In re Steven and Shyla LIPSKY and Alisa Rich, Relators.
No. 02-12-00348-CV.
Court of Appeals of Texas, Fort Worth.
April 22, 2013.
Rеhearing and En Banc Reconsideration Overruled Oct. 10, 2013.
411 S.W.3d 530
Admission of evidence
In her second issue, Smith contends that the district court abused its discretion in admitting “provocative” photographs of S.S. over Smith‘s objection. Smith argues that the photographs’ probative value, if any, was greatly outweighed by the prejudicial effect they had on the jury. On appeal, she relies on rule of evidence 403, which provides, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”
To preserve the right to complain on appeal about the admission of evidence at trial, a party must have objected at the time the evidence was offered, the objection must have been specific enough to enable the trial court to understand the precise nature оf the error alleged, and the party must have obtained a ruling on its objection. See
When the Easts offered the photographs into evidence, Smith objected to their relevance, asserting that the photographs had no probative value. She did not make any assertions that would have alerted the district court of any reliance on rule 403. She has thus waived her right to rely on rule 403 on appeal. See id.; see also Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim.App.1995) (party waived right to complain about constitutionality of admission of witness‘s testimony when trial objection was limited to rule 403); Nations v. State, 944 S.W.2d 795, 799 (Tex.App.-Austin 1997, writ ref‘d) (party waived right to complain about testimony‘s reliability when trial objection was limited to relevancy). In any event, we could not conclude that the admission of these photographs was harmful in light of other evidence concerning S.S.‘s conduct of which Smith does not complain. We overrule Smith‘s second issue.
CONCLUSION
Having overruled Smith‘s issues on appeal, we affirm the district court‘s judgment.
John H. Cayce, Jr., & Jeff Whitfield, Kelly Hart & Hallman LLP, Fort Worth, TX, Andrew D. Sims & Russell R. Barton, Harris, Finley & Bogle, P.C., Fort Worth, TX, for Real Parties in Interest.
OPINION
TERRIE LIVINGSTON, Chief Justice.
Relators Steven and Shyla Lipsky (the Lipskys) and Alisa Rich seek a writ of mandamus that directs the trial court to dismiss the claims asserted against them by real parties in interest Range Production Company and Range Resources Corporation (Range). Relators contend that provisions contained within chapter 27 of the civil practice and remedies code (chapter 27) require the dismissal of Range‘s claims.1 We conditionally grant relief in part and deny relief in part.2
Background Facts
The Lipskys own a home in the Silverado on the Brazos development in Weatherford. In 2005, they drilled a well to a depth of about two hundred feet to provide water to their home and property, and they also constructed a large holding tank to meet the anticipated water needs at the property. Range drilled two natural gas wells in 2009 near the Lipskys’ property. According to the Lipskys, in the latter part of 2009, they began noticing problems with their water, and by the middle of 2010, their water pump began experiencing “gas locking,” meaning that the pump could not efficiently move water. The Lipskys contacted public health officials, who referred them to Rich. After the Lipskys contracted in August 2010 with Rich and her company, Wolf Eagle Environmental, to conduct testing, she confirmed the presence of various gases in the Lipskys’ water well.
In December 2010, after being notified by Rich and the Lipskys about the circumstances at the Lipskys’ property and after conducting its own investigation, the Environmental Protection Agency (EPA) issued an emergency order stating that Range‘s production activities had caused or contributed to the gas in the Lipskys’ water well and that the gas could be hazardous to the Lipskys’ health. In the order, the EPA required Range to, among other actions, provide potable water to the Lipskys and install explosivity meters at the Lipskys’ property. The federal government, acting at the request of the EPA, later filed a lawsuit in a federal district court against Range, alleging that Range had not complied with requirements of the emergency order.
In June 2011, the Lipskys sued several defendants, including Range, for claims related to the contamination of their water well that, aсcording to the Lipskys, resulted from Range‘s “oil and gas drilling activities.” In their original petition, the Lipskys claimed that the contamination had caused a water pump to malfunction and had caused the water “to be flammable.” Against Range, the Lipskys sought compensatory and punitive damages while asserting causes of action for negligence, gross negligence, and private nuisance. The Lipskys alleged that Range‘s drilling, including hydraulic fracture stimulation operations (fracking), affected their water source, and they contended that they could no longer use their home as a residence.4
A month after the Lipskys sued Range, Range answered the suit and brought counterclaims (against the Lipskys) and third-party claims (against Rich) for civil conspiracy, aiding and abetting, defamation, and business disparagement. Range contended, among other arguments, that Range‘s fracking of a deep shale formation could not have contaminated the Lipskys’ much shallower water well; that Range‘s two gas wells near the Lipskys’ residence had “mechanical integrity“; that other factors occurring before Range‘s drilling contributed to gas in the Lipskys’ well; that the Railroad Commission had already found that Range‘s drilling did not contaminate the Lipskys’ well; that the contrary conclusion that had been reached by thе EPA was based on incomplete and overlooked data;5 that the Lipskys had ignored the Railroad Commission‘s findings by continuing to blame Range for the contamination; that Rich, along with the Lipskys, had, with malice against Range, made false, misleading, and disparaging statements; and that Range‘s business reputation had therefore suffered.
The Lipskys and Rich each answered Range‘s claims against them, and they later each filed motions to dismiss the claims under chapter 27. In their motions, relators argued, among other contentions, that
Range opposed the motions to dismiss, detailing the evidence that Range offered in support of the claims. The trial court denied the motions. Relators filed an interlocutory appeal, and we dismissed the appeal for want of jurisdiction.7 However, we allowed relators to challenge the propriety of the trial court‘s order denying the dismissal motions through this original proceeding.8
Mandamus Standards
Mandamus relief is proper only to correct a clеar abuse of discretion when there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 207 (Tex.2009) (orig. proceeding); In re Aslam, 348 S.W.3d 299, 301 (Tex.App.-Fort Worth 2011, orig. proceeding). A trial court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair Co., 328 S.W.3d 883, 888 (Tex.2010) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding).
With respect to the resolution of factual issues or matters committed to the trial court‘s discretion, we may not substitute our judgment for that of the trial court unless a relator establishes that the trial court could reasonably have reached only one decision and that the trial court‘s decision is arbitrary and unreasonable. In re Sanders, 153 S.W.3d 54, 56 (Tex.2004)
While we give deference to a trial court‘s factual determinations that are supported by evidence, we review the trial court‘s legal determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex.2009) (orig. proceeding). A trial court abuses its discretion if it fails to analyze the law correctly or misapplies the law to established facts. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex.2011); State v. Sw. Bell Tel. Co., 526 S.W.2d 526, 528 (Tex.1975). Also, a trial court‘s erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion. In re United Scaffolding, Inc., 301 S.W.3d 661, 663 (Tex. 2010) (orig. proceeding).
Standards for Motions to Dismiss Under Chapter 27
When the legislature enacted chapter 27 in 2011, it expressed that the purposes of doing so were to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”
To prevail on a motion to dismiss under chapter 27, a defendant has the burden to show by a preponderance of the evidence that the plaintiff‘s legal action is “based on, relates to, or is in response to” one of the rights discussed above.
Relators’ Procedural Compliance with Chapter 27
In its briefing, Range argues, in part, that relators cannot show that the trial
The Lipskys filed their motion to dismiss Range‘s claims on September 12, 2011, and Rich filed her motion to dismiss the claims two days later. Range concedes that “[d]ue, at least in part, to intervening docket conditions” of the trial court, the hearing on relators’ motions to dismiss was first set for December 19, 2011.9 Range filed its response to relators’ motions to dismiss on the afternoon of December 16, 2011, which was a Friday. The response included an appendix containing more than 1,600 pages of documents. On December 19, relators sought a continuance of the dismissal hearing on the ground that they needed more time to digest Range‘s response, and over Range‘s objection, the trial court granted a continuance and reset the hearing on relators’ motions for January 31, 2012. The trial court conducted the hearing on January 31 and denied relators’ motions on February 16, 2012.
Range does not contend that the trial court‘s initial hearing date of December 19, 2011 was improper, but Range argues that the continuance of the hearing until January 31, 2012 violated section 27.004. In the trial court, the Lipskys contended that they compliеd with section 27.004 because that section requires a hearing on a motion to dismiss to be “set,” not heard, within thirty days (or later if required by the docket conditions of the court) of the service of the motion.
As we explained in Jennings,
In construing statutes, our primary objective is to give effect to the legislature‘s intent. We rely on the plain meaning of the text as expressing legislative intent unless a different meaning is supplied by legislative definition or is apparent from the context, or the plain meaning leads to absurd results. Even when it appears that the legislature may have made a mistake, courts are not empowered to “fix” the mistake by disregarding direct and clear statutory language that does not create an absurdity.
378 S.W.3d at 523 (citations omitted); see Tex. Real Estate Comm‘n v. Bayless, 366 S.W.3d 808, 811 (Tex.App.-Fort Worth 2012, pet. denied) (explaining that ordinary citizens should be able to rely on the plain language of a statute to mean what it says and that straying from the plain language of a statute risks encroaching on the legislature‘s function to decide what the law should be).
We agree with relators that the plain language of section 27.004 applies to the setting, not the hearing or consideration, of a chapter 27 motion to dismiss; if the legislature had meant to require the holding of a hearing within thirty days (or as soon as the trial court‘s docket allows) rather than the setting of a hearing within that time period, it knew how to say so.
The Bases of Range‘s Claims
To trigger the mechanism for the dismissal of Range‘s claims against them under chapter 27, relators had the initial burden to establish by a preponderance of the evidence that Range‘s claims are based on, relate to, or are in response to relators’ exercise of the right of free speech, right to petition, or right of association.
In chapter 27, the exercise of the right to petition includes “a communication in or pertaining to,” among other venues, a judicial proceeding, an “official proceeding . . . to administer the law,” a “proceeding before a department of the state or federal government or a subdivision of the state or federal government,” or a “public meeting dealing with a public purpose.”
In Range‘s original pleading that asserted counterclaims against the Lipskys and a third-party claim against Rich, Range expressed that its affirmative claims were based on relators’ strategy to involve the EPA in the gas issue at the Lipskys’ home;11 on Rich‘s communications with EPA personnel, which according
We conclude, based on these facts alleged by Range in its pleading and in its response to relators’ motions to dismiss, that Range‘s claims are based on or relate to relators’ exercise of their “right to petition” as chapter 27 defines that term.13 Taking all of Range‘s allegations as true, many of the statements at issue were made to encourage the “review of an issue” (the contamination of the Lipskys’ wеll) by a “governmental body” (the EPA). See
upon which Range expressly bases its defamation and business disparagement claims were indisputably made in official proceedings or public meetings, such as appraisal proceedings, and those statements therefore also qualify as the exercise of the right to petition. See
Moreover, under chapter 27, the exercise of the right of free speech occurs when a communication is “made in connection with a matter of public concern.”
Range argues that the statements underlying its claims against relators do not relate to the “right of free speech” or the “right to petition” because the statements were defamatory and were therefore not constitutionally protected. See Turner v. KTRK Television, Inc., 33 S.W.3d 103, 116-17 (Tex.2000) (explaining that federal and state constitutional protections do not outweigh a plaintiff‘s constitutional right of redress for reputational torts). But chapter 27 dictates that we should review evidence concerning whether relators’ statements were defamatory and thus actionable in the second part of our review, in which Range has the burden of establishing “by clear and specific evidence a prima facie cаse for each essential element of the claim in question.”
For these reasons, we conclude that relators met their initial burden of showing by a preponderance of the evidence that Range‘s claims are based on or relate to relators’ exercise of their rights of free speech or of their rights to petition as defined by chapter 27. See
The Evidence of Range‘s Claims
We have concluded that relators met their burden of showing by a preponderance of the evidence that Range‘s claims against them were based on, were related to, or were in response to the exercise of relators’ protected rights under chapter 27. Range, however, could avoid dismissal of its claims by providing “clear and specific evidence” that satisfied a prima facie case for each essential element of the claims.
Defamation and business disparagement
To prevail on a defаmation claim, the plaintiff must prove that the defendant (1) published a statement, (2) that was defamatory concerning the plaintiff, (3) while acting with either actual malice, if the plaintiff is a public official or a public figure, or negligence, if the plaintiff is a private individual, regarding the truth of the statement. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998), cert. denied, 526 U.S. 1051 (1999). A statement is defamatory “if it tends to injure a person‘s reputation and thereby expose the person to public hatred, contempt, ridicule, or financial injury or to impeach any person‘s honesty, integrity, virtue, or reputation.” Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 580 (Tex.App.-Austin 2007, pets. denied) (op. on reh‘g) (citing
Under either fault standard, the statement must be “of and concerning” the plaintiff. See Kaufman v. Islamic Soc‘y of Arlington, 291 S.W.3d 130, 144 (Tex.App.-Fort Worth 2009, pet. denied); Cox Tex. Newspapers, L.P. v. Penick, 219 S.W.3d 425, 433 (Tex.App.-Austin 2007, pet. denied). A publication is “of and concerning” the plaintiff if persons who knew and were acquainted with the plaintiff “understood from viewing the publication that the allegedly defamatory matter referred to the plaintiff.” Allied Mktg. Grp., Inc. v. Paramount Pictures Corp., 111 S.W.3d 168, 173 (Tex.App.-Eastland 2003, pet. denied). The statement must refer to the plaintiff and “no one else.” Kaufman, 291 S.W.3d at 147-48 (quoting Newspapers, Inc. v. Matthews, 161 Tex. 284, 290, 339 S.W.2d 890, 894 (1960)).
A statement may be defamatory, although literally true, if the omission of material facts allows a reasonable person to perceive a false impression. Turner, 33 S.W.3d at 114-15; Klentzman, 312 S.W.3d at 898-99. Also, a defendant may be liable for defamation if a reasonable person would recognize that an act creates an unreasonable risk that defamatory matter will be communicated to a third party. See George v. Deardorff, 360 S.W.3d 683, 690 (Tex.App.-Fort Worth 2012, no pet.).
In most defamation claims, the plaintiff must prove the existence and amount of damages caused by the defamatory statement. Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 501 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); Tex. Disposal Sys. Landfill, Inc., 219 S.W.3d at 580. Some statements, however, are defamatory per se, meaning that the law presumes the defendant‘s injury. See Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex.1984) (op. on reh‘g) (explaining that a false statement charging someone with the commission of a crime is defamatory per se); Tex. Disposal Sys. Landfill, Inc., 219 S.W.3d at 580-81; see also Morrill v. Cisek, 226 S.W.3d 545, 549 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (“Defamation is actionable per se if it injures a person in his office, business, profession, or occupation.“).
The supreme court has explained that to
prevail on a business disparagement claim, a plaintiff must еstablish that (1) the defendant published false and disparaging information about it, (2) with malice, (3) without privilege, (4) that resulted in special damages to the plaintiff. A business disparagement claim is similar in many respects to a defamation action. The two torts differ in that defamation actions chiefly serve to protect the personal reputation of an injured party, while a business disparagement claim protects economic interests. . . . [A] business disparagement defendant may be held liable “only if he knew of
the falsity or acted with reckless disregard concerning it, or if he acted with ill will or intended to interfere in the economic interest of the plaintiff in an unprivileged fashion.”
Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex.2003) (citations and emphasis omitted) (quoting Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex.1987)). Proof of special damages is an “essential part of [a plaintiff‘s] cause of action for business disparagement. . . . [T]he communication must play a substantial part in inducing others not to deal with the plaintiff with the result that special damage, in the form of the loss of trade or other dealings, is established.” Hurlbut, 749 S.W.2d at 767; see Astoria Indus. of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616, 628 (Tex.App.-Fort Worth 2007, pet. denied) (op. on reh‘g).
Evidence concerning the Lipskys
In the trial court, through responding to relators’ motions to dismiss, Range presented evidence that, according to Range, proves that the Lipskys, or their agents, made false, misleading, and disparaging communications. The alleged false and misleading cоmmunications include disseminating “misleading videos that show [Steven Lipsky] lighting the end of a garden hose on fire” when the hose was actually connected to the well‘s gas vent, and stating or implying that
- Range‘s drilling went under the Lipskys house while omitting that Range‘s wellbore was over a mile below the surface;
- the Lipskys’ well no longer pumped water (when it actually could);
- the Lipskys had found unnatural detergents in the water;
- the Lipskys could not live in their home (although they continued to do so);
- Range would eventually “own” the Lipskys’ home (which implied that Range was responsible for contaminating the Lipskys’ water source and would be liable for doing so);16
- Range was politically powerful and had prevailed with the Railroad Commission through corruption,17 even though the Railroad Commission had considered extensive evidence to support its decision and the Lipskys had not participated in the Railroad Commission‘s hearing;
- the Lipskys could literally light their water on fire, and the water was unsafe to drink;18
- Range‘s drilling operations contaminated the water (even though the Railroad Commission had found that the operations had not);19 and
- Range treated the Lipskys like “criminals.”
We conclude that the trial court did not clearly abuse its discretion by determining that Range had presented clear and specific evidence to establish a prima facie case for each essential element of its defamation and business disparagement claims against Steven Lipsky; the trial court could have reasonably concluded that the facts established by Range, which we have summarized above, provide at least a “minimum quantum of evidence necessary to support a rational inference” that Range has met its burden with regard to those elements. See DuPont, 136 S.W.3d at 223; see also
have reasonably concluded that a rational inference of a false, defamatory, and disparaging statement arose from Steven Lipsky‘s communication that Range prevailed in the Railroad Commissiоn through corruption.21 The trial court could have also concluded that there was a rational inference that this statement was made with actual malice, as defined above, in light of the evidence that the Lipskys did not participate in the Railroad Commission‘s proceedings and that the Railroad Commission made its decision after listening to several expert witnesses, including witnesses with advanced degrees and significant experience in the gas industry. And concerning the requirement for Range‘s defamation and business disparagement claims that Steven Lipsky‘s statements caused damage, David Poole, a senior vice president for Range, stated in an affidavit,
As a direct and proximate result and consequence of the . . . false, disparaging, and defamatory public statements made by Steven Lipsky . . . regarding Range and its operations, Range‘s business and reputation have been harmed . . . . The numerous false, disparaging, and defamatory public statements made by Mr. Lipsky . . . have caused Range to be associated in the public as a polluter of water and the environment, and nothing could be further from the truth.
. . . As a direct and proximate result and consequence of the false, disparaging, and defamatory statements made by Mr. Lipsky . . ., Range has suffered direct pecuniary and economic losses and costs, lost profits, loss of its reputation, and loss of goodwill in the communities in which it operates. To date, the damages suffered by Range as a direct and proximate result and consequence of the conspiracy and . . . defamatory public statements made by Lipsky and Rich are in excess of three million dollars. [Emphasis added.]
Although Poole‘s affidavit is concise, we conclude that by stating that Range had suffered direct economic losses and “lost profits,” it provided the trial court with minimum but sufficient facts, at this stage in the litigation, to raise a rational inference, and therefore serve as prima facie proof, that Range lost “trade or other dealings” as a result of statements made by Steven Lipsky. See Hurlbut, 749 S.W.2d at 767; see also Hines, 252 S.W.3d at 501 (explaining that ordinarily, defamation claims require proof of damages).22 Poole‘s affidavit is clear and specific about the facts included within it, even if it is not elaborate. See
Range has not directed us to any evidence, however, establishing that Shyla Lipsky published statements, de-
famatory or otherwise, concerning Range, and we have located none. In Range‘s briefing, it argues, concerning Shyla specifically, only that she “wanted to provide information to the media” and that she participated in a conspiracy with her husband and Rich to “defame and disparage” Range. As explained below, we conclude that Range did not present sufficient evidence of such a conspiracy. And although Range argued in the trial court‘s hearing on the dismissal motions that Shyla was liable for statements made by her agents, Range has not cited authority or provided analysis establishing that Shyla should be liable for statements that her agents made. To hold a defendant liable for defamation based on an agency relationship, a plaintiff must show that the defendant‘s agent made a statement in the general authority of the agency and for the accomplishment of the objective of the agency. See Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 576, 578-79 (Tex.2002); Louis v. Mobil Chem. Co., 254 S.W.3d 602, 610 (Tex.App.-Beaumont 2008, pet. denied). Range has not provided analysis of these requirements of its defamation and business disparagement claims against Shyla or directed us to where we can locate evidence about the Lipskys’ agents that satisfies the requirements. Also, Shyla cannot be personally liable for Steven‘s acts merely because of their marriage relationship; he was not her agent solely because they were mаrried. See
Evidence concerning Rich
In the trial court, while responding to Rich‘s motion to dismiss, Range contended that Rich was liable for defamation and business disparagement particularly because
- “[Steven] Lipsky ha[d] said that scientists who tested his well ha[d] said that his well could only have been contaminated by nearby gas drilling“; and
- Rich falsely or misleadingly told EPA officials that she was concerned about a risk to the Lipskys; that one of her sampling technicians had suffered respiratory distress after breathing what she believed to be harmful fumes; and that she had detected methane, ethane, propane, and butane in the Lipskys’ water.
Steven Lipsky‘s March 2011 statement, which appeared in various media publications, about communications from “scientists” who had tested his well and had said that the contamination of an established water well could be caused “only” by natural gas drilling, does not identify Rich as one of the scientists who made that statement. The record establishes that along with Rich, officials from the EPA and the Railroad Commission conducted tests at the Lipskys’ home before Lipsky made the statement about the conclusion of scientists who had tested his well. Before March 2011, the EPA officials determined that Range could have caused or contributed to the contamination of the Lipskys’ water. During Rich‘s deposition, which was taken in January 2011 in the course of the Railroad Commission‘s proceeding, she said that after completing testing at the Lipskys’ residence, she told the Lipskys that it was her opinion that a natural gas well had compromised their water well but that she could not ascertain which well had done so. Rich explained in the deposition that she had “no way of knowing” which gas well had affected the Lipskys’ water well, and she indicated that she had advised the Lipskys to contact the Railroad Commission to “get some pressure testing done . . . to find out if the wells were actually compromised.” At the time of the deposition, Rich opined that the “probable” cause of gas in the Lipskys’ water well was natural gas drilling.23 Range has not directed us to any part of the record, however, establishing that Rich was the person who made the particular statement expressly relied upon by Range to support its defamation and business disparagement claims that an established water “well could only have been contaminated by nearby gas drilling.” [Emphasis added.] Thus, we conclude that Steven Lipsky‘s March 2011 statement to the media about the conclusion of “scientists” who conducted tests at his home cannot sup-
Rich‘s other statements to the EPA, summarized above, even if proven false, relate to the environmental conditions at the Lipskys’ home but do not name or blame Range for causing those conditions. Because these statements are not “of and concerning” Range, they likewise cannot serve as clear and specific proof of Range‘s defamation and business disparagement claims against Rich. See
In an oral argument handout, Range alleged, concerning Rich, only that in her initial communication with the EPA, she “blamed Range and [fracking] for contamination of the Lipskys’ well.” We have not located such evidence from the record references that Range provided. Beyond the statement in the handout, Range has not expressed in this court that it is basing its defamation or business disparagement claims against Rich on any other statements made by Rich to the EPA, or to anyone else, that specifically concerned Range rather than only generally concerning the contamination of the Lipskys’ well and the environmental effects of the contamination.
Because Rich‘s statements that Range relies on to support its defamation and business disparagement claims did not “concern” Range, we conclude that there is no clear and specific evidence to prove a prima facie case for an essential element of those claims and that the trial court clearly abused its discretion by denying Rich‘s motion to dismiss those claims. See
Civil conspiracy and aiding and abetting
An actionable civil conspiracy is a combination by “two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.” Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 701 (Tex.App.-Fort Worth 2006, pet. denied). The essential elements of a civil conspiracy are “(1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result.” Id. A defendant‘s liability for conspiracy depends on “participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable.” Id.; see also Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 925 (Tex.1979) (“It is not the agreement itself, but an injury to the plaintiff resulting from an act done pursuant to the common purpose that gives rise to the cause of action.“). Recovery for civil conspiracy is not based on the conspiracy but on the underlying tort. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996) (orig. proceeding) (op. on reh‘g). Once a civil conspiracy is proven, each coconspirator “is responsible for all acts done by any of the conspirators in furtherance of the unlawful combination.” Carroll, 592 S.W.2d at 926. A civil conspiracy claim may be proved by circumstantial evidence and reasonable inferences from parties’ actions. Int‘l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 581 (Tex.1963).
In this court, Range asserts that it presented evidence in the trial court “showing that the Lipskys and Rich agreed and conspired to defame and disparage Range by making false and misleading statements that Range caused the alleged contamination of the Lipskys’ water well,” including that they provided misleading information to the EPA and manufactured, through an air test five feet away from the gas vent on the water well, a non-existent imminent danger to get the EPA to prosecute Range as a wrongdoer. Range argues that the central part of the conspiracy “was Rich‘s ‘strategy’ to stage a deceptive air test de-
signed to create a non-existent imminent danger.”
A letter sent by Rich to Steven Liрsky on August 9, 2010 recites that the purpose of Rich‘s testing was to “characterize the water and ambient air conditions present” on the property. While the letter referenced “recent gas well development” near the Lipskys’ property, the letter did not accuse Range of contaminating the Lipskys’ well or express that the goal of Rich‘s testing would be to prove that Range did so. Similarly, although Rich‘s bid proposal that accompanied her August 9 letter described the tests planned by Rich, explained that the tests could determine the presence of various compounds, and stated generally that natural gas development may cause water and soil contamination, the proposal did not blame Range for contaminating the Lipskys’ well.
On August 12, 2010, Rich sent an e-mail to Steven Lipsky stating in part,
Steve,
I left a message for you earlier today regarding an air test at the [well head]. Yes, I know it is expensive—but after serious consideration I am strongly recommending we take an air sample 5 feet away from the hose that is hooked up to the well head. . . . 24
TCEQ does not have any jurisdiction over water, only the [Railroad Commission]—and you saw how helpful they were. Just wait, it gets better. However, TCEQ has total jurisdiction over air emissions. Once the natural gas leaves the water it is an airborne issue; and therefore falls into their laps to get in-
volved—which they will jump because they are in the middle of SunSet Review (oversight by EPA).
Also, I can then contact the EPA and discuss the fact that we have a multi-issue environmental concern, including potential for explosion AND impact to human health (especially children)[, and] they will be very receptive.
It is worth every penny if we can get jurisdiction to EPA who oversees TCEQ. I would like to get my [technician] out there tomorrow if you approve of this strategy. Please advise.
Range contends that this e-mail proves that the object to be accomplished in the conspiracy was defamation, but the language of the e-mail focuses on the contamination of the Lipksys’ well and on executing a plan to trigger an investigation into the contamination rather than on blaming Range or pursuing an action against Range for the contamination. Two days after Rich sent the e-mail, she conducted tests at the Lipskys’ residence. Eight days after Rich sent the e-mail, after she had collected preliminary data, she contacted the EPA. An e-mail sent by an EPA official following Rich‘s call to him referenced Rich‘s concern about the environmental conditions on the Lipskys’ property, but the e-mail did not express that Rich had blamed Range for those conditions or had asked the EPA to take action against Range. Rich swore in an affidavit that when she called the EPA official, she “did not mention any Range entity by name or offer any opinion as to where the contaminants were coming from.”
Range contends that Rich is “predisposed to blame oil and gas drilling anytime
there is alleged contamination.” Despite this alleged predisposition, however, Range did not present clear and specific evidence establishing that Rich had conspired with the Lipskys to blame Range on this occasion. Also, Range asserts that in furtherance of the conspiracy to defame and disparage Range, “videos of Mr. Lipsky lighting the end of the green garden hose were distributed to the media and others for the false and misleading proposition that the Lipskys’ water is flammable.” While the EPA official‘s August 20, 2010 e-mail states that Rich had told the official about the video, the e-mail also reflects that Rich had correctly disclosed to the official that the hose “was attached to [the Lipskys‘] well vent.” Range has not directed us to any evidence showing that Rich participated in distributing the video to the media, which reported that the video showed water being lit on fire, and the television reports about the video do not mention Rich.25
For these reasons, we conclude that Range did not establish through clear and specific evidence a prima facie case that relators agreed on the objective to defame Range, which is an essential element of Range‘s civil conspiracy claim as Range pled it. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983); Cotten, 187 S.W.3d at 701. Specifically, we have located no evidence showing that Rich agreed with the Lipskys to publicly blame Range for the contamination or that she ever in fact did so. Thus, we hold that the trial court clearly abused its discretion by denying relators’ motions to dismiss Range‘s civil conspiracy claim under chapter 27.
In its pleading, on the same facts as it based its civil conspiracy claim, Range also brought a claim against relators for “aiding and abetting.”26 Relators sought dismissal of this claim. In responding to relators’ motions to dismiss in the trial court, Range did not particularly discuss the elements or facts of its aiding and abetting claim or argue that the claim could survive independently from the civil conspiracy claim. Similarly, in this court, Range has not briefed its aiding and abetting claim separately from its civil conspiracy claim. Thus, for the same reasons that we have concluded that the trial court abused its discretion by denying relators’ motions to dismiss Range‘s civil conspiracy claim, we likewise hold that the trial court abused its discretion by denying relators’ motions to dismiss Range‘s aiding and abetting claim.
The Adequacy of Relators’ Remedy by Appeal
Although we have determined that the trial court clearly abused its discretion, in part, by denying relators’ motions to dismiss Range‘s claims under chapter 27, we cannot grant relief unless we determine that relators’ remedy by appeal is inadequate. Columbia Med. Ctr. of Las Colinas, 290 S.W.3d at 207; Aslam, 348 S.W.3d at 301. Because we have interpreted chapter 27 as not providing an interlocutory appeal when the dismissal of a plaintiff‘s claims is expressly and timely denied by a trial court, an immediate appellate remedy is not available to relators. Lipsky, 2012 WL 3600014, at *1 (citing Jennings, 378 S.W.3d at 529).
In this court, citing section 27.008(b) of the civil practice and remedies code, Range has recognized that when a trial court timely rules on a motion to dismiss, as the trial court did here, the trial court‘s decision may be reviewed by a petition for a writ of mandamus. See
An “adequate” remedy by appeal has “no comprehensive definition” and should not be decided based on “simple rules that treat cases as categories“; rather, in determining whether a relator has an adequate remedy by appeal, we must carefully analyze the costs and benefits of granting mandamus relief. In re W.L.W., 370 S.W.3d 799, 807 (Tex.App.-Fort Worth 2012, orig. proceeding [mand. denied]). An appellate remedy is adequate “when any benefits to mandamus review are outweighed by the detriments.” Id. (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex.2004) (orig. proceeding)). In our consideration of whether an appellate remedy is adequate, we should consider whether mandamus review will spare litigants and the public the time and money wasted “enduring eventual reversal of improperly conducted proceedings.” Id. (quoting In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex.2008) (orig. proceeding)). The “most frequent use . . . of man-
The legislature has determined that unmeritorious lawsuits subject to chapter 27 should be dismissed early in litigation, generally before parties must engage in discovery. See
chapter 27 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.”
The statute underlying this mandamus action is similar to the health care statute that the supreme court considered in McAllen Med. Ctr., Inc., 275 S.W.3d at 464-69. In that case, while considering whether mandamus relief should be granted from a trial court‘s abuse of discretion in denying a hospital‘s motion to dismiss a health care liability claim because of the plaintiffs’ failure to comply with a statute requiring sufficient expert reports, the court stated,
Here, the Legislature has already balanced most of the relevant costs and benefits for us. After extensive study, research, and hearings, the Legislature found that the cost of conducting plenary trials of claims as to which no supporting expert could be found was affecting the availability and affordability of health care—driving physicians from Texas and patients from medical care they need. Given our role among the coordinate branches of Texas government, we are in no position to contradict this statutory finding. . . . [D]enying mandamus review would defeat everything the Legislature was trying to accomplish.
Finally, along with a movant‘s entitlement to early dismissal that will be lost if we refuse to grant mandamus relief in appropriate chapter 27 cases, the movant may also lose, by рroceeding to trial, a statutory entitlement to attorney‘s fees and costs when dismissal is warranted under the chapter. See
For all of these reasons, we hold that relators have no adequate remedy by appeal to the extent, as explained above, that the trial court clearly abused its discretion by denying their motions to dismiss Range‘s claims under chapter 27. See Columbia Med. Ctr. of Las Colinas, 290 S.W.3d at 207; Aslam, 348 S.W.3d at 301.
Conclusion
Having held that the trial court clearly abused its discretion by denying Rich‘s and Shyla Lipsky‘s motions to dismiss all of Range‘s claims against them and that Rich and Shyla Lipsky have no adequate remedy by appeal, we conditionally grant their petitions for a writ of mandamus, order the trial court to set aside its February 16, 2012 order denying their motions to dismiss, and order the trial court to enter an order dismissing Range‘s claims against them. See