in Re Steven and Shyla Lipsky and Alisa Rich
2013 Tex. App. LEXIS 4975
| Tex. App. | 2013Background
- Lipskys own property in Silverado on the Brazos; Range drilled wells nearby in 2009; Lipskys alleged gas in their well and health concerns led to EPA emergency order against Range in 2010; Railroad Commission found no contamination in 2011; Lipskys sued Range and others in June 2011 for contamination/the water; Range counterclaimed for defamation, business disparagement, civil conspiracy, and aiding and abetting; relators filed Chapter 27 motions to dismiss; trial court denied, mandamus sought.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Range's claims are based on or related to relators' rights to petition/free speech | Range argues claims are not protected by Chapter 27 rights | Relators show claims stem from rights to petition/free speech | Yes; Range's claims relate to protected rights under Chap. 27 |
| Whether relators met the prima facie burden under Chap. 27 for defamation and business disparagement | Relators contend no prima facie evidence | Range contends clear evidence exists for each element | Relators met initial burden; some claims lack prima facie proof (Shyla Rich, civil conspiracy) while Lipsky claims survive at this stage |
| Whether the trial court abused its discretion denying Chap. 27 motions as to Lipsky and Rich | Court should dismiss Range's claims under Chap. 27 | Discretion exercised properly given evidence; deference to trial court's findings | Abused discretion as to Rich and Shyla Lipsky; shall dismiss accordingly; Lipsky defamation claims partly sustained |
| Whether the 27.004 hearing deadline was waived or misapplied | Setting within 30 days not required to be heard; continuance permissible | Failure to hear within 30 days constitutes waiver | Plain language governs setting vs. hearing; no waiver by continuance; proper to extend under docket conditions |
| Whether relators have an adequate remedy by appeal | Mandamus needed because interlocutory appeal not available | Appeal could be adequate | Relators have no adequate remedy by appeal; mandamus granted in part to dismiss remaining claims against Lipsky (Rich and Shyla); verdict on Lipsky's conspiracy and aiding-and-abetting dismissed; remaining Range claims against Lipsky reserved; mandamus issued if not complied within 30 days |
Key Cases Cited
- Jennings v. WallBuilder Presentations, Inc., 378 S.W.3d 519 (Tex. App.—Fort Worth 2012) (liberal construction of Chapter 27; early dismissal aims to protect rights to petition)
- Columbia Med. Ctr. of Las Colinas v. Black, 290 S.W.3d 204 (Tex. 2009) (mandamus review appropriate when no adequate remedy by appeal)
- In re Aslam, 348 S.W.3d 299 (Tex. App.—Fort Worth 2011) (mandamus standard and Chapter 27 review)
- In re Labatt Food Serv., L.P., 279 S.W.3d 640 (Tex. 2009) (de novo review of legal determinations; defer to factual support)
- Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838 (Tex. 2009) (statutory interpretation not to add language to law)
- McAllen Med. Ctr., Inc., 275 S.W.3d 458 (Tex. 2008) (legislature balanced costs/benefits; respect for statutory scheme)