Morales v. Barnes, No. 05-17-00316-CV (Tex. App. – Dallas December 29, 2017)

Morales is an attorney. He sued Barnes on behalf of Barnes ex-wife alleging assault. During the litigation, Morales sent two letters to Barnes employers.

On September 26, 2014, Morales—on behalf of Lancashire—sent Credit Suisse, Barnes’s employer, a “preservation of evidence” letter regarding the assault cases (“first communication”). In 2016, Barnes left Credit Suisse and went to work for UBS. Shortly thereafter on April 6, 2016, Morales sent a cease and desist letter to UBS (“second communication”)—on behalf of Lancashire—alleging that Barnes had “maliciously and purposefully contacted third parties making false, misleading and/or defamatory statements about [Lancashire].” Following these letters, Barnes filed a lawsuit against Lancashire. Barnes later amended his petition to include Morales as a named defendant.

The appeals court found that the first “preservation of evidence” letter was not a “matter of public concern.”

The first communication, the preservation of evidence letter, referenced the lawsuit but made no statement about the lawsuit or Barnes in the letter. It attached, however, the original petition that alleged Barnes assaulted the Lancasters. Neither the letter nor attached petition asserted Barnes made false representations to anyone or made statements in or pertaining to a business or marketplace or alleged anything that pertained to Barnes’s work in the marketplace. Accordingly, Morales’s argument that the first communication was a “matter of public concern” fails because it does not pertain in any way to Barnes’s work in or making false representations related to the marketplace.

The second “cease and desist” letter was found to involve a “matter of public concern.”

The second communication, the cease and desist letter, contained an allegation that Barnes “maliciously and purposefully contacted third parties making false, misleading and/or defamatory statements about [Lancashire]” using UBS’s email. Thus, the second communication involved specific factual allegations that Barnes made disparaging communications to third parties using his employer’s means of communication. We conclude this communication related to Barnes’s service in the marketplace so it involved a “matter of public concern” that falls within the TCPA.

The burden then shifted to Barnes to establish by clear and specific evidence each element of his first cause of action, tortious interference with prospective business relations. Barnes concedes that his presentation of damages was insufficient.

As to his second cause of action, intrusion on seclusion, the appeals court held:

In this case, the only alleged intrusion at issue is the single cease and desist letter from Morales to UBS which alleged that Barnes had “maliciously and purposefully contacted third parties making false, misleading and/or defamatory statements about [Lancashire].” Several courts, including our own, have consistently held that an intrusion upon seclusion claim fails without evidence of a physical intrusion or eavesdropping on another’s conversation with the aid of wiretaps, microphones, or spying.

 

We REVERSE that portion of the trial court’s judgment in regard to the denial of the motion to dismiss as to all causes of action pleaded based on the second communication, a letter dated April 6, 2016 from Carlos Morales to UBS and render a partial judgment of dismissal of those causes of action.

The Texas Anti-Slapp statute says that when the motion to dismiss is granted, the court is required to award mandatory attorney’s fees and sanctions. However, in this case, the last line of the appeals court ruling says:

It is ORDERED that each party bear its own costs of this appeal.

Hmm….