playing clips of a parent.

Shanika Thompson. and ol' Benji's spok~. Richard Johnson. Cisneros went on lo

say. "The state closure is based on a lac~' suflicienl Jinanciul records. meaning the state .,!fZD . docsn "t know where owr three .~lillt5n dollars of taxpayer money given last year has ~ been spent:· A transcript of~entirt! broadcast is attached hereto. (Exhibit 2). The video was later published~("s website. along with a printed article "Defiant leaders rcli.isc to close scho~Qnder Cynthia Cisneros byline. Cisneros wrote: '"for the stat1:. . . . ,:~?j}where ts. tI1e money." Th ey say 1111'II'ions ot' taxpayer doII urs arc the issue 1s SI~~

unaccounted ~... The state closure is bused on a luck of suflicient financial records.

meaningth)~te doesn't know where the more than $3 million of laxpayt:r money given last year has bet!n spent ... " (Exhibit 3).

34. The article generated 18 Facebook recommendations and 29 comments on

KTRK"s website. including:

7 4. We have been caught with our hand in the cookie jar. shine the activist bat signal und run out the race card. *** I 0.... I saw the television report of this story last night. and r am suprised Isic] 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 und truants. that no public school will accept them ....

11 .... poor management. ~ *** r@ 23. Think about the former TSU President and all the o~crookcd charter schools that have been the news lately. What dtWt!Y have in common'? .,~ *** ~ 26. IL is the money's fault. Those $$$$ stuck th~euds up and the people in charge decided they need them for th~

*** ~ 29. I don't understand why they are so~ about the school being closed up. If they had the proper paper~. could account for all that money and follow the rules like ewry ~1cr school then they wouldn't have this problem. ~ (Exhibit 3). ~U Q5 35. On September 15. 20 I0. My :~x Houston ran a similar story: however. it made 0%!! no mention that "millions of ~ayer dollars are unaccounted for"'. Yet. readers 0 obviously now aware of this~egation posted the following: ~~ Jasmine. I us11r«~ach at this school and this is BULL BULL ... RACE has absol~lel Mn JING to do with how misleading this woman Theola Robinson js . this school. TEA did the right thing ... and yes I am AfRIC~ ERJC/\N! This is not a ruce thing .. this woman really is a Lhit:f .. rD.~ ~ *** ~j~Thcola will never be uble to show where the money has gone she 1s~·~ok.

36. The Houston Chronicle also ran u story on September 1S. 2010, that made no

mention of "millions of taxpayer dollars are unaccounted for:· Yet. it had readers saying:

8 Gspeneer. Where did the $3.300.000.00 for last year go'? *** RBBR. Something lsil'j stinks. Let's get a PI to do an asset search on the "chief executive" and you'll !ind the missing money. *** babydolly. I wonder if Ms. Robinson made a hefty salary and paid herself lirst'? Where JS the money'! I can't blame the state for shutting it down. Sooner the better. *** ~~ RBBR .... Why didn't you find out what '"Chier F.xeeutiv~(@ficaola Robinson's annual compensation is'? Bet she's not going br~ Dollars to donuts she drives a new Mercedes and lives in an t'l;lmdy upscale neighborhood ... while Benji's swirls down the drain. ~~- *** ~ A-square ... Thcaola Robinson when~ is the remuiniiJ,t~~'? TEA should look into her & her crownies' bank accounts/pc~"flaf assets ..just follow the money and you'll lind lhc answer. 0 ~ ~ (Exhibit 5). Q/j;" 37. The story was repeated by DefendantJ~ that month, on September 25. :WIO. ~ when KTRK's Dave Ward and Gina Gast~~studio and kssica Willey reporting. aired ~ a nearly three minute segment on the s~ion at Benji's. The video was later published

on KTRK's website, along with~"ed article "Questions raised over charter school's finances." under Jessica Willc~yline. Willey wrote: ··Where is taxpayer money going

and how is a taxpayer-o~"\.ilding being uscd'! ... The Texas Education Agency suys it doesn't know how ueQs spcnl $3 million of taxpayer money. and a lease agreement :dh obtained by Eye~Wss News raises even new questions:· 1 (1--:xhibit 6).

38. The ale generated 11 comments on KTRK's website. including: ~ I ~Call and ask where the money went. rm sure Theola [sic] Robinson tell you.

2. Could it be in somebody's pockets'?

1 The "lease" was no lease but merely a bookkeeping entry lubded "rent in kind." fully accounted for and well known 10 the TEA. and specifically to Mr. Seale and Dr. Hooper. though revi~w of the Benji"s budgets and statements of financial activity. (Exhihit 7).

9 (Exhibit 7).

39. On September 22. 2010. Emi Johnson of the TEA recommended the continued

suspension of charter operations and funding. based not on the tinandal condition of the

school. not on $3 million being stolen. but on the civil disobedience led by Mrs.

Robinson following September I 3. 2010. of simply continuing to keep tl'l~hool open. 1@> 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 ~ ~

information or material described in the relevant rules. Q,f}j G. Conclusion & Prayer 0 ~ ~ WHEREFORE. premises considered. Pl •i ntiftQe$ds j udgmcnt:

1. For libel per se damages found bx ~ trier of fact without proof of special ~ damages: ~ '> 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

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.

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

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.

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.

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

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~

13. In providing t efense of this case, I assigned and supervised all work performed by Sedgwick LLP then Haynes and Boone, LLP. The majority of the work on this case has been perfo y me, with additional work being performed by my fellow partner Thomas Williams, Spe~ ounsel Catherine Robb, and Associate Attorney Alicia Calzada. Haynes and Boone al~ployed an experienced litigation paralegal, Lucy Netherton, to assist in organizing the e~us amount of evidence required to defend this case.

14. ~tandard rate is $475 per hour for my services; Mr. Williams' standard rate is $645 per ho , s. Robb's standard rate is $400 per hour; and Ms. Calzada's standard rate is $380 per hour. owever, Haynes and Boone, LLP has provided KTRK with a negotiated rate of $400 for myself; $495 for Mr. Williams; $295 for Ms. Robb; $225 for Ms. Calzada, and $120 for Ms. Netherton. In addition, after May 2013, an additional 1% fee discount was provided on the negotiated rates for the above attorneys. These rates are comparable to or lower than rates charged by attorneys with similar levels of experience at similar law firms in Harris County, Texas for highly specialized First Amendment work such as the work performed for KTRK in this case. It is also consistent with Defendant's and my opinion, based on my experience in this

3 A-308484_1 Supplemental Affidavit of Laura Prather In Support Of Award Of Attorneys' Fees, Costs, Expenses and Sanctions 3 of 20 case and other litigation, that the time spent on this matter was appl'Opriately allocated to various counsel and support staff involved so as to avoid unnecessary duplication of effort and expense.

15. Defendant's counsel has previously submitted invoices to the Court for fees and expenses through July 31, 2014 (billed on August 11, 2014). This Supplemental Affidavit hereby submits the fees and expenses from August l, 2014 through August 31, 2014 (billed on September 11, 2014) in addition to the Work-in-Progress (WIP) for September (not yet billed) and 8 hours of preparation for the hearing on Defendants' Motion for Attorney Fees for both Ms. Prather and for Ms. Robb, and projected travel expenses to and from the hearil:e fees billed by Defendant's counsel are not contingent on the outcome of this litigation are fixed fees. Attached hereto as Exhibit A-1 and incorporated herein by reference are~ edacted itemized statement of services rendered by Defendant's counsel on behalf of Def~~{ and the charge for such services for August 1, 2014 through the present. These record$.~ kept by Haynes and Boone, LLP in the regular course of business, and it was the re~ course of business of Haynes and Boone, LLP for an employee or representative wit~nal knowledge of the act, event or condition recorded, to make the records or to transmit i o ation thereof to be included in such records; and the records were made at or near the ti f the act, event, or condition recorded or reasonably soon thereafter. The records attach' ereto are exact duplicates of the originals with the exceptions of redactions of billing refer s that detail Defendant's counsel's strategy and contain attorney-client privilege, and Tm r ID and banking account numbers required to be redacted in accordance with the filing i:u~ <>~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

6 A-308484_1 Supplemental Affidavit of Laura Prather In Support Of Award Of Attorneys' Fees, Costs, Expenses and Sanctions 6 of 20 In addition to Plaintiff's copious filings, Plaintiff continuously misrepresents in her Certificates of Service that she is serving pleadings and documents upon Defendants "by US. Mail certified mail, via email, and facsimile." However, Plaintiff continuously mis-states her service to the Courts and to the parties and sends documents only via e-mail. Plaintiffs emailed documents are usually in several forms, are not the same documents which have been filed with the court, and/or contain different exhibits/appendices. 6 Furthermore, Plaintiffs filings with the Court of Appeals and the Supreme Court contain improper attempts at evidence and affidavits which are not allowable under the rules. The economic impact of the Plaintiffs conduct in seeking to deny Defendant their I st Amendment rights as affirmed by the 151 C~of Appeals is chilling. In light of the foregoing, it is clear that without extensive sanction~~~tiff's activities will not be curtailed. a 25. If Plaintiff makes an unsuccessful appeal from this ~suit to the Court of Appeals, I am of the opinion that $25,000 would be a reasonable f~r services performed by Haynes and Boone, LLP on appeal. o{J# 26. Further, I am of the opinion that $25,000 wo~9 a reasonable fee for services performed by Haynes and Boone, LLP on appeal of this ca~ the Texas Supreme Court. ~ 27. Haynes and Boone, LLP's rates are si~ or lower than rates charged by Jaw firms similar to Haynes and Boone, LLP, for work su~s the work we performed in this case. We have experience in defending First Amendm.en!_~ms and SLAPP suits, and that experience was important in defending this lawsuit, which ~sed on the Defendant's right of free speech on a matter of public concern. We further lfa~ unique experience with the Texas Citizens' Participation Act and its legislative history, ~6fi was also important in defending this lawsuit. © 28. My opinions expressed he®n are based upon all information received to date and are based upon the work performi!e~he date of this affidavit. My representation of KTRK will continue through the final res of this case, any post-hearing briefing, and any appeals. Therefore, the amounts set forth i is affidavit will change. I reserve the right to supplement this affidavit and its conclusio~bject to any additional information made available to me.

FURTHER AFFIANT S~ NOT. DATED this~? th day ~eptember, 2014. o~@'v

~

6 Furthennore, Plaintiffs emails containing her partial filings often contain her own personal titles; her "Writ of Mandamus" as emailed to the Defendants on April 15, 2014 contained a document entitled "slapp your moma- 1.doc". 7 A-308484 Supplemental Affidavit of Laura Prather In Support Of Award Of Attorneys' Fees, Costs, Expenses and Sanctions 7 of 20 SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, on this the &_th day of September, 2014, to certify which witness my hand and official seal.

~rb~ Notary Public In and For CHERJ ANDERSON Notary Public STATE OP TEXAS The State of Texas ~tf. M,y ~Exp. haly :M, lOlj My Commission Expires:~ c2vl;;'

r§ (} ~ o~ 0 @'~ Q) Q~ ~ o~ ~ Qf@ o~

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8 A-308484_1 Supplernenlal Affidavit of Laura Prather In Support Of Award Of Attorneys' Fees, Costs, Expenses and Sanctions 8 of 20 Supplemental Affidavit of Laura Prather In Support Of Award Of Attorneys' Fees, Costs, Expenses and Sanctions 9 of 20 haynesboone

Invoice Number: 21090701 Client/Matter Number: 0049141.00002 September 11, 2014

The Walt Disney Company ~r@ ~ Indira Satyendra ABC Inc 77 West 66th Street 15th Fl ~ Ur ax Identification No, • • • •

New York NY I0023 £rt;) o~ Billing Attorney: Lauri1 Prather ~Q For Professional Services Through August 31, 2014 ¢~ ~ Q«@ 0049141.00002 The11ol11 Robinson Litigation o~ ~ PriiJial Fees Timekeeper Description © ©> 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.) : ·: •·' ·

"lii'i~.f.~:.Y~r~ • Neely v. Wifson, _ _ S.W.3d _ _ , 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~~

• "How to Get an Antl-SLAPP Statute Passed," speaker, Newspaper Association Managers 2011 Legislative Conference, Washington, D.C., December 5, :wu.

• "Texas laws that Benefit the Media: Antl-SLAPP, Reporter's Privilege and Interlocutory Appeal,• speaker, Texas Association of Broadcasters (TAB) Newsroom Workshop, Southern Methodist University, Dallas, TX, October 29, 2011.

• "Tort Reform In Media Law," speaker, Texas State Unlv~'s Mass Communication Week, San Marcos, TX, October 18, 20~

• "Defending Your Newsroom - Using the Antl-SLAP~~ree Flow of Information Act and the Interlocutory Appeal," sp~r, weblnar for the Texas Association of Broadcasters, October:, &1. • "Passage Of The Texas Antl-SlAPP Statut~w It Happened And What It Could Mean For You I" author, Media, f_r~y and Defamatfon Law Committee Newsletter, Fall 2011. ~

• "Winners & Losers: Scoring the 82n~~slature," panelist, FOIFT State Conference, Austin, TX, August .!?~11.

• "FCC Compliance,• panelist, frt@state Conference, Austin, TX, August 10, 2011. Q • "Newspapers Benefit ff~ntl-SLAPP Law,• author, Dally Tribune, July 22, 2011. ~ • "Texas NewsrooRs~ Benefit from Antl-SLAPP Law,• author, Texas DailyNewspa~~~~latfon e-Bulfetln, July 15, 2011. • "Primer on Te~ Antl-SLAPP Statute," author, freedom of Information foundati~Texas (fOIFT) website, July 15, 2011.

• "Texll~srooms Will Benefit from Antl-SLAPP Law Protecting first A~;~t Rights," author, Texas Association of Broadcasters Bulletin, ~~9'11, 2011.

•~\sage of the Texas Antl-SLAPP Statute,• author, MlRC Media Law dQ"f:etter, July 2011.

~ • "Strategies for Efficiently and Economically Winning a Media Case," co- o!;;~ • author, ABA{nPS Media Newsletter, Spring 2011,

,~ "Freedom of Information,• panelist, Texas Association of licensed Investigators Mid-Winter Conference, San Antonio, TX, February 18-19, ~ 2011. ~ • "Hot Issues In Reporter's Privilege and Antl·SLAPP Laws," panelist, ABA Forum on Communications Law 16th Annual Conference, Rancho Mirage, CA, February 3-5, 2011.

• "The Texas legislative Process: What Every Lawyer Should Know and Transparency In Government," panelrst, State Bar of Texas Continuing Legal Education Program, Austin, TX, February 1, 2011.

• "How to Prevent the Sting of a SLAPP," author, Sedgwick's Media Law Bulletin and the Freedom of Information Foundation of Texas website, November 2010,

• Reporter's Privilege Compendium, co-author, The Reporters Committee for Freedom of the Press, 2010.

Supplemental Affidavit of LatJta Pra'\li~r'lf?~~~f'A~~'AtRf?M!~Fe~~~§.~~~1'1~\\!'1~iOO!PP, 17 of 20 Austill, Texas, October 16, 2010.

• "Texas Free Flow of Information Act," speaker, Texas Associated Press Managing Editors 2010 Annual Convention, College Statlo11, Texas, March 27, 2010.

• "Hot Issues In Reporters Privilege/Subpoenas," moderator, ABA Forum on Communications Law 15th Annual Conference, Key Largo, FL, January 28-30, 2010.

• "Alternative Biiiing Arrangements" moderator, Women In Communications Law Committee meeting, ABA Forum on Communications Law 15th Annual Conference, Key Largo, FL, January 28-30, 2010. ~ • "The Lawful Truth: Discussing Issues In Mass Com~tlon Law," speaker, Association for Women In Comrnunlcatio~stln, TX, October 21, 2009. fu • "Appeals Court Thwarts Attempt to Gut Shle~~ Provision,• author, Texas Press Messenger, September 20091?~ '> ~:!} • "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

~

• Appointed by governor to State of Texas Personal Privacy Task Force, 2002

• Texas Association of Broadcasters, Board of Directors, ex-officio member (2005-2012)

• Freedom of Information Foundation of Texas, Immediate Past President; Legislative Committee, co-chair

• KLRU public broadcast station, board of directors

• College of the State Bar of Texas

Supplemental Affidavit of Lal'lra Pt§iOOF11Y~~~rWwl\warl!~r<>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.

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]

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).

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

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

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

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

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).

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.

28 4th 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.

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

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

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:

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

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. Better

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

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

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,"

funds were "wholly unaccounted for," 7 that KTRK "fabricated" a claim of "over $3

million in missing public funds," reported "missing millions," "the entire $3 million was

unaccounted for," or that "a school had operated for a year without paying payroll or

2 Appellee's Brief, pp. 11-12. 'CR 2:311-312, 355, 357, 360, 492-493; 3 :551-553, 585-586; 623, 679-680, 712-713. 4 CR 2: 259-263, 4 70-4 71; 4: 894, 903-908. 5 It is clear from her Statement of Facts that Appellee's real complaint is with TEA's actions. See Appellee's Response, Statement of Facts ifif24 and 25. 1 ' Appellee's Response, Statement of Facts if25. 7 Appellee's Response, p. 26.

2 utilities or food services workers or the like." Those statements are not found in the

KTRK reports. The broadcasts discussed an ongoing problem with Benji's and its

inability to account for the use of all of the funds it received from the State - a budget

Robinson admits was over $3 million per year. 8 KTRK reported, truthfully, that the TEA

did not have a full accounting of how over $3 million a year in taxpayer dollars Benji's

was given was spent - it did not at any time accuse Robinson of stealing those funds.

KTRK did not discuss a specific time period because this was a chronic problem, nor did

it say that none of the annual budget could be accounted for, but rather not every dollar

was accounted for properly. In its broadcasts and by way of example, KTRK offered a

list of unpaid debts owed by Benji's of more than $500,000 9, but this was by no means an

exhaustive listing of evidence of the continuing financial problems the school suffered.

Appellee herself admits TEA had on-site conservators from 2008 forward 10, admits TEA

found the school no longer financially viable' 1, and admits the State cited "critical cash

flow issues" as one of the reasons for closing the school. 12 The import of the broadcasts

is undisputed and supported by extensive public records. 13 Thus, because Robinson did

not demonstrate a prima facie case that any statements in the KTRK broadcasts were

defamatory, false, were not privileged, were of and concerning her, and were made with

actual malice, the trial court erred in denying KTRK's Motion to Dismiss.

8 Appellee's Response. Statement of Facts if3. 9 CR 2:372. Ill Appellee's Response. p. 24. 11 Appellee's Response, Statement of facts if9. 12 Id. at if8. 13 CR 4: 918-925, 945, 948-949, 953.

3 II. STANDARD OF REVIEW

As a starting point, this Court can and should review the trial court's denial of

KTRK 's Motion to Dismiss. Robinson is wrong to assert the Legislature "denied review

of orders affirmatively denying the motion to dismiss." This is outlined in detail in

KTRK's Response to Robinson's Motion to Dismiss for Lack of Jurisdiction, and

KTRK's Sur-Reply, which are incorporated herein. In sum, the plain meaning of the

statute is clear that an appeal is available, "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." 14

Indeed, other jurisdictions with similar statutes conduct their review of Anti-

SLAPP motions on a de nova basis. 15 Texas courts should do the same because questions

of law are reviewed de novo. 16 Ruling on an Anti-SLAPP motion is a two-pronged

decision and both prongs are questions of Iaw. 17 First, is whether "the legal action is

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.

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

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

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

Appellant,

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

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

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

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.

Under Appellee's proposed strained interpretation of the Jaw, if the Motion to Dismiss is

granted or denied by operation of law, then the statute would continue to curtail costly discovery

while an appellate court reviewed the validity of the trial court's decision. But, if the trial court

had ordered dismissal, no appeal would be permitted, and discovery would ensue. This

interpretation would be an affront to the purpose of the statute. In fact, it would encourage

movants who are even the slightest bit concerned about an unfavorable ruling to advocate for a

12 See. e.g.. Dwayne Viera and Kerwin Jorda11 v. Hearst Newspapers, et. al., Cause No. 2011-42884 (I 90th Dist. Ct., Harris County, Tex., Nov. 22, 2011) (2 CR 448): Yolanda Flores v. Houston Communio• College System, et. al.. Cause No. 2011-49084 (51st Dist., Harris Co., Tex., Nov. 11, 2011), (CR 4:956-957), IV/Jolesale TV a11d Radio Advertising, LLC v. Beller Business Bureau of Metropolitan Dallas. Inc., Cause No. CC-11-08382-A, 14th Dist. Court, Dallas County, Tex., Sept. 6, 2011) (2 CR 446-44 7), Stephen Simpton, et. al., v. High Plains Broadcasting, Inc .. et. al., Cause No. 2011-CI-13290 (285th Dist. Ct., Bexar Co., Tex., March 23, 2012) attached hereto for the Court's convenience as Appendix I; Bruce C. Carter, et. al. v. NW Co1111111111ications of Te:rns, Inc. et. al., Cause No. DC-12-02166 (160th Judicial District, Dallas Co., Tex. May 24, 2012) attached hereto for the Court's convenience as Appendix J.

10 court not to rule, not remind the court about the thirty day deadline, and sit on their hands in

hopes that the comi would not rule at all on their motion. Such an outcome would turn Texas

jurisprudence on its head.

D. Appellee's Construction Would Leave Portions of the Law Meaningless

As previously mentioned, section 27.011 of the statute expressly states the chapter "shall

be construed liberally to effectuate its purpose and intent fully." This is consistent with Texas

Supreme Court precedent providing, as a general rule, that statutes are to "be given the most

comprehensive and liberal construction possible," and "ce1iainly should not be given a narrow,

technical construction." Traxler v. Entergy Gu({ States, Inc., at *2, citing City£?( Mason v. W.

Tex. Utils. Co., 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.

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

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:

~~~ 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 DL/2781540v4 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

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

20 DU278 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.

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:

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 _.;..'::f.:.u'/U.(uut~---O'CLOCK

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