Court of Appeals of Texas, Sixth District, Texarkana
DR. GEORGE F. MORICZ, Appellant
PAMELA K. LONG AND STACY A. LONG, INDIVIDUALLY AND AS HUSBAND AND WIFE, AND NICHOLE HAMILTON, Appellees
Submitted: June 7, 2017
Appeal from the 202nd District Court Bowie County, Texas
Trial Court No. 16C1186-202
Morriss, C.J., Moseley and Burgess, JJ.
R. Morriss, III, Chief Justice
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 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.
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).
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
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).
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.
start with a bit more background before getting to our
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
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.
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. 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.
to the plaintiffs' pleadings,  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 ...