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Ghrist v. MBH Real Estate LLC

Court of Appeals of Texas, Second District, Fort Worth

June 21, 2018

IAN GHRIST; GHRIST LAW FIRM, PLLC; SHAWN COKER; NEIGHBORHOOD PARTNER, INC.; BLUE MOON REALTY GROUP, LLC; AND WIZARD FUNDING, LLC APPELLANTS
v.
MBH REAL ESTATE LLC, AFI LOAN SERVICING, LLC, ANSON FINANCIAL, INC., J. MICHAEL FERGUSON, P.C. APPELLEES

          FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 236-295012-17

          PANEL: SUDDERTH, C.J.; MEIER and PITTMAN, JJ.

          MEMORANDUM OPINION [1]

          BONNIE SUDDERTH CHIEF JUSTICE

         In eight issues, [2] Appellants Ian Ghrist and Ghrist Law Firm, PLLC (the Ghrist Defendants) and Shawn Coker, Neighborhood Partner, Inc., Blue Moon Realty Group, LLC, and Wizard Funding, LLC (the Coker Defendants) bring this interlocutory appeal of the trial court's denial of their chapter 27 motion to dismiss the lawsuit brought against them by Appellees MBH Real Estate LLC, AFI Loan Servicing, LLC, Anson Financial, Inc., and J. Michael Ferguson, P.C. 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.

         I. 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" or "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, while at the same time protecting the rights of a person to file a meritorious lawsuit. 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 the 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. See 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 the 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 [the movant's] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association." 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))).

         II. 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).

         III. The Underlying Claims

         In their original petition, Appellees brought an assortment of legal claims against various Appellants, including negligence, gross negligence, breach of fiduciary duty, conversion, civil conspiracy, violations of chapter 17 of the Texas Business and Commerce Code (the Deceptive Trade Practices-Consumer Protection Act (DTPA)), violations of chapter 12 of the Texas Civil Practice and Remedies Code ("Liability Related to a Fraudulent Court Record or a Fraudulent Lien or Claim Filed Against Real or Personal Property"), defamation per se, and a suit for declaratory relief under chapter 37 of the Texas Civil Practice and Remedies Code (Uniform Declaratory Judgments Act).[3] In response, Appellants filed a joint motion to dismiss and a brief in support thereof.[4]

         Although Appellants' motion is confusing and fraught with mistakes and typographical errors, [5] taking both the motion and brief together, it is clear that Appellants took the position that all of Appellees' causes of action somehow related to statements to which the TCPA applied and that, therefore, the trial court should dismiss all causes of action and the case in its entirety. This is also Appellants' position on appeal.

         IV. Dismissal of Claims

         In their first issue, Appellants query, "Should any of [Appellees'] claims have been dismissed pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code?"[6] Given the argument that follows, we take this as a contention that the trial court erred by denying Appellants' motion to dismiss in its entirety. See Tex. R. App. P. 38.9. For convenience and expediency in analyzing this issue, we separate out the cause of action for defamation per se and discuss it apart from the remaining causes of action applicable to Appellants.

         A. Defamation Per Se Action

         Appellees sued the Ghrist Defendants for statements made in a February 6, 2017 letter from Ghrist to Elmer Hernandez, [7] which Appellees claim were defamatory per se.[8] In particular, Appellees claim that in the following excerpt from the letter, the Ghrist Defendants "published false statements that [Appellees] were misappropriating client funds":

I saw your affidavit in the Motion to Expunge Notice of Lis Pendens. The lis pendens will not interfere with the closing on your property at 2420 Purselley Drive, Fort Worth, Texas. Anson Financial aka AFI Mortgage and MBH Real Estate LLC are defendants in a lawsuit involving misappropriation of funds of MBH Real Estate LLC. If you make a payment to Anson Financial aka AFI Mortgage, or to any entity owned by or controlled ...

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