By Joel Glover
Last week, the Supreme Court of Texas addressed the quantum of evidence required for a plaintiff to support a prima facie case and survive a motion to dismiss brought under the Texas Citizens Participation Act, Texas’s anti-SLAPP statute. Those wishing to dismiss SLAPP suits, take note of the USA Lending v. Winstead PC opinion: what a plaintiff must show “is not a high hurdle.” Instead, a plaintiff need only provide “evidence necessary to rationally infer that an allegation is true.” Because the Court held that the plaintiff here met that low standard, the case was reversed and remanded to the trial court for further proceedings.
First, a quick primer.
The TCPA requires a trial court to dismiss a lawsuit if, on motion, a “moving party demonstrates that the legal action is based on or is in response to . . . the party’s exercise of: (A) the right of free speech; (B) the right to petition; or (C) the right of association.” But a plaintiff can survive the motion to dismiss if it “establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.”
The trial court here denied the defendant’s motion to dismiss, but on appeal, the court of appeals reversed that decision, holding in relevant part that the plaintiff failed to make a prima facie showing that was “based on demonstrable, reasonable facts.”
Review was granted for the Court to address how such a prima facie showing is made.
Defendant focused its efforts on attacking the sufficiency of the evidence offered in support of the plaintiff’s claim for legal malpractice. (A legal malpractice case requires proving that a defendant breached a duty owed to its client that proximately caused damages.) Though the defendant challenged both prima facie elements, the Court focused on damages.
A malpractice plaintiff recovers damages where it proves that, but for an attorney’s alleged negligence, the plaintiff would have collected actual damages “in reasonable probability” in the underlying action.
The defendant’s chief complaint was that the plaintiff’s only evidence of damages—largely coming from three experts with minimal corroboration—was based on assumptions and wholly speculative, making it no evidence at all. The Court disagreed.
The Court acknowledged that a defendant may ultimately prevail at a later stage of a case if evidence offered in response to a TCPA motion to dismiss eventually proves “incredible, unreliable, countered, or outweighed by legal defenses or other evidence.” But the evidence as presented in this case, and in particular, at this early stage—even if speculative—“met the minimum requirement for a prima facie case” and was, therefore, sufficient.
You may be wondering whether (and how) the TCPA even applies to a legal malpractice suit. That question remains open. The Defendant advanced the theory, adopted by the court of appeals, that the filing in the underlying lawsuit on which the malpractice case was based was a communication protected by the defendant’s First Amendment right to petition. But because the Court could decide the case on the sufficiency of the plaintiffs’ evidence, it “expressed no views” on TCPA applicability and whether the plaintiff’s action was based on such a right.
Given the Court’s narrow focus on the sufficiency of prima facie evidence—regardless of the claim or the basis for TCPA applicability—the opinion has broad implications for any future motion.
Moving forward, practitioners must keep in mind that evidence offered by plaintiffs that is vulnerable to future challenges throughout the life of a case can still survive a TCPA motion to dismiss. In the Court’s own words, if the proof offered “may well be undercut by evidence adduced at a future juncture,” a plaintiff may maintain its claim at this early stage if the evidence “is legally sufficient to establish a claim as factually true if it is not countered.”
This isn’t all bad news for those seeking to dismiss SLAPP suits. As the Court put it, the TCPA still “screens out plaintiffs certain to fail—those who cannot support their claims with clear and specific evidence.” A successful movant will know when and how supporting evidence offered falls short, and how to effectively counter any evidence that comes its way.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For questions regarding the content above, please contact Joel Glover or a member of the Media Litigation practice.
Joel R. Glover is an attorney in the Trial & Appellate Litigation practice of Jackson Walker’s Houston office. Joel represents clients throughout the United States in media and entertainment litigation, trademark and copyright infringement litigation, energy litigation, and financial services litigation. In addition to his practice, Joel volunteers his time with the American Bar Association Forum on Communications Law, the ABA Tort Trial & Insurance Practice Section’s Media, Privacy, and Advertising Law Committee, Alley Theatre, and the West Point Society of Greater Houston.