Lead Opinion
OPINION
In this interlocutory appeal, State Senator Bob Deuell challenges the trial court’s denial of his motion to dismiss pursuant to the Texas Citizens Participation Act (TCPA). Texas Right to Life Committee, Inc. (TRLC) sued Deuell for tortious interference with contract after Deuell’s lawyers sent cease-and-desist letters to two radio stations that had been airing TRLC’s political advertisements concerning Deuell and the stations stopped airing the ads. Deuell argued that the lawsuit should be dismissed under the TCPA because the letters were an exercise of his free speech rights. The trial court denied the motion. We affirm.
Background
In March 2014, Deuell was a candidate in the Republican primary for re-election as State Senator for Senate District 2, and he faced two challengers. None of the candidates received the necessary votes to win the March primary election. As a result, Deuell and one of the challengers, Bob Hall, faced each other in a run-off election on May 27,2014.
During the Eighty-Third Session of the Texas Legislature in 2013, Deuell had authored Senate Bill 303, which related to advance directives. TRLC, an advocacy political action committee, opposed SB 303. On May 6, 2014, during the run-off election
Before you trust Bob Deuell to protect life, please listen carefully. If your loved one is in the hospital, you may be shocked to learn that a faceless hospital panel can deny life-sustaining care .... Bob Deuell sponsored a bill to give even more power to these hospital panels over life and death for our ailing family members. Bob Deuell turned his back on life and on disabled patients.
On May 14, 2014, Deuell’s lawyers sent cease-and-desist letters to Cumulus and Salem, urging that they cease airing the advertisement. In relevant part, the letters, which were essentially identical, stated:
We represent the Honorable Texas State Senator Bob Deuell, and we have become aware of defamatory advertisements published in certain media outlets which were airing and re-airing a non-use campaign ad by Texas Right to Life PAC (not a candidate ad).
These false and defamatory statements completely and totally misrepresent Senator (and Medical Doctor) De-uell’s position on Patient Protection and End of Life Legislation and completely and totally misrepresent Senate Bill 303. Specific FALSE content of this ad includes the following:
Defamation:—“Bob Deuell sponsored a bill to give even more power to these hospital panels over life and death for our ailing family members. Bob Deuell turned his back on life and on disabled patients.”
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If your station has been running this ad, you are hereby put on notice of the false and defamatory statements contained therein. Any further publication of this ad will shift your conduct from reckless disregard to intentional and actual malice.
THEREFORE, WE RESPECTFULLY DEMAND THAT YOU IMMEDIATELY CEASE AND DESIST FROM INTENTIONALLY DEFAMING TEXAS STATE SENATOR BOB DEUELL BY REPUBLISHING THESE FASLE [SIC] AND DEFAMATORY STATEMENTS BY RE-AIRING THE ADVERTISEMENT, AS OUTLINED.
LITIGATION HOLD & PRESERVATION DEMAND
You are hereby on notice and should have reason to believe that litigation may result from the claims described above.
(Emphasis in original.) That same day, Cumulus and Salem notified TRLC “that agents of Mr. Deuell had contacted them and that they were suspending the airing of [TRLC’s] commercials based upon the legal threats made by Mr. Deuell.” TRLC paid to produce a new advertisement that Cumulus and Salem agreed to air, and also contracted with CBS Radio Texas for additional airtime to compensate for the lost advertising time.
TRLC sued Deuell for tortious interference with contract and sought damages for the expenses it incurred to produce the new advertisement and to buy additional airtime with CBS Radio Texas. Deuell moved to dismiss the suit pursuant to the TCPA, arguing that the cease-and-desist letters were an exercise of his right to free speech, and that the suit was precluded by the affirmative defenses of judicial privilege and illegal contract. TRLC responded
Discussion
In his first issue, Deuell contends that the trial court erred in denying his motion to dismiss because he showed that TRLC’s tortious interference suit was related to his exercise of his right of free speech, and TRLC failed to establish by clear and specific evidence a prima facie case for each essential element of its tortious interference claim.
A. Standard of Review and Applicable Law
To obtain dismissal under the TCPA, a defendant must show “by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of the right of free speech; the right to petition; or the right of association.” Tex. Civ. Prac. a Rem. Code § 27.005(b). In deciding whether to grant a motion under the TCPA and dismiss the lawsuit, the statute instructs a trial court to “consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.” Id. § 27.006.
If the movant meets its burden to show that a claim is covered by the TCPA, to avoid dismissal of that claim, a plaintiff must establish “by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id. § 27.005(c). In In re Lipsky,
If the nonmovant establishes a pri-ma facie case, the burden shifts back to the movant. In order to obtain dismissal, the movant must establish by a preponderance of the evidence each essential element of a valid defense to the nonmovant’s claim. Tex. Civ. Prac. & Rem. Code § 27.005(d).
We review de novo a trial court’s ruling on a motion to dismiss under the TCPA. Better Bus. Bur. of Metro. Houston, Inc. v. John Moore Servs., Inc.,
B. Did TRLC establish a prima facie case?
In his first issue, Deuell argues that the trial court erred in denying his motion to dismiss because TRLC’s suit is related to Deuell’s exercise of his free speech rights and TRLC failed to adduce clear and specific evidence to support each element of its claim. TRLC argues that Deuell did not show that the suit is related to Deuell’s exercise of his free speech rights, and, even if he did, TRLC satisfied its eviden-tiary burden to establish a prima facie case. For purposes of this interlocutory appeal, we will assume without deciding that the suit relates to Deuell’s exercise of his right of free speech, because we agree with TRLC that it established a prima facie case of its claim for tortious interference.
The essential elements of a tortious interference with contract claim are: (1) the existence of a contract subject to interference, (2) the occurrence of an act of interference that was willful and intentional, (3) that the act was a proximate cause of the plaintiffs damage, and (4) that actual damage or loss occurred. Holloway v. Skinner,
1. Existence of contract subject to interference
TRLC adduced clear and specific evidence establishing a prima facie case of the first element of its tortious interference claim: the existence of the two contracts with which it alleges Deuell interfered. In an affidavit accompanying its response to Deuell’s motion to dismiss, James J. Graham, the Executive Director of TRLC, averred that “[o]n or about May 7, 2014, [TRLC] entered into a contract with Cumulus Media Dallas-Fort Worth to secure airtime for [its] radio advertisements.” Graham averred that TRLC paid approximately $17,935 pursuant to that contract. Graham further averred that “[o]n or about May 8, 2014, [TRLC] entered into a contract with Salem Communications to secure airtime for [its] radio advertisements.” Graham averred that TRLC paid approximately $22,015 pursuant to that contract. Graham further averred that Cumulus and Salem performed under the contracts—they ran the advertisements that were the subject of the contracts—until they each received cease-and-desist letters from Deuell on May 14.
Deuell contends that TRLC failed to satisfy its burden because it did not attach the contracts themselves and because Graham’s affidavit is conclusory and includes insufficient detail regarding the contracts’ terms. But Graham did not merely make a conclusory statement that the two contracts existed. Cf. Lipsky,
Our dissenting colleague asserts that Graham’s affidavit “does not establish the existence of a contract” because Graham did not present sufficient detail regarding the contracts’ terms. But the cases on which the dissent relies do not support reversal. In Better Business Bureau of Metropolitan Houston, our court concluded that John Moore had not met its burden to adduce clear and specific evidence of the existence of a contract where John Moore merely alleged that the Bureau had interfered with John Moore’s customer contracts but “did not present evidence regarding the terms” of any of the contracts it alleged existed between John Moore and any of the individuals registering complaints on the Bureau’s website.
Deuell also contends that, by failing to attach the contracts to its response, TRLC fell short of its burden to demonstrate that the contracts are subject to interference. See Holloway,
We note, however, that TRLC did not bear the burden to disprove the existence of Deuell’s potential defenses. Rather, it was Deuell who bore the burden to prove a
In sum, we conclude that TRLC met its burden to establish, by clear and specific evidence, the existence of contracts subject to interference between TRLC and Cumulus and Salem for the purchase of airtime for TRLC’s radio advertisement concerning Deuell. See Tex Civ. Prac. & Rem. Code § 27.005(c); see also Lipsky,
2. Willful and intentional act of interference
TRLC also adduced clear and specific evidence establishing a prima facie case of the second element of its tortious interference claim: a willful and intentional act of interference. Graham averred that Cumulus and Salem both notified TRLC “that agents of Mr. Deuell had contacted them and that they were suspending the airing of our commercials based upon the legal threats made by Mr. Deuell.” Deuell attached copies of the letters sent to Cumulus and Salem, which showed that De-uell threatened to sue Cumulus and Salem unless they stopped airing the ads.
Deuell contends that this evidence does not satisfy TRLC’s burden because it is not sufficiently clear and specific. In particular, Deuell complains that Graham’s affidavit does not specify which individuals at Cumulus and Salem notified TRLC, how they notified TRLC that the advertisements would be suspended, who at TRLC received the notice, or what the exact content of the notice was. But the failure of TRLC to adduce more detailed evidence does not negate the evidence—adduced by Deuell—showing that Deuell’s lawyers contacted Cumulus and Salem and urged them to stop airing the advertisements. The May 14th letters demanded that Cumulus and Salem stop airing the advertisements, and Graham averred that Cumulus and Salem did in fact stop running the advertisements on May 14th. This is clear and specific evidence of a willful and intentional act of interference. Lipsky,
Deuell also complains that Graham’s averments regarding interference constitute hearsay. But Deuell failed to preserve this complaint because he did not obtain a ruling on this objection from the trial court. See Wilson v. Gen. Motors Acceptance Corp.,
Thus, considering all the evidence in a light favorable to TRLC as the nonmovant, TRLC met its burden to establish a prima facie case of a willful and intentional act of interference by clear and specific evidence. See Tex. Civ. Prac. & Rem. Code § 27.005(c); see also Lipsky,
3. Interfering act proximately caused plaintiffs actual damage or loss
Finally, TRLC adduced clear and specific evidence establishing a prima facie case of the third and fourth elements of its tortious interference claim—that the interfering act proximately caused TRLC actual damage or loss. Graham averred that after TRLC learned that Cumulus and Salem were no longer running its advertisements based upon the letters from Deuell’s lawyers, TRLC “contacted our legal counsel who immediately contacted Cumulus ... and Salem ... in an attempt to resume our radio advertisements airing.” Graham goes on to aver that Cumulus and Salem “were informed by counsel for [TRLC] that we considered the efforts of Mr. Deuell to be tortious interference with our existing contract and a violation of our right to engage in political speech.” However, when Cumulus and Salem did not resume airing the advertisements, TRLC “agreed to produce a new radio advertisement and replace the original radio advertisement suspended due to the threats of Mr. Deuell.” Graham further averred:
Recognizing that Mr. Deuell’s interference had disrupted the timing and effectiveness of the radio advertisements originally contemplated by [TRLC], the organization recognized that it needed to take remedial measures to make up for the lost advertising time so it contracted with CBS Radio Texas for additional airtime in the Dallas/Ft Worth media market for the new radio advertisement. [TRLC] paid approximately $15,037 for the placement and airing of the new radio advertisements with CBS Radio Texas.
Thus, TRLC met its burden to adduce a prima facie case by clear and specific evidence that Deuell’s act caused it actual damage or loss, in the form of costs to produce a new radio advertisement and to procure additional airtime to make up for time the original advertisement had been suspended.
Deuell and our dissenting colleague assert that TRLC was required to adduce more specific evidence about its damages, such as the number of instances in which
In summary, we hold that TRLC proved, by clear and specific evidence, a prima facie case supporting its tortious interference with contract claim.
We overrule Deuell’s first issue.
C. Did Deuell establish the affirmative defense of judicial privilege?
In his second issue, Deuell contends that even if TRLC met its burden to prove a prima face ease, the trial court erred by failing to grant his motion to dismiss because he established the affirmative defense of judicial privilege by a preponderance of the evidence. Specifically, Deuell argued that Deuell’s lawyers’ letters to Cumulus and Salem were subject to the absolute judicial privilege, because they were made in contemplation of a judicial proceeding.
1. Applicable law
The judicial privilege applies to bar claims that are based on communications related to a judicial proceeding that seek defamation-type damages in name or in substance, i.e., damages for reputational harm. Communications made in the course of a judicial proceeding are absolutely privileged and will not serve as the basis of a civil action for libel, slander, or business disparagement, regardless of the negligence or malice with which they are made. See James v. Brown,
Judicial privilege also extends to statements made in contemplation of and preliminary to judicial proceedings. See Watson v. Kaminski,
However, the judicial privilege does not apply to every type of claim. Originally, the judicial privilege provided protection only from defamation claims, including slander and libel. See Bird v. W.C.W.,
In Bird, a father brought a negligent misdiagnosis claim against a psychologist who had erroneously concluded, and averred in a family court proceeding, that the father had sexually abused his son. Id. The father sought damages for emotional harm and financial damage. Id. The Texas Supreme Court concluded that “the essence of the father’s claim is that it was [the psychologist’s] communication of her diagnosis that caused him emotional harm and related financial damages.” Id. at 768-69 (emphasis in original). Because the psychologist’s communications were made during the course of a judicial proceeding and the father’s damages flowed from rep-utational harm caused by those communications, the Supreme Court held that the judicial privilege applied, and rendered judgment in favor of the psychologist. Id. at 772.
Following Bird, courts have applied the privilege to claims other than libel, slander, and defamation, including tortious interference. But they have done so only “when the essence of a claim is damages that flow from communications made in the course of a judicial proceeding” and the plaintiff seeks reputational damages. See Laub v. Pesikoff,
2. Analysis
We conclude that TRLC’s tortious interference claim is not protected by the absolute judicial privilege, because TRLC does not seek to recover reputational or defamation-type damages.
Deuell asserts that the judicial privilege forecloses TRLC’s suit, arguing that judicial privilege categorically applies to tor-tious interference claims that are based upon letters sent by a lawyer threatening litigation. But no Texas court has extended the judicial privilege this far, and Bird made clear that the purpose of the privilege is to foreclose claims for reputational damages, regardless of the label the claim is given. See Bird,
The cases on which Deuell relies do not support his argument. For example, in Laub v. Pesikoff,
Similarly, in Crain, Crain, a non-lawyer, operated a debt collection business in which he filed lien affidavits.
Finally, in Crain v. Smith,
These authorities demonstrate, consistent with Bird, that the judicial privilege may apply to various claims, regardless of the label they are given, but only if the damages sought are essentially defamation or reputational damages. See Crain,
We overrule Deuell’s second issue.
D. Did Deuell establish the affirmative defense of illegality?
In his third issue, Deuell contends that even if TRLC met its burden to prove a prima face case of tortious interference, the trial court erred by failing to grant his motion to dismiss because he established the affirmative defense of illegality by a preponderance of the evidence. Deuell argues that TRLC’s advertisements violated section 255.001 of the Texas Election Code, and therefore, the contracts to ah’ the advertisements were illegal. Accordingly, Deuell argues that TRLC cannot maintain its suit because a defendant cannot be held liable for tortiously interfering with an illegal contract. See GNG Gas Sys., Inc. v. Dean,
Section 255.001 of the Election Code was enacted in 1987 and required certain disclosures be made regarding, among other things, the identity of the person paying for political advertisements. In 2003, the Court of Criminal Appeals held that section 255.001 violated the First Amendment of the United States Constitution. See Doe v. State,
We overrule Deuell’s third issue.
We affirm the trial court’s order. We dismiss as moot Deuell’s motion for leave to file a supplement to his appellant’s brief.
Jennings, J., dissenting.
Notes
. We express no opinion about the merits of a defense based on a cancellation or other contract provision. We likewise express no opinion about the merits of the defense of justification. See Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 80 (Tex. 2000) (justification is an affirmative defense to tor-lious interference with contract; justification defense can be based on exercise of either one’s own legal rights or a good-faith claim to a colorable legal right). Rather, we address only the two defenses Deuell raised—judicial privilege and illegality—below.
. Judicial privilege was also extended to actions based upon the filing of a lis pendens. See Griffin v. Rowden,
. Deuell argues that TRLC's failure to address judicial privilege and illegal contract in response to his motion to dismiss means that he established these defenses by a preponderance of the evidence and that TRLC has waived any argument regarding these defenses on appeal. But it was Deuell, the movant, who bore the burden to establish each essential element of a valid affirmative defense by a preponderance of the evidence. See Tex. Civ. Prac. & Rem. Code § 27.005(d). This holds true regardless of TRLC's response. See id.
. Deuell also relies upon Griffin v. Rowden,
. TRLC argues that Deuell waived his affirmative defenses by failing to include them in his answer. Because we have determined that Deuell did not carry his burden on either of the defenses he raised on appeal, we do not reach the question of whether Deuell was
Dissenting Opinion
Dissenting
[A] calculated falsehood, inserted into the midst of a heated political campaign, can unalterably distort the process of self-determination. For the use of a known lie ... is at once at odds with the premises of democratic government and the orderly manner in which economic, social, and political change is to be effected. Half-truths strung misleadingly together are no less destructive of democracy than an outright lie.[1 ]
Because the majority errs in concluding that appellee, Texas Right to Life Committee, Inc. (“TRLC”), established by clear and specific evidence a prima facie case for each essential element of its claims of tor-tious interference with contract against appellant, former state Senator Bob Deuell, I respectfully dissent.
In the May 4, 2014 Texas Republican Primary election, Deuell, a sitting Texas State Senator, sought re-election. Days later, with Deuell facing a challenger in the May 27, 2014 run-off election, TRLC produced a radio advertisement about Deuell’s sponsorship in 2013 of Senate Bill 303, “relating to advance directives and health care and treatment decisions.”
Before you trust Bob Deuell to protect life, please listen carefully. If your loved one ⅛ in the hospital, you may be shocked to learn that a faceless hospital panel can deny life-sustaining caret—Igiving you only 10 days to find another facility for your mother, dad, or young child even if the patient is conscious. Your civil liberties and your right to life should not go away once you are in the hospital. This actually happens to families across Texas, and Bob Deuelfl] sponsored a bill to give even more power to these hospital panels over life and death for our ailing family members. Bob Deuell turned his back on life and on disabled patients. Don’t trust him to protect you if you are sick. ...
And TRLC contracted with Cumulus Media Dallas-Fort Worth (“Cumulus”) and Salem Communications (“Salem”) to broadcast its advertisement on their radio stations.
Subsequently, Deuell sent a series of cease-and-desist letters to the radio stations, complaining that TRLC’s advertisement was false and defamatory.
Texas Catholic Bishops joined a coalition of the state’s largest pro-life organizations, healthcare providers, and religious denominations to endorse legislation introduced by state Senator Robert Deuell ... to improve the state’s handling of end-of-life care in a way that balances the protections of human life and a medical provider’s conscience (SB 303).
Senate Bill 303 would reform the Texas Advance Directives Act of 1999 ... to improve the statute’s clarity and consistency about many ethical decisions amid the complexity of end-of-life care. For instance, the current statute contains definitions that could be interpreted to allow for the premature withdrawal of care for patients who may have irreversible, but non-terminal, conditions; fails to ensure that all patients are provided with basic nutrition and hydration; and falls short in ensuring the clearest and most compassionate communication between medical professionals and patient families when disagreements arise.
The reforms set forth by Sen. Deuell’s bill address those shortcomings by empowering families and surrogates, [and] protecting physicians and other providers .... Senate Bill 303 also earned the endorsement of the Texas Medical Association, Texas Hospital Association, Catholic Health Association—Texas, Texas Alliance for Life, and the Baptist General Convention of Texas.
Texas Catholic Conference, Texas Bishops Endorse SB 303 [t]o Improve End-[o]f-IAfe Care (Jan. 31, 2013), http://www. txcatholic.org/news/300-bishops-applaud-advance-directives-reform-bill (attached as an appendix to this opinion).
After the Cumulus and Salem radio stations suspended the airing of TRLC’s advertisements, TRLC purchased a new advertisement to air on the stations, and it contracted for airtime with CBS Radio Texas (“CBS”). And after Deuell was defeated in the run-off election, TRLC filed the instant suit against him, alleging that he had tortiously interfered with its contracts with Cumulus and Salem. Deuell moved to dismiss the suit under the Texas Citizens Participation Act (the “TCPA”).
The purpose of the TCPA 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.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002 (Vernon 2015). It “protects citizens from retaliatory lawsuits that seek to intimidate or silence them” from exercising their First Amendment freedoms and provides a procedure for the “expedited dismissal of such suits.” In re Lipsky,
A defendant who believes that a lawsuit is based on his valid exercise of First Amendment rights may move for expedited dismissal of the suit. In re Lipsky,
If the initial showing is made, the burden then shifts to the plaintiff to establish by “clear and specific evidence” a prima facie case for each essential element of its claim. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); Lipsky,
In determining whether a legal action should be dismissed, “the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.” Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a). We review the pleadings and evidence in a light favorable to the plaintiff. Newspaper Holdings, Inc.,
Here, Deuell asserted in his motion to dismiss that TRLC’s lawsuit against him is based on his exercise of the right of free speech. See Lipsky,
The record shows that TRLC’s claims are based on Deuell’s statements, which were contained in letters he wrote to the radio stations running TRLC’s advertisement, complaining that it had misrepresented the purpose and effect of legislation he had sponsored as a senator for the State of Texas. The complained-of statements constitute “communications,” as defined in the statute. See id. § 27.001(1). Further, the statements regard a “matter of public concern,” as defined, because they concern issues related to the government and a public official, i.e., Deuell’s comment on political advertisements relating to him, as a senator, during an election, concerning legislation that he sponsored in the Texas Senate. See Tex. Crv. Prac. & Rem. Code Ann. § 27.001(7).
Because Deuell established that the TCPA applies to TRLC’s claims against him, the burden then shifted to TRLC to establish by “clear and specific evidence” a prima facie case for each essential element of its claims. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); Lipsky,
TRLC asserts that it had contracts with Cumulus and Salem for the broadcasting of its advertisement leading up to the May 27, 2014 run-off election. Deuell interfered with TRLC’s contracts by threatening litigation against the radio stations if they did not suspend the broadcasting of its advertisement. His letters resulted in the two radio stations suspending TRLC’s advertisement and caused it to lose two days of airtime. And TRLC was forced to purchase a new advertisement and contract for airtime with CBS.
As evidentiary support, TRLC presented the affidavit of its executive director, James J. Graham. In his affidavit, Graham testified that on May 6, 2014, TRLC contracted with Malone Media Design (“Malone”) to produce a radio advertisement for the Dallas and Fort Worth media markets concerning Deuell’s “voting record” for $450. On May 7, 2014, TRLC entered into a contract with Cumulus for the placement and airing of the radio advertisement for “approximately $17,935.” And on May 8, 2014, TRLC entered into a contract with Salem for the placement and airing of the radio advertisement for “approximately $22,015.”
Graham’s testimony, standing alone, does not establish the existence of a contract. See Prudential Ins. Co. of Am.,
This Court recently reached the same conclusion in a case with similar facts. See Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc.,
Graham’s testimony also does not establish that Deuell committed a willful and intentional act of interference with any contract. See Prudential Ins. Co. of Am.,
“Inducing a contract obligor to do what it has a right to do is not an actionable interference.” ACS Inv’rs, Inc. v, McLaughlin,
Moreover, a licensed radio station “must operate in the public interest.” United States v. Midwest Video Corp.,
Thus, for a radio station to execute an agreement to “broadcast all advertisements tendered to [it], without qualification” would constitute an “illegal” contract because a licensee “cannot lawfully delegate [its] duty or transfer the control of [its] station” to another. Nat’l Broad. Co.,
Here, because TRLC did not present any of the details about the terms of its contracts with Cumulus and Salem, it did not present “clear and specific evidence” that an “obligatory provision” of the contracts was breached.
At the hearing on Deuell’s motion to dismiss, the following exchange took place between the trial court and counsel for TRLC:
THE COURT: You were off the air for two days?
TRLC: We were off the air for two days.
THE COURT: How are you going to— this is just a curiosity here. How are you going to prove damages for the two days?
TRLC: I can do it right now. I can prove them almost to the penny, and I can— I can put on a witness who we’re prepared to do.
THE COURT: That’s not part of this Motion. As I said, that was a curiosity on my part.
As an element of its prima facie case, however, TRLC was required to present evidence of its damages. See Prudential Ins. Co. of Am.,
Again, a “prima facie case” “refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted.” Lipsky,
Graham’s testimony shows that TRLC did not merely pay Malone to produce a new commercial for Cumulus and Salem pursuant to the “compromise” that TRLC struck “to resume airing [of its] radio advertisement ].” Rather, TRLC signed a new contract with CBS, the terms of which it did not present to the trial court. And, according to Graham, TRLC paid just $450 to Malone to produce the original advertisement and $17,935 and $22,015 to Cumulus and Salem, respectively, to broadcast it over the total contract period. Nevertheless, TRLC asserts that it was forced to spend over $15,000 to cure the lost airtime, which Graham does not quantify in his affidavit, but TRLC’s counsel explained at the hearing constituted only a two-day period. “[Olpinions must be based on demonstrable facts and a reasoned basis.” In re Lipsky,
In sum, TRLC presented no evidence to establish any of the elements of its claims against Deuell for tortious interference with contract. See Prudential Ins. Co. of Am.,
Attachment
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. Turner v. KTRK Television, Inc.,
. Tex. S.B. 303, 83rd Leg., R.S. (2013).
. Senate Bill 303 actually proposed to extend from ten days to fourteen days the time to transfer a patient to an alternative health care provider. Compare Tex. Health & Safety Code Ann. § 166.046(e) (Vernon 2010 & Supp. 2016) (physician and health care facility "not obligated to provide life-sustaining treatment after the 10th day” after ethics committee’s written decision regarding withdrawal of life-sustaining treatment), with Senate Comm, on Health & Human Servs., Bill Analysis, Tex. S.B. 303, 83rd Leg., R.S. (2013) (physician and health care facility "not obligated to provide life-sustaining treatment after the 14th day”). Senate Bill 303 also proposed to extend from 48 hours to 7 days the family notification period in advance of an ethics committee meeting regarding a decision to withhold or withdraw life-sustaining treatment. Compare Tex. Health & Safety Code Ann. § 166.046(b)
. See Tex Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (Vernon 2015).
. In support of its holding, the majority relies, in part, on Martin v. Bravenec, No. 04-14-00483-CV,
. The Communications Act of 1934 (the "Act”) "forbids any person from operating a broadcast station without first obtaining a license” from the Federal Communications Commission. United States v. Midwest Video Corp.,
. If a licensee permits "any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station.” 47 U.S.C. § 315(a), (b)(2)(D) ("A candidate meets the requirements of this subparagraph if, in the case of a radio broadcast, the broadcast includes a personal audio statement by the candidate that identifies the candidate, the office the candidate is seeking, and indicates that the candidate has approved the broadcast.”); see also KENS-TV, Inc. v. Farias, No. 04-07-00170-CV,
. The majority asserts that "TRLC did not bear the burden to disprove the existence of Deuell's potential defenses.” The Texas Supreme Court has rejected similar reasoning in another case involving a claim for tortious interference with contract. See ACS Inv’rs v. McLaughlin,