Warren Whisenhunt v. Matthew Lippincott and Creg Parks
06-13-00051-CV
| Tex. App. | Aug 3, 2015Background
- Whisenhunt appealed the trial court's dismissal under the Texas Citizens Participation Act (TCPA) after appellees (Lippincott and Parks) moved to dismiss related to allegedly defamatory statements and other claims. The Texas Supreme Court reversed part of the prior appellate ruling and remanded to consider whether Whisenhunt met the TCPA's prima facie burden.
- Central procedural question: whether a non‑movant's pleadings count as "evidence" for meeting the TCPA prima facie standard and what standard of review applies on appeal.
- Substantive issues include whether Whisenhunt pleaded defamation (including falsity and damages) sufficiently and whether the TCPA's commercial‑speech exemption applies.
- Legislative text and history of the TCPA (including 2013 amendments) are relied on to interpret the commercial‑speech exemption; Texas decisions have sometimes imported California's multi‑element test from Simpson Strong–Tie/Gore.
- Whisenhunt also sought limited discovery under section 27.006(b) to develop evidence to meet the TCPA prima facie standard; the trial court implicitly denied that request when it granted dismissal.
Issues
| Issue | Plaintiff's Argument (Whisenhunt) | Defendant's Argument (Appellees) | Held (Court's controlling rulings/positions argued in brief) |
|---|---|---|---|
| Are pleadings evidence under the TCPA? | Pleadings are expressly listed in §27.006(a) and must be treated as evidence for the non‑movant's prima facie showing. | Pleadings are not evidence; courts typically rely on affidavits and extrinsic proof. | Brief argues plain statutory text and multiple Texas appellate decisions treat pleadings as evidence and courts must consider them. |
| Standard of review for non‑movant's prima facie showing | Court should view pleadings and evidence in the light most favorable to the non‑movant, accepting favorable evidence and reasonable inferences. | Defendants emphasize stricter scrutiny consistent with TCPA dismissal standards. | Brief urges adoption of favorable‑to‑nonmovant review: take nonmovant's evidence as true and resolve doubts in their favor. |
| Elements of defamation and plaintiff's burden (falsity, damages) | Whisenhunt contends he pleaded who, what, when, and that statements were defamatory per se (sexual misconduct, fraud, incompetence), so falsity and damages were adequately alleged; where defendant is not a media defendant, defendant bears burden of proving truth. | Appellees argue plaintiff failed to prove falsity and failed to show how he was damaged; Lipsky emphasized certain factual detail may be required to resist TCPA dismissal. | Brief argues Lipsky's “sufficient detail” language describes one sufficient approach but does not alter common‑law elements; per se defamation allegations relieve need to plead detailed damages; falsity allegation as pleaded suffices given defendant‑role rules. |
| Scope and elements of TCPA commercial‑speech exemption (§27.010(b)) | Exemption contains only two essential elements: (1) defendant is primarily in business of selling/leasing goods or services; and (2) the claim arises out of sale/lease, insurance services/product, or a commercial transaction (the intended‑audience limitation applies only to the commercial‑transaction subclause). It does not import California's additional requirements (representations of fact, purpose/self‑serving intent). | Defendants (and some Texas courts) seek to apply California/Gore four‑part test (speaker, representations of fact about business/competitor, purpose to secure sales, intended audience) to limit the exemption. | Brief argues Texas statute language and legislative history reject the California elements requiring proof of 'representations of fact' or subjective purpose; only the commercial speaker + commercial context elements are required, and intended‑audience modifier applies only to the "commercial transaction" branch. |
| Denial of limited discovery under §27.006(b) and remand to replead | Whisenhunt sought limited discovery and additional time to meet TCPA prima facie burden (short two‑week response time); denial was an abuse of discretion and deprived him meaningful opportunity to present evidence; Lipsky created a pleading standard that may require allowing repleading on remand. | Defendants opposed discovery and press for dismissal based on existing record; dismissal appropriate if plaintiff fails Lipsky specificity. | Brief argues trial court implicitly denied requested limited discovery without analysis; under the circumstances (new/unsettled law, short response window) denial was an abuse of discretion and the appellate court should remand for limited discovery or, alternatively, permit repleading in the interest of justice. |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (established TCPA pleading standard — nonmovant must plead sufficient detail to meet prima facie burden and courts must assess evidence under §27.006)
- Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71 (Tex. App.—Houston [1st Dist.] 2013) (early Texas construction of TCPA commercial‑speech exemption using California components)
- NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742 (5th Cir. 2014) (recognized differences between Texas TCPA language and California anti‑SLAPP and rejected importing California’s ‘representations of fact’ requirement into §27.010)
- Simpson Strong–Tie Co. v. Gore, 230 P.3d 1117 (Cal. 2010) (California Supreme Court articulated four‑part commercial‑speech exemption that influenced early Texas interpretations)
- WFAA‑TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998) (defamation elements and distinctions regarding burden of proving truth/falsity depending on media defendant status)