PRO BONO ATTORNEYS’ FEES NOT TRULY “INCURRED” AND THEREFORE NOT RECOVERABLE UNDER THE ANTI-SLAPP STATUTE

Cruz v. Van Sickle
Dallas Court of Appeals, No. 05-13-00191-CV (December 3, 2014)
Justices Bridges, Lang, and Evans (Opinion)
While Cruz was running for public office, a political blog called the Burnt Orange Report published an article by Van Sickle that included an account of Cruz’s having been “thrown out three times, finally by the police, of an Elizabeth Edwards book signing event in Dallas.” Contending the account was false, Cruz sued Van Sickle, the Burnt Orange Report, and its editor and owner for libel. All defendants moved for dismissal under the Texas Anti-SLAPP Act, arguing that the article addressed “a matter of public concern,” and therefore was protected under the Act. The trial court granted the motions to dismiss and awarded substantial attorneys’ fees to the defendants. Cruz appealed, asserting 121 issues. The Dallas Court of Appeals affirmed dismissal of Cruz’s libel claim in an opinion that addressed a variety of issues specific to this particular case, including the briefing deficiencies predictable in a 121-issue appeal.

But the Court reversed the award of attorneys’ fees to the Burnt Orange Report. The statute, TEX. CIV. PRAC. & REM. CODE § 27.009(a)(1), mandates an award to a successful defendant of “court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require.” The Court made clear that includes not only fees incurred in defending against the substance of the claim, but also fees incurred in preparing the request for fees, itself, and in other ancillary activities. But, drawing upon prior interpretations of similar language in other statutes, the Court held that for fees to be “incurred”—and therefore recoverable—they must actually have been paid, or the defendant at least must be liable for payment. In this case, the evidence showed the Burnt Orange Report was represented by pro bono counsel who kept track of time and fees but did not actually charge the Report or expect payment from it. As a result, the Court reversed the $158,000 fee award to that defendant. While the Court recognized the potential public policy problem with this result, it concluded it “must give effect to the language used by the legislature,” saying it was not the Court’s “place to substitute [its] view of public policy for that of the legislature.”

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