In its Friday orders the Texas Supreme Court granted review of eight cases. All will be set for argument in the fall.
For corporate interests two grants, consolidated for argument, raise important culture-wars facts and issues that will capture headlines, but both raise questions under the Texas Citizens Participation Act, the now-pervasive interlocutory scheme intended to provide a quick dismissal ramp for claims based on free-speech issues. Issues under the statute are used defensively and offensively by regular people and evermore by businesses alike.
Both cases the court accepted for review focus on efforts to create anti-abortion “sanctuary” cities throughout Texas. And both involved an ordinance, the first of several, declaring Waskom, on the Louisiana line in East Texas, to be a sanctuary city.
But, wait … there’s more.
In 2019, when Waskom approved its ordinance, the promoter, Mark Lee Dickson, and his anti-abortion group Right to Life East Texas, went beyond decrying Roe v. Wade and designated “entities participating or facilitating abortions” as “criminal organizations” and Dickson accused the Lilith Fund of committing murder under Waskom’s ordinance.
Because of a docket-equalization order, Lilith Fund for Reproductive Equity v. Mark Lee Dickson and Right to Life East Texas, tried in Travis County, was transferred to the Amarillo Court of Appeals. The Lilith Fund sued Dickson and his group for defamation and conspiracy. In its opinion the Amarillo court asked: “Would a person of reasonable intelligence and learning, and who uses care and prudence in evaluating circumstances believe Dickson is alleging Lilith committed a criminal act? The answer to that question controls the disposition of this appeal. We answer ‘no’ because the accusation is an ‘opinion masquerading as fact’ under the entire context of the conversation being had.”
In the other case, Mark Lee Dickson and Right to Life East Texas v. Afiya Center and Texas Equal Access Fund, the Dallas Court of Appeals rejected Dickson’s theory that his statements amounted to mere opinion, protecting its speaker from defamation claims. The Dallas court affirmed a Dallas County district court’s dismissal of Dickson’s claims. So when the Dallas court considered the same question as the Amarillo court did – how a person of ordinary intelligence would perceive the challenged statements, as opinion or fact – it came to a conclusion diametrically opposed to the Amarillo court’s holding.
The Dallas court concluded that a reasonable person reading appellants’ statements calling the Atiya Center and Texas Equal Access Fund “criminals and murderers” could consider that Dickson and Right to Life East Texas “intended the statements literally.”
“Simply put,” the Dallas court concluded, “while Dickson has the right to his opinions, he does not have the right to defame someone who disagrees with those opinions.” The court also rejected Dickson’s argument that his statements about murder were “rhetorical hyperbole.”
“Dickson claims to have made significant efforts to determine the status of the law, and – based on those efforts – he made statements declaring appellees to be criminal organizations and murderers,” the court said. “We conclude he made those declarations, and continues to make them, as statements of fact.”
The principal issues in Lilith Fund for Reproductive Equity and in Mark Lee Dickson and Right to Life East Texas are whether the criminal organization label and its murder accusation are fact statements establishing defamation per se and whether in their respective cases the Lilith Fund, as petitioner from the Amarillo court, or Afiya Center and Texas Equal Access Fund, as petitioner from the Dallas court, established by “clear and specific” evidence the elements of their defamation claims or sidetracked defamation defenses.
Fact? Opinion? Hyperbole?
Douglas S. Lang, Jennifer R. Ecklund, Elizabeth G. Myers and John P. Atkins of Thompson Coburn in Dallas for the Lilith Fund for Reproductive Equity
Jonathan F. Mitchell, Mitchell Law, Austin, D. Bryan Hughes, Tyler, H. Dustin Fillmore III and Charles W. Fillmore, Fillmore Law Firm, Fort Worth for Mark Lee Dickson and Right to Life East Texas
Jonathan F. Mitchell, Mitchell Law, Austin; Thomas Brejcha, Martin Whittaker, Thomas More Society, Chicago; H. Dustin Fillmore III, Charles W. Fillmore, Fillmore Law Firm, Fort Worth, D. Bryan Hughes, Law Office of D. Bryan Hughes, Tyler for Mark Lee Dickson and Right to Life East Texas
Jennifer R. Ecklund, Elizabeth G. Myers and John P. Atkins of Thompson Coburn for The Afiya Center and Texas Equal Access Fund
Other Grants to Watch
TotalEnergies E&P USA INC. v. MP Gulf of Mexico LLC
from Harris County and the Tyler Court of Appeals
A principal issue from this dispute over oil-and-gas production-sharing agreements is whether by including American Arbitration Association rules in the agreements shows clear evidence that the parties intended that arbitration would include the threshold arbitrability question.
Wallace B. Jefferson and Rachel A. Ekery (in Austin) and William J. Boyce (in Houston) of Alexander Dubose & Jefferson; John F. Bash, Christopher D. Porter, Karl S. Stern, Elizabeth M. Devaney, Nicholas Caluda of Quinn Emanuel Urquhart & Sullivan in Houston for TotalEnergies E&P USA Inc.
Susan Davis Van Dyke et al. v. The Navigator Group et al.
from Martin County and the Eastland Court of Appeals
The nexus issue in this minerals deed-interpretation case is whether a 1924 conveyance – reserving “one-half of one-eighth” – left a half or a 16th ownership of the mineral estate after the reservation. Specifically a principal issues is whether the appeals court’s holding that “one-half of one-eighth of all minerals and mineral rights in said land are reserved in grantors” unambiguously means that only one-sixteenth of the minerals were reserved. The Van Dyke parties contend the court of appeals refused to account for the “historical use” of one-eighth in double fractions, as the Supreme Court directed in Hysaw v. Dawkins.
Philip W. Johnson, Lubbock; Marc S. Tabolsky of Schiffer Hicks Johnson in Houston; Mark W. McBrayer and W. Chris Boyer Crenshaw of Dupree & Milam in Lubbock; Ken Slavin of Kemp Smith in El Paso; Jadd F. Masso of Clark Hill in Dallas; James J. Ormiston, Gabe Vick and Kelley Clark Morris of Gray Reed in Houston, for petitioners
David E. Keltner, Taylor Spalla (Fort Worth), Harold Hensley, Tiffany P. Means and Bill Caraway (Midland) of Kelly Hart & Hallman; David W. Lauritzen and Stephanie D. Lee of Cotton Bledsoe Tighe & Dawson in Midland; Don M. Connally of Abilene for Respondents
Houston Area Safety Council Inc. and Psychemedics Corp. v. Guillermo M. Mendez
from Harris County and Houston’s First Court of Appeals
In this negligence case involving an independent drug-testing laboratory’s analysis of hair samples gathered by a third party, the issues are (1) whether the testing laboratory that contracts with an employer to conduct and evaluate drug tests owes a duty of care to the employees being tested and (2) whether the trial court correctly found that Psychemedics Corp., the testing lab, owes no duty to Mendez, the employee. The appeals court concluded the duty issue was one of first impression: “Neither the Texas Supreme Court nor this court have determined whether a third party owes an employee a duty of reasonable care when conducting drug testing required by an employer.”
Charles H. Hollis of The Kullman Firm in New Orleans for Psychemedics Corp.; Chris M. Knudsen and Michael T. Lewis of Serpe, Jones, Andrews, Callender & Bell in Houston for Houston Area Safety Council
Robert E. Goodman Jr. of Kilgore & Kilgore in Dallas for Mendez