FELICIA PITRE

FILED
DALLAS COUNTY
5/25/2016 12:36:12 PM
DISTRICT CLERK

CAUSE NO. DC-16-02362

MICAH B. PHILLIPS
Plaintiff,
vs.
DWAINE CARAWAY,
Defendant,

IN THE DISTRICT COURT

162ND JUDICIAL DISTRICT
DALLAS COUNTY, TEXAS

DEFENDANT DWAINE CARAWAYS ANTI-SLAPP MOTION TO DISMISS

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Dwaine Caraway (Caraway), Defendant in the above captioned
matter, and moves to dismiss Plaintiff Micah B Phillips (Phillips) claims against him
pursuant to Texass Anti-SLAPP statute, TEX. CIV. PRAC. & REM. CODE 27.001 et seq.
I.
SUMMARY OF THE ARGUMENT
Over the years, Phillips has been at the center of high profile political
campaigns, ethics charges, and criminal charges. All of which have resulted in media
coverage, public concern, and controversy. His prominent role in these controversies,
as well as his role as a public employee, candidate for office, and defendant in criminal
proceedings have all drawn public interest. On February 29, 2016 Phillips filed a
lawsuit against Caraway for allegedly publishing defamatory statements about his
history of actions. The suit was filed one day before election for the 2016 Democratic
Primary, which Phillips and Caraway were both on the ballot for. Phillips then gave
interviews regarding the lawsuit in an attempt to silence legitimate commentary on

the election for Dallas County Commissioner, which was then and remains today a
matter of great local concern.
This disregard for the right to free speech is contrary to the Texas Citizens
Participation Act (Anti-SLAPP statute), which specifically forbids lawsuits targeted
at speech on matters of public concern. The Anti-SLAPP statute requires the dismissal
of Phillips claims against Caraway.
Phillips has been the subject of criminal prosecution by the Dallas County
District Attorneys Office and investigated for violations of the Dallas Ethics Code.
Phillips claims in his original petition that Caraway made defamatory statements on
February 25, 2016 regarding Phillips. On this very broadcast Phillips made
unfounded and patently false statements about Caraway, however Caraway never
made any comments about Phillips. When pressed by a reporter on who Caraways
remarks were in reference to he mentioned another candidate and another individual
named Michael, neither of which are Phillips.
Phillips bases his entire suit on these phantom statements. Caraway made no
reference to the various criminal proceedings, ethics violations or Phillips defamatory
statements regarding Caraway. The Anti-SLAPP statute completely bars these claims
as Caraways exercise of his constitutional right to free speech brings this matter
within the scope of the statute. This places the burden on Phillips to demonstrate a
prima facie case for his claims against Caraway by clear and specific evidence of each
element. Phillips cannot meet that burden for the following reasons which warrant
dismissal of this action.

First and foremost, even if Phillips could produce evidence that Caraways
remarks were directed towards him, he could not prove that those statements were
false and that Caraway acted with actual malice. Phillips is a public figure and
therefore must show with clear, specific evidence that Caraway made that assertion
with actual knowledge of its falsity, or with at least reckless disregard as to whether
or not it was false. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). It is
well established that this standard requires more than a failure to investigate fully, it
requires a purposeful avoidance of the trust. Hearst Corp. v. Skeen, 159 S.W.3d 633,
637 (Tex. 2005). Phillips cannot meet this high standard.
Second, even if Caraways remarks were in regards to Philips, they are
substantially true. In order to protect free speech rights, Texas law permits minor
inaccuracies and looks to whether the overall gist of the statement, read in full
context, is substantially true. Assuming that Phillips misconstrued Caraways remarks
about another candidate and another individual to himself, the gist of calling Phillips
a gangster, con artist, and someone who could not be trusted are substantially
true. Under this broad standard, Phillips cannot maintain a defamation claim
challenging the statement that he is not a gangster, con artist, or someone who
could not be trusted. Phillips entering into a plea agreement for criminal charges
with the Dallas County District Attorneys Office, the affidavit of K.G. Huey (a certified
copy of which is attached hereto as Exhibit B), and his violations of the City of Dallas
Ethics Code cannot overcome the broad substantial truth standard.
Because Phillips cannot satisfy his exacting burden under the Anti-SLAPP
statute, his claims against Caraway must be dismissed and the Court should award
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Caraway court costs, reasonable attorneys fees, other expenses, and sanctions as the
court determines necessary.
II.
ARGUMENTS AND AUTHORITIES
Phillipss claims against Caraway cannot survive an Anti-SLAPP motion to
dismiss. The purpose of the Texas Anti-SLAPP statute is to encourage constitutional
rights of speech, petition and association and to safeguard against the inhibition of
such rights by non-meritorious lawsuits or strategic litigation against public
participation. 2011 TEX. SESS. LAW SERV. CH. 341 4 (H.B. 2973) (West) (codified at TEX.
CIV. PRAC. & REM. CODE 27.001 et seq.), at 27.002. Upon the filing of a motion under
section 27.003 of the statute, a court shall dismiss a legal action against the moving
party if the moving party shows by a preponderance of the evidence that the legal
action is based on, relates to, or in response to the partys exercise of: (1) the right of
free speech; (2) the right to petition; or (3) the right of association. Id. at 27.005(b).
Once this initial prong is satisfied, plaintiff can avoid dismissal only by
establish[ing] by clear and specific evidence a prima facie case for each essential
element of the claims in question. Id. at 27.005(c). If plaintiff fails to meet this
burden, the Court shall not only dismiss but award the movant court costs,
reasonable attorneys fees, other expenses and such sanctions as the court
determines sufficient to deter plaintiff from bringing similar actions. Id. at
27.009(a).
Phillips claims against Caraway are subject to the Anti-SLAPP statute, and he
cannot possibly establish a prima facie case with respect to each element of those

claims by clear and specific evidence. Accordingly, the Court must dismiss those
claims and award costs, attorneys fees, and sanctions.
TEXASS ANTI-SLAPP STATUTE APPLIES TO PHILLIPS DEFAMTATION CLAIM
AGAINST CARAWAY
Phillips claims are subject to the Anti-SLAPP statute because, in giving an
interview regarding the election for Dallas County Commissioner, Caraway was
clearly exercising his right to free speech. The statute defines the exercise of the right
of free speech as any communication made in connection with a matter of public
concern. Id. 27.001(3). The term matter of public concern expressly includes
issues relating to health or safety, community well-being, the government, or a
public figure. Id. 27.001(7).
The challenged statements, pertains to matters of public concern including
(1) government: an election for Dallas County Commissioner; and (2)
environmental, economic, and community well-being: the community being
informed about the individuals running for Dallas County Commissioner. Finally, as
discussed, the statements pertain to a public figure because Phillips is a public
figure as a result of his voluntary involvement in local elections by his own decision
to run for public office and the extensive media coverage surrounding his
involvement in those elections. Accordingly, the Texas Anti-SLAPP statute clearly
applies to this case.
PHILLIPS DEFAMATION CLAIM AGAINST CARAWAY
MUST BE DISMISSED BECAUSE HE CANNOT ESTABLISH A PRIMA FACIE CASE
Because Phillips claim against Caraway is based on, related to, or in response
to Caraways exercise of his speech rights, pursuant to Section 27.005(c) of the Anti5

SLAPP statute, to avoid dismissal, Phillips must establish by clear and specific
evidence a prima facie case for each essential element of the claim in question. See
TEX. CIV. PRAC. & REM. CODE 27.005(c). One Texas court recently described this inquiry
as whether the record contains a minimum quantum of clear and specific evidence
that, unaided by inferences, would establish each essential element of the claim in
question if no contrary evidence is offered. Rehak Creative Servs., Inc. v. Witt, --S.W.3d ---, 2013 WL 2211654, at 8 (Tex. App.Houston May 21, 2013).
Phillips defamation claim does not meet this standard. To establish a cause of
action for defamation, a Phillips must prove that Caraway: (1) published a statement
of fact; (2) of and concerning the plaintiff; (3) that was false; (4) and defamatory of
him; (5) while acting with actual malice if the plaintiff was a public official or public
figure, or negligence if the plaintiff was a private individual. McLemore, 978 S.W.2d at
571.
Phillips defamation claim must be dismissed because he is unable to establish
that Caraway acted with actual malice or that the challenged statements are about
Phillips, or even if they were, that they were false.
A.

Phillips Cannot Establish Caraway Acted With Actual Malice

Phillips cannot produce clear and specific evidence sufficient to support the

essential element of actual malice. See TEX. CIV. PRAC. & REM. CODE 27.005(c). Phillips
was a public figure long before Caraway made the alleged challenged statements, and
therefore, Phillips cannot prevail on his defamation claim without showing that
Caraway made the alleged challenged statement with actual knowledge of its falsity,
or at least with reckless disregard as to whether it was false or not. WFAA-TV, 978
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S.W.2d at 573-74 (citing New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964)).
Phillips has no evidence nor is there any evidence establishing that Caraway acted
with actual malice. Therefore, Phillipss claim against Caraway must be dismissed.
1.

Phillips Is A Public Figure

The United States Supreme Court has recognized two types of public figures.
See Gertz v. Robert Welch, Inc., 418 U.S. 323, 351-52 (1974). Some individuals, because
of their fame or notoriety in the community, are public figures for all purposes. Id.
Other individuals, who voluntarily inject themselves or are drawn into a particular
matter of public concern, are limited purpose public figures. Id. Phillips, a two-time
candidate for Dallas County Commissioner, a former public employee, a former
defendant in criminal proceedings and someone who has appeared on various local
media outlets over the years is without question, a limited-purpose public figure
subject to the actual malice standard. Courts in Texas employ a three-pronged test in
deciding whether a libel plaintiff is a limited-purpose public figure:
1. the controversy at issue must be public both in the sense that people are
discussing it and that people, other than the immediate participants in the
controversy, are likely to feel the impact of its resolution,
2. the plaintiff must have more than a trivial or tangential role in the
controversy, and
3. the alleged defamation must be germane to the plaintiffs participation in
the controversy.
McLemore, 978 S.W.2d at 571-72 (citing Trotter v. Jack Anderson Enters., Inc., 818 F.2d
431, 433 (5th Cir. 1987) and Waldbaum v. Fairchild Publns, Inc., 627 F.2d 1287, 129698 (D.C. Cir. 1980)). Under the McLemore test, Phillips is undoubtedly a limitedpurpose public figure.
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a. The Caraway Interview Addressed A Matter Of Public Concern And

Controversy
The controversies surrounding Phillips are public both in the sense that
people were discussing [them] and people other than the immediate participants . . .
were likely to feel the impact of [their] resolution. Trotter, 818 F.2d at 433-35.
Indeed, these controversies have been discussed by and impact a variety of people,
most importantly the voters of Dallas County.
The election for Dallas County Commissioner is no doubt a matter of public
interest and this election in general has garnered regional and national attention.
b. Phillips Had More Than A Trivial Or Tangential Role In The Controversy
There is no question that Phillips has played more than a trivial or tangential
role in these public controversies as he was himself a candidate for Dallas County
Commissioner and thus had injected himself into the matter of public concern. As
discussed above, he has been the central figure in multiple elections, ethics
investigations and a Dallas County District Attorney criminal investigation and plea
agreement. To this day Phillips still maintains a campaign website at
http://www.micahbphillips.com/.
c. The Caraway Interview Is Germane To Phillips Participation In The
Controversy
The Caraway interview relates to or is germane to Phillips connection to these
controversies as it referenced and commented on them both explicitly and implicitly.
The interview addresses both the broader controversy of the election for Dallas
County Commissioner and more specifically controversies related to another

candidate. Because the Caraway interview is germane to Phillips participation in the

controversy, the third prong of the test is satisfied.
d. Phillips Is A Public Figure Who Injected Himself Into The Controversy
Phillips himself sought to be at the center of public controversies and concerns
by running for election and he has most certainly sought to be a public figureit is
immaterial to whether he is a limited-purpose public figure. Under the McLemore test,
a person can become a limited-purpose public figure simply by voluntarily
engag[ing] in activities that necessarily involved the risk of increased exposure and
injury to reputation. McLemore, 978 S.W.2d at 573.
Under the McLemore test, Phillips is a public figure and must show that
Caraway acted with actual malice.
2.

Caraway Did Not Act With Actual Malice

As a public figure, Phillips must establish by clear and specific evidence that
the challenged statement was made with actual malice. Sullivan, 376 U.S. at 279-80.
The phrase actual malice is a term of art quite different from common law malice.
Actual malice is not ill will, spite, or evil motive. Casso v. Brand, 776 S.W.2d 551, 558,
563 (Tex. 1989).
Actual malice is defined as the making of a statement with knowledge that it
was false, or with reckless disregard of whether it was false or not. Sullivan, 376 U.S.
at 279-80. Reckless disregard is also a constitutional term of art, requiring a
subjective inquiry to determine if the defendant in fact entertained serious doubts
about the truth, St. Amant v. Thompson, 390 U.S. 727, 731 (1968), or had a high
degree of awareness of . . . probable falsity. Garrison v. Louisiana, 379 U.S. 64, 74
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(1964); Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 171 (Tex. 2003). A
failure to investigate fully is not evidence of actual malice; a purposeful avoidance of
the truth is. Hearst Corp. v. Skeen, 159 S.W.3d 633, 637 (Tex. 2005) (quoting Bentley
v. Bunton, 94 S.W.3d 561, 596 (Tex. 2002) ([E]vidence that a failure to investigate
was contrary to a speakers usual practice and motivated by a desire to avoid the truth
may demonstrate the reckless disregard required for actual malice.)).
Courts consistently recognize that [t]he standard of actual malice is a
daunting one. Howard v. Antilla, 294 F.3d 244, 252 (1st Cir. 2002) (quoting
McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C. Cir. 1996)); Bentley, 94
S.W.3d at 591. Actual malice cannot be proved in the abstract, and Texas Courts
routinely dismiss defamation claims for lack of actual malice. See, e.g., El Paso Times,
Inc. v. Trexler, 447 S.W.2d 403, 406 (Tex. 1969); Harte-Hanks Commcns, Inc. v.
Connaughton, 491 U.S. 657, 688 (1989).
Here, Phillips cannot satisfy his actual malice burden because he cannot
establish by clear and specific evidence indeed, there is no evidence that Caraway
made the alleged challenged statement about Phillips let alone with actual knowledge
of its falsity or a high degree of awareness of probable falsity. Likewise, Phillips
cannot demonstrate that Caraway doubted the truth of the alleged challenged
statement; much less that he was motivated by a desire to avoid the truth. The
challenged statement was a brief reference to another candidate and a third party,
neither of whom were Phillips. Caraway believed at the time and still believes that
the statements were true. See Caraways affidavit attached hereto as Exhibit A.

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Lacking clear and specific evidence of actual malice, Phillipss libel claim against
Caraway fails.
B.

Phillips Cannot Establish That The Challenged Statement Is Substantially

False
Phillipss defamation claim against Caraway also fails because he cannot meet

his burden of proving that the challenged statement is substantially false. McIlvain v.
Jacobs, 794 S.W.2d 14, 15 (Tex. 1990) (citing Philadelphia Newspapers, Inc. v. Hepps,
475 U.S. 767, 787 (1986)). In determining whether a plaintiff has met his burden as
to falsity, Texas courts defer to constitutional speech interests by applying the
substantial truth test, rather than a narrower or more technical standard. Id. at 16;
see also Basic Capital Mgmt., Inc. v. Dow Jones & Co., 96 S.W.3d 475, 481 (Tex. App.
Austin 2002, no pet.) (recognizing that substantial truth test is rooted in the First
Amendment). Under this test the Court must analyze the challenged statement in its
entirety and consider whether the overall gist of the challenged statement is
substantially true. Id.; Rogers v. Dallas Morning News, Inc., 889 S.W.2d 467, 472 (Tex
App. Dallas 1994). Minor inaccuracies are permissible so long as the gist of the
challenged statement is correct. Rogers, 889 S.W.2d at 472. Further, to show
substantial falsity, the plaintiff must show that the challenged statements were more
damaging to the plaintiffs reputation in the mind of the average person than literally
true statements would have been. Id.; see also McIlvain, 794 S.W.2d at 16. Alleged
inaccuracies, disputed word choices or quibbles over the exercise of editorial
prerogative are insufficient to establish substantial falsity. See, e.g., Dolcefino v.
Turner, 987 S.W.2d 100, 115 (Tex. App.Houston [14th Dist.] 1998) (allegation of
$6.5 insurance scam carried same gist as accurate allegation of $1.7 million scam
11

would have), affd, 38 S.W.3d 103 (Tex. 2000); Swate, 975 S.W.2d at 75 (statement
that plaintiff had assaulted a female investigator attempting to serve him with
subpoena was substantially true even though literal truth was the plaintiff was found
not guilty of assault).
Considering the Caraway interview in context, as the law requires, the gist of
the interview was that certain individuals, Phillips not being one of them, had been
accused of criminal activity and their character should be in question. Phillips
completely ignores the context of the statements, their ambiguity, and imputes a gist
to the alleged challenged statement that the average viewer simply would not. Thus,
both the Dallas County District Attorneys Office and the City of Dallas governments
believed that Phillips committed criminal and unethical acts. In light of these facts,
the challenged statement that Phillips was a criminal or untrustworthy is not
substantially false, and Phillips claim must be dismissed.
III. STAY OF DISCOVERY
Pursuant to section 27.003(c), on the filing of a motion under this section, all
discovery in the legal action is suspended until the court has ruled on the motion to
dismiss. See TEX. CIV. PRAC. & REM. CODE 27.003(c).
IV. REQUEST FOR FEES AND SANCTIONS
Because Phillips cannot satisfy his burden under the Anti-SLAPP statute, his
claims against Caraway must be dismissed. In addition, the statute provides for a
mandatory award of court costs, reasonable attorneys fees, and other expenses
incurred in defending against the legal action. . . . See TEX. CIV. PRAC. & REM. CODE

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27.009(a)(1). Caraway will submit information concerning these costs, fees, and
expenses pursuant to the Courts instructions.
Also, the statute grants the Court discretion to award sanctions against the
party who brought the legal action as the court determines sufficient to deter the
party who brought the legal action from bringing similar actions described in this
chapter. Id. at 27.009(a)(2). Such an award is appropriate here to deter Phillips
from continuing to assert claims against those who merely seek to report or even
comment on the controversies surrounding him.
V. PRAYER
WHEREFORE PREMISES CONSIDERED, Caraway prays that the Court grant
his Anti-SLAPP Motion to Dismiss, dismiss with prejudice all of Plaintiffs claims
against them, enter Judgment that Plaintiff take nothing, and award Defendants fees,
costs, and expenses, along with sanctions and such other and further relief to which
they are justly entitled.

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Respectfully submitted,
PAYMA, KUHNEL& SMITH, P.C.
PAYMA LAW CENTER
1126 N. Zang Blvd.
Dallas, Texas 75203
(214) 999-0000
(214) 999-1111 Facsimile
/s/ Michael D. Payma
Michael D. Payma
TSBN: 00790560
Michael@PKSattorneys.com
LAW OFFICE OF ROBERT ABTAHI
PAYMA LAW CENTER
1126 N. Zang Blvd.
Dallas, Texas 75203
(214) 306-9696
(214) 432-1588
/s/ Robert B. Abtahi
Robert B. Abtahi
State Bar No. 24053674
Robert@RBAlawyer.com

CERTIFICATE OF SERVICE
I hereby certify that in accordance with Texas Rules of Civil Procedure the
foregoing Motion was forwarded to all counsel of record via the courts e-file system on
this the 25th day of May, 2016.

/s/ Michael D. Payma

Michael D. Payma

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