In re Lipsky
460 S.W.3d 579
| Tex. | 2015Background
- Steven and Shyla Lipsky discovered methane and other gases in their domestic well after moving into a Weatherford, Texas property; Lipsky publicly blamed nearby Range Resources and distributed a video showing flammable well gas.
- The EPA initially ordered Range to supply potable water and install monitors; the Texas Railroad Commission later held an administrative hearing and concluded Range’s operations were not the source.
- The Lipskys and consultant Alisa Rich sued Range for contamination; Range counterclaimed for defamation, business disparagement, and civil conspiracy against the Lipskys and Rich.
- Lipsky and Rich moved to dismiss Range’s counterclaims under the Texas Citizens Participation Act (TCPA); the trial court denied the TCPA motions as to Steven Lipsky but granted dismissal as to Shyla Lipsky and Rich.
- The court of appeals treated circumstantial evidence as admissible under the TCPA, affirmed dismissal as to Shyla and Rich, and denied relief for Steven; the Texas Supreme Court reviewed whether the TCPA requires only direct evidence and whether Range met the TCPA burden.
Issues
| Issue | Plaintiff's Argument (Range or Lipsky as relevant) | Defendant's Argument (Lipsky or Range) | Held |
|---|---|---|---|
| Whether "clear and specific evidence" under TCPA excludes circumstantial evidence | Range: TCPA permits circumstantial evidence and rational inferences to meet prima facie showing | Lipsky: phrase requires direct evidence unaided by inferences | Court: Circumstantial evidence and rational inferences are permissible; TCPA does not impose a unique elevated evidentiary standard |
| Whether pleadings that satisfy notice pleading are enough to defeat a TCPA motion | Range: traditional pleadings and affidavits suffice at this stage | Lipsky: TCPA requires more than notice pleading—clear, specific factual proof of each element | Court: TCPA demands more factual detail than mere notice pleading; plaintiffs must present clear and specific evidence of each essential element |
| Whether Steven Lipsky’s statements were sufficiently factual and defamatory to defeat his TCPA motion | Range: Lipsky’s public statements accused Range of contaminating the aquifer and were provably false, injuring Range’s reputation | Lipsky: statements were opinion, true, or based on disputed science; insufficient proof of damages | Court: Statements were sufficiently factual (not pure opinion) and could be defamatory; defamation claim survives because it was actionable per se (injury to fitness as a producer) |
| Whether Range presented clear and specific evidence of damages and conspiracy re: Shyla Lipsky and Rich | Range: affidavits and documentary evidence support damages and show coordinated effort by Rich and the Lipskys | Lipsky/Rich: Range’s affidavit on economic loss is conclusory; no evidence Shyla or Rich published defamatory statements or conspired | Court: Range’s damage affidavit was conclusory and insufficient for special damages; no clear and specific evidence that Shyla or Rich published defamatory statements or conspired—those claims must be dismissed |
Key Cases Cited
- McDonald v. Clemens, 464 S.W.2d 450 (Tex. Civ. App.—Tyler 1971) (discussed in relation to "clear and specific" language in fraud context)
- S. Cantu & Son v. Ramirez, 101 S.W.2d 820 (Tex. Civ. App.—San Antonio 1936) (earlier fraud decision on vague or inconclusive evidence)
- Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432 (Tex. 1986) (intent often proved by circumstantial evidence)
- Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) (discusses clear-and-convincing standard and use of circumstantial evidence for state of mind)
- Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142 (Tex. 2014) (corporate defamation and distinction between reputational and economic harms)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (statements susceptible of being proved true or false are not protected opinion)