Does this Houston personal injury attorney beg to be SLAPPed or what? Ivey Law Firm P.C. sues over unfavorable Google review (UPDATED)

12/29/2017 UPDATE: Mr Jack Todd Ivey non-suited this lawsuit on November 27, 2017 without prejudice to refiling. The Defendant had not yet been served when the presiding judge of the 157th District Court signed the dismissal order. 

Would you hire a lawyer if you knew that he would sue you for libel if you were dissatisfied with his services and said so in a public forum? 

A new low for the personal injury bar: Houston attorney Jack Todd Ivey sues poster of unfavorable customer review (apparently a family member of an unhappy former client) on per-se defamation theory, claiming to have been harmed by having his firm called "a fraud" in a Google review of his lawfirm. Let me suggest that the lawsuit will do more harm to the firm's reputation than the negative review, not to mention raising questions as to whether the positive reviews are genuine, and not manufactured or facilitated. 

Here is a screen shot of the Google Review and the owner's (Ivey's) response:

Lawsuit with textbook-example potential of how not to do law firm PR 

ALSO OF INTEREST: TEXAS ANTI-SLAPP STATUTE

The TCPA is often characterized as an "anti-SLAPP" statute, i.e., a means by which defendants targeted by "Strategic Lawsuits Against Public Participation," or SLAPP, suits can move for dismissal of such lawsuits. See id. § 27.002; see, e.g., Serafine v. Blunt (Serafine I), 466 S.W.3d 352, 365-67 (Tex. App.-Austin 2015, no pet.) (Pemberton, J., concurring) (summarizing TCPA legislative history and emphasis on "anti-SLAPP" concerns). The TCPA allows a motion to dismiss a "legal action" that is "based on, relates to, or is in response to a party's exercise of," as relates to this appeal, "the right of free speech." Tex. Civ. Prac. & Rem. Code § 27.003(a). The Act defines "the exercise of the right of free speech" as "a communication made in connection with a matter of public concern." Id. § 27.001(3). A "matter of public concern" is defined as, relevant to this appeal, "an issue related to . . . a good [or] product . . . in the marketplace." Id. § 27.001(7)(E). A "`[c]ommunication' 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). The Texas Supreme Court has held that the Act protects both public and private communications. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2016) (per curiam) (explaining its holding in Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam)).

In enacting the TCPA, the legislature explained that its overarching purpose is "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." Tex. Civ. Prac. & Rem. Code § 27.002. "To effectuate the statute's purpose, the Legislature has provided a two-step procedure to expedite the dismissal of claims brought to intimidate or to silence a defendant's exercise of these First Amendment rights." Coleman, 512 S.W.3d at 898. In the first step, the party filing a motion to dismiss under section 27.003 of the TCPA bears the burden to show by a "preponderance of the evidence" that the "legal action" is "based on, relates to, or is in response to," as relevant to this appeal, the party's "exercise of the right of free speech." Tex. Civ. Prac. & Rem. Code §§ 27.003(a), .005(b); Coleman, 512 S.W.3d at 898. If the movant satisfies this burden, the trial court must dismiss the lawsuit unless the nonmovant "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question." Tex. Civ. Prac. & Rem. Code § 27.005(c); see Coleman, 512 S.W.3d at 899. Even when the nonmovant meets this burden, however, the trial court still must dismiss the lawsuit if the movant "establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claims." Tex. Civ. Prac. & Rem. Code § 27.005(d); see Coleman, 512 S.W.3d at 899. In determining whether to dismiss an action, the trial court must consider "the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Tex. Civ. Prac. & Rem. Code § 27.006(a); see Serafine I,466 S.W.3d at 357.

CIVIL PRACTICE AND REMEDIES CODE

TITLE 2. TRIAL, JUDGMENT, AND APPEAL

SUBTITLE B. TRIAL MATTERS

CHAPTER 27.  ACTIONS INVOLVING THE EXERCISE OF CERTAIN CONSTITUTIONAL RIGHTS

Sec. 27.001.  DEFINITIONS.  In this chapter:
(1)  "Communication" includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.
(2)  "Exercise of the right of association" means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.
(3)  "Exercise of the right of free speech" means a communication made in connection with a matter of public concern.
(4)  "Exercise of the right to petition" means any of the following:
(A)  a communication in or pertaining to:
(i)  a judicial proceeding;
(ii)  an official proceeding, other than a judicial proceeding, to administer the law;
(iii)  an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government;
(iv)  a legislative proceeding, including a proceeding of a legislative committee;
(v)  a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity;
(vi)  a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or indirectly from public revenue;
(vii)  a proceeding of the governing body of any political subdivision of this state;
(viii)  a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi), or (vii); or
(ix)  a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting;
(B)  a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;
(C)  a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;
(D)  a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and
(E)  any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state.
(5)  "Governmental proceeding" means a proceeding, other than a judicial proceeding, by an officer, official, or body of this state or a political subdivision of this state, including a board or commission, or by an officer, official, or body of the federal government.
(6)  "Legal action" means a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.
(7)  "Matter of public concern" includes an issue related to:
(A)  health or safety;
(B)  environmental, economic, or community well-being;
(C)  the government;
(D)  a public official or public figure; or
(E)  a good, product, or service in the marketplace.
(8)  "Official proceeding" means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant.
(9)  "Public servant" means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if the person has not yet qualified for office or assumed the person's duties:
(A)  an officer, employee, or agent of government;
(B)  a juror;
(C)  an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy;
(D)  an attorney or notary public when participating in the performance of a governmental function; or
(E)  a person who is performing a governmental function under a claim of right but is not legally qualified to do so.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.


Sec. 27.002.  PURPOSE.  The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.


Sec. 27.003.  MOTION TO DISMISS.  (a)  If a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.
(b)  A motion to dismiss a legal action under this section must be filed not later than the 60th day after the date of service of the legal action.  The court may extend the time to file a motion under this section on a showing of good cause.
(c)  Except as provided by Section 27.006(b), on the filing of a motion under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.


Sec. 27.004.  HEARING.  (a)  A hearing on a motion under Section 27.003 must be set not later than the 60th day after the date of service of the motion unless the docket conditions of the court require a later hearing, upon a showing of good cause, or by agreement of the parties, but in no event shall the hearing occur more than 90 days after service of the motion under Section 27.003, except as provided by Subsection (c).
(b)  In the event that the court cannot hold a hearing in the time required by Subsection (a), the court may take judicial notice that the court's docket conditions required a hearing at a later date, but in no event shall the hearing occur more than 90 days after service of the motion under Section 27.003, except as provided by Subsection (c).
(c)  If the court allows discovery under Section 27.006(b), the court may extend the hearing date to allow discovery under that subsection, but in no event shall the hearing occur more than 120 days after the service of the motion under Section 27.003.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1042 (H.B. 2935), Sec. 1, eff. June 14, 2013.


Sec. 27.005.  RULING.  (a)  The court must rule on a motion under Section 27.003 not later than the 30th day following the date of the hearing on the motion.
(b)  Except as provided by Subsection (c), on the motion of a party under Section 27.003, a court shall dismiss a legal action against the moving party if the moving party shows 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:
(1)  the right of free speech;
(2)  the right to petition; or
(3)  the right of association.
(c)  The court may not dismiss a legal action under this section if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.
(d)  Notwithstanding the provisions of Subsection (c), the court shall dismiss a legal action against the moving party if the moving party establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1042 (H.B. 2935), Sec. 2, eff. June 14, 2013.


Sec. 27.006.  EVIDENCE.  (a)  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.
(b)  On a motion by a party or on the court's own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.


Sec. 27.007.  ADDITIONAL FINDINGS.  (a)  At the request of a party making a motion under Section 27.003, the court shall issue findings regarding whether the legal action was brought to deter or prevent the moving party from exercising constitutional rights and is brought for an improper purpose, including to harass or to cause unnecessary delay or to increase the cost of litigation.
(b)  The court must issue findings under Subsection (a) not later than the 30th day after the date a request under that subsection is made.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.


Sec. 27.008.  APPEAL.  (a)  If a court does not rule on a motion to dismiss under Section 27.003 in the time prescribed by Section 27.005, the motion is considered to have been denied by operation of law and the moving party may appeal.
(b)  An appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 or from a trial court's failure to rule on that motion in the time prescribed by Section 27.005.
(c)  Repealed by Acts 2013, 83rd Leg., R.S., Ch. 1042, Sec. 5, eff. June 14, 2013.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1042 (H.B. 2935), Sec. 5, eff. June 14, 2013.


Sec. 27.009.  DAMAGES AND COSTS.  (a)  If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party:
(1)  court costs, reasonable attorney's fees, and other expenses incurred in defending against the legal action as justice and equity may require; and
(2)  sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.
(b)  If the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney's fees to the responding party.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.


Sec. 27.010.  EXEMPTIONS.  (a)  This chapter does not apply to an enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney.
(b)  This chapter does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.
(c)  This chapter does not apply to a legal action seeking recovery for bodily injury, wrongful death, or survival or to statements made regarding that legal action.
(d)  This chapter does not apply to a legal action brought under the Insurance Code or arising out of an insurance contract.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 1042 (H.B. 2935), Sec. 3, eff. June 14, 2013.


Sec. 27.011.  CONSTRUCTION.  (a)  This chapter does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions.
(b)  This chapter shall be construed liberally to effectuate its purpose and intent fully.

Added by Acts 2011, 82nd Leg., R.S., Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011.

CONSUMER INFO & WEB LIBEL: Negative Product Review Survives Defamation and Biz Disparagement Suit

SHODDY-PRODUCT LIBEL SUIT FAILS UNDER "THE GIST" TEST

First Court of Appeals rules for publisher of critical review of company's product on the Internet, finding that the defamation and business disparagement claims could not succeed under the "substantial truth" defense.

FROM THE OPINION BY JUSTICE TERRY JENNINGS

in David Rafes, Inc. v. Michael Huml and Slowboy Racing, Inc. (Tex.App.- Houston, 10/29/09)

To maintain a cause of action for defamation, a plaintiff must establish that the defendant (1) published a statement about the plaintiff; (2) that was defamatory; (3) while acting with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement. WFAA-TV v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Henriquez v. Cemex Management, Inc., 177 S.W.3d 241, 251 (Tex. App.--Houston [1st Dist.] 2005, pet. denied); Grotti v. Belo Corp., 188 S.W.3d 768, 774 (Tex. App.--Fort Worth 2006, pet. denied). "The truth of the statement in the publication on which an action for libel is based is a defense to the action." Tex. Civ. Prac. & Rem. Code Ann. § 73.005 (Vernon 2005).

A defendant may also defeat a libel claim by establishing the substantial truth of the statement. Grotti, 188 S.W.3d at 774 (citing McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990)). To determine if a publication is substantially true, "we consider whether the alleged defamatory statement was more damaging to the plaintiff's reputation, in the mind of the average person, than a truthful statement would have been," and "[w]e look at the 'gist' of the publication "to determine whether it is substantially true." Id. (citations omitted). The defense of truth does not require proof that the alleged defamatory statement is literally true in every detail; substantial truth is sufficient. Gustafson v. City of Austin, 110 S.W.3d 652, 656 (Tex. App.--Austin 2003, pet. denied); Howell v. Hecht, 821 S.W.2d 627, 631-32 (Tex. App.--Dallas 1991, writ denied).

Here, the trial court heard sufficient evidence to support an implied finding that the turbocharger was defective, or, as the trial court bluntly summarized, a "bad product." The trial court also heard sufficient evidence to support an implied finding that the statements made in the internet article were true, or, even if not literally true in every detail, substantially true. For example, Johnston, Huml and Slowboy's expert, who was an independent consultant for turbocharger engineering issues and patent consulting, (4) testified that he reviewed the internet article and Rafes's turbocharger and that the "main concerns" expressed by Huml regarding Rafes's turbocharger in the internet article "were all valid." Johnston further explained that he also had "serious concerns" about "every part" of the turbocharger about which Huml had raised concerns and most of his concerns were "for the same reasons" generally expressed by Huml in the article. Johnston further stated that he had additional "serious concerns" about other design and manufacturing problems associated with Rafes's turbocharger that Huml had not identified in the article. After Johnston had explained his concerns about these additional problems with the turbocharger, the trial court initially stated that it wanted to focus on statements contained in the article, but then stated that it agreed that evidence of these additional problems was relevant to the issue of damages.

Regarding the specific statements made in the internet article, Johnston agreed that the turbocharger had been reproduced with a part number from a competing Mistsubishi turbocharger product and that "using the exact same part number would be intended to cause confusion in the marketplace and was a slippery slope from a legal standpoint." Johnston stated that Rafes should have not have reproduced the exact same part number on its turbocharger because it left the impression that Rafes was "intentionally trying to cause confusion." Johnston also stated, consistent with Huml's remarks in the article, that there were strong reasons to be concerned about the quality of materials used by the parties that had produced Rafes's turbocharger in Taiwan.

Regarding the specifications of the turbocharger that Huml discussed and criticized in the internet article, Johnston stated that Huml's concerns about the blade's thickness and weight were all reasonable. Regarding the thickness of the blade used on Rafes's turbocharger compared to the thickness of the blade on the genuine Mitsubishi product, Johnston explained that this indicated a lack of "casting quality control" on Rafes's part and, given the fact that Rafes's blade was twice as thick, Rafes must have used "low cost methods of manufacturing it." When asked whether he agreed with the statement in the article that the material used in Rafes's turbocharger would not hold up to the heat and abuse of a typical user, Johnston explained that if the part had an air pocket it in it, which he considered as a potential explanation for the blade's weight difference from that used in the genuine Mitsubishi product, this could lead to immediate or long term failure of the turbocharger.

Johnston, like Huml, believed that parts of Rafes's turbocharger were inferior based upon coloration differences, and he stated that his conclusions regarding the inferiority of the parts were later confirmed. He also stated that it was reasonable, based upon common industry knowledge, for Huml to raise concerns about the quality of the turbocharger based upon these coloration observations.

During his testimony, Johnston agreed that there were some inaccuracies in the internet article. For example, when asked about the specific statement in the article that Rafes's turbocharger was made of some type of "powdered metal," Johnston remarked that Huml had likely intended to refer to a "powdery surface," but Johnston explained this distinction and the likely intent of Huml's statement. Johnston also admitted to other inaccuracies in the internet article, but based upon Johnston's testimony, the trial court would have been entitled to conclude that such inaccuracies were minor. The testimony reveals that Johnston considered these inaccuracies to be insignificant. Additionally, in concluding his testimony, Johnston opined that Huml's Conclusions and actions were reasonable when compared to the standard of a quality assurance inspector in the industry.

An abstract of Johnston's expert report was also introduced into evidence. In the abstract of this report, Johnston stated, after detailed explanation, that "Huml's essential comments and concerns were both technically correct, and reasonable." Johnston further explained that, in evaluating the turbocharger, Huml had used "common industry practice" by comparing the color of the turbocharger with a known standard part. Johnston also noted in the article that Huml simply identified possible critical noncomplying components, but stressed that Rafes had recommended further scientific analysis, and Rafes alerted users to use caution pending further analysis. We recognize that Rafes presented testimony to dispute Huml's and Johnston's testimony. Rafes also presented an expert who compared Rafes's turbochager against the internet article and disputed the accuracy of many of the statements made in the article. However, the competing experts in this case disagreed on several important points, and Johnston challenged the accuracy of Rafes's expert's opinions. Johnston specifically testified that Rafes's expert had made at least three mistakes in examining the turbocharger and preparing his findings. The trial court heard all of this evidence, including the evidence from the dueling experts regarding the accuracy of the statements in the internet article, and the trial court, as the sole judge of the credibility of the witnesses, was entitled to accept or reject all or any part of the witnesses' testimony. Rich, 274 S.W.3d at 884.

Moreover, from our review of the record, it is clear that the trial court could have disbelieved at least some of the testimony presented by Rafes and his expert. For example, although Rafes offered an explanation as to why it used as a product number on its turbocharger the product number used on the Mitsubishi product, the trial court was not required to believe this explanation. Moreover, the trial court could have determined that the testimony provided by Rafes and his employee about an internet advertisement for the turbocharger was
equivocal and lacked credibility. Huml and Slowboy also introduced other evidence, including consumer correspondence, that indicated that at least some consumers had been confused about the origin of Rafes's turbocharger and whether it was a genuine Mitsubishi product or a product designed and or manufactured, at least in part, by Rafes.

In sum, the trial court was presented with ample evidence substantiating the "gist" of the statements contained in the internet article regarding the production and manufacturing of the turbocharger. Accordingly, we hold that the evidence is legally and factually sufficient to support the trial court's implied finding that Rafes's claims against Huml and Slowboy were barred by the affirmative defense of substantial truth.

David Rafes, Inc. v. Huml (Tex.App.- Houston [1st Dist.] Oct. 29, 2009)(Jennings)
(defamation business disparagement loss of reputation and goodwill claim regarding product quality, tortious interference with prospective business relationships, substantial truth defense to defamation claim carries the day)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Higley and Sharp
01-08-00856-CV David Rafes, Inc. v. Michael Huml and Slowboy Racing, Inc.
Appeal from 11th District Court of Harris County
Trial Court Judge: Hon. Mark Davidson

TRO in Defamation Case Granted: Law Firm Sues Client for Libel, Judge Grants Prior Restraint

CLIENT WHO BAD-MOUTHED LAWYER GETS SILENCED - AT LEAST FOR NOW

A Houston law firm today took the unusual step of suing a client for defamation, requesting immediate injunctive relief to stop the client from spreading allegations that the firm did not properly pay out settlement moneys for personal injury claims stemming from a car wreck involving the client and the client's family members.

The sworn petition filed on behalf of the LAW OFFICE OF PAUL N. MOODY, P.C., a personal corporation, alleges the following:

Libel and Defamation of Business Reputation

17. Defendant Vo and Defendant Phi Tax have published a statement of alleged fact. The alleged statement of fact is that "they [Law Office of Paul N . Moody] use schemes to steal all the money paid for your settlement."
18. Defendants' statement referred to Plaintiff by name.
19. Defendants' statement is clearly defamatory; Defendants' statement constitutes
libel per se.
20. Defendants' statement is false. Plaintiff will prove that Defendant approved the settlement agreement that is the subject of his statement, and that Plaintiff has fully complied with the terms of the court-ratified agreement.
21. Defendants acted with malice. Defendants' statement was intended to inflict harm on Plaintiffs business reputation. Defendant Vo even alludes to the interpretation of the statement as being one intended to "insult, to slander, to hurt an individual."

Defendant Vo further encourages the widespread dissemination of the statement.

See copy of Original Petition in LAW OFFICE OF PAUL N. MOODY (TEXAS PROFESSIONAL CORP.) vs. PHI TAX & ASSOCIATES PROFESSIONAL CORPORATION (D/B/A PHI TAX USA) and VO, HENRY.
Cause No. 2009-59096; filed 9/16/2009; assigned to the 80th District Court.

Judge Kyle Carter, presumably serving in the capacity of assigned ancillary judge, granted a temporary restraining order sought by the law firm this morning, setting bond at $500. See docket. The TRO restrains the Defendants "from publishing any statement of fact attacking the integrity or honesty of the Law Office of Paul N. Moody, P.C.."

A hearing on the firm's request for a temporary injunction is set for October 2, 2009, more than 14 days down the road and therefore after the date the TRO expires. The hearing will presumably be before the presiding judge of the 80th District Court to which the libel suit was assigned by random process: Larry Weiman.

Judge Kyle Carter presides over the 125th District Court. Both judges are new on the bench, having replaced the Republican incumbents in the 2008 general elections in which Harris County Republicans fared poorly, precipitating an involuntary mass exodus of long-time Republican judges from the Harris County courthouse.

Requests for immediate injunctive relief (TROs) are heard by the district judge that is assigned as "ancillary judge" on the day the application is filed. Judges serve in that function on a rotating basis. The name of the TRO judge for the day (or rather 2-week or so period) is posted at the district clerk's filing windows. The ex-parte hearings take place in the judge's respective court room.

Comment on first glance:

It seems odd that only the firm appears as Plaintiff, and not the attorney in charge, given that defamation is a personal tort and given that the false allegations complained of in the petition ultimately allege attorney misconduct. If the allegations were true, they would presumably entail disciplinary action by the State Bar against the attorney and jeopardize the attorney's license. Ergo, more would seem to be at stake than merely the reputation and goodwill of the law firm for which damages may be sought in a claim for business disparagement. The intent to "hurt an individual" attributed to the Defendant(s) likewise suggests that the firm is not the proper plaintiff, or should at least not be the sole plaintiff. Interestingly, the petition names not only the client individually as a defendant, but also a corporation, whose dba allegedly appeared on the faxes through which publication and dissemination of the offensive statements was allegedly accomplished. It also asks for attorney's fees on the tort claim.

The Clerk's office classified the lawsuit as "defamation of character", but that would be understandable as "business disparagement" is not an available case-type category; the closest label - semantically at least - being "business dissolution".

TAGS: Harris County Defamation Lawsuits: Libel Slander & Electronic, web-based, Defamation

Libel suit against ethnic newspaper fails - actual malice not shown

Wang v. Tang No. 01-08-00009-CV (Tex.App.- Houston [1st Dist.] June 5, 2008)(Higley) (interlocutory appeal, media defendant, libel, no malice)
Opinion by Justice Laura Carter Higley
Before Chief Justice Radack, Justices Keyes and Higley
Jianguang Wang and Yellow Emperor Communications, Inc., d/b/a Houston Chinese Press v. David Y. Tang
Appeal from 164th District Court of Harris County
Trial Court Judge: Hon. Martha Hill Jamison
Disposition: Reverse Trial Court judgment and render judgment

Applicable Principles

In defamation suits involving public figures, the actual malice standard serves to protect innocent but erroneous speech on public issues, while deterring “calculated falsehoods.” See Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex. 2000). A showing of “actual malice” in a defamation suit requires proof that the defendant made a statement with knowledge that it was false or with reckless disregard of whether it was true or false. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 162 (Tex. 2004); Huckabee, 19 S.W.3d at 420. Reckless disregard is a subjective standard, focusing on the defendant’s state of mind. Isaacks, 146 S.W.3d at 162; Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002). Specifically, the plaintiff must establish that the defendant in fact entertained serious doubts as to the truth of his publication, or had a high degree of awareness of the probable falsity of the published information. Isaacks, 146 S.W.3d at 162 (citing Bentley, 94 S.W.3d at 591) (internal quotations omitted). A public figure may rely on circumstantial evidence to prove a defendant’s state of mind. Bentley, 94 S.W.3d at 591.

HOLDING: The summary judgment record establishes, as a matter of law, that the Houston Chinese Press did not publish the alleged defamatory remarks with actual malice. Tang has not carried his summary judgment burden to show that a genuine issue of material fact exists with regard to the actual malice element.We hold that the Houston Chinese Press is entitled to summary judgment.