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The Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011, protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern. The Act provides a special procedure for the expedited dismissal of such suits. A two-step process is initiated by motion of a defendant who believes that the lawsuit responds to the defendant's valid exercise of First Amendment, U.S. Const. amend. I, rights. Under the first step, the burden is initially on the defendant-movant to show "by a preponderance of the evidence" that the plaintiff's claim is based on, relates to, or is in response to the movant's exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). If the movant is able to demonstrate that the plaintiff's claim implicates one of these rights, the second step shifts the burden to the plaintiff to establish by clear and specific evidence a prima facie case for each essential element of the claim in question. § 27.005(c).
Steven and Shyla Lipsky own several acres in Weatherford, Texas. In 2005 they drilled a well on their property to a depth of about two hundred feet to provide water to a cabin and boathouse. In 2009 they finished a house on the property, connecting the well to their new home. That same year, Range Resources Corporation and Range Production Company drilled two gas wells about a half-mile from the Lipskys' property. A few months later, Alisa Rich, an environmental consultant with Wolf Eagle Environmental confirmed the presence of methane and other gases in Lipskys' well. Lipsky made a video of himself lighting gas escaping from a garden hose attached to his well. To produce this effect, Lipsky connected the hose to a vent on his water well. He shared his video with the Environmental Protection Agency (EPA) and the media, which reported on the flammable nature of Lipsky's water well. He also complained about the gas in his well to the Texas Railroad Commission. Lipsky's own investigation led him to believe that Range, the oil and gas operator closest to his property, had some responsibility for contaminating his ground water. The EPA initially concluded that Range's production activities had contributed to the gas in the Lipskys' well water and that the situation could be hazardous to health and safety. The federal agency ordered Range to provide the Lipskys potable water and to install explosivity meters at their property. The Railroad Commission thereafter concluded that Range's operations in the area were not the source of the contamination. Lipsky immediately denounced the Railroad Commission's decision in the media and continued to blame Range, pointing to the EPA's action and his expert's opinions. The Lipskys thereafter sued Range and others involved in developing their residential area. The trial court granted Range's motion to dismiss, agreeing that the Lipskys' claims were an improper collateral attack on the Commission's determination. The court also declined to dismiss Range's claims against the Lipskys and Rich by denying their motions to dismiss under the Texas Citizens Participation Act. The court of appeals thereafter determined that the Texas Citizens Participation Act required the dismissal of Range's claims against Lipsky's wife, Shyla, and his environmental consultant, Rich, and that the trial court had accordingly abused its discretion in not dismissing those claims.
Did the TCPA require direct evidence of each essential element of the underlying claim to avoid dismissal?
The court found that in determining whether there was clear and specific evidence to establish Lipskys' prima facie case and avoid dismissal pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c) of the Texas Citizens Participation Act (TCPA), Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011, relevant circumstantial evidence could be considered. The Supreme Court of Texas accordingly disapproved those cases that interpreted the TCPA to require direct evidence of each essential element of the underlying claim to avoid dismissal. Range’s defamation counterclaim against a property owner was properly not dismissed because clear and specific evidence showed Lipskys’ statements were defamatory per se, as they reflected on Range’s fitness and abilities as a natural gas producer, and proof of particular damage was not required.