Several participants in the popular (if somewhat grotesque) reality television show “My 600-lb Life” sued the production company for negligence, gross negligence, intentional infliction of emotional distress, promissory estoppel, and fraudulent inducement. They alleged that the producer had subjected them to abuse, including long filming days, having to eat food they didn’t want, telling them to lie on the show, and failing to prove mental health care during filming and after the bariatric surgery (good heavens) proximately caused harm. The producer moved to dismiss the claims under the Texas Citizens Participation Act (TCPA). The trial court did not rule on the motion within the 30-day period, so it was denied by operation of law. The producer appealed.

In Megalomedia, Inc. v. Maja Radnovic, Jeanne Covey, Barbara J. Fallaw, Dorothy “Dottie” Perkins, AnnJeanette Whaley, Alicia Kirgan, and Matthew Ventress AKA Destinee Lashaee (Nos. 13-20-00341-CV & 13-20-00383-CV), the Corpus Christi Court of Appeals reversed and rendered for the producer. The plaintiffs understandably did not contest the application of the TCPA to a television program, so the court of appeals’ task was to determine if the plaintiffs established by clear and specific evidence a prima facie case for each element of their various non-exempt claims. The court found that they did not do so. The court quickly disposed of the negligence claim, which in substance amounted to a negligent infliction of mental anguish theory, a cause of action Texas does not recognize. Even so, the plaintiffs failed to establish that the producer owed them a duty or that any duty was breached. The gross negligence theory failed because the plaintiffs neither offered any evidence or argument nor raised the issue in their response to the TCPA motion to dismiss. The promissory estoppel and fraudulent inducement theories failed for the same reason.

The intentional infliction of emotional distress theory required more discussion. To establish IIED, the plaintiff must show that: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe” [citing Hoffman La-Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004)]. The plaintiffs offered affidavit testimony that the producer “forced them to do voiceovers for their episodes for up to fourteen hours a day, would ‘threaten’ [them] with breach of contract if they refused or tried to stop, and ‘subjected [them] to routine, repeated[,] and ongoing harassment.” They were likewise “forced . . . to lie to ‘create dramatic effect’ and to eat things they did not want to while on camera.”  The court of appeals held that this evidence did not rise to the level of “extreme and outrageous” conduct required by SCOTX. Such conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” [citing Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex. 2017)]. Setting aside whether the show has much if anything to do with a “civilized community” in the first instance, the producer’s alleged conduct, while it may have been “insensitive,” fell far short of the standard.

We confess that this case caught our attention because it involved a reality television show. But two things really stand out: (1) the Harris County trial court’s failure to get rid of a case so clearly doomed by the TCPA; and (2) the wholly inadequate lawyering of the plaintiffs’ case at the court of appeals. We suppose that somehow the plaintiffs’ lawyer hoped that the producer would settle the case once its TCPA motion was denied, but no defense lawyer in his client’s position here would forego an appeal of such a solid case for TCPP dismissal. We should also note that after the TCPA motion was denied by operation of law, the trial court tried to remedy the situation by granting the producer’s TCPA motion in part and denying it in part. The court of appeals acidly noted that having failed to rule within the time specified by statute, the trial court had no authority to issue an untimely order. We don’t presume to know whether something squirrely was going on there, but it certainly has all the earmarks of a fiasco from the get-go.

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