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Darnell v. Rogers

Court of Appeals of Texas, Eighth District, El Paso

July 5, 2019

ERIC B. DARNELL, Individually. and ERIC B. DARNELL, P.C., Appellants,
v.
LEE H. ROGERS, JR., DOROTHY R. KEEBLE, BARBARA R. ROWE, and LINDA R. FITE Appellees.

          Appeal from the 205th District Court of El Paso County, Texas (TC# 2016DCV0857)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, JUSTICE

         Appellants 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.

         BACKGROUND

         Lee 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.

         Darnell 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.[1] 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.

         Darnell 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 following:
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 representations.

         Appellees 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 special exceptions.

         Rogers 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.

         Appellees 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."

         On 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.

         On the 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 $5, 335.00.

         On 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 appeal followed.

         ISSUES

         Darnell 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, ...


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