Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 68th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-14-04185
Justices Lang, Evans, and Whitehill Opinion by Justice
OPINION ON REMAND
Texas Supreme Court decided that we erred by reversing the
trial court's order dismissing appellants John and Mary
Ann Tatum's lawsuit against appellee Julie Hersh.
Hersh v. Tatum, 526 S.W.3d 462, 466-68 (Tex. 2017).
The court remanded to us to determine whether the trial court
erred by refusing to award Hersh any trial court level
attorneys' fees or sanctions pursuant to Texas Civil
Practice and Remedies Code § 27.009. Id. at
conclude that the trial court erred by refusing to award
Hersh any trial court level attorneys' fees, reverse the
trial court's judgment to that extent, and remand for a
determination and award of fees. We further conclude that any
error in refusing to impose a sanction was harmless because
(i) the trial court implicitly concluded that the Tatums did
not require deterrence from filing similar actions in the
future, (ii) the court thus would have acted within its
discretion by assessing only a nominal sanction, and (iii)
the failure to assess a nominal sanction is not harmful
error. We therefore affirm the judgment to the extent it
assesses no sanction against the Tatums.
supreme court's opinion states the facts. Id. at
463-65. Here it suffices to say that the Tatums sued Hersh
for intentional infliction of emotional distress, alleging
that Hersh encouraged Dallas Morning News columnist
Steve Blow to write a column about the Tatums' obituary
for their son Paul. The Tatums alleged that Blow's column
brought them unwanted attention for not discussing suicide in
filed a Chapter 27 dismissal motion and a fee application
supported with affidavits and other evidence. See
Tex. Civ. Prac. & Rem. Code §§ 27.001-.011.
Hersh's evidence supported the following facts:
• The Tatums previously filed a defamation case against
Hersh based on the same facts.
• The Tatums nonsuited the defamation case and later
filed this intentional infliction of emotional distress case
• Hersh incurred $63, 242.50 in attorneys' fees
defending the defamation case, of which $13, 563 would
necessarily have been incurred in defending the second
lawsuit had the defamation case never been filed.
• Hersh incurred $72, 780.50 in attorneys' fees
defending this lawsuit, as well as expenses and costs of
the hearing concluded, the trial court allowed the parties to
submit additional letter briefs about attorneys' fees,
which they did.
trial court later signed an order dismissing the Tatums'
case but awarding Hersh no sanctions and no attorneys'
fees except conditional appellate attorneys' fees.
Tatums appealed the judgment, and Hersh cross-appealed.
by our own prior precedent, we reversed the dismissal of the
Tatums' case because in her dismissal motion Hersh denied
making the specific statements giving rise to the Tatums'
claims. Tatum v. Hersh, 493 S.W.3d 675, 683-84 (Tex.
App.-Dallas 2015), rev'd, 526 S.W.3d 462 (Tex.
Texas Supreme Court reversed, holding that a claimant's
pleading allegations alone can establish that a legal action
is based on, relates to, or is in response to a party's
exercise of a protected right, even if the defendant denies
under oath committing the alleged conduct. See 526
S.W.3d at 467 ("When it is clear from the
plaintiff's pleadings that the action is covered by
[Chapter 27], the defendant need show no more.").
Because (i) the Tatums alleged that Hersh spoke with Blow
about the Tatums and (ii) suicide prevention and awareness
relate to health, safety, and community well-being, Hersh
carried her threshold burden under § 27.005(b).
Id. at 467-68. The court went on to hold that the
Tatums had not carried their § 27.005(c) burden to
establish by clear and convincing evidence a prima facie case
for each element of their claims, so Hersh was entitled to
dismissal. Id. at 468.
court remanded to us "to consider whether the trial
court erred by refusing [Hersh] her attorneys' fees and
sanctions and for any other proceedings." Id.
invited the parties to file supplemental briefs on remand,
which they did.
Issue One: Did the trial court err by refusing to award Hersh
any trial level attorneys' fees?