Preview
10/22/2019 11:34 AM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-19-000768 D-1-GN-19-000768
Aaron Cobb
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DR. LAWRENCE BRODER, M.D., § IN THE DISTRICT COURT
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ROUND ROCK MEDICAL §
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AESTHETICS & URGENT CARE §
PLLC D/B/A BELEZA MEDSPA, §
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Plaintiffs, §
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v. § 261ST JUDICIAL DISTRICT
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§
§
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NEXSTAR BROADCAST GROUP, §
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INC., KXAN-TV, AND JODY BARR, §
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Defendants. § TRAVIS COUNTY, TEXAS
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DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON
ATTORNEY FEES, COURT COSTS, EXPENSES, AND SANCTIONS
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COME NOW Defendants Nexstar Broadcast Group, Inc. (“Nexstar”), KXAN-TV
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(“KXAN”), 1 and Jody Barr (“Barr”) (collectively, “Defendants”), by and through their
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undersigned counsel, and file their Response to Plaintiffs’ Motion for New Trial on Attorney Fees,
Court Costs, Expenses, and Sanctions (the “Motion”), and in support thereof respectfully state as
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follows:
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I.
INTRODUCTION
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“The purpose of a motion for new trial is to provide an opportunity for the trial court to
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cure any errors by granting a new trial.” D/FW Commercial Roofing Co., Inc. v. Mehra, 854
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S.W.2d 182, 189 (Tex. App.—Dallas 1993, no writ). Rather than asking this Court to correct an
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error, Plaintiffs, through their Motion for New Trial on Attorney Fees, Court Costs, Expenses, and
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1
Neither Nexstar Broadcast Group, Inc. nor KXAN-TV are legal entities.The correct legal entity is Nexstar
Broadcasting, Inc. Nexstar Broadcasting, Inc. is a Delaware corporation headquartered in Irving, Texas.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 1
FEES, COURT COSTS, EXPENSES, AND SANCTIONS
Sanctions (the “Motion for New Trial”), are instead asking this Court to change its mind regarding
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the proper exercise of its authority under the Texas Citizens Participation Act (“TCPA”), Texas’s
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Anti-SLAPP statute. See TEX. CIV. PRAC. & REM. CODE § 27.001, et seq. This Court properly
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assessed attorney’s fees, court costs, expenses, and sanctions, as it was required to do under the
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TCPA. Now, Plaintiffs are simply seeking a second opportunity to challenge this Court’s fee
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award, after they failed to meaningfully do so at the proper time. This Court need not provide such
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an opportunity.
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The record before the Court was sufficient to establish that Lawrence Broder brought a
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meritless lawsuit in response to Defendants’ exercise of the right of free speech. Defendants
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reported truthfully and accurately about a matter of public concern: namely,
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Board’s complaint adjudication procedures. In the course of their reporting, Defendants discussed
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Broder’s history of TMB complaints, describing a pending complaint against Broder that had not
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been made public at the time a young surgery patient died from complications arising from a
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procedure Dr. Broder performed. In response, Plaintiffs brought a meritless defamation action
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against Defendants in retaliation for their reporting. Defendants moved to dismiss pursuant to the
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TCPA, and this Court rightfully applied the statute by dismissing Broder’s lawsuit and assessing
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fees, costs, expenses, and sanctions as mandated by the TCPA.
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This Court need not second-guess itself at Plaintiffs’ urging. However, even if it were to
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do so, it would find that its assessment of fees and sanctions were procedurally proper and
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necessary to deter similar meritless lawsuits in the future. Defendants warned Broder at the outset
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of this case—both in pre-suit correspondence and in their Answer—that they would move to
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dismiss under the TCPA if he continued to prosecute his meritless lawsuit and explained the
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DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 2
FEES, COURT COSTS, EXPENSES, AND SANCTIONS
deficiencies in his claim. This did not deter Plaintiff. Rather, Defendants were forced to incur
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significant costs to defend themselves from Broder’s facially meritless lawsuit.
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To make matters worse, Plaintiffs’ filings in this case were excessive. In addition to
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Plaintiffs’ Petition exceeding 40 pages and alleging several causes of action, Plaintiffs filed over
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900 pages in response to Defendants’ Anti-SLAPP Motion, including more than 100 pages of
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briefing and numerous exhibits. Many of Defendants’ supporting exhibits were inadmissible,
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irrelevant, or otherwise improper, 2 which necessitated an extensive Motion to Strike Plaintiffs’
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Evidence. In addition, Plaintiffs further drove up Defendants’ cost of defense by filing an eleventh-
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hour motion for discovery. In light of this, this Court’s assessment of fees and sanctions was
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warranted and appropriate, and Plaintiffs’ Motion for New Trial does not establish the error that
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would require this Court to revisit its decision.
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II.
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ARGUMENT
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A. A new trial is inappropriate here.
Motions for a new trial are appropriate to point out errors committed by the Court and
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allow the Court an opportunity to correct such errors. Indeed, “[t]he primary purpose of a motion
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for new trial is to give the trial judge an opportunity to cure any errors by granting a new trial.”
Texas Dept. of Pub. Safety v. Fecci, 989 S.W.2d 135, 138 (Tex. App.—San Antonio 1999, pet.
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denied); D/FW Commercial Roofing Co., Inc. v. Mehra, 854 S.W.2d 182, 189 (Tex. App.—Dallas
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1993, no writ). In order to fulfill the purpose of a motion for new trial, the allegations in a motion
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Plaintiffs’ Response included unredacted medical records of a deceased Beleza Medspa patient, including sensitive
photographs and unredacted protected health information, which prompted a letter from the Texas Medical Board
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demanding that the parties immediately take appropriate measures to protect the information. As a result of this
oversight, Defendants were required to analyze the implications of Plaintiffs’ actions in attaching protected health
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information, which required Defendants to object and also to ensure Defendants were not exacerbating the problem
or doing anything to further any damage caused by the improper disclosure by Plaintiffs.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 3
FEES, COURT COSTS, EXPENSES, AND SANCTIONS
for new trial must be sufficiently specific to enable the trial court to clearly understand what is
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being alleged as error. D/FW Commercial Roofing Co., Inc., 854 S.W.2d at 189. The rules
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governing motions for new trial are for the benefit of the trial court; they are designed to require
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presentation to the trial judge of each ruling or error complained of in such a way that the trial
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judge can clearly identify and understand it in order that the trial judge may have a full and fair
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opportunity to correct any errors or grant a new trial if need be. Smith v. Brock, 514 S.W.2d 140,
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143 (Tex. Civ. App.—Texarkana 1974, no writ).
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Here, Plaintiffs have not presented the Court with an opportunity to correct a clearly
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identified error. Rather, Plaintiffs’ Motion for a New Trial amounts to little more than a request
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for a do-over to address its own failure to respond to Defendants’ request for attorney’s fees or
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seek a ruling on the evidentiary objections lodged in their Response to Defendants’ TCPA Motion.
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It does not identify any error by the Court that requires this Court’s correction.
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Plaintiff argues that the Court erred by failing to set a deadline for Plaintiffs to respond to
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Defendants’ request for attorney’s fees. However, no such obligation exists under the TCPA or
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any other statute. See TEX. CIV. PRAC. & REM. CODE § 27.009 (governing the Court’s award of
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attorney’s fees, expenses, and sanctions for successful movants). Nor did this Court impose a
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briefing schedule on Defendants’ request for attorney’s fees beyond the 14-day deadline for
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Defendants to submit an affidavit in support of its request for fees or otherwise guarantee Plaintiffs
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an opportunity to respond to Defendants’ application for fees. 3 Rather than provide specific
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Plaintiffs cite to the Court’s statement that it would “let both [parties] know if [the Court] need[s] additional briefing”
to suggest that it was unfairly not offered an opportunity to respond. See Mot. for New Trial at 5. However, this
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statement was made in response to Defendants’ request that it be allowed to file a supplemental brief given the last-
minute filing of Plaintiffs’ Response to the TCPA Motion. (Mot. for New Trial, Ex. A at 66.) In context, it is clear
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that the Court was referring to briefing on the merits of the TCPA Motion, not regarding the need for additional
briefing on Defendants’ entitlement to attorney’s fees.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 4
FEES, COURT COSTS, EXPENSES, AND SANCTIONS
instances of error, Plaintiffs offer general protestations regarding how the Court awarded their fees
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and the amount of the award, without reference to any statutory, common-law, or procedural
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requirement that the Court failed to observe. A motion for new trial is not appropriate here because
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Plaintiffs have failed to identify with any specificity any error that requires this Court’s attention
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or correction. Their Motion should be denied accordingly.
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B. The Court correctly assessed fees, costs, expenses, and sanctions pursuant to the
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TCPA.
The stated legislative purpose of the TCPA is to encourage and safeguard constitutional
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rights of one to speak freely, associate freely, and petition the government. TEX. CIV. PRAC. &
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REM. CODE § 27.002. To achieve this goal, the TCPA provides a mechanism for early and efficient
disposition of meritless lawsuits, requiring courts toct
determine at an early stage whether a suit
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affecting such rights has merit in order to minimize the chilling impact of retaliatory litigation.
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Pursuant to TCPA § 27.009, the Court must award Defendants’ court costs, attorney’s fees, and
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other expenses incurred in defending against the action as justice and equity may require. In
deciding the amount of attorney’s fees and sanctions to award, the TCPA dictates that a Court must
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construe the statute liberally to fully effectuate the stated statutory purpose. See TEX. CIV. PRAC.
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& REM. CODE § 27.011. To date, Texas trial courts have awarded TCPA fees in amounts far in
excess of this Court’s, and as high as $350,000, $349,421.50, $251,689.29, $187,310.32, and
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$176,078.94. 4 In fact, the Texas Supreme Court has expressly stated that the award of reasonable
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4
Schlumberger, et al. v. Rutherford, Cause No. 2014-13621; in the 127th District Court of Harris County, Texas
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(awarding attorney’s fees of $350,000 and sanctions of $250,000) aff’d, 472 S.W.3d 881 (Tex. App.—Houston [1st
Dist.] 2015, no pet.); Mohamed, et al. v. The Blaze, Inc., et. al., No. DC-16-12579 (162nd Dist. Ct., Dallas County,
Tex. December 27, 2016) (awarding attorney’s fees of $349,421.50); Robinson v. The Walt Disney Company, et al.,
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Cause No. 2011-54895, in the 234th District Court of Harris County, Texas (awarding attorney’s fees of $251,689.29),
aff’d, 2016 WL 1267990 (Tex. App.—Houston [1st Dist.] March 31, 2016, pet. denied); Kristina Head v. Chicory
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Media, LLC, et al., Cause No. 2013-0040, in the 71st District Court of Harrison County, Texas (awarding attorney’s
fees of $187,310.32), appeal dismissed, 415 S.W.3d 559 (Tex. App.—Texarkana 2013, no pet.); Crazy Hotel Assisted
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 5
FEES, COURT COSTS, EXPENSES, AND SANCTIONS
attorney’s fees is mandatory. Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016) (“Based on
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the statute's language and punctuation, we conclude that the TCPA requires an award of
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‘reasonable attorney's fees' to the successful movant.”).
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Here, Defendants’ fees were reasonable, and this Court’s decision to award fees was based
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on significant evidentiary support. Defendants provided more than 50 pages of support for its
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request for attorney’s fees in the form of an Affidavit of Catherine Robb and accompanying
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exhibits, including a detailed breakdown of their itemized invoices and time entries. Those entries
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established that Defendants’ fees were reasonable in light of defense counsel’s experience and the
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unique circumstances of the case. For example, Defendants were forced to spend considerable time
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and resources attempting to respond to the vague and unclear allegations and to attempt to ensure
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they were addressing every possible basis for claimed relief. In addition, because the matter
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involved monitoring and analyzing multiple proceedings before the Texas Medical Board, a multi-
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part series of reports (all of which Plaintiff placed at issue), a very litigious Plaintiff (Broder), who
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continued to be a topic of public interest in the community because of the multiple TMB
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Complaints filed against him, and patient privacy issues, Defendants were required to conduct
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additional research into Plaintiffs (including past complaints and litigation), the underlying
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proceedings discussed in the reports, practices and procedures before the Texas Medical Board,
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and patient privacy laws, among other things.
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Significant time and resources were necessary to conduct the factual and legal research to
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prepare an Answer and TCPA Motion sufficient to address Plaintiffs’ allegations and present
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Defendants’ defenses. Additionally, Defendants’ fees were increased significantly by having to
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Living, Ltd., et al. v. Newspaper Holdings, Inc., et al., Cause No. 2011-74615, in the 234th District Court of Harris
County, Texas (awarding attorney’s fees of $176,078.94).
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 6
FEES, COURT COSTS, EXPENSES, AND SANCTIONS
review, analyze, and be prepared to respond to Plaintiffs’ over nine-hundred-page Response to
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Defendants’ TCPA Motion (over a hundred pages of which were the response itself), respond to
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the untimely filed Motion for Continuance and improper setting of a hearing on same, and respond
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to the last minute Motion for Discovery filed on the eve of the hearing on Defendants’ TCPA
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Motion. In particular, in addition to the legal arguments made in Plaintiffs’ response, Defendants
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were also required to respond—and object to—Plaintiffs’ evidence, much of which was
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objectionable and inadmissible (and filed in violation of HIPAA) and required a separate motion
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requesting that the evidence be struck. 5 Analyzing and responding to Plaintiffs’ evidence (and its
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use in the Response, including the drafting and filing of objections) alone required Defendants to
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incur approximately $15,000 in additional attorney’s fees. tri
Furthermore, despite having previously reached an agreement to have the hearing on the
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TCPA Motion held on June 11, 2019, Plaintiffs filed a last-minute motion for discovery and for
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continuance, which was improperly set for a hearing simultaneous with Defendants’ TCPA Motion
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and which required Defendants to undertake additional last-minute work in order to file a response
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and be prepared for argument in time for the June 11, 2019 hearing. In particular, not only did
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Defendants have to respond to the motion itself, but they also had to brief the issue of Plaintiffs’
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improper setting and respond to Plaintiffs’ attempts to set the motion for a hearing without proper,
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and timely, notice of same. Given Plaintiffs’ no-holds-barred litigation strategy and eleventh-hour
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filings, Defendants’ attorney’s fees were reasonable, and this Court did not err in granting
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Defendants’ request for such fees under the TCPA.
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5
Although Plaintiffstake issue with Mr. Lewis’s attendance at the hearing, he was responsible for briefing the
evidentiary objections and was prepared to argue the objections at the hearing on Defendants’ Motion to Dismiss. At
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the Court’s suggestion, Defendants did not present oral argument on the evidentiary objections, but Mr. Lewis was
required to prepare for and attend the hearing nonetheless.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 7
FEES, COURT COSTS, EXPENSES, AND SANCTIONS
Texas Civil Practice & Remedies Code § 27.009 also provides for a mandatory award of
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sanctions in an amount the Court determines is sufficient to prevent Plaintiffs from bringing
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actions similar to this action in the future. The amount of the sanctions award is left to the Court’s
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discretion, and courts have “broad discretion to determine what amount is sufficient to deter the
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party from bringing similar actions in the future” under the TCPA. Kinney v. BCG Attorney Search,
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Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *11 (Tex. App.—Austin Apr. 11, 2014, pet.
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denied) (mem. op.). Sanctions as high as $450,000, $250,000, $85,000, $75,000 and $55,000 have
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been awarded by courts in TCPA matters. 6
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Here, given that Defendants’ apprised Plaintiffs of their intention to move to dismiss
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pursuant to the TCPA on multiple occasions, the facially meritless nature of Plaintiffs’ case, and
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the excessive pleadings and motion practice, sanctions were particularly appropriate. This Court
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properly exercised its broad discretion under the statute to assess a sanctions award that would be
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likely, in its judgment, to deter Plaintiffs from engaging in future similar conduct. Plaintiffs have
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failed to demonstrate that the award was erroneous, and their Motion for New Trial on the issue
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of sanctions should be denied.
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6
Landry’s, Inc. v. Animal Legal Defense Fund, No. 2016-79698 (334th Dist. Ct., Harris County, Tex., Feb. 22, 2017)
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(awarding movants sanctions of $450,000 and attorney’s fees of approximately $175,000); Schlumberger v.
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Rutherford, Cause No. 2014-13621, in the 127th DistrictCourt of Harris County, Texas (awarding sanctions of
$250,0000), aff’d, 472 S.W.3d 881; Simpton, et al. v. High Plains Broad., Inc., et al., Cause No. 2011-13290 , in the
285th Dist. Ct., Bexar County, Tex. (awarding $85,000 in sanctions); BCG Attorney Search, Inc. v. Robert Kinney,
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Cause No. D-1-GN-12-0012521, in the 353rd Dist. Ct., Travis County ($75,000 in sanctions awarded), aff’d, Kinney
v. BCG Attorney Search, Inc., 2014 WL 1432012 (Tex. App.—Austin, pet. denied) (mem. op.); Head v. Chicory
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Media, LLC, Cause No. 2013-0040, in the 714st Dist. Ct., Harrison County, Tex. 2013) (awarding a total of $55,000
in sanctions), appeal dismissed, 415 S.W.3d 559 (Tex. App.—Texarkana 2013, no pet.).
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 8
FEES, COURT COSTS, EXPENSES, AND SANCTIONS
III.
CONCLUSION
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Motions for a new trial are intended to correct clear errors in trial courts’ rulings. Plaintiffs
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have identified no such errors; instead, Plaintiffs are ostensibly requesting a new trial because they
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disagree with the Court’s assessment of fees (which are mandatory under the TCPA), and
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sanctions, which this Court has broad discretion to assess. Plaintiffs had ample opportunity to
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object to Defendants’ request for fees, but they did not. Now, Plaintiffs are simply seeking a second
opportunity to challenge this Court’s fee award, after they failed to meaningfully do so at the
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proper time. Their Motion should be denied.
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Respectfully submitted,
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HAYNES AND BOONE, LLP
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By:/s/ Catherine L. Robb
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Laura Lee Prather
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State Bar No. 16234200
laura.prather@haynesboone.com
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Catherine L. Robb
State Bar No. 24007924
catherine.robb@haynesboone.com
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Wesley D. Lewis
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State Bar No. 24106204
wesley.lewis@haynesboone.com
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600 Congress Avenue, Suite 1300
Austin, Texas 78701
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Telephone: (512) 867-8400
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Telecopier: (512) 867-8470
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ATTORNEYS FOR DEFENDANTS
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DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 9
FEES, COURT COSTS, EXPENSES, AND SANCTIONS
CERTIFICATE OF SERVICE
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The above signed certifies that a true and correct copy of the foregoing was served via e-
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service on the 22nd day of October, 2019 to:
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Amy Welborn
HAWKINS PARNELL & YOUNG, LLP
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1717 West 6th Street, Suite 250
Austin, Texas 78703
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awelborn@hpylaw.com
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D. Todd Smith
Smith Law Group
1250 Capitol of Texas Highway South
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Building 3, Suite 400
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Austin, TX 78746
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todd@appealsplus.com
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COUNSEL FOR PLAINTIFFS tri
/s/ Catherine L. Robb
Catherine L. Robb
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DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 10
FEES, COURT COSTS, EXPENSES, AND SANCTIONS
Preview
10/22/2019 11:34 AM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-19-000768 D-1-GN-19-000768 Aaron Cobb e DR. LAWRENCE BRODER, M.D., § IN THE DISTRICT COURT ic ROUND ROCK MEDICAL § Pr AESTHETICS & URGENT CARE § PLLC D/B/A BELEZA MEDSPA, § L. § Plaintiffs, § a § lv § v. § 261ST JUDICIAL DISTRICT Ve § § k NEXSTAR BROADCAST GROUP, § er INC., KXAN-TV, AND JODY BARR, § § Cl Defendants. § TRAVIS COUNTY, TEXAS ct DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY FEES, COURT COSTS, EXPENSES, AND SANCTIONS tri COME NOW Defendants Nexstar Broadcast Group, Inc. (“Nexstar”), KXAN-TV D is (“KXAN”), 1 and Jody Barr (“Barr”) (collectively, “Defendants”), by and through their . Co undersigned counsel, and file their Response to Plaintiffs’ Motion for New Trial on Attorney Fees, Court Costs, Expenses, and Sanctions (the “Motion”), and in support thereof respectfully state as is av follows: Tr I. INTRODUCTION y “The purpose of a motion for new trial is to provide an opportunity for the trial court to op cure any errors by granting a new trial.” D/FW Commercial Roofing Co., Inc. v. Mehra, 854 l c S.W.2d 182, 189 (Tex. App.—Dallas 1993, no writ). Rather than asking this Court to correct an ia fic error, Plaintiffs, through their Motion for New Trial on Attorney Fees, Court Costs, Expenses, and of Un 1 Neither Nexstar Broadcast Group, Inc. nor KXAN-TV are legal entities.The correct legal entity is Nexstar Broadcasting, Inc. Nexstar Broadcasting, Inc. is a Delaware corporation headquartered in Irving, Texas. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 1 FEES, COURT COSTS, EXPENSES, AND SANCTIONS Sanctions (the “Motion for New Trial”), are instead asking this Court to change its mind regarding e the proper exercise of its authority under the Texas Citizens Participation Act (“TCPA”), Texas’s ic Pr Anti-SLAPP statute. See TEX. CIV. PRAC. & REM. CODE § 27.001, et seq. This Court properly L. assessed attorney’s fees, court costs, expenses, and sanctions, as it was required to do under the a TCPA. Now, Plaintiffs are simply seeking a second opportunity to challenge this Court’s fee lv award, after they failed to meaningfully do so at the proper time. This Court need not provide such Ve an opportunity. k er The record before the Court was sufficient to establish that Lawrence Broder brought a Cl meritless lawsuit in response to Defendants’ exercise of the right of free speech. Defendants ct reported truthfully and accurately about a matter of public concern: namely, tri the Texas Medical Board’s complaint adjudication procedures. In the course of their reporting, Defendants discussed is Broder’s history of TMB complaints, describing a pending complaint against Broder that had not D been made public at the time a young surgery patient died from complications arising from a . Co procedure Dr. Broder performed. In response, Plaintiffs brought a meritless defamation action is against Defendants in retaliation for their reporting. Defendants moved to dismiss pursuant to the av TCPA, and this Court rightfully applied the statute by dismissing Broder’s lawsuit and assessing Tr fees, costs, expenses, and sanctions as mandated by the TCPA. y op This Court need not second-guess itself at Plaintiffs’ urging. However, even if it were to c do so, it would find that its assessment of fees and sanctions were procedurally proper and l ia necessary to deter similar meritless lawsuits in the future. Defendants warned Broder at the outset fic of this case—both in pre-suit correspondence and in their Answer—that they would move to of dismiss under the TCPA if he continued to prosecute his meritless lawsuit and explained the Un DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 2 FEES, COURT COSTS, EXPENSES, AND SANCTIONS deficiencies in his claim. This did not deter Plaintiff. Rather, Defendants were forced to incur e significant costs to defend themselves from Broder’s facially meritless lawsuit. ic Pr To make matters worse, Plaintiffs’ filings in this case were excessive. In addition to L. Plaintiffs’ Petition exceeding 40 pages and alleging several causes of action, Plaintiffs filed over a 900 pages in response to Defendants’ Anti-SLAPP Motion, including more than 100 pages of lv briefing and numerous exhibits. Many of Defendants’ supporting exhibits were inadmissible, Ve irrelevant, or otherwise improper, 2 which necessitated an extensive Motion to Strike Plaintiffs’ k er Evidence. In addition, Plaintiffs further drove up Defendants’ cost of defense by filing an eleventh- Cl hour motion for discovery. In light of this, this Court’s assessment of fees and sanctions was ct warranted and appropriate, and Plaintiffs’ Motion for New Trial does not establish the error that tri would require this Court to revisit its decision. is II. D ARGUMENT . Co A. A new trial is inappropriate here. Motions for a new trial are appropriate to point out errors committed by the Court and is allow the Court an opportunity to correct such errors. Indeed, “[t]he primary purpose of a motion av Tr for new trial is to give the trial judge an opportunity to cure any errors by granting a new trial.” Texas Dept. of Pub. Safety v. Fecci, 989 S.W.2d 135, 138 (Tex. App.—San Antonio 1999, pet. y op denied); D/FW Commercial Roofing Co., Inc. v. Mehra, 854 S.W.2d 182, 189 (Tex. App.—Dallas c 1993, no writ). In order to fulfill the purpose of a motion for new trial, the allegations in a motion l ia fic 2 Plaintiffs’ Response included unredacted medical records of a deceased Beleza Medspa patient, including sensitive photographs and unredacted protected health information, which prompted a letter from the Texas Medical Board of demanding that the parties immediately take appropriate measures to protect the information. As a result of this oversight, Defendants were required to analyze the implications of Plaintiffs’ actions in attaching protected health Un information, which required Defendants to object and also to ensure Defendants were not exacerbating the problem or doing anything to further any damage caused by the improper disclosure by Plaintiffs. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 3 FEES, COURT COSTS, EXPENSES, AND SANCTIONS for new trial must be sufficiently specific to enable the trial court to clearly understand what is e being alleged as error. D/FW Commercial Roofing Co., Inc., 854 S.W.2d at 189. The rules ic Pr governing motions for new trial are for the benefit of the trial court; they are designed to require L. presentation to the trial judge of each ruling or error complained of in such a way that the trial a judge can clearly identify and understand it in order that the trial judge may have a full and fair lv opportunity to correct any errors or grant a new trial if need be. Smith v. Brock, 514 S.W.2d 140, Ve 143 (Tex. Civ. App.—Texarkana 1974, no writ). k er Here, Plaintiffs have not presented the Court with an opportunity to correct a clearly Cl identified error. Rather, Plaintiffs’ Motion for a New Trial amounts to little more than a request ct for a do-over to address its own failure to respond to Defendants’ request for attorney’s fees or tri seek a ruling on the evidentiary objections lodged in their Response to Defendants’ TCPA Motion. is It does not identify any error by the Court that requires this Court’s correction. D Plaintiff argues that the Court erred by failing to set a deadline for Plaintiffs to respond to . Co Defendants’ request for attorney’s fees. However, no such obligation exists under the TCPA or is any other statute. See TEX. CIV. PRAC. & REM. CODE § 27.009 (governing the Court’s award of av attorney’s fees, expenses, and sanctions for successful movants). Nor did this Court impose a Tr briefing schedule on Defendants’ request for attorney’s fees beyond the 14-day deadline for y op Defendants to submit an affidavit in support of its request for fees or otherwise guarantee Plaintiffs c an opportunity to respond to Defendants’ application for fees. 3 Rather than provide specific l ia fic 3 Plaintiffs cite to the Court’s statement that it would “let both [parties] know if [the Court] need[s] additional briefing” to suggest that it was unfairly not offered an opportunity to respond. See Mot. for New Trial at 5. However, this of statement was made in response to Defendants’ request that it be allowed to file a supplemental brief given the last- minute filing of Plaintiffs’ Response to the TCPA Motion. (Mot. for New Trial, Ex. A at 66.) In context, it is clear Un that the Court was referring to briefing on the merits of the TCPA Motion, not regarding the need for additional briefing on Defendants’ entitlement to attorney’s fees. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 4 FEES, COURT COSTS, EXPENSES, AND SANCTIONS instances of error, Plaintiffs offer general protestations regarding how the Court awarded their fees e and the amount of the award, without reference to any statutory, common-law, or procedural ic Pr requirement that the Court failed to observe. A motion for new trial is not appropriate here because L. Plaintiffs have failed to identify with any specificity any error that requires this Court’s attention a or correction. Their Motion should be denied accordingly. lv B. The Court correctly assessed fees, costs, expenses, and sanctions pursuant to the Ve TCPA. The stated legislative purpose of the TCPA is to encourage and safeguard constitutional k er rights of one to speak freely, associate freely, and petition the government. TEX. CIV. PRAC. & Cl REM. CODE § 27.002. To achieve this goal, the TCPA provides a mechanism for early and efficient disposition of meritless lawsuits, requiring courts toct determine at an early stage whether a suit tri affecting such rights has merit in order to minimize the chilling impact of retaliatory litigation. D is Pursuant to TCPA § 27.009, the Court must award Defendants’ court costs, attorney’s fees, and . Co other expenses incurred in defending against the action as justice and equity may require. In deciding the amount of attorney’s fees and sanctions to award, the TCPA dictates that a Court must is av construe the statute liberally to fully effectuate the stated statutory purpose. See TEX. CIV. PRAC. Tr & REM. CODE § 27.011. To date, Texas trial courts have awarded TCPA fees in amounts far in excess of this Court’s, and as high as $350,000, $349,421.50, $251,689.29, $187,310.32, and y op $176,078.94. 4 In fact, the Texas Supreme Court has expressly stated that the award of reasonable l c ia 4 Schlumberger, et al. v. Rutherford, Cause No. 2014-13621; in the 127th District Court of Harris County, Texas fic (awarding attorney’s fees of $350,000 and sanctions of $250,000) aff’d, 472 S.W.3d 881 (Tex. App.—Houston [1st Dist.] 2015, no pet.); Mohamed, et al. v. The Blaze, Inc., et. al., No. DC-16-12579 (162nd Dist. Ct., Dallas County, Tex. December 27, 2016) (awarding attorney’s fees of $349,421.50); Robinson v. The Walt Disney Company, et al., of Cause No. 2011-54895, in the 234th District Court of Harris County, Texas (awarding attorney’s fees of $251,689.29), aff’d, 2016 WL 1267990 (Tex. App.—Houston [1st Dist.] March 31, 2016, pet. denied); Kristina Head v. Chicory Un Media, LLC, et al., Cause No. 2013-0040, in the 71st District Court of Harrison County, Texas (awarding attorney’s fees of $187,310.32), appeal dismissed, 415 S.W.3d 559 (Tex. App.—Texarkana 2013, no pet.); Crazy Hotel Assisted DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 5 FEES, COURT COSTS, EXPENSES, AND SANCTIONS attorney’s fees is mandatory. Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016) (“Based on e the statute's language and punctuation, we conclude that the TCPA requires an award of ic Pr ‘reasonable attorney's fees' to the successful movant.”). L. Here, Defendants’ fees were reasonable, and this Court’s decision to award fees was based a on significant evidentiary support. Defendants provided more than 50 pages of support for its lv request for attorney’s fees in the form of an Affidavit of Catherine Robb and accompanying Ve exhibits, including a detailed breakdown of their itemized invoices and time entries. Those entries k er established that Defendants’ fees were reasonable in light of defense counsel’s experience and the Cl unique circumstances of the case. For example, Defendants were forced to spend considerable time ct and resources attempting to respond to the vague and unclear allegations and to attempt to ensure tri they were addressing every possible basis for claimed relief. In addition, because the matter is involved monitoring and analyzing multiple proceedings before the Texas Medical Board, a multi- D part series of reports (all of which Plaintiff placed at issue), a very litigious Plaintiff (Broder), who . Co continued to be a topic of public interest in the community because of the multiple TMB is Complaints filed against him, and patient privacy issues, Defendants were required to conduct av additional research into Plaintiffs (including past complaints and litigation), the underlying Tr proceedings discussed in the reports, practices and procedures before the Texas Medical Board, y op and patient privacy laws, among other things. c Significant time and resources were necessary to conduct the factual and legal research to l ia prepare an Answer and TCPA Motion sufficient to address Plaintiffs’ allegations and present fic Defendants’ defenses. Additionally, Defendants’ fees were increased significantly by having to of Un Living, Ltd., et al. v. Newspaper Holdings, Inc., et al., Cause No. 2011-74615, in the 234th District Court of Harris County, Texas (awarding attorney’s fees of $176,078.94). DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 6 FEES, COURT COSTS, EXPENSES, AND SANCTIONS review, analyze, and be prepared to respond to Plaintiffs’ over nine-hundred-page Response to e Defendants’ TCPA Motion (over a hundred pages of which were the response itself), respond to ic Pr the untimely filed Motion for Continuance and improper setting of a hearing on same, and respond L. to the last minute Motion for Discovery filed on the eve of the hearing on Defendants’ TCPA a Motion. In particular, in addition to the legal arguments made in Plaintiffs’ response, Defendants lv were also required to respond—and object to—Plaintiffs’ evidence, much of which was Ve objectionable and inadmissible (and filed in violation of HIPAA) and required a separate motion k er requesting that the evidence be struck. 5 Analyzing and responding to Plaintiffs’ evidence (and its Cl use in the Response, including the drafting and filing of objections) alone required Defendants to ct incur approximately $15,000 in additional attorney’s fees. tri Furthermore, despite having previously reached an agreement to have the hearing on the is TCPA Motion held on June 11, 2019, Plaintiffs filed a last-minute motion for discovery and for D continuance, which was improperly set for a hearing simultaneous with Defendants’ TCPA Motion . Co and which required Defendants to undertake additional last-minute work in order to file a response is and be prepared for argument in time for the June 11, 2019 hearing. In particular, not only did av Defendants have to respond to the motion itself, but they also had to brief the issue of Plaintiffs’ Tr improper setting and respond to Plaintiffs’ attempts to set the motion for a hearing without proper, y op and timely, notice of same. Given Plaintiffs’ no-holds-barred litigation strategy and eleventh-hour c filings, Defendants’ attorney’s fees were reasonable, and this Court did not err in granting l ia Defendants’ request for such fees under the TCPA. fic of 5 Although Plaintiffstake issue with Mr. Lewis’s attendance at the hearing, he was responsible for briefing the evidentiary objections and was prepared to argue the objections at the hearing on Defendants’ Motion to Dismiss. At Un the Court’s suggestion, Defendants did not present oral argument on the evidentiary objections, but Mr. Lewis was required to prepare for and attend the hearing nonetheless. DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 7 FEES, COURT COSTS, EXPENSES, AND SANCTIONS Texas Civil Practice & Remedies Code § 27.009 also provides for a mandatory award of e sanctions in an amount the Court determines is sufficient to prevent Plaintiffs from bringing ic Pr actions similar to this action in the future. The amount of the sanctions award is left to the Court’s L. discretion, and courts have “broad discretion to determine what amount is sufficient to deter the a party from bringing similar actions in the future” under the TCPA. Kinney v. BCG Attorney Search, lv Inc., No. 03-12-00579-CV, 2014 WL 1432012, at *11 (Tex. App.—Austin Apr. 11, 2014, pet. Ve denied) (mem. op.). Sanctions as high as $450,000, $250,000, $85,000, $75,000 and $55,000 have k er been awarded by courts in TCPA matters. 6 Cl Here, given that Defendants’ apprised Plaintiffs of their intention to move to dismiss ct pursuant to the TCPA on multiple occasions, the facially meritless nature of Plaintiffs’ case, and tri the excessive pleadings and motion practice, sanctions were particularly appropriate. This Court is properly exercised its broad discretion under the statute to assess a sanctions award that would be D likely, in its judgment, to deter Plaintiffs from engaging in future similar conduct. Plaintiffs have . Co failed to demonstrate that the award was erroneous, and their Motion for New Trial on the issue is of sanctions should be denied. av Tr y op c l 6 Landry’s, Inc. v. Animal Legal Defense Fund, No. 2016-79698 (334th Dist. Ct., Harris County, Tex., Feb. 22, 2017) ia (awarding movants sanctions of $450,000 and attorney’s fees of approximately $175,000); Schlumberger v. fic Rutherford, Cause No. 2014-13621, in the 127th DistrictCourt of Harris County, Texas (awarding sanctions of $250,0000), aff’d, 472 S.W.3d 881; Simpton, et al. v. High Plains Broad., Inc., et al., Cause No. 2011-13290 , in the 285th Dist. Ct., Bexar County, Tex. (awarding $85,000 in sanctions); BCG Attorney Search, Inc. v. Robert Kinney, of Cause No. D-1-GN-12-0012521, in the 353rd Dist. Ct., Travis County ($75,000 in sanctions awarded), aff’d, Kinney v. BCG Attorney Search, Inc., 2014 WL 1432012 (Tex. App.—Austin, pet. denied) (mem. op.); Head v. Chicory Un Media, LLC, Cause No. 2013-0040, in the 714st Dist. Ct., Harrison County, Tex. 2013) (awarding a total of $55,000 in sanctions), appeal dismissed, 415 S.W.3d 559 (Tex. App.—Texarkana 2013, no pet.). DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 8 FEES, COURT COSTS, EXPENSES, AND SANCTIONS III. CONCLUSION e ic Motions for a new trial are intended to correct clear errors in trial courts’ rulings. Plaintiffs Pr have identified no such errors; instead, Plaintiffs are ostensibly requesting a new trial because they L. disagree with the Court’s assessment of fees (which are mandatory under the TCPA), and a sanctions, which this Court has broad discretion to assess. Plaintiffs had ample opportunity to lv Ve object to Defendants’ request for fees, but they did not. Now, Plaintiffs are simply seeking a second opportunity to challenge this Court’s fee award, after they failed to meaningfully do so at the k er proper time. Their Motion should be denied. Cl Respectfully submitted, ct HAYNES AND BOONE, LLP tri By:/s/ Catherine L. Robb is Laura Lee Prather D State Bar No. 16234200 laura.prather@haynesboone.com . Co Catherine L. Robb State Bar No. 24007924 catherine.robb@haynesboone.com is Wesley D. Lewis av State Bar No. 24106204 wesley.lewis@haynesboone.com Tr 600 Congress Avenue, Suite 1300 Austin, Texas 78701 y Telephone: (512) 867-8400 op Telecopier: (512) 867-8470 c ATTORNEYS FOR DEFENDANTS l ia fic of Un DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 9 FEES, COURT COSTS, EXPENSES, AND SANCTIONS CERTIFICATE OF SERVICE e The above signed certifies that a true and correct copy of the foregoing was served via e- ic service on the 22nd day of October, 2019 to: Pr Amy Welborn HAWKINS PARNELL & YOUNG, LLP L. 1717 West 6th Street, Suite 250 Austin, Texas 78703 a awelborn@hpylaw.com lv Ve D. Todd Smith Smith Law Group 1250 Capitol of Texas Highway South k Building 3, Suite 400 er Austin, TX 78746 Cl todd@appealsplus.com ct COUNSEL FOR PLAINTIFFS tri /s/ Catherine L. Robb Catherine L. Robb D is . Co is av Tr y op c l ia fic of Un DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR NEW TRIAL ON ATTORNEY PAGE 10 FEES, COURT COSTS, EXPENSES, AND SANCTIONS