                                                                             ACCEPTED
                                                                         01-14-01025-CV
                                                              FIRST COURT OF APPEALS
                                                                      HOUSTON, TEXAS
                                                                     8/7/2015 3:55:08 PM
                                                                   CHRISTOPHER PRINE
                                                                                  CLERK




    01-14-01025-CV                                     FILED IN
                                                1st COURT OF APPEALS
                                                    HOUSTON, TEXAS
                       In the                   8/7/2015 3:55:08 PM


First Court of Appeals
                                                CHRISTOPHER A. PRINE
                                                        Clerk



              SITTING AT HOUSTON

     ALI LAHIJANI AND MEGA SHIPPING, LLC,
                      Appellants,
                          v.
MELIFERA PARTNERS, LLC, MW REALTY GROUP, AND
             MELISSA WALTERS,
                       Appellees

       Appealed From the 157th District Court of
                Harris County, Texas
          Trial Court Cause No. 2014-60091

 APPELLANTS’ REPLY BRIEF

                                         JEFFREY L. DORRELL
                                            State Bar No. 00787386
                                      jdorrell@hanszenlaporte.com


                                   11767 Katy Freeway, Suite 850
                                           Houston, Texas 77079
                                        Telephone: 713-522-9444
                                             FAX: 713-524-2580
                               ATTORNEYS FOR APPELLANTS
                 TABLE OF CONTENTS
                                                           Page

TABLE OF CONTENTS .………………………………………………….ii

INDEX OF AUTHORITIES ..……………………………………………iii

REPLY ISSUES PRESENTED FOR REVIEW ..………………………1

SUMMARY OF ARGUMENT ……………………………………………2

ARGUMENT ……………………...…………………………………………3

Reply Issue 1. Did the TCPA Apply to Plaintiffs’ Claims? …..………3

        A. Did Defendants’ Allegedly Defamatory Statements
           Relate to Issues of “Economic or Community Well-
           Being” or the “Provision of Services in the
           Marketplace?”……………..………………………………3

        B. Could Defendants Show That the TCPA Applied
           By Relying on Plaintiffs’ Pleadings Alone?………………7

        C. Does the TCPA Apply to Privately
           Communicated Speech? ..…………………………………7

Reply Issue 2. Did the Absolute Judicial Communications
         Privilege Bar Plaintiffs’ Defamation and Business
         Disparagement Claims?”..……………………………………8

Reply Issue 3. Did Plaintiffs Marshal “Clear and Specific
         Evidence of a Prima Facie Case for Each Element of
         Each Claim in Question?”……………………………………9

CONCLUSION …...……………………………………………………15

PRAYER ….……………………………………………………………16

CERTIFICATE OF SERVICE ……………………………………….17

CERTIFICATE OF WORD COUNT COMPLIANCE.…………….18



                                                              ii
                INDEX OF AUTHORITIES
                           CASES
                                                             Page
American Heritage Capital, LP v. Gonzalez,
  436 S.W.3d 865, (Tex. App.—Dallas 2014, no pet.) ……………11, 12

Avila v. Larrea,
   394 S.W.3d 646 (Tex. App.—Dallas 2012, pet. denied) ..…………5, 6

Bentley v. Bunton,
  94 S.W.3d 561 (Tex. 2002)………………………………………11, 12

Better Bus. Bureau of Metro. Houston v. John Moore Servs.,
   441 S.W.3d 345 (Tex. App.—Houston [1st Dist.]
   2013, pet. denied) ………………………………..……………………9

Billington v. Houston Fire & Cas. Ins.,
   226 S.W.2d 494 (Tex. App.—Fort Worth 1950, no writ) …………..14

Double Diamond, Inc. v. Van Tyne,
  109 S.W.3d 848 (Tex. App.—Dallas 2003, no pet.) …...……………11

Elizondo v. Krist,
   415 S.W.3d 259 (Tex. 2013) …………………………………………9

Forbes, Inc. v. Granada Biosciences, Inc.,
  124 S.W.3d 167 (Tex. 2003) ………………………………………...11

Gumpert v. ABF Freight Sys., Inc.,
  293 S.W.3d 256 (Tex. App.—Dallas 2009, pet. denied) ……………11

I-10 Colony, Inc. v. Lee,
   2015 Tex. App. Lexis 4136 (Tex. App.—Houston [1st Dist.]
   April 23, 2015, n.p.h.) ………………………………………………..6

In re Lipsky,
   411 S.W.3d 530 (Tex. App.—Fort Worth 2013,
   orig. proceeding [mand. denied]) ..……………………………………4

In re Lipsky,
   2015 Tex. LEXIS 350 (Tex. 2015)……………………………………9


                                                               iii
James v. Brown,
  637 S.W.2d 914 (Tex. 1982) ...………………………..………………8

Kinney v. BCG Atty. Search, Inc.,
   No. 03-12-00579-CV, 2014 Tex. App. LEXIS 3998
   (Tex. App.—Austin 2014, pet. denied.) ………………………………4

Lippincott v. Whisenhunt,
   2015 Tex. LEXIS 347 (Tex. April 24, 2015) …………………………4

Masson v. New Yorker Mag., Inc.,
  501 U.S. 496 (1991) …………..…………………………………10-11

Neely v. Wilson,
  418 S.W.3d 52 (Tex. 2013) .……..………………………………..…11

New Times, Inc. v. Isaacks,
  146 S.W.3d 144 (Tex. 2004) ………………………………………..11

Robertson v. Sw. Bell Yellow Pages, Inc.,
  190 S.W.3d 899 (Tex. App.—Dallas 2006, no pet.) ………………..12

                       STATUTES
TEX. CIV. PRAC. & REM. CODE § 27.005(b) ………….…………………4

TEX. CIV. PRAC. & REM. CODE § 27.005(c) .……………………………8

TEX. CIV. PRAC. & REM. CODE § 27.005(d) .……………………………8

TEX. OCC. CODE § 1101.558 .……………………………………………3

                         OTHER
RESTATEMENT (SECOND) OF TORTS § 588 (1981) ……………………..8




                                                          iv
           REPLY ISSUES PRESENTED FOR REVIEW
     Reply Issue 1:    Did the TCPA apply to plaintiffs’ claims?

       Reply Issue 2:     Did the absolute judicial communications
privilege bar plaintiffs’ defamation and business disparagement claims?

      Reply Issue 3: Did plaintiffs marshal “clear and specific
evidence of a prima facie case for each element of each claim in
question?”




                                                                      1
                   SUMMARY OF THE ARGUMENT
      First, plaintiffs actually concede in their brief that a real estate

broker’s attempt to receive an “illegal commission” from a property sale

would be a “matter of public concern” within the ambit of the TCPA.

Plaintiffs’ attempt to avoid this concession by arguing that Lahijani

“blatantly lied” would lead the Court into error. Courts do not judge the

truth or falsity of a movant’s statements in order to decide whether the

TCPA applies.

      Second, the judicial communications privilege protects even allegedly

defamatory statements made before a contemplated judicial proceeding has

commenced.      The judicial communications privilege is not limited to

communications to “prosecutorial and/or law enforcement agencies,” as

plaintiffs incorrectly contend.

      Third, the Walters affidavit’s conclusory opinions and stated

contentions are not the “clear and specific evidence” of elements of libel,

libel per se, and business disparagement that the TCPA requires.

Furthermore, aside from the fact that Lahijani’s statements were privileged

judicial communications, the statements are simply not capable of

defamatory meaning as a matter of law.




                                                                         2
                                   ARGUMENT
                      Argument and Authorities—Issue 1

       Reply Issue 1:        Did the TCPA Apply to Plaintiffs’ Claims?”

A. Did Defendants’ Allegedly Defamatory Statements Relate to Issues of
 “Economic or Community Well-Being” or the “Provision of Services
                        in the Marketplace?”

       Yes.     Surprisingly, plaintiffs actually concede that a real estate

broker’s attempt to receive an “illegal commission” from a property sale—

       …would be a matter of public concern making any
       communications regarding this attempt protected by the [TCPA]
       because such communications would be a matter of public
       concern that relate[s] to “economic or community well-being” or
       “services in the marketplace.”

Br. p. 48. Plaintiffs do not dispute that real estate broker Walters was

required to obtain “written consent” from both seller and buyer in order to

represent them. See Texas Real Estate License Act, TEX. OCC. CODE §

1101.558.1 Plaintiffs also do not dispute that Walters:

       (i)    failed to obtain Lahijani’s “written consent;” (CR 139, 142) and

       (ii)   claimed a brokerage commission of $19,500.00 anyway.2

Thus, Walters did, in fact, attempt to receive an “illegal commission,” and

any statement by Lahijani to the effect that she did so would be “a matter of

public concern.” The TCPA applies.


       1       “The broker must obtain the written consent of each party to the
transaction to act as an intermediary. The written consent must state who will pay the
broker and in conspicuous bold or underlined print, set forth the broker’s obligations as
an intermediary.…”
                                                                                       3
       In an agile feint to avoid the conclusion their own logic dictates,

plaintiffs declare that Lahijani’s statements do not relate to matters of public

concern because “Lahijani blatantly lied.” Br., p. 49. But this argument

would require the Court to determine the truth or falsity of Lahijani’s

communications in order to decide whether the TCPA applies. This is

precisely the opposite of the procedure that the TCPA requires:

       The statutory definitions for the right of free speech … do not
       include language requiring us to determine the truth or falsity of
       communications when deciding whether a movant for dismissal
       has met its preliminary preponderance of the evidence burden
       under Section 27.005(b).

In re Lipsky, 411 S.W.3d 530, 543 (Tex. App.—Fort Worth 2013, orig.

proceeding [mand. denied]); see also Kinney v. BCG Atty. Search, Inc., No.

03-12-00579-CV, 2014 Tex. App. LEXIS 3998, at *15-16 (Tex. App.—

Austin 2014, pet. denied.).

       To contradict defendants’ argument that Walters’ managerial

services—for which she charged $3,397.113—were a “matter of public

concern” under the TCPA because they were “services in the marketplace,”

plaintiffs offer a new variation of their “not-public-enough” argument:4


       2        The $19,500.00 commission is shown on Line 703 of the Settlement
Statement. (CR 35.)
        3       Plaintiffs explain that $3,397.11 is half of $7,294.22 “minus $250 option
fee split.” (CR 32.)
        4       In the trial court, plaintiffs responded to defendants’ TCPA motion to
dismiss by arguing that the TCPA did not apply to “privately communicated speech.”
(CR 104-06.) After the Texas Supreme Court reversed the Texarkana court of appeals on
this point in Lippincott v. Whisenhunt, 2015 Tex. LEXIS 347 at *4 (Tex. April 24,
2015), plaintiffs abandoned this argument in the instant appeal. Br., p. 26-27.
                                                                                       4
       [Walters’] services were on behalf of herself as an investor and
       the limited other 18 investor partner group of Plaintiff Melifera
       and an outside investor to protect foreclosed properties that had
       been purchased at auction until sale. No more, no less. Walters
       … did not offer or advertise any managerial services to any and
       all real estate developers in the public at large as well.

Br., p. 47.

       Walters thus appears to contend that her managerial services are not

“in the marketplace” because Walters does not “advertise or market” her

managerial services to “the public at large.” (CR 125.) Even if true, this is

academic.     The TCPA does not require that services be “advertised or

marketed” to constitute “services in the marketplace.” The fact that Walters’

services were available, were rendered, and were purchased for value by

defendants from Walters instead of from some competing service provider—

all of which is undisputed here (CR 125)—is all that is required for services

to be “in the marketplace.”

       As authority for plaintiffs’ remarkable proposition that the Court

should read into the TCPA a requirement for “advertising or marketing” that

simply is not there, plaintiffs cite Avila v. Larea, 394 S.W.3d 646, 655 (Tex.

App.—Dallas 2012).      Br., p. 45.   Somewhat melodramatically accusing

defendants of “sh[ying] away” from Avila as though it were “kryptonite,”

plaintiffs argue that Avila means Walters was not “providing managerial

services in the marketplace.” Br., p. 47.




                                                                            5
      Avila supports no such proposition. As this Court recently observed,

Avila held that communications about a lawyer’s handling of a former

client’s case “related to” a matter of public concern because the subject of

the communications was “a service in the marketplace”—the lawyer’s

services. See I-10 Colony, Inc. v. Lee, 2015 Tex. App. LEXIS 4136 at *13-

*14 (Tex. App.—Houston [1st Dist.] April 23, 2015, n.p.h.) (describing the

holding of Avila); see Avila, 394 S.W.3d at 655. Plaintiffs’ conclusion that

Avila means services offered to fewer potential consumers than “the public

at large” cannot be “services in the marketplace” for purposes of the TCPA

is a non sequitur. No court has ever so held. The fact that defendants

obtained Walters’ services through a channel other than Walters’

“advertising” her services to “the public at large” does not somehow remove

Walters’ services from “the marketplace.”

      To hold otherwise—in addition to performing judicial surgery on the

TCPA—would be to oblige future courts to engage in the impossible

exercise of deciding what forms of “advertising” were sufficiently “public”

and how many potential customers had to be reached by such advertising

before the services at issue could be found to be “in the marketplace” (and

thus be “matters of public concern” under the TCPA). No such exercise is

warranted by the statutory language.




                                                                          6
     B. Could Defendants Show That the TCPA Applied By Relying on
                      Plaintiffs’ Pleadings Alone?

      Yes. Plaintiffs argued incorrectly below in opposition to defendants’

motion to dismiss that defendants could not meet their burden to show that

the TCPA applies by relying “solely on the pleadings of plaintiffs.” (CR

107-10.) On this point, plaintiffs led the trial court into error. In the instant

appeal, plaintiffs have now abandoned this argument. Br., p. 39. No further

discussion is necessary.

       C. Does the TCPA Apply To Privately Communicated Speech?

      Yes. Plaintiffs argued incorrectly below in opposition to defendants’

motion to dismiss that the TCPA did not apply to “privately communicated

speech.” (CR 104-06.) On this point, too, plaintiffs led the trial court into

error. In the instant appeal, plaintiffs have now abandoned this argument.

Br., p. 26-27. See supra, n. 4. No further discussion is necessary.




                                                                               7
                   Argument and Authorities—Issue 2

      Reply Issue 2:   Did the Absolute Judicial Communications
Privilege Bar Plaintiffs’ Defamation and Business Disparagement
Claims?

      Yes. Even if the nonmovant brings forth clear and specific evidence

as required by TCPA § 27.005(c), the court may still be required to dismiss

the nonmovant’s legal action under § 27.005(d):

      Notwithstanding the provisions of [§ 27.005](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 movant’s claim.

TCPA § 27.005(d) [emphasis added].

      The judicial communications privilege extends to any statements

made by the judges, jurors, counsel, parties, or witnesses and attaches to all

aspects of the proceedings. The privilege also attaches to communications

made, as here, preliminary to a proposed judicial proceeding. James v.

Brown, 637 S.W.2d 914, 916-17 (Tex. 1982), quoting RESTATEMENT

(SECOND) OF TORTS § 588 (1981).

      Plaintiffs do not respond substantively to this argument except to deny

that communications made “privately”—as opposed to statements made to

“prosecutorial and/or law enforcement agencies”—are protected by the

privilege. Br., p. 55. This is simply wrong, even under the authorities

plaintiffs themselves rely upon.




                                                                            8
                   Argument and Authorities—Issue 3

      Issue 3:    Did Plaintiffs Marshal “Clear and Specific Evidence
of a Prima Facie Case for Each Element of Each Claim in Question?”

      No. The conclusory, self-serving statements of Walters’ affidavit (CR

122-26) are not the “clear and specific evidence” that the TCPA requires.

See Better Bus. Bureau of Metro. Houston v. John Moore Servs., 441

S.W.3d 345, 355 (Tex. App.—Houston [1st Dist.] 2013, pet. denied)

(“Conclusory statements are not probative and accordingly will not suffice

to establish a prima facie case.”). As noted in defendants’ opening brief,

      Bare, baseless opinions do not create fact questions, and neither
      are they a sufficient substitute for the clear and specific evidence
      required to establish a prima facie case under the TCPA.

In re Lipsky, 2015 Tex. LEXIS 350 at *23-24; citing Elizondo v. Krist, 415

S.W.3d 259, 264 (Tex. 2013).

      The Walters affidavit recites numerous conclusions and contentions—

but few facts. For example:

   • “Defendant Lahijani clearly and directly contends that I am a thief
     who has falsified expenses….” (CR 124, ¶ 5)

   • “Defendant Lahijani clearly and directly contends … that I am
     financially careless and incompetent;” (CR 124, ¶ 5)

   • “Defendant Lahijani clearly and directly contends … that I am trying
     to receive an illegal and/or improper broker’s commission….” (CR
     124, ¶ 5)

   • “I contend that the aforementioned letter and e-mail have seriously
     defamed and libeled my professional and personal character….” (CR
     125, ¶ 6)

                                                                             9
   • “I contend that the aforementioned letter and e-mail … were
     published by Defendant Lahijani with actual malice and hatred toward
     me as a woman.” (CR 125, ¶ 6)

   • “I contend that my libel cause of action apart (sic) of this lawsuit is
     not based on, related to or in response to Defendant Lahijani’s
     exercise of free speech.” (CR 126, ¶ 9)

   • “I contend that all [defamatory statements by Lahijani] about me were
     false and have damaged my business and personal reputations a great
     deal.” (CR 126, ¶ 9)

Conspicuous by their absence from the Walters affidavit is: (i) testimony to

the actual allegedly defamatory Lahijani statements complained of; (ii) clear

and specific evidence of how Lahijani’s actual statements were false; (iii)

clear and specific evidence of how Walters’ reputation was damaged; and

(iv) clear and specific evidence of plaintiffs’ pecuniary harm.        These

omissions alone render the Walters affidavit inadequate as evidence of the

elements of libel and business disparagement—“clear and specific” or

otherwise. But the problems with plaintiffs’ evidence do not end there.

      Based on nothing more than Walters’ subjective belief—articulated as

a “contention” in her affidavit (CR 125, ¶ 6)—plaintiffs argue that Lahijani’s

unspecified statements were made “with actual malice and hatred toward

[Walters] as a woman.” Id.; Br., p. 62. Even if taken as true, this is

irrelevant to “actual malice” in the context of a defamation claim. “Actual

malice” in defamation cases is not hatred, ill will, spite, enmity, or wanton

desire to injure. See Masson v. New Yorker Mag., Inc., 501 U.S. 496, 510-

                                                                           10
11 (1991); New Times, Inc. v. Isaacks, 146 S.W.3d 144, 161-62 (Tex.

2004). In defamation cases, “actual malice” means knowledge of falsity or

reckless disregard for the truth. Masson, 501 U.S. at 510-11; Bentley v.

Bunton, 94 S.W.3d 561, 590 (Tex. 2002). There must be evidence that the

defendant entertained serious doubts about the truth of the publication or had

a high degree of awareness of the probable falsity of the published

information. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167,

171 (Tex. 2003); Bentley, 94 S.W.3d at 591. Here, the Walters affidavit

provides none. And the problems with plaintiffs’ evidence do not end there.

      A statement is defamatory if it tends to injure the subject’s reputation,

to expose him to public hatred, contempt, ridicule, or financial injury, or to

impeach his honesty, integrity, or virtue. American Heritage Capital, LP v.

Gonzalez, 436 S.W.3d 865, 875 (Tex. App.—Dallas 2014, no pet.). A

statement may be false, abusive, unpleasant, or objectionable without being

defamatory in light of the surrounding circumstances.            Id.; Double

Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 854 (Tex. App.—Dallas

2003, no pet.). Whether a statement is capable of a defamatory meaning is

a question of law for the court. Gumpert v. ABF Freight Sys., Inc., 293

S.W.3d 256, 264 (Tex. App.—Dallas 2009, pet. denied). Moreover, to be

actionable, a statement must assert an objectively verifiable fact rather than

an opinion. See Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013)


                                                                            11
(“[S]tatements that are not verifiable as false cannot form the basis of a

defamation claim.”). Courts classify a statement as fact or opinion based on

the statement’s verifiability and the entire context in which the statement

was made. Bentley, 94 S.W.3d at 581. Whether a statement is of fact or

opinion is also a question of law. Robertson v. Sw. Bell Yellow Pages, Inc.,

190 S.W.3d 899, 903 (Tex. App.—Dallas 2006, no pet.).

       Against the backdrop of these case authorities, the American Heritage

Capital court found none of the following three statements capable of

defamatory meaning as a matter of law:

       (i)     “The guy that was supposed to handle closing could barely
               speak english (sic).”5

       (ii)    “Chris and end (sic) everyone I talked to at this company were
               incompetent. They reviewd (sic) my credit rating and promised
               a quick close. Then the list of things got longer and longer.”6

       (iii)   “At one point they asked for an explanation of $200 out of a
               $30,000 deposit to make sure we were not ‘borrowing money’
               for closing. It was my sons (sic) birthday money for god’s
               sakes!!!!”7




       5        The American Heritage Capital court held that, although the statement
constituted “opinionated criticism,” it was “not egregious enough to be defamatory.” Id.
at 875.
        6       The American Heritage Capital court held that “statements implying that
someone is incompetent are nonactionable opinions because they are not objectively
verifiable.” Id. at 876.
        7       The American Heritage Capital court held that “whether a lending
business is excessively demanding is not objectively verifiable, but rather a matter of
subjective opinion.” Id. at 876.
                                                                                     12
In the case at bar, the allegedly defamatory statements include Lahijani’s

statements in a letter to Walters’ attorney (made in the process of settlement

negotiations) such as the following:

      (i)     “Ms. Walters tried to slip in a commission to herself at the last
              minute without notification or approval by the other party. By
              the way, no broker fees were shown on the final contract.” (Br.,
              p. 58; CR 119.)

      (ii)    “Ms. Walters needed to clear any expenses with me, if she
              wanted to participate. Make no mistake, there is no such thing
              as a requisition, purchase order, or approval request.” (Br., p.
              58; CR 119.)

      (iii)   “We feel it is inappropriate for our investment partner to
              secretly terminate the contract that we jointly signed and
              somehow get a contract from the same agent on July 9th when
              the [agent’s] transition from Gary Greene to [Walters’] agency
              is not reflected until July 29th, oh, and magically put in for
              commission (by e-mail the day before closing) on a listing
              agreement that we neither signed nor had been made aware of.”
              (Br., p. 59; CR 119.)

      (iv)    “[Ms. Walters] was formerly claiming $7,900 and was happy to
              accept payment for phantom expenses, which she now admits
              she does not have.” (Br., p. 59-60, CR 120, ¶ 1.)

      (v)     “Mega Shipping, since it never authorized a commission to
              MW Realty nor was it given the opportunity, proposes that the
              effective commission to MW Realty be reduced to Three (3)
              Percent instead of the Six (6) Percent that was paid.” (CR 120.)

      (iii)   “Ms. Walters needs to take responsibility for inadequate
              paperwork, lack of communication to and authorization from
              her partner Mega Shipping.” (CR 120.)

Plaintiffs argue repeatedly that the “perception a reasonable person would

get from reading” each of Lahijani’s statements is that “Walters is a thief


                                                                            13
trying to receive an illegal or improper real estate broker’s commission.”

Br., pp. 58-61. But, like the allegedly defamatory statements in American

Heritage Capital, Lahijani’s statements are not “egregious enough” to be

defamatory, not objectively verifiable, or both. And the problems with

plaintiffs’ evidence do not end there, either.

      Perhaps recognizing that Lahijani’s statements are clearly not

defamatory on their face, plaintiffs now appear to contend that the actual

statements by Lahijani are defamatory by innuendo or implication. The

problem with plaintiffs’ new approach is that plaintiffs failed to plead such a

theory.   (CR 21-23, ¶¶ 35-40.)       Having failed to plead defamation by

innuendo, plaintiffs may not now rely on this theory to supply evidence in

support of their defamation claim that does not otherwise exist.           See

Billington v. Houston Fire & Cas. Ins., 226 S.W.2d 494, 496 (Tex. App.—

Fort Worth 1950, no writ).




                                                                            14
                                  CONCLUSION
      Defendants established that plaintiffs’ suit was based on, related to, or

in response to defendants’ exercise of the right of free speech. However,

plaintiffs failed to marshal “clear and specific evidence of a prima facie case

for each element” of the three claims defendants challenged:

      (i)     Libel;

      (ii)    Libel per se; and

      (iii)   Business disparagement.

Therefore the Court should dismiss the claims. Furthermore, defendants are

immune from plaintiffs’ claims for defamation, defamation per se, and

business disparagement because the communications sued upon are

protected by the absolute judicial communications privilege.




                                                                            15
                                    PRAYER
      For these reasons, defendants pray that the Court reverse the denial of

their motion to dismiss and render judgment dismissing with prejudice

plaintiffs’ claims for:

      (i)     Libel;

      (ii)    Libel per se; and

      (iii)   Business disparagement.

Defendants pray that the Court remand the case to the trial court for an

award of reasonable attorney’s fees and sanctions sufficient to deter the

filing of similar actions in the future.

Respectfully submitted,



By:           /s/ Jeffrey L. Dorrell           .




JEFFREY L. DORRELL
State Bar No. 00787386
jdorrell@hanszenlaporte.com
11767 Katy Freeway, Suite 850
Houston, Texas 77079
Telephone: 713-522-9444
FAX: 713-524-2580
ATTORNEYS FOR APPELLANTS




                                                                          16
                       CERTIFICATE OF SERVICE

       I hereby certify that on     8-7       , 2015, a true and correct copy of the
foregoing was sent by U.S. mail to the following counsel of record:

       U. Lawrence Boze’
       U. Lawrence Boze’ & Associates, P.C.
       2212 Blodgett
       Houston, Texas 77004
       713-520-0260
       FAX: 713-520-6194
       COUNSEL FOR APPELLEES MELIFERA PARTNERS, LLC,
       MW REALTY GROUP, AND MELISSA WALTERS


             /s/ Jeffrey L. Dorrell             .




JEFFREY L. DORRELL




                                                                                 17
         CERTIFICATE OF WORD COUNT COMPLIANCE

       In compliance with TEX. R. APP. P. 9.4, relying on the word count
function in the word processing software used to produce this document, I
certify that the number of words in this document including footnotes
(excluding captions, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case,
statement of issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, certification, certificate of
compliance, and appendix) is 2,863.


          /s/ Jeffrey L. Dorrell
JEFFREY L. DORRELL




                                                                           18
