Context Matters: personal e-mail addresses of government officials are not protected from disclosure requirements

The Texas Public Information Act is intended to provide the public with a window into the business of government and the official acts of public officials.   There are some limited restrictions on the information that may be obtained by a person requesting information.  The Austin Court of Appeals’ opinion in The Austin Bulldog vs. Leffingwell deals with whether an exception to disclosure requirements for e-mail addresses of a member of the public was applicable to elected city officials to the Austin City Council when those city officials used their personal e-mail addresses for communications.

The Austin Bulldog publication had made a request for certain information from the City of Austin.  The City withheld e-mail communications that were responsive due to the fact that the communications involved personal email addresses, albeit the personal email addresses of government officials.  The City requested an opinion from the Attorney General’s office, which advised the City that the email communications could be withheld because they involved the personal emails of a “member of the public.”  The Austin Bulldog filed suit to challenge the ruling.

The court of appeals noted that the Public Information Act does not define “member of the public,” and the court sought to construe the phrase.  The Court noted that the context matters.  In some contexts, the phrase might include government officials, but here, the court observed that the context puts government officials in a category outside of “members of the public” since the whole point of the Act is to provide a window into the workings of those officials by the “members of the public” who are not a part of the government.  Thus, the court held that the city officials’ personal email addresses are not shielded from disclosure and must be disclosed as public information.  The court’s opinion may be found here.

Injunction Law: Back to the Basics

Temporary restraining orders and temporary injunctions are governed by some fairly specific requirements. Failure to follow those black-and-white requirements can result in the court’s order being declared void.  That’s what happened in Medi-Lynx Monitoring, Inc. v. AMI Monitoring, Inc.  Texas Rule of Civil Procedure 683 requires that an order granting a temporary injunction set the cause for trial on the merits.  The injunctive order at issue in the appeal failed to do so.  The Dallas Court of Appeals noted that Rule 683 is mandatory and “a temporary injunction that is noncompliant is subject to being declared void and dissolved.”  Because there was no dispute that the order failed to set the matter for trial, the court of appeals held that the trial court abused its discretion in granting the injunction, and the injunction was ordered dissolved.

The appellants also complained that the trial court had failed to hold a hearing before granting the injunction and that the injunction failed to set a proper amount of bond.  The court of appeals did not address these alleged infirmities because of its conclusion as to the first error.  The court’s opinion may be found here.

TexasBarToday_TopTen_Badge_Small

Whistleblowers: Who Ya Gonna Call?

The Texas Whistleblower Act protects a public employee who makes a good faith report of a legal violation by his or her employer “to an appropriate law enforcement authority.” Tex. Gov’t Code  § 554.002(a).   Texas law has generally held that the “appropriate law enforcement authority” must be an authority that has outward-looking powers to investigate, enforce, and prosecute.  But what happens if the agency the employee works for is the agency charged with investigating, enforcing, and prosecuting both within that agency and other agencies?  That’s what happened in McMillen v. Texas Health & Human Services Commission.

McMillen worked for the Texas Health and Human Services Commission’s Office of the Inspector General.  After he made a report of improper collection of payments from certain recipients’ Medicaid benefits to the head of the OIG’s Internal Affairs Division and to the Commission’s Executive Commissioner, he was terminated.  He sued the Commission and its Executive Commissioner under the Whistleblower Act, which waives state immunity for good faith reports made to appropriate law-enforcement authority.

The trial court denied the Commission’s plea to the jurisdiction.  The Austin Court of Appeals reversed after concluding that McMillen did not report to an appropriate law-enforcement authority.  The Supreme Court of Texas reversed the court of appeals judgment.  After noting that the Commission’s OIG was charged with enforcement authority, the Court acknowledged that its authority included internal compliance, but the OIG also has outward-looking powers that go beyond this agency.  Accordingly, the Court held that McMillen had reported to an appropriate law-enforcement authority.  The case was remanded back to the court of appeals for further proceedings.  The Supreme Court’s opinion may be found here: McMillen opinion.

Plaintiffs avoid getting (anti) SLAPPed

Appellate courts in Texas have seen an influx of defamation, business disparagement, and other similar actions since 2011 when the Texas Citizens Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code §§ 27.001-27.011 (2015), was signed into law.  The TCPA is an anti-SLAPP statute; SLAPP is an acronym for Strategic Lawsuits Against Public Participation, which is a lawsuit brought with the intent to silence those who exercise their First Amendment rights to speak out on public issues or communicate with the government by intimidating or harassing the critic with the burden and expense of defending a lawsuit.  Thus, the TCPA provides for an expedited dismissal (and interlocutory appeal from a trial court’s denial of a motion to dismiss) of a legal action that 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.  The TCPA’s provisions are powerful and broadly interpreted, and plaintiffs have struggled to hold on to their claims when faced with a section 27.003 motion to dismiss.

Shortly before the new year, the Dallas Court of Appeals issued two opinions concerning defamation and the TCPA involving the same set of tragic underlying facts.  Shortly after sustaining a traumatic brain injury from a car accident, Paul Tatum took his own life.  After the death of their son, the Tatums, appellants in both cases, paid the Dallas Morning News (“DMN”) to print an obituary for Paul.  About a month later, DMN reporter, Steve Blow, wrote a column that did not name the Tatums, but quoted from Paul’s obituary, described the events surrounding his death, and criticized people who are dishonest about loved ones’ suicides.

In Tatum v. Dallas Morning News, the Fifth Court of Appeals reversed summary judgment in favor of DMN and Blow on the Tatums’ libel claim.  The Court concluded that the Tatums raised a genuine issue of material fact regarding: (1) whether Blow’s column was about their family; (2) whether the column was capable of defaming the Tatums; and (3) whether the column was neither true nor substantially true.  Read the opinion here for a detailed explanation of defamation law on these issues.

In the second case, Tatum v. Hersh, the Tatums sued Julie Hersh for intentional infliction of emotional distress.  Hersh, author of a book about her personal history with depression and attempted suicide, allegedly met with Blow of the DMN, “promoted Paul’s death and the Obituary . . . as a news story,” “incited Blow to write about suicides in obituaries,” and “encouraged [Blow] to make the Tatum tragedy public.”  Blow’s article quotes Hersh and references both her book and a blog article that she allegedly wrote after reading Paul’s obituary and learning of his suicide.  Hersh filed a motion to dismiss, pursuant to the TCPA, and the trial court granted it.  The Dallas Court of Appeals reversed the trial court’s order granting dismissal, concluding that Hersh failed to establish that the TCPA applied to the Tatums claims because Hersh denied having made the specific statements at issue.  In so holding, the Court relied on one of its earlier TCPA opinions, Pickens v. Cordia.

Appellees in both of the above cases have been granted an extension of time to file a petition for review with the Supreme Court.

No contempt for contractual support

The Dallas Court of Appeals recently held that contempt is not available to enforce contractual spousal support absent decretal language in the divorce decree along with a reference to Chapter 8 of the Texas Family Code and its requirements. Here, the parties entered into an agreement for spousal maintenance. The final divorce decree, however, simply incorporated the agreement by reference and included no decretal language. Moreover, neither the decree nor agreement referenced Chapter 8 and its requirements, or evidenced an intent by the parties that Chapter 8 would govern the support obligations. Consequently, the Court held that the agreement to pay support was merely a contractual debt for which contempt was not an available remedy. Accordingly, the Court affirmed the trial court’s dismissal of the enforcement petition. The Court’s opinion in In the Interest of L.R.P. and H.A.P. can be found here.

Dallas Court of Appeals reinstates $7.25 million verdict on quantum meruit claim

I generally think of quantum meruit claims as merely disposable, add-on claims used in a belt-and-suspenders approach to a contract action.  But after reading the opinion in Shamoun & Norman, LLC v. Albert G. Hill, Jr., I am not going to underestimate the power of a quantum meruit claim. A $7.25 million bonus for negotiating a global settlement over 6 weeks — not too shabby!

From 2007 through 2010, Hill was embroiled in a myriad of lawsuits that became known as the “spider web of litigation.” (Slip Op. at 2). In 2009, Hill hired Shamoun and his firm, S&N, to represent him in two of the lawsuits.  (Id.) In March 2010, Hill and Shamoun discussed Shamoun acting as global settlement negotiations counsel in order to settle the spider web of litigation and provide a unifying voice for Hill and his related parties. (Slip Op. at 3). Shamoun ultimately agreed to act as global settlement counsel, presumably in large part at an “incentive bonus” offered to Shamoun in which he would receive 50% of any settlement above the difference between $55 million (the rejected offer amount) and $73 million (Hill’s highest authorized settlement amount). (Id.).

Hill assured Shamoun multiple times that the incentive bonus was a done deal. (Slip Op. at 4-7).  Shamoun negotiated a global settlement over the next  6 weeks and, by May 4, 2010, had reached an agreement on all material terms of a global settlement. (Slip Op. at 7).  At that point, Hill denied agreeing to the incentive bonus and fired Shamoun. (Slip Op. at 7-8). The settlement was finalized and read into the record on May 5 and  was signed by all parties on May 13. (Slip Op. at 7).  and between March 27, 2010 and May 4, 2010, brokered a global settlement of the spider web. (Slip Op. at 4-7).

Shamoun demanded payment of the bonus, and Hill refused. (Slip Op. at 8). Shamoun filed suit. Only his quantum meruit claim made it to the jury. (Slip Op. at 9).  The jury determined that S&N had provided compensable global settlement services for Hill valued at $7.25 million, but did not award Shamoun fees for prosecuting the claim. (Slip Op. at 9). The trial court granted Hill’s motion to set aside the quantum meruit findings, and Shamoun appealed. (Id.)

The Dallas Court of Appeals reversed and rendered judgment on the quantum meruit verdict. The Court’s lengthy opinion includes multiple holdings addressing many issues, including the enforceability of oral contingency agreements, the evidence necessary to establish compensable services, several waiver arguments, and whether an expert’s testimony is unreliable simply because he disagrees with the defendant’s interpretation of a disputed facts.  The opinion is well worth the time it takes to read.

You can read the opinion here.

First Amendment Speech vs. State Regulation of Health and Safety

The Fifth Circuit Court of Appeals recently issued an opinion addressing First Amendment protections over political speech and First Amendment challenges to the state regulation of psychological services.

In Serafine vs. Branaman, the Texas State Board of Examiners of Psychologists ordered Mary Serafine to stop using the title of “psychologist” on her campaign website and to stop offering or providing psychological services.  Serafine did not have a degree in psychology, but had completed a four-year post-doctoral fellowship in psychology at Yale.  She also taught psychology courses at Yale and Vassar College.  She was not licensed to practice psychology in Texas and was not eligible for a Texas license.  Before running for political office, she taught seminars and provided counseling sessions on personal growth and relationships in Austin.

Serafine brought suit against the State Board of Examiners to challenge the Board’s request that she remove references to the word “psychologist” from her campaign website, and she challenged the Psychologists’ Licensing Act as overbroad.

Judge Jerry Smith authored the opinion for the Fifth Circuit panel.  The opinion holds that a portion of the Psychologists’ Licensing Act was unconstitutional as applied to Serafine.  The opinion drew a distinction between the speech at issue here–political speech–and professional or commercial speech that might be aimed at soliciting clients.  In the political context, the court held that the state’s interest was limited and the First Amendment would not allow the state to regulate Serafine’s political speech.  In fact, the court observed that there was a strong argument that it was not misleading for Serafine to refer to herself as a psychologist, even though she might not be licensed to practice in Texas.

The court also holds that the Psychologists’ Licensing Act is overbroad. The court first observed that the overbreadth doctrine does not apply to commercial speech.  After construing the plain meaning of the Psychologists’ Licensing Act, the court concluded that the Act is so broad that it encompasses life coaches, AA sponsors, weight-loss counselors, and others, which fall outside the parameters of professional psychologists.  The court refused to give the statute an “extra-textual” limiting construction in an attempt to rescue it from unconstitutionality.  Likewise, the court held that it could not uphold an infirm statute merely upon a promise by the government to apply it responsibly.  Thus, the court held that portions of the Act are overbroad and contravene the First Amendment.

When is Mandamus Relief Available for Conflicting Trial Settings?

The Texas Supreme Court’s holding in In re Prudential Insurance Co. of America, 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding)—that determining whether an appellate remedy is “adequate” requires a balancing of the benefits and detriments of mandamus review and is not an abstract or formulaic determination—seems to have caused a split among the Courts of Appeal concerning the availability of mandamus relief for issues of dominant jurisdiction.

“The general common law rule in Texas is that the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts.” Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974).  “Any subsequent suit involving the same parties and the same controversy must be dismissed if a party to that suit calls the second court’s attention to the pendency of the prior suit by a plea in abatement.” Id.   Almost 20 years before Prudential, the Supreme Court created a bright-line rule, holding that mandamus relief is available only when there is a “conflict of jurisdiction” such that an injunction or order from the non-dominant court interferes with the dominant court’s exercise of jurisdiction.  Abor v. Black, 695 S.W.2d 564, 566-67 (Tex. 1985). 

The San Antonio Court of Appeals has concluded that Abor‘s bright-line rule is no longer applicable because it “precludes the flexibility of remedy” required by Prudential‘s balancing test.  See In re ExxonMobil. On December 16, 2015, in In re Fort Apache Energy, Inc., the Dallas Court of Appeals joined the Houston Fourteenth Court of Appeals (In re E. Beach Project Phase I) and the Texarkana Court of Appeals (In re Brown) in holding that Prudential did not change the application of Abor.

But the emerging appellate court split is not the only notable issue raised in Fort Apache.  In his first dissenting opinion since taking the bench last January, Justice Bill Whitehill opined that the Court did not need to decide the continuing viability of Abor or the effect Prudential might have on the case.  Rather, the Justice Whitehill opined that the second court’s trial setting, which was quickly approaching and set three weeks before the dominant court’s trial setting, actively interfered with the dominant court’s exercise of jurisdiction within the parameters of Abor.  The majority disagreed, distinguished the case from Perry v. Del Rio (granting mandamus relief in a case with conflicting trial settings), and held that the circumstances in Fort Apache did not “amount[] to the kind of direct interference” required under Abor.

Last week, the Dallas Court of Appeals denied the relator’s motion for reconsideration en banc.

Trial court’s reach exceeds its grasp

The Dallas Court of Appeals recently held that a trial court lacks jurisdiction to issue a show-cause order for a non-party to appear if the party is outside the subpoena power of the court. Here, after one unsuccessful mediation, the parties attempted another mediation during trial with the trial court’s blessing. The trial court determined that an insurer for one of the parties had violated its mediation order because the proper representative did not attend the second mediation. After an “impromptu” hearing, the trial court instructed the plaintiff to file a motion to show cause why the insurer should not be held in contempt,  and the plaintiff obliged. The trial court then ordered the “chief claims officer” for the insurer, an Alabama resident, to appear at a contempt hearing. The insurer sought a writ of mandamus.

In an opinion by Justice Stoddart, the court of appeals held that the trial court lacked authority to order a non-party to appear at a hearing where the non-party was not involved in the litigation and is outside the subpoena power of the court, i.e., more than 150 miles from Dallas County. Because the order was void, it was subject to mandamus without considering whether the relator had an adequate remedy by appeal. Accordingly, the court conditionally granted the petition.  The court’s opinion in In re ProAssurance Ins. Co. can be found here.

New year, new and interesting opinions

Happy New Year!

The Dallas Court of Appeals issued a number of interesting opinions the last week of December. Three of those cases serve as good reminders to be careful what parties say and don’t say in their pleadings.

Khwaja v. Quik-Way Retail Assocs. II, Ltd., No. 05-14-01090-CV:

In this default judgment case, the court of appeals reversed the default judgment entered against Khwaja because she met all three elements of Craddock. The important lesson for Plaintiffs here is , when responding to a motion for new trial following a default and, more specifically, the third Craddock, element, make sure to present specific examples of how the plaintiff will be harmed and disadvantaged by a new trial, such as “the loss of witnesses or valuable evidence.” (Slip Op. at 5-6). Simply being delayed in collecting a judgment is not enough.  Id.

Warren v. Carlson Rests., Inc. d/b/a TGI Friday’s, Inc., No. 05-14-01232-CV:

In this premises liability case, Warren sued TGI Friday’s after he fell on a curbside ramp outside of one of their restaurants. TGI Friday’s filed an MSJ. Warren presented expert testimony in response that the ramp was unreasonably dangerous because it was not skid-resistant and was slick to the touch. The expert did not, however, testify that the ramp was unreasonably dangerous at the time of the accident. Rather, his testimony was based on his examination of the ramp more than three months after the accident and did not opine on the ramps condition at the time of the accident or on how the condition may have changed since the accident. The trial court granted the motion, and the court of appeals affirmed, holding that Warren presented no evidence that the summary judgment granted for TGI Friday’s. (Slip Op. at 6). The lesson? Make sure the expert ties his opinions back to the accident and injury-causing conditions.

Tatum v. Hersh, No. 05-14-01318-CV:

In this TCPA “Anti-SLAAP” case, the defendant’s own pleadings doomed her motion to dismiss. The Tatums sued Hersh for intentional infliction of emotional distress for her role in the publication of a newspaper article concerning the Tatums’ son’s suicide. (Slip Op. at 2-3). Hersh moved to dismiss under the TCPA, which permits dismissal of claims that are based on, related to, or in response to a defendant’s exercise of the right of free speech (and other enumerated rights). The trial court granted the motion. But the court of appeals reversed, holding that Hersh was not entitled to the protections of the TCPA because she pleaded that she did not make any of the alleged statements and, therefore, necessarily denied that the Tatums’ claims were based on, related to, or in response to Hersh’s exercise of free speech. (Slip Op. at 13). In other words, you can’t have your cake and eat it too.

 

 

 

 

 

LexBlog