Bob Deuell v. Texas Right to Life Committee, Inc.

Opinion issued September 15, 2016

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-15-00617-CV

———————————

BOB DEUELL, Appellant

V.

TEXAS RIGHT TO LIFE COMMITTEE, INC., Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Case No. 2014-32179

OPINION

In this interlocutory appeal, State Senator Bob Deuell challenges the trial

court’s denial of his motion to dismiss pursuant to the Texas Citizens Participation

Act (TCPA). Texas Right to Life Committee, Inc. (TRLC) sued Deuell for tortious

interference with contract after Deuell’s lawyers sent cease-and-desist letters to two

radio stations that had been airing TRLC’s political advertisements concerning

Deuell and the stations stopped airing the ads. Deuell argued that the lawsuit should

be dismissed under the TCPA because the letters were an exercise of his free speech

rights. The trial court denied the motion. We affirm.

Background

In March 2014, Deuell was a candidate in the Republican primary for re-

election as State Senator for Senate District 2, and he faced two challengers. None

of the candidates received the necessary votes to win the March primary election.

As a result, Deuell and one of the challengers, Bob Hall, faced each other in a run-

off election on May 27, 2014.

During the Eighty-Third Session of the Texas Legislature in 2013, Deuell had

authored Senate Bill 303, which related to advance directives. TRLC, an advocacy

political action committee, opposed SB 303. On May 6, 2014, during the run-off

election season, TRLC entered into a contract to secure the production of a radio

advertisement criticizing Deuell for his authorship of SB 303 and urging voters to

vote for Hall. TRLC secured airtime with two radio stations run by Cumulus Media

Dallas-Fort Worth and Salem Communications, which began airing the

advertisement. In relevant part, the advertisement said:

Before you trust Bob Deuell to protect life, please listen carefully. If

your loved one is in the hospital, you may be shocked to learn that a

faceless hospital panel can deny life-sustaining care . . . . Bob Deuell

sponsored a bill to give even more power to these hospital panels over

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life and death for our ailing family members. Bob Deuell turned his

back on life and on disabled patients.

On May 14, 2014, Deuell’s lawyers sent cease-and-desist letters to Cumulus

and Salem, urging that they cease airing the advertisement. In relevant part, the

letters, which were essentially identical, stated:

We represent the Honorable Texas State Senator Bob Deuell, and

we have become aware of defamatory advertisements published in

certain media outlets which were airing and re-airing a non-use

campaign ad by Texas Right to Life PAC (not a candidate ad).

These false and defamatory statements completely and totally

misrepresent Senator (and Medical Doctor) Deuell’s position on Patient

Protection and End of Life Legislation and completely and totally

misrepresent Senate Bill 303. Specific FALSE content of this ad

includes the following:

Defamation: - “Bob Deuell sponsored a bill to give even more power

to these hospital panels over life and death for our ailing family

members. Bob Deuell turned his back on life and on disabled patients.”

....

If your station has been running this ad, you are hereby put on

notice of the false and defamatory statements contained therein. Any

further publication of this ad will shift your conduct from reckless

disregard to intentional and actual malice. . . . .

THEREFORE, WE RESPECTFULLY DEMAND THAT YOU

IMMEDIATELY CEASE AND DESIST FROM

INTENTIONALLY DEFAMING TEXAS STATE SENATOR

BOB DEUELL BY REPUBLISHING THESE FASLE [SIC] AND

DEFAMATORY STATEMENTS BY RE-AIRING THE

ADVERTISEMENT, AS OUTLINED.

LITIGATION HOLD & PRESERVATION DEMAND

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You are hereby on notice and should have reason to believe that

litigation may result from the claims described above. . . . .

(Emphasis in original.) That same day, Cumulus and Salem notified TRLC “that

agents of Mr. Deuell had contacted them and that they were suspending the airing of

[TRLC’s] commercials based upon the legal threats made by Mr. Deuell.” TRLC

paid to produce a new advertisement that Cumulus and Salem agreed to air, and also

contracted with CBS Radio Texas for additional airtime to compensate for the lost

advertising time.

TRLC sued Deuell for tortious interference with contract and sought damages

for the expenses it incurred to produce the new advertisement and to buy additional

airtime with CBS Radio Texas. Deuell moved to dismiss the suit pursuant to the

TCPA, arguing that the cease-and-desist letters were an exercise of his right to free

speech, and that the suit was precluded by the affirmative defenses of judicial

privilege and illegal contract. TRLC responded that the TCPA did not apply, and

that even if it did, it satisfied its evidentiary burden to establish a prima facie case of

tortious interference with contract. After a hearing, the trial court denied the motion.

Discussion

In his first issue, Deuell contends that the trial court erred in denying his

motion to dismiss because he showed that TRLC’s tortious interference suit was

related to his exercise of his right of free speech, and TRLC failed to establish by

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clear and specific evidence a prima facie case for each essential element of its

tortious interference claim.

A. Standard of Review and Applicable Law

To obtain dismissal under the TCPA, a defendant must show “by a

preponderance of the evidence that the legal action is based on, relates to, or is in

response to the party’s exercise of the right of free speech; the right to petition; or

the right of association.” TEX. CIV. PRAC. & REM. CODE § 27.005(b). In deciding

whether to grant a motion under the TCPA and dismiss the lawsuit, the statute

instructs a trial court to “consider the pleadings and supporting and opposing

affidavits stating the facts on which the liability or defense is based.” Id. § 27.006.

If the movant meets its burden to show that a claim is covered by the TCPA,

to avoid dismissal of that claim, a plaintiff must establish “by clear and specific

evidence a prima facie case for each essential element of the claim in question.” Id.

§ 27.005(c). In In re Lipsky, 460 S.W.3d 579 (Tex. 2015), the Texas Supreme Court

clarified how this evidentiary standard should be applied. It wrote: “[M]ere notice

pleading—that is, general allegations that merely recite the elements of a cause of

action—will not suffice.” Id. at 590–91. “Instead, a plaintiff must provide enough

detail to show the factual basis for its claim.” Id. at 591. The Supreme Court noted

that “[i]n contrast to ‘clear and specific evidence,’ a ‘prima facie case’ has a

traditional legal meaning.” Id. at 590. “It refers to evidence sufficient as a matter

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of law to establish a given fact if it is not rebutted or contradicted.” Id. (citing

Simonds v. Stanolind Oil & Gas Co., 136 S.W.2d 207, 209 (Tex. 1940)). “It is the

‘minimum quantum of evidence necessary to support a rational inference that the

allegation of fact is true.’” Id. (citing In re E.I. DuPont de Nemours & Co., 136

S.W.3d 218, 223 (Tex. 2004) (per curiam)); see Newspaper Holdings, Inc. v. Crazy

Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex. App.—Houston [1st Dist.]

2013, pet. denied) (term “prima facie case” in the TCPA “implies a minimal factual

burden,” the “minimum quantum of evidence necessary to support a rational

inference that the allegation of fact is true”). Thus, for example, “[i]n a defamation

case that implicates the TCPA, pleadings and evidence that establish[] the facts of

when, where, and what was said, the defamatory nature of the statements, and how

they damaged the plaintiff should be sufficient to resist a TCPA motion to dismiss.”

Lipsky, 460 S.W.3d at 591.

If the nonmovant establishes a prima facie case, the burden shifts back to the

movant. In order to obtain dismissal, the movant must establish by a preponderance

of the evidence each essential element of a valid defense to the nonmovant’s claim.

TEX. CIV. PRAC. & REM. CODE § 27.005(d).

We review de novo a trial court’s ruling on a motion to dismiss under the

TCPA. Better Bus. Bur. of Metro. Houston, Inc. v. John Moore Servs., Inc., 441

S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). In conducting

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this review, we review the pleadings and evidence in a light favorable to the

nonmovant. Crazy Hotel, 416 S.W.3d at 80–81.

B. Did TRLC establish a prima facie case?

In his first issue, Deuell argues that the trial court erred in denying his motion

to dismiss because TRLC’s suit is related to Deuell’s exercise of his free speech

rights and TRLC failed to adduce clear and specific evidence to support each element

of its claim. TRLC argues that Deuell did not show that the suit is related to Deuell’s

exercise of his free speech rights, and, even if he did, TRLC satisfied its evidentiary

burden to establish a prima facie case. For purposes of this interlocutory appeal, we

will assume without deciding that the suit relates to Deuell’s exercise of his right of

free speech, because we agree with TRLC that it established a prima facie case of its

claim for tortious interference.

The essential elements of a tortious interference with contract claim are:

(1) the existence of a contract subject to interference, (2) the occurrence of an act of

interference that was willful and intentional, (3) that the act was a proximate cause

of the plaintiff's damage, and (4) that actual damage or loss occurred. Holloway v.

Skinner, 898 S.W.2d 793, 795–96 (Tex. 1995). Accordingly, we evaluate the

pleadings and evidence adduced in connection with the motion to dismiss to

determine whether TRLC established a prima facie case for each element of its

tortious interference claim by clear and specific evidence.

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1. Existence of contract subject to interference

TRLC adduced clear and specific evidence establishing a prima facie case of

the first element of its tortious interference claim: the existence of the two contracts

with which it alleges Deuell interfered. In an affidavit accompanying its response

to Deuell’s motion to dismiss, James J. Graham, the Executive Director of TRLC,

averred that “[o]n or about May 7, 2014, [TRLC] entered into a contract with

Cumulus Media Dallas-Fort Worth to secure airtime for [its] radio advertisements.”

Graham averred that TRLC paid approximately $17,935 pursuant to that contract.

Graham further averred that “[o]n or about May 8, 2014, [TRLC] entered into a

contract with Salem Communications to secure airtime for [its] radio

advertisements.” Graham averred that TRLC paid approximately $22,015 pursuant

to that contract. Graham further averred that Cumulus and Salem performed under

the contracts—they ran the advertisements that were the subject of the contracts—

until they each received cease-and-desist letters from Deuell on May 14.

Deuell contends that TRLC failed to satisfy its burden because it did not attach

the contracts themselves and because Graham’s affidavit is conclusory and includes

insufficient detail regarding the contracts’ terms. But Graham did not merely make

a conclusory statement that the two contracts existed. Cf. Lipsky, 460 S.W.3d at

592–93 (TCPA affidavit is conclusory when it fails to provide underlying facts).

Instead, Graham’s affidavit stated the two dates on which each of the contracts was

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made, identified the parties to each of the contracts, identified the consideration

TRLC paid Cumulus and Salem in exchange for their agreement to air the TRLC

advertisement, and averred that Cumulus and Salem performed by actually airing

the advertisement until May 14, the date Deuell sent the cease-and-desist letters.

This is evidence sufficient to support a rational inference that the contracts existed,

and this evidence was not rebutted or contradicted. See TEX. CIV. PRAC. & REM.

CODE § 27.005(c); Lipsky, 460 S.W.3d at 590 (prima facie case requires only

minimum quantum of evidence necessary to support rational inference that

allegation of fact is true); Crazy Hotel, 416 S.W.3d at 80 (same); Prime Prods., Inc.

v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002,

pet. denied) (valid contract includes offer, acceptance, meeting of the minds, each

party’s consent to terms, and execution and delivery, which can be shown by

evidence that parties treated contract as effective); see also Martin v. Bravenec, No.

04-14-00483-CV, 2015 WL 2255139, at *7 (Tex. App.—San Antonio, May 13,

2015, pet. denied) (affirming denial of TCPA motion to dismiss tortious interference

claim and holding that Bravenec met burden to establish existence of contract subject

to interference where pleadings alleged the existence of “a contract to sell” real

property and Bravenec “identified the name of the prospective purchaser at the

hearing”).

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Our dissenting colleague asserts that Graham’s affidavit “does not establish

the existence of a contract” because Graham did not present sufficient detail

regarding the contracts’ terms. But the cases on which the dissent relies do not

support reversal. In Better Business Bureau of Metropolitan Houston, our court

concluded that John Moore had not met its burden to adduce clear and specific

evidence of the existence of a contract where John Moore merely alleged that the

Bureau had interfered with John Moore’s customer contracts but “did not present

evidence regarding the terms” of any of the contracts it alleged existed between John

Moore and any of the individuals registering complaints on the Bureau’s website.

441 S.W.3d at 361. Similarly, in Serafine v. Blunt, 466 S.W.3d 352 (Tex. App.—

Austin 2015, no pet.), the Austin court noted that the Blunts’ evidence “indicate[d]

a possible contract” but concluded that the evidence was too vague and conclusory

to support a prima facie case of their tortious interference claim because the Blunts

neither attached a document memorializing their contract nor offered detail about

the contract’s terms. Id. at 361. This case is different because TRLC identified the

counterparties to the contracts—Cumulus and Salem—and adduced specific

evidence of the existence and material terms of the agreements: it agreed on May 7

and 8 to pay them $17,935 and $22,015, respectively, in exchange for airtime for

TRLC’s advertisement in advance of the May 27 run-off, and Cumulus and Salem

performed by running the advertisement until May 14, when they received Deuell’s

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cease-and-desist letter. See Prime Prods., Inc., 97 S.W.3d at 636 (existence of

contract may be shown by evidence that parties treated contract as effective).

Deuell also contends that, by failing to attach the contracts to its response,

TRLC fell short of its burden to demonstrate that the contracts are subject to

interference. See Holloway, 898 S.W.2d at 795–96 (noting first element of tortious

interference claim is existence of a contract subject to interference). Along the same

lines, our dissenting colleague asserts that Cumulus and Salem were obliged to

reserve for themselves the right to reject TRLC’s advertisements. He reasons that if

Cumulus and Salem had a right to suspend the advertisement, Deuell could not be

liable for interference because “inducing a contract obligor to do what it has a right

to do is not an actionable interference.” ACS Invs., Inc. v. McLaughlin, 943 S.W.2d

426, 431 (Tex. 1997).

We note, however, that TRLC did not bear the burden to disprove the

existence of Deuell’s potential defenses. Rather, it was Deuell who bore the burden

to prove a defense to TRLC’s tortious interference claim. TEX. CIV. PRAC. & REM.

CODE § 27.005(d) (moving party bears burden to establish by preponderance of

evidence each essential element of a defense to nonmovant’s claim). And, although

the TCPA permits discovery relevant to a section 27.003 motion, see TEX. CIV.

PRAC. & REM. CODE § 27.006(b), Deuell did not adduce evidence that any

cancellation or other terms of the contracts provided that Cumulus and Salem’s

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suspension of the advertisement would not amount to a breach. The contracts may

contain such a provision, but no evidence of such a provision is before us and,

accordingly, the potential existence of such a provision should not be the basis for

today’s decision.1

In sum, we conclude that TRLC met its burden to establish, by clear and

specific evidence, the existence of contracts subject to interference between TRLC

and Cumulus and Salem for the purchase of airtime for TRLC’s radio advertisement

concerning Deuell. See TEX. CIV. PRAC. & REM. CODE § 27.005(c); see also Lipsky,

460 S.W.3d at 590 (prima facie case requires only minimum quantum of evidence

necessary to support rational inference that allegation of fact is true); Crazy Hotel,

416 S.W.3d at 80 (same); Bravenec, 2015 WL 2255139, at *7 (burden satisfied

where pleadings alleged the existence of “a contract to sell” real property and

Bravenec “identified the name of the prospective purchaser at the hearing”).

2. Willful and intentional act of interference

TRLC also adduced clear and specific evidence establishing a prima facie case

of the second element of its tortious interference claim: a willful and intentional act

1

We express no opinion about the merits of a defense based on a cancellation or other

contract provision. We likewise express no opinion about the merits of the defense

of justification. See Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d

74, 80 (Tex. 2000) (justification is an affirmative defense to tortious interference

with contract; justification defense can be based on exercise of either one’s own

legal rights or a good-faith claim to a colorable legal right). Rather, we address only

the two defenses Deuell raised—judicial privilege and illegality—below.

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of interference. Graham averred that Cumulus and Salem both notified TRLC “that

agents of Mr. Deuell had contacted them and that they were suspending the airing of

our commercials based upon the legal threats made by Mr. Deuell.” Deuell attached

copies of the letters sent to Cumulus and Salem, which showed that Deuell

threatened to sue Cumulus and Salem unless they stopped airing the ads.

Deuell contends that this evidence does not satisfy TRLC’s burden because it

is not sufficiently clear and specific. In particular, Deuell complains that Graham’s

affidavit does not specify which individuals at Cumulus and Salem notified TRLC,

how they notified TRLC that the advertisements would be suspended, who at TRLC

received the notice, or what the exact content of the notice was. But the failure of

TRLC to adduce more detailed evidence does not negate the evidence—adduced by

Deuell—showing that Deuell’s lawyers contacted Cumulus and Salem and urged

them to stop airing the advertisements. The May 14th letters demanded that

Cumulus and Salem stop airing the advertisements, and Graham averred that

Cumulus and Salem did in fact stop running the advertisements on May 14th. This

is clear and specific evidence of a willful and intentional act of interference. Lipsky,

460 S.W.3d at 590 (prima facie case requires only minimum quantum of evidence

necessary to support rational inference that allegation of fact is true); see also

Browning–Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993) (evidence

showing defendant knowingly induced or intended contract obligor to stop

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performing under contract establishes actionable willful and intentional act of

interference).

Deuell also complains that Graham’s averments regarding interference

constitute hearsay. But Deuell failed to preserve this complaint because he did not

obtain a ruling on this objection from the trial court. See Wilson v. Gen. Motors

Acceptance Corp., 897 S.W.2d 818, 821–22 (Tex. App.—Houston [1st Dist.] 1994,

no writ) (hearsay in affidavit is defect in form); Vice v. Kasprzak, 318 S.W.3d 1, 11

(Tex. App.—Houston [1st Dist.] 2009, pet. denied) (objection to defect in form is

waived if no ruling secured). Additionally, the TCPA expressly contemplates

consideration of affidavits. See TEX. CIV. PRAC. & REM. CODE § 27.006 (“In

determining whether a legal action should be dismissed under this chapter, the court

shall consider the pleadings and supporting and opposing affidavits stating the facts

on which the liability or defense is based.”).

Thus, considering all the evidence in a light favorable to TRLC as the

nonmovant, TRLC met its burden to establish a prima facie case of a willful and

intentional act of interference by clear and specific evidence. See TEX. CIV. PRAC.

& REM. CODE § 27.005(c); see also Lipsky, 460 S.W.3d at 590 (prima facie case

requires only minimum quantum of evidence necessary to support rational inference

that allegation of fact is true); Crazy Hotel, 416 S.W.3d at 80 (same).

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3. Interfering act proximately caused plaintiff’s actual damage or loss

Finally, TRLC adduced clear and specific evidence establishing a prima facie

case of the third and fourth elements of its tortious interference claim—that the

interfering act proximately caused TRLC actual damage or loss. Graham averred

that after TRLC learned that Cumulus and Salem were no longer running its

advertisements based upon the letters from Deuell’s lawyers, TRLC “contacted our

legal counsel who immediately contacted Cumulus . . . and Salem . . . in an attempt

to resume our radio advertisements airing.” Graham goes on to aver that Cumulus

and Salem “were informed by counsel for [TRLC] that we considered the efforts of

Mr. Deuell to be tortious interference with our existing contract and a violation of

our right to engage in political speech.” However, when Cumulus and Salem did

not resume airing the advertisements, TRLC “agreed to produce a new radio

advertisement and replace the original radio advertisement suspended due to the

threats of Mr. Deuell.” Graham further averred:

Recognizing that Mr. Deuell’s interference had disrupted the timing

and effectiveness of the radio advertisements originally contemplated

by [TRLC], the organization recognized that it needed to take remedial

measures to make up for the lost advertising time so it contracted with

CBS Radio Texas for additional airtime in the Dallas/Ft Worth media

market for the new radio advertisement. [TRLC] paid approximately

$15,037 for the placement and airing of the new radio advertisements

with CBS Radio Texas.

Thus, TRLC met its burden to adduce a prima facie case by clear and specific

evidence that Deuell’s act caused it actual damage or loss, in the form of costs to

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produce a new radio advertisement and to procure additional airtime to make up for

time the original advertisement had been suspended.

Deuell and our dissenting colleague assert that TRLC was required to adduce

more specific evidence about its damages, such as the number of instances in which

the original advertisements were scheduled to but did not air, the content of the

replacement advertisements, the number of times CBS Radio Texas aired the

advertisements, and whether the advertisements were targeted at the same audience

or time spots as the Cumulus and Salem advertisements. But the TCPA does not

impose such a requirement. While this evidence could be necessary or at least useful

at an eventual trial on the merits, a TCPA nonmovant is not required to adduce all

of the evidence that they would, or could, need at trial. Lipsky, 460 S.W.3d at 590–

91 (pleadings and evidence showing factual basis for claim is sufficient to meet

TCPA burden). Under the TCPA, TRLC only had to adduce evidence supporting a

rational inference as to the existence of damages, not their amount or constitutent

parts. Id. at 590 (TCPA nonmovant only required to adduce evidence to support

rational inference that allegation of fact is true). When we consider the evidence

described above in a light favorable to the nonmovant TRLC, as we are required to

do, that evidence, which was not rebutted or contradicted, is sufficient to support a

rational inference that the advertisements were discontinued as a result of Deuell’s

communications and that TRLC incurred specific costs to replace the contracted-for

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advertising services. See id. (evidence may be direct or circumstantial and need only

show factual basis for claim); Crazy Hotel, 416 S.W.3d at 80–81 (prima facie case

requires only minimum quantum of evidence necessary to support rational inference

that allegation of fact is true). We therefore conclude that TRLC met its burden to

adduce clear and specific evidence that the allegedly interfering act caused it actual

damage or loss.

In summary, we hold that TRLC proved, by clear and specific evidence, a

prima facie case supporting its tortious interference with contract claim.

We overrule Deuell’s first issue.

C. Did Deuell establish the affirmative defense of judicial privilege?

In his second issue, Deuell contends that even if TRLC met its burden to prove

a prima face case, the trial court erred by failing to grant his motion to dismiss

because he established the affirmative defense of judicial privilege by a

preponderance of the evidence. Specifically, Deuell argued that Deuell’s lawyers’

letters to Cumulus and Salem were subject to the absolute judicial privilege, because

they were made in contemplation of a judicial proceeding.

1. Applicable law

The judicial privilege applies to bar claims that are based on communications

related to a judicial proceeding that seek defamation-type damages in name or in

substance, i.e., damages for reputational harm. Communications made in the course

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of a judicial proceeding are absolutely privileged and will not serve as the basis of a

civil action for libel, slander, or business disparagement, regardless of the negligence

or malice with which they are made. See James v. Brown, 637 S.W.2d 914, 916

(Tex. 1982); Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942).

This privilege extends to any statements made by the judges, jurors, counsel, parties,

or witnesses and attaches to all aspects of the proceedings, including statements

made in open court, pre-trial hearings, depositions, affidavits, and any pleadings or

other papers in the case. James, 637 S.W.2d at 916–917.

Judicial privilege also extends to statements made in contemplation of and

preliminary to judicial proceedings. See Watson v. Kaminski, 51 S.W.3d 825, 827

(Tex. App.—Houston [1st Dist.] 2001, no pet.); see also Thomas v. Bracey, 940

S.W.2d 340, 342–43 (Tex. App.—San Antonio 1997, no writ); Russell v. Clark, 620

S.W.2d 865, 869 (Tex. Civ. App.—Dallas 1981, writ ref’d n.r.e.). To trigger the

privilege, “there must be a relationship between the correspondence and the

proposed or existing judicial proceeding, which decision is made by considering the

entire communication in context, resolving all doubts in favor of its relevancy.”

Crain v. Smith, 22 S.W.3d 58, 62 (Tex. App.—Corpus Christi 2000, no pet.); see

also Krishnan v. Law Offices of Preston Henrichson, P.C., 83 S.W.3d 295, 302–03

(Tex. App.—Corpus Christi 2002, pet. denied) (no requirement that actual lawsuit

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be filed in order for judicial privilege to apply; only that statements are related to a

contemplated judicial proceeding).

However, the judicial privilege does not apply to every type of claim.

Originally, the judicial privilege provided protection only from defamation claims,

including slander and libel. See Bird v. W.C.W., 868 S.W.2d 767, 771 (Tex. 1994).2

In Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994), the Texas Supreme Court held that

the privilege should apply in cases in which a party seeks damages that flow from

alleged reputational harm, regardless of the type of claim alleged. Id. at 772. The

Bird Court extended the privilege to a claim for negligent misdiagnosis, noting that

the damages being sought were “basically defamation damages.” Id.

In Bird, a father brought a negligent misdiagnosis claim against a psychologist

who had erroneously concluded, and averred in a family court proceeding, that the

father had sexually abused his son. Id. The father sought damages for emotional

harm and financial damage. Id. The Texas Supreme Court concluded that “the

essence of the father’s claim is that it was [the psychologist’s] communication of her

diagnosis that caused him emotional harm and related financial damages.” Id. at

768–69 (emphasis in original). Because the psychologist’s communications were

2

Judicial privilege was also extended to actions based upon the filing of a lis pendens.

See Griffin v. Rowden, 702 S.W.2d 692, 695 (Tex. App.—Dallas 1985, writ ref’d

n.r.e.) (judicial privilege applied to tortious interference suit based upon filing of lis

pendens). There is no lis pendens at issue in this case.

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made during the course of a judicial proceeding and the father’s damages flowed

from reputational harm caused by those communications, the Supreme Court held

that the judicial privilege applied, and rendered judgment in favor of the

psychologist. Id. at 772.

Following Bird, courts have applied the privilege to claims other than libel,

slander, and defamation, including tortious interference. But they have done so only

“when the essence of a claim is damages that flow from communications made in

the course of a judicial proceeding” and the plaintiff seeks reputational damages. See

Laub v. Pesikoff, 979 S.W.2d 686, 691 (Tex. App.—Houston [1st Dist.] 1998, writ

denied) (applying privilege to husband’s claims against wife’s psychotherapists who

offered affidavits in divorce proceeding regarding wife’s mental state; finding that

claims for tortious interference with contract, civil conspiracy, and intentional

infliction of emotional distress in addition to libel and slander were barred by judicial

privilege because “the essence of each of these claims is that [husband] suffered

injury as a result of the communication of allegedly false statements during a judicial

proceeding” and husband claimed damages were essentially defamation damages)

(emphasis in original); see Crain v. Unauthorized Practice of Law Comm. of

Supreme Court of Tex., 11 S.W.3d 328, 335 (Tex. App.—Houston [1st Dist.] 1999,

pet. denied) (applying Laub; judicial privilege applied to plaintiff’s tortious

interference with contract claim against chair of UPLC subcommittee because claim

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sought defamation damages under different label). Whether a claim is subject to

judicial privilege is a question of law. See Thomas v. Bracey, 940 S.W.2d 340, 343

(Tex. App.—San Antonio 1997, no pet.).

2. Analysis

We conclude that TRLC’s tortious interference claim is not protected by the

absolute judicial privilege, because TRLC does not seek to recover reputational or

defamation-type damages.3 To the contrary, TRLC seeks direct and consequential

contract damages that allegedly flowed from Deuell’s sending cease-and-desist

letters to Cumulus and Salem.

Deuell asserts that the judicial privilege forecloses TRLC’s suit, arguing that

judicial privilege categorically applies to tortious interference claims that are based

upon letters sent by a lawyer threatening litigation. But no Texas court has extended

the judicial privilege this far, and Bird made clear that the purpose of the privilege

is to foreclose claims for reputational damages, regardless of the label the claim is

given. See Bird, 868 S.W.2d at 772.

3

Deuell argues that TRLC’s failure to address judicial privilege and illegal contract

in response to his motion to dismiss means that he established these defenses by a

preponderance of the evidence and that TRLC has waived any argument regarding

these defenses on appeal. But it was Deuell, the movant, who bore the burden to

establish each essential element of a valid affirmative defense by a preponderance

of the evidence. See TEX. CIV. PRAC. & REM. CODE § 27.005(d). This holds true

regardless of TRLC’s response. See id.

21

The cases on which Deuell relies do not support his argument. For example,

in Laub v. Pesikoff, 979 S.W.2d 686 (Tex. App.—Houston [1st Dist.] 1998, pet.

denied), Laub sued his wife’s treating psychotherapists for libel, slander, intentional

infliction of emotional distress, conspiracy, and tortious interference after they

averred in summary-judgment affidavits that Laub physically abused his wife. Id.

at 688–89. The trial court granted summary judgment on the ground that Laub’s suit

was barred by the judicial privilege. Id. at 689. On appeal, this Court affirmed,

reasoning that the judicial privilege applied because the essence of Laub’s claims

was that he suffered injury as a result of the communication of allegedly false

statements during a judicial proceeding and Laub sought damages for reputational

injury. Id. at 691–92.

Similarly, in Crain, Crain, a non-lawyer, operated a debt collection business

in which he filed lien affidavits. 11 S.W.3d at 331. The Unauthorized Practice of

Law Committee (UPLC) investigated, and Lehmann, the chairman of the Houston

subcommittee of the UPLC, testified against Crain. Id. at 335. Crain sued Lehmann,

asserting that Lehmann’s testimony constituted tortious interference with Crain’s

business. Id. at 331–32. Implicit in Crain’s claims was that Lehmann’s testimony

harmed Crain’s reputation. See id. In light of the fact that Crain sought to recover

for reputational injury, this court affirmed the summary judgment in the UPLC’s

favor based on the judicial privilege.

22

Finally, in Crain v. Smith, 22 S.W.3d 58 (Tex. App.—Corpus Christi 2000,

no pet.), Smith, a lawyer, sent Crain a letter on behalf of Smith’s client, advising

Crain of her discovery that Crain had been charged with unauthorized practice of

law and demanding payment for her client’s damages resulting from the filing of a

lien. Id. at 59. Crain sued Smith for libel, slander, and tortious interference with

contract to recover for the alleged harm to his reputation. Id. Smith obtained a

summary judgment on the basis that her letter was subject to judicial privilege, and

the Corpus Christi Court of Appeals affirmed. Id. at 63.

These authorities demonstrate, consistent with Bird, that the judicial privilege

may apply to various claims, regardless of the label they are given, but only if the

damages sought are essentially defamation or reputational damages. See Crain, 11

S.W.3d at 335 & n.1; Laub, 979 S.W.2d at 691–92.4 Here, the live pleadings and

evidence reflect that TRLC does not seek defamation or reputational damages, and

we thus conclude that the judicial privilege does not apply to TRLC’s tortious

4

Deuell also relies upon Griffin v. Rowden, 702 S.W.2d 692 (Tex. App.—Dallas

1985, writ ref’d n.r.e.), in which the court of appeals held that judicial privilege

applied to a tortious interference claim that was based upon the filing of a lis

pendens. Id. at 695. Griffin is inapposite here because there is no lis pendens at

issue. See id. at 694; see also Prappas v. Meyerland Cmty. Improvement Ass’n, 795

S.W.2d 794, 796 (Tex. App.—Houston [14th Dist.] 1990, writ denied) (recognizing

that Griffin turned specifically on consideration of lis pendens).

23

interference claim. Accordingly, we hold that the trial court did not err in concluding

that Deuell should not prevail based upon that defense.

We overrule Deuell’s second issue.

D. Did Deuell establish the affirmative defense of illegality?

In his third issue, Deuell contends that even if TRLC met its burden to prove

a prima face case of tortious interference, the trial court erred by failing to grant his

motion to dismiss because he established the affirmative defense of illegality by a

preponderance of the evidence. Deuell argues that TRLC’s advertisements violated

section 255.001 of the Texas Election Code, and therefore, the contracts to air the

advertisements were illegal. Accordingly, Deuell argues that TRLC cannot maintain

its suit because a defendant cannot be held liable for tortiously interfering with an

illegal contract. See GNG Gas Sys., Inc. v. Dean, 921 S.W.2d 421, 427 (Tex. App.—

Amarillo 1996, writ denied) (if performance of contract will result in violation of

Constitution, statute, or ordinance, contract is illegal); Flynn Bros. v. First Med.

Assocs., 715 S.W.2d 782, 785 (Tex. App.—Dallas 1986, writ ref’d n.r.e.) (when

party sues based upon illegal contract, courts do not entertain suit); see also Lewis

v. Davis, 199 S.W.2d 146, 148–49 (Tex. 1947) (contract to do thing which cannot

be performed without violation of law is void).

Section 255.001 of the Election Code was enacted in 1987 and required

certain disclosures be made regarding, among other things, the identity of the person

24

paying for political advertisements. In 2003, the Court of Criminal Appeals held

that section 255.001 violated the First Amendment of the United States Constitution.

See Doe v. State, 112 S.W.3d 532, 534 (Tex. Crim. App. 2003). Deuell

acknowledged at oral argument that section 255.001 is not a basis for reversal. We

therefore conclude that Deuell did not establish the affirmative defense of illegality.

See id. Accordingly, we hold that the trial court did not err in concluding that Deuell

should not prevail based upon the affirmative defense of illegal contract.5

We overrule Deuell’s third issue.

Conclusion

We affirm the trial court’s order. We dismiss as moot Deuell’s motion for

leave to file a supplement to his appellant’s brief.

Rebeca Huddle

Justice

Panel consists of Justices Jennings, Bland, and Huddle.

Jennings, J., dissenting.

5

TRLC argues that Deuell waived his affirmative defenses by failing to include them

in his answer. Because we have determined that Deuell did not carry his burden on

either of the defenses he raised on appeal, we do not reach the question of whether

Deuell was required to plead the affirmative defenses in order to prevail on his

TCPA motion to dismiss.

25