663 S.W.3d 270
Tex. App.2022Background
- Garcia was criminally prosecuted (theft of estate-sale signs) after Semler reported alleged sign theft and posted Facebook statements; Garcia was later acquitted.
- Garcia sued Semler for defamation and malicious prosecution.
- Semler filed a verified TCPA motion to dismiss; the trial court cancelled an oral hearing, considered the motion on submission, and granted dismissal.
- Garcia sought reconsideration (arguing TCPA required an oral hearing and objecting to Semler’s evidence); the trial court denied reconsideration and awarded Semler attorney’s fees.
- On appeal Garcia raised six issues (hearing requirement; admissibility of Semler’s evidence; TCPA applicability; sufficiency of Garcia’s defamation and malicious-prosecution proof; defenses/rebuttals; fees). The Court of Appeals affirmed dismissal and the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Does the TCPA require an oral hearing on a motion to dismiss? | TCPA mandates an oral hearing (citing repeated references to "hearing" and analogizing to rule requiring in-person hearing). | TCPA does not require oral presentation; hearing may be by submission like Rule 166a summary-judgment practice. | No. Under TCPA as amended in 2019, oral testimony on the merits is not permitted and the hearing may be by submission; Martin (summary-judgment analogy) controls. |
| 2. Were Semler’s evidentiary submissions defective and preserved for appeal? | Garcia objected to Semler’s unsworn declaration and portions of her motion as hearsay/speculation/legal conclusions. | Objections were not ruled on in trial court and thus not preserved for appeal. | Objections not preserved; no reversible error shown. |
| 3. Did Semler meet TCPA step one (claims based on protected petition/speech)? | Garcia: malicious-prosecution and Facebook posts are not protected activity. | Semler: reporting to police is petitioning; Facebook posts concerned alleged theft (a matter of public concern). | Semler met step one for both claims (petition for malicious-prosecution; speech re alleged criminal conduct for defamation). |
| 4. Did Garcia present clear-and-specific evidence of defamation (step two)? | Garcia: her declarations and the Facebook posts prove falsity and negligence. | Semler: many posts are nonactionable opinion and she had reasonable basis to believe reports of theft. | No. Several posts are opinion/nonactionable; for the remaining allegedly factual posts Garcia failed to produce clear-and-specific evidence of Semler’s negligence. |
| 5. Did Garcia present clear-and-specific evidence of lack of probable cause for malicious-prosecution (step two)? | Garcia: Semler relied on a witness who did not pin illegal conduct on Garcia. | Semler: she had witness reports (including a report of a red car) and a reasonable basis to report theft. | No. Garcia did not rebut the presumption of probable cause with clear-and-specific evidence; step two not met. |
| 6. Was the attorney-fee award improper or should fees have been awarded to Garcia? | Garcia: fees should be denied or awarded to her. | Semler: fees are mandatory on dismissal under the TCPA; movant’s motion was not frivolous. | Fees properly awarded to Semler under §27.009(a); Garcia failed to show Semler’s motion was frivolous under §27.009(b). |
Key Cases Cited
- Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357 (Tex. 1998) (an oral hearing is not automatically required on a motion governed by summary-judgment-like procedure)
- Gulf Coast Investment Corp. v. NASA 1 Business Center, 754 S.W.2d 152 (Tex. 1988) (Rule 165a requires setting and notice of an oral hearing for reinstatement motions)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (defamation elements and the Lipsky/TCPA framework for burdens)
- Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788 (Tex. 2006) (elements of malicious-prosecution claim and probable-cause presumption)
- Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614 (Tex. 2018) (statements that cannot be verified as false are nonactionable opinion)
- Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418 (Tex. App.—Dallas 2019) (de novo review for statutory interpretation issues)