Levi Morin v. Law Office of Kleinhans Gruber, PLLC
03-15-00174-CV
| Tex. App. | Jun 12, 2015Background
- Plaintiff Law Office of Kleinhans Gruber sued former client Levi Morin for business disparagement, defamation, and defamation per se after Morin posted a negative Yelp review accusing an associate (Michael Siegler) of appearing hungover and criticizing the firm’s competence.
- Morin filed a Texas Citizens Participation Act (TCPA) motion to dismiss (anti‑SLAPP) within the statutory period, attaching exhibits two days later and seeking a hearing; discovery was stayed under the TCPA.
- The firm filed multiple responses and, shortly before the resumed hearing, submitted three affidavits (Kleinhans, Siegler, and Martin Garza) that Morin objected to as untimely and inadmissible (including a notarization by Kleinhans and a dubious “subpoena for affidavit testimony”).
- The trial court: found no good cause to extend TCPA deadlines, struck Morin’s late-filed exhibits, overruled Morin’s objections to the firm’s affidavits, found the firm had established a prima facie case (based on the “hungover associate” allegation), found Morin failed to establish an affirmative defense, and denied the TCPA motion.
- Morin appealed, arguing (1) the firm’s evidence was inadmissible and insufficient (no clear-and-specific proof of falsity, malice, or damages), (2) Morin acted timely and had good cause for his hearing/exhibit dates, and (3) his attorney’s fees through the motion were uncontested and should be awarded, with post‑motion fees and mandatory sanctions to follow.
Issues
| Issue | Plaintiff's Argument (Kleinhans Gruber) | Defendant's Argument (Morin) | Held (Trial Court) |
|---|---|---|---|
| Whether the firm met TCPA §27.005(c) by clear-and-specific evidence on defamation/disparagement elements (falsity, malice, damages) | The firm produced affidavits and exhibits showing the Siegler‑hungover statement was false and that the firm suffered injury | Morin: firm's evidence was inadmissible or legally insufficient (no clear, specific proof of falsity, malice, or special damages) | Court found firm established a prima facie case based on the Siegler‑hungover statement and denied Morin’s TCPA motion |
| Admissibility of the firm’s affidavits (timeliness, proper notarization, and procurement) | Affidavits were submitted in support of the response and should be considered | Morin: affidavits were filed late, Siegler’s affidavit was notarized by an interested party (Kleinhans) so invalid, and Garza’s affidavit was procured via a bogus "subpoena for affidavit testimony" and thus inadmissible | Court overruled Morin’s objections and admitted the affidavits |
| Timeliness / good‑cause for Morin’s TCPA hearing date and exhibits (extension to 90 days; exhibits filed two days after motion) | The firm contended Morin did not timely set the hearing or timely file exhibits; no good cause existed | Morin: he sought to negotiate discovery and avoid disputes, voluntarily provided limited discovery, forgot to attach exhibits (harmless), and the firm suffered no prejudice from the brief delay; these facts constituted good cause to extend deadlines | Court found no good cause, struck Morin’s late exhibits, and held the hearing was not timely set |
| Entitlement to attorney’s fees and sanctions under TCPA §27.009 | Firm opposed dismissal and fees; sought to proceed on merits | Morin: his pre‑motion fee affidavit (itemized) was filed >30 days before hearing and was uncontested, so those fees must be awarded; post‑motion fees and TCPA sanctions are also mandatory upon dismissal | Because the court denied the motion, it did not award fees; Morin appeals seeking fees of $7,723.50 and remand for post‑motion fees and sanctions |
Key Cases Cited
- Bently v. Bunton, 94 S.W.3d 561 (Tex. 2002) (defamation elements and malice standard)
- Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003) (business disparagement and burden to prove malice/actual damages)
- City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) (conclusory statements insufficient; standards for evidence in summary contexts)
- Huckabee v. Time Warner Entm’t Co., L.P., 19 S.W.3d 413 (Tex. 2000) (actual‑malice standard and proof requirements)
- Hancock v. Variyam, 400 S.W.3d 59 (Tex. 2013) (special damages requirement; proof of mental‑anguish limits)
- Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142 (Tex. 2014) (general reputation testimony insufficient to prove economic injury)
- Burbage v. Burbage, 447 S.W.3d 249 (Tex. 2014) (evidence of lost contracts/customers insufficient without specifics)
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (constitutional actual malice standard for public‑figure defamation)