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Tatum v. Hersh

Court of Appeals of Texas, Fifth District, Dallas

March 27, 2018

JOHN TATUM AND MARY ANN TATUM, Appellants
v.
JULIE HERSH, Appellee

          On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-04185

          Before Justices Lang, Evans, and Whitehill Opinion by Justice Whitehill

          OPINION ON REMAND

          BILL WHITEHILL JUSTICE

         The 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 468.

         We 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.

         I. Background

         The 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 the obituary.

         Hersh 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 against Hersh.
• 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 $247.30.

         When the hearing concluded, the trial court allowed the parties to submit additional letter briefs about attorneys' fees, which they did.

         The trial court later signed an order dismissing the Tatums' case but awarding Hersh no sanctions and no attorneys' fees except conditional appellate attorneys' fees.

         The Tatums appealed the judgment, and Hersh cross-appealed.

         Bound 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. 2017).

         The 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.

         The court remanded to us "to consider whether the trial court erred by refusing [Hersh] her attorneys' fees and sanctions and for any other proceedings."[1] Id.

         We invited the parties to file supplemental briefs on remand, which they did.

         II. Analysis

         A. Issue One: Did the trial court err by refusing to award Hersh any trial level attorneys' fees?

         1. The ...


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