Civil Rights - Fracking Water Contamination

Fracking Water Contamination Lawyer Texas

May 5, 2013 — by Jeff Mundy
Tags: Civil Rights Torts Commerical Litigation

 

In Re: Lipsky

Tex. App. Dist. 2

Terrie Livingston Chief Justice

NO. 02-12-00348-CV

04-22-2013


ORIGINAL PROCEEDING

OPINION

Relators Steven and Shyla Lipsky (the Lipskys) and Alisa Rich seek a writ of mandamus that directs the trial court to dismiss the claims asserted against them by real parties in interest Range Production Company and Range Resources Corporation (Range). Relators contend that provisions contained within chapter 27 of the civil practice and remedies code (chapter 27) require the dismissal of Range's claims.*fn1 We conditionally grant relief in part and deny relief in part.*fn2

Background Facts

The Lipskys own a home in the Silverado on the Brazos development in Weatherford. In 2005, they drilled a well to a depth of about two hundred feet to provide water to their home and property, and they also constructed a large holding tank to meet the anticipated water needs at the property. Range drilled two natural gas wells in 2009 near the Lipskys' property. According to the Lipskys, in the latter part of 2009, they began noticing problems with their water, and by the middle of 2010, their water pump began experiencing "gas locking," meaning that the pump could not efficiently move water. The Lipskys contacted public health officials, who referred them to Rich. After the Lipskys contracted in August 2010 with Rich and her company, Wolf Eagle Environmental, to conduct testing, she confirmed the presence of various gases in the Lipskys' water well.

In December 2010, after being notified by Rich and the Lipskys about the circumstances at the Lipskys' property and after conducting its own investigation, the Environmental Protection Agency (EPA) issued an emergency order stating that Range's production activities had caused or contributed to the gas in the Lipskys' water well and that the gas could be hazardous to the Lipskys' health. In the order, the EPA required Range to, among other actions, provide potable water to the Lipskys and install explosivity meters at the Lipskys' property. The federal government, acting at the request of the EPA, later filed a lawsuit in a federal district court against Range, alleging that Range had not complied with requirements of the emergency order.

The Railroad Commission of Texas (the Railroad Commission) also investigated the contamination of the Lipskys' well. After calling a hearing and listening to testimony from several witnesses in January 2011, the Railroad Commission issued a unanimous decision in March 2011 that Range had not contaminated the Lipskys' water.*fn3 Thus, the Railroad Commission allowed production from Range's wells to continue.

In June 2011, the Lipskys sued several defendants, including Range, for claims related to the contamination of their water well that, according to the Lipskys, resulted from Range's "oil and gas drilling activities." In their original petition, the Lipskys claimed that the contamination had caused a water pump to malfunction and had caused the water "to be flammable." Against Range, the Lipskys sought compensatory and punitive damages while asserting causes of action for negligence, gross negligence, and private nuisance. The Lipskys alleged that Range's drilling, including hydraulic fracture stimulation operations (fracking), affected their water source, and they contended that they could no longer use their home as a residence.*fn4

A month after the Lipskys sued Range, Range answered the suit and brought counterclaims (against the Lipskys) and third-party claims (against Rich) for civil conspiracy, aiding and abetting, defamation, and business disparagement. Range contended, among other arguments, that Range's fracking of a deep shale formation could not have contaminated the Lipskys' much shallower water well; that Range's two gas wells near the Lipskys' residence had "mechanical integrity"; that other factors occurring before Range's drilling contributed to gas in the Lipskys' well; that the Railroad Commission had already found that Range's drilling did not contaminate the Lipskys' well; that the contrary conclusion that had been reached by the EPA was based on incomplete and overlooked data;*fn5 that the Lipskys had ignored the Railroad Commission's findings by continuing to blame Range for the contamination; that Rich, along with the Lipskys, had, with malice against Range, made false, misleading, and disparaging statements; and that Range's business reputation had therefore suffered.

The Lipskys and Rich each answered Range's claims against them, and they later each filed motions to dismiss the claims under chapter 27. In their motions, relators argued, among other contentions, that through bringing its affirmative claims, Range intended to suppress relators' right of free speech and their right to petition (including petitioning the EPA to act on the Lipskys' water contamination) and that Range had not provided clear and specific evidence establishing prima facie proof of each element of its claims. Documents attached to the Lipskys' motion to dismiss established, among other facts, that the possible contamination of water by drilling and fracking has been a matter of public concern in recent years; that the Lipskys began noticing problems with their drinking water in 2009, which was after Range began drilling; that in 2005, before Range began production in Silverado on the Brazos, Steven Lipsky saw another water well that contained gas fumes; that the Lipskys cooperated with Rich (and her company, Wolf Eagle Environmental) to obtain water and air samples (which showed the presence of benzene, toluene, ethane, and methane) and to get the EPA involved in investigating the contamination of the Lipskys' well; that the Lipskys complained to the Railroad Commission about their water well containing natural gas; that Steven Lipsky created a video of igniting gas from his well and shared the video with "friends and family";*fn6 that as of his deposition in January 2011, Steven Lipsky still was not sure how natural gas entered his well water; that Rich testified in a deposition that the test results from the Lipskys' water were "not . . . high enough to cause an imminent . . . danger"; and that Rich told the EPA that Steven Lipsky had "demonstrated in her presence that he could light his water hose which was attached to his well vent and that a '10-foot flare' was the result."

Range opposed the motions to dismiss, detailing the evidence that Range offered in support of the claims. The trial court denied the motions. Relators filed an interlocutory appeal, and we dismissed the appeal for want of jurisdiction.*fn7 However, we allowed relators to challenge the propriety of the trial court's order denying the dismissal motions through this original proceeding.*fn8

Mandamus Standards

Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding); In re Aslam, 348 S.W.3d 299, 301 (Tex. App.--Fort Worth 2011, orig. proceeding). A trial court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

With respect to the resolution of factual issues or matters committed to the trial court's discretion, we may not substitute our judgment for that of the trial court unless a relator establishes that the trial court could reasonably have reached only one decision and that the trial court's decision is arbitrary and unreasonable. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding); Walker, 827 S.W.2d at 839-40; In re Tex. Collegiate Baseball League, Ltd., 367 S.W.3d 462, 468-69 (Tex. App.--Fort Worth 2012, orig. proceeding). This burden is a heavy one. Aslam, 348 S.W.3d at 302 (citing In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding)).

While we give deference to a trial court's factual determinations that are supported by evidence, we review the trial court's legal determinations de novo.

In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). A trial court abuses its discretion if it fails to analyze the law correctly or misapplies the law to established facts. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011); State v. Sw. Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975). Also, a trial court's erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion. In re United Scaffolding, Inc., 301 S.W.3d 661, 663 (Tex. 2010) (orig. proceeding).

Standards for Motions to Dismiss Under Chapter 27

When the legislature enacted chapter 27 in 2011, it expressed that the purposes of doing so were to "encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." Tex. Civ. Prac. & Rem. Code Ann. § 27.002. To promote these purposes, chapter 27 creates an avenue at the early stage of litigation for dismissing unmeritorious suits that are based on the defendant's exercise of the rights of free speech, petition, or association as those rights are defined within the chapter. Id. § 27.003; see also id. § 27.001(2)-(4) (defining the exercise of the right of association, the exercise of the right of free speech, and the exercise of the right to petition).

To prevail on a motion to dismiss under chapter 27, a defendant has the burden to show by a preponderance of the evidence that the plaintiff's legal action is "based on, relates to, or is in response to" one of the rights discussed above. Id. § 27.005(b). If the defendant meets its burden, the plaintiff, to avoid dismissal, must then establish "by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). Chapter 27 does not define what sort of evidence satisfies the "clear and specific" qualitative standard, but it expresses that in determining the propriety of dismissal, courts may consider "the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a); see also Jennings, 378 S.W.3d at 526 ("[T]he overall structure of [chapter 27] requires judicial review . . . of limited evidence . . . concerning the elements . . . of a legal action involving a party's exercise of the right of free speech, right to petition, or right of association . . . ."). In cases unrelated to motions to dismiss under chapter 27, Texas courts have defined "prima facie" evidence as the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (citing Tex. Tech Univ. Health Scis. Ctr. v. Apodaca, 876 S.W.2d 402, 407 (Tex. App.--El Paso 1994, writ denied)); see also Elliott v. Elliott, 21 S.W.3d 913, 917 (Tex. App.--Fort Worth 2000, pet. denied) (stating that whether a prima facie case has been presented is a question of law for the court).

Relators' Procedural Compliance with Chapter 27

In its briefing, Range argues, in part, that relators cannot show that the trial court clearly abused its discretion by denying relators' motions to dismiss because relators "refused to comply with the mandatory deadline for a timely hearing" under section 27.004 of the civil practice and remedies code. Section 27.004 provides that a hearing on a motion to dismiss under chapter 27 "must be set not later than the 30th day after the date of service of the motion unless the docket conditions of the court require a later hearing." Tex. Civ. Prac. & Rem. Code Ann. § 27.004. Range contends that relators "forfeited their rights to seek dismissal of Range's claims . . . by refusing to comply with the mandatory time requirement of Section 27.004."

The Lipskys filed their motion to dismiss Range's claims on September 12, 2011, and Rich filed her motion to dismiss the claims two days later. Range concedes that "[d]ue, at least in part, to intervening docket conditions" of the trial court, the hearing on relators' motions to dismiss was first set for December 19, 2011.*fn9 Range filed its response to relators' motions to dismiss on the afternoon of December 16, 2011, which was a Friday. The response included an appendix containing more than 1,600 pages of documents. On December 19, relators sought a continuance of the dismissal hearing on the ground that they needed more time to digest Range's response, and over Range's objection, the trial court granted a continuance and reset the hearing on relators' motions for January 31, 2012. The trial court conducted the hearing on January 31 and denied relators' motions on February 16, 2012.

Range does not contend that the trial court's initial hearing date of December 19, 2011 was improper, but Range argues that the continuance of the hearing until January 31, 2012 violated section 27.004. In the trial court, the Lipskys contended that they complied with section 27.004 because that section requires a hearing on a motion to dismiss to be "set," not heard, within thirty days (or later if required by the docket conditions of the court) of the service of the motion.

As we explained in Jennings,

In construing statutes, our primary objective is to give effect to the legislature's intent. We rely on the plain meaning of the text as expressing legislative intent unless a different meaning is supplied by legislative definition or is apparent from the context, or the plain meaning leads to absurd results. Even when it appears that the legislature may have made a mistake, courts are not empowered to "fix" the mistake by disregarding direct and clear statutory language that does not create an absurdity.

378 S.W.3d at 523 (citations omitted); see Tex. Real Estate Comm'n v. Bayless, 366 S.W.3d 808, 811 (Tex. App.--Fort Worth 2012, pet. denied) (explaining that ordinary citizens should be able to rely on the plain language of a statute to mean what it says and that straying from the plain language of a statute risks encroaching on the legislature's function to decide what the law should be).

We agree with relators that the plain language of section 27.004 applies to the setting, not the hearing or consideration, of a chapter 27 motion to dismiss; if the legislature had meant to require the holding of a hearing within thirty days (or as soon as the trial court's docket allows) rather than the setting of a hearing within that time period, it knew how to say so. See, e.g., Tex. Fam. Code Ann. § 8.258(b) (West 2006) (stating that when a spousal maintenance obligor files a motion to stay the issuance of a writ of withholding, the trial court "shall hold a hearing on the motion to stay not later than the 30th day after the date the motion was filed unless the obligor and obligee agree and waive the right to have the motion heard within 30 days") (emphasis added); id. § 158.309(b) (West 2008) (stating similarly with respect to a motion to stay in a child support case); Tex. Fin. Code Ann. § 92.254(a) (West 2013) ("A hearing [for the conversion of a savings bank to another financial institution] must be held not later than the 25th day after the date the application is filed . . . .") (emphasis added). We decline

Range's invitation for us to interpret section 27.004 in a way that adds language to its setting requirement. See Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 846 (Tex. 2009) (stating that a court usurps its powers when it adds language to a law where the legislature has refrained). Moreover, we conclude that applying the statute's plain meaning does not lead to an absurd result because that meaning encourages trial courts to resolve a chapter 27 motion to dismiss quickly while allowing flexibility for extending the time for hearing the motion under circumstances similar to those that relators faced in this case.*fn10 We therefore reject Range's argument that relators waived their motions to dismiss by seeking a continuance of the setting of the hearing from December 19, 2011 until January 31, 2012.

The Bases of Range's Claims

To trigger the mechanism for the dismissal of Range's claims against them under chapter 27, relators had the initial burden to establish by a preponderance of the evidence that Range's claims are based on, relate to, or are in response to relators' exercise of the right of free speech, right to petition, or right of association. Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003(a), .005(b). In denying relators' motions to dismiss, the trial court did not expressly determine whether relators had met this burden.

In chapter 27, the exercise of the right to petition includes "a communication in or pertaining to," among other venues, a judicial proceeding, an "official proceeding . . . to administer the law," a "proceeding before a department of the state or federal government or a subdivision of the state or federal government," or a "public meeting dealing with a public purpose." Id. § 27.001(4)(A)(i)-(iii), (ix). Also, the exercise of the right to petition includes "a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding." Id. § 27.001(4)(C).

In Range's original pleading that asserted counterclaims against the Lipskys and a third-party claim against Rich, Range expressed that its affirmative claims were based on relators' strategy to involve the EPA in the gas issue at the Lipskys' home;*fn11 on Rich's communications with EPA personnel, which according to Range, the EPA "used . . . in issuing the draconian ex parte order against Range";*fn12 on the Lipskys' statements about their drinking water; and on the Lipskys' communications with news media. When Range filed its response to relators' motions to dismiss, Range alleged that its claims could be supported by, among other allegations, multiple contacts with the EPA made by Rich, Steven Lipsky, and one of the Lipskys' attorneys; by the Lipskys' alleged statements that blamed Range for contaminating the well; by statements made by the Lipskys' agents and by Steven Lipsky in official hearings about the appraisal of the value of the Lipskys' home; by statements reported in newspaper articles; and by Steven Lipsky's communication with Parker County officials.

We conclude, based on these facts alleged by Range in its pleading and in its response to relators' motions to dismiss, that Range's claims are based on or relate to relators' exercise of their "right to petition" as chapter 27 defines that term.*fn13 Taking all of Range's allegations as true, many of the statements at issue were made to encourage the "review of an issue" (the contamination of the Lipskys' well) by a "governmental body" (the EPA). See id.*fn14 Moreover, other statements upon which Range expressly bases its defamation and business disparagement claims were indisputably made in official proceedings or public meetings, such as appraisal proceedings, and those statements therefore also qualify as the exercise of the right to petition. See id. § 27.001(4)(A)(ii), (ix).

Moreover, under chapter 27, the exercise of the right of free speech occurs when a communication is "made in connection with a matter of public concern." Id. § 27.001(3). The environmental effects of fracking in general, the specific cause of the contamination of the Lipskys' well, and the safety of Range's operation methods are matters of public concern under chapter 27. See id. § 27.001(7)(A)-(B), (E) (defining "[m]atter of public concern" as an issue related to, among other topics, health, safety, environmental well-being, or a "service in the marketplace"); see also Avila v. Larrea, No. 05-11-01637-CV, 2012 WL 6633994, at *6 (Tex. App.--Dallas Dec. 18, 2012, no pet. h.) (holding that a communication about the legal services offered by an attorney was a matter of public concern under chapter 27 because it concerned a service in the marketplace).*fn15 The EPA determined in its emergency administrative order that the chemicals found in the Lipskys' well "pose a variety of risks to health of persons." Many of relators' statements upon which Range bases its claims were made in "connection with" fracking, the contamination of the Lipskys' well, and aspects of Range's business. Furthermore, in its defamation and business disparagement claims, Range relies on statements made by Steven Lipsky and his counsel concerning Range's alleged political power and the Railroad Commission's alleged corrupt system. Under chapter 27, these communications, relating to the operation of the government, were also made on matters of public concern. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7)(C).

Range argues that the statements underlying its claims against relators do not relate to the "right of free speech" or the "right to petition" because the statements were defamatory and were therefore not constitutionally protected. See Turner v. KTRK Television, Inc., 38 S.W.3d 103, 116-17 (Tex. 2000) (explaining that federal and state constitutional protections do not outweigh a plaintiff's constitutional right of redress for reputational torts). But chapter 27 dictates that we should review evidence concerning whether relators' statements were defamatory and thus actionable in the second part of our review, in which Range has the burden of establishing "by clear and specific evidence a prima facie case for each essential element of the claim in question." Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). The statutory definitions for the exercise of the right of free speech and the exercise of the right to petition do not include language requiring us to determine the truth or falsity of communications when deciding whether a movant for dismissal has met its preliminary preponderance of the evidence burden under section 27.005(b). See id. §§ 27.001(3)-(4), 27.005(b); see also Harris Cnty. Hosp. Dist., 283 S.W.3d at 846 (expressing that courts should not add language to a statute while implementing it). For these reasons, we conclude that relators met their initial burden of showing by a preponderance of the evidence that Range's claims are based on or relate to relators' exercise of their rights of free speech or of their rights to petition as defined by chapter 27. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)(1)-(2).

The Evidence of Range's Claims

We have concluded that relators met their burden of showing by a preponderance of the evidence that Range's claims against them were based on, were related to, or were in response to the exercise of relators' protected rights under chapter 27. Range, however, could avoid dismissal of its claims by providing "clear and specific evidence" that satisfied a prima facie case for each essential element of the claims. Id. § 27.005(c).

Defamation and business disparagement

To prevail on a defamation claim, the plaintiff must prove that the defendant (1) published a statement, (2) that was defamatory concerning the plaintiff, (3) while acting with either actual malice, if the plaintiff is a public official or a public figure, or negligence, if the plaintiff is a private individual, regarding the truth of the statement. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998), cert. denied, 526 U.S. 1051 (1999). A statement is defamatory "if it tends to injure a person's reputation and thereby expose the person to public hatred, contempt, ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation." Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 580 (Tex. App.--Austin 2007, pets. denied) (op. on reh'g) (citing Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 2011)). When actual malice is required, it may be established by proof that the defendant knew a statement was false or made the statement with reckless disregard about whether it was false, meaning that the defendant had serious doubts about the statement's truth. McLemore, 978 S.W.2d at 573-74; see also Hearst Corp. v. Skeen, 159 S.W.3d 633, 637-38 (Tex. 2005) (explaining that actual malice occurs when a party purposefully avoids the truth or bases a statement on obviously dubious information). When only negligence is required for the defendant's fault, the plaintiff must prove that the defendant should have known that the published statement was false. See McLemore, 978 S.W.2d at 571; Klentzman v. Brady, 312 S.W.3d 886, 898 (Tex. App.--Houston [1st Dist.] 2009, no pet.).

Under either fault standard, the statement must be "of and concerning" the plaintiff. See Kaufman v. Islamic Soc'y of Arlington, 291 S.W.3d 130, 144 (Tex. App.--Fort Worth 2009, pet. denied); Cox Tex. Newspapers, L.P. v. Penick, 219 S.W.3d 425, 433 (Tex. App.--Austin 2007, pet. denied). A publication is "of and concerning" the plaintiff if persons who knew and were acquainted with the plaintiff "understood from viewing the publication that the allegedly defamatory matter referred to the plaintiff." Allied Mktg. Grp., Inc. v. Paramount Pictures Corp., 111 S.W.3d 168, 173 (Tex. App.--Eastland 2003, pet. denied). The statement must refer to the plaintiff and "no one else." Kaufman, 291 S.W.3d at 147-48 (quoting Newspapers, Inc. v. Matthews, 161 Tex. 284, 290, 339 S.W.2d 890, 894 (1960)).

A statement may be defamatory, although literally true, if the omission of material facts allows a reasonable person to perceive a false impression. Turner, 38 S.W.3d at 114-15; Klentzman, 312 S.W.3d at 898-99. Also, a defendant may be liable for defamation if a reasonable person would recognize that an act creates an unreasonable risk that defamatory matter will be communicated to a third party. See George v. Deardorff, 360 S.W.3d 683, 690 (Tex. App.--Fort Worth 2012, no pet.).

In most defamation claims, the plaintiff must prove the existence and amount of damages caused by the defamatory statement. Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 501 (Tex. App.--Houston [14th Dist.] 2008, pet. denied); Tex. Disposal Sys. Landfill, Inc., 219 S.W.3d at 580. Some statements, however, are defamatory per se, meaning that the law presumes the defendant's injury. See Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984) (op. on reh'g) (explaining that a false statement charging someone with the commission of a crime is defamatory per se); Tex. Disposal Sys. Landfill, Inc., 219 S.W.3d at 580-81; see also Morrill v. Cisek, 226 S.W.3d 545, 549 (Tex. App.--Houston [1st Dist.] 2006, no pet.) ("Defamation is actionable per se if it injures a person in his office, business, profession, or occupation.").

The supreme court has explained that to prevail on a business disparagement claim, a plaintiff must establish that (1) the defendant published false and disparaging information about it, (2) with malice, (3) without privilege, (4) that resulted in special damages to the plaintiff. A business disparagement claim is similar in many respects to a defamation action. The two torts differ in that defamation actions chiefly serve to protect the personal reputation of an injured party, while a business disparagement claim protects economic interests. . . [A] business disparagement defendant may be held liable "only if he knew of the falsity or acted with reckless disregard concerning it, or if he acted with ill will or intended to interfere in the economic interest of the plaintiff in an unprivileged fashion."

Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003) (citations and emphasis omitted) (quoting Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987)). Proof of special damages is an "essential part of [a plaintiff's] cause of action for business disparagement. . . [T]he communication must play a substantial part in inducing others not to deal with the plaintiff with the result that special damage, in the form of the loss of trade or other dealings, is established." Hurlbut, 749 S.W.2d at 767; see Astoria Indus. of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616, 628 (Tex. App.--Fort Worth 2007, pet. denied) (op. on reh'g).

Evidence concerning the Lipskys

In the trial court, through responding to relators' motions to dismiss, Range presented evidence that, according to Range, proves that the Lipskys, or their agents, made false, misleading, and disparaging communications. The alleged false and misleading communications include disseminating "misleading videos . . . that show [Steven Lipsky] lighting the end of a garden hose on fire" when the hose was actually connected to the well's gas vent, and stating or implying that

* Range's drilling went under the Lipskys house while omitting that Range's wellbore was over a mile below the surface;

* the Lipskys' well no longer pumped water (when it actually could);

* the Lipskys had found unnatural detergents in the water;

* the Lipskys could not live in their home (although they continued to do so);

* Range would eventually "own" the Lipskys' home (which implied that Range was responsible for contaminating the Lipskys' water source and would be liable for doing so);*fn16

* Range was politically powerful and had prevailed with the Railroad Commission through corruption,*fn17even though the Railroad Commission had considered extensive evidence to support its decision and the Lipskys had not participated in the Railroad Commission's hearing;

* the Lipskys could literally light their water on fire, and the water was unsafe to drink;*fn18

* Range's drilling operations contaminated the water (even though the Railroad Commission had found that the operations had not);*fn19 and

* Range treated the Lipskys like "criminals."

Range also contended that the evidence showed that the Lipskys acted with actual malice because, among other reasons, they blamed Range before and after the Railroad Commission had concluded its investigation and had found that Range had not contaminated the Lipskys' well; Steven Lipsky failed to disclose, when blaming Range, that the Railroad Commission had ruled in Range's favor; Steven Lipsky stated under oath in January 2011 that he did not know the cause of the contamination but made statements at other times blaming Range (including, prior to January 2011, implying that Range would be liable for contaminating his well); and Steven Lipsky said that he could light his water on fire when he knew that the hose was attached to the well's gas vent.

We conclude that the trial court did not clearly abuse its discretion by determining that Range had presented clear and specific evidence to establish a prima facie case for each essential element of its defamation and business disparagement claims against Steven Lipsky; the trial court could have reasonably concluded that the facts established by Range, which we have summarized above, provide at least a "minimum quantum of evidence necessary to support a rational inference" that Range has met its burden with regard to those elements. See E.I. DuPont de Nemours & Co., 136 S.W.3d at 223; see also Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). Specifically, for example,*fn20 the trial court could have reasonably concluded that a rational inference of a false, defamatory, and disparaging statement arose from Steven Lipsky's communication that Range prevailed in the Railroad Commission through corruption.*fn21 The trial court could have also concluded that there was a rational inference that this statement was made with actual malice, as defined above, in light of the evidence that the Lipskys did not participate in the Railroad Commission's proceedings and that the Railroad Commission made its decision after listening to several expert witnesses, including witnesses with advanced degrees and significant experience in the gas industry. And concerning the requirement for Range's defamation and business disparagement claims that Steven Lipsky's statements caused damage, David Poole, a senior vice president for Range, stated in an affidavit,

As a direct and proximate result and consequence of the . . . false, disparaging, and defamatory public statements made by Steven Lipsky . . . regarding Range and its operations, Range's business and reputation have been harmed. . The numerous false, disparaging, and defamatory public statements made by Mr. Lipsky . have caused Range to be associated in the public as a polluter of water and the environment, and nothing could be further from the truth.

. . . As a direct and proximate result and consequence of the false, disparaging, and defamatory statements made by Mr. Lipsky . . ., Range has suffered direct pecuniary and economic losses and costs, lost profits, loss of its reputation, and loss of goodwill in the communities in which it operates. To date, the damages suffered by Range as a direct and proximate result and consequence of the conspiracy and . . . defamatory public statements made by Lipsky and Rich are in excess of three million dollars. [Emphasis added.]

Although Poole's affidavit is concise, we conclude that by stating that Range had suffered direct economic losses and "lost profits," it provided the trial court with minimum but sufficient facts, at this stage in the litigation, to raise a rational inference, and therefore serve as prima facie proof, that Range lost "trade or other dealings" as a result of statements made by Steven Lipsky. See Hurlbut, 749 S.W.2d at 767; see also Hines, 252 S.W.3d at 501 (explaining that ordinarily, defamation claims require proof of damages).*fn22 Poole's affidavit is clear and specific about the facts included within it, even if it is not elaborate. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). For all of these reasons, we conclude that the trial court did not abuse its discretion by denying Steven Lipsky's motion to dismiss Range's defamation and business disparagement claims against him.

Range has not directed us to any evidence, however, establishing that Shyla Lipsky published statements, defamatory or otherwise, concerning Range, and we have located none. In Range's briefing, it argues, concerning Shyla specifically, only that she "wanted to provide information to the media" and that she participated in a conspiracy with her husband and Rich to "defame and disparage" Range. As explained below, we conclude that Range did not present sufficient evidence of such a conspiracy. And although Range argued in the trial court's hearing on the dismissal motions that Shyla was liable for statements made by her agents, Range has not cited authority or provided analysis establishing that Shyla should be liable for statements that her agents made. To hold a defendant liable for defamation based on an agency relationship, a plaintiff must show that the defendant's agent made a statement in the general authority of the agency and for the accomplishment of the objective of the agency. See Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 576, 578-79 (Tex. 2002); Louis v. Mobil Chem. Co., 254 S.W.3d 602, 610 (Tex. App.--Beaumont 2008, pet. denied). Range has not provided analysis of these requirements of its defamation and business disparagement claims against Shyla or directed us to where we can locate evidence about the Lipskys' agents that satisfies the requirements. Also, Shyla cannot be personally liable for Steven's acts merely because of their marriage relationship; he was not her agent solely because they were married. See Tex. Fam. Code Ann. § 3.201(a)(1), (c) (West 2006). Thus, we conclude that Range did not provide clear and specific evidence of a prima facie case for each essential element of its defamation and business disparagement claims against Shyla, and we conclude the trial court clearly abused its discretion by denying Shyla's motion to dismiss Range's defamation and business disparagement claims against her. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).

Evidence concerning Rich

In the trial court, while responding to Rich's motion to dismiss, Range contended that Rich was liable for defamation and business disparagement particularly because

* "[Steven] Lipsky ha[d] said that scientists who tested his well ha[d] said that his well could only have been contaminated by nearby gas drilling"; and

* Rich falsely or misleadingly told EPA officials that she was concerned about a risk to the Lipskys; that one of her sampling technicians had suffered respiratory distress after breathing what she believed to be harmful fumes; and that she had detected methane, ethane, propane, and butane in the Lipskys' water.

Steven Lipsky's March 2011 statement, which appeared in various media publications, about communications from "scientists" who had tested his well and had said that the contamination of an established water well could be caused "only" by natural gas drilling, does not identify Rich as one of the scientists who made that statement. The record establishes that along with Rich, officials from the EPA and the Railroad Commission conducted tests at the Lipskys' home before Lipsky made the statement about the conclusion of scientists who had tested his well. Before March 2011, the EPA officials determined that Range could have caused or contributed to the contamination of the Lipskys' water. During Rich's deposition, which was taken in January 2011 in the course of the Railroad Commission's proceeding, she said that after completing testing at the Lipskys' residence, she told the Lipskys that it was her opinion that a natural gas well had compromised their water well but that she could not ascertain which well had done so. Rich explained in the deposition that she had "no way of knowing" which gas well had affected the Lipskys' water well, and she indicated that she had advised the Lipskys to contact the Railroad Commission to "get some pressure testing done . . . to find out if the wells were actually compromised." At the time of the deposition, Rich opined that the "probable" cause of gas in the Lipskys' water well was natural gas drilling.*fn23 Range has not directed us to any part of the record, however, establishing that Rich was the person who made the particular statement expressly relied upon by Range to support its defamation and business disparagement claims that an established water "well could only have been contaminated by nearby gas drilling." [Emphasis added.] Thus, we conclude that Steven Lipsky's March 2011 statement to the media about the conclusion of "scientists" who conducted tests at his home cannot support Range's defamation or business disparagement claims against Rich. See Forbes Inc., 124 S.W.3d at 170 (requiring proof, in a business disparagement claim, that the defendant published the statement at issue); McLemore, 978 S.W.2d at 571 (requiring the same evidence in a defamation claim).

Rich's other statements to the EPA, summarized above, even if proven false, relate to the environmental conditions at the Lipskys' home but do not name or blame Range for causing those conditions. Because these statements are not "of and concerning" Range, they likewise cannot serve as clear and specific proof of Range's defamation and business disparagement claims against Rich. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); Kaufman, 291 S.W.3d at 144-48; Penick, 219 S.W.3d at 433 (explaining that to be "of and concerning" the plaintiff, the defendant's publication must "refer to some ascertained or ascertainable person and that person must be the plaintiff").

In an oral argument handout, Range alleged, concerning Rich, only that in her initial communication with the EPA, she "blamed Range and [fracking] for contamination of the Lipskys' well." We have not located such evidence from the record references that Range provided. Beyond the statement in the handout, Range has not expressed in this court that it is basing its defamation or business disparagement claims against Rich on any other statements made by Rich to the EPA, or to anyone else, that specifically concerned Range rather than only generally concerning the contamination of the Lipskys' well and the environmental effects of the contamination.

Because Rich's statements that Range relies on to support its defamation and business disparagement claims did not "concern" Range, we conclude that there is no clear and specific evidence to prove a prima facie case for an essential element of those claims and that the trial court clearly abused its discretion by denying Rich's motion to dismiss those claims. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); Kaufman, 291 S.W.3d at 144-48; Penick, 219 S.W.3d at 433.

Civil conspiracy and aiding and abetting

An actionable civil conspiracy is a combination by "two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means." Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 701 (Tex. App.--Fort Worth 2006, pet. denied). The essential elements of a civil conspiracy are "(1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result." Id. A defendant's liability for conspiracy depends on "participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable." Id.; see also Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 925 (Tex. 1979) ("It is not the agreement itself, but an injury to the plaintiff resulting from an act done pursuant to the common purpose that gives rise to the cause of action."). Recovery for civil conspiracy is not based on the conspiracy but on the underlying tort. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996) (orig. proceeding) (op. on reh'g). Once a civil conspiracy is proven, each coconspirator "is responsible for all acts done by any of the conspirators in furtherance of the unlawful combination." Carroll, 592 S.W.2d at 926. A civil conspiracy claim may be proved by circumstantial evidence and reasonable inferences from parties' actions. Int'l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 581 (Tex. 1963).

In the trial court, Range initially pled that the object of a conspiracy between the Lipskys and Rich was "to make false and damaging accusations that Range's operations had contaminated [the] Lipskys' water well." Range also alleged that Rich had participated in the scheme so that she could "circulate false accusations against Range to further her business and her anti-natural gas agenda." When Range responded to relators' motions to dismiss, it contended that the "object of the conspiracy was to make false and defamatory statements that Range's operations caused the alleged contamination"; that Rich and the Lipskys decided to blame Range for the contamination before receiving any evidence that Range was at fault; that Rich and the Lipskys agreed on a strategy of creating a "false sense of 'damage'" associated with the Lipskys' air quality to obtain the EPA's involvement; and that Rich made misleading statements to the EPA, including providing copies of "misleading videos."

In this court, Range asserts that it presented evidence in the trial court "showing that the Lipskys and Rich agreed and conspired to defame and disparage Range by making false and misleading statements that Range caused the alleged contamination of the Lipskys' water well," including that they provided misleading information to the EPA and manufactured, through an air test five feet away from the gas vent on the water well, a non-existent imminent danger to get the EPA to prosecute Range as a wrongdoer. Range argues that the central part of the conspiracy "was Rich's 'strategy' to stage a deceptive air test designed to create a non-existent imminent danger."

A letter sent by Rich to Steven Lipsky on August 9, 2010 recites that the purpose of Rich's testing was to "characterize the water and ambient air conditions present" on the property. While the letter referenced "recent gas well development" near the Lipskys' property, the letter did not accuse Range of contaminating the Lipskys' well or express that the goal of Rich's testing would be to prove that Range did so. Similarly, although Rich's bid proposal that accompanied her August 9 letter described the tests planned by Rich, explained that the tests could determine the presence of various compounds, and stated generally that natural gas development may cause water and soil contamination, the proposal did not blame Range for contaminating the Lipskys' well.

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