Court of Appeals of Texas, Fourth District, San Antonio
Champe CARTER, Erin Bailey Carter, Paige Parker, and Melanie Parker, Appellants
Gregory Robert BALL, Appellee
the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 15522 Honorable N. Keith Williams, Judge
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C.
Martinez, Justice Beth Watkins, Justice
Champe Carter and Erin Bailey Carter (collectively, "the
Carters") and Paige Parker and Melanie Parker
(collectively, "the Parkers") appeal the portion of
the trial court's order failing to award them
attorney's fees, court costs, and sanctions after it
granted their motions to dismiss pursuant to the Texas
Citizens Participation Act ("TCPA"). Appellee
Gregory Robert Ball contends, however, that the Carters and
the Parkers waived that recovery by failing to present
evidence of their attorney's fees, court costs, and
sanctions to the trial court. Ball also complains in a
cross-point that the trial court should have denied the
Carters' and the Parkers' motions to dismiss. We
affirm the trial court's order.
sued the Carters and the Parkers for defamation per se,
business disparagement, invasion of privacy, and intentional
infliction of emotional distress. He alleged that "one
or more of the Defendants" told third parties that Ball
had committed assault and sexual assault, was a sexual
predator, and had exhibited violence against women. He also
alleged that the defendants had created false online profiles
in his name that they then used to disparage him.
Carters filed a motion to dismiss Ball's claims pursuant
to the TCPA, arguing that Ball's allegations implicated
their exercise of the right of free speech. Tex. Civ. Prac.
& Rem. Code Ann. § 27.003. The TCPA defines
"exercise of the right of free speech" as "a
communication made in connection with a matter of public
concern," and further defines "matter of public
concern" as, inter alia, "an issue related
to: (A) health or safety; [or] (B) environmental, economic,
or community well-being." Id. at §
27.001(3), (7). The Carters argued that their alleged
statements satisfied this definition because they
"related to safety of women and individuals in the
community." They argued that the TCPA mandated dismissal
because: (a) Ball could not establish by clear and specific
evidence a prima facie case for each essential element of any
of his claims; and (b) Ball's defamation claim was barred
by the statute of limitations. Id. at § 27.005.
The Parkers later filed an additional motion to dismiss,
which essentially repeated the Carters' arguments.
responded to both motions, arguing: (a) the statute of
limitations on his defamation claim had been tolled while his
attorney was recovering from a serious injury; and (b) his
defamation per se, business disparagement, and invasion of
privacy claims were "clearly exempt from the scope of
the TCPA." He did not attach any evidence to his
responses or provide more factual details about his claims.
February 5, 2019, the trial court held a hearing on the
motions to dismiss. During that hearing, Ball sought
permission to present live testimony in support of his
claims. The Carters and the Parkers argued, however, that the
trial court was only permitted to consider pleadings and
affidavits. The trial court agreed and denied Ball's
request, stating, "[t]here's no testimony allowed at
this hearing." Ball then sought permission to submit an
affidavit in support of his claims, but the Carters and the
Parkers again objected, arguing that they had "spent a
long time preparing for this [hearing] based upon the
documents that were filed and of record, Your Honor. It's
a completely different hearing if [Ball] has an
affidavit." The court denied Ball's request to
submit an additional affidavit, and announced that it would
not allow either side "to submit anything further"
in connection with the motions because the parties had not
shown good cause to submit additional evidence.
though the Carters and the Parkers had successfully urged the
trial court to deny Ball's request to present additional
evidence, at the end of the hearing they asked for permission
to submit evidence of attorney's fees, court costs, and
MR. MOSTY: Well, the only thing I would ask,
Your Honor, is there is a mandatory attorney's fees
THE COURT: There's a what?
MR. MOSTY: Mandatory attorney's fees
provision if you do dismiss the case. My clients have fought
this now two times. I would love to go into the facts about
Mr. Ball like Mr. Chapman has, because you have heard barely
one side of the story. And so the question that I have for
the Court is, there is no provision as to how attorney's
fees are to be submitted in the statute, whether it's by
affidavit after the hearing, and some of the cases they
remand for a second hearing. And so whether the Court would
consider that, and if so, how that testimony-
THE COURT: I'm going to make my
decisions based upon-everything I'm going to decide and
everything pertaining to my rulings in this case as set forth
on-is based upon what I have currently on file.
MR. MOSTY: Okay. So just for the record,
you're denying any additional testimony on attorney's
fees? And I don't mean to-I understand your ...