Warren Whisenhunt v. Matthew Lippincott and Creg Parks
2013 Tex. App. LEXIS 12489
| Tex. App. | 2013Background
- Whisenhunt sued Lippincott and Parks for defamation, tortious interference with existing and prospective business relationships, and civil conspiracy.
- Lippincott and Parks moved to dismiss under the Texas Citizens Participation Act (TCPA/Anti-SLAPP).
- The trial court dismissed all but the defamation claim and awarded attorney’s fees to the defendants.
- Whisenhunt argued TCPA does not apply or, alternatively, that he could prove prima facie evidence for each element.
- The appellate court reviews TCPA application de novo and evaluates statutory language, legislative intent, and case law.
- The court ultimately held TCPA does not apply to privately communicated speech and reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does TCPA apply to this private defamation suit? | Whisenhunt contends TCPA does not apply to privately communicated speech. | Lippincott and Parks argue the TCPA applies to the suit because the allegedly defamatory statements relate to free speech in a public-Participation context. | TCPA does not apply; reverse and remand. |
Key Cases Cited
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (U.S. 1974) (defamation limits and actual malice concepts for private individuals)
- Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (U.S. 1985) (speech related to public concern and First Amendment protection)
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (constitutional standards for defamation cases and public officials)
- Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) (private speech vs. public concern in defamation context)
- BH DFW, Inc. v. Ward, 402 S.W.3d 299 (Tex. App.—Dallas 2013) (TCPA interpretation and matter of public concern analysis)
- Klentzman v. Brady, 312 S.W.3d 886 (Tex. App.—Houston (1st Dist.) 2009) (application of public concern and private speech considerations)
- Avila v. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2012) (defamation and public interest considerations in TCPA context)
- Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2013) (anti-SLAPP analysis in public-communication scenarios)