Mogged et al v. Lindamood et al, 02-18-00126-CV, 2020 WL 7074390 (Tex. App.—Fort Worth Dec. 3, 2020, no pet. h.) started back in May 2015 and involves a local election with some “dirty pool” by someone, although who remains something of a mystery.*
But in what appears as a matter of first impression in Texas, the Fort Worth COA (en banc) determined that calling someone a “sexual predator” is not defamatory because it is an opinion:
Although we have not located a Texas case interpreting whether calling someone a “sexual predator” is a falsifiable statement, courts in other jurisdictions have held this label to be opinion and thus not actionable. In New York, for example, the appellation “sex predator” is not a defamatory false statement of fact:
By their very nature opinions are not “capable of being true or false.” Gross v. New York Times Co., 82 N.Y.2d 146, 155 (1993). Statements like “convicted felon,” or “HIV positive” or “20-weeks pregnant” have objective, verifiable meaning; “sex predator” does not. Rather, it is the sort of “loose, figurative or hyperbolic” language that is immunized from defamation claims. E.g., Dillon v. City of New York, 261 A.D.2d 34, 38 (1st Dept. 1999). Indeed, sister-state judges have tossed out of court cases predicated on “sexual predator” language. Burgoon v. Delahunt, 2000 WL 1780285 (Minn. App.) (reasonable person could apply “sexual predator” to inappropriate touching and offensive sexual comments); Terry v. Davis Cmty. Church, 131 Cal. App. 4th 1534, 1555 (2005) (inappropriate relationship with minor). Rosado v. Daily News, L.P., No. 157674/2013, slip op. at 3–4 (N.Y. Sup. Ct. filed Feb. 4, 2014).
We agree with our sister-state courts that have directly addressed this language, concluding that it falls within the broader principle that a speaker’s individual judgment that “rests solely in the eye of the beholder” is mere opinion. Falk & Mayfield, L.L.P. v. Molzan, 974 S.W.2d 821, 824 (Tex. App.—Houston [14th Dist.] 1998, pet. denied)
There are other interesting evidentiary issues in this opinion, but the other issue that jumped out is what I would call a “Reverse Rohrmoos.” Typically, a Rohrmoos challenge occurs because a party fails to follow the Arthur Andersen factors when submitting evidence on reasonableness of attorneys’ fees.* The trial court approves the award and is subsequently reversed. In Mogged, the defendants followed Arthur Andersen submitting “detailed evidence” on the various factors and requesting $177,350 in attorneys’ fees. The trial court awarded approximately $41,000. The trial court did not provide an analysis for why the reduction occurred and did not issue properly requested findings of fact and conclusions of law.
Because the trial court did not provide reasoning for its conclusion in reducing the fees from $177k to $41K, the COA remanded (without expressing an opinion as to the appropriate amount of fees). The COA also noted the FFCL (finding of fact and conclusions of law) on the issue of attorneys’ fees (while certainly welcome) are not required under the TCPA.
The COA also upheld a sanction of $1,000, consistent with other courts addressing the discretionary nature of that determination.
*Chief Justice O’Quinn authored a short concurrence and dissent
**Prior to Rohrmoos is would have been an Arthur Andersen challenge. But Reverse Arthur does not have the same alliterative feel.