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Spencer v. Overpeck

Court of Appeals of Texas, Fourth District, San Antonio

March 15, 2017

Ana Sophia SPENCER and William Alex Spencer, Appellant
Jennifer OVERPECK, Appellee

         From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CI-03779 Honorable Solomon Casseb, III, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice


          Sandee Bryan Marion, Chief Justice

         Ana Sophia Spencer and William Alex Spencer appeal the trial court's order denying their motion to dismiss filed pursuant to the Texas Citizens Participation Act also known as the anti-SLAPP statute. The Spencers assert the trial court erred in denying their motion with regard to Overpeck's claims for intentional infliction of emotional distress, tortious interference with contract, abuse of process, and wrongful injunction because Overpeck failed to establish by clear and specific evidence a prima facie case for each element of those claims.[1] The Spencers further assert the trial court erred in denying their motion with regard to Overpeck's defamation claim because the Spencers established each essential element of a valid defense to that claim by a preponderance of the evidence. We reverse the trial court's order with regard to Overpeck's claims for tortious interference with contract, abuse of process and wrongful injunction, and we render judgment dismissing those claims. We affirm the remainder of the trial court's order.


         Because both the trial court and this court are required to consider the pleadings and evidence in the light most favorable to Overpeck, the following summarizes facts from Overpeck's pleadings. See Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881, 892 (Tex. App.-Houston [1st Dist.] 2015, no pet.); Serafine v. Blunt, 466 S.W.3d 352, 369 n.28 (Tex. App.-Austin 2015, no pet.); see also Rio Grande H2O Guardian v. Robert Muller Family P'ship Ltd., No. 04-13-00441-CV, 2014 WL 309776, at *3 (Tex. App.-San Antonio Jan. 29, 2014, no pet.) (mem. op.) (noting "[u]nlike other types of cases where pleadings are not considered evidence, section 27.006 . . . expressly provides" that "we may consider the pleadings as evidence").

         Overpeck is a kindergarten teacher employed at an elementary school and had been employed as a teacher for six years. Overpeck met Ana Spencer at the beginning of the 2015-2016 school year (the first day of school was August 24, 2015). One of the Spencers' twin daughters, O.S., was in Overpeck's class. The other twin, S.S., was in the other kindergarten teacher's class. Ana Spencer frequently visited Overpeck's classroom after hours to talk, and the two women became friends. Overpeck and Ana Spencer shared information on personal issues with each other.

         Both twins had behavior issues, and Ana Spencer warned Overpeck that S.S. would throw hysterical tantrums, requiring her to be "redirected" to calm down. Both twins had trouble concentrating and completing their work. Both struggled academically and were not achieving normal milestones as the school year progressed. The Spencers were made aware of these issues.

         Shortly after the school year began, S.S. was unintentionally left in the class during the lunch break by the other kindergarten teacher. On September 4, 2015, Ana Spencer complained about the incident. On September 16, 2015, S.S. did not eat her lunch which upset Ana Spencer and resulted in her demanding that S.S. be transferred to Overpeck's classroom. S.S. was transferred on September 22, 2015. On the first day S.S. was transferred to Overpeck's classroom, she threw a tantrum and was uncontrollable. Overpeck notified Ana Spencer, who came to the school. Upon seeing S.S. in the care of her previous teacher while Overpeck was attempting to calm the rest of her class, Ana Spencer became enraged and began screaming at the other teacher in front of the children. The school principal pulled Ana Spencer aside to calm her down.

         In their pleadings in the underlying cause, the Spencers alleged they contacted the vice-principal the day after S.S. was transferred to Overpeck's classroom to complain they were uncomfortable with Overpeck due to her inappropriate affections and taking pictures of their children on her cell phone.[2] At the beginning of the school year, the Spencers had consented to the taking of photographs, and Overpeck took pictures of all of the children in her class.

         On September 25, 2015, the Spencers joined Overpeck, her husband, and her two sons for a run/walk and invited the Overpecks to their home. Throughout September and October, the Spencers and the Overpecks socialized several times at each other's homes. During those occasions, the Spencers observed Overpeck hugging the twins and their two-year-old sister and allowing them to sit on her lap. The Spencers never gave any indication they were alarmed by these interactions.

         On October 26, 2015, the Spencers alleged they had a meeting with the school's principal, vice-principal, and a school district administrator complaining about Overpeck's inappropriate interactions with their children. The Spencers also again complained about the other kindergarten teacher.

         On October 29, 2015, S.S. had a tantrum near the end of the school day when it was time for the twins to get on the bus to go to after-school daycare. Overpeck attempted to redirect S.S. and placed S.S. on her lap on the bus for a brief time in an effort to calm her.

         On November 30, 2015, Alex Spencer phoned the assistant principal and told her Overpeck had told his daughter "kids don't say no to the teacher."[3] Alex Spencer claimed Overpeck was being overly affectionate and allowing the children to sit on her lap. Ana Spencer emailed Overpeck and informed her she was not comfortable with her allowing her daughter to sit on her lap, telling the students she loved them, and telling them not to say "no" to their teacher. The school administrators discussed these allegations with Overpeck and found no basis for concern or discipline.

         In January of 2016, O.S. and S.S. fell behind in their school work because they were absent from school for several days. The Spencers expressed frustration to Overpeck about her requesting that the twins finish make-up work, and the Spencers emailed the administration complaining about the homework load. The Spencers also were upset that the twins received an "N" for conduct on their report cards, indicating they needed improvement.

         On February 3, 2016, Ana Spencer sent an email to the principal and vice principal requesting a meeting to discuss Overpeck's lack of honesty, professionalism, and poor communication. The email did not suggest any inappropriate affection or physical interactions between Overpeck and the twins.

         On February 9, 2016, the Spencers had a meeting with the principal, vice principal, and the school district administrator. Overpeck attached an exhibit to her pleading listing fifty-five defamatory statements she alleged the Spencers made at the meeting, including statements relating to Overpeck's children and husband. The record contains affidavits from the principal and vice principal confirming many of the alleged statements were made. Following that meeting, a teacher's aide was present in Overpeck's classroom at all times.

         On February 12, 2016, the Spencers alleged Overpeck sexually abused O.S. in the school restroom which caused O.S. to cut off a piece of her hair.[4] On February 14, 2016, one of the Spencers called the school district's "Safeline" to make a report, and on February 15, 2016, the Spencers made a report to the school district's police department. Around the same time, the Spencers also contacted the Bexar County Sheriff's office and the Texas Department of Family and Protective Services.

         On February 23, 2016, the school placed Overpeck on paid administrative leave while the school investigated the Spencers' allegations. On March 3, 2016, the Spencers sued Overpeck seeking to permanently enjoin her from being within 1, 000 feet of O.S. and S.S., and on March 4, 2016, the Spencers obtained an ex parte temporary restraining order prohibiting Overpeck from being within 1, 000 feet of their children. Overpeck subsequently agreed to a temporary injunction.

         On March 28, 2016, the Department ruled out any abuse or neglect by Overpeck. That same day, Overpeck filed her counterclaims against the Spencers, including claims for intentional infliction of emotional distress, tortious interference with contract, abuse of process, wrongful injunction, and defamation. On April 10, 2016, the trial court dissolved the temporary injunction, finding it was void, and Overpeck returned to work.

         On May 5, 2016, the Spencers filed the motion to dismiss Overpeck's counterclaims, and on June 1, 2016, the Spencers non-suited their claims against Overpeck. After a hearing on the motion to dismiss, the trial court realigned the parties, designating Overpeck as the plaintiff, and denied the Spencers' motion to dismiss. The Spencers appeal.

         The Texas Citizens Participation Act and ...

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