Frederic Scott Deaver v. Riddhi Desai and Shilpi Pankaj Desai
2015 Tex. App. LEXIS 12259
| Tex. App. | 2015Background
- After a contentious divorce, Deaver created a public website (last updated Aug. 2011) criticizing attorney Riddhi Desai and accusing her daughter Shilpi of identity theft; the site sought Riddhi’s disbarment and publicized alleged investigative findings.
- In 2014 Riddhi and Shilpi sued Deaver for defamation, intentional infliction of emotional distress (IIED), and civil theft; Deaver moved to dismiss under the Texas Anti‑SLAPP statute (TCPA).
- The trial court denied Deaver’s motion; Deaver appealed interlocutorily to the Fourteenth Court of Appeals pro se.
- Deaver argued the website was protected “exercise of free speech” (matter of public concern) under the TCPA and asserted statute‑of‑limitations as a defense to defamation and IIED.
- The appellate court considered only the evidence in the record (an excerpt of the website and affidavits), held the website was a communication on matters of public concern, and found Deaver met his initial TCPA burden as to defamation and IIED but not civil theft.
- The court concluded that even if plaintiffs met the prima facie requirement, they failed to overcome Deaver’s statute‑of‑limitations defense; it reversed and remanded, dismissing the defamation and IIED claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TCPA (Anti‑SLAPP) applies to statements on Deaver’s website | Website statements are not protected because they target plaintiffs personally and are not part of a public debate | Website is a "communication" on matters of public concern (legal services, criminal allegations) and thus falls under the TCPA | TCPA applies to statements on the website as communications on matters of public concern for defamation and IIED claims |
| Whether plaintiffs established prima facie case under TCPA once TCPA applies | Affidavits and pleadings suffice to show defamation and IIED | Deaver contends plaintiffs’ evidence is conclusory and insufficient under TCPA standards | Even assuming plaintiffs’ affidavits suffice, their evidence did not overcome Deaver’s statute‑of‑limitations defense; plaintiffs failed to meet TCPA burden to avoid dismissal |
| Whether Deaver established a defense (statute of limitations) under TCPA §27.005(d) | Plaintiffs did not concede accrual dates; argue injury continued or discovery rule applies | Deaver showed website last updated Aug. 2011; defamation (1‑yr) and IIED (2‑yr) claims accrued then and expired before 2014 filing | Deaver established statute of limitations by preponderance; plaintiffs produced no evidence to trigger discovery rule or rebut accrual date |
| Whether the commercial‑speech exemption to TCPA applies | Plaintiffs alleged website intended to extort/blackmail—thus commercial | Deaver not primarily in business selling goods/services; statements not arising from commercial transaction | Court rejected plaintiffs’ contention; commercial‑speech exemption not shown; TCPA still applies |
Key Cases Cited
- Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2013) (standard of review and TCPA framework)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (definition and evidentiary standards under TCPA; "clear and specific" and prima facie guidance)
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (communication on matter of public concern can be private and still covered by TCPA)
- Velocity Databank, Inc. v. Shell Offshore, Inc., 456 S.W.3d 605 (Tex. App.—Houston [1st Dist.] 2014) (internet publication accrual for defamation)
- GTE S.W., Inc. v. Bruce, 998 S.W.2d 605 (Tex. 1999) (definition of "severe" emotional distress for IIED)
- Hoffman‑La Roche Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004) (elements required for IIED)
- Serafine v. Blunt, 466 S.W.3d 352 (Tex. App.—Austin 2015) (interpretation of "clear and specific evidence")