Bob Deuell v. Texas Right to Life Committee, Inc.

judgment for sanctions and affirm the attorney’s fees it incurred defend- recover Ferrante, Silaski, respects. all other ing Di Ramani TDCA against Drummond’s DTPA and Chapter Rule 13 pursuant

claims amended motion post-trial

until Urban’s sanctions, in December

for which was filed after the nonsuit.

2013—14months discussed, for previously “[s]anctions

As before

alleged violations known movants DEUELL, Appellant Bob ruling hearing if a trial are waived Finlay, pretrial.” not secured Arms, Remington 525; generally see LIFE TEXAS RIGHT TO (holding that failure to at 170 “the COMMITTEE, INC., ruling discovery pretrial dis- obtain Appellee commencement putes that exist before any claim for trial constitutes a waiver NO. 01-15-00617-CV conduct”). on that Urban based sanctions Texas, Appeals Court of pretrial for these request not sanctions did (1st Dist.). Houston As was the ease matters until after trial.

Finlay, conduct matters at pre-trial “the September Opinion issued trial; no complete ... all before issue 29, 2016 Rehearing December Overruled to determine testimony trial was needed known before improper whether conduct Finlay,

trial warranted sanctions.” at 526. right its to sanctions

Urban waived filing of the third- on Drummond’s

party by failing move complaints hearing request obtain

sanctions and for matters known

on its sanctions motion id. to trial. See party prior

D. Conclusion Urban waived

Having determined or that the trial court right

its to sanctions by denying its abuse discretion sanctions, motion for we

Urban’s amended fourth issue.

overrule Urban’s

Conclusion trial portion

We reverse the awarding Drummond judgment

court’s

attorney’s remand the case fees and we consistent this proceedings

further with trial affirm the

opinion on this issue. We amended motion

court’s denial Urban’s Terry Jr.,

N. Adams James Edwin Trai- III, Nixon, nor Joseph Nicholas Stepp, M. Appellee. George Hyde, Scott Micheál Edward Tschirhart, Appellant, Jennings, Panel consists of Justices Bland, and Huddle.

OPINION Huddle, Rebeca Justice interlocutory appeal, In this Sena- State tor Bob challenges the trial court’s Deuell denial of his motion to pursuant dismiss Participation the Texas Citizens Act (TCPA). Committee, Right to Texas Life (TRLC) Inc. for tortious inter- sued Deuell ference contract after Deuell’s law- with yers sent letters to cease-and-desist two airing radio stations that been TRLC’s had political concerning advertisements Deuell stopped airing stations the ads. argued Deuell that the lawsuit should be dismissed under TCPA because the speech letters were an exercise his free rights. trial The court motion. denied affirm. We

Background In March Deuell was candidate Republican in the primary re-election as State Senator for Senate District challengers. he of the can- faced two None necessary didates received the votes win result, primary the March election. As a challengers, one Bob Hall, faced each other a run-off election 27,2014. May During Eighty-Third Session Legislature Texas Deuell had au- thored Senate Bill which related TRLC, advocacy po- advance directives. an committee, litical action opposed SB 6, 2014, May during On the run-off election season, a contract to TRLC into entered production of a radio advertise- secure the If your station been running has this authorship criticizing

ment Deuell for ad, you hereby put on notice of the urging voters vote SB 303 and defamatory false statements con- airtime with two radio Hall. secured Any publication tained therein. further run Cumulus Dallas- stations Media your of this ad shift will conduct Communications, Fort and Salem Worth disregard to reckless intentional and ac- began airing the advertisement. tual malice. part, relevant the advertisement said: THEREFORE, WE RESPECTFUL- you protect Before trust Bob Deuell LY DEMAND THAT YOU IMMEDI- life, your If please carefully. listen loved ATELY AND CEASE DESIST FROM you may hospital, one is be INTENTIONALLY TEX- DEFAMING hospital to learn that a faceless shocked AS STATE BOB SENATOR DEUELL life-sustaining .... panel deny can care BY REPUBLISHING THESE FASLE give sponsored Bob Deuell a bill even [SIC] AND DEFAMATORY STATE- hospital panels power more to these BY THE MENTS RE-AIRING AD- ailing family for our over life and death VERTISEMENT, AS OUTLINED. back on members. Bob Deuell turned his LITIGATION HOLD & PRESERVA- patients. life disabled TION DEMAND 14, 2014, May lawyers sent On Deuell’s hereby on You are notice and should letters to Cumulus and cease-and-desist reason to litigation have believe that Salem, urging they airing that cease the may result the claims described part, advertisement. relevant the let- above. ters, identical, essentially stat- which were (Emphasis original.) That day, same ed: Cumulus and Salem notified TRLC “that represent We the Honorable Texas agents of had Mr. Deuell contacted them Deuell, State Senator Bob and we have suspending that airing and the defamatory of become aware advertise- upon commercials based the [TRLC’s] published ments in certain media outlets by legal Mr. Deuell.” TRLC threats made airing re-airing non- which were and a paid produce to a new advertisement that campaign Right use ad Texas to Life air, agreed to Cumulus and and also Salem (not ad). PAC a candidate with CBS Radio Texas for addi- contracted defamatory These false state- and compensate for tional airtime to the lost totally ments completely misrepre- and advertising time. (and Doctor) sent Medical De- Senator uell’s position Patient Protection and for TRLC tortious interfer- sued Deuell Legislation completely End of Life and damages sought contract and for ence with totally misrepresent and Senate Bill 303. expenses produce it incurred to the the Specific FALSE in- content this ad buy and to new additional advertisement following: cludes the Texas. airtime with Radio Deuell CBS pursuant to sponsored Defamation:—“Bob Deuell a to dismiss the suit the moved TCPA, give power arguing bill to even more to that the cease-and-desist these hospital panels right over life and an his free death letters were exercise family precluded by our suit was ailing speech, members. Bob and that the privi- of judicial his on life the turned back disabled affirmative defenses patients.” lege illegal responded contract. “Instead, plaintiff pro at 590-91. must apply, the TCPA did did, evidentiary enough

even if it it satisfied its vide detail show the factual prima of basis for its claim.” Id. at 591. The Su burden to establish a facie case preme tortious interference with contract. After a Court noted contrast “[i]n evidence,’ ‘prima hearing, the trial court denied the motion. ‘clear and facie legal meaning.” case’ has a traditional Id. Discussion at 590. “It refers to evidence sufficient as a if given matter of law to establish a fact issue, In his first Deuell contends that or (citing not rebutted contradicted.” Id. denying his trial court erred motion Co., Simonds Stanolind Oil & Gas because he showed that TRLC’s dismiss (1940)). 332, 136 “It is tortious suit related interference quantum ‘minimum of evidence neces- right speech, of his exercise free sary support a rational inference that spe- TRLC failed to establish clear and ” allegation (citing of fact is true.’ cific case for each evidence Co., In re DuPont de Nemours & E.I. essential element its tortious interfer- (Tex. 2004) curiam)); (per ence claim. Holdings, Newspaper Crazy see Inc. v. Applicable A. of Review Standard Ltd., Living, Hotel Assisted Law App.-Houston [1st Dist.] denied) (term “prima facie case” TCPA, To obtain dismissal under the burden,” a minimal “implies TCPA factual “by preponderance must show defendant quantum the “minimum of evidence neces- legal action is sary support a rational inference that on, to, in response relates or is true”). Thus, allegation of fact is right party’s of free exercise example, a defamation that im- “[i]n case speech; right petition; right TCPA, plicates pleadings and evidence Prac. a Rem. association.” Tex. Civ. Code when, where, that facts of ] the 27.005(b). establish § deciding grant In whether to said, defamatory and what was the nature motion under the TCPA and dismiss the statements, they damaged how and lawsuit, the statute instructs a trial court plaintiff should be sufficient resist a pleadings supporting and to “consider the Lipsky, motion to dismiss.” TCPA stating opposing affidavits the facts at 591. S.W.3d liability which the or defense is based.” Id. § 27.006. If pri- the nonmovant establishes a If the movant meets its burden case, ma facie shifts back to the burden

to show that a claim is covered dismissal, In the movant. order to obtain TCPA, claim, of that avoid dismissal must a preponder the movant “by plaintiff spe must establish clear and of each ance the evidence essential ele prima cific facie case for evidence each ment of a valid defense to the nonmovant’s of in question.” essential element the claim claim. & Rem. Civ. Prac. Code 27.005(c). Lipsky, § In In re 27.005(d). (Tex. 2015), the S.W.3d 579 Texas Su preme evidentiary Court clarified how this review de novo a trial court’s We applied. ruling should be It wrote: on a motion to standard dismiss under is, pleading—that general notice TCPA. Better Bus. Bur. Metro. Hous “[M]ere of Servs., Inc., ton, allegations merely that recite the elements Inc. v. John Moore (Tex. of a cause of App.-Houston action—will not suffice.” Id. [1st denied). In conducting this the first element of tortious inter- Dist.] its review, ference claim: pleadings evi existence the two we review alleges contracts with it in- Deuell light in a favorable to nonmov- dence accompanying terfered. an affidavit its Hotel, 416 Crazy at 80-81. ant. dismiss, response to Deuell’s motion to Graham, James J. Director prima Executive B. Did TRLC establish a facie TRLC, that or averred about “[o]n case? 7, 2014, May a con- [TRLC] entered into issue, argues In his that the first tract with Cumulus Media Dallas-Fort denying court motion to trial erred his Worth secure airtime radio ad- [its] TRLC’s suit is dismiss because related vertisements.” that Graham averred speech rights of his free Deuell’s exercise $17,935 paid approximately pursu- spe- and TRLC failed adduce clear and ant to that contract. Graham further support cific each element of 8, 2014, that May averred about “[o]n argues its claim. TRLC that Deuell not into [TRLC] entered a contract with Sa- that the suit is related to Deuell’s show lem Communications to airtime for secure and, speech rights, of his free exercise radio advertisements.” Graham [its] did, if he TRLC satisfied its eviden- even paid that TRLC approximately averred tiary burden to establish $22,015 pursuant to that contract. Graham purposes interlocutory case. For of this further averred Cumulus Salem deciding appeal, we will assume without performed contracts—they ran under that the suit relates Deuell’s exercise subject the advertisements that were the right speech, agree of free because we the contracts—until each received a prima with TRLC established letters from Deuell on cease-and-desist facie case of its claim for tortious interfer- May 14. ence. Deuell contends that TRLC failed

The elements essential tortious satisfy its burden because it did not attach (1) claim interference with contract are: themselves and because Gra contracts subject of a contract to inter existence conclusory ham’s affidavit is and includes (2) ference, the occurrence of an act of regarding insufficient detail the contracts’ merely But make a interference was willful intention terms. Graham did (3) al, conclusory con proximate act was a cause statement the two that the (4) Lipsky, tracts plaintiffs damage, that actu existed. Cf. (TCPA conclusory 592-93 affidavit is when damage Holloway or loss occurred. al facts). provide to In (Tex. underlying it fails Skinner, 793, 795-96 898 S.W.2d stead, the two 1995). Graham’s affidavit stated Accordingly, plead we evaluate the on which each of contracts was dates ings and evidence adduced connection made, parties identified the to each with motion to to dismiss determine contracts, identified the consideration prima established a whether TRLC facie in ex paid TRLC Cumulus and Salem for of its case each element tortious inter for to air the change agreement their by claim and evi specific ference clear advertisement, and averred TRLC dence. by actually performed and Cumulus Salem subject 1. Existence contract to 14, May until airing the advertisement interference let date Deuell sent the cease-and-desist support to specific TRLC clear and This is evidence sufficient adduced ters. contracts ex establishing a rational inference that the evidence facie case 686

isted, possible this not the Blunts’ evidence “indicate[d] and evidence was rebutted & or contradicted. See contract” but concluded that the evidence Civ. Prac. Rem. 27.005(c); Lipsky, 460 at vague conclusory support too to Code (prima requires only case mini 590 prima facie case their tortious interfer- necessary to quantum mum of evidence ence claim the Blunts neither at- because allegation inference that support rational memorializing a document tached their Hotel, true); Crazy of fact is contract nor detail con- offered about the Prods., (same); Prime Inc. v. S.S.I. terms. at 361. This tract’s case dif- Inc., 631, Plastics, 97 S.W.3d ferent TRLC because identified the coun- denied) pet. App.-Houston [1st Dist.] terparties to the contracts—Cumulus and (valid offer, acceptance, contract includes specific Salem—and adduced evidence minds, meeting party’s of the each consent the existence and material terms of the terms, delivery, and execution and agreements: agreed May par which can be shown evidence that $17,935 $22,015, pay respective- them effective); as ties treated contract ly, exchange for airtime for TRLC’s ad- Bravenec, 04-14-00483-CV, No. Martin v. May vertisement of the run- advance App.-San at *7 2015 WL off, performed by and Salem Cumulus denied) (af Antonio, May running May the advertisement until motion firming TCPA to dismiss denial when received Deuell’s cease-and-de- claim holding tortious interference Inc., Prods., sist letter. Prime See that Bravenec met to establish ex burden (existence may S.W.3d at 636 contract subject of contract to interference istence parties be shown evidence treated alleged pleadings where the existence “a effective). as contract property contract to sell” real and Brave- that, by failing Deuell also contends prospective nec the name of the “identified attach response, the contracts to its purchaser hearing”). at the fell short of its burden demonstrate that dissenting colleague Our asserts subject the contracts are to interference. not establish Graham’s affidavit “does (not- Holloway, See 795-96 of a contract” existence because Graham ing first of tortious interference element present not regarding sufficient detail subject claim is existence of a contract the contracts’ But terms. the cases interference). lines, Along the same our support which the dissent relies not do dissenting colleague asserts that Cumulus reversal. Better Business Bureau of obliged and Salem reserve Houston, Metropolitan our court conclud- right reject themselves the TRLC’s ad- ed that John Moore had not met its bur- if vertisements. He reasons that Cumulus den adduce clear and evidence right suspend and Salem had existence of contract where John advertisement, not liable Deuell could be merely alleged Moore that the Bureau had “inducing interference because a con- interfered with John Moore’s customer obligor tract right to do it has a to do what present contracts but “did not is an ACS actionable interference.” regarding any of of the terms” the con- Invs., McLaughlin, Inc. v. alleged tracts it existed between John (Tex. 1997). 431 any Moore register- of the individuals note, however, not We that TRLC ing complaints on the did Bureau’s website. Similarly, disprove 441 at 361. bear the to burden existence Serafine Blunt, Rather, 466 of Deuell’s App.-Austin potential S.W.3d 352 defenses. pet.), prove no the Austin court that Deuell to noted who bore the burden

687 interference TRLC also adduced spe defense TRLC’s tortious clear and establishing cific a prima evidence & Rem. Code facie claim. Tex. Civ. Prac. of case the second element of its tortious 27.005(d) § (moving party bears burden interference claim: a willful and intention by of preponderance evidence al of act interference. Graham averred that to non- each essential element of a defense Cumulus and Salem both notified TRLC claim). And, although the TCPA movant’s agents “that of Mr. Deuell had contacted to a section permits discovery relevant they them and that suspending motion, see Prac. & Rem. 27.003 Civ. airing of our commercials upon based 27.006(b), § Deuell did not adduce Code legal threats made Mr. Deuell.” Deuell or any evidence that cancellation other copies of attached the letters sent to Cu provided that Cu- terms contracts Salem, mulus and which showed that De- suspension mulus and Salem’s of the ad- uell threatened sue Cumulus and Salem vertisement would not amount to a breach. they stopped airing unless the ads. may contracts contain a provi- The such Deuell that contends this evidence does sion, provision but no evidence such a is satisfy not TRLC’s because it burden is and, accordingly, potential before us sufficiently specific. par not clear and In provision should not be existence such ticular, complains that Graham’s af today’s the basis for decision.1 specify fidavit does not individuals sum, met we conclude that TRLC its TRLC, at Cumulus and Salem notified how establish, by specific burden clear and notified TRLC the advertise evidence, subject the existence of contracts suspended, ments who at would be notice, TRLC and Cumu- received the or con interference between what exact tent of the notice failure of was. But the lus for the of airtime purchase and Salem TRLC to more detailed evidence adduce for TRLC’s concern- radio advertisement negate does evidence—adduced ing Deuell. See Tex Civ. Prac. & Rem. Code Deuell—showing lawyers Deuell’s 27.005(c); Lipsky, see also 460 S.W.3d at urged contacted Cumulus and Salem (prima only mini- requires case stop airing the advertisements. them necessary quantum mum evidence May 14th letters Cu The demanded support allegation rational inference that stop airing mulus and Salem the advertise true); Hotel, Crazy fact ments, and averred that Cumulus Graham (same); Bravenec, 2015 WL running stop and Salem in fact (burden al- pleadings *7 satisfied where May 14th. This is clear advertisements leged the existence of “a contract sell” of a willful and inten property real and Bravenec “identified the Lipsky, tional act interference. prospective purchaser name of the at the (prima requires facie case S.W.3d at hearing”). only quantum of minimum evidence neces of in- sary Willful and intentional act support inference alle rational true); gation Browning- of fact is terference contract; express opinion justification 1. We no about the merits lious interference with con- defense based a cancellation other be on exercise of either defense can provision. express opin- no tract We likewise legal rights good-faith one’s own or a claim to justifi- ion about the merits of defense of Rather, right). legal colorable we address cation. See Prudential Ins. Co. Am. v. Fin. raised—judicial only the two defenses Deuell Servs., Inc., (Tex. 2000) Rev. privilege illegality—below. (justification is an defense to tor- affirmative Ferris, Reyna, Inc. v. 865 S.W.2d 927 after TRLC learned that Cumulus and Sa- (Tex. 1993) (evidence showing defendant longer lem were no running its advertise- knowingly induced or intended contract ments upon the letters from Deuell’s stop performing contract obligor to under lawyers, legal TRLC “contacted our coun- actionable willful and intention establishes immediately sel who Cumulus contacted interference). al act of ... and Salem ... in an attempt to re- airing.” sume our radio advertisements complains also Deuell Graham’s goes Graham on to aver that Cumulus and regarding averments interference consti by Salem “were informed counsel for hearsay. preserve tute But Deuell failed to that we complaint [TRLC] this because he did obtain a considered the efforts ruling objection trial on this Mr. Deuell to be tortious interference with Accep court. v. Gen. Motors See Wilson our existing contract and a violation of our Corp., tance 897 S.W.2d 821-22 right to in engage political speech.” How- writ) App.—Houston no [1st Dist.] ever, when Cumulus and Salem did not form); in (hearsay affidavit is defect advertisements, airing resume TRLC Kasprzak, Vice “agreed produce a new radio advertise- denied) App.-Houston Dist.] [1st replace ment and original radio adver- (objection if to defect form no is waived suspended tisement due to the threats of secured). ruling Additionally, the TCPA Mr. Deuell.” Graham further averred: expressly contemplates consideration af Recognizing that Mr. Deuell’s interfer- fidavits. See Tex. Prac. & Rem. Civ. Code disrupted timing ence had and effec- (“In determining a legal 27.006 whether tiveness of the radio advertisements action should be dismissed under this originally contemplated by [TRLC], the chapter, plead the court shall consider organization recognized that it needed ings supporting opposing and affida take up remedial measures to for make stating liability vits the facts on which the lost advertising time so it contracted based.”). or defense is with CBS Radio Texas for additional Thus, considering all the in a evidence airtime in the Worth media Dallas/Ft nonmovant, light favorable to TRLC as the market for the new radio advertisement. TRLC a prima met its burden $15,037 paid approximately [TRLC] facie case of a willful and intentional act of placement airing of the new specific interference clear and evidence. radio advertisements with CBS Radio § 27.005(c); See & Rem. Code Civ. Prac. Texas. Lipsky, (prima 460 S.W.3d at 590 requires only quantum facie case minimum Thus, TRLC met its burden to adduce a necessary of evidence to support rational prima facie case clear specific evi- true); allegation inference fact is dence that Deuell’s act caused actual Hotel, (same). Crazy loss, damage or in the form of costs to produce a new radio advertisement and Interfering proximately act caused procure up additional airtime make plaintiffs damage actual or loss original time the advertisement had been Finally, TRLC clear adduced suspended. specific establishing case of fourth our dissenting colleague the third and elements of its as- tortious interference claim—that sert that required the inter adduce fering proximately act more damages, caused TRLC actu evidence about its damage al or loss. Graham averred that such as the number instances which supporting facie case its tortious original advertisements were sched contract air, of interference with claim. the content uled to but did advertisements, replacement number We overrule first Deuell’s issue. of times CBS Radio Texas aired adver tisements, whether the advertisements C. Did Deuell affirmative at same audience or judicial privilege? targeted defense of and Salem spots time as Cumulus ad issue, In con his second Deuell not im But the TCPA does vertisements. that if met tends even TRLC its burden to requirement. this pose such a While evi ease, a prove prima face the trial court necessary or at could be least useful dence by failing grant to his motion erred to merits, trial on the a at an eventual TCPA he dismiss because established the affirma to required nonmovant is not adduce all of judicial privilege pre tive defense they would, could, that or the evidence ponderance Specifically, the evidence. Lipsky, need at trial. 590-91 S.W.3d argued lawyers’ that Deuell’s let showing factual (pleadings and evidence subject to to ters Cumulus Salem were basis for claim is sufficient meet TCPA judicial privilege, the absolute because TCPA, burden). only contemplation in of a they judi Under the had were made supporting proceeding. cial to adduce evidence rational damages, to the inference as existence Applicable law parts. not their amount constituent judicial privilege applies The (TCPA only required at 590 nonmovant claims that based on communi to bar are support rational infer adduce evidence judicial proceeding to a cations related true). of fact is allegation ence that When defamation-type damages seek in that described above we consider substance, i.e., damages or in name light in to the favorable nonmovant harm. made reputational Communications do, TRLC, required as are we proceeding judicial in the course evidence, which was not rebutted or con will not serve absolutely privileged and as tradicted, is a rational support sufficient libel, slander, of a civil action the basis inference the advertisements were disparagement, regardless of or business com discontinued as result Deuell’s negligence or malice with spe munications and that TRLC incurred Brown, James v. are made. See replace cific costs the contracted-for (Tex. 1982); Reagan v. Guardian (evidence may advertising services. See id. 105, 166 Co., Ins. 140 Tex. S.W.2d Life only be direct or circumstantial and need (1942). privilege any This extends claim); Hotel, Crazy show factual basis for jurors, judges, statements made (prima facie case 80-81 re- counsel, parties, or and attaches witnesses only quantum minimum of evidence quires including aspects proceedings, all necessary to support rational inference court, open pre-trial statements made true). of fact is allegation there- We affidavits, any hearings, depositions, fore conclude TRLC met its burden to pleadings papers or other the case. specific adduce clear and evidence that the James, 637 at 916-917.

allegedly interfering act it actual caused privilege also extends Judicial damage or loss. contemplation to statements made summary, preliminary judicial proceedings. we hold that TRLC Kaminski, evidence, proved, by a See clear and Watson (Tex. 2001, App.-Houston sought damages [1st Dist.] 827 The father for emotional Bracey, no see also Thomas v. 940 harm pet.); damage. and financial Id. The Texas 340, (Tex. App.-San Supreme 342-43 Anto Court S.W.2d concluded “the es 1997, writ); Clark, nio no Russell v. 620 sence of the father’s claim is that was 865, (Tex. App.-Dallas psychologist’s] 869 [the S.W.2d Civ. communication of her n.r.e.). 1981, trigger privi diagnosis To the writ ref d that caused him harm emotional lege, be a relationship damages.” “there must be and related Id. at financial 768- correspondence pro the and the 69 in (emphasis original). tween Because psy the judicial posed existing proceeding, chologist’s communications were made during by considering judicial proceeding which decision is made the the course of a context, in resolving damages rep- entire communication and the father’s from flowed relevancy.” in all doubts favor of its Crain utational caused communi harm those (Tex. Smith, 58, 22 App.- cations, 62 Supreme v. S.W.3d the Court held that the 2000, Corpus pet.); Christi no judicial privilege applied, and rendered Krishnan v. Law Preston Hen in judgment psychologist. of the favor Id. Offices of richson, P.C., (Tex. 295, 83 302-03 at 772. denied) (no 2002, App.-Corpus Christi Bird, Following ap courts have requirement in that actual lawsuit filed be plied privilege to claims other than for judicial apply; only order privilege slander, libel, defamation, including statements are related a contem they tortious interference. But done have plated judicial proceeding). so only “when essence of a claim However, judicial privilege damages that flow from communications apply every type does of claim. judicial proceed in the of a made course Originally, judicial provided privilege ing” plaintiff reputational seeks claims, protection only from defamation damages. Pesikoff, See Laub v. 979 S.W.2d including slander and libel. See Bird v. (Tex. 686, App.-Houston [1st Dist.] (Tex. W.C.W., 1994).2 denied) writ (applying privilege to W.C.W., In v. Bird 868 S.W.2d 767 against husband’s claims psycho wife’s 1994), Supreme the Texas Court held that therapists who in offered affidavits divorce privilege in in apply should cases state; proceeding regarding wife’s mental party which a damages seeks that flow finding that claims for tortious interfer harm, alleged reputational regardless contract, conspiracy, ence civil with type alleged. of claim Id. at 772. The intentional of infliction emotional distress Bird Court extended the a privilege addition libel and slander were negligent claim for misdiagnosis, noting by judicial privilege barred because “the damages being sought “basi were essence each of is that these claims cally damages.” defamation Id. injury [husband] suffered as result Bird, brought negligent allegedly a father communication false state misdiagnosis against during judicial proceeding” claim ments psychologist concluded, erroneously damages who husband claimed essentially had family proceeding, damages) (emphasis origi averred court defamation sexually nal); the father had abused his son. Id. see Crain v. Unauthorized Practice privilege privilege applied Judicial was also to ac- cial extended to tortious interference upon filing pendens. tions based of a lis upon filing pendens). suit based of lis There is Rowden, See pendens no lis at issue in this case. Griffin n.r.e.) App.-Dallas (judi- writ ref’d Tex., Supreme Court Law Comm. and tortious interference after (Tex. App.-Houston in summary-judgment averred affidavits denied) 1999, pet. (applying physically [1st Dist.] that Laub abused wife. Id. at Laub) judicial privilege applied, plain granted summary 688-89. The trial court tortious with contract tiffs interference judgment ground that Laub’s suit against claim chair UPLC subcommittee judicial privilege. barred sought damages claim defamation because affirmed, appeal, 689. On this Court rea- label). a claim is under different Whether judicial privilege soning applied that subject judicial privilege question is a of because the of Laub’s essence claims was Bracey, 940 Thomas v. law. See S.W.2d that injury he a suffered result as (Tex. 1997, 340, Antonio App.-San 343 no of allegedly communication false state- pet.). during judicial ments a proceeding and sought Laub damages reputational for in- Analysis 2. jury. Id. at 691-92. conclude that TRLC’s tortious inter-

We protected by ference claim is not the abso- Crain, Crain, in Similarly, non-lawyer, a judicial privilege, lute because TRLC does operated a debt collection in business or reputational not seek to recover defa- he filed lien affidavits. 11 S.W.3d at damages.3 contrary, To the mation-type 331. The Practice of Unauthorized Law consequential con- seeks direct (UPLC) investigated, Committee and Leh- damages allegedly tract that from flowed mann, the chairman of the Houston sub- sending letters to Deuell’s cease-and-desist UPLC, against committee testified Cumulus and Salem. Lehmann, Crain. Id. at Crain 335. sued asserting testimony that Lehmann’s con- judicial privilege asserts that the

Deuell stituted tortious interference with Crain’s suit, arguing judi- TRLC’s forecloses Implicit business. Id. at 331-32. in Crain’s privilege categorically applies cial to tor- testimony claims was Lehmann’s claims that are tious interference based reputation. light harmed Crain’s See id. upon by lawyer threatening sent letters sought fact Crain recover litigation. But no Texas court has extended reputational injury, this court affirmed the far, judicial privilege this and Bird summary judgment favor UPLC’s privi- purpose made clear that the on the judicial privilege. based lege reputational is foreclose claims claim damages, regardless of the label the Smith, Finally, in 22 Crain v. Bird, given. 868 S.W.2d 772. See 2000, (Tex. no App.-Corpus pet.), Christi Smith, lawyer, sent Crain letter The cases which Deuell relies do client, advising Crain of support argument. example, his For behalf of Smith’s (Tex. discovery charged Laub v. had been Pesikoff, 979 S.W.2d her that Crain practice unauthorized law and de- App.-Houston Dist.] with [1st de- nied), manding damages client’s treating psy- payment his for her Laub sued wife’s libel, slander, a lien. resulting filing chotherapists for intentional distress, libel, slander, conspiracy, Crain sued Smith for infliction emotional Deuell, movant, appeal. argues es on But it 3. Deuell that TRLC's failure to address illegal each essen- judicial privilege contract in re- who bore the burden to establish sponse element defense his means that he tial of a valid affirmative dismiss motion preponder- preponderance of evidence. See defenses established these Civ. 27.005(d). This holds the evidence that TRLC has Prac. & Rem. Code true ance of regardless See any argument regarding response. defens- of TRLC's id. waived these tortious interference with contract to re- illegal. advertisements Accordingly, alleged cover for the harm to reputa- argues that TRLC cannot maintain tion. Id. a summary judg- Smith obtained its suit because a cannot defendant be held ment on the basis that her letter was liable for tortiously interfering with an ille subject judicial privilege, gal and the Cor- contract. Sys., See GNG Gas Inc. v. Dean, pus Appeals Christi Court of affirmed. Id. App.- at 63. denied) (if Amarillo writ performance of contract will result violation of Con demonstrate, These authorities consis stitution, statute, ordinance, contract is Bird, tent with judicial privilege illegal); Flynn Assocs., Bros. v. First Med. claims, may to various apply regardless of App.-Dallas given, the label if only are but (when n.r.e.) writ party refd sues damages sought essentially defamation upon illegal contract, courts do not Crain, or reputational damages. See suit); Davis, entertain see also Lewis v. n.1; Laub, at 335 & at 979 S.W.2d 468, 146, 145 Tex. 199 S.W.2d 148-49 Here, 691-92.4 the pleadings live and evi (1947) (contract to thing do which cannot that dence reflect TRLC does not seek performed be without violation of law is reputational defamation or damages, and void). we judicial thus conclude the privilege not apply does TRLC’s tortious interfer 255.001of Section the Election Code was Accordingly, ence claim. we hold that the in required enacted 1987 and certain dis- trial court did not in concluding err closures be regarding, among made other not prevail Deuell should upon things, identity person the of the paying defense. political 2003, for advertisements. Court of Criminal Appeals held that sec-

We overrule Deuell’s second issue. tion 255.001 violated First Amendment D. Did Deuell establish the the United affirmative States Constitution. See Doe illegality? State,

defense of v. Crim. 2003). App. acknowledged at oral issue, In his third Deuell contends that argument that section 255.001 not is even if prove TRLC met its burden basis for reversal. We therefore conclude interference, face case of tortious that Deuell did not affirma- trial court failing grant erred his tive of illegality. defense id. According- See motion to dismiss because he established ly, we that the hold trial court err the affirmative of illegality by defense concluding in that Deuell pre- should not preponderance of the evidence. Deuell ar- upon vail based the affirmative defense of gues that TRLC’s advertisements violated illegal contract.5 255.001 of Code, section the Texas Election therefore, the contracts to ah’ the We overrule Deuell’s third issue. Rowden, upon denied) 4. Deuell also relies v. (recognizing Dist.] writ Griffin 702 S.W.2d 692 App.-Dallas specifically writ turned on consideration of Griffin n.r.e.), ref’d appeals in which the pendens). court of lis judicial privilege held that applied to a tor- tious upon interference claim argues that was based 5. TRLC that Deuell waived his affir- filing pendens. of a lis by failing is mative defenses to include them in Griffin inapposite pen- here because there is no lis his answer. Because we have determined that 694; dens at issue. See id. at Prappas carry Deuell did not his burden on either of Ass'n, Meyerland Cmty. Improvement appeal, the defenses he raised on we do not (Tex. App.-Houston question [14th reach the of whether Deuell was Conclusion a radio advertisement about Deuell’s duced in Bill sponsorship Senate trial court’s order. affirm We We “relating to advance directives and health motion for leave as moot Deuell’s dismiss script care and treatment decisions.” The appellant’s supplement brief. to file as follows: advertisement reads you trust protect Before Bob Deuell to J., dissenting. Jennings, life, please carefully. your listen If loved Justice, Dissenting Terry Jennings, n hospital, you may one be falsehood, into inserted calculated [A] hospital shocked learn that faceless political campaign, the midst of a heated panel deny life-sustaining can unalterably process can distort caret—Igiving you only days to find For the use of a self-determination. dad, mother, facility your another known ... is at once odds with the lie young patient child even if the is con- premises government democratic your right scious. Your civil liberties economic, orderly manner go away you to life should not are once social, change political be ef hospital. actually happens This strung misleadingly Half-truths fected. Texas, families across Bob Deuelfl] together no less destructive of de sponsored give power a bill more even lie.[1] outright mocracy than an hospital panels these over life and ailing family death our members. concluding majority errs in Because Bob Deuell turned his back on life and to appellee, Right Texas Life Commit- him patients. on disabled Don’t to trust tee, (“TRLC”), by Inc. established clear if protect you you are sick. ... a and case tor- of its claims of each essential element contracted Me- And TRLC with Cumulus against ap- with contract tious interference (“Cumulus”) and dia Dallas-Fort Worth Deuell, I pellant, state Senator Bob former (“Salem”) to Communications Salem respectfully dissent. its on their radio broadcast advertisement stations. 4,May Republican 2014 Texas election, Deuell, a series of sitting Subsequently, a Deuell sent Primary Texas Senator, to the radio sta- sought Days re-election. la- cease-and-desist letters State tions, ter, complaining that TRLC’s advertise- facing challenger in the with Deuell election, at-He pro- ment was false and May defamatory.3 2014 run-off TRLC 166.046(e) (Vernon Supp. § & required plead the affirmative defenses in to Ann. 2016) facility "not prevail (physician TCPA and health care order to on his motion to dis- life-sustaining obligated provide treatment to miss. day” 10th after ethics committee’s after the Television, Inc., regarding of life- decision withdrawal written 1. v. KTRK Turner Comm, treatment), J., (Tex. 2000) (Baker, sustaining Senate joined by with Servs., Hankinson, Enoch, J., J„ Analysis, concurring Bill Tex. Health & Human and (2013) (internal Leg., (physician dissenting part) quota R.S. part and S.B. 83rd omitted). obligated pro- facility tions health "not and care life-sustaining 14th treatment after the vide (2013). proposed day”). Bill also to extend Leg., Senate Tex. S.B. 83rd R.S. family days notification to 7 hours from ethics committee period in advance of an actually proposed Bill 303 to extend 3. Senate regarding meeting a decision to withhold days days the time ten fourteen Compare life-sustaining treatment. withdraw patient to an alternative health care transfer 166.046(b) provider. Compare Safety Safety Health & Code Ann. Health & Code Tex. by tached to his letters statement The reforms set forth Sen. Deuell’s Texas Catholic Conference. In their state- shortcomings bill address those by em- ment, Bishops Catholic of Texas en- powering surrogates, families [and] and follows, Bill perti- 303 as dorsed Senate protecting physicians provid- and other part: nent ers .... Bill Senate 303 also earned the endorsement of the Texas Medical Asso- Bishops joined Texas Catholic a coalition ciation, Association, Hospital Texas largest pro-life organiza- of the state’s Association—Texas, Catholic Health tions, providers, religious healthcare Life, Baptist Alliance for Texas and the legislation in- denominations endorse General state Convention Texas. troduced Senator Robert Deuell improve handling ... the state’s Conference, Texas Catholic Bishops Texas in way end-of-life care that balances Improve Endorse SB 303 [t]o End-[o]f- protections of human life and med- (Jan. http://www. 31, 2013), Care IAfe (SB 303). provider’s ical conscience txcatholic.org/news/300-bishops-applaud- Senate Bill 303 would reform the Texas (attached advance-directives-reform-bill as Act of Advance Directives 1999 ... appendix opinion). an to this improve clarity the statute’s consis- After the Cumulus and Salem radio sta- many tency ethical about decisions amid suspended airing tions TRLC’s ad- complexity of end-of-life care. For vertisements, purchased a new ad- instance, current contains statute stations, vertisement air on and it interpreted definitions could be contracted for airtime with CBS Radio premature allow for the withdrawal of (“CBS”). Texas And after Deuell was de- patients care for may who have irrevers- election, ible, non-terminal, conditions; feated in the run-off TRLC filed but fails him, instant against alleging patients provided ensure all suit hydration; tortiously with nutrition he basic had interfered with its con- in ensuring falls short tracts with clearest and Cumulus Salem. Deuell most compassionate communication be- moved to dismiss the suit under the Texas professionals (the “TCPA”).4 patient tween medical Participation and Citizens Act disagreements families arise. when And the court his trial denied motion. (patient family person,” including or be patient’s spouse, must "informed” re- adult child, relative, available,” process parent, view "not less than 48 before” or "if hours to Comm, meeting), with Senate on Health & make decision to "withhold or withdraw life- Comm, Servs., 303, treatment”), Analysis, sustaining Bill Human Tex. S.B. with Senate Servs., (2013) (committee Leg., Analysis, on Health & Bill "required,” 83rd R.S. Human Tex. 303, (2013) Leg., ("[r]equir- "not S.B. R.S. day later seventh be- 83rd than calendar meeting ing” attending physician regarding fore” and decision health care fa- to withhold treatment, life-sustaining cility "reasonably diligent or to pro- make effort withdraw to to Further, patient family clergy). "surrogate” vide or or (family contact” Senate member clergy) accountability or 303 description” with Bill increased the "written of re- health Comm, process providers. view and care See "notice” of Senate Health “entitle[ment]” Servs., 303, opinion Analysis, to & partici- second to Human Bill Tex. "attend and S.B. (2013) pate meeting). Leg., (requiring in” 83rd Senate Bill 303 also in- R.S. facilities to report provider’s duty ending creased number of in a health care in- cases which life- to patient’s sustaining family prior withholding form a treatment considered to and their dis- withdrawing position). life-sustaining or treatment. Compare Tex Health Safety & Code Ann. 166.039(b) (Vernon 2015) § Supp. 2010 & 4. See Tex Civ. & Rem. Code Prac. Ann. (Vernon 2015). (authorizing "attending physician §§ and one 27.001-.011

695 Whisenhunt, issue, argues Lippincott review de novo. v. In his first (Tex. 2015); 507, denying motion to 462 509 Newspa trial court erred S.W.3d per Holdings, Crazy his com- TRLC’s lawsuit because Inc. Hotel Assisted dismiss Ltd., Living, to 416 80 App.- and Salem related munications Cumulus S.W.3d denied). speech Houston pet. [1st Dist.] to his exercise of free and TRLC for its prima to establish a case failed made, If the showing initial is the bur- claims of tortious interference con- with plaintiff den then to the shifts tract. by “clear specific evidence” a purpose The of the TCPA “to encour- facie case for essential element of each its age safeguard rights the constitutional claim. Tex. Prac. & Code Ann. Civ. Rem. 27.005(c); § 587-88; 460 persons petition, speak freely, Lipsky, associ- S.W.3d Inc., Newspaper Holdings, 416 freely, participate ate otherwise S.W.3d at specific’ 80. “The government per- to the maximum extent words ‘clear and interpret- law.” Tex. & Rem. Code context of this statute been mitted have Civ. Prac. (Vernon 2015). mean, former, § “protects respectively It 27.002 ed Ann. ‘sure,’ ‘unambiguous,’ retaliatory citizens from lawsuits that seek or ‘free from doubt’ and, latter, ‘explicit’ ‘relating for the or to intimidate silence them” exer- particular thing.’” Lipsky, cising their First Amendment named freedoms procedure “expedit- (quoting for the at 590 provides S.W.3d Black’s Dictio- Law nary (8th 2004)); see Lipsky, dismissal of In re ed. KTRK ed such suits.” 579, 584, Television, Robinson, (Tex. 2015); see Inc. v. S.W.3d §§ App.-Houston Prac. & Rem. Code 1st [Dist.] 27.001- Tex. Civ. Ann. (Vernon 2015). denied). contrast, a “prima .011 It identi- is intended summarily dispose legal facie case” has a “traditional mean- fy and lawsuits “de- ing.” Lipsky, 460 590. “It signed only to chill Amendment refers First law- as a matter law to rights, not dismiss meritorious sufficient if it is not Lipsky, given In re at 589. establish rebutted.” suits.” fact added). Thus, “pleadings liberally (emphasis it is to “construed And be might in a that does not purpose fully.” effectuate its and intent suffice case implicate may not be Prac. & Rem. Code Ann. TCPA sufficient Crv. 27.011(b). satisfy the TCPA’s ‘clear and requirement.” Id. at 590-91 evidence’ that a lawsuit A who believes defendant (“Mere pleading ... will not suf- notice of First is based his valid exercise fice.”). plaintiff provide enough must “[A] rights may expedit- Amendment move detail to the factual basis for its show Lipsky, of In re ed dismissal the suit. Id. at 591. claim.” 586. The must first S.W.3d at defendant legal action “by preponderance determining a of the whether a show evidence” TCPA, is, dismissed, court shall con- of be “the applicability the the should on, supporting plaintiffs pleadings relates to sider the the claim is “based opposing stating the facts response or is in to the affidavits [defendant’s] exer- (1) (2) liability or is based.” right speech; of: the which the defense cise the free (3) right petition; right or the of associ- Tex. Ann. Prac. & Rem. Code Civ. (internal 27.006(a). § pleadings ation.” Id. at citations review 586-87 We omitted); plain- to the light & Rem. evidence in a favorable Tex. Prac. Civ. Inc., 27.005(b). Holdings, § tiff. S.W.3d step Newspaper The first Code Ann. at If constitutional inquiry legal question is a that we 80-81. the defendant’s him, rights implicated plaintiff are and the has the burden then shifted to TRLC required showing not met the of a by “clear and evidence” a case, the trial court must dismiss the prima facie case for each essential element plaintiffs claim. Civ. & Tex Prac. Rem. Code of its claims. See Tex. Civ. Prac. & Rem. §Ann. 27.005. 27.005(c); § Lipsky, Code Ann. 586-87; Inc., Newspaper at Holdings,

Here, in Deuell asserted his motion to 80. The elements TRLC’s against dismiss TRLC’s lawsuit him is claims for tortious interference with con- right his exercise of free (1) tract existing subject an speech. Lipsky, contract See 586-87. “[ejxercise interference, (2) The TCPA defines willful and intentional right speech” of free “a as communication act of interference with the contract in (3) made connection with a matter of public Deuell, that proximately caused TRLC concern.” (4) injury, Prac. & Rem. damages “caused actual Civ. Code Ann. or A “communication” includes 27.001(3). § loss.” Prudential Ins. Co. Am. v. Fin. “making submitting or of a statement Inc., Review Servs. medium, or document form or any in in- 2000). oral, visual, cluding written, audiovisual, or TRLC asserts that it had contracts with § electronic.” Id. A “matter of 27.001(1). Cumulus and Salem for broadcasting public an concern” includes issue related of its advertisement leading up to the May “(A) (B) safety; to: or health environmen- 27, 2014 run-off election. Deuell interfered tal, economic, community or well-being; with TRLC’s contracts threatening liti- (C) (D) government; public official or gation against the radio if they stations (E) public figure; good, product, or not suspend the broadcasting of its adver- marketplace.” service in tisement. His letters resulted the two 27.001(7). § suspending radio stations TRLC’s adver- The record shows that TRLC’s claims tisement and days caused to lose two statements, are based on Deuell’s airtime. And TRLC was to pur- forced contained letters he wrote to the chase a new advertisement and contract running radio stations TRLC’s advertise- for airtime with CBS. ment, complaining misrepresen- that it had purpose legislation ted the and effect of he As evidentiary support, present- TRLC sponsored had as senator for the State director, ed the affidavit of its executive complained-of Texas. The statements con- affidavit, James J. In his Graham. Graham “communications,” stitute as defined 6, 2014, May testified that on con- 27.001(1). Further, statute. See id. (“Ma- tracted with Malone Design Media regard public statements a “matter of con- lone”) produce a radio advertisement for cern,” defined, as because concern the Dallas and Fort Worth media markets government issues to the related and a concerning Deuell’s “voting record” for official, i.e., public Deuell’s comment on 7, 2014, May On into TRLC entered $450. political him, relating advertisements as a contract with placement Cumulus senator, election, during an concerning airing and of the radio advertisement for legislation sponsored that he in the Texas $17,935.” “approximately 8,May And on Senate. See Tex. Crv. Prac. & Rem. Code 2014, TRLC into entered a contract with 27.001(7). §Ann. placement Salem for the airing and Because Deuell established that the radio advertisement for “approximately applies $22,015.” TCPA to against TRLC’s claims Graham, motion, to According to Cumulus and Sa- Serafme’s testified that he had 14, 2014, lem, May notified TRLC that company] professionally on “hired in- [the “legal threats” they had received pump system.” stall a and Id. At drain a TRLC’s advertisement hearing, explained he that he had hired suspending airing. “As they were its and drainage “to problem resolve a that was airing compromise [of a resume causing gather water to under his house.” advertisement, given the radio TRLC’s] “going Id. And it to install French [Salem], concerns of and [Cumulus] property against drains around the the agreed produce a new radio [TRLC] of his house that tie into a border would original ra- replace advertisement and the sump pump that the pump would water ...” TRLC returned dio advertisement. pop-out out to a so it valve would flow another adver- to Malone and “had radio into the down street.” Id. The Austin produced tisement and delivered” Cu- Appeals of Court held that the Blunts had And, as a “remedial mulus and Salem. “failed establish a facie case for measure[],” with TRLC also “contracted contract] element their claim” be- [the in purchase “additional airtime [CBS]” provide cause “Mr. Blunt did not detail media market Dallas/F[ort] the Worth specific about the terms of contract or for “approx- the new radio advertisement” any attach to his contract or other affidavit imately $15,037.” memorializing any agreement document alone, testimony, standing Graham’s drainage the Blunts and the com- between of a con- does not establish existence scope of work to be pany about done.” Am., 29 tract. Prudential Ins. Co. See added). (emphasis Id. 361-62 Blunt, 77; v. Serafine recently This Court the same reached (Tex. 352, App.-Austin conclusion a case similar facts. See with 2015, pet.). Serafine, no In the Blunts al- Hous., Inc. Better Bus. Bureau Metro. leged tortiously interfered Serafine Servs., Inc., 441 S.W.3d v. John Moore drainage with a with their contract (Tex. App.-Houston Dist.] [1st pump-and- company foundation install denied). Moore, In held pet. John we system property. drain on their nonmovant “failed establish that the had compa- Seraphine at 361. threatened specific clear and evidence the essential worked, ny’s and she employees while of a contract” of the existence element company litigation, with re- threatened regard not present it did evidence because sulting in its decision “not to continue the any of its contracts with ing “the terms” causing contracted-for work” Bu or the Business its customers Better “pay Blunts more for the work.” to have added). Rath chapters. (emphasis TCPA, reau to the Id. Pursuant Serafine moved er, merely nonmovant asserted against claim her. to dismiss the Blunts’ Blunt, in contracts existed.5 Id. response Id. Mr. his affidavit discussed, relies, hearing.” Court has holding, majority Id. As this support In its Bravenec, part, merely alleging No. previously 04-14- held Martin 00483-CV, 2015 WL at *7 “by contract exists is insufficient to 13, 2015, denied). May pet. App.-San Antonio ele essential clear Martin, appellate Antonio court’s the San See Bet existence of a contract.” ment of the analysis regard entire to the existence ‘‘[w]ith Hous., Inc. v. John Bus. Bureau Metro. ter contract,” pleadings is as follows: “[T]he Servs., Inc., Moore alleged appellees have contract to sell denied). App.-Houston [1st Dist.] Property, Bravenec identified the Further, purchas identifying “prospective purchaser prospective at the name of the 698

Here, Graham, testimony, pre testimony in his Graham’s also not does estab lish Deuell committed a willful and of sented even less detail about the terms any of intentional act interference with TRLC’s contracts with Cumulus and Sa Am., contract. See Prudential Ins. Co. of lem than Blunt affidavit Seraf A 29 at 77. intentional S.W.3d willful and at im. See 466 361-62. Graham’s S.W.3d requires interference evidence that the de testimony does not constitute “clear and contracting “knowingly induced” fendant specific any of terms” “the of evidence” party obligations. to breach its Serafine, 361; contract. at John See id. Moore 362; 466 at see also S.W.3d John Paul Servs., 361; Inc., at 441 see S.W.3d also Mkts., Sys. Mitchell Randalls Food 17 v. Commc’ns, Tel., v. All Am. Inc. USLD (Tex. 2000, 721, App.-Austin S.W.3d at 730 518, Inc., App.-Fort 532 denied). pet. conclusory testimo Graham’s 2009, denied) (general Worth state ny is about the existence a contract ment contracts insufficient to existed main any insufficient to establish a breach tain tortious-interference-with-contract specific provision. See All Am. contract provided claim where no affidavit “detail Tel., Inc., Further, at 532. specific as terms” contracts no provide TRLC required “clear and contract “to serve an exemp attached as obligatory “some evidence” lar”). Thus, did not pri- establish a provision” of the contract was breached. ma facie case for the existence of a con added). (emphasis Id. Am.,

tract. See Prudential Ins. Co. of “Inducing obligor a contract to do what 77; Lipsky, see also 460 S.W.3d it not right has a to do is an actionable at 590-91 (plaintiff provide “must enough v, Inv’rs, interference.” ACS Inc. detail show the factual basis of its McLaughlin, 426, 943 S.W.2d present claim” and “evidence as 1997). broadcasting A radio sta- licensed6 sufficient if given matter law to establish a is, very tion exception with the narrow fact candidates,7 added)). (emphasis advertising political is not by rebutted” if, subparagraph er” alone does establish "the terms” of a ments of this of a not case broadcast, contract. See id. per radio the broadcast includes a by sonal statement the candidate audio (the 6. The Communications Act of 1934 candidate, identifies the office the candi "Act”) person any operating from "forbids seeking, is indicates that date the candi obtaining broadcast station without first a li- broadcast.”); approved the date has see also cense” from Federal Communications Farias, KENS-TV, Inc. v. No. 04-07-00170- Commission. States v. United Midwest Video CV, 2253502, (Tex. App.-San *3 2007 WL 649, 679, 1876, 1860, Corp., 406 U.S. S.Ct. denied) (mem. pet, Aug. op.) Antonio (1972) J,, (Douglas, joined 32 L.Ed.2d 390 (discussing "use" advertisements sec under Stewart, J., J., Powell, J., Rehnquist, dis- 315(a)). power tion A licensee has "no 301). senting) (citing § 47 U.S.C. The Act censorship material over the broadcast” in a foreign extends “to all interstate and commu- 315(a). § "use” advertisement. 47 U.S.C. And ,.. originates nication radio wire or because the broadcaster censor cannot within received the United and/or States.” materials, it is candidate’s immune state 152(a)). (citing § 47 U.S.C. Coop. libel & claims. Farmers Educ. Union of WDAY, 525, 528, Inc., Am. v. 360 U.S. permits "any person If a licensee who is 1302, 1305, 1308, S.Ct. 3 L.Ed.2d legally 1407 Inc., qualified any public candidate of (1959); Morris, Philip station, broadcasting Carlisle fice to use a he shall (Tex. App.-Austin equal opportunities afford other all such However, denied). third-party writ because candidates for office in the use of such TRLC, 315(a), broadcasting groups, qualified "legally like are not station.” 47 U.S.C. (b)(2)(D) ("A candidate!»,” they subject require candidate meets the to the "no

699 to to the final refuse the “obliged reserve deci facilities of his station to [itself] an good to air. Nat’l advertiser where he sion” as the content will has reason 190, advertiser, States, integrity Broad. v. United 319 U.S. doubt Co. 1004, 205, 997, truth of the advertising representations, L.Ed. 1344 63 S.Ct. 87 or (1943) (“[A] compliance of the advertiser duty has the of deter with the licensee spirit purpose of mining applicable legal shall all what be broadcast [content] 446, facilities.”); requirements.” Id. at 83 see also S.Ct. [its] over station’s Pa., McIntire v. Penn Broad. Co. Wm. Thus, for a radio station to execute an 1945) (“[A] 597, (3d 151 F.2d 601 Cir. radio agreement to “broadcast all advertise broadcasting public utility is not a station [it], ments qualifica tendered without permit in the sense that it must broadcast tion” “illegal” constitute an would contract ing by whoever comes to its micro because a lawfully licensee “cannot dele phones.”). gate duty or [its] transfer the control of Co., [its] station” to another. Nat’l Broad. Moreover, a station licensed radio “must 205, 1004; 319 U.S. at 63 S.Ct. Traweek operate public interest.” United Inc., 240, Brady, v. Radio Corp., States v. Midwest 406 U.S. Video 1969, App.-Austin Civ. writ ref'd 649, 679, 92 S.Ct. 32 L.Ed.2d n.r.e.); 310(d) see (prohib also 47 U.S.C. (1972) J., Stewart, joined by (Douglas, iting licensing transfer of or control except J., Powell, J., J., Rehnquist, dissent- FCC). by application Notably, a con 308-09); ing) (citing §§ 47 U.S.C. tract is illegal contrary public Co., Nat. 319 U.S. at 63 S.Ct. Broad. policy as the for a cannot serve basis claim (“It station, network, at 1004 not the of tortious contract. interference with Wa. public which is inter- licensed serve Fin., LLC, Square Funding, LLC v. RSL est”). The Federal Communications Com- (Tex. App.-Houston (“FCC”), determining mission “in whether denied). 2013, pet. Dist.] [14th operation has public licensee’s served the interest, has com- Here, [it] considers whether present because did not plied regulations gov- with state and local any about the terms of its details erning advertising.” Salem, Head v. N.M. Bd. contracts with Cumulus and it did 424, 445, Exam’rs in Optometry, 374 U.S. not present “clear and evidence” (1963). 1759, 1771, 10 83 S.Ct. L.Ed.2d 983 an “obligatory provision” the con Tel., And the National of Broadcast- Association tracts was breached.8 See All Am. added). “unmistakably enjoins (emphasis ers each member at 532 315(a), censorship” provisions plained establishing of section the existence of a stations be held for the con radio can liable subject contract an constituted interference advertising. tent of their McLaughlin’s prima essential element of facie case. Id. And the existence of a defense was majority 8. The asserts that "TRLC not “not an Id. The issue.” court concluded that disprove bear the burden to the existence of agree- because the evidence revealed potential Deuell's The Su- defenses.” Texas subject ment was not interfer- the tortious reasoning preme rejected Court has similar allegation, ence ACS did not interfere as a involving another case a claim for tortious prove matter of law need not a defense to interference with contract. See ACS Inv’rs v. (“The liability. evaluating focus in avoid McLaughlin, 943 begins, claim tortious this interference There, 1997). McLaughlin similarly asserted remains, case on whether the contract is sub- argument that ACS's action was au- that its ject alleged interference.") (emphasis to the thorized the contract and was under therefore added)). subject not to interference an at- constituted tempt to raise a defense. Id. The court ex- Further, testimony required Graham’s does dence establish a present specific clear and evidence estab- Id. at case under TCPA.” 592. TRLC lishing a prima facie case Deuell’s required “provide enough was detail to damages actions “caused actual or loss.” show the factual basis of claim[s].” its Am., See Prudential Ins. Co. 591; see, S.W.3d e.g., Campaign at for Graham, affidavit, only at in his Int’l, asserts LLC, Dewatering Env’t v. Partners price paid for each contract and that (Tex. App.—Cor 199-200 portion performed. some of each was not (affidavit pus pet.) Christi no testi Further, Graham, affidavit, in his not does model, mony damages set out consider present any details of TRLC’s new based, upon damages ations which were CBS, i.e., contract with it when was exe- up to and included costs time contract cuted, when the “remedial” advertisements cancellation). aired, began airing, many spots how were testimony Graham’s shows that TRLC or when stopped. merely pay not produce did Malone to At hearing on motion to Deuell’s new commercial for Cumulus and Salem dismiss, exchange the following place took pursuant “compromise” to the that TRLC between trial court and counsel for airing “to resume ad- [of its] struck radio TRLC: Rather, signed TRLC ].” vertisement THE COURT: You off the air for CBS, contract with the terms of new which days? two And, it present did not to the trial court. TRLC: days. We were off the air for two Graham, according to paid just TRLC $450 THE you going COURT: How to— produce original to Malone to adver- just

this a curiosity here. How are $17,935 $22,015 tisement and to Cumu- you going prove damages Salem, respectively, lus and it broadcast days? two period. over total contract Neverthe- less, that it TRLC asserts was forced to right TRLC: I can I prove do now. can airtime, spend $15,000to over cure the lost penny, them almost to the I can— quantify not Graham does I put can on a witness who we’re affidavit, explained but TRLC’s counsel at prepared to do. hearing only two-day pe- constituted part THE That’s not COURT: this “[Olpinions riod. must be demon- said, curiosity Motion. As I awas strable facts and reasoned basis.” In re my part. Lipsky, 460 at (emphasis add- case, prima As an of its element facie ed). however, required TRLC present damages. evidence of its See Prudential sum, presented TRLC no evidence to Am., Ins. Co. 77. And any of its elements claims presented no such evidence against tortious interference hearing. with contract. See Prudential Ins. Co. of Am., 29 at 77. Deuell Again, a established “prima facie case” “refers to applies the TCPA to the evidence as claims a matter law to sufficient him, against present and TRLC not given establish a if it is not rebutted.” fact specific establishing clear Lipsky, (emphasis 460 S.W.3d at 590 add- “[Bjaseless ed). opinions of each of do create fact case the elements of questions, they a According- and neither are sufficient its tortious-interference claims. substitute for I ly, the clear and evi- reverse the trial court’s would order judgment dismissing TRLC’s and render against Deuell.

claims

Attachment

Case Details

Case Name: Bob Deuell v. Texas Right to Life Committee, Inc.

Court Name: Court of Appeals of Texas

Date Published: Sep 15, 2016

Citation: 508 S.W.3d 679

Docket Number: NO. 01-15-00617-CV

Court Abbreviation: Tex. App.