ANTHONY G. BUZBEE v. CLEAR CHANNEL OUTDOOR, LLC, AND SYLVESTER TURNER
NO. 14-19-00512-CV
In The Fourteenth Court of Appeals
November 17, 2020
Affirmed and Opinion filed November 17, 2020.
On Appeal from the 281st District Court Harris County, Texas Trial Court Cause No. 2019-27094
Appellant Anthony G. Buzbee appeals the trial court‘s order dismissing his claims against appellees Clear Channel Outdoor, LLC, and Sylvester Turner under the Texas Citizens Participation Act (“TCPA“).1 Turner and Buzbee were candidates for mayor of the City of Houston in the November 2019 election. This dispute arises from several billboards appearing throughout Houston before the election. According to Buzbee, the billboards effectively constituted campaign propaganda for Turner under the guise of a public safety message, and appellees failed to properly document the billboards’ value as a campaign contribution under the Election Code. Buzbee sued appellеes for monetary damages and injunctive relief.
We are confronted at the outset with jurisdictional questions of standing and mootness. For reasons explained below, we agree with Buzbee that he established
We affirm the trial court‘s judgment.
Background
Houston‘s mayor since 2016, Sylvester Turner ran for re-election in November 2019. Anthony G. Buzbee was also a candidate. Prior to the election—the record does not clarify precisely when or for how long—twenty-seven billboards in Houston promoted “AlertHouston,” which Turner characterizes as “Houston‘s program to alert residents to emergency situations.” The billboards displayed an image of Turner, alongside the phrases, “Be Prepared. Be Safe. Be Alert Houston,” and a web address where interested persons could “sign up today.” Appellee Clear Channel allegedly owned and operated the billboards in question.
In April 2019, Buzbee sued Turner and Clear Channel. Buzbee alleged that the billboards’ message and appearance were intended to benefit Turner‘s re-election campaign and that the defendants individually or collectively violated campaign contribution laws under the Texas Election Code. Buzbee asserted, for example, that the billboards “blatantly promot[ed] Turner as a friendly, engaging, and accessible candidate [because] the cоlor scheme of such billboards reasonably matches that of Mayor Turner‘s election propaganda . . . ,” and that “[t]hese billboards [were] directly meant to influence the outcome of [the] upcoming Mayoral election by means of public advertising.” Buzbee further alleged that Clear Channel and Turner unlawfully conspired to use the billboards as civic messaging to endorse and create support for Turner without identifying or reporting the billboards as a campaign contribution. This plan, Buzbee contended, resulted in “free (illegal) election advertisements” for Turner. Buzbee sought statutory damages under section 253.131 and injunctive relief under section 273.081.2
Clear Channel and Turner separately filed motions to dismiss under the TCPA. Both defendants argued that Buzbeе‘s claims were based on, related to, or in response to, the exercise of their rights of free speech and association. They also contended that Buzbee could not provide clear and specific prima facie evidence to support each element of his claims.
In response, Buzbee argued that the TCPA did not apply but, even if it did, he met his prima facie burden as the non-movant by pleading a sufficient factual basis for each element of his claims. Buzbee did not attach any affidavits or documentary evidence to support his allegations, but instead relied solely on his pleading. He also made a request for limited discovery if the court was inclined to grant dismissal.
During a hearing on the motions, and later in supplemental briefs, Clear Channel and Turner questioned the court‘s subject-matter jurisdiction. They made two jurisdictional arguments. First, they contended that Buzbee‘s claim for injunctive relief was moot because the billboards had been removed by the date of the hearing, June 6, 2019. Second, they argued that Buzbee lacked standing to claim injunctive or monetary relief. Regarding Buzbee‘s claim for damages under
After receiving supplemental briefing, the trial court granted appellees’ motions, dismissed Buzbee‘s claims without prejudice, and awarded Clear Channel and Turner each a lump amount for incurred attorney‘s fees, expenses, and sanctions, as well as conditional appellate attorney‘s fees.
Buzbee appealed. While the appeal was pending in this court, the election occurred and Turner won.
Issues Presented
The grounds raised in appellees’ TCPA motions to dismiss and supplemental briefs included: (1) lack of standing; (2) mootness; (3) TCPA applicability to the claims; and (4) lack of evidence supporting a prima facie case in support of the claims. The trial court granted the motiоns to dismiss without specifying reasons.
On appeal, Buzbee makes essentially three points, the first of which concerns jurisdiction. Buzbee asserts that he has standing to bring his claims because a declared candidate for mayor like Buzbee has standing to seek redress for an opponent‘s alleged Election Code violations. In conjunction with his standing arguments, Buzbee also says that removal of the billboards does not make this case moot. Second, Buzbee contends that he may satisfy his prima facie burden to survive a TCPA motion to dismiss by relying solely on the allegations in his petition and he need not present any additional evidence. Third, Buzbee challenges the trial court‘s refusal
Analysis
A. Jurisdiction
As jurisdictional questions go to the heart of a court‘s power to decide а dispute,3 we begin there. See Unifund CCR Partners v. Villa, 299 S.W.3d 92, 95 (Tex. 2009) (“First, we must address Unifund‘s argument that the trial court did not have jurisdiction over Villa‘s claim for sanctions, because if it did not, then we do not.“) (citing Tex. Ass‘n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993)); see also Nunu v. Risk, 567 S.W.3d 462, 465 (Tex. App.—Houston [14th Dist.] 2019, pet. denied).
1. The proper framework for considering standing and mootness when raised in a TCPA motion to dismiss
Turner‘s arguments raise a question as to the procedural framework applicable to jurisdictional challenges such as these that are raised in the context of a TCPA motion to dismiss. We must decide whether a TCPA motion is a proper vehicle to present jurisdictional arguments and whether we are constrained to analyze them within the TCPA‘s framework. In the trial court, Turner argued that the TCPA burden-shifting procedure applies to standing questions, and consequently Buzbee was obligated to present evidence of jurisdiction as part of his prima facie evidentiary burden under the TCPA. Turner repeats that argument on appeal at least regarding injunctive relief.4
Standing of course is an unwaivable component of subject-matter jurisdiction and may be raised at any time and in any manner. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000); Blum v. Lanier, 997 S.W.2d 259, 261 (Tex. 1999). Mootness may be related to standing. Dallas Cty. Republican Party v. Dallas Cty. Democratic Party, No. 05-18-00916-CV, 2019 WL 4010776, at *3 (Tex. App.—Dallas Aug. 26, 2019, pet. denied) (mem. op.). For a plaintiff to have standing, a controversy must exist between the parties at every stage of the legal proceedings. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). Whenever a court finds a lack of subject-matter jurisdiction, it must go no further and dismiss. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000); In re St. Thomas High Sch., 495 S.W.3d 500, 506 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding) (trial court has no discretion and must dismiss the case as a ministerial act when it lacks subject-matter jurisdiction); Stauffer v. Nicholson, 438 S.W.3d 205, 214 (Tex. App.—Dallas 2014, no pet.). Such a judgment is, per force, not one “on the merits.” See Engelman Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 750 (Tex. 2017); Galveston v. Galveston Mun. Police Ass‘n, No. 14-11-00192-CV, 2011 WL 4920885, at *5 n.3 (Tex. App.—Houston [14th Dist.] Oct. 18, 2011, no pet.) (mem. op.).
Courts have considered jurisdictional challenges raised by a number of different means, including: (1) pleas to the jurisdiction, see Bland Indep. Sch. Dist., 34 S.W.3d at 554; (2) motions for summary judgment, see Bell v. Moores, 832 S.W.2d 749, 752 (Tex. App.—Houston [14th Dist.] 1992, writ denied); (3) special exceptions,
Because standing may be raised at any time and in any manner, we agree that a court should and must consider the issue when raised in the context of a TCPA motion. However, it does not follow that a court must analyze jurisdiction using the TCPA burden-shifting procedure, a mechanism ill-suited for resolving whether a court is authorized to decide a controversy. To begin with, the TCPA is a procedural vehicle to address the merits of a claim. Nowhere does chapter 27 mention jurisdiction and nothing within its text discusses the possibility or propriety of dismissal due to jurisdictional defects. It is designed to accelerate the presentation of evidence to support the merits of a suit in those circumstances to which the act applies. See Cavin v. Abbott, 545 S.W.3d 47, 55 n.19 (Tex. App.—Austin 2017, no pet.) (act provides procedural mechanisms through which litigants may require “a threshold testing of the merits” of opponent‘s case) (internal quotation omitted). Unlike a dismissal for lack of standing, a dismissal under the TCPA is a judgment on the merits and carries res judicata implications. See Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 500 S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); see also Maldonado v. Franklin, No. 04-18-00819-CV, 2019 WL 4739438, at *2 (Tex. App.—San Antonio Sept. 30, 2019, no pet.) (mem. op.) (“Dismissal of a legal action under the TCPA is with prejudice to the refiling of the legal action.“). Thе TCPA presupposes jurisdictional standing.
Accordingly, because a court is obliged to dismiss a lawsuit without reaching the merits when a plaintiff lacks standing, the absence of standing at the outset of a lawsuit deprives the court of jurisdiction to apply the TCPA at all. Appellees cite no authority in which a court has dismissed a claim on standing or mootness grounds because the plaintiff failed to present jurisdictional evidence as part of its prima facie case in response to a TCPA motion to dismiss.
Moreover, when arguing that Buzbee lacked standing or that his claims were moot, appellees sought dismissal on subject matter jurisdiction grounds, not on the merits. In their supplemental briefing below, both Turner and Clear Channel argued that the trial court lacked jurisdictiоn to hear the case because Buzbee lacked standing or the claims were moot, and they asked the court to dismiss the lawsuit for those reasons. We typically look to the substance of a motion and not its title to determine the relief sought and its effect. Surgitek v. Abel, 997 S.W.2d 598, 601 (Tex. 1999); Stroman v. Tautenhahn, 465 S.W.3d 715, 719 (Tex. App.—Houston [14th Dist.] 2015, pet. dism‘d w.o.j.).
Because the TCPA focuses on the merits, and jurisdictional challenges do not, and because the form by which standing is raised typically is unimportant,5 we construe the part of appellees’ motions to dismiss presenting standing and mootness arguments as though they were raised in a dilatory plea, like a plea to the jurisdiction. See In re C.M.C., 192 S.W.3d 866, 869 (Tex. App.—Texarkana 2006, no pet.) (construing motion to dismiss as plea to the jurisdiction). Substantively, appellees’ arguments are the type of fundamental jurisdictional сhallenges one would expect to see asserted in a such a plea. See, e.g., Bland Indep. Sch. Dist., 34 S.W.3d at 553-54; Galveston Mun. Police Ass‘n, 2011 WL 4920885, at *2 (“Issues of justiciability, such as mootness, ripeness, and standing, implicate a court‘s subject matter jurisdiction.“). Thus, we conclude that the TCPA burden-shifting procedure is not a proper framework to analyze appellees’ standing and mootness arguments, and we are not constrained to analyze those arguments under the TCPA rubric even though appellees brought them to the court‘s attention in the context of such a motion.6
2. Standards applicable to a jurisdictional plea
Under the familiar framework applicable to a plea to the jurisdiction, a defendant may challenge the court‘s jurisdiction either on the pleadings or by evidence negating jurisdictional facts. Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). We first look to the pleadings to detеrmine if the plaintiff has alleged facts that affirmatively demonstrate the court‘s jurisdiction to hear the cause. See id. Whether a plaintiff has satisfied that burden is a question of law we review de novo. Id. at 226. Standing is determined at the time suit is filed. See Tex. Ass‘n of Bus., 852 S.W.2d at 446 n.9; Turner v. Robinson, 534 S.W.3d 115, 123 (Tex. App.—Houston [14th Dist.] 2017, pet. denied); John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645, 650 (Tex. App.—Dallas 2013, pet. denied). We construe the pleadings liberally in favor of the plaintiff, look to the pleader‘s intent, and accept as true the unchallenged factual jurisdictional allegations in the pleadings. See Miranda, 133 S.W.3d at 226. If the pleading is sufficient to demonstrate jurisdiction, and if the defendant does not challenge the plaintiff‘s factual allegations with supporting evidence, then our inquiry ends. See id. at 227-28; see also City of Jacksboro v. Two Bush Cmty. Action Grp., No. 03-10-00860-CV, 2012 WL 2509804, at *5 (Tex. App.—Austin June 28, 2012, pet. denied) (mem. op.) (“[B]ecause [plaintiff] pleaded facts sufficient to affirmatively demonstrate the district court‘s subjeсt-matter jurisdiction [and] because [defendant] has not challenged [plaintiff‘s] pleadings or its alleged jurisdictional facts . . . it was not necessary for [plaintiff] to produce evidence supporting its jurisdictional assertions.“).
With these principles in mind, we turn to appellees’ standing and mootness arguments.
3. Standing
a. Section 253.131
In his first amended petition, Buzbee cited
A person‘s right to recover damages depends on whether the contribution or expenditure was in support of another candidate, or in opposition to the claimant specifically. If the contribution or expenditure is made in support of a candidate, “each opposing candidate whose name appears on the ballot” is entitled to recover damages.
Although Buzbee cited both
Buzbee‘s pleadings assert a concrete, particularized harm that distinguishes his alleged injury from that of the general public. See Andrade v. NAACP of Austin, 345 S.W.3d 1, 17-18 (Tex. 2011) (addressing standing for pursuing injunctive relief under
Additionally, because Buzbee‘s civil сonspiracy claim was predicated on the alleged Election Code violations, if any, committed by Turner and Clear Channel, we further conclude that Buzbee‘s petition established standing to assert his conspiracy claim.7
b. Section 273.081
We sustain Buzbee‘s second issue, in which he argues that he had standing to pursue his claims.
4. Mootness
Though the court had jurisdiction over Buzbee‘s suit at the time he filed it, the claim for injunctive relief may have become moot later, as appellees argue. Appellees contend that Buzbee‘s request for injunctive relief was mooted by the removal of the challenged billboards before the June 2019 hearing.8 Buzbee has acknowledged that any injunction could no longer provide effective relief, and we agree.
A case becomes moot when a justiciable controversy between the parties ceases to exist or when the parties cease to have a legally cognizable interest in the outcome. Seе Williams, 52 S.W.3d at 184. Mootness occurs when events make it impossible for the court to grant the relief requested or otherwise affect the parties’ rights or interests. See Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex. 2012). When a case becomes moot, the court loses jurisdiction, because any decision would constitute an advisory opinion that is “outside the jurisdiction conferred by
A defendant‘s voluntary cessation of challenged conduct does not, in itself, deprive a court of the power to hear or determine claims for prospective relief. Id. If it did, “defendants could control the jurisdiction of courts with protestations of repentance and reform, while remaining free to return to their old ways.” Id. This would obviously defeat the public interest in having the legality of the challenged conduct settled. Id. Nonetheless, dismissal may be appropriate when subsequent events make “absolutely clear that the [challenged conduct] could not reasonably be expected to recur.” Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126, 131 (Tex. App.—Austin 2007, no pet.) (internal quotation omitted). While that showing may or may not have been made as of the date of the trial court‘s order, all parties agreed during oral argument in our court that Buzbee‘s request for injunctive relief is moot now that the election is over. Therefore, the merits of Buzbee‘s injunctive relief claim are not before us. See Heckman, 369 S.W.3d at 162.
* * *
Because Buzbee had standing to assert a damage claim under
1. Applicable standards
The TCPA contemplates an expedited dismissal procedure when a “legal action” is “based on, relates to, or is in response to a party‘s exercise of the right of free speech, right to petition, or right of association.”
In enacting the TCPA, the legislature explained that its overarching purpose is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”
We construe the TCPA liberally to effectuate its purpose and intent fully. See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018); Coleman, 512 S.W.3d at 899; Cox Media Grp., LLC v. Joselevitz, 524 S.W.3d 850, 859 (Tex. App.—Houston [14th Dist.] 2017, no pet.);
On appeal, Buzbee does not challenge the TCPA‘s applicability, so we presume without deciding that Clear Channel and Turner met their burden under step one to prove the Act applies to Buzbee‘s claims. See N. Cypress Med. Ctr. Operating Co. GP, LLC v. Norvil, 580 S.W.3d 280, 285 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). The burden shifted to Buzbee to establish by clear and specific evidence a prima facie case for each essential element of his claims. See
It is well-established by now that a TCPA movant need not necessarily provide evidence beyond the plaintiff‘s pleading to establish the TCPA‘s applicability. See, e.g., Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (“When it is clear from the plaintiff‘s pleadings that the action is covered by the Act, the defendant need show no more.“); Abatecola v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV, 2018 WL 3118601, at *8 (Tex. App.—Houston [14th Dist.] June 26, 2018, pet. denied) (mem. op.) (citing Hersh, 526 S.W.3d at 467); In re Elliott, 504 S.W.3d 455, 462 (Tex. App.—Austin 2016, orig. proceeding) (TCPA does not require a movant to present testimony or other evidence to satisfy his evidentiary burden); Hicks v. Grp. & Pension Adm‘rs, Inc., 473 S.W.3d 518, 526 (Tex. App.—Corpus Christi 2015, no pet.) (same); Serafine, 466 S.W.3d at 360 (same). This is because “the plaintiff‘s petition, as has been said, is the best and all-sufficient evidence of the nature of the action.” Hersh, 526 S.W.3d at 467 (internal quotations omitted).
However, the parties are sharply divided on whether a TCPA non-movant may rely solely on the allegations in his pleading to meet his prima facie burden. As appellees observe, generally pleadings are not evidence. See, e.g., Hidalgo v. Surety Sav. & Loan Ass‘n, 462 S.W.2d 540, 545 (Tex. 1971); Tandan v. Affordable Power, L.P., 377 S.W.3d 889, 895 (Tex. App.—Houston [14th Dist.] 2012, no pet.). This is because assertions in a petition are nothing more than allegations. See Hidalgo, 462 S.W.2d at 543 (“Pleadings simply outline the issues; they are not evidence, even for summary judgment purposes.“).
For TCPA purposes, however, pleadings are evidence, and the court must consider them in deciding a motion to dismiss.
Although a court must consider pleadings as evidence in determining whether to grant a TCPA dismissal motion, we conclude that allegations in a petition are not alone sufficient to defeat such a motion. In Lipsky, the Supreme Court of Texas held that presenting “clear and specific evidence” of “each essential element” of a claim means that “a plaintiff must provide enough detail to show the factual basis for its claim.” Lipsky, 460 S.W.3d at 591. Further, a “prima facie case” means evidence that is legally sufficient to establish a claim as factually true if it is not countered. Id. at 590. In other words, “prima facie” generally refers to the amount оf evidence that is sufficient as a matter of law “to support a rational inference that an allegation of fact is true.” Id.; see also Schimmel v. McGregor, 438 S.W.3d 847, 855 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 688 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). Black‘s Law Dictionary defines “prima facie case” as “[a] party‘s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party‘s favor.” See “prima facie case,” Black‘s Law Dictionary (11th ed. 2019). Illustrative of that thinking, the court in Lipsky offered an example: “[i]n a defamation case that implicates the TCPA, pleadings and evidence that establishes the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff should be sufficient to resist a TCPA motiоn to dismiss.” Lipsky, 460 S.W.3d at 591 (emphasis added). Lipsky‘s discussion of the proper standard for overcoming a TCPA motion to dismiss strongly suggests that a mere allegation itself is not sufficient and that something supporting the allegation is required.
Indeed, the TCPA, which creates an accelerated merits-screening function, could hardly be served if the party seeking to avoid dismissal is not required to present even a scintilla of evidence in support of his allegations. The TCPA‘s purpose is to weed out unmeritorious claims at an early stage. See, e.g., Hearst Newspapers, LLC v. Status Lounge Inc., 541 S.W.3d 881, 892 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing
The parties cite no case in which a court held that a TCPA motion was properly denied because a non-movant met its prima facie burden by relying solely on its petition. Buzbee‘s position contravenes a multitude of cases where this court and others, while acknowledging the obligation to consider the pleadings as evidence, noted the non-movant‘s reliance on additional evidence. See Bass v. United Dev. Funding, L.P., No. 05-18-00752-CV, 2019 WL 3940976, at *17 n.20 (Tex. App.—Dallas Aug. 21, 2019, pet. denied) (mem. op.) (relying on petition “as well as numerous affidavits—from its business counterparts, employees, investоrs, and a forensic accounting expert“); Breakaway Practice, LLC v. Lowther, No. 05-18-00229-CV, 2018 WL 6695544, at *2 (Tex. App.—Dallas Dec. 20, 2018, pet. denied) (mem. op.) (relying on verified rule 202 petition and
We are aware of one court of appeals that has stated that the TCPA “allows a nonmovant to rely on its pleading to establish a prima facie case.” Rogers v. Soleil Chartered Bank, No. 02-19-00124-CV, 2019 WL 4686303, at *7 (Tex. App.—Fort Worth Sept. 26, 2019, no pet.) (mem. op.). The court went on to caution, however, that a party who chooses to rely only on its pleading “gambles that the often-times conclusory and sketchy аllegations of a notice pleading will not satisfy the clear and specific burden of establishing a prima facie case.” Id. The Rogers court ultimately concluded that the non-movant‘s “gamble did not pay off,” because the non-movant‘s pleading lacked the specificity necessary to establish a prima facie case for each of the non-movant‘s claims. Id. Rogers upheld dismissal in that case not because the plaintiff failed to present evidence, but because the petition allegations were too conclusory. To the extent Rogers holds that allegations alone would suffice to support a non-movant‘s prima facie case, Rogers is not binding on this court, and we respectfully disagree.
Buzbee also asserts that the appropriate standard of review for TCPA dismissal motions requires thаt we accept his allegations as true and for that reason no additional evidence is needed. We think Buzbee reads too much into the standard of review. In determining whether the TCPA applies in the first instance, a court may look solely to a plaintiff‘s pleading and, in doing so, accept the allegations as true insofar as they describe the nature of the claims. See Hersh, 526 S.W.3d at 467. To be sure, in the second step, we view the pleadings and the evidence in the light most favorable to the non-movant. See Stallion Oilfield Servs., Ltd. v. Gravity Oilfield Servs., LLC, 592 S.W.3d 205, 214 (Tex. App.—Eastland 2019, pet. denied); Brugger v. Swinford, No. 14-16-00069-CV, 2016 WL 4444036, at *2 (Tex. App.—Houston [14th Dist.] Aug. 23, 2016, no pet.) (mem. op.); Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214-15 (Tex. App.—Houston [1st Dist.] 2014, no pet.). But accepting all allegations as true for purposes of establishing a prima facie case—without concomitantly demanding evidence that is legally sufficient to establish the allegations as factually true if it is not countered, see Lipsky, 460 S.W.3d at 590—would nullify the very purpose of the TCPA‘s burden-shifting mechanism. Indeed, the burden would never shift at all.
We therefore reject Buzbee‘s argument that he may satisfy his prima facie evidentiary burden under the TCPA by relying solely on the allegations in his petition. Once the court is satisfied that the Act applies and the burden shifts to the non-movant, the TCPA requires something beyond allegations in the pleading “to support a rational inference that an allegation is true.” Id. Allegations alone are not sufficient.
Because Buzbee did not present clear and specific evidence to establish a prima facie case for his Election Code claim, Clear Channel and Turner were entitled to dismissal of that claim, as well as the civil conspiracy allegation. We overrule Buzbee‘s
C. Buzbee‘s Request for Additional Discovery
In a final issue, Buzbee challenges as an abuse of discretion the trial court‘s refusal to allow limited and narrowly targeted discovery. Emphasizing In re SSCP Management, Inc., 573 S.W.3d 464, 471 (Tex. App.—Fort Worth 2019, orig. proceeding), Buzbee argues that good cause existed to permit the discovery because the evidence appellees contend Buzbee has failed to present is exclusively in their control. In response, appellees argue that Buzbee‘s request was untimely, he failed to show good cause, he represented that he needed no discovery because his allegations were suffiсient, he obtained no ruling, and discovery is unnecessary because Buzbee has no live claims. We agree with appellees that, because Buzbee stated that he did not need discovery to prove his prima facie case but requested it only if the court disagreed, the court did not abuse its discretion in dismissing the claim without allowing discovery. We address only that point because it is dispositive.
“[A]ll discovery in the legal action” is generally suspended when a party files a TCPA motion to dismiss.
In his response, Buzbee requested the opportunity for limited discovery “should the court be inclined to grant dismissal.” At the hearing, the parties discussed Buzbee‘s request for additional discovery to support his claims. Buzbee‘s attorney argued, “I‘ve alleged facts that have to be accepted as true. I don‘t have to have an affidavit to support it, any of that stuff. . . And obviously I‘m here today standing on my first amended petition. . . . [B]ut what I‘m allowed to do in the interim, if I show good cause—and I think I have—is to get very limited discovery.” Along those lines, Buzbee reiterated in his supplemental brief: “To unearth that evidence, if it is necessary at this stage, Mr. Buzbee seeks two depositions—that of a Clear Channel corporate representаtive and of Mr. Turner—and limited document discovery.” The trial court did not rule expressly on Buzbee‘s request before signing the orders at issue, which dismissed Buzbee‘s claims without allowing any discovery.
Buzbee argued that he could meet his prima facie case by relying exclusively on the allegations in his petition. He sought discovery only if the court disagreed with his premise that pleadings alone are sufficient to defeat a TCPA motion to dismiss and that, based on his pleading, he met his prima facie burden. The TCPA, however, states that the trial court “shall dismiss” the action if the plaintiff fails to meet his evidentiary burden.
Conclusion
We affirm the trial court‘s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Christopher, Jewell, and Zimmerer.