Ian Ghrist Ghrist Law Firm, PLLC Shawn Coker Neighborhood Partner, Inc. Blue Moon Realty Group, LLC And Wizard Funding, LLC v. MBH Real Estate LLC, AFI Loan Servicing, LLC, Anson Financial, Inc., J. Michael Ferguson, P.C.
02-17-00411-CV
| Tex. App. | Dec 13, 2017Background
- This is an interlocutory appeal from a trial-court order denying a Chapter 27 (Texas Citizens Participation Act, “TCPA”) motion to dismiss and sustaining plaintiffs’ objections. The motion was filed Oct. 16, 2017 and heard Nov. 13–14, 2017.
- Central dispute: communications and lien/release documents arising from the sale of 2420 Purselley Ave (the “Purselley Property”) after a lis pendens and a related payoff; defendants (Ghrist, his firm, and business associates) contend their statements and releases were made in connection with pending litigation (Cause No. 017-287611-16) and thus are protected by the TCPA.
- Plaintiffs (Ferguson, MBH Real Estate, AFI/Anson) allege libel per se and multiple tort and statutory claims (fraudulent lien, conversion, conspiracy, breach of fiduciary duty, DTPA, negligence, declaratory relief, etc.) arising from the releases, communications, and disbursement of payoff funds.
- Key factual contentions by defendants: (1) Ghrist’s letter to buyer Hernandez and communications with Sendera Title related to an ongoing suit alleging Ferguson misappropriated funds; (2) payoff funds were deposited into the court registry then later released to plaintiffs; (3) defendants signed releases to avoid liability to the buyer and to allow closing; (4) defendants assert absolute and qualified privileges, truth/substantial truth, lack of requisite fault, and that plaintiffs suffered no damages.
- Procedural/record disputes: defendants argue the TCPA covers far more than defamation and that many of plaintiffs’ evidentiary objections filed the morning of the hearing were baseless or should have been allowed cure; trial court concluded defendants’ motion was frivolous or intended to delay and denied it while sustaining plaintiffs’ objections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held (trial court) |
|---|---|---|---|
| Whether plaintiffs’ claims should be dismissed under the TCPA | Ferguson: motions were improper; TCPA not applicable or motion frivolous | Ghrist: communications (letter, releases, emails) were statements "based on, related to, or in response to" petition, speech, and association and so subject to dismissal unless plaintiff proves each claim by clear and specific evidence | Denied: court sustained plaintiffs’ objections and denied TCPA dismissal; found motion frivolous or delay tactic |
| Whether defendants met their initial TCPA burden (connection to petition/speech/association) | Plaintiffs: defendants failed to show required connection; many communications unrelated or privileged | Defendants: movant showed connection — statements tied to pending litigation (right to petition), association in closing the sale, and matters of public concern (title, alleged misappropriation, title insurance) | Court found defendants did not meet the initial burden and overruled movant’s showing (order sustained objections) |
| Whether plaintiffs produced clear and specific evidence of each claim (second prong) | Plaintiffs: presented evidence of injury and wrongful releases, alleging conversion, fraudulent lien, libel, etc. | Defendants: plaintiffs lacked clear and specific evidence — no damages (funds ultimately paid), releases were proper/privileged, many claims fail as a matter of law | Court held plaintiffs had produced sufficient evidence to defeat dismissal (sustained objections; denied dismissal) |
| Applicability of absolute/qualified privileges, truth, and other defenses | Plaintiffs: privileges inapplicable or defeated by malice/false statements; TCPA motion overbroad | Defendants: judicial privilege, attorney immunity, qualified/common-interest privilege, truth/substantial truth, lack of requisite fault, and TCPA coverage to non-defamation claims | Court rejected defendants’ arguments on record and denied TCPA relief; sustained plaintiffs’ objections (trial-court ruling) |
Key Cases Cited
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (broad TCPA application; private communications tied to a matter of public concern may be protected)
- Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013) (defamation defenses and related First Amendment principles)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (statements not provably false get constitutional protection; opinions that imply undisclosed false facts can be actionable)
- Rehak Creative Servs. v. Witt, 404 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2013) (TCPA can apply to conversion, misappropriation, conspiracy claims)
- Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191 (Tex. App.—Austin 2017) (TCPA applied to trade-secret and business-related claims; broad definition of communications)
- Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015) (attorney-immunity principles)
- Serafine v. Blunt, 466 S.W.3d 352 (Tex. App.—Austin 2015) (TCPA scope and petitions-right analysis)