Under the Texas Anti-Slapp law is saying “I won’t do it again” Sufficient to Avoid Mandatory Sanctions

Written by Robert Ray

I am a Texas attorney. I am Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. My principle office is in Lantana, Texas in the DFW area. I am a past chair of the Texas State Bar Computer & Technology Section. I was appointed by the Chief Justice to serve one year as and ex-officio member on the Judicial Committee on Information Technology.

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Court of Appeals

Background

The Texas Anti-Slapp statute provides that the trial court shall award sanctions to a person who brings a successful Texas Anti-Slapp motion. The Fort Worth appeals court had to decide if in a Texas Anti-Slapp case where the non-movement said that he wouldn’t do it again, if that was a sufficient basis for the trial court to deny an award of sanctions even though the statute says they are mandatory.

Facts

Rich v. Range Resources Corporation, No. 02-17-00090-CV, (Tex. App. – Fort Worth November 22, 2017) is the same case that the Supreme Court previously ruled on in In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015). After the case was sent back, the trial court awarded Rich $470,012.41 in attorney’s fees. Rich also sought sanctions which the trial court denied:

In support of her motion for sanctions, she provided the trial court with (1) the opinions of this court and of the Supreme Court of Texas in the mandamus proceedings; (2) Range Resources Corporation’s Form 10-Ks from December 2014 and December 2015 showing Range’s reported net income; (3) the affidavit of Range’s senior vice president that Range had used as support for its claim for $3 million in damages against Rich; (4) Range’s response to her motion for attorney’s fees; (5) Range’s response to her motion for sanctions; (6) a news release about Range’s merger with another corporation; (7) Range Resources Corporation’s Schedule 14A Proxy Statement from April 2016; and (8) the court reporter’s record from the original hearing on her motion to dismiss and for attorney’s fees.

In arguing against sanctions:

Range argued the merits of its claims that had been dismissed and asserted that there was no evidence that the imposition of sanctions would deter “anything because Range has no need to be deterred from filing similar lawsuits. It hasn’t done so.” Range further contended that if the trial court concluded that sanctions were required to be imposed under the TCPA, the trial court should award only a nominal amount to Rich.

Holding

The trial court agreed with Range and awarded no sanctions.

At the hearing on Rich’s motion for sanctions, Range argued that it had no need to be deterred from filing future TCPA claims because it has not filed any other defamation lawsuits against people who had left negative comments about Range on news articles posted online. The trial court found Range’s arguments persuasive, and its order contains an implied finding that Range did not need deterring from filing similar actions in the future.

Although the trial court was required by section 27.009 to award some amount of sanctions, it had the discretion to award only a nominal amount, such as $1.00.

[W]here the record shows as a matter of law that the plaintiff is entitled only to nominal damages, the appellate court will not reverse merely to enable him to recover such damages.

The trial court denied sanctions. The appeals court affirmed the trial court’s refusal to award mandatory sanctions.