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concluding appellant failed to explain how her commentary on proceedings against her was a matter of public concern and stating "[appellant's] conclusory and irrelevant assertions do not show, by a preponderance of the evidence, that [appellee's] suit was initiated in response to [appellant's] exercise of the right of free speech"
Summary of this case from Wendt v. Weinman & Assocs., P.C.Opinion
NO. 14-14-00947-CV
01-21-2016
MARIANN BACHARACH, Appellant v. JOHN DOE, Appellee
On Appeal from the Co Civil Ct at Law No 2 Harris County, Texas
Trial Court Cause No. 1050977
MEMORANDUM OPINION
Mariann Bacharach appeals from the trial court's denial of her motion to dismiss appellee John Doe's suit against her. Bacharach's motion was filed under section 27.003 of the Texas Civil Practice and Remedies Code, a provision of the Texas Citizens' Participation Act (TCPA), the State's "anti-SLAPP" statute. "SLAPP" is an acronym for "Strategic Lawsuits Against Public Participation." Jardin v. Marklund, 431 S.W. 3d 765, 769 (Tex. App.—Houston [14th Dist.] 2014, no pet.). We conclude that Bacharach failed to prove that Doe's lawsuit is based on, relates to, or is in response to her exercise of the right of free speech, right to petition, or right of association. Because Bacharach did not meet her initial burden of proof for dismissal, the TCPA does not apply to this proceeding. We therefore lack jurisdiction to consider this interlocutory appeal under the TCPA, and we dismiss it accordingly.
Background
Appellee John Doe petitioned the trial court for temporary and permanent injunctive relief against Mariann Bacharach, alleging that she was making "threatening, racist, and harassing phone calls" to him; calling unspecified parties in order to make "defamatory and blatantly false accusations"; and disseminating defamatory written materials about him by mail. Doe also sought damages from Bacharach for libel, slander, tortious interference, breach of contract, invasion of privacy, and intentional infliction of emotional distress. Bacharach filed a document with the court entitled "1st Amended Petition, Motion to Dismiss and for Damages, Costs, and Additional Findings Pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code." Contained in this document are general and specific denials, "special exceptions," counterclaims, and arguments invoking Chapter 27 of the Texas Civil Practice and Remedies Code, also known as the TCPA.
Although Bacharach styles her statements as "special exceptions," they appear to be specific denials of the facts alleged in Doe's petition, not a request for more specificity in pleading, as is generally the case for special exceptions. See Tex. R. Civ. P. 91.
Pursuant to the TCPA, we cannot consider Bacharach's entire conglomeration of pleadings and motions as evidence in support of her motion to dismiss. Section 27.006(a) of the Civil Practice and Remedies Code instructs courts to consider only "pleadings and supporting and opposing affidavits" in determining whether the parties met their respective burdens. Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a) (West 2015). The portion of Bacharach's filing that we construe to be her motion to dismiss—the portion in which she specifically invokes the TCPA and its requirements for dismissal—is not a pleading under Texas Rule of Civil Procedure 45. Because the document is also unverified, factual assertions therein cannot be considered competent evidence under the TCPA. For the purpose of this appeal, we consider the portions of Bacharach's hybrid filing other than the part that we construe to be her motion to dismiss. Collectively, we refer to those portions as Bacharach's answer.
Bacharach's motion to dismiss claims that Doe's suit is based on, relates to, and is in response to her exercise of the right of free speech, the right to petition, and the right of association. The trial court signed an order denying Bacharach's request for dismissal. Bacharach filed this appeal pursuant to section 27.008(b) of the Civil Practice and Remedies Code, which allows for an interlocutory appeal from a trial court's order on a motion to dismiss filed under the TCPA. Tex. Civ. Prac. & Rem. Code Ann. § 27.008(b) (West 2015).
Analysis
We review the trial court's denial of Bacharach's motion to dismiss de novo. Rehak Creative Servs. v. Witt, 404 S.W.3d 716, 725 (Tex. App.—Houston [14th Dist.], no pet.), disapproved on other grounds by In re Lipsky, 460 S.W.3d 579 (Tex. 2015). In doing so, we "make[] an independent determination and appl[y] the same standard used by the trial court in the first instance." Id. Application of this standard is a "two-step process." Lipsky, 460 S.W.3d at 586. First, we must determine whether the defendant-movant—Bacharach—has shown, by a preponderance of the evidence, that the plaintiff's—Doe's—legal action is "based on, relates to, or is in response to [Bacharach's] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association." Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b) (West 2015)). "If the movant is able to demonstrate that the plaintiff's claim implicates one of these rights, the second step shifts the burden to the plaintiff to 'establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question.'" Lipsky, 460 S.W.3d at 587 (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c) (West 2015)). If the defendant-movant fails to properly demonstrate that her right of free speech, petition, or association is implicated by the plaintiff's lawsuit, then the TCPA does not apply and we do not have jurisdiction to hear the interlocutory appeal before us. Jardin, 431 S.W.3d at 769, 774.
We turn then to the issue of whether Bacharach has proven, by a preponderance of the evidence, that Doe's legal action is based on, relates to, or is in response to her exercise of the right of free speech, the right to petition, or the right of association. Doe's original petition does not discuss the contents of the defamatory statements he alleges that Bacharach made by mail and by phone. In her answer, Bacharach denies sending any statements about Doe through the mail, but she does admit that she made phone calls to the "Republican Party committee," the Texas Ethics Commission, Senator "Whitmore," Representative Jessica Farrar's campaign, and the office of Harris County Judge Ed Emmett to tell them "her perception of the legal proceedings against her." We consider whether the factual assertions in Bacharach's answer demonstrate that she was exercising any of the rights protected by the TCPA when she made these calls.
Bacharach apparently is claiming to have contacted Houston State Senator John Whitmire.
While her hybrid filing often confuses several distinct legal proceedings, we assume for the purpose of this analysis that Bacharach is referring to a lawsuit previously filed against her in Hidalgo County in which Doe is the plaintiff's attorney. --------
The Right of Free Speech
The TCPA defines "exercise of the right of free speech" as a "communication made in connection with a matter of public concern." Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3) (West 2015). In her motion to dismiss, Bacharach contends that Doe's lawsuit was filed to prevent her from "voicing matters of public concern regarding issues of health and safety and also of goods and services offered in the marketplace of and by [Doe]." Health and safety, as well as goods and services in the marketplace, both fall under the statutory definition of "matter[s] of public concern." Id. § 27.001(7)(A), (E). Bacharach does not, however, present any evidence or allege any facts in her answer demonstrating that her commentary on the legal proceedings against her implicates "the broader health and safety concerns or community well-being concerns contemplated by Chapter 27." See Pickens v. Cordia, 433 S.W.3d 179, 184 (Tex. App.—Dallas 2014, no pet.) ("personal account" of defendant's life does not implicate matters of public concern under the TCPA). Bacharach accuses Doe of "aiding and abetting [her] continued harassment" through his representation of the plaintiff in a separate lawsuit filed against her, but does not allege any facts or provide any evidence supporting that claim. Further, she does not allege any facts or present any evidence tending to show that the subject matter of her phone calls related to goods and services in the marketplace.
Bacharach also accuses Doe of general abuse of process and malicious prosecution relating to this lawsuit as well as other suits pending against her. Abuse of one's position as an attorney may be considered a matter of public concern under the TCPA in appropriate circumstances. Deaver v. Desai, — S.W.3d—, 2015 WL 9275751, at *3 (Tex. App.—Houston [14th Dist.] Dec. 3, 2015, no pet. h.); Avila v. Larrea, 394 S.W.3d 646, 655 (Tex. App.—Dallas 2012, pet. denied) (news broadcast reporting on attorney's alleged professional misconduct held to be a communication regarding a matter of public concern). However, neither Bacharach nor Doe alleged any facts tending to show that the lawsuit was filed in response to communications accusing Doe of professional misconduct. Doe says only that Bacharach's phone calls were "defamatory" in nature, but he does not describe the nature of the alleged defamation. Likewise, Bacharach does not offer any facts connecting this general allegation of "abuse" of the legal system to the phone calls that she made. In her answer and in her motion, Bacharach instead writes at length about her history with Doe's client in a separate case. The majority of the facts alleged in the filing as a whole do not pertain to this lawsuit or even to this plaintiff. Bacharach's conclusory and irrelevant assertions do not show, by a preponderance of the evidence, that Doe's suit was initiated in response to her exercise of the right of free speech.
The Right to Petition
Bacharach contends that Doe's lawsuit is an attempt to prevent her from exercising her right to petition by "publishing facts and evidence surrounding judicial proceedings" and speaking in defense of her own reputation. The TCPA provides several alternative definitions of "exercise of the right to petition"; Bacharach specifically invokes two of them. In her motion, Bacharach points to subsections (D) and (E), which define "exercise of the right to petition" as "a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding" and as "any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state." Tex. Civ. Prac. & Rem. Code Ann. § 27.001(4)(D), (E) (West 2015).
The phone calls that Bacharach made to various public officials do not appear to fall under either of these categories. Bacharach's answer indicates that she made the phone calls to tell her side of the story in the ongoing dispute among her, Doe, and Doe's client in another case. Bacharach presents no evidence and makes no allegations in her answer tending to show that she was attempting to effect consideration of her personal concerns by these public officials or to enlist public participation in her dispute with these men. Her very brief description of these phone calls does not indicate that they were the kind of "communications in the public interest" that "centuries of jurisprudence" have found to be within the protection of the state and federal constitutions. Jardin, 431 S.W.3d at 772. Bacharach has failed to demonstrate that her phone calls implicate the TCPA's protection of the right to petition.
Right of Association
Finally, Bacharach claims that she has been sued for exercising her right of association. As to that claim, Bacharach says only the following in her motion to dismiss: "Defendant maintains this lawsuit is another means by John Doe to deny the Defendant and others the right of association." Bacharach does not provide any evidence that the phone calls were a means of "join[ing] together to collectively express, promote, pursue, or defend common interests." Tex. Civ. Prac. & Rem. Code Ann. § 27.001(2) (West 2015). Bacharach's answer does not indicate that any other person was involved in the making of these phone calls or that any person actually answered the calls and subsequently engaged her in expressing, promoting, pursuing, or defending a shared interest. Bacharach also provides no factual allegations in her answer and no evidence that any individuals were engaging as a collective to promote a common interest. Bacharach therefore has failed to show that Doe's lawsuit was filed in retaliation for her exercise of the right of association.
Conclusion
Bacharach has failed to demonstrate, by a preponderance of the evidence, that Doe's suit against her is based on, relates to, or is in response to her exercise of the right of free speech, the right to petition, or the right of association. Because she has failed to meet her initial burden under section 27.005(b), we conclude that Bacharach has not properly invoked the TCPA. Therefore, the TCPA does not apply to this proceeding, and we lack jurisdiction over the interlocutory appeal. See Jardin, 431 S.W.3d at 769. We dismiss the appeal and need not reach the question of whether Doe has established a prima facie case for his claims. See id. at 774.
/s/ Marc W. Brown
Justice Panel consists of Justices Boyce, Busby, and Brown.