Opinion by Justice Evans.
Baltasar D. Cruz sued James Van Sickle, Karl-Thomas Musselman d/b/a Burnt Orange Report, and Katherine Haenschen for libel. Appellees moved to dismiss the suit pursuant to the Texas Citizens Participation Act (the Act),
At the heart of this dispute is a single statement about Cruz that appeared in an article James Van Sickle posted September 6, 2011 on the Burnt Orange Report (BOR), a political website/blog. The internet post, entitled "Who's on First? 2012 Dallas County Electoral Preview," identified Cruz as a primary candidate for district judge of the 162nd Judicial District Court and contained the following paragraph about him:
In his live pleading, Cruz alleged the statement that he was "`thrown out ... by the police of an Elizabeth Edwards book signing event in Dallas several years ago'" was false and constituted libel per se, entitling him to damages for loss of reputation and mental anguish as well as exemplary damages.
Van Sickle filed a motion to dismiss appellant's lawsuit under the Act. Van Sickle argued that his speech was protected under the Act and Cruz could not establish by clear and specific evidence a prima facie case for libel. Musselman and Haenschen (collectively, the BOR defendants) also filed a dismissal motion under the Act. In addition to arguing Cruz's lawsuit was based on their exercise of free speech and that he failed to meet his burden of establishing a prima facie case by clear and specific evidence, they also asserted that they had no liability for publishing the article pursuant to section 230 of the Communications Decency Act. See 47 U.S.C. § 230.
The affidavits provided in support of the motions for dismissal revealed the following. Van Sickle, a general community member of the BOR website/blog, authored the article. According to Van Sickle, he wrote and posted the article to provide the public, including BOR readers, with an overview of the candidates who had announced they were running for political and judicial offices in Dallas County, Texas. Van Sickle indicated that in the paragraph about Cruz, he reported a story told to him by a third party about Cruz's conduct and eventual removal from an Elizabeth Edwards book signing event a few years earlier. Van Sickle also attested that he spoke to a source who had attended the book signing and verified the account. After speaking with other sources who reported instances of Cruz's past erratic behavior and conduct, Van Sickle stated he had no reason to doubt the veracity of the statements in his article.
Karl-Thomas Musselman owns the BOR and attested that the BOR's express purpose is to enable those involved or interested in politics, particularly those of the Democratic Party, to speak freely and address their concerns about Texas politics. Musselman contends that the BOR acts as an interactive computer service that enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet. According to Musselman, the BOR did not have knowledge of or edit Van Sickle's September 6 post before it appeared on the website. Katherine Haenschen is the editor-in-chief for the BOR. She attested that she did not have knowledge of or edit Van Sickle's September 6 post before it appeared on the BOR website.
Cruz filed a response to the motions that included his affidavit attesting that the complained-of statement was false and that none of the appellees ever asked him if it was true or told him they were going to publish the statement. After a hearing, the trial court granted appellees' motions to dismiss and awarded them attorney's fees pursuant under the Act. Cruz filed this accelerated appeal challenging numerous trial court rulings in the case.
Before analyzing the merits of this appeal, we first consider issues related to
Excluding the sections listed under appellate rule of procedure 9.4(i)(1), Cruz's amended appellate brief is about 80 pages in length and lists 121 issues complaining of ten different trial court orders in connection with this appeal.
The appellate rules also require a brief to contain a clear and concise argument for the contentions made with appropriate citations to authorities and to the record. TEX. R. APP. P. 38.1(i). The argument section of Cruz's brief consists of 69 pages of text with no headings, divisions, or groupings of any kind to provide guidance as to where the discussion appears for each of his 121 issues. It is not until 21 pages into his argument section that Cruz cites his first case, which defines what generally constitutes a defamatory statement.
Appellant has the burden to present and discuss his assertions of error in compliance with the appellate briefing rules. We have no duty, or even right, to perform an independent review of the record and applicable law to determine whether there was error. See Bolling, 315 S.W.3d at 895. For the reasons stated below, we conclude the issues identified in the remainder of this section are inadequately briefed, so we will not address them on the merits.
Cruz challenges the trial court's evidentiary rulings on numerous objections contained in (1) responses he filed to the motions to dismiss and appellees' requests for attorney's fees, and (2) the BOR defendants' response to Cruz's motion to reconsider attorney's fees.
Cruz also challenges the trial court's ruling granting Van Sickle's special exceptions and appellees' joint motion to extend time to file their motions to dismiss.
Cruz also complains about his inability to conduct discovery, other than requests for disclosure, before the trial court ruled on the motions to dismiss.
Cruz also complains that the Act's discovery suspension violated the due process
Cruz asserts the Act violates both the open courts provision and the right to trial by jury provision of the Texas Constitution "because it suspends discovery upon the filing of a motion to dismiss while placing the burden on the Plaintiffs to establish `by clear and specific evidence' a prima facie case for each essential element of their claims" (italics in original).
With respect to Cruz's remaining issues, we have generally structured our discussion to address Cruz's contentions as they appear in the argument section of his brief, considering them only to the extent they are preserved for appellate review and adequately briefed.
We begin with Cruz's general contention that the trial court erred in granting appellees' motions to dismiss.
Cruz contends we should review de novo the trial court's determinations under the Act.
Cruz contends the Act does not apply to his lawsuit because his libel claim is not based on, related to, or in response to appellees' exercise of the right of free speech.
In his motion to dismiss, Van Sickle presented affidavit testimony that he posted the article in which the complained-of statement appears to provide the public and readers of the BOR with an overview of candidates who had announced they were running for political and judicial offices in Dallas County, Texas. Similarly, Musselman attested that the BOR provides a forum for individuals to express concerns or comments about Texas politics and addresses matters of public concern such as issues pertaining to the government and information about public officials and public figures elected to public office or candidates running for elected office. Appellees asserted the internet post in question related to speech on a matter of public concern because it comments on the conduct, qualities, fitness, and temperament of a candidate for judge in an upcoming electoral race. In response to the motions, Cruz did not present any controverting evidence on this issue except to state in his affidavit opposing the motion that the objected-to statement was false and none of the appellees ever asked him if it was true.
In determining whether a lawsuit is related to the exercise of free speech under the broad language of the Act, we must look to the entire communication as well as the context of the communication in which the allegedly defamatory statement is made. Shipp, 439 S.W.3d at 438. It is undisputed that the paragraph about Cruz was written to provide information about him relevant to his primary candidacy for judge of the 162nd Judicial District Court. The paragraph recounted his unsuccessful 2010 attempt to be elected as judge of the 134th Judicial District Court and also contained the statement about the Elizabeth Edwards book signing event of which Cruz
When a person consents to become a candidate for election to public office, he puts his character in issue as it relates to his qualification for the office. Express Printing Co. v. Copeland, 64 Tex. 354, 358 (1885). Because the statements concerned Cruz's personal character and fitness for judicial office, they were a matter of public concern and thus related to appellees' freedom of speech. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3); (7)(D); see also Copeland, 64 Tex. at 358-59 (there should be freedom in discussing, in good faith, the character, the habits and mental and moral qualifications of any person presenting himself as a candidate for a public office to electors).
In reaching this conclusion, we necessarily reject Cruz's contention that a false and libelous statement cannot be a matter of public concern under the Act. Cruz presents no legal authority for his broad assertion and we have found none. To the contrary, under the Act's statutory definitions, the issue of whether a communication implicates "the exercise of the right to free speech" does not require us to determine the statement's veracity. See Kinney v. BCG Attorney Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *5 (Tex.App. — Austin April 11, 2014, pet. filed) (mem.op.).
We are also unpersuaded by Cruz's position that section 27.011(a) of the Act does not allow the complained-of statement to be construed as relating to a matter of public concern. That section provides:
TEX. CIV. PRAC. & REM. CODE ANN. § 27.011(a). Cruz seems to suggest that concluding the statement at issue relates to a matter of public concern is contrary to 27.011(a) because it would result in government officials never being allowed to recover for defamation. Once again, Cruz provides no legal support for his position other than reference to 27.011(a). Moreover, his construction of 27.011(a) runs counter to section 27.005(c) which prohibits dismissal of his libel action under the Act if Cruz establishes by clear and specific evidence a prima facie case for each element of his libel claim.
If, as here, the movants establish by a preponderance of the evidence that the action is based on or relates to their exercise of free speech, the trial court must dismiss the action unless the party who brought the action "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. at § 27.005(c). Generally, a prima facie case requires only the minimum amount of evidence necessary to support a rational inference that the allegation of fact is true. See Am. Heritage Capital, 436 S.W.3d at 874.
Here, Cruz pleaded the statement constituted libel per se because it was of such a nature to affect him as a practicing attorney and judicial candidate. See Hancock v. Variyam, 400 S.W.3d 59, 64 (Tex. 2013) (a statement injuring person in his office, profession, or occupation typically considered defamatory per se). Defamation per se claims allow the factfinder to presume general (noneconomic) damages without proof of injury when the speech is not public or when the plaintiff proves actual malice. Hancock, 400 S.W.3d at 65-66.
It is undisputed that Cruz was a candidate for judicial office on September 6, 2011, the date the article containing the complained-of statement was posted on the BOR website. We therefore apply the defamation standards applicable to public official plaintiffs. Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-72, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971) (candidates for elective public office are public officials for purposes of recovery for defamation); Freedom Newspapers of Tex. v. Cantu, 168 S.W.3d 847, 853 (Tex.2005) (sheriff candidate was public official). Cruz acknowledges that among the elements necessary to prevail on public figure/public official libel claim, he must establish by clear and specific evidence that appellees published the allegedly defamatory statement with actual malice. See WFAA-TV, Inc., v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). To establish actual malice, Cruz must show the defamatory statement was published with either knowledge of its falsity or with reckless disregard as to its truth. See Hearst Corp. v. Skeen, 159 S.W.3d 633, 637 (Tex.2005) (per curiam). To establish reckless disregard, a plaintiff must prove that the defendant "entertained serious doubts as to the truth of his publication." See id.
The only evidence attached to Cruz's responses to the appellees' motions to dismiss was his affidavit and appellees' responses to request for admissions. In his affidavit, Cruz attested that the police did not throw him out of an Elizabeth Edwards book signing and that the statement in the article that they did is entirely false. Appellees' responses to the requests for admissions merely reveal that appellees were not present at the book signing and had no personal knowledge as to whether Cruz was thrown out of the event by the police.
Cruz contends the nature of the statement itself, combined with his evidence of falsity and appellees' refusal to remove it from the website when they had no personal knowledge as to its truth, was sufficient to establish a prima facie case of actual malice. We do not agree. As noted above, Cruz must present evidence that appellees published the statement knowing it was false or with reckless disregard for its truth. See id. The evidence Cruz presented did not satisfy either of these criteria. Citing Huckabee v. Time Warner Entertainment Co., Cruz argues a defendant's selective omission of facts to purposely create a false portrayal of events can be evidence of actual malice. 19 S.W.3d 413, 425-26 (Tex.2000). But Cruz
Cruz also argues that appellees' refusal to remove the complained-of statement from the website was "primarily out of resentment towards Appellant for suing them — i.e., actual malice." Cruz's "evidence" that appellees refused to remove the statement from its website consists of BOR counsel's response to the trial judge's question during the dismissal hearing as to whether appellees had the ability pull the article down from the website. Generally, an attorney's statements must be under oath to be considered evidence. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997). Our review of the record reveals there was no evidence before the trial court at the dismissal hearing that appellees refused requests to remove the statement or that they failed to remove the statement knowing it was false or with reckless disregard as to its truth. Regardless, the actual malice standard focuses on the defendant's state of mind at the time of publication not after the defendant was sued. See id. Evidence of events after an article has been printed and distributed has been held to have little if any bearing on the defendant's state of mind at the time of publication. See Forbes Inc., 124 S.W.3d at 174.
Additionally, Cruz contends that once he lost the primary election, he was no longer a public official and only had to establish the statement was "false, defamatory and constitutes libel per se," not actual malice
Because Cruz produced no evidence that the statement of which he complains was published with actual malice, he did not meet his burden under section 27.005(c) of establishing a prima facie case for libel. Our conclusion that Cruz presented no evidence of actual malice makes it unnecessary to address his arguments concerning whether the trial court could consider appellees' evidence in determining whether Cruz met his burden under section 27.005(c).
Cruz next contends that if section 27.005(c) required him to prove by clear and specific evidence the complained-of statement was published with actual malice to defeat appellees' motions, it runs afoul of section 27.011(a) of the Act because this burden had the effect of abrogating or lessening his right to assert a libel per se claim against appellees under Texas common law.
After the trial court granted appellees' motions to dismiss, a hearing was held on January 9, 2013 on appellees' request for attorney's fees and sanctions pursuant to section 27.009(a) of the Act. At the hearing, Cruz objected to appellees presenting any evidence of attorney's fees because they had failed to respond to his requests for disclosures regarding their testifying experts on the issue of attorney's fees. The trial court continued the hearing to allow Cruz the discovery he sought.
Cruz objected to appellees' affidavits on several grounds. He also contended there was no evidence appellees incurred any attorney's fees as required under the Act. The trial court ultimately signed an order awarding the BOR defendants $158,521.50 in attorney's fees and awarding Van Sickle $31,783.75 in attorney's fees. The trial court denied appellees' request for sanctions
Cruz contends the trial court abused its discretion in sua sponte continuing the January 9 attorney's fees hearing to give appellees time to supplement their inadequate disclosure responses rather than excluding appellees' evidence of attorney's fees.
Cruz next contends that appellees' evidence on attorney's fees should have been excluded because their supplemental disclosure responses did not disclose the bases for the experts' opinions, contain the attorney's fees agreements, or the resume of the BOR defendants' attorney.
The BOR defendants' supplemental disclosure also attached billing statements and the resumes of three attorneys from the law firm who performed work on the case.
The amended disclosure also included the hourly rates for the attorneys working on the case, billing statements for the total amount of fees and expenses as of the time of the disclosure, and the resumes of two of the attorneys.
Appellees' supplemental responses disclosed the names of the attorneys who might testify about the respective party's attorney's fees and about the reasonableness and necessity of the fees based on one or more of the following: (1) factors set forth in Texas Disciplinary Rule 1.04,
In multiple issues, Cruz generally attacks the manner by which appellees sought to prove their attorney's fees.
Cruz also objects to the affidavits on the grounds they did not reference or comply with chapter 18 of the civil practice and remedies code. At the hearing, Cruz argued specifically that the affiants did not put forth the information required by section 18.002(b), which is the form of affidavit applicable for a person in charge of records. See TEX.R. CIV. P. 18.002(b) ("An affidavit concerning cost and necessity of services by the person who is in charge of records showing the service provided and the charge made is sufficient if it follows the following form...."). Because the affiants were the lead attorneys who provided legal services to appellees, section 18.002(a) was the applicable section not section 18.002(b). See TEX.R. CIV. P. 18.002(a) ("An affidavit concerning cost and necessity of services by the person who provided the service is sufficient if it follows the following form....") (emphasis added). Cruz has provided no legal authority, and we have found none, that would preclude an attorney overseeing or in charge of a file from testifying as to the reasonableness and necessity of their legal fees and the legal fees of the attorneys and staff working under them. Moreover, our review of the affidavits reveal that they substantially complied with section 18.001. See TEX.R.APP. P. 18.002(c) ("an affidavit that substantially complies with Section 18.001 is sufficient"). The affidavits were taken before an officer with authority to administer oaths, made by persons who provided the services, included itemized statements of the services and charges, and were filed and served at least 30 days before the day on which evidence was first presented to the trial court. See TEX. R.APP. P. 18.001.
As part of his argument under these issues, Cruz also makes the bold assertion that appellees drafted the fee affidavits to conceal the fact that they were filed pursuant to chapter 18 and, thus acted in a "dishonest, misleading, fraudulent and/or unethical" manner. The only evidence Cruz references to support his position are the affidavits themselves and we have already concluded they substantially comply with section 18.001. Moreover, Cruz made no objection on this basis at the March 14 hearing when he learned that appellees were relying on the affidavits to support their evidentiary burden. Instead, Cruz merely stated, "this is the first time that I realized that they are claiming that their affidavits are being filed under Chapter 18 of the Texas Civil Practice and Remedies Code. Their affidavits do not comply with the requirements of Chapter 18 of the Civil Practice and Remedies Code."
When the trial court dismisses a legal action under the Act, "the court shall award to the moving party: (1) court costs, reasonable attorney's fees, and other expenses incurred in defending against the legal action as justice and equity may require." TEX. CIV. PRAC. & REM.CODE ANN. § 27.009(a)(1). Cruz contends that the phrase "as justice and equity may require" indicates that an attorney's fees award under section 27.009(a)(1) is discretionary.
Next, Cruz generally contends the evidence was insufficient to establish the attorney's fees awarded to appellees were "incurred, reasonable, just and equitable" as required under the Act.
We recently addressed section 27.009(a)(1) in connection with a sufficiency challenge to a trial court's attorney's fees award under the Act. See Am. Heritage Capital, 436 S.W.3d at 877-78. In American Heritage Capital, we assumed without deciding reasonable attorney's fees had to be incurred for recovery under 27.009(a)(1). See id. at 877. We also interpreted "incurred" to mean liable for payment. See id. Our construction in
The BOR defendants contend that pursuant to the last antecedent rule, "incurred" only applies to "other expenses" and not "attorney's fees." The last antecedent rule states that a qualifying phrase in a statute must be confined to the words and phrases immediately preceding it to which it may, without impairing the meaning of the sentence, be applied. Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex.2000). That rule of construction, however, is "neither controlling nor inflexible." Id. (quoting City of Corsicana v. Willmann, 147 Tex. 377, 216 S.W.2d 175, 176 (1949)). Here, the use of the term "other" preceding "expenses" suggests that court costs and attorney's fees are also expenses. It makes no sense to require only expenses other than court costs and reasonable attorney's fees to be "incurred." According to the BOR defendants' construction, the legislature would have to place "incurred" after each cost listed to insure it applied to that cost item resulting in a cumbersome and awkward sentence.
No case has construed the language of section 27.0009(a)(1) as the BOR defendants suggest and we will not do so in light of the supreme court's construction of the similarly worded attorney's fees statute in Garcia, 319 S.W.3d at 642-43 ("reasonable attorney's fees and costs incurred by the physician or health care provider" requires attorney's fees to be both reasonable and incurred). Because Van Sickle and the BOR defendants were represented by different attorneys, we will separately address the propriety of each fee award based on our construction of the statute and the evidence presented below.
In support of their request for attorney's fees, the BOR defendants filed an affidavit pursuant to chapter 18 of the civil practice and remedies code. In the affidavit, their attorney attested he was licensed to practice law since 1977, was currently a partner in the law firm of Jackson Walker L.L.P, and the law firm and he represented the BOR defendants in this case. He also swore that he had personal knowledge of the facts contained in the affidavit. The affidavit incorporated a "prebill worksheet," invoice summary, and an itemized statement of the legal services the attorney and the law firm provided to the BOR defendants. The invoice summary listed total fees of $158,521.50. However, the prebill worksheet and invoice summary indicate that the BOR defendants were non-billable clients "approved by B & C." There is also a notation on the prebill worksheet stating "12/7/10: per emails, TCT1 has B & C approval to do probono (sic) work for this client.skg." Cruz argues that because the BOR defendants are being represented pro bono, they have not incurred any attorney's fees as required under section 27.009(a). We agree. The undisputed evidence demonstrates the BOR defendants
The BOR defendants cite Brown v. Commission for Lawyer Discipline, 980 S.W.2d 675, 684 (Tex.App. — San Antonio 1998, no pet.) to support their contention that even if section 27.009(a)(1) requires attorney's fees to be incurred, the statutory language "as justice and equity may require" authorizes an award of pro bono fees on public policy grounds. In Brown, the appeals court upheld the trial court's award of attorney's fees to the Commission even though lawyers represented it on a pro bono basis. Id. at 684. The court rejected Brown's argument that the Commission could only recover attorney's fees actually incurred, noting applicable disciplinary rules did not require "fees be contracted-for or incurred; the rules merely require that an award of attorney fees be reasonable."
The BOR defendants also rely on federal cases permitting pro bono attorneys to recover fees under the Equal Access to Justice Act for public policy reasons even though the EAJA expressly authorizes a prevailing party to receive an award for attorney's fees "incurred." We do not find the federal cases persuasive here, particularly in light of Garcia and Aviles defining "incurred" in a similar attorney's fees statute to mean fees that have been paid or for which one has become liable. We must give effect to the language used by the legislature and it is not our place to substitute our view of public policy for that of the legislature. See Curry v. Harris Cnty. Appraisal Dist., 434 S.W.3d 815, 823 (Tex. App. — Houston [14th Dist.] 2014, no pet.).
Finally, the BOR defendants direct us to the omission of the term "incurred" in the section permitting the trial court to award costs and reasonable attorney's fees to the party responding to the motion to dismiss if the court finds the dismissal motion is frivolous or solely intended to delay. See TEX. CIV. PRAC. & REM.CODE ANN. § 27.009(b) ("If the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney's fees to the responding party."). They argue it would be absurd to preclude
"The absurdity safety valve is reserved for truly exceptional cases and mere oddity does not equal absurdity." Jaster v. Comet II Constr. Inc., 438 S.W.3d 556, 569 (Tex.2014) (citing Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 630 (Tex.2013)). The legislature has chosen to treat movants and respondents differently regarding the recovery of attorney's fees under the Act. For example, although an award of reasonable attorney's fees incurred is mandatory for a successful movant, a fee award to a successful respondent is completely discretionary and requires a finding the motion was frivolous or solely intended to delay. We therefore cannot conclude that requiring attorney's fees to be "incurred" for a mandatory award while omitting that requirement for a discretionary award is absurd.
Because the undisputed evidence before us establishes that their attorneys represented them pro bono, the BOR defendants did not incur any attorney's fees in defending against Cruz's lawsuit. Accordingly, they were not entitled an award for attorney's fees pursuant to the Act. Based on the record before us, we conclude the trial court erred in awarding attorney's fees to the BOR defendants.
The fee affidavit of Van Sickle's attorney filed with the trial court stated that her law firm was retained by Van Sickle to represent him in this matter. She also stated the fees and expenses her firm charged in connection with the representation of Van Sickle were reasonable and necessary. Attached to the affidavit were three invoices addressed to Van Sickle, each detailing the nature of the legal work performed, the time expended for the work, and the attorney performing the work. At the end of each invoice is a summary of the fees and disbursements, and a "balance now due" together with a remittance form for payment. The last invoice, dated January 31, 2013, combines the outstanding amounts of the two preceding invoices for a total "balance now due" of $32,317.65. Although there is no indication that Van Sickle paid these invoices, we conclude the record contains some evidence that Van Sickle was personally liable for the invoices and thus incurred the attorney's fees invoiced. The invoices were addressed to him, contained a balance due, and a remittance form for payment. Accordingly, we reject Cruz's contention that there was no evidence Van Sickle incurred attorney's fees. See Garcia, 319 S.W.3d at 642-43.
Cruz concludes, without any discussion of the evidence before the trial court, that the attorney's fees awarded bore no relationship to what a lawyer would reasonably charge to defend such a case or what a reasonably sophisticated client would agree to pay. We have already concluded Van Sickle's attorney's fee affidavit substantially complied with section 18.001. The affidavit also supports the full amount of the trial court's award to Van Sickle. Because Cruz did not file a controverting affidavit, Van Sickle's affidavit
To support his contention that justice and equity do not support the award of attorney's fees, Cruz returns to the merits of his underlying lawsuit which we have already concluded was properly dismissed. The language "as justice and equity may require" was added by a senate amendment to the house bill's version of section 29.009 to ensure a court could award attorney's fees that were less than what the attorney typically charges, if appropriate.
Cruz asserts that section 27.009 only permits the trial court to award attorney's fees incurred up to the time of dismissal of the legal action.
We are required to construe the Act liberally to effectuate its purpose and intent fully. TEX. CIV. PRAC. & REM.CODE ANN. § 27.011(b). The Act defines "legal action" as a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief. Id. § 27.001(6). In the case before us, Van Sickle sought and received attorney's fees through January 31, 2013. A review of the billing statements attached to the affidavit reveals that after the December 10 dismissal order, Van Sickle incurred attorney's fees with respect to reviewing the dismissal order, Cruz's motion for new trial, and their request for attorney's fees under the Act. All of these fees were incurred in connection with Van Sickle's defense of Cruz's libel lawsuit against him. Accordingly, the trial court did not err in awarding attorney's fees incurred after December 10 dismissal order.
The sole legal authority Cruz provides to support his narrow construction of the Act's statutory language on attorney's fees is Twin City Fire Insurance Co. v. Vega-Garcia, 223 S.W.3d 762 (Tex.App. — Dallas 2007, pet. denied). Vega-Garcia involved attorney's fees awarded in matters involving worker's compensation benefits. See TEX. LAB.CODE ANN. §§ 408.147, .221 (West 2006). We held that because the statutory scheme expressly limited recovery of attorney's fees to those incurred as a result of issues unsuccessfully raised by an insurance carrier in a suit for judicial review, claimant Vega-Garcia could not recover fees incurred in pursuit of fees when "the issue of attorney's fees was not an issue on
We resolve Cruz's issues 93-96 in his favor to the extent that we reverse that part of the trial court's judgment awarding attorney's fees to the BOR defendants. We render judgment that the BOR defendants take nothing on their request for attorney's fees. We resolve all remaining issues against Cruz and affirm the trial court's judgment in all other respects.
