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Houston Forensic Science Center, Inc. v. Barette

Court of Appeals of Texas, First District

November 7, 2019

HOUSTON FORENSIC SCIENCE CENTER, INC., Appellant
v.
TAMMY BARETTE, Appellee

          On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2018-81317.

          Panel consists of Justices Kelly, Hightower, and Countiss.

          MEMORANDUM OPINION

          Peter Kelly Justice.

         Appellee Tammy Barette sued her former employer, appellant Houston Forensic Science Center, Inc. ("HFSC"), for defamation relating to a press release that accused her of misconduct as a crime scene investigator. In response to HFSC's motion to dismiss under the Texas Citizens Participation Act ("TCPA"), Barette nonsuited her claims against HFSC. See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. The trial court denied the TCPA motion to dismiss, and HFSC filed this interlocutory appeal. See id. § 51.014(a)(12). On appeal, HFSC argues that its TCPA motion survived Barette's nonsuit because it requested attorney's fees, costs, expenses, and sanctions. HFSC also argues that the trial court erred by denying its motion to dismiss on the merits.

         Because we conclude that the trial court's order denying the motion to dismiss is void, we vacate the order and dismiss this appeal.

         Background

         HFSC is a local government corporation that was created by the City of Houston to operate an independent center for analysis of forensic evidence. Barette, who has a Ph.D. in Biological Anthropology, worked for HFSC as a crime scene investigator. HFSC asserts that it terminated her employment because she failed to follow policies regarding the equipment used to test evidence.

         After HFSC terminated Barette's employment, it issued a press release stating that a crime scene investigator had been terminated due to the use of testing equipment that led to false negative results. Later, employees of HFSC identified Barette to news organizations, which identified her by name in their reporting.

         Barette sued HFSC for defamation per se based on the press release. She denied the allegations in the press release and later news stories, asserting that they included multiple false statements. HFSC filed a combined plea to the jurisdiction and motion to dismiss Barette's claim for defamation per se under the TCPA. HFSC argued that Barette could not prove a prima facie case of defamation per se with clear and specific evidence. HFSC specifically challenged Barette's ability to show falsity, fault, and damages. HFSC also argued that it was entitled to dismissal under the TCPA because it was immune from intentional torts under the Texas Tort Claims Act ("TTCA"). HFSC requested "affirmative relief" of "court costs, reasonable attorney's fees, other expenses incurred in defending the claim as justice and equity may require," and sanctions.

         Three days after HFSC filed its combined motion, Barette amended her petition, dropping claims of defamation per se against HFSC and adding claims of defamation per se against four employees of HFSC. HFSC filed a supplemental brief on its pending TCPA motion to dismiss, arguing that its request for attorney's fees, costs, and expenses under the TCPA survived Barette's nonsuit.

         The trial court denied both the plea to the jurisdiction and the TCPA motion to dismiss, and HFSC appealed.

         Analysis

         On appeal, HFSC raises two issues, challenging only the trial court's ruling on the TCPA dismissal motion.

         The procedural posture of this case is unusual. In the trial court, HFSC challenged the same claim-defamation per se-by asserting both that the court lacked subject-matter jurisdiction due to governmental immunity and by asking the court to dismiss the claim and award attorney's fees, costs, expenses, and sanctions. When a court lacks subject matter jurisdiction because a party is "immune from a pending claim, any court decision regarding that claim is advisory to the extent it addresses issues other than immunity, and the Texas Constitution does not ...


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