Carter v. Ball

          From the 216th Judicial District Court, Gillespie County, Texas Trial Court No. 15522 Honorable N. Keith Williams, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Beth Watkins, Justice

          MEMORANDUM OPINION

          Beth Watkins, Justice

         Appellants 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.

         Background

         Ball 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.

         The 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.

         Ball 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.

         On 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."^[1] 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.^[2]

         Even 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 sanctions:

MR. MOSTY: Well, the only thing I would ask, Your Honor, is there is a mandatory attorney's fees provision.

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.^[3] 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 ...