Rehak Creative Services, Inc. and Robert Rehak v. Ann L. Witt, Ellen Witt, Raymond Witt and Ann Witt Campaign
2013 Tex. App. LEXIS 6196
| Tex. App. | 2013Background
- Rehak Creative Services, Inc. and Robert Rehak sued Witt for libel, business disparagement, tortious interference, intentional infliction of emotional distress, civil conspiracy, conversion, and misappropriation arising from Witt’s “How to Succeed in Government” campaign website.
- Witt moved to dismiss all claims under Chapter 27 (Texas Citizens Participation Act) with supporting affidavits; trial court conducted two hearings and dismissed all claims, awarding fees to Witt.
- Chapter 27 provides an early-dismissal mechanism for actions involving exercise of free-speech, petition, or association rights; requires initial burden-shifting with a “clear and specific evidence” prima facie showing by the non-movant at the 27.005(c) stage.
- The majority applies de novo review to both the threshold 27.005(b) inquiry and the 27.005(c) prima facie standard, but requires reviewing the evidence under Chapter 27’s elevated “clear and specific” standard.
- The challenged statements on the campaign site were analyzed in their political-contextual, rhetorical-hyperbole frame; the court held the statements were not defamatory as a matter of law and upheld dismissal of libel and business disparagement, and also dismissed the conversion, misappropriation, and related claims under 27.005(c).
- The reversal or modification of the trial court’s ruling was not warranted; the final judgment in favor of Witt was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Witt satisfied 27.005(c) to establish a prima facie case for libel and business disparagement. | Rehak: Witt’s statements were defamatory and true facts; established prima facie. | Witt: statements were non-defamatory political hyperbole; not prima facie evidence of defamation. | Dismissal upheld; no clear and specific evidence of defamation. |
| Whether Witt satisfied 27.005(b) threshold for conversion/misappropriation based on free-speech. | Conversion/misappropriation connected to the political campaign; may be dismissed. | Claims relate to campaign speech; threshold satisfied. | Threshold met; but 27.005(c) still required prima facie proof, which was lacking. |
| Standard of review for Chapter 27 determinations on appeal. | De novo review should apply to both 27.005(b) and 27.005(c). | De novo for statutory construction; no deference to trial court on dismissal. | De novo review adopted for both prongs; elevated standard applied. |
| Whether the evidence shows prima facie case for conversion/misappropriation. | Linked materials and logos tied to campaign site; potential damages. | No clear and specific evidence of conversion or damages. | No clear and specific evidence; claims fail under 27.005(c). |
| Whether the publication was defamatory in context given political campaign setting. | Statements conveyed factual allegations against Rehak/RCS. | Statements were rhetorical hyperbole in political context. | Rhetorical hyperbole; not actionable defamation under the circumstances. |
Key Cases Cited
- Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000) (defamatory meaning determined by context and ordinary reader)
- Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (U.S. 1988) (constitutional protection for rhetorical hyperbole in public discourse)
- Wheeler v. New Times, Inc., 49 S.W.3d 471 (Tex. App.—Dallas 2001) (article not defamatory due to critical, contextual portrayal)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (contextual look at publications and reasonable reader standard)
- McDonald v. Clemens, 464 S.W.2d 450 (Tex. Civ. App. 1971) (definition of clear and specific evidence and prima facie proof)