John and Mary Ann Tatum v. Julie Hersh
2015 Tex. App. LEXIS 13031
Tex. App.2015Background
- Tatums sued Hersh for intentional infliction of emotional distress after a journalist column linked to their son Paul Tatum's death.
- Hersh wrote a blog post and urged a DMN columnist to cover the obituary and suicide discussion, leading to a public column.
- Tatums alleged Hersh exploited a private tragedy for publicity, causing humiliation and distress.
- Hersh moved to dismiss under TCPA, seeking dismissal and fees; trial court granted dismissal with prejudice but awarded conditional appellate fees.
- On appeal, the court held Pickens controls when the defendant denies making the statements at issue; the TCPA movant must prove the specific statements were made.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Hersh carry §27.005(b) burden given denial of statements? | Tatums argue Hersh denied the statements, so TCPA cannot apply. | Hersh contends the ADA applies to the overall communications and related conduct. | No; Pickens governs; denial defeats burden and the TCPA does not apply. |
| Was the preservation of the argument proper despite lack of written objections? | Tatums preserved orally at the hearing that Hersh denied the statements. | Hersh preserved by written responses; oral preservation is insufficient. | Preserved; oral argument raised the grounds adequately. |
| Should Pickens be applied to determine if the TCPA dismissal was proper? | Tatums rely on Pickens to show denial defeats dismissal. | ||
| Hersh argues Pickens is distinguishable because she did not deny all relevant communications. | Yes; Pickens applies and Tatums prevail; dismissal was improper. |
Key Cases Cited
- Pickens v. Cordia, 433 S.W.3d 179 (Tex. App.—Dallas 2014) (denial of making the communication defeats TCPA dismissal)
- Am. Heritage Capital, L.P. v. Gonzalez, 436 S.W.3d 865 (Tex. App.—Dallas 2014) (TCPA purpose; liberal construction)
- Jardin v. Marklund, 431 S.W.3d 765 (Tex. App.—Houston [14th Dist.] 2014) (TCPA did not apply where specific statements not made)
- ExxonMobil Pipeline Co. v. Coleman, 464 S.W.3d 841 (Tex. App.—Dallas 2015) (de novo review of § 27.005 burden)
- Culbertson v. Lykos, 790 F.3d 608 (5th Cir. 2015) (defendant cannot rely solely on plaintiff's pleadings to satisfy TCPA burden)