VICTOR MIGNOGNA, Appellant v. FUNIMATION PRODUCTIONS, LLC, JAMIE MARCHI, MONICA RIAL, AND RONALD TOYE, Appellees AND MONICA RIAL AND RONALD TOYE, Appellants v. VICTOR MIGNOGNA, Appellee
No. 02-19-00394-CV
Court of Appeals Second Appellate District of Texas at Fort Worth
August 18, 2022
On Appeal from the 141st District Court, Tarrant County, Texas, Trial Court No. 141-307474-19
Before Sudderth, C.J.; Womack and Wallach, JJ. Memorandum Opinion by Justice Wallach; Concurring Memorandum Opinion by Chief Justice Sudderth; Concurring and Dissenting Memorandum Opinion by Justice Womack
The Texas Citizens Participation Act (TCPA) is an anti-SLAPP1 statute intended “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely,2 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.”
If the defendant-movant satisfies its burden, then to avoid dismissal, the plaintiff-nonmovant must establish “by clear and specific evidence a prima[-]facie case for each essential element of the claim in question.”
Appellant Victor Mignogna sued Appellees Monica Rial, Ronald Toye, Jamie Marchi, and Funimation Productions, LLC,4 for defamation, conspiracy, tortious interference with existing contracts, tortious interference with prospective business relations, and—as to Funimation—vicarious liability for Rial, Toye, and Marchi‘s actions based on their postings on Twitter. Appellees moved to dismiss Mignogna‘s claims under the TCPA,5 and the trial court granted their motions. At a subsequent hearing, the trial court ordered Mignogna to pay litigation expenses and attorney‘s fees and imposed sanctions. See
In eight points, Mignogna appeals, complaining that the trial court erred by finding that Appellees’ evidence was legally and factually sufficient to satisfy their TCPA
On the record before us, Appellees met their initial TCPA burden, in part because Mignogna failed to preserve his complaints about their evidence, which the trial court considered along with Mignogna‘s allegations in his first amended petition. See Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (stating that in determining whether the TCPA applies, the court initially looks to the plaintiff‘s allegations). And because Mignogna withdrew the principal evidence supporting his prima-facie burden before the hearing on Appellees’ TCPA motions, he was unable to meet his TCPA burden on any of Appellees’ claims. Accordingly, the trial court did not err by granting Appellees’ TCPA motions, by imposing sanctions on Mignogna, or by awarding attorney‘s fees to Appellees, and we affirm this portion of the trial court‘s judgment.
On cross-appeal, Rial and Toye complain that the trial court should have awarded to them the full amount of attorney‘s fees they requested. Because we hold that the trial court‘s order on attorney‘s fees is against the great weight and preponderance of the evidence, we reverse this portion of the trial court‘s judgment and remand the case to the trial court on that issue. See
II. Factual Background
For more than a decade, Mignogna, Rial, and Marchi worked as anime voice actors for Funimation and appeared together at fan conventions. During that time,
More rumors resurfaced on January 16, 2019, the same day that Funimation‘s major anime film starring Mignogna‘s voice in the lead debuted. That day, someone with the Twitter handle @hanleia tweeted, “Hey @Funimation why do you employ a known pedophile” with a link to allegations of sexual misconduct by Mignogna at anime conventions. Another person, with the Twitter handle @ActuallyAmelia tweeted, “How is Vic Mignogna still working in anime? Every time assault in fandom comes up in a conversation, no matter who I talk to, so does his name. Every time. At some point an open secret becomes common knowledge and inaction becomes inexcusable.” Mignogna did not sue @hanleia or @ActuallyAmelia or any of the online magazines covering the allegations—Polygon, Anime News Network, and Gizmodo—for defamation. Instead, after meeting online with his fan club and encouraging them to speak of their positive experiences with him, Mignogna posted a tweet on January 20, issuing what he characterized as a “generic” apology for unintentionally offending anyone.
Funimation and its parent company began an investigation and terminated Mignogna‘s contract on January 29. Funimation commented about Mignogna‘s termination in a tweet on February 11. During the Mignogna-related social-media maelstrom between January and February 2019, Rial, Marchi, and Rial‘s fiancé Toye
III. Procedural complaints
We begin with Mignogna‘s procedural complaints because they are dispositive of his appeal. We review most procedural complaints for an abuse of discretion. See In re Mahindra, USA Inc., 549 S.W.3d 541, 550 (Tex. 2018) (orig. proceeding) (“The abuse of discretion standard is []typically applied to procedural and other trial management determinations[.]” (quoting In re Doe, 19 S.W.3d 249, 253 (Tex. 2000))). A trial court abuses its discretion if it acts without reference to any guiding rules or principles—that is, if its act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). A court‘s failure to analyze or apply the law correctly is an abuse of discretion. In re Acad., Ltd., 625 S.W.3d 19, 25 (Tex. 2021) (orig. proceeding).
The abuse-of-discretion standard governs amended petitions, see Dunnagan v. Watson, 204 S.W.3d 30, 38 (Tex. App.—Fort Worth 2006, pet. denied), and evidentiary rulings, see Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). In
A. Mignogna‘s late-filed second amended petition
In his sixth point, Mignogna argues that the trial court erred by not considering his second amended petition and its attachments in deciding whether he had met his burden to defeat Appellees’ TCPA motions.
Funimation filed its TCPA motion on July 1, 2019. Rial, Toye, and Marchi filed their TCPA motions on July 19. The motions were originally set for a hearing on August 8, but the parties agreed to move the hearing to September 6 to allow Mignogna more time to respond. On August 6, the parties signed a Rule 11 agreement wherein they agreed that Mignogna would file his response to the TCPA motions by August 30. See
According to the subsequently filed “Plaintiff‘s Motion for Leave to File Late Response to Defendants’ TCPA Motions to Dismiss Due to Technical Issues,” Mignogna‘s counsel unsuccessfully attempted to file Mignogna‘s TCPA response just
Mignogna‘s counsel successfully filed the TCPA response at midnight on September 3, the day after Labor Day, along with a motion for leave to file the late response due to technical issues. In addition to the three affidavits described above, Mignogna‘s counsel attached to the TCPA motion the depositions of Mignogna, Rial, and Toye, along with 342 tweets that were attached as exhibits to Toye‘s deposition; the unsworn declaration of E.M.,8 a convention representative who wrote the declaration in response to statements about her by the CEO of the Kawaii Kon Convention, whose affidavit was attached to Rial and Toye‘s TCPA motion;9 and an
When Mignogna‘s counsel filed the TCPA response at midnight on September 3,10 he simultaneously filed a second amended petition containing twenty new paragraphs of factual allegations. To the second amended petition, he attached seventeen exhibits, which he described as “prima[-]facie evidence sufficient to prove each element of each claim” and referenced the exhibits in eighteen of the petition‘s paragraphs. Nine of the seventeen exhibits contained evidence that was not attached to the TCPA response. The remaining eight exhibits consisted of three unsworn
Forty-five minutes after filing the TCPA response and second amended petition, Mignogna‘s counsel replied to opposing counsel‘s September 2 affidavit inquiry, stating that he would withdraw the three affidavits and that they had been “mistakenly submitted with defects in form.” He filed a notice of withdrawal of the affidavits around half an hour later. At the TCPA hearing on September 6, Mignogna‘s counsel stated that he had filed the second amended petition after opposing counsel notified him of the defective affidavits.
Appellees objected to Mignogna‘s late filing of his TCPA response, to the filing of his second amended petition, and to the attempted late submission of evidence, citing surprise and their mutually agreed August 30 deadline. See
The record reflects that Mignogna essentially tried to use an amended pleading as a late TCPA response to remedy his lack of evidence and thereby avoid the parties’ Rule 11 agreement deadline. The trial court has a ministerial duty to enforce a valid Rule 11 agreement, Kerulis v. Granbury Lake Props., Inc., No. 2-05-247-CV, 2006 WL 1791617, at *3 (Tex. App.—Fort Worth June 29, 2006, no pet.) (mem. op.), and Mignogna did not argue in the trial court or in this appeal that the parties’ Rule 11 agreement setting a deadline for the TCPA response—and therefore evidence—was invalid. Accordingly, we hold that the trial court did not abuse its discretion by refusing to consider Mignogna‘s second amended petition and attachments filed in violation of the Rule 11 agreement. See EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 91 (Tex. 1996) (orig. proceeding);11 Neely v. Allen, No. 14-19-00706-CV, 2021 WL 2154125, at *6 (Tex. App.—Houston [14th Dist.] May 27, 2021, no pet.) (mem. op.) (citing EZ Pawn for the proposition that when affidavits are filed late in violation of a Rule 11 agreement on deadlines, and the opposing party seeks enforcement of the agreement in the trial court, neither the trial court nor the court of appeals can consider the affidavits). Because the trial court did not abuse it discretion by excluding Mignogna‘s second amended petition as being in violation of the parties’ Rule 11 agreement, we need not address Mignogna‘s alleged Rule 59 violation. See
B. The trial court‘s evidentiary rulings
In his seventh point, Mignogna enrobes his TCPA sufficiency complaint about Appellees’ motions within his argument that the trial court should have struck Funimation‘s and Rial and Toye‘s evidence.12 However, he ignores that in her TCPA motion, Marchi incorporated and adopted by reference all of the evidence attached by Funimation and by Rial and Toye to their respective TCPA motions to prove Mignogna‘s status as a public figure and that their respective statements were made on a matter of public concern. Mignogna did not object to Marchi‘s evidence or to her
Because Marchi‘s evidence (and Mignogna‘s own evidence) generally established his public-figure status and the matters of public concern, the error, if any, was harmless. See
Because Mignogna raises no other challenge to whether Appellees met their initial TCPA burden, we consider that burden established for our analysis.13
IV. TCPA Analysis
In his first, second, third, fourth, and fifth points, Mignogna argues that he met his burden to establish a prima-facie case for each essential element of each of his claims. We review de novo a trial court‘s ruling on a TCPA motion. UATP Mgmt., LLC v. Leap of Faith Adventures, LLC, No. 02-19-00122-CV, 2020 WL 6066197, at *2 (Tex. App.—Fort Worth Oct. 15, 2020, pet. denied) (mem. op.) (citing Beving v. Beadles, 563 S.W.3d 399, 404 (Tex. App.—Fort Worth 2018, pet. denied)); PNC Inv. Co., v. Fiamma Statler, LP, No. 02-19-00037-CV, 2020 WL 5241190, at *3 (Tex. App.—Fort Worth Sept. 3, 2020, no pet.) (mem. op). In our review, we consider the pleadings and
Regarding the nonmovant‘s burden to establish by “clear and specific evidence a prima[-]facie case” for each essential element of his claims, “prima[-]facie case” is given its traditional legal meaning, which is evidence sufficient as a matter of law to establish a given fact “if it is not rebutted or contradicted.” In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding). It is the “minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.” Id. (citation and internal quotations omitted); see also Miller v. Watkins, No. 02-20-00165-CV, 2021 WL 924843, at *8 (Tex. App.—Fort Worth Mar. 11, 2021, no pet.) (mem. op.). “Clear and specific evidence” is not defined by either the TCPA or the common law, but our sister court has aptly summarized it as follows:
[P]roof by clear and specific evidence is not simply “fair notice” of a claim. [citing Lipsky, 460 S.W.3d] at 590. Rather, under the clear and specific evidence standard, a plaintiff must provide enough detail to show the factual basis for the plaintiff[‘]s claim. Id. at 591. This is not an elevated standard, does not categorically reject circumstantial evidence, and does not impose a higher burden of proof than that required of the plaintiff at trial. Id.
Harper v. Best, 493 S.W.3d 105, 114 (Tex. App.—Waco 2016), aff‘d as modified, 516 S.W.3d 1 (Tex. 2018). Conclusory statements and speculative evidence, however, will not support the nonmovant‘s burden. Mogged v. Lindamood, No. 02-18-00126-CV, 2020 WL 7074390, at *9 (Tex. App.—Fort Worth Dec. 3, 2020, pet. denied) (en banc mem. op. on reh‘g); Miller, 2021 WL 924843, at *8.
A. Defamation
The elements of a defamation cause of action are
- the publication of a false statement of fact to a third party,
- that was defamatory concerning the plaintiff,
- with the requisite degree of fault, at least amounting to negligence, and
- damages, in some cases.
A defamatory statement is one that “tends [ ] to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Innovative Block of S. Tex., Ltd. v. Valley Builders Supply, Inc., 603 S.W.3d 409, 417 (Tex. 2020) (citations omitted); Miller, 2021 WL 924843, at *8.
A defamatory statement must proximately cause damages unless the statement is defamatory per se. Mogged, 2020 WL 7074390, at *9 (citing Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017)). A statement is defamatory per se if it accuses someone of a crime, of having a foul or loathsome disease, or of engaging in serious sexual misconduct. Id. at *10. Whether a statement is defamatory per se is generally a legal question. Id. Statements of opinion about a public figure on matters of public concern are not actionable as defamation because they cannot be proved false. Id. at *16. Calling someone a “sexual predator” falls within the broader principle that a speaker‘s
Furthermore, for a public-figure plaintiff, an essential element of the defamation claim is that the defendant published the alleged falsehood with “actual malice.” Greer v. Abraham, 489 S.W.3d 440, 443 (Tex. 2016); Lipsky, 460 S.W.3d at 593 (“The status of the person allegedly defamed determines the requisite degree of fault.“). In this context, “actual malice” means “knowledge of, or reckless disregard for, the falsity of a statement,” i.e., proof of the defendant‘s state of mind at the time of the publication. Greer, 489 S.W.3d at 443–44 (noting that the constitutional focus is on the defendant‘s attitude toward the truth, not his attitude toward the plaintiff). The mere failure to investigate the facts, by itself, is no evidence of actual malice. Mogged, 2020 WL 7074390, at *9 (citing Bentley v. Bunton, 94 S.W.3d 561, 595 (Tex. 2002)). Likewise, the mere fact that a defamation defendant knows that a public figure has denied harmful allegations or offered an alternative explanation of events is not evidence that the defendant doubted the allegations. Hearst Corp. v. Skeen, 159 S.W.3d 633, 639 (Tex. 2005). Proof of reckless disregard requires evidence that the defendant had serious doubts about the publication‘s truth. Rodriguez v. Gonzales, 566 S.W.3d 844, 852 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).
1. No evidence of actual malice as to Marchi, Rial, or Funimation
a. Marchi
Mignogna argues that Marchi defamed him through her statement that he had assaulted her by grabbing her hair, yanking her head back, and whispering something “sexual” in her ear. In his first amended petition, he alleged that on February 8, 2019, “[Marchi] tweeted that [he] had assaulted her several years prior by grabbing her hair and whispering in her ear (what he whispered she couldn‘t remember), that ‘[i]n the last”
Marchi‘s entire February 8, 2019 Tweet stated,
I stand with the victims. My experience is minor in comparison to many others; however, having realized this wasn‘t an isolated incident, I felt compelled to share.
Several years ago, I was in the lobby at my job when I was approached by a co-worker. This guy gave me the creeps already (he gave almost all the women at my job the creeps), but I always felt like I had to be nice to him anyway because of how revered he was in the industry. As we said hello, he stood to the side of me and started running his fingers through my hair. Now, I do work in an affectionate industry; we hug a lot, and on occasion, will give a kiss on the cheek. But even for an affectionate environment, this felt off. I didn‘t say anything to him about it, though. It was just his fingers in my hair; I didn‘t think it was a big deal. At that point, he splayed his fingers, put his hand at the base of my skull, and made a fist. When he did this, he grabbed my hair close to the root, effectively preventing me from moving my head at all. He then jerked his fist, yanking my head backwards and towards him, and whispered something in my ear. I don‘t remember what he said specifically, but I do remember it being sexual in nature. This was not normal. This was not just a hug or a kiss on the cheek. I did not like it. I have no memory of getting out of his grasp, but I assume, “What the f[***] are you doing?” was part of my technique.
Afterwards, I completely and utterly dismissed this experience. I dismissed the way I had been touched. I dismissed having this man grab me. I dismissed having my head jerked back. I dismissed the inappropriate comment. I dismissed this entire encounter.
I never reported this event to the company. It actually didn‘t even occur to me that I should have. Although, if it had occurred to me, I can‘t say I would have reported him. This guy was worshipped by his fans. He
was worshipped by the studios because of his fans. He was the most popular voice actor on the convention circuit. Everyone treated him with kid gloves because he was the one and only Vic Mignogna. Who was I? A nobody in comparison. I didn‘t matter, and I knew it. Risking being blacklisted from my work and conventions simply wouldn‘t have been worth it. As I look back on this moment and discuss it with my family and friends, I can see that his actions qualify as simple assault.15 Would he have gone to jail had I pressed charges? I‘m not sure. Why would people believe me over a man who holds bible studies in hotel lobbies? And even if they did, would they care about the truth if that meant tarnishing the reputation of their favorite voice actor?
In the last week or so, I‘ve heard accounts of him doing this exact thing to half a dozen other women that I personally know. I am friends with these women, and we never told each other about our experiences. Some dismissed it, like me. Others felt too ashamed or scared to say anything. I struggle with the guilt I feel for having been so dismissive of his actions. Had I been able to speak up then, maybe less women would have had to experience what happened when they were unable to get out of [Mignogna‘s] grasp.
I‘m speaking up now because I didn‘t even think about this event until I realized other women had experienced the same thing. I thought it was just me. And at first, I didn‘t want to say anything because my experience was not nearly as bad as what other people have suffered at the hands of this man. I wanted their stories to be heard first because they were the important ones. But, in this moment, I want the others who I know are out there to hear this: it wasn‘t just you. It‘s okay if you didn‘t say anything, to him or anyone else. You are not responsible for what
happened. You do not have to be dismissive, ashamed, or afraid. Also, I hope if anyone ever goes through a similar experience, they will know from the start that their body is not up for debate. Their body is not property of the most popular person in the room. Their body is not responsible for a company, or a show, or an artform. Their body is most definitely not responsible for the reputation and livelihood of a predator.
In her unsworn declaration, Marchi stated that she decided “to publicly state the truth about what [Mignogna] did to [her]” in early 2019 after other “women began coming out with the truth about their various experiences” with him and that she did it “so that other women who were victims of [Mignogna] or other aggressors would know that they are not alone” and to show solidarity with and empathy for those victims. Marchi further declared that she had told the truth and had since been “harassed, threatened, and lambasted” by Mignogna‘s supporters and his legal team even though she had “not made these statements out of malice or any desire to hurt” him and despite her own hurt and anger. Marchi stated, “[M]y intent in my outcry was always to provide an opportunity for healing and encouragement for bravery for both myself and other victims.”
In his deposition, Mignogna admitted to the incident involving Marchi‘s hair but stated that it “was not painful, it was not hurtful, it was not sexual, and it happened at least four or five years ago, maybe longer,” and he denied ever having whispered anything sexual in her ear or having had any sexual interest in her. Mignogna testified that Marchi had defamed him by publicly posting and “mischaracterizing a very casual, brief interaction in public and the lobby at Funimation” and that to his recollection, “it
Mignogna‘s TCPA evidence did not show that Marchi had published a false statement of fact17 or that she did so with knowledge of, or reckless disregard for, the
b. Rial
In his first amended petition, Mignogna alleged that Rial had made the following statements or had taken the following actions to defame him:
- On January 16, 2019, Rial “liked” and “retweeted” a tweet by @hanleia that accused Mignogna of being “a homophobic rude asshole who has been creepy to underage female fans for over ten years.”
On January 17, 2019, Rial liked and retweeted two tweets by @marzgurl that accused Mignogna of “great volumes of sexual misconduct,” that urged Funimation to “reconsider hiring Vic Mignogna as a voice actor in the future,” and that initiated the hashtag “#KickVic.” - On February 6, 2019, Rial tweeted, “IT HAPPENED TO ME!”19 and that she was “only one voice on a sea of many . . . He‘s hurt enough people. He‘s a sick man and he needs help . . . .”
- In a February 11, 2019 thread under the Funimation tweets, Rial tweeted, “There were multiple investigations20 with testimony, proof, evidence. Companies don‘t
cut ties without those things. However, that information is classified. I am one of dozens of men and women who participated. Stop harassing me.” She also tweeted, “And just so we‘re clear, he‘s the legal definition of harassment: Harassment is governed by state laws, but is generally defined as a course of conduct which annoys, threatens, intimidates, alarms, or puts a person in fear of their safety.” - On February 19, 2019, in a Tweet, Rial accused Mignogna of “sexual harassment,”21 of kissing her without her consent,22 and of treating others similarly at conventions;23 referenced having spoken with “investigators” to “corroborate” the
“testimony” of others telling stories similar to hers; and spoke of Funimation‘s “investigations.” She stated, “The investigations were incredibly thorough. Each person was interviewed, the evidence weighed, and a decision made. Each company has to look out for the safety of their employees. In this instance, these companies felt they made the best decision to protect their employees and contract workers. Also, these companies aren‘t obligated to share any information with you. Many of the women who‘ve come forward have chosen to remain anonymous, especially after seeing the way that I‘ve been attacked. Please respect their privacy.”
Mignogna argues that he specifically denied Rial‘s accusations against him, but to support his assertion, he primarily references his affidavit and Slatosch‘s affidavit, both of which he withdrew before the TCPA hearing, and his unsworn declaration and Slatosch‘s unsworn declaration, neither of which the trial court considered because they were attached to his second amended petition. Further, despite having attached Rial‘s entire deposition to his TCPA response, Mignogna provided no evidence of her state of mind with regard to the actual-malice element.
To the contrary, as to at least one of the complained-of statements, Rial testified in her deposition that her February 11, 2019 tweet—which stated, “And just so we‘re
c. Funimation
Mignogna argues that Funimation defamed him by publishing two statements about him that, when viewed together, conveyed a false and defamatory meaning. In his first amended petition, Mignogna alleged that Funimation had defamed him when it published the following tweets on February 11, 2019:
- “Everyone, we wanted to give you an update on the Vic Mignogna situation. Following an investigation, Funimation recast Vic Mignogna in Morose Mononokean Season 2. Funimation will not be engaging Mignogna in future productions“;24 and
“We do not [condone] any kind of harassment or threatening behavior being directed at anyone.”
As with the other defendants, Mignogna produced no evidence to meet the actual-malice standard. Accordingly, the trial court did not err by granting Funimation‘s TCPA motion on Mignogna‘s defamation claim, and we overrule this portion of Mignogna‘s first point.
2. No evidence of the context of Toye‘s tweets or actual malice
In his first amended petition, Mignogna alleged that Toye made the following statements or took the following actions:
- On January 26, 2019, Toye tweeted that Mignogna was “a predator.”
- On January 31, 2019, Toye tweeted that he knew of “at least 4 assaults”25 by Mignogna and that he was “glad to see conventions cancelled.”
- On February 1, 2019, Toye tweeted that he knew Mignogna was “guilty of at least 4 accounts.”
On February 2, 2019, Toye tweeted that Mignogna needed to prove himself “not to be a predator” and that Mignogna “is a predator” based on Toye‘s “[i]nsider knowledge” about Sony‘s investigation. - On February 4, 2019, Toye tweeted multiple times that Mignogna was a “predator,” called him a “perp,” and posted: “He is down because he took advantage of girls, buddy. [H]ow about get a grip on reality and stop harassing people. Over 100 accounts and still more to come and you defend this sack of shit? Get a life!”
- On February 5, 2019, Toye tweeted an accusation that Mignogna was a “predator.”
- On February 6, 2019, Toye tweeted that over 100 women had made accusations “of assault” against Mignogna that were “corroborated,” that “[there were] mountains of testimony,” and that Funimation had “proof. That‘s why they fired him.”
- On February 13, 2019, Toye tweeted, “Evidence: He has been fired, there was an investigation[, and ] these actions have corroborated testimony.”
- On February 16, 2019, Toye tweeted, “[L]et‘s see who walks away a registered sex offender.”
- On February 18, 2019, Toye tweeted, “Their [Funimation‘s] decision was on things that happened to [F]unimation employees.”
- On February 21, 2019, in a Tweet, Toye accused Mignogna of “assaulting” Rial.
- On February 23, 2019, in a Tweet, Toye accused Mignogna of “cheat[ing] on his fiancée,26 assault[ing] ladies, [and] rob[bing] fans” and assaulting “way more people” than Rial.
On April 7, 2019, in a Tweet, Toye accused Mignogna of “forc[ing] himself on people in a sexual manner without consent and that resulted in assault.”
Mignogna also alleged that Toye had tweeted “more than 80 times that [Mignogna had] sexually assaulted or assaulted [Rial], more than 10 times that [Mignogna had] sexually assaulted or assaulted three of [Toye‘s] ‘very close friends,’ more than 10 times that [Mignogna] has been accused of hundreds and possibly thousands of assaults, and at least 17 times that [Mignogna] is a ‘predator.‘”
Mignogna‘s pleadings and evidence had to establish “the facts of when, where, and what was said[;] the defamatory nature of the statements[;] and how they damaged [him].” Lipsky, 460 S.W.3d at 591. However, Mignogna merely attached 342 purported tweets by Toye without their surrounding context—the tweets to which Toye was responding—which is required to determine if a statement is defamatory per se. Bilbrey, 2015 WL 1120921, at *12. Further, the tweets referring to Mignogna as a “sexual predator” or variations thereof were nonactionable opinion, Mogged, 2020 WL 7074390,
B. Tortious-interference claims
In a claim for tortious interference with an existing contract, the plaintiff must show that (1) the plaintiff had a valid contract with a third party, (2) the defendant willfully and intentionally interfered with the contract, (3) the defendant‘s interference with the contract proximately caused the plaintiff‘s alleged injury, and (4) the plaintiff incurred actual damage or loss. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex. 2002) (op. on reh‘g).
The elements of a tortious-interference-with-prospective-business-relations claim are (1) there was a reasonable probability that the plaintiff would have entered into a business relationship with a third person, (2) the defendant intentionally interfered with the relationship, (3) the defendant‘s conduct was independently tortious or unlawful, (4) the defendant‘s interference proximately caused the plaintiff‘s alleged injury, and (5) the plaintiff suffered actual damage or loss. Coinmach Corp. v. Aspenwood Apt. Corp., 417 S.W.3d 909, 923 (Tex. 2013).
Mignogna testified that he averaged attending between 20 to 30 conventions a year and by the time of his June 26, 2019 deposition, he had attended 9. He further testified that it was not unusual to not be invited to a convention he had attended the
Mignogna admitted in his deposition that with the exception of one convention—Kameha Con—he had no written evidence, emails, text messages, or anything to show that Appellees had contacted or encouraged conventions not to invite
On the record before us, Mignogna failed to present any evidence that he had a valid contract or would have had a valid contract but for interference by Marchi,32 Rial,
C. Civil conspiracy and vicarious liability
A claim for conspiracy requires showing that (1) a defendant was a member of a combination of two or more persons; (2) the combination‘s object was to accomplish either an unlawful purpose or a lawful purpose by unlawful means; (3) the members had a meeting of the minds on the object or course of action; (4) one of the members committed an unlawful, overt act to further the object or course of action; and (5) the plaintiff suffered injury as a proximate result of the wrongful act. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 2017). An actionable civil conspiracy exists only as to those parties who are aware of the intended harm or proposed wrongful conduct at the outset of the combination or agreement. Id. A conspiracy claim is a derivative tort because recovery is not based on the conspiracy but on an underlying tort. Agar Corp. v. Electro Circuits Int‘l, LLC, 580 S.W.3d 136, 142 (Tex. 2019) (“Civil conspiracy requires an underlying tort that has caused damages.“); Bell v. Bennett, Nos. 02-10-00481-CV, 02-11-00057-CV, 02-11-00063-CV, 2012 WL 858603, at
Because Mignogna failed to establish a defamation or tortious-interference claim against any of Appellees, his derivative claim of civil conspiracy against them failed.33
Furthermore, without evidence of a tortious act by Rial or Marchi,34 Funimation could not be held vicariously liable for them, regardless of their employee or independent-contractor status. Accordingly, we overrule Mignogna‘s fourth point.
V. Attorney‘s Fees and Sanctions
The TCPA in effect at the time of the litigation required the trial court to award to the successful movant “reasonable attorney‘s fees” and sanctions, among other items. See
A. Award of attorney‘s fees and sanctions to Appellees
In his eighth point, Mignogna argues that the attorney‘s fees and sanctions awarded by the trial court are improper because “the trial court improperly dismissed [Mignogna‘s] claims against Appellees.” Because, as set out above, Mignogna‘s claims were properly dismissed under the TCPA, the trial court‘s order on fees and sanctions was not improper because it followed the statutory requirements. See
In their single cross-appeal issue, Rial and Toye complain that the final judgment “improperly awards [to them] an amount of attorneys’ fees ($100,000.00) lower than the amount requested and supported by competent evidence in their motion for fees ($282,953.80).” They argue, “[T]he arbitrary manner in which the trial court awarded attorneys’ fees, coupled with [their] uncontroverted evidence,” requires us to reverse and render an award of fees because they faced a more complex fact pattern than Marchi or Funimation and were forced to respond to significantly more attacks by Mignogna. Rial and Toye point out that their counsel had to defend two individuals instead of just one and that they were the only defendants who were deposed and the only ones who answered discovery, as well as the ones who “bore the brunt of bad-faith litigation brought by a well-funded plaintiff bent on harassment and obstruction.”
1. Standard of review and applicable law
Under the TCPA, a “reasonable” attorney‘s fee “is one that is not excessive or extreme, but rather moderate or fair.” Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016). The “reasonableness” determination—a fact question—rests within the court‘s sound discretion. Id. When a claimant wishes to obtain attorney‘s fees from the opposing party, the claimant must prove that the requested fees are both reasonable and necessary, and these elements act as limits on the amount of fees that a prevailing party can shift to the nonprevailing party. Rohrmoos Venture v. UTSW DVA Healthcare
A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to guiding principles. Iola Barker v. Hurst, 632 S.W.3d 175, 186 (Tex. App.—Houston [1st Dist.] 2021, no pet.). To determine whether evidence is sufficient to support the trial court‘s exercise of discretion, we consider (1) whether the trial court had sufficient information upon which to exercise its discretion, to which we apply the legal and factual sufficiency standards of review,35 and (2) whether the trial court erred in its application of that discretion, i.e., whether, based on the evidence before it, the trial court made a reasonable decision. Jones-Hospod v. Maples, No. 03-20-00407-CV, 2021 WL 3883884, at *6 (Tex. App.—Austin Aug. 31, 2021, pet. denied) (mem. op.). A
The supreme court has stated that the factfinder‘s starting point for calculating an attorney‘s-fee award is to determine the reasonable hours worked multiplied by a reasonable hourly rate and that the fee claimant bears the burden of providing sufficient evidence on both counts. Rohrmoos, 578 S.W.3d at 498. Sufficient evidence, at a minimum, includes evidence of (1) particular services performed; (2) who performed those services; (3) approximately when the services were performed; (4) the reasonable amount of time required to perform the services; and (5) the reasonable hourly rate for each person performing the services. Id. at 498, 502. Reasonableness and necessity are not dependent solely on the contractual fee arrangement between the prevailing party and its attorney; the base lodestar calculation should reflect hours reasonably expended for services necessary to the litigation and a reasonable hourly rate for the attorney to prosecute or defend successfully against the claim at issue. Id. at 498–99; El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012) (explaining that the trial court calculates the lodestar).
“[T]here is a presumption that the base lodestar calculation, when supported by sufficient evidence, reflects the reasonable and necessary attorney‘s fees that can be
Even if a fee claimant‘s testimony is uncontroverted, a trial court is not obligated to award the requested amount. Iola Barker, 632 S.W.3d at 193 (citing Smith v. Patrick W.Y. Tam Tr., 296 S.W.3d 545, 547–48 (Tex. 2009)). Attorney‘s fees may be proven as a matter of law in some cases by uncontroverted expert testimony if that testimony is
The amount of “reasonable” attorney‘s fees has become a frequent subject of TCPA appeals and remands since Rohrmoos, which, as set out above, clarified the evidentiary standards for shifting attorney‘s fees. See, e.g., Berry v. Bay, Ltd., 643 S.W.3d 424, 435 (Tex. App.—Corpus Christi–Edinburg 2022, no pet.) (noting that when prevailing party‘s attorney requested $27,816.50 in pre-appeal TCPA attorney‘s fees, the trial court‘s award of $10,000 was not an abuse of discretion when the trial court “could have determined that the times and rates reported by [the prevailing party‘s attorney were] excessive, inadequately documented, or duplicative“); Iola Barker, 632 S.W.3d at 181 (addressing claim that trial court erred by not awarding full amount of attorney‘s fees, costs, and expenses); Broder v. Nexstar Broad. Grp., Inc., No. 03-19-00484-CV, 2021 WL 2273470, at *1 (Tex. App.—Austin June 4, 2021, no pet.) (mem. op.)
In Iola Barker, our sister court considered the appellants’ complaint that the trial court erred by not awarding the full amount of their attorney‘s fees, costs, and expenses after they had prevailed on a TCPA motion. 632 S.W.3d at 181. The appellants attached detailed billing statements and the affidavits of their trial and appellate counsel and their expert on attorney‘s fees to their memorandum in support of attorney‘s fees, and the appellees had responded with affidavits on attorney‘s fees from their own experts. Id. at 184. The appellate court determined that the appellees’ affidavits were conclusory and constituted no evidence to overcome the base lodestar calculation‘s presumptive reasonableness. Id. at 192–93.
The court then examined the appellants’ evidence. Despite that evidence, which reflected 219.10 hours of work and total billing, after discounts, of $59,500, id. at 188–89, the trial court had ordered recovery of only $7,000 in attorney‘s fees, court costs, and expenses from one nonmovant and recovery of only $9,000 from the other, in addition to conditional appellate attorney‘s fees, from the nonmovants, who had sought less than $100,000 in damages. Id. at 184, 191, 194. The case had begun in 2017, and the movants had immediately sought dismissal under the TCPA and then spent four years pursuing that goal. Id. at 194. The court concluded that the trial court had abused its discretion based on the fact that the trial court‘s attorney‘s-fee awards amounted to “just 17% of appellants’ evidence of attorney‘s fees incurred,” resulting in awards
In contrast, in Broder, the nonmovants appealed, seeking to reverse the trial court‘s assessment of $112,217.50 in TCPA attorney‘s fees, but the court of appeals upheld the award. 2021 WL 2273470, at *1, *16, *18. The nonmovant doctor (and his company, Belleza Medspa) had sued a reporter and the reporter‘s broadcaster for reporting on, among other things, a patient‘s death after plastic surgery. Id. at *1–2. When the movants prevailed on their TCPA motion, they sought $124,357 in attorney‘s fees plus conditional appellate attorney‘s fees. Id. at *15. The movants provided testimony of the number of hours on the case by their lead attorney (123), by a partner at her firm (43.6), by an associate (81.9), and by a paralegal (26.7), and their hourly rates—$475, $575, $400, and $225, respectively. Id. at *17. They also provided evidence of the tasks performed and various complications, such as the nonmovants’ petition, which was over 40 pages long and failed to clearly articulate the complained-of statements; the nonmovants’ multiple and voluminous filings, including their TCPA response, which was over 900 pages; and dueling objections to TCPA evidence. Id. The nonmovants’ pleadings did not specify a damages amount, but they had alleged losses that would have amounted to approximately $4 million. Id. at *18. The trial court set out in its order awarding $112,217.50 in attorney‘s fees that it had accepted the legal
We recently considered the amount of attorney‘s fees awarded under the TCPA in Mogged. 2020 WL 7074390, at *1. After prevailing on their TCPA motion, the movants requested $177,350 in attorney‘s fees, but the trial court awarded only $38,190. Id. at *7–8. We noted that the movants “used the lodestar method, addressed the Arthur Andersen factors, and presented detailed evidence of their attorney‘s fees.” Id. at *18. Beyond characterizing its award as encompassing “reasonable” attorney‘s fees, the trial court‘s order did not indicate why it had reduced the requested award, and the trial court made no written fact findings. Id. We observed that although reduced attorney‘s-fee TCPA awards can be and have been upheld as a proper exercise of the trial court‘s discretion if conflicting evidence of reasonableness exists, based on the movants’ evidence, the trial court‘s award was against the great weight and preponderance of the evidence, constituting an abuse of discretion. Id. at *18–19. Accordingly, we reversed the award and remanded the case to the trial court for a redetermination by applying Rohrmoos‘s guidance, which the trial court did not have when awarding fees initially. Id. at *19.
In another TCPA case remanded for reconsideration under Rohrmoos, the trial court awarded to the TCPA movants $256,689 in attorney‘s fees. Toledo v. KBMT Operating Co., 581 S.W.3d 324, 326–27 (Tex. App.—Beaumont 2019, pet. denied). The appellant complained that there was insufficient evidence to support the award because the movants’ attorneys had filed only one short, form motion and two strikingly similar briefs and had made only three court appearances. Id. at 327. The movants’ attorneys had supported their request with a business records affidavit authenticating 177 pages of bills and supporting documents and an affidavit by their lead attorney in which he described his professional experience and his role as lead counsel in the case; identified the other attorneys and paralegals who participated in defending the case together with the hourly rate of each; described the course of the litigation; and averred that the charged fees were usual and customary as well as reasonable and necessary. Id. at 328. The movants’ lead attorney subsequently testified at the attorney‘s-fee hearing. Id. Although the nonmovant objected to the movants’ evidence and supported her objections to an excessive award with her attorney‘s affidavit, the trial court granted the movants’ request to strike that affidavit—a ruling that was not challenged on appeal. Id. at 328–29.
On appeal, the nonmovant complained that the award was excessive because the invoices reflected substantial duplication of effort by the firm‘s attorneys; that the firm had over-researched legal issues by using many attorneys to perform essentially the same research; that the firm had billed for time it would have taken to do original research and writing even though it recycled the same arguments and authorities in its motions and briefs in the trial court; that the firm had billed paralegal and attorney rates
The Beaumont court agreed that the trial court had awarded an excessive fee because the movants’ lead counsel‘s testimony was “rather conclusory” as to the reasonableness of the hours worked, and his conclusory testimony and invoices did not establish that the amount sought was reasonable when he failed to explain why the attorneys who billed for working on the case were not needlessly duplicating and revising each other‘s work. Id. The evidence before the trial court also failed to establish the amount of damages at stake in the dispute, preventing the trial court from reasonably determining whether the award was grossly disproportionate to the amount at stake on the defamation claims. Id. at 331–32. Our sister court reversed the award
Having reviewed how we and other courts have previously treated TCPA attorney‘s-fee awards, both large and small, we now turn to the instant case to determine whether the trial court erred by awarding too little in attorney‘s fees to Rial and Toye.
2. Trial court‘s attorney‘s-fee order
Here, in its order awarding attorney‘s fees, the trial court labeled the amount of fees “reasonable and necessary” and awarded $48,137.50 to Marchi—the specific amount she had requested—and awarded to Funimation, Rial, and Toye $50,000 each despite their substantially larger requests. The trial court‘s order did not explain why it had reduced the fee awards requested by Rial and Toye (or Funimation), and the trial court made no written fact findings about the fee awards. When the trial court makes no fact findings, we infer all facts supported by the evidence that are necessary to support the trial court‘s ruling. Jones-Hospod, 2021 WL 3883884, at *6.
3. Attorney‘s-fee evidence
During the attorney‘s-fee hearing, each of Appellees’ lead attorneys testified about their qualifications and work on the case. Mignogna also testified about the case but presented no evidence to contradict Appellees’ attorney‘s-fee evidence. We will
a. Rial and Toye‘s evidence
The trial court admitted into evidence the billing records of Rial and Toye‘s attorneys, and J. Sean Lemoine, their lead counsel, testified that he had brought unredacted billing records to submit in camera if Mignogna‘s counsel challenged the redactions.
Lemoine testified that in 2000, he graduated from Vermont Law School and became licensed in Texas, and in 2004, he joined Wick Phillips at its inception and practiced commercial litigation. Lemoine stated that Wick Phillips began litigating TCPA cases in 2013, that the firm had a “pretty robust anti-SLAPP practice,” and that he was “probably the lead attorney within the firm that advises on that particular statute.” He had a blog, www.antislapptexas.com; wrote a version of recommended changes to the TCPA during the 2019 legislative session; gave continuing legal education presentations about the TCPA; and had litigated “at least 12 to 15 TCPA motions” through attorney‘s-fee hearings. He stated that he was familiar with the tasks necessary to represent a client in litigation and specifically on a TCPA motion.
In researching Tarrant County attorney‘s-fee rates, Lemoine testified that Wick Phillips opened a Fort Worth office in 2006, and that he had spoken with one of the attorneys in that office—who had joined from Haynes Boone—about the office‘s rates as well as Haynes Boone‘s Fort Worth office rates. He also talked to a senior-level
Lemoine also spoke with an attorney at Barnes & Thornburg who had received an award of attorney‘s fees in Fort Worth in February 2019. From this research, he “was able to get a range of the fees . . . kind of starting at Harris [Finley] Bogle all the way up to Jackson Walker . . . and Haynes [] Boone, they‘re the top end of fees.” Lemoine then addressed the Rohrmoos factors and testified that a lawyer with 25 years’ experience would command a higher rate than a first-year lawyer, as would a board-certified lawyer, or one with expertise in a particular case‘s topical basis. He stated that the reasonable fee under Rohrmoos could be calculated via a blended rate of all of the timekeepers multiplied by a total number (reasonable hours x reasonable rates) or by determining the reasonable hourly rate for each timekeeper “and then how many hours [each lawyer] should . . . have spent on a particular case or a particular activity, and then you multiply that out, and you do that for each timekeeper,” followed by exercising “billing discretion” to eliminate excessive or duplicative time “or time that wasn‘t properly spent on recoverable issues.”
Lemoine testified that his hourly rate was $515 and testified about the Wick Phillips lawyers who worked on the case with him:
- Jeff Hellberg, a double board-certified attorney with 23 years’ experience, who was “one of the foremost people in terms of arguing Texas anti-SLAPP cases at the
Court of Appeals,” and whose hourly rate was $650, which Lemoine stated was consistent for the Fort Worth area with a Jackson Walker or Haynes Boone rate but a little higher than a Kelly Hart rate; - Jeff Mills, an attorney with 9 years’ experience and an hourly rate of $470;
- Ethan Minshull, an attorney with 8 years’ experience and an hourly rate of $435; and
- Zac Farrar, an attorney with 5 years’ experience and an hourly rate of $395.
Lemoine also testified about two co-counsel attorneys from outside his firm—Casey Erick, who had an hourly rate of $275, and Andrea Perez, who had an hourly rate of between $275 and $300—who performed most of the factual investigation and obtained all of the affidavits supporting Toye and Rial‘s TCPA motion to dismiss. On cross-examination, Lemoine stated that the bottom rate for associate fees was “probably in the $250 range” and the top range was “probably 350 to 365.”
Lemoine stated that he arrived at the reasonable fee based on his analysis of market rates in Dallas County and Fort Worth and that he “didn‘t try to ask for an enhancement.” He opined that all of the rates set out above were reasonable based on his research and “the factors that you can consider under Rohrmoos and the Texas Disciplinary Rule[s].” He testified about his billing-discretion determinations—reductions “based on [his experience of] 19 years of litigation and six years of TCPA work“—and pointed them out in the billing records admitted into evidence.
| Invoice | Amount | Total Hours | Deductions | Total |
| 111790 [Oct.] | $34,036.50 | 70.80 | $6,221.00 (13.4) | $27,815.50 |
| 110397 [Sept.] | $54,527.00 | 110.60 | $7,272.00 (14.0) | $47,255.00 |
| 108830 [Aug.] | $30,643.00 | 62.40 | $2,890.00 (5.5) | $27,753.00 |
| 106647 [July] | $47,577.50 | 95.70 | $3,045.95 (6.2) | $44,531.55 |
| 105110 [June] | $49,406.00 | 107.60 | $4,590.00 (10) | $44,816.00 |
| 103485 [May] | $4,319.00 | 9.8 | 0 | $4,319.00 |
| 101701 [Apr.] | $2560.50 | 5.5 | $0 | $2,560.50 |
| [Total discount: $24,018.95] | Total After Discount $199,050.55 |
Lemoine added the $199,050.55 to co-counsel‘s $60,662.4936 to reach $259,713.04—the total attorney‘s-fee amount prior to anticipated costs to secure the final judgment.
Lemoine estimated $11,250 for fees through November at a blended rate of $450 (a split between himself and Minshull) multiplied by 30 hours. He requested a total amount of $282,953.80.
Lemoine acknowledged that the $282,953.80 total amount was bigger than in other TCPA cases but explained,
This case had a layer of complexity to it that you don‘t typically see in a defamation case. The first issue is that it primarily deals with Twibel, which is the people‘s combination of Twitter and libel. There is no real
Texas case law on Twibel, so you have to research outside of the state of Texas for that[.] [F]urther[,] [i]t was compounded by the fact that there was something done in this case that I have never seen done before. When you proceed under a l[ibel] case, you have to include the entire context of the alleged defamatory statement because it‘s a publication rule, and the courts have uniformly said you have to have a context to it.
Well, here we were dealing with statements completely out of context with no surrounding what the person was responding to, who they were even talking about. At the depositions there w[ere] 200 pages of Twitter posts [with] . . . blanks all around it.
Well, that‘s not how Twitter works. The response is to something. In order to determine defamation, whether or not the statement was defamatory, you have to know what the context is.
That is compounded by the fact that people [who] are no longer proud of what they wrote on Twitter can make it disappear. And so we don‘t know and we‘ll never know what the context was around several hundred pages of evidence that the plaintiff tried to introduce. So that was the first issue.
The second issue is the concept of whether [being called] a sexual predator . . . is defamatory. . . . The only case to address it that I have been able to find is the Mogged . . . versus Lindamood case [which was then on appeal] . . . . And that‘s the only one that talks about whether or not being called a sexual predator, you know, is defamatory. So we had that particular issue.
Then we had . . . just within this, the context of this particular argument, you had a fight over public versus private distinction, because whether or not a person was either a public figure or a limited public figure changes radically the standard in which the Court evaluates defamation. So that was a big fight and, you know, in those contexts there is not always a lot of case law that is on point. So you had to do that type of research.
We were hit with a battery of evidentiary objections at every turn. This morning is a good example. Right before we walked in, we got hit with seven pages of every objection you can come up with. And that was every evidentiary issue we had. We were met with that.
The other thing that was unusual about this case is that the plaintiff was actually put up for deposition. I‘ve never seen that before in the 15 cases that I‘ve done in anti-SLAPP.
You never put the plaintiff up if you don‘t have to.37 And so that added a layer of cost, but it was really good for us, because we got to shut down or flesh out the lack of support for the claims in the case, and we were able to introduce that through a fairly complex anti-SLAPP motion.
Our anti-SLAPP motion in this case is the most complex anti-SLAPP motion that I‘ve ever litigated before. There are a couple of unique issues in that . . . regard . . . there is a Communications Decency Act affirmative defense that has never been ruled on in the state of Texas with regard to what is called retweet liability, meaning I retweet something that somebody else says, am I protected by the Communications Decency Act.
There is a libel proof affirmative defense that you rarely see in defamation cases. There is a consent affirmative defense that you rarely see in defamation cases. We also had some weird vicarious liability issues.
In addition, we had some TCPA specific issues, including a fight over whether or not we could supplement the motion to dismiss. There is no case law on it. So we had to pick a fight with the . . . plaintiff over that.
He further testified that beyond the motion to dismiss itself and other filings, there was “the notary fraud issue” and the second amended petition filed three days before the hearing.
Lemoine testified that the requested $15,526.96 in litigation costs included deposition fees and costs, Westlaw research costs, parking costs, mediation costs, and the costs of getting “witness affidavits around the country.” On cross-examination, Lemoine agreed that duplicative efforts were something the trial court could consider in reducing fees. He agreed that he had coordinated with defense counsel outside his firm to avoid duplication of effort.
b. Funimation‘s evidence
Funimation‘s lead counsel, John Volney, testified that he was a partner at Lynn, Pinker, Cox & Hurst in Dallas and that he had overseen the work in the case “by virtue of [his] experience as a litigator at the trial court level and appellate court level in the
Volney provided an affidavit in which he set out his reasoning on reasonable attorney‘s fees through entry of judgment, and his exhibits were admitted into evidence.
From May to October, Volney worked 261.90 hours, which multiplied by his $500 rate amounted to $130,950. His associate worked 131.20 hours, which multiplied by her $410 rate was $53,792. His paralegal worked 67 hours, which multiplied by his $220 rate was $14,740. Based on the above, Funimation‘s counsel‘s total hours, including the paralegal‘s, amounted to 460.1—or just 2 hours fewer than Rial and Toye‘s counsel‘s total hours (not counting outside co-counsel Erick and Perez) of 462.50 and Funimation‘s counsel‘s pre-billing-discretion total would have been $199,482, or approximately the same amount as Wick Phillips’ total amount sought (i.e., not counting outside co-counsel) after they applied billing discretion.
Volney stated that the case had “involved some pretty nuance[d] issues, the first amendment law and the TCPA,” and noted that it was only his second TCPA motion as a litigator. He also noted that Mignogna had originally sought $1 million in damages, making it a serious case for his client, and stated that because it was a TCPA case, they “had to move rather quickly from the time the lawsuit was filed” and did not seek an extension of the TCPA deadline. See
When asked on cross-examination why the
At the conclusion of Volney‘s testimony, the trial court observed that Funimation‘s bill was $100,000 less than Rial and Toye‘s, and Volney agreed that Lemoine‘s team had spent 200 more hours to prosecute the case39 and opined that their extra work was reasonable because the claims against Rial and Toye were different from the claims against Funimation. The trial court apparently disagreed, stating, “I mean, [Rial and Toye‘s counsel is the] expert. It shouldn‘t take him 100 more hours than you.”
c. Marchi‘s evidence
Marchi‘s counsel, Samuel H. Johnson, testified that he was one of two managers of the law firm Johnson & Sparks, PLLC, which was an iteration of several different entities he had been involved in since starting his own firm in 2012. Johnson stated that he had a bachelor‘s degree from the University of Texas at Austin and had attended South Texas College of Law; he had been licensed in Texas in 2008 and had “been practicing regularly throughout the Metroplex ever since,” primarily in business litigation. The trial court admitted into evidence a declaration Johnson had prepared and signed in conjunction with Marchi‘s motion for attorney‘s fees and sanctions, which contained his business records, including his fee agreement with Marchi. He also brought his unredacted bills for the trial court to review in camera.
Johnson testified that his standard rate was $350 per hour and that his firm had agreed to represent Marchi at $250 per hour for attorney time and $125 an hour for paralegal time, with a success bonus of $100 per hour if they were able to get the claims dismissed within six months. His paralegal, whose usual rate was $150 per hour, had been a paralegal since 1992, was a certified paralegal and member of the paralegal section of the State Bar of Texas, and had a bachelor‘s degree in legal studies and a master‘s degree in technology. He explained that his paralegal‘s rate was lower than that of paralegals of similar qualifications, “[b]ut we are a smaller firm and generally have smaller clients, so we also have smaller bills.” Johnson stated that his firm had billed 127 hours of attorney time and 6.6 hours of paralegal time through the end of October. He had billed for his paralegal at a reduced rate of $125 in the case. This had been his first
Johnson testified that the $48,137.50 in attorney‘s fees requested by Marchi was an amount that was reasonable and necessary, and he requested conditional appellate attorney‘s fees.
Johnson stated, “This has been an intense case to work on. Oftentimes we would receive late filings that required our office to basically drop everything we were doing, to make sure that not only . . . we were responding as promptly as possible, but oftentimes to make sure we didn‘t miss anything.” He was the only attorney in his small firm to work on the case and “all of the hours spent on this were not spent working for other clients or seeking out new clients.” Johnson stated that he was familiar with fees
Johnson stated that one thing that had helped keep Marchi‘s costs so low was that “the co-defendants . . . bore a lot of the heavy lifting on some of the legal research and getting materials prepared for the hearings and drafting some of the objections, . . . [s]o there was a lot of legal research that [he] didn‘t have to do for Ms. Marchi because [he] knew that the other defendants would be doing that.”
The trial court asked Johnson, “So how is it possible that you could do this case for $48,000, and . . . you‘ve never done this before . . . [a]nd he‘s an expert . . . on these, and it took him . . . $282,000, right?” Johnson pointed out that Lemoine had twice as many clients and to the extent that Mignogna had any actual claim pleaded against Marchi, “it was only maybe as to one tweet, which actually wasn‘t a part of their pleadings.” Johnson also pointed out that he had “a lot less record to deal with.” The trial court noted, “$234,000 difference. Either you‘re not billing enough or he‘s billing too much.” Johnson replied, “A lot of people do tell me I‘m not billing enough or high enough, for what it‘s worth.”
d. Mignogna‘s counsel
Mignogna did not put on any controverting attorney‘s-fees evidence. When asked during closing arguments if he thought the amount of Marchi‘s fees were
e. Trial court‘s additional comments
During the hearing‘s conclusion, the trial court—obviously troubled by the range of fees from $48,137.50 to $282,953.80—stated, “[I]f you brought me a repair bill on a car or something, and one is 48,000 and one is 282,000, you can‘t say those are both reasonable, or that the 282,000 was reasonable. It‘s the same causes of action.”
4. Analysis
As noted above, we recently addressed the award of
[a] trial court is not, of course, a mere rubber stamp or bean-counter; even when evidence of attorney‘s fees is uncontroverted, a trial court is not obligated to award the requested amount. And as part of its exercise of discretion, the court may consider the entire record and common knowledge of the participants as lawyers and judges in making its determination.
Id. at *18 (citations and quotation marks omitted).
The record shows that in his original petition, Mignogna sought “over $1,000,000.00” and that in his first amended petition, he changed the amount to “over $1,000,000.00 but not exceeding $5,000,000.00.” And as set out above in our
Rial and Toye attached 19 exhibits, some with multiple attachments, to their
The trial court had before it evidence from two other legal teams on the same side as Rial and Toye—those of Funimation and of Marchi—from which to help gauge reasonableness and necessity. But cf. In re Nat‘l Lloyds Ins. Co., 532 S.W.3d 794, 809–10 (Tex. 2017) (orig. proceeding) (noting that an “apples-to-oranges comparison” in the same case of plaintiff‘s fees to defendant‘s fees does not help determine whether either are reasonable or necessary). Rial and Toye‘s attorneys had higher rates (and more experience, including
By awarding essentially the same amount the trial court apparently failed to factor in all of the testimony addressing expertise and experience, as well as the distinction between a large firm‘s billing rate and a small firm‘s billing rate and the fact that Marchi‘s counsel had leveraged the “heavy lifting” by Rial and Toye‘s legal team to prevail with significantly fewer hours at a significantly lower cost. Rial and Toye‘s legal team, although it had more expertise in the subject matter, also had higher billing rates and more people, which they used to address the novel issues raised in this complex case that were not reached on appeal only because Mignogna failed to preserve or brief those issues.40 Rial and Toye‘s team also had to address significantly more allegations against them, as set out in our
Although the trial court was not obligated to award any of the specific amounts requested by the parties’ attorneys and had the discretion to reduce the amount of attorney‘s fees, the trial court abused its discretion by assessing such a significant reduction in light of, among other things, Marchi‘s counsel‘s testimony that he had made use of their additional work and “heavy lifting” in the case. See Fiamma Statler, LP v. Challis, No. 02-18-00374-CV, 2020 WL 6334470, at *18 (Tex. App.—Fort Worth Oct. 29, 2020, pet. denied) (mem. op.) (concluding that award of “approximately 5% of the . . . proven attorney‘s fees, which necessarily were incurred with respect to the challenged claims in the trial court and with respect to claims that [the plaintiff] argued arose from ‘one of the biggest frauds . . . that has ever existed,‘” in
Rial and Toye each supported the base lodestar calculation with more than sufficient evidence. Therefore, there is a “strong presumption” that the amount calculated using the lodestar method can be shifted to Mignogna. See Iola Barker, 632 S.W.3d at 194. Mignogna offered no evidence to controvert Rial and Toye‘s presumptive evidence. The fact that other codefendants’ lawyers, with differing levels of expertise and clients with different postures in the case, had different fee totals was not sufficient to rebut the presumptions raised by Rial and Toye‘s lodestar evidence.
Accordingly, we sustain Rial and Toye‘s cross-issue and remand this portion of the case for a redetermination of a reasonable attorney‘s-fee award in light of the Rohrmoos standards.
VI. Conclusion
Having overruled all of Mignogna‘s points and having sustained Rial and Toye‘s sole cross-issue, we affirm the trial court‘s judgment except for the attorney‘s-fee
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: August 18, 2022
Notes
In her unsworn declaration, E.M. denied having ever been Mignogna‘s personal handler/assistant or die-hard fan and declared that she had no recollection of asking Ahmed not to assign her to Mignogna. E.M. stated that she had made the request to the director of guest relations in charge of the American and Japanese guest handlers at Anime Weekend Atlanta and several of Ahmed‘s other conventions because she “was tired of being ‘pigeonholed’ into handling [Mignogna] at conventions” and “just wanted a change and the opportunity to work with other guests.” She further stated that she had never been afraid of Mignogna and that, contrary to Ahmed‘s affidavit, Mignogna had “never ‘forcibly kissed [her] without [her] consent.‘”
The record also supports the trial court‘s finding that Mignogna met the general-purpose public-figure threshold of having “achieved such pervasive fame or notoriety” that he was a “public figure[] for all purposes and in all contexts” for defamation purposes. Lane v. Phares, 544 S.W.3d 881, 886 (Tex. App.—Fort Worth 2018, no pet.); see
Perez averred that she was an attorney at Carrington, Coleman, Sloman & Blumenthal, L.L.P., licensed since 2009, that she had worked 8.1 hours of attorney time on the case, and that her rate was $300 per hour, for a total request of $2,430.