After Ricky Holland suffered injuries from taking medication, he convinced a law firm to bring a lawsuit on his behalf against the drug manufacturer.  That lawsuit went nowhere, and actually led to the law firm suing the Hollands for fraudulently inducing them to take his case. The Hollands countersued, bringing a claim for intentional infliction of emotional distress based on the lawsuit the law firm filed against them.

The trial court dismissed the Hollands’ IIED claim because it was inapplicable in light of the other claims they had pleaded.  On appeal, the Court of Appeals reversed the trial court because plaintiffs are permitted to plead claims in the alternative.  The Court also refused to consider the law firm’s additional argument that the claim fails because it was based on statements made in its lawsuit and thus protected by an absolute privilege.

The Texas Citizens Participation Act continues to be a fruitful source of appellate activity. In this instance, the Court of Appeals has reversed the trial court’s order denying a motion to dismiss in a case arising out of a bad review on Angie’s List. Barbara Young hired Perennial Properties to construct an outdoor living space at her home, but Young claimed that Perennial failed to perform its work as required. McKinney Lumber Company then filed a lien against Young’s property for $9,779 in lumber that Perennial had failed to pay for. After the lumber company sued everyone involved, Young wrote up her experience in an online review, giving Perennial an overall grade of “F” and describing Perennial’s owners as incompetent crooks. Those owners then intervened in the lawsuit in order to sue Young and her attorney for defamation and intentional infliction of emotional distress.

The Court of Appeals first held that Young had met her initial burden of showing that the online review was an exercise of her right to free speech because it was a communication made to the public in connection with a good, product, or service. That brought it within the scope of the TCPA and shifted the burden to Perennial’s owners to establish by clear and specific evidence a prima facie case for each element of their claims. That they failed to do, according to the Court of Appeals. The defamation claim failed because the owners had not provided any evidence that the allegedly false statements were defamatory (as opposed to non-actionable opinions) or that Young had been negligent in making them. The intentional infliction of emotional distress claim failed because that cause of action is only a “gap-filler” tort, and there were no different or distinguishing facts from the defamation claim to permit it to proceed separately. The Court of Appeals therefore dismissed both claims and remanded the case for further proceedings under the TCPA, presumably to consider an award of attorney fees to Young.

Young v. Krantz, No. 05-13-00853-CV

Southwestern Christian College fired its track coach after he allowed two ineligible athletes to run in a meet.  Later, when the college’s track program got audited, the athletic director chose not to respond and accepted a ban from that year’s national championship, because the penalty for running ineligible athletes would have been worse than the penalty for failing to respond to an audit request.  The athletic director then told the track team that the reason they could not compete in the national championship meet was because the coach ran ineligible athletes.  The coach disputed that explanation.  He claimed that the audit and resulting ban were due to the athletic director’s failure to submit certain forms.

The coach sued the college, the athletic director, and the college’s president, alleging, among other things, that the athletic director and college president had made slanderous statements that tarnished his reputation in the track and field community and prevented him from getting another job.  The trial court granted the defendants’ motion for summary judgment and dismissed all of the coach’s claims.  The Court of Appeals, however, reversed the trial court’s dismissal of the coach’s slander claims against the college and the athletic director, finding that the coach had raised a material fact issue as to the truth of the athletic director’s statements to the track team.

Porter v. Southwestern Christian College, No. 05-12-01737-CV

Raymundo Rico was fired after being accused of sexually assaulting a co-worker at L-3 Communications. He was acquitted on the criminal charges, and subsequently brought suit against L-3 and his accuser for intentional infliction of emotional distress and malicious prosecution. The trial court granted summary judgment for the defendants, and the Court of Appeals affirmed. The Court rejected Rico’s claim that he should receive the benefit of an adverse presumption due to the defendants’ alleged failure to preserve security videos, as he had not moved to compel any discovery on those tapes. On  the malicious prosecution claim, the Court concluded that there was no evidence in the summary judgment record to negate the legal presumption that a person who reports a crime does so in good faith and with probable cause. Likewise, the Court held that there was no evidence of extreme and outrageous conduct for the intentional infliction of emotional distress claim because Rico did not have evidence that the complainant had not honestly believed she had been a victim of assault when she reported it to the police.

Rico v. L-3 Communications Corp., No. 05-12-01099-CV