Background

Facts

All Causes Of Action Pleaded In A Texas anti-SLAPP, TCPA, Case Must Be Addressed

Fernandez was a former city council member. He was charged with theft and ended up pleading guilty and receiving deferred adjudication. He also resigned his counsel post. Later on, he opposed the election of another council member, Joplin. Fernandez alleged in his petition that Joplin started a smear campaign against him by using a variety of media to publish false and defamatory statements that he was a “convicted criminal” and that he had committed robbery.

Fernandez alleged the typical defamation claims against Joplin and also pleaded  intentional infliction of emotional distress. Joplin filed a motion to dismiss under the Texas anti-SLAPP, TCPA, law against all of the defamation type claims but did not mention the intentional infliction of emotional distress claim.

The court discussed the difference between how attorneys and judges might view the allegations and how a person of ordinary intelligence would view the allegations. Based on the ordinary individual, the court ruled that Fernandez did not meet his burden to prove his claims of defamation by clear and specific evidence because the person of ordinary intelligence would see deferred adjudication as a guilty plea. 

Causes of Action not Addressed in Motion to Dismiss

All Causes Of Action Pleaded In A Texas anti-SLAPP, TCPA, Case Must Be Addressed

…Fernandez alleged a claim for IIED. He also filed a supplemental pleading in which he added a claim for conspiracy. Appellants’ TCPA motion to dismiss did not address either claim, nor does their brief on appeal.

Our examination of Fernandez’s conspiracy claim reveals that it is derived wholly from his defamation claims. That is, he essentially alleges that Appellees engaged in a conspiracy to defame him. Therefore, because we have already concluded that Fernandez’s defamation claims require dismissal under the TCPA, we likewise conclude that his conspiracy claim requires dismissal.

The court then moved on to the intentional infliction of emotional distress (IIED) claim.

…to maintain an IIED claim alongside a defamation claim, the IIED claim must be supported by facts that are independent of the factual allegations supporting the defamation claim… (explaining that “to maintain [an IIED claim], [the plaintiff] was required to allege facts independent of her defamation claim” and then affirming dismissal for the plaintiff’s failure to allege such independent facts).

It appears that the gravamen of Fernandez’s complaint is defamation, and it is possible that his IIED claim may ultimately be a recasting of his defamation claims. Fernandez did, however, allege in his petition that Elam had harassed him by stopping his car on the road in order to film him, which is a factual allegation independent of the factual allegations supporting Fernandez’s defamation claims. And, Appellants do not set forth any argument in their brief that Fernandez’s IIED claim implicates the TCPA, that Fernandez failed to meet his burden under step two regarding his IIED claim, or that Appellants have established by a preponderance of evidence each element of an affirmative defense to Fernandez’s IIED claim.

 Therefore, although Fernandez’s allegations are scant, we cannot conclude that the trial court erred by denying Appellants’ TCPA motion to dismiss on Fernandez’s IIED claim because the issue was not raised either to the trial court or to this court on interlocutory appeal. 

What Could Have Been Done

A motion to dismiss should discussed each and every cause of action pleaded. If the trial court denies the motion and an appeal is taken, the brief must discussed each and every cause of action.

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