Cruz v. Van Sickle
452 S.W.3d 503
| Tex. App. | 2014Background
- Cruz sued Van Sickle, Musselman d/b/a Burnt Orange Report, and Haenschen for libel.
- BOR moved to dismiss under the Texas Citizens Participation Act and was awarded fees after dismissal.
- An BOR article (Sept. 6, 2011) described Cruz and stated he was thrown out of an Elizabeth Edwards signing.
- Cruz claimed the statement was false, libel per se, and deserving damages for reputation and distress.
- Musselsman and Haenschen asserted protection under the Act and CDA §230; affidavits described source verification.
- Trial court granted dismissal and fees; Cruz appeals challenging multiple rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Act apply to Cruz’s libel claim? | Cruz: claim concerns public concern; Act applies. | BOR: speech protected; no prima facie case established. | Yes, Act applies; statement related to public concern. |
| Did Cruz establish a prima facie case of libel per se with actual malice? | Cruz: evidence supports malice due to falsity and post-publication conduct. | BOR: no evidence of malice; publication not proven with knowledge or reckless disregard. | No; Cruz failed to show actual malice. |
| Was BOR entitled to attorney's fees despite pro bono representation? | Cruz: incurred fees required for fee award; not applicable to pro bono. | BOR: no incurred fees; pro bono means no recoverable fees. | BOR awarded nothing; incurred fees not shown. |
| Was Van Sickle’s attorney’s fees award proper (incurrence, reasonableness, equity)? | Cruz: no proper basis to award; improper evidence. | Van Sickle: fees incurred, reasonable, necessary; uncontroverted affidavit supports award. | Yes; award upheld as incurred, reasonable, and just. |
| Are post-dismissal fees recoverable to obtain fee awards under the Act? | Cruz: post-dismissal fees not recoverable because not defending the action. | Defendants may recover post-dismissal fees related to defending and securing fees. | Post-dismissal fees may be recoverable; award affirmed for recovery. |
Key Cases Cited
- Hancock v. Variyam, 400 S.W.3d 59 (Tex. 2013) (defamation per se; actual malice standards for public figures)
- Monitor Patriot Co. v. Roy, 401 U.S. 265 (U.S. Supreme Court 1971) (public official status; defamation standards for candidates)
- Shipp v. Malouf, 439 S.W.3d 432 (Tex.App.—Dallas 2014) (de novo review under the Act; elevated evidentiary standard)
- Garcia v. Gomez, 319 S.W.3d 638 (Tex. 2010) (incurred attorney’s fees concept; limits on recovery)
- Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865 (Tex.App.—Dallas 2014) (interpretation of 'incurred' and fee awards under the Act)
- Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) (mandatory vs discretionary attorney’s fees; 'as justice and equity may require')