                                    IN THE
                            TENTH COURT OF APPEALS

                                    No. 10-12-00198-CV

RODNEY PAT RAMSEY,
                                                                   Appellant
    v.

PHIL LYNCH,
                                                                   Appellee



                              From the 40th District Court
                                  Ellis County, Texas
                                 Trial Court No. 84242


                             MEMORANDUM OPINION


         Rodney Pat Ramsey filed suit against Phil Lynch for defamation. 1 Lynch filed a

motion to dismiss the suit pursuant to Chapter 27 of the Texas Civil Practice and

Remedies Code. After a hearing, the trial court granted the motion to dismiss the cause,

and Ramsey appeals from the trial court’s order of dismissal. We affirm.




1Ramsey also filed suit for defamation and civil conspiracy against Morris Gresham, Mike Dooley, and
Randy Whiteman. They are not parties to the proceedings before us.
                                   Background Facts

       Ramsey is the former city prosecutor for the City of Ovilla and Bill Vansyckle is

the former mayor of the City of Ovilla. Lynch filed a written complaint against Mayor

Vansyckle with the City of Ovilla alleging violations of the City of Ovilla Code of

Ethics. Included in the written complaint was an allegation that Vansyckle and Ramsey

were involved in “fixing code enforcement citations for certain Ovilla residents.”

Ramsey filed suit against Lynch for defamation based upon the statements in the

written complaint.

       Lynch filed a motion to dismiss pursuant to Chapter 27 of the Texas Civil

Practice and Remedies Code, the Texas Citizen’s Participation Act (TCPA), asserting

that the written complaint was an exercise of his right to free speech and right to

petition. The trial court found that the defamation suit was based solely upon Lynch’s

written complaint, and that the Texas Citizen’s Participation Act, TEX. CIV. PRAC. & REM.

CODE ANN. § 27.001 et seq applies to the written complaint, and that the suit should be

dismissed under TEX. CIV. PRAC. & REM. CODE ANN. § 27.006 (West Supp. 2012).

                                Sufficiency of Evidence

       In his first and third issues on appeal, Ramsey argues that the evidence is legally

and factually insufficient to support the trial court’s findings of fact. The motion to

dismiss shifts the burden to the non-movant to prove a prima facie case. Thus, the

failure to prove in essence “insufficient evidence,” falls on the party with the burden to

prove – in this case Ramsey. Thus the findings of fact essentially found the negative of

what Ramsey was required to prove.         In determining whether evidence is legally

Ramsey v. Lynch                                                                     Page 2
sufficient to support the finding under review we must consider evidence favorable to

the finding if a reasonable fact finder could and disregard evidence contrary to the

finding unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802,

827 (Tex. 2005). When reviewing a challenge that the evidence is factually insufficient

to support a finding, a reviewing court will set aside the finding only if, after

considering and weighing all of the evidence in the record pertinent to that finding, the

court determines that the credible evidence supporting the finding is so weak, or so

contrary to the overwhelming weight of all the evidence, that the finding should be set

aside. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g).

       Ramsey first challenges the legal and factual sufficiency of the trial court’s

findings that Ramsey’s claims against Lynch are based solely upon the written

complaint, that the complaint is not false and was not published with negligence or

actual malice, and that there was no agreement between two or more persons to

accomplish a wrong or lawful purpose.

       In his first amended petition, Ramsey’s claims against Lynch for defamation are

based upon Lynch’s written complaint with the City of Ovilla. The purpose of the

TCPA is "to encourage and safeguard the constitutional rights of persons to petition,

speak freely, associate freely, and otherwise participate in government to the maximum

extent permitted by law and, at the same time, protect the rights of a person to file

meritorious lawsuits for demonstrable injury." TEX. CIV. PRAC. & REM. CODE ANN. §

27.002 (West Supp. 2012). “If a legal action is based on, relates to, or is in response to a

party’s exercise of the right to free speech, right to petition, or right of association, that

Ramsey v. Lynch                                                                         Page 3
party may file a motion to dismiss the legal action.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.003(a) (West Supp. 2012). Section 27.005 provides that:

         (b) Except as provided by Subsection (c), on the motion of a party under
         Section 27.003, a court shall dismiss a legal action against the moving
         party if the moving party shows by a preponderance of the evidence that
         the legal action is based on, relates to, or is in response to the party's
         exercise of:

               (1) the right of free speech;
               (2) the right to petition; or
               (3) the right of association.

         (c) The court may not dismiss a legal action under this section if the party
         bringing the legal action establishes by clear and specific evidence a prima
         facie case for each essential element of the claim in question.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)& (c) (West Supp. 2012).

         Therefore, Ramsey was required to establish by clear and specific evidence a

prima facie case for each element of his defamation claim. To maintain a defamation

cause of action, the plaintiff must prove that the defendant: (1) published a false

statement; (2) that was defamatory concerning the plaintiff; (3) while acting with either

actual malice, if the plaintiff was a public official or public figure, or negligence, if the

plaintiff was a private individual, regarding the truth of the statement. WFAA-TV, Inc.

v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.

1989).

         In his written complaint, Lynch states: “Based upon information gained through

the Texas Public Information Act, I charge Bill Vansyckle with the unlawful exercise of

fixing code enforcement citations for certain Ovilla residents.”            The complaint

references previous allegations of “fixing tickets” and quotes statements and affidavits

Ramsey v. Lynch                                                                         Page 4
of third parties. Ramsey was required to establish by clear and specific evidence the

falsity of the written complaint. Ramsey denied all of the allegations and provided an

affidavit of Vansyckle that also denied the allegations.

       The statements in the written complaint are accurate quotations of statements

made by third parties. See McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex. 1990). Ramsey did

not present any evidence that Lynch’s complaint was a false representation of the

statements.

       Ramsey does not challenge the trial court’s finding that he was a public official.

Therefore, he was required to show that Lynch’s complaint was made with actual

malice. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d at 571. In the defamation context, a

statement is made with actual malice when the statement is made with knowledge of its

falsity or with reckless disregard as to its truth. Randall's Food Markets, Inc. v. Johnson,

891 S.W.2d 640, 646 (Tex. 1995). Proof of actual malice requires "sufficient evidence to

permit the conclusion that the defendant in fact entertained serious doubts as to the

truth of his publication." Nelson v. Pagan, 377 S.W.3d 824, 831 (Tex.App.-Dallas 2012, no

pet.). Ramsey did not present any evidence that Lynch made the complaint knowing

the allegations were false or with doubts as to the truth of the allegations. Ramsey also

did not present any evidence that Lynch made the allegations in the complaint in an

agreement with two or more persons to accomplish a wrongful act or improper

purpose.

       Ramsey next challenges the trial court’s findings on attorney’s fees. The trial

court found Lynch’s reasonable and necessary attorney’s fees to be $6,200.00 and also

Ramsey v. Lynch                                                                       Page 5
found reasonable and necessary attorney fees in the event of an appeal. At the hearing

on the motion to dismiss, Lynch’s attorney testified as to his fees, the complexity of the

case, and the time spent on the case. Lynch’s attorney further testified that his fees were

fair and reasonable based upon attorney fees in Ellis County. Ramsey disputed that the

fees were reasonable, but did not present any evidence to refute the testimony. In his

brief, Ramsey does not point to any evidence refuting the findings on attorney fees.

          We find that the evidence is legally and factually sufficient to support the

challenged findings of fact by the trial court. We overrule Ramsey’s first and third

issues.

          In his fourth issue on appeal, Ramsey argues that the evidence is legally

insufficient to support the trial court’s conclusions of law. We review the trial court's

conclusions of law de novo. Under de novo review, the reviewing court exercises its

own judgment and redetermines each legal issue. Wells Fargo Bank, N.A. v. Citizens Bank

of Tex., N.A., 181 S.W.3d 790, 796 (Tex.App.-Waco 2005, pet. den’d).

          Ramsey complains of the trial court’s conclusions of law that the TCPA applies to

Lynch’s complaint and to the lawsuit against Lynch. Ramsey further challenges the

conclusions of law that Lynch’s complaint was an exercise of his right to free speech

and his right to petition and that Ramsey’s lawsuit is based upon and relates to Lynch’s

exercise of his right to free speech and his right to petition. See TEX. CIV. PRAC. & REM.

CODE ANN. § 27.001 et seq.




Ramsey v. Lynch                                                                      Page 6
       "Exercise of the right of free speech" means a communication made in connection

with a matter of public concern. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 (3) (West

Supp. 2012). "Exercise of the right to petition" means any of the following:

               (A) a communication in or pertaining to:
               (i) a judicial proceeding;
               (ii) an official proceeding, other than a judicial proceeding, to
       administer the law;
               (iii) an executive or other proceeding before a department of the
       state or federal government or a subdivision of the state or federal
       government;
               (iv) a legislative proceeding, including a proceeding of a legislative
       committee;
               (v) a proceeding before an entity that requires by rule that public
       notice be given before proceedings of that entity;
               (vi) a proceeding in or before a managing board of an educational
       or eleemosynary institution supported directly or indirectly from public
       revenue;
               (vii) a proceeding of the governing body of any political
       subdivision of this state;
               (viii) a report of or debate and statements made in a proceeding
       described by Subparagraph (iii), (iv), (v), (vi), or (vii); or
               (ix) a public meeting dealing with a public purpose, including
       statements and discussions at the meeting or other matters of public
       concern occurring at the meeting;
               (B) a communication in connection with an issue under
       consideration or review by a legislative, executive, judicial, or other
       governmental body or in another governmental or official proceeding;
               (C) a communication that is reasonably likely to encourage
       consideration or review of an issue by a legislative, executive, judicial, or
       other governmental body or in another governmental or official
       proceeding;
               (D) a communication reasonably likely to enlist public participation
       in an effort to effect consideration of an issue by a legislative, executive,
       judicial, or other governmental body or in another governmental or
       official proceeding; and
               (E) any other communication that falls within the protection of the
       right to petition government under the Constitution of the United States
       or the constitution of this state.




Ramsey v. Lynch                                                                         Page 7
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 (4) (West Supp. 2012).

          Lynch’s written complaint alleged that Mayor Vansyckle violated the City of

Ovilla Code of Ethics. The complaint concerned the mayor’s performance as a public

official, which is a matter of public concern.        Ramsey’s lawsuit against Lynch for

defamation is based upon the statements in the written complaint. We find that the

TCPA is applicable to the complaint and to the defamation lawsuit.               Further, as

previously discussed, Ramsey was required to establish by clear and specific evidence a

prima facie case for each essential element of the claim in question to prevent

mandatory dismissal of the cause of action. See TEX. CIV. PRAC. & REM. CODE ANN. §

27.005(b)& (c) (West Supp. 2012). Ramsey did not meet his burden.

          The trial court concluded that there was no good cause for discovery pursuant to

TEX. CIV. PRAC. & REM. CODE ANN. § 27.006 (West Supp. 2012). On a showing of good

cause, the trial court may allow specified and limited discovery relevant to the motion.

Ramsey has not shown specifically the discovery necessary to further his cause of

action.

          If the court orders dismissal of a legal action under this chapter, the court shall

award to the moving party court costs, reasonable attorney's fees, and other expenses

incurred in defending against the legal action as justice and equity may require. T EX.

CIV. PRAC. & REM. CODE ANN. § 27.009 (a) (West Supp. 2012). Because the trial court

correctly dismissed the cause of action, court costs and attorney’s fees were properly

awarded. We find that the evidence is legally sufficient to support the trial court’s

conclusions of law. We overrule the fourth issue.

Ramsey v. Lynch                                                                        Page 8
                                    Timely Hearing

       In the second issue, Ramsey argues that the trial court failed to timely hold a

hearing on the motion to dismiss. A hearing on a motion to dismiss under Section

27.003 must be set not later than the 30th day after the date of service of the motion

unless the docket conditions of the court require a later hearing. T EX. CIV. PRAC. & REM.

CODE ANN. § 27.004 (West Supp. 2012). The motion to dismiss was filed on March 15,

2012 and the hearing on the motion was held May 4, 2012. Following the filing of the

motion to dismiss, the trial judge recused himself from the cause of action. The hearing

on the motion could not be heard until a new judge was assigned to the cause of action.

Therefore docket conditions required a later hearing. We overrule the second issue.

                                      Conclusion

       We affirm the trial court’s judgment.




                                                AL SCOGGINS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 2, 2013
[CV06]




Ramsey v. Lynch                                                                     Page 9
