Neal Rauhauser v. James McGibney and ViaView, Inc.
508 S.W.3d 377
Tex. App.2014Background
- McGibney (CEO/founder of ViaView) and ViaView sued Rauhauser and others for defamation, business disparagement, tortious interference, IIED, and related torts based on alleged online posts and threats directed at McGibney and ViaView.
- Rauhauser filed a motion to dismiss under the Texas Citizens’ Participation Act (TCPA), seeking dismissal, attorney’s fees, and sanctions; shortly after, plaintiffs nonsuited their state-court claims and filed a similar lawsuit in federal court in California.
- The trial court failed to rule on Rauhauser’s TCPA motion, resulting in denial by operation of law; Rauhauser appealed interlocutorily.
- Rauhauser supported his TCPA motion with evidence (affidavits, news articles) arguing McGibney is a limited-purpose public figure and that the claims arose from Rauhauser’s communications on matters of public concern.
- Plaintiffs did not attempt to establish by clear and specific evidence a prima facie case on the merits in state court before nonsuiting; instead they argued the motion did not survive the nonsuit or that dismissal should be stayed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a TCPA motion survives plaintiff’s nonsuit | Nonsuit defeats motion; motion moot and plaintiffs can refile elsewhere | TCPA motion is statutory affirmative relief and can survive nonsuit because it may afford more relief than nonsuit | Survived nonsuit; motion to dismiss survives — nonsuit does not bar TCPA relief |
| Whether Rauhauser met initial TCPA burden that suit targets exercise of free speech | Plaintiffs contended chapter 27 inapplicable because Rauhauser denied making the specific statements and McGibney is not a public figure | Rauhauser presented evidence showing McGibney is a limited-purpose public figure and that claims arise from communications on matters of public concern | Met initial burden as to communications related to McGibney (McGibney is a limited-purpose public figure); did not show ViaView generally is a public figure |
| Whether plaintiffs met TCPA burden to establish prima facie case by clear and specific evidence | Plaintiffs did not present clear-and-specific evidence before nonsuiting; argued procedural defenses instead | Rauhauser argued plaintiffs failed to meet the TCPA’s heightened prima facie requirement | Plaintiffs did not meet their burden; claims based on communications about McGibney must be dismissed under TCPA |
| Entitlement to fees and sanctions under TCPA §27.009 and whether appellate court should render judgment | Plaintiffs argued no dismissal order was entered (motion denied by operation of law), so fees/sanctions not yet appropriate | Rauhauser sought mandatory fees and sanctions following dismissal under TCPA and attached fee evidence | Court remanded for trial court to enter dismissal and to determine court costs, reasonable fees, expenses and sanctions (amounts left to trial court discretion); appellate court declined to render fee judgment now |
Key Cases Cited
- CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, 390 S.W.3d 299 (Tex. 2013) (statutorily based dismissal motions may survive a plaintiff’s nonsuit)
- Villafani v. Trejo, 251 S.W.3d 466 (Tex. 2008) (statutory dismissal and fee motions survive nonsuit to preserve deterrent purpose)
- Klein v. Dooley, 949 S.W.2d 307 (Tex. 1997) (defendants’ statutory motions afford affirmative relief that can survive nonsuit)
- United Food & Commercial Workers Int’l Union v. Wal-Mart Stores, 430 S.W.3d 508 (Tex. App. — Fort Worth 2014) (standards for TCPA dismissal review)
- In re Lipsky, 411 S.W.3d 530 (Tex. App. — Fort Worth 2013) (TCPA burden framework and defendant’s initial showing explained)
- WFAA-TV v. McLemore, 978 S.W.2d 568 (Tex. 1998) (three-part test for limited-purpose public figure)
- Pickens v. Cordia, 433 S.W.3d 179 (Tex. App. — Dallas 2014) (defendant who denies making the communication cannot obtain TCPA protection for that specific statement)
- Vice v. Kasprzak, 318 S.W.3d 1 (Tex. App. — Houston [1st Dist.] 2009) (applying limited-purpose public-figure analysis)
- Shipp v. Malouf, 439 S.W.3d 432 (Tex. App. — Dallas 2014) (dismissal and remand for fees under TCPA where plaintiffs failed to prove prima facie case)
- Schimmel v. McGregor, 438 S.W.3d 847 (Tex. App. — Houston [1st Dist.] 2014) (reversing denial of TCPA motion and remanding for award of fees and sanctions)