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Van Der Linden v. Khan

Court of Appeals of Texas, Second District, Fort Worth

November 9, 2017

KATHRYN VAN DER LINDEN APPELLANT
v.
DR. NADEEM KHAN APPELLEE

         FROM THE 415TH DISTRICT COURT OF PARKER COUNTY TRIAL COURT NO. CV16-0633

          PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ.

          OPINION

          BONNIE SUDDERTH, CHIEF JUSTICE.

         I. INTRODUCTION

         In four issues, Appellant Kathryn Van Der Linden brings this interlocutory appeal of the trial court's denial of her chapter 27 motion to dismiss Appellee Dr. Nadeem Khan's lawsuit against her. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001-.011 (West 2015), § 51.014(a)(12) (West Supp. 2017). We affirm in part and reverse in part the trial court's order and remand this case to the trial court for further proceedings.

         II. BACKGROUND

         A. The Parties

         Khan is a board-certified family practice physician who, after graduating from medical school in 1996, moved from Pakistan to the United States to complete his residency at John Peter Smith Hospital in Fort Worth. At the time the lawsuit was filed, Khan was the Chief Executive Officer of Tri Cities Urgent Care, located in Willow Park, Texas.

         Van Der Linden is a retired colonel in the United States Air Force. Her twenty-four years of service in the USAF included a deployment to Iraq, where she served for five months in the trauma hospital at Balad Air Base.

         Van Der Linden and Khan were neighbors in Parker County, Texas, and Van Der Linden said that she and her husband considered Khan and his wife friends. Their children attended the same school, and at one point, Van Der Linden was one of Khan's medical patients.

         B. The Initial Controversy

         According to Van Der Linden, one evening in July 2015 when she and her husband were having dinner in the Khans' home, she and Khan engaged in a private conversation in the kitchen about the United States military presence in the Middle East. According to Van Der Linden, during that discussion, Khan told her that he had given money to the Taliban. Van Der Linden described herself as shocked when Khan said this, and she immediately questioned Khan as to why he would do such a thing. Khan's explanation, according to Van Der Linden, was that his grandfather, who had worked with the CIA, had related to him how he had witnessed the United States "'flip[ping] sides' with different administrations."

         Khan denies that this conversation ever took place. In his affidavit, he further posited that "[i]t defies logic that [he] would make such a radical statement to a former Colonel of the United States Air Force."

         According to Van Der Linden, approximately one week later, she questioned Khan again about why he would donate money to a terrorist organization.[1] During that conversation, Van Der Linden said that she told him about a "horrific mass-rape event-perpetrated by the Taliban upon every female in a village, from infant to elderly, " the aftermath of which a friend of hers, who had also been deployed to Iraq, had witnessed and later told her about. In a reaction Van Der Linden described as "odd, " Khan allegedly responded to this story "by saying the event was bad, and that he really preferred animals over people." According to Van Der Linden, he said, "[I]f he passed an injured person on the side of the road versus a wounded animal, he'd rather stop for the animal."

         Khan also denies that this conversation ever took place, and in his affidavit, he pointed out that he had "devoted [his] career and life to treating individuals as a medical doctor."

         Van Der Linden claimed that Khan's wife Shannon was present for this second conversation, but neither side offered Shannon's testimony into the record.

         According to Van Der Linden, these two conversations concerned her, especially given her military career in which she had "seen firsthand the horror that terrorist organizations, such as the Taliban, have produced." Van Der Linden felt obligated to inform others of what Khan had told her because, in her opinion, Khan's statement that he had given money to the Taliban was a matter of public concern. No one disputes, however, that Van Der Linden waited more than five months to act on this sense of duty.

         C. Van Der Linden's Message

         In January 2016, Van Der Linden sent the following message to the Facebook accounts of Khan's business associates-Beverly Murphy, Tim Murphy, and Loretta Sheldon Murphy[2]-via Facebook Messenger, [3]

You are partnering with a Muslim who has told me, PERSONALLY (not via hearsay) that he has given money to the Taliban. The fact that Shannon Khan is my neighbor has nothing to do with anything. I was deployed to Iraq for 5 months at a trauma hospital at Balad AB, and retired as a Colonel in the USAF. ANYONE who gives money to the Taliban is my enemy. No lawyer you can hire will undo terrorist involvement. Good luck. Kathy Van Der Linden, Col (USAF retired).

         She received no response to the Message.

         The record is vague as to how Van Der Linden obtained the names of Khan's business associates. Van Der Linden claims that she "became aware" that Khan had a potential business venture pending with "relatives of a woman named Melissa Murphy Miller." According to Van Der Linden, by looking at the "Friends" on Miller's Facebook page, she was able to identify the individuals- Beverly Murphy, Tim Murphy, and "Loretta Sheldon" Murphy-who she "thought might be Miller's relatives."

         Khan provided a different explanation. In his affidavit, Khan claimed that he had "come to learn" that Van Der Linden and his by-then-estranged wife Shannon[4] had "placed spyware on [his] personal computer at [his] residence and accessed [his] personal email accounts." According to Khan, Van Der Linden had learned the identities of his business associates by "gaining access to" his computer and email accounts.

         In her supplemental affidavit, Van Der Linden neither elaborated on how she initially "became aware" that Khan had a potential business venture pending with "relatives of a woman named Melissa Murphy Miller" nor denied that she had accessed Khan's personal computer, either individually or in concert with Shannon. But as to the allegation that she placed spyware on Khan's computer, she swore that she had "never placed spyware" on Khan's computer and that she had no knowledge of "any other person, including Shannon Khan" having placed spyware on his computer.

         As to her motives, Van Der Linden explained that she sent the Message because of her "concern for community well-being and safety, " and to "inform [Khan's associates] about his claimed involvement with a terrorist organization and enemy of the United States." She also stated that she believed that "if the business deal went through, part of these people's money could contribute to killing members of our military in Pakistan and Afghanistan, and possibly attacking other United States' interests domestically and abroad."

         D. The Aftermath

         According to Khan, at the time the Message was sent, he had an oral agreement with Sheldon Murphy wherein Khan

would find a seller/producer to sell crude oil and/or other hydrocarbon products. The crude oil and/or other hydrocarbon products would be provided by a third-party. Sheldon Murphy and [Khan] would split the greater of ten-cents ($.10) or ten-percent (10%) of the margin per each barrel of crude oil or other hydrocarbon products.

         In furtherance of that agreement, Khan claims that he "had found a seller/producer to purchase 60, 000 metric tons of crude oil" and that he would have received approximately $30, 000 as a commission from this transaction had the agreement gone forward.

         In addition, Khan said he was in the process of negotiating another agreement with Sheldon and Loretta Murphy to purchase a 50% interest in WHAM, LLC. According to Khan, WHAM-an acronym for Wellhead Automation and Measurement-was a North Dakota company that "specialize[d] in gas flow measurement in the oil and natural gas industry." Khan said he had incurred $250, 000 in attorney's fees in his attempt to consummate this agreement, and he attached to his response purported drafts of documents related to the agreement. Had this deal been completed, Khan expected it would have been "lucrative, " and he estimated that his profits would have exceeded $500, 000. According to Khan, in anticipation of this deal, he had already obtained "[$]23.3 million in grants that would go to the company."

         But the deal did not go through. According to Khan, while he and Sheldon and Loretta Murphy were in the process of "working out the finer details of the written agreement, " Van Der Linden sent the Message to them. Khan said that right after Sheldon received Van Der Linden's Message, Sheldon called him and, "in an excited manner, " asked Khan, "What the f--- is going on!" According to Khan, Sheldon told him that he had just received Van Der Linden's Message "and then stated that he could not proceed with the plan." After Van Der Linden sent the Message, neither the oral agreement nor the pending WHAM deal went forward.

         E. The Lawsuit

         Khan sued Van Der Linden for tortious interference with contract and with "prospective advantage/business relations" and for "defamation/defamation per se" and sought damages and injunctive relief. Van Der Linden sought dismissal of all of his claims under chapter 27. After the trial court denied Van Der Linden's motion to dismiss, Van Der Linden brought this interlocutory appeal in which she contends that Khan failed to meet his burden to establish a prima facie case on each element of his claims by clear and specific evidence. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011, 51.014(a)(12).

         III. THE ANTI-SLAPP STATUTE

         Civil practice and remedies code chapter 27, the Texas Citizens Participation Act (TCPA), protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern, i.e., "Strategic Lawsuit[s] Against Public Participation, " commonly known as SLAPP suits, by providing a mechanism for summary disposition of such suits. In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding) (citing Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011); Schofield v. Gerda, No. 02-15-00326-CV, 2017 WL 2180708, at *10 (Tex. App.-Fort Worth May 18, 2017, no pet.) (mem. op.); see also Tex. Civ. Prac. & Rem. Code Ann. § 27.002. The statute's purpose is to identify and summarily dispose of lawsuits designed to chill First Amendment rights, but not to dismiss meritorious lawsuits. Lipsky, 460 S.W.3d at 589 (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.002).

         Summary disposition is achieved through the TCPA's provision for expedited dismissal of lawsuits. The statute permits a defendant, within 60 days of service of the lawsuit, to seek dismissal of the lawsuit by challenging the plaintiff to show prima facie evidence to support his claim. Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003, .005. The movant is entitled to an expedited hearing and, if ultimately successful on the motion, an award of court costs, reasonable attorney's fees, and other expenses incurred in defending against the legal action. Id. §§ 27.004, .009; Sullivan v. Abraham, 488 S.W.3d 294, 295 (Tex. 2016).

         Dismissal under TCPA involves a two-step process. First, the defendant-movant has the burden to show by a preponderance of the evidence that the plaintiff's claim "is based on, relates to, or is in response to, " among other things, "the [movant's] exercise of the right of free speech." Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b); Schofield, 2017 WL 2180708, at *10. If the movant satisfies this burden, then the burden shifts to the plaintiff-respondent to 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).

         The clear and specific evidentiary standard may be satisfied by direct or circumstantial evidence. See Hand v. Hughey, No. 02-15-00239-CV, 2016 WL 1470188, at *4 (Tex. App.-Fort Worth Apr. 14, 2016, no pet.) (mem. op.) (explaining that the clear and specific standard "'neither imposes a heightened evidentiary burden nor categorically rejects the use of circumstantial evidence when determining the plaintiff's prima-facie-case burden under the Act.'" (quoting Andrews Cty. v. Sierra Club, 463 S.W.3d 867, 867 (Tex. 2015))). But, as the supreme court has directed us, such evidence must be provided with some degree of detail. Lipsky, 460 S.W.3d at 590-91 (requiring "enough detail to show the factual basis for [the plaintiff's] claim"). In the context of a defamation case, 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 suffice to overcome a challenge under the TCPA. Id. (emphasis added).

         IV. STANDARD OF REVIEW

         We are directed to construe the statute "liberally to effectuate its purpose and intent fully, " see Hotchkin v. Bucy, No. 02-13-00173-CV, 2014 WL 7204496, at *1 (Tex. App.-Fort Worth Dec. 18, 2014, no pet.) (mem. op.) (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.011(b)), and we review de novo a trial court's denial of a motion to dismiss under the TCPA. Hand, 2016 WL 1470188, at *3 (citing United Food & Commercial Workers Int'l Union v. Wal-Mart Stores, Inc., 430 S.W.3d 508, 511 (Tex. App.-Fort Worth 2014, no pet.)). In our de novo review, we 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(a).

         V. DISCUSSION

         A. The First Prong - Right of Free Speech

         In her first issue, Van Der Linden argues that she met her burden in the first step of the process by showing that the TCPA applies to Khan's underlying lawsuit against her.

         Khan's response is two-fold. First, he argues that because the policy reasons underlying the TCPA are not present in this case, the TCPA does not protect Van Der Linden's Message. Second, he argues that Van Der Linden has not met her burden to show that the Message was an exercise of the right to free speech as that term is defined by the TCPA. Thus, Khan contends that because his lawsuit was not based on Van Der Linden's exercise of her right to free speech, Van Der Linden failed to establish that she was entitled to file a motion to dismiss.

         Khan maintains that the underlying policy of the TCPA requires us to make one ultimate determination-"whether [Khan]'s lawsuit was brought to 'chill' Van Der Linden's First Amendment Rights or rather to bring a meritorious cause of action against Van Der Linden." He suggests that if we determine that the lawsuit was not brought to chill Van Der Linden's First Amendment rights but was instead brought to assert meritorious complaints against her, then she is not entitled to seek dismissal under the TCPA. Khan contends that because he did not bring his action because Van Der Linden exercised her right to free speech- but instead solely because Van Der Linden intentionally interfered with Khan's business deals-that she has not met the first prong of the test. We disagree.

         While our goal in applying any statute is to "ascertain and effectuate the Legislature's intent, " the supreme court instructs us that the source for legislative intent is found, whenever possible, in the plain language of the statute itself. Janvey v. Golf Channel, Inc., 487 S.W.3d 560, 572 (Tex. 2016). And when a statute's words "yield a single inescapable interpretation, " our inquiry ends. Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651-52 (Tex. 2006).

         Section 27.003 provides that "[i]f a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, " that party may file a motion to dismiss the action. Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a) (emphasis added). The question, then, is not whether Khan brought his lawsuit for the purpose of chilling Van Der Linden's First Amendment rights. The question is whether Khan's lawsuit is "based on, relates to, or is in response" to Van Der Linden's exercise of her right of free speech. See id.

         "Exercise of the right of free speech" is defined as "a communication made in connection with a matter of public concern." Id. § 27.001(3). A "[m]atter of public concern" is defined as, among other things, "an issue related to health or safety [or] environmental, economic, or community well-being." Id. § 27.001(7)(A)-(B). And the TCPA applies to both public and private communication. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017) (referencing Lippencott v. Whisenhunt, 462 S.W.3d 507, 508-09 (Tex. 2015)). Thus, under this statutory framework, if the Message was "made in connection with" an "issue related to health or safety [or] community well-being, " it would fall squarely within the statute. Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1), (3), (7)(A)-(B).

         For reasons so obvious that further elaboration should not be necessary, financial support for a terrorist organization is an issue related to safety and community well-being. Consequently, issues related to this topic are "matter[s] of public concern, " as defined by the TCPA. See id. § 27.001(7)(A)-(B). Since Van Der Linden's message was made in connection with a matter of public concern, it constituted an "exercise of the right of free speech, " as that term is defined in the statute. See id. § 27.001(3). Public policy or legislative intent notwithstanding, our inquiry ends there.[5] See Alex Sheshunoff Mgmt. Servs., L.P., 209 S.W.3d at 651-52.

         Because we hold that the Message was a communication made in the exercise of the right of free speech as defined by the TCPA, we sustain Van Der Linden's first issue.

         B. The Second Prong - Clear and Specific Evidence

         Because Van Der Linden demonstrated that Khan's lawsuit implicated her exercise of the right of free speech, to prevent dismissal of the action, the burden shifted to Khan to prove, by clear and specific evidence, a prima facie case for each essential element of his claims against her. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b) (providing that the court "shall" dismiss the action if the movant shows that the action relates to the exercise of the right of free speech), (c) (providing that the court may not dismiss the action if the opponent "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question"). In her second issue, Van Der Linden argues that Khan failed to meet his burden of establishing, by clear and specific evidence, a prima facie case for each essential element of his alleged claims against her for tortious interference with contract, tortious interference with prospective business relations, and defamation/defamation per se. We take each cause of action in turn.

         1. Tortious Interference with Contract

         To prevail on his tortious-interference-with-contract action against Van Der Linden, Khan must prove that: (1) he had a valid contract with Sheldon Murphy; (2) Van Der Linden willfully and intentionally interfered with that contract; (3) Van Der Linden's interference proximately caused Khan's injury; and (4) Khan incurred actual damage or loss. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex. 2002) (op. on reh'g). Thus, to prevent dismissal of his tortious-interference-with-contract action, Khan was required to prove, by clear and specific evidence, a prima facie case for each of these four ...


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