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Moricz v. Long

Court of Appeals of Texas, Sixth District, Texarkana

July 20, 2017

DR. GEORGE F. MORICZ, Appellant
v.
PAMELA K. LONG AND STACY A. LONG, INDIVIDUALLY AND AS HUSBAND AND WIFE, AND NICHOLE HAMILTON, Appellees

          Date Submitted: June 7, 2017

         On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 16C1186-202

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Josh R. Morriss, III, Chief Justice

         This interlocutory appeal arises out of (A) the former employment of Pamela K. Long in George Moricz's medical practice, (B) Moricz's allegations of fraud, theft, and embezzlement by Long, (C) a resulting lawsuit by Long, her husband, Stacy A. Long, and her friend, Nichole Hamilton, against Moricz for libel per se and invasion of privacy, and (D) the dismissal of some of those resulting actions under the Texas Citizens Participation Act (the Act), our state's so-called anti-SLAPP[1] statute. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (West 2015). We dismiss Long's, Stacy's, and Nichole's attempted appeal for want of jurisdiction and reverse and render in part and affirm in part, because (1) we have no jurisdiction over the attempted interlocutory appeal of a dismissal under the Act, (2) the demand letters were Moricz's exercise of his right to petition under the Act, (3) Long established no prima facie case for invasion of privacy, (4) Stacy and Nichole established no prima facie case for libel per se, and (5) Long did establish a prima facie case for libel per se.

         To obtain dismissal under the Act, a defendant must show "by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party's exercise of the right of free speech; the right to petition; or the right of association." Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). "Exercise of the right of free speech" is defined in the Act as "a communication made in connection with a matter of public concern." Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3). "Exercise of the right to petition" is defined, in part, as "a communication in or pertaining to . . . a judicial proceeding" and as "any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state." Tex. Civ. Prac. & Rem. Code Ann. § 27.001(4)(A)(i), (E). Finally, "exercise of the right of association" is defined as "a communication between individuals who join together to collectively express, promote, pursue, or defend common interests, " with "communication" being separately defined as "the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." tex. Civ. Prac. & Rem. Code Ann. § 27.001(1), (2).

         When a trial court must decide whether to grant a motion to dismiss under the Act, the statute instructs the court to "consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Tex. Civ. Prac. & Rem. Code Ann. § 27.006. If the movant meets its burden to show that a claim is covered by the Act, to avoid dismissal of that claim, a plaintiff must establish "by clear and specific evidence a prima facie case for each essential element of the claim in question." Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). In In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (orig. proceeding), the Texas Supreme Court clarified how this evidentiary standard should be applied. It wrote, "[M]ere notice pleading-that is, general allegations that merely recite the elements of a cause of action-will not suffice." Id. at 590-91. "Instead, a plaintiff must provide enough detail to show the factual basis for its claim." Id. at 591. The Texas Supreme Court noted that, "[i]n contrast to 'clear and specific evidence, ' a 'prima facie case' has a traditional legal meaning." Id. at 590. "It refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted." Id. "It is the 'minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.'" Id.; see Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) ("prima facie case" in the Act "implies a minimal factual burden, " the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true"). Thus, for example, "[i]n 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. Lipsky, 460 S.W.3d at 591.

         If the nonmovant establishes a prima facie case, the burden shifts back to the movant. In order to obtain dismissal, the movant must establish by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d).

         We review de novo a trial court's ruling on a motion to dismiss under the Act. Better Bus. Bur. of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.- Houston [1st Dist.] 2013, pet. denied). In conducting this review, we review the pleadings and evidence in a light favorable to the nonmovant. Newspaper Holdings, Inc., 416 S.W.3d at 80-81.

         We start with a bit more background before getting to our analysis.

         Long and Moricz agree on few things. They do not dispute that she once served as an employee of his medical practice and that she does not work there anymore. It is not disputed that, on December 14, 2015, at a meeting in Moricz's office, Moricz, Long, and accountant Mike Munnerlyn discussed allegations that Long had committed fraud, theft, and embezzlement while employed by Moricz. Moricz claims, and Long disputes, that an internal audit of his medical practice revealed that Long, who had a role in the practice's billing process, had stolen thousands of dollars of over-the-counter supplements available through the practice and fraudulently arranged discounted and free medical care from the practice for certain patients. Moricz further alleges, and Long further disputes, that, at that meeting, Long admitted committing the acts and agreed to repay him $8, 730.45 in installments. Though Moricz contends that Long's employment was terminated, she alleges that she resigned.

         On or about December 29, 2015, Moricz mailed Long two identical letters demanding that, as part of their alleged agreement, she pay him $8, 730.45 for "unpaid invoices" by January 30, 2016. On or about January 6, 2016, Long found a letter from Moricz that was "left on the ground by [her] front door" by a process server. The letter stated:

This notice is being served against Pam Long who on 14 DEC 2015 admitted to fraud committed against George F. Moricz MD, Professional Association. At 2PM on 6 JAN 2016, Pam Long is in default on first installment of repayment of theft committed against the business of George F. Moricz MD, Professional Association. See enclosed copy of FIRST CLASS MAIL and Certified Letter 70111150 00011994 7360 dated 29 DEC 2015. This will serve as FINAL NOTICE and WARNING to commence in 24 hours without delay of legal and criminal proceedings of Pam Long, and other accomplices who conspired to commit fraud against George F. Moricz MD, Professional Association.

         On or about the same day, similar letters were hand-delivered to Stacy and Nichole, accusing each of them of conspiring with Long to defraud Moricz and informing the recipient, in pertinent part, that Long had "admitted workplace theft, " that she was "in default on the first installment of repayment of theft committed, " and that legal and criminal proceedings would be commenced against them within twenty-four hours.[2] Long, Stacy, and Nichole (the plaintiffs) allege that, on January 7, 2016, Long sent a cashier's check to Moricz in the amount of $744.25 "because she believed she might have owed this amount for medication her husband received through [Moricz's] office, " but the check went uncashed.

         According to the plaintiffs' pleadings, [3] on January 14, 2016, and April 7, 2016, Moricz filed police reports with the Texarkana Texas Police Department (TTPD) accusing Long of theft and embezzlement totaling $43, 391.00. After an investigation, the TTPD determined that the necessary components of a criminal case were not present because this was a dispute over how much was owed to ...


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