Children's Lighthouse v. Davison

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CHILDREN'S LIGHTHOUSE, SPRING, Appellant, v. AMY DAVISON AND TORRI DAVISON, Appellees.

No. 13-22-00452-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

July 6, 2023

On appeal from the 284th District Court of Montgomery County Texas.

Before Chief Justice Contreras and Justices Benavides and Longoria

MEMORANDUM OPINION

DORI CONTRERAS, CHIEF JUSTICE

Appellant Children's Lighthouse, Spring (CLHS) challenges the trial court's dismissal of a business disparagement lawsuit it brought against appellees Amy and Torri Davison. CLHS argues by two issues that the court erred by: (1) determining that the Texas Citizens Participation Act (TCPA) applies to its suit, and (2) excluding certain evidence in determining whether to dismiss the suit pursuant to the TCPA. We affirm.^[1]

I. Background

CLHS is a children's daycare facility located in Spring, Texas. On May 6, 2022, CLHS filed suit against the Davisons alleging that they made false accusations of abuse and mistreatment by CLHS staff against their child. The petition stated that the Davisons made the allegedly disparaging comments in an email to the facility's director, in social media posts, and in a television interview. According to the petition, the Davisons' comments directly caused a drop in enrollment and caused CLHS to lose revenue. CLHS sought actual and exemplary damages and attorney's fees.

The Davisons filed a motion to dismiss under the TCPA on July 11 2022. On August 19, 2022, CLHS filed a motion for leave to file a response to the TCPA motion along with the proposed response itself, which was accompanied by various evidentiary exhibits. The Davisons then filed an objection to CLHS's motion for leave, as well as objections to the evidence attached to CLHS's response. After a hearing on August 26, 2022, the trial court signed an order: (1) overruling the Davisons' objection to CLHS's motion for leave to file a late response, (2) sustaining at least one objection as to each of CLHS's exhibits, (3) dismissing CLHS's suit, and (4) denying the Davisons' request for attorney's fees. This appeal followed.

II. Discussion

A. Applicable Law and Standard of Review

The TCPA is intended to "protect[] citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern." In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding). A party seeking dismissal under the TCPA has the initial burden to demonstrate that the "legal action is based on or is in response to . . . the party's exercise of: (A) the right of free speech; (B) the right to petition; or (C) the right of association." Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)(1). If the defendant meets this initial burden, then the plaintiff must establish by "clear and specific evidence a prima facie case for each essential element of the claim in question" to avoid dismissal. Id. § 27.005(c). Even if the plaintiff makes this showing, the trial court must nevertheless dismiss the action if the defendant "establishes an affirmative defense or other grounds on which the [defendant] is entitled to judgment as a matter of law." Id. § 27.005(d).

Our review of a ruling on a TCPA motion to dismiss is de novo. Entravision Commc'ns Corp. v. Salinas, 487 S.W.3d 276, 281 (Tex. App.-Corpus Christi-Edinburg 2016, pet. denied).

B. TCPA Applicability

By its first issue, CLHS argues that the Davisons did not meet their burden to obtain dismissal under the TCPA. In particular, it complains that the Davisons "offered no pleadings of their own, no affidavits or verifications, and no evidence allowable under a [Texas Rule of Civil Procedure] 166a standard to meet their burden . . . in proving that the cause was based on protected speech."

Both parties cite case law stating that a movant for dismissal under the TCPA must establish by "a preponderance of the evidence" that the claim at issue falls within the TCPA's purview. See Howard v. Matterhorn Energy, LLC, 628 S.W.3d 319, 328 (Tex. App.-Texarkana 2021, no pet.) ("Under the first step, '[t]he party moving for dismissal has the initial burden to establish by a preponderance of the evidence "that the legal action is based on . . . or is in response to the party's exercise of" the right of free speech, the right to petition, or the right of association.'"); see also Martin v. Hutchison, No. 06-19-00093-CV, 2020 WL 6788243, at *4 (Tex. App.-Texarkana Nov. 19, 2020, pet. denied) (mem. op.) (same) (citing MediaOne, L.L.C. v. Henderson, 592 S.W.3d 933, 939 (Tex. App.-Tyler 2019, pet. denied)). However, those cases relied on an earlier version of TCPA § 27.005(b) which is not applicable to this case. See Howard, 628 S.W.3d at 328; see also Martin, 2020 WL 6788243, at *4. In 2019, the statute was amended to remove the "preponderance of the evidence" language. See Act of May 20, 2019, 86th Leg., R.S., ch. 378, § 3 2019 Tex. Gen. Laws 684.

The amended version of § 27.005(b), which is applicable to this case, provides that the movant's initial burden is merely to "demonstrate[]" that the claim at issue is based on an exercise of one of the enumerated constitutional rights. See id. §§ 11, 12 (stating that the amended statute applies to all suits filed on or after September 1, 2019); Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). And, in determining whether a legal action is "subject to or should be dismissed under" the TCPA, a trial court is directed to "consider the pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil Procedure, and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a). Accordingly, it was not necessary for the Davisons to produce admissible evidence or verified pleadings in order to satisfy their initial burden. Instead, the court was permitted to consider the unverified pleadings in determining whether the TCPA applies. See id.

As noted, the Davisons alleged in their motion that CLHS's suit is based on their exercise of the rights of free speech and of association. The statute defines "exercise of the right of free speech" as "a communication made in connection with a matter of public concern"; while "exercise of the right of association" is defined as "to join together to collectively express, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of public concern." Id. § 27.001(2), (3). A "communication" includes "the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." Id. § 27.001(1). A "matter of public concern" is defined as

a statement or activity regarding:

(A) a public official, public figure, or other person who has drawn substantial public attention due to the person's official acts, fame, notoriety, or celebrity;

(B) a matter of political, social, or other interest to the community; or

(C) a subject of concern to the public.

Id. § 27.001(7).

CLHS's petition alleged in part that Amy Davison reported bruising on her child's back to CLHS management on October 27, 2020, and in response, CLHS "self-reported" the allegation to the Department of Family and Protective Services (the Department). According to the petition, Davison later informed CLHS that the bruising had actually been caused by a toy that was left in the child's car seat; CLHS relayed that information to the Department and the Department closed its investigation. The petition further alleged that video surveillance recordings from the daycare facility showed that the toy was still in the child's car seat on November 6 and 10, 2020. According to CLHS, Davison sent an email to CLHS's director on November 11, 2020, accusing a staff member of causing new bruises on the child. In the email, Davison also accused a CLHS staff member of forcefully moving the child to a changing table and grabbing the child by his arm. Davison then filed a report with police. According to the petition, neither the Montgomery County Sheriff's Department or the Department found any wrongdoing, and the Montgomery County District Attorney did not file any charges. However, the staff member involved was required to attend a training session on infant care.

According to CLHS's petition, in February 2021, Amy Davison posted messages on social media repeating the allegations against the CLHS staff member. CLHS further claimed that both Davisons made "several false statements" in an interview on a local television news program on May 13, 2021, including: (1) that the staff member "mishandled" and "abused" the child; (2) that the staff member "swung" the child around and "tossed him in the air"; and (3) that in November, the child had additional bruises similar to the ones he had on his back in October.

CLHS's petition complains of at least five statements by the Davisons which are "communications" under the TCPA (1) Amy's October 27, 2020 report of bruising to CLHS management; (2) her November 11, 2020 email to CLHS's director, reporting bruising and other physical mistreatment of the child; (3) her report of abuse to the Montgomery County Sheriff's Department; (4) her social media posts; and (5) the Davisons' May 13, 2021 television interview. These communications were each "made in connection with" the Davisons' efforts to report and publicize what they believed to be mistreatment of their child occurring at CLHS's facility. CLHS does not dispute that the issue of child abuse, even if allegedly committed in a privately-owned facility, is a matter of public concern. See id.; de la Torre v. de la Torre, 613 S.W.3d 307, 312 (Tex. App.- Austin 2020, no pet.) (concluding that statements involving "the welfare of a child and allegations of child...