Richard Fawcett, Kevin Roberts, Darrin Pitts, George Lillard, Christopher Matthews, Armando Florido, David Vokovic, Ken Kirkpatrick, James Lemons, Douglas Hissong and Danny Fuller, Sr. v. Bogdan Grosu
2016 Tex. App. LEXIS 7183
| Tex. App. | 2016Background
- Members of Gray Masonic Lodge No. 329 (appellants) signed and publicly presented a document of "Charges of Masonic Disciplinary Violations" on Aug. 6, 2014, accusing appellee Bogdan Grosu of lying on his membership application, multiple crimes involving moral turpitude (including a 1995 theft), and racial discrimination.
- After internal hearings, the lodge’s grand master dismissed the charges as not rising to disciplinary level; Grosu then sued the signers for defamation (two theories), invasion of privacy, and civil conspiracy seeking $36 million.
- Appellants filed a TCPA (anti‑SLAPP) motion to dismiss under Tex. Civ. Prac. & Rem. Code ch. 27; the trial court denied the motion and awarded Grosu $1,000 in attorney’s fees. Appellants appealed.
- Grosu amended his petition; he relied on pleadings, exhibits (original petition exhibits incorporated by reference), affidavits, and evidence that an unauthorized background check was run and Internal Affairs sustained a complaint against a member who allegedly used law‑enforcement resources.
- The Court of Appeals applied the TCPA two‑step framework: (1) whether the claim implicates protected rights (here, right of association); and (2) whether Grosu produced clear and specific evidence establishing a prima facie case for each claim.
Issues
| Issue | Plaintiff's Argument (Grosu) | Defendant's Argument (Appellants) | Held |
|---|---|---|---|
| Does TCPA apply (right of association)? | Claims arise from internal Masonic communications among members defending common interests, so TCPA applies. | TCPA shouldn’t apply because communications were private and concerned criminal history/race, not public matters. | Held: TCPA applies; private intra‑organizational communications fall within definition of "association." Lippincott forecloses public‑only argument. |
| Did Grosu present clear and specific evidence for defamation (criminal allegations)? | Charging document, affiliations, and exhibits show when/where/what was said; evidence of deferred adjudication and lack of investigation supports negligence. | Statements were true (or concerned nondisclosure) and qualifiedly privileged; appellants waived affirmative defenses by pleading only general denial. | Held: Grosu met prima facie burden on defamation re: crimes of moral turpitude (defamation per se). Appellants waived truth/privilege defenses. |
| Did Grosu present clear and specific evidence for defamation (racial allegations)? | Charging document alleged repeated canvassing against candidates by race; Grosu alleges falsity and lack of investigation. | Appellants point to insufficiency and truth. | Held: Reversed as to racial‑discrimination defamation — Grosu failed to present clear and specific evidence (conclusory allegations insufficient). |
| Invasion of privacy and civil conspiracy claims — prima facie evidence? | Evidence shows an unauthorized background check, Internal Affairs sustained complaint, and use of obtained info in charging document; alleges meeting of minds to defame and damages. | Appellants did not meaningfully brief these on appeal. | Held: Grosu established prima facie invasion of privacy and civil conspiracy claims; appellants waived challenges by inadequate briefing. |
| Award of attorney’s fees under TCPA §27.009(b) | Trial court awarded $1,000 to Grosu. | Appellants argued no evidence supported fee award and trial court made no requisite frivolous/delay finding; they seek fees given partial win. | Held: Fee award reversed and remanded — record lacks evidence of reasonableness/necessity and no finding on frivolousness; remand for further proceedings (including fee requests by either party). |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (interpreting TCPA two‑step framework and what qualifies as "clear and specific evidence")
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (rejecting argument that TCPA applies only to public communications)
- Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2013) (discussing TCPA purpose and early dismissal mechanism)
- Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640 (Tex. 1995) (elements of defamation and falsity presumptions for private‑person suits)