Court of Appeals of Texas, Eighth District, El Paso
ERIC B. DARNELL, Individually. and ERIC B. DARNELL, P.C., Appellants,
LEE H. ROGERS, JR., DOROTHY R. KEEBLE, BARBARA R. ROWE, and LINDA R. FITE Appellees.
from the 205th District Court of El Paso County, Texas (TC#
McClure, C.J., Rodriguez, and Palafox, JJ.
T. RODRIGUEZ, JUSTICE
Eric B. Darnell, individually, and Eric B. Darnell, P.C.
(collectively, "Darnell") appeal from the trial
court's dismissal of their claims against Appellees Lee
H. Rogers, Jr., Dorothy R. Keeble, Barbara R. Rowe, and Linda
R. Fite. The court dismissed Darnell's claims against
Rogers pursuant to the Texas Citizen's Participation Act
("TCPA"). It dismissed Darnell's claims against
the remaining Appellees pursuant to Rule 91a of the Texas
Rules of Civil Procedure. See
Tex.Civ.Prac.&Rem.Code Ann. §§ 27.001, et
seq.; Tex.R.Civ.P. 91a.
Rogers retained Darnell to probate his mother's will.
Rogers became dissatisfied with Darnell's representation
because the matter was not pursued within the time promised
and Darnell would not return either Rogers' or his
sisters' telephone calls. Darnell moved to withdraw from
representing Rogers and made statements in the motion to
withdraw that Rogers asserts are false. Rogers demanded that
Darnell return the $1, 500 he had paid him, but Darnell
refused. On February 24, 2016, Rogers filed a grievance
against Darnell with the State Bar of Texas.
filed suit on March 4, 2016, against Rogers and his sisters,
Dorothy R. Keeble, Barbara R. Rowe, and Linda R. Fite. He did
not, however, serve Appellees with process until August 1,
2016. In his petition, Darnell asserts causes of action for
libel, slander, negligent misrepresentation, defamation,
business disparagement, aiding and assisting in each claim,
aiding and participating in each claim, acting in
participation in each claim, and conspiracy. We note that
libel and slander are merely the means by which defamation
occurs. Dallas Morning News, Inc. v.
Tatum, 554 S.W.3d 614, 623 (Tex. 2018), cert.
denied, 139 S.Ct. 1216, 203 L.Ed.2d 208 (2019). We will,
therefore, address those claims under the umbrella of
defamation rather than separately.
alleges that, in 2015 and into 2016, Appellees began making
negative statements about him to "various
individuals," including court personnel. Darnell then
makes the following fact statement, which he incorporates by
reference into his various causes of action.
14. The DEFENDANTS would alternate leaving borderline
psychotic messages on the voice message system making claims
related to and alleging that this Firm had or agreed to
represent each of them when, in fact, each of the DEFENDANTS,
including DEFENDANT KEEBLE, DEFENDANT ROWE and DEFENDANT
FITE, and that they had retained this Firm to represent them
knowing that the foregoing statements were not true and, not
only were the statements not true, the statements were false
because this Firm was representing an individual, DEFENDANT
ROGERS, who was adverse to each of them and who had adverse
interests to their interests.
15. Said representations included misstatements such as the
a. DEFENDANTS demanded return phone calls despite being
adverse to a Client of this Firm;
b. DEFENDANTS demanded personal and confidential information
related to a Client of this Firm; and,
c. as well as other defamatory statements and
answered and raised a variety of defensive matters, including
an allegation that Darnell's suit was filed in
retaliation for Rogers filing an ethics complaint against him
with the State Bar of Texas. Appellees also filed numerous
special exceptions asserting defects in Darnell's
pleadings. The record does not contain any ruling on these
filed a motion to dismiss the suit against him pursuant to
the TCPA. He alleges that filing a grievance against Darnell
with the State Bar of Texas is an exercise of his right to
petition, as protected under the TCPA. The motion to dismiss
is supported by Rogers' affidavit, a copy of the
grievance, and a copy of a letter Rogers sent to Darnell on
October 20, 2015. That letter states, in part, "I hereby
demand that you return the $1, 500 that I paid you. If I
don't receive the money within 10 days, I will do
whatever is afforded to me by law to collect it." Rogers
also filed a supplemental affidavit, in which he stated that
his sister, Keeble, had left a message for Darnell telling
him she knew how to get in touch with the bar association.
Keeble, Rowe, and Fite filed a motion to dismiss the suit
against them pursuant to Rule 91a of the Texas Rules of Civil
Procedure. They assert that those claims have no basis in law
or in fact. In particular, they assert that, "[b]ecause
the Plaintiffs have failed to plead any facts supporting of
any cause of action, it is not possible to determine whether
the Plaintiffs are entitled to any relief on any cause of
action. No reasonable person could believe the facts pleaded
because there are none."
November 14, 2016, the trial court signed an order granting
Keeble, Rowe, and Fite's Rule 91a motion and dismissing
Darnell's claims against them. The order states that
Darnell's petition "fails to state sufficient facts
to allow reasonable inference to be reasonably drawn from the
allegations that the Plaintiffs are entitled to the relief
sought." The court ordered Darnell to pay attorney's
fees in the amount of $4, 754.03.
same day, the trial court signed an order granting
Rogers' TCPA motion and dismissing Darnell's claims
against him. The order states that Darnell's claims are
"based on statements made by Defendant Rogers to the
State Bar of Texas which is protected speech." The court
ordered Darnell to pay attorney's fees in the amount of
December 5, 2016, the two dismissal orders were incorporated
into a final take-nothing judgment which orders Darnell to
pay a total of $10, 089.03 in attorney's fees. This
raises twelve issues, which fall into three general
categories: (1) error in granting the motion to dismiss under
the TCPA, so the award of attorney's fees based on TCPA
cannot stand (Issues One, Two, Three, and Twelve); (2) error
in granting the motion to dismiss pursuant to Rule 91a
(Issues Four, Five, Six, Eight, ...