Legal Action

Suit for defamation and defamation per se.

Communication

Claiming on national and local media that the dispute was a Muslim conspiracy.

Right Involved

The movant’s exercise of the right of free speech

Background

Background

ARE YOU ENTITLED TO PRO BONO ATTORNEY’S FEES IN A TEXAS ANTI-SLAPP, TCPA, CASE?

A Muslim child brought a home built clock to school as a science project. The teachers went into a panic and called the police. The boy was arrested for bringing a bomb to school. The issue was on the national news.
The boys father sued a number of people for defamation for making statements against his son and claiming that this was part of a Muslim conspiracy. The defendants filed motions to dismiss under the Texas anti-slap law, TCPA.
The court held that the father and son were public figures and that they had to prove malice. The court upheld the dismissal under the TCPA because the Muslim father failed to prove step two of the TCPA framework. He was required to prove all the essential elements of his claim for defamation but he could not prove the element of actual malice.

The Texas Anti-SLAPP law or TCPA has a three step process. In step one, the movant bears the burden of establishing by a preponderance of the evidence that the nonmovant’s claim is a legal action in response to the movant’s exercise of his right of association, his exercise of his right of free speech or his exercise of his right to petition. §27.003 (a).

The nonmovant did not contest that the TCPA applied.

Once the movant has shown that the nonmovant’s legal action is covered by the act, the burden shifts to the nonmovant to demonstrate a prima facie case for each essential element of a cause of action by “clear and specific evidence.” §27.005 (c).

Mohamed did not demonstrated a prima facie showing of actual malice.

If the nonmovant meets his burden of establishing a prima facie case for each essential element of a cause of action by “clear and specific evidence”, the court must still grant the motion to dismiss if the movant establishes a valid defense by a “preponderance of evidence. §27.005 (d).

The court never reached the third step because the nonmovant failed to carry his burden under Step-two.

Conclusion and Disposition

ARE YOU ENTITLED TO PRO BONO ATTORNEY’S FEES IN A TEXAS ANTI-SLAPP, TCPA, CASE?

An interesting point of this sad case is that the issue came up of whether the attorneys representing the movant were working pro bono and therefore the movant  had not “incurred” any attorneys fees.

In his brief, Mohamed argues that the American Freedom Law Center is a tax-exempt 501(c)(3) nonprofit organization which provides its services pro bono. In support of these assertions, Mohamed refers to the following documents which were attached to his motion for reconsideration: (1) the “donate” page of the American Freedom Law Center website; (2) the “fight for freedom” donation page of the American Freedom Law Center website; and (3) a copy of an article entitled Offensive and Defensive Lawfare: Fighting Civilization Jihad in America’s Courts which was published by CSP. Mohamed then argues that because there is evidence that David Yerushalmi and Robert Muise of the American Freedom Law Center provided their services pro bono, Hanson and CSP were not entitled to an award of their fees because they were not “incurred.”

The Court of Appeals refused to accept this argument based on the affidavit of the attorneys involved:

We note that a party seeking attorney fees under the TCPA bears the burden to put forth evidence regarding its right to the award, as well as the reasonableness and necessity of the amount of the fee. Brownhawk, L.P. v. Monterrey Homes, Inc.,327 S.W.3d 342, 348 (Tex.App.— El Paso 2010, no pet.). In this case, Row put forth an affidavit that: (1) stated that Hanson and CSP retained himself and his law firm as well as Yerushalmi and Muise of the American Freedom Law Center to defend them in the lawsuit; (2) provided the billing rates for the attorneys and paralegals involved in the case; and (3) provided copies of redacted billing statements for both law firms. In addition, the affidavit contained the following statements:

(1) “The fees billed by Defendants’ attorneys are not contingent on the outcome of this litigation but are fixed hourly rates.”

(2) “A portion of the attorney’s fees that Defendants incurred were for the services performed by American Freedom Law Center paralegal Cindy Page.” (emphasis added).

(3) “In rendering my opinions regarding the amount of reasonable attorney’s fees incurred (or, in the case of conditional appellate attorney’s fees, to be incurred in the future) by Defendants, I have carefully considered the Texas Supreme Court’s jurisprudence regarding what proof of attorney’s fees should include.” (emphasis added).

(4) “In rendering my opinions regarding the amounts of reasonable attorney’s fees incurred, I have also carefully considered the factors set forth in Tex. Disciplinary R. Prof. Conduct 1.04, State Bar Rules, Art. 10 § 9, Rule 1.04.” (emphasis added).

(5) “Performance of the specific tasks described in the detailed billing statements had required a total of 191.35 hours as of January 11, 2017. As of January 15, 2017, only 188.35 hours had been billed to Defendants.”          After a review of the relevant pleadings, we affirm the trial court’s denial of the motion for reconsideration. Mohamed’s documents fail to provide any evidence that the American Freedom Law Center agreed to represent Hanson and CSP on a pro bono basis in this case. To the contrary, Row’s affidavit affirms that Hanson and CSP retained Yerushalmi and Muise of the American Freedom Law Center, incurred non-contingent attorney fees from the American Freedom Law Center, and were billed for its legal services. Accordingly, on this record, we cannot conclude that the trial court abused its discretion in denying Mohamed’s motion for reconsideration and we overrule Mohamed’s third issue.

When are attorney’s fees incurred in the Texas anti-SLAPP, TCPA, context

What if the nonmovant had proved that the attorneys were working pro bono? Would the attorneys fees then not be “incurred”? See Cruz v. Van Sickle452 S.W.3d 503, 522-23 (Tex. App.-Dallas 2014, pet. denied), pro bono fees are not “incurred”.

And, what if the attorney takes the case on a contingency basis? See Macfarland v. Le-Vel Brands LLC, 05-17-00968-CV, (Tex. App. – Dallas May 15, 2018 no pet.), denying attorney’s fees based on a contingency agreement because they were not “incurred”. See also, Sullivan v. Abraham, 488 S.W.3d 294 (Tex. 2016) “By referring to court costs, reasonable attorney’s fees, and ” other expenses incurred,” the statute reflects both that costs and attorney’s fees are ” expenses” and that they must all be ” incurred in defending the legal action.”

In Rohrmoos Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, ___ S.W.3d ___ (Tex. 2019), a non Texas anti-SLAPP case, the Texas Supreme Court noted that attorney’s fees in a Texas anti-SLAPP, TCPA, case were limited by statute to only those that were incurred.

Furthermore, some enabling statutes have an explicit reference to attorney’s fees that are “incurred”… § 27.009(a)(1) (providing for recovery of “court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require” under the Texas Citizens Participation Act). In those instances, we have held that the word “incurred,” just as the word “reasonable,” acts to limit the amount of fees the court may award, and “[a] fee is incurred when one becomes liable for it.”

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