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Rossa v. Mahaffey

Court of Appeals of Texas, Eleventh District

November 7, 2019

TOMMY ROSSA, Appellant
v.
STEVEN SETH MAHAFFEY, Appellee

          On Appeal from the 32nd District Court Nolan County, Texas Trial Court Cause No. 19935

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [4]

          OPINION

          JIM R. WRIGHT SENIOR CHIEF JUSTICE

         Appellant, Tommy Rossa, sued Appellee, Steven Seth Mahaffey, [1] for defamation. Mahaffey filed a motion to dismiss pursuant to the Texas Citizens Participation Act, see Tex. Civ. Prac. & Rem. Code Ann. ch. 27 (West 2015) (the TCPA).[2] The trial court granted the motion, dismissed the case with prejudice, and awarded Mahaffey $8, 500 for attorney's fees, court costs, and expenses incurred to defend against Rossa's legal action.

         In three issues, Rossa contends that the trial court erred when it granted the motion to dismiss because (1) Mahaffey failed to establish that Rossa's defamation claim was based on Mahaffey's exercise of a right protected by the TCPA, (2) Rossa established by clear and specific evidence a prima facie case for each essential element of the claim, and (3) Mahaffey failed to prove an affirmative defense by a preponderance of the evidence. We affirm the trial court's order to the extent that it dismissed Rossa's defamation claim based on statements made by Mahaffey in pleadings filed in a divorce proceeding and awarded Mahaffey attorney's fees, court costs, and expenses. We reverse the trial court's order to the extent that it dismissed Rossa's defamation claim based on statements made by Mahaffey to his parents and a family friend and remand that claim to the trial court for further proceedings.

         Background Facts

         Mahaffey was married to Rossa's daughter, Ashlyn. After Mahaffey and Ashlyn divorced, they exchanged possession of their child at a location between their residences. Rossa was present on September 3, 2017, when Mahaffey returned the child to Ashlyn. According to Mahaffey, he and Rossa had a verbal confrontation during which Rossa reached behind his back. Mahaffey knew that Rossa usually carried a gun behind his back and believed that Rossa was threatening to shoot him. Later that day, Mahaffey told his parents and Scotty Self, a family friend, "exactly what had occurred" and expressed his concerns for his and his child's safety.

         Mahaffey filed a motion to modify custody in the divorce case on September 8, 2017. In the motion, Mahaffey described the confrontation with Rossa on September 3, 2017, and requested that Ashlyn be prohibited from bringing Rossa to any exchange of possession of the child. Mahaffey filed an amended motion to modify custody in the divorce case on June 6, 2018. As relevant here, Mahaffey alleged (1) that Ashlyn had made statements to the child's treating physicians about the child's conduct that indicated potential abuse by Rossa and (2) that Rossa had "threaten[ed] to shoot" Mahaffey during an exchange of possession of the child. Mahaffey requested extensive modifications to his and Ashlyn's periods of possession of the child, including that Mahaffey be appointed the person with the exclusive right to designate the child's primary residence.

         On July 30, 2018, Rossa filed this suit against Mahaffey. Rossa alleged that Mahaffey had defamed him by publishing statements to "third parties" that Rossa had "placed his hand on a firearm and threatened Mahaffey with death or serious injury" and that Rossa had "physically abused" his grandchild. Rossa's petition did not specifically identify when, where, or to whom the allegedly defamatory statements were made.

         The parties engaged in written discovery. Specifically, Mahaffey requested that Rossa identify each person to whom Mahaffey made an allegedly defamatory statement and the date on which each statement was made. Without providing the requested information, Rossa responded on September 7, 2018, that he would "supplement his response" to the interrogatories.

         On September 14, 2018, Mahaffey responded to Rossa's interrogatories. In response to Rossa's request that Mahaffey identify all communications that he had about the incident during the exchange of possession of Mahaffey's child and about Rossa's relationship with Mahaffey's child, Mahaffey disclosed (1) that, on September 3, 2017, he told his parents and Self "exactly what had occurred" during the custody exchange and that he had discussed the incident with his parents on other occasions and (2) that he had discussed with his parents information in his child's medical records that indicated that Ashlyn told a pediatrician "what her mother had told her regarding [the child's] reaction when [Rossa] started changing clothes and took off his belt in front of [the child]."

         Mahaffey filed a motion to dismiss pursuant to the TCPA on September 25, 2018. Mahaffey asserted that Rossa's defamation claim arose from the statements made by Mahaffey in the motion to modify and the amended motion to modify filed in the divorce case and, therefore, was based on, related to, or in response to Mahaffey's exercise of the right to petition. In support of the motion, Mahaffey relied on the following: (1) his affidavit in which he stated that his interrogatory responses set out all communications that he had with anyone regarding the incident that occurred during the exchange of custody of his child or the information in his child's medical records; (2) the motion and amended motion to modify filed in the divorce case; (3) his responses to interrogatories; and (4) Rossa's responses to interrogatories.

         On September 28, 2018, Rossa supplemented his responses to Mahaffey's interrogatories and identified Mahaffey's parents and Self as persons to whom Mahaffey had made allegedly defamatory statements. Mahaffey filed a supplemental motion to dismiss on October 17, 2018, in which he argued that Rossa had failed to establish a prima facie case of each essential element of his defamation claim. Attached to the supplemental motion were Rossa's supplemental responses to interrogatories; the affidavits of Mahaffey's parents, in which they stated that Mahaffey had told them that he thought Rossa was "going to pull a gun on him" and that he had read in his child's medical records about the statements made by Ashlyn to the pediatrician about the child's response when Rossa removed his belt and that they had not discussed either incident with anyone other than Mahaffey's lawyer; and Self's affidavit, in which Self stated that Mahaffey had told Self about "his ex-wife's father making [Mahaffey] feel threatened and concerned about his safety and the safety" of his child and that Self discussed the incident only with his wife.

         Rossa filed a response to the motion to dismiss in which he asserted that Mahaffey's speculation that Rossa's defamation claim was based on statements made by Mahaffey in a pleading in the divorce case did not establish that the TCPA applied, that Mahaffey admitted making the allegedly defamatory statements to three people, that damages were not an essential element of a defamation per se claim, and that Mahaffey had failed to establish a valid defense to the claim. The only evidence offered by Rossa was his affidavit in which he stated that he had never threatened Mahaffey with death or serious injury during an exchange of the child between Ashlyn and Mahaffey and that he had never abused his grandchild in any way.

         In a reply in support of the motion to dismiss, Mahaffey argued that preliminary discovery showed that Rossa's pre-suit knowledge of the allegedly defamatory statements came solely from Mahaffey's pleadings in the divorce case. Mahaffey also argued that any statements that he made in the divorce case were absolutely privileged and could not constitute the basis of a defamation claim.

         The trial court granted Mahaffey's motion to dismiss. The trial court specifically found that Rossa's defamation claim was based on, related to, or in response to Mahaffey's exercise of the right to petition and that Rossa failed to establish by clear and specific evidence a prima facie case for each essential element of his claim. The trial court dismissed Rossa's defamation claim and awarded ...


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