In Barker v. Hurst, No. 01-17-00838-CV, 2018 WL 3059795, at *8 (Tex. App.-Houston [1st Dist.] June 21, 2018, no pet.) (mem. op.), a school principal, Martindale, and the school district’s Directory of Technology, Hurst, filed suit against the Barker, an anonymous blog, and Trice, the alleged author of a blog post. Hurst claimed about the defendants using a picture on her Facebook page that included images of her family:

In her First Amended Petition, Hurst complained that the Barker, in re-publishing her Facebook posting, had included her Facebook profile picture, which depicted her husband and two minor children. She alleged that the publication of a photograph of her family was “done to embarrass, provoke, intimidate, or harm” her and that the “publisher or writer of [the Barker] published the article and the photo depicting [her] children, with malice, as the photo had absolutely no journalistic value to the opinion or article in the publication.” She asserted that the publication “has or will cast and place innocent children into disputes, situations, and ridicule for which the children have no control or responsibility.” She sought an injunction, “ordering and preventing [the Barker] from utilizing the photographs of children or anyone else, without the written permission and consent of the natural mother or father of any child.” Through discovery, Hurst identified Trice as the author of the blog.

Subsequently, Martindale, a District principal, joined the lawsuit, alleging that, “beginning at or around the month of April, 2017, ” the Barker published, “without [his] permission, several stories that mentioned [him] by name.” He alleged that “the publication of [his] name” was intended to “hurt and harm [him]”; was done with malice; and “has or will cast and place [him] and his family into disputes, situations, and ridicule for which [he] has no control or responsibility.”

The Barker and Trice filed special exceptions because neither Hurst nor Martindale stated any elements of a claim. When the trial court denied the special exceptions, the Barker and Trice filed a motion to dismiss under the Texas Citizens Public Act (TCPA) often called the Texas Anti-SLAPP law, Texas Citizens Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 et. seq. They asked that the suits be dismissed “with prejudice”.

Once the motion to dismiss was filed, Hurst moved for a non-suit “without prejudice” of all her claims. The court signed an order on the non-suit dismissing Hurst’s claims “without prejudice”. The trial court then denied the Texas Anti-SLAPP motion to dismiss against Martindale.

The appeals court discussed a Rule 162 motion for non-suit in the context of the Texas Anti-SLAPP law.

Rule 162 expressly provides that a nonsuit “shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief” and “shall have no effect on any motion for sanctions, attorney’s fees or other costs, pending at the time of the dismissal.” See Tex. R. Civ. P. 162. The Barker and Trice’s motion, in which they sought dismissal of Hurst’s lawsuit with prejudice and attorney’s fees, costs, and sanctions, constituted a “pending claim for affirmative relief” within the meaning of rule 162. See Breitling Oil & Gas Corp. v. Petroleum Newspapers of Alaska, LLC, No. 05-14-00299-CV, 2015 WL 1519667, at *3 (Tex. App.-Dallas Apr. 1, 2015, pet. denied) (mem. op.) (holding that, under express language of rule 162, nonsuit had no effect on pending motion to dismiss under TCPA); see also CTL/Thompson Tex., LLC, 390 S.W.3d at 300 (holding, in architect liability suit, that nonsuit without prejudice had no effect on defendant’s pending claim for affirmative relief, including request for dismissal with prejudice and award of fees, expenses, costs, and sanctions); Villafani v. Trejo, 251 S.W.3d 466, 467 (Tex. 2008) (holding, in health care liability context, that nonsuit had no effect on pending relief for dismissal with prejudice and attorney’s fees under statute). Thus, although the trial court’s order granting Hurst a nonsuit resolved Hurst’s claim, it had no effect, and did not resolve, the Barker and Trice’s pending claim.

However, the appeals court did not rule on the merits because there was “no indication” in the record that the trial court actually considered the motion to dismiss under the Texas Anti-SLAPP law. 

(T)he trial court granted Hurst’s nonsuit without prejudice, she did not respond to the Barker and Trice’s TCPA motion to dismiss and, at the hearing, there was no discussion of the motion as it pertained to her... Further, the trial court’s order on the motion speaks only of Martindale and refers to “plaintiff” in the singular. Although the TCPA provides that “[i]f a court does not rule on a motion to dismiss . . . [within] the time prescribed . . ., the motion is considered to have been denied by operation of law, ” there is no indication in the record that the trial court actually considered the Barker and Trice’s motion to dismiss as it relates to Hurst. See Tex. Civ. Prac. & Rem. Code Ann. § 27.008(a). Because, as discussed above, Hurst’s non-suit did not resolve the Barker and Trice’s TCPA motion to dismiss, which constitutes an outstanding claim for affirmative relief, and there is no indication that the trial court actually considered the motion as it relates to Hurst, we remand this portion of the case to the trial court for consideration of the TCPA motion on the merits.

The Appeals court then moved on to the motion to dismiss filed against Martindale.

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 court of appeals stated ;

Martindale’s claim is based on Trice’s electronic statement published by the Barker, a web-based forum. The statement constitutes a “communication[], ” as defined in the statute. See id. § 27.001(1); Deaver v. Desai, 483 S.W.3d 668, 673 (Tex. App.-Houston [14th Dist.] 2015 no pet.) (holding that statements on website qualified as communication for purposes of TCPA). Further, the complained-of statement regards a “matter of public concern, ” as defined, because it relates to community well-being, the government, and to public officials. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7). Martindale asserted at the hearing on the motion to dismiss that he is a public official.

Thus, the burden switched to Martindale to establish by “clear and specific evidence a prima facie case for each essential element” of his claim.

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).

Mattindale argued that his claim was for libel per se. He claimed that he had proven the elements of his claim in response to the motion to dismiss and he did not have to prove damages because his claim was for libel per se. The Barker and Trice contended that Martindale did no put on clear and specific evidence of all of the elements of his claim. The appeals court then analyzed the claims and ruled that the claims were not per se claims but per quod claims requiring Martindale to put on clear specifice evidence of each element, including damages.

The court ruled that Martindal’s affidavit was devoid of any clear and specific facts to show his damages.

With respect to damages, Martindale, in his petition, stated that the complained-of comment “has or will cast and place [him], and his family, into disputes, situations, and ridicule for which [he] ha[d] no control or responsibility.” He sought damages “in an amount” that the jury determined was “fair and reasonable, ” not to exceed $100, 000. In his response to the motion to dismiss, he asserted that he was not required to prove actual damages because the complained-of comment constituted defamation per se and thus general damages were presumed. In his affidavit, he asserted that the complained-of comment had “injured [his] reputation and exposed [him] to contempt in the community” and had “called into question [his] honesty, integrity, virtue, and reputation.”

General averments “do not satisfy the Act’s clear-and-specific-evidence standard without ‘specific facts illustrating how [a defendant’s] alleged remarks about [a plaintiff’s] activities actually caused such losses.'” …Rather, clear and specific evidence means that the “plaintiff must provide enough detail to show the factual basis for its claim.” … “In a defamation case that implicates the [Act], pleadings and evidence that establish[] the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff should be sufficient to resist” a motion to dismiss under the Act.” … (emphasis added).

Martindale’s affidavit is devoid of any “clear and specific” facts to illustrate how he was damaged. See id. at 904-05 (concluding that neither petition, nor response to motion to dismiss, nor affidavit attached to response, identified any actual damages). Conclusory statements are not probative and accordingly will not suffice to establish a prima facie case. …We conclude that Martindale did not establish damages by clear and specific evidence. See BedBedford v. Spassoff, 520 S.W.3d 901, 905 (Tex. 2017) (holding that, “[e]ven if the Facebook post here were defamatory, the statement is not defamation per se and Spassoff and the Dodgers failed to establish damages by clear and specific evidence”).

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).

Because Martindale failed to satisfy step two of the framework of the Texas Anti-SLAPP law, the case had to be dismissed.

As to Hurst’s claim that was non-suited, the case was sent back to the trial court to allow Hurst to file a proper response to the motion to dismiss? hmm. Martindale’s response was proper, he just left out evidence of damages. So, his case is sent back to the trial court to be dismissed and have attorney’s fees and sanctions entered agains him.

I am sure that the trial court will award attorney’s fees and sanctions against Hurst when the case is reheard but it seems strange that a nonmovant who responds to a motion to dismiss is treated worse than a nonmovant who files no response.