By Richard Rothfelder, Rothfelder & Falick LLP
On November 17, 2020, the Texas Court of Appeals for the Fourteenth District in Houston, affirmed the trial court’s decision in Anthony Buzbee vs Clear Channel Outdoor and Sylvester Turner. In doing so, the appellate court agreed that both the injunctive and monetary relief sought by Buzbee for alleged Texas Election Code violations against Clear Channel and Turner should be dismissed.
By way of background, Tony Buzbee is a rather prominent plaintiffs’ attorney based in Houston and practicing across the Country, and he ran for Mayor of Houston in the November 2019 election against incumbent Mayor Sylvester Turner. During the election campaign, Clear Channel donated several billboard displays to Houston’s hurricane preparedness, including those containing Turner’s likeness and quotes. Buzbee sued Clear Channel and Turner in the Harris County Texas District Court, contending the purported public service announcements were actually unreported campaign donations violating the Texas Election Code, and he sought an injunction to prevent the continued display of the ads and monetary damages arising from them. Clear Channel and Turner filed motions to dismiss under the Texas Citizens Participation Act (“TCPA”), which provides for dismissal of actions interfering with the defendants’ constitutional rights of free speech and association. Clear Channel also voluntarily removed the displays before the hearing on the temporary injunction request. The trial court granted Clear Channel’s and Turner’s dismissal motions, and awarded them attorneys fees. Buzbee appealed, and while it was pending, Turner won the election and is currently the Houston Mayor.
On appeal, the appellate court initially ruled against the claims of Clear Channel and Turner that Buzbee lacked standing or that his claims were moot. More particularly, the court held that Buzbee had standing as the candidate opposing Turner in the election. Further, even though the election was concluded and the billboard displays removed, thereby making an injunction moot, the court ruled Buzbee’s claim for monetary damages for alleged violations of the Texas Election Code was still viable.
The appeal, therefore, focused on the standards for review of a dismissal under the TCPA, and whether Buzbee had met those standards. The appellate court held he had not. Specifically, the court noted that the burden of proof is on the plaintiff to demonstrate through admissible evidence that he maintains a viable claim in order to withstand dismissal under the TCPA. In this case, Buzbee didn’t even offer any affidavits or other evidence to the trial court of any alleged Election Code violations by Clear Channel or Turner. Instead, Buzbee merely presented his allegations of misconduct asserted in his pleadings, and he then urged on appeal that this was sufficient to meet his burden of proof to avoid dismissal. The appellate court rejected this argument, noting: “The TCPA, which creates an accelerated merits-screening function, could hardly be served if the party seeking to avoid dismissal is not required to present even a scintilla of evidence in support of his allegations… Under Buzbee’s proposed rule, an action might be unsupported by even a shred of proof—and thus be unmeritorious—yet easily survive dismissal, rendering the TCPA oddly inept at accomplishing its principal goal.” Thus, the trial court’s dismissal of Buzbee’s case, and its award of attorneys fees to Clear Channel and Turner were affirmed.
You can read the opinion at this LINK.
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