Levi Morin v. Law Office of Kleinhans Gruber, PLLC
03-15-00174-CV
| Tex. App. | Jul 2, 2015Background
- Plaintiff Law Office of Kleinhans Gruber, PLLC ("KG") sued former client Levi Morin for defamation, defamation per se, and business disparagement based on a June 24, 2014 Yelp post accusing KG (and an associate) of unprofessional conduct.
- Morin filed a Motion to Dismiss under the Texas Citizens Participation Act (TCPA). He initially filed the motion without exhibits and refiled with exhibits after the TCPA filing deadline; he also failed to set and secure a hearing within the TCPA timelines.
- KG moved to strike or deny Morin’s TCPA motion as untimely and later filed a substantive response with affidavits (affidavits from Kimberly Kleinhans, Michael Siegler, and Martin Garza) and evidence of damages (QuickBooks, Yelp activity, billing records).
- The trial court found (1) no good cause to extend TCPA deadlines, (2) Morin’s exhibits untimely and struck, (3) KG’s affidavits admissible, and (4) KG had presented clear and specific evidence establishing a prima facie case of defamation and business disparagement; the court denied Morin’s motion to dismiss.
- KG sought attorney’s fees and sanctions under the TCPA; Morin contested fee reasonableness. The appeal concerns (a) whether KG met the TCPA’s "clear and specific evidence" prima facie standard and (b) TCPA timeliness issues (filing and hearing deadlines).
Issues
| Issue | Plaintiff's Argument (KG) | Defendant's Argument (Morin) | Held |
|---|---|---|---|
| 1. Whether KG presented clear and specific evidence to establish a prima facie case of defamation and business disparagement | KG: affidavits (Kleinhans, Siegler, Garza), Yelp activity, financial records show falsity, malice, and economic/noneconomic damages | Morin: evidence insufficient or inadmissible to meet TCPA standard | Trial court: KG met "clear and specific" prima facie burden; motion denied |
| 2. Whether Morin timely filed his TCPA Motion to Dismiss (60-day filing rule) | KG: Morin missed statutory filing deadline; his later-filed exhibits were untimely | Morin: attempted filings / nunc pro tunc arguments (or argued waiver/excuse) | Trial court: no good cause; filing (with exhibits) untimely; exhibits struck |
| 3. Whether Morin timely set and held the TCPA hearing (60/90‑day hearing rule) | KG: no agreement or good cause to extend; Morin unilaterally set hearing around KG unavailability; hearing occurred outside statutory window | Morin: hearing occurred (oral ruling March 5) and/or relief preserved by filings; argued appellate deadlines ambiguous | Trial court: no good cause; hearing deadline missed; TCPA motion deemed denied; court nonetheless ruled KG proved prima facie case and denied motion |
| 4. Admissibility and sufficiency of affidavits and documentary evidence (authentication/service) | KG: affidavits properly authenticated; Garza voluntarily accepted subpoena and affidavit; evidence timely served before hearing | Morin: challenged notarization/authentication, service, and timing of KG’s filings | Trial court: overruled objections; treated KG affidavits as admissible and timely; relied on them in ruling |
Key Cases Cited
- Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2003) (defamation law principles; opinions versus provable false statements)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (statements of opinion may imply provable false facts)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (U.S. 1974) (standards for defamation and damages principles)
- Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142 (Tex. 2014) (damages and proof requirements in defamation-related claims)
- In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218 (Tex. 2004) (definition of prima facie standard/minimum quantum of evidence)
- TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) (construction of statutory terms and ordinary meaning guidance)
- Hearst Corp. v. Skeen, 159 S.W.3d 633 (Tex. 2005) (consideration of care and motive in defamation contexts)
- Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762 (Tex. 1987) (elements of business disparagement and malice)
- Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653 (Tex. 1987) (falsity requirement in defamation)