SLAPP at what?

slapp graphicIn a companion to the high-profile libel case of Tatum v. Dallas Morning News, the Fifth Court addressed the “anti-SLAPP” dismissal of the Tatum’s suit against Julie Hersh, a book author who allegedly discussed the subject of the offending column with columnist Steve Blow. For purposes of the motion, the Court assumed that “Hersh admitted talking with Blow about suicide and secrecy in general, but . . . denied making the alleged statements that the Tatums based their claims on—statements about [their son’s] death and obituary that encouraged Blow to write critically about those facts.”  Based on those facts, the Court reversed dismissal, finding that its holding in Pickens v. Cordia,TexasBarToday_TopTen_Badge_Small 433 S.W.3d 179 (Tex. App.–Dallas 2014, no pet.), controlled when “the defendant’s motion admits participating in a conversation generally but denies making the specific relevant statements in particular.”  Tatum v. Hersh, No. 05-14-01318-CV (Dec. 30, 2015).

SLAPPed with litigation about litigation

slapp graphicTervita LLC unsuccessfully disputed Sutterfield’s workers compensation claim in a contested hearing; afterwards, Sutterfield sued Tervita for various torts relating to its handling of his claim.  The trial court denied Tervita’s motion to dismiss under the new Texas anti-SLAPP statute.  The Dallas Court of Appeals reversed as to Sutterfield’s claims based on Tervita’s participation in the agency hearing, concluding that those claims were based on Tervita’s exercise of its right to petition.  It otherwise affirmed, concluding that Sutterfield’s claims about a hostile work environment and wrongful discharge “are based on Tervita’s actions and statements outside of the TDI-WC proceeding.”  Tervita LLC v. Sutterfield, No. 05-15-00479-CV (Dec. 18, 2015).

Implied Accusation of Welfare Fraud Supports Libel Claim

In 2013, D Magazine published an article that labeled Janay Bender Rosenthal as “The Park Cities Welfare Queen,” based on her receipt of benefits under the Supplemental Nutriotional Assistance Program. Rosenthal sued for libel, and the trial court denied the magazine’s anti-SLAPP motion to dismiss. The Court of Appeals affirmed, over the dissent of Justice Brown. The majority held that Rosenthal had established a prima facie case for defamation because the “gist” of the article was an accusation of welfare fraud, which the opinion backs up with a colorful history of the term “welfare queen.” Justice Brown disagreed, arguing that the article was a satirical critique of a welfare system “that allows a woman with a criminal history of theft, living in a million-dollar home, and taking advantage of the highly rated school system of a wealthy enclave, to collect food stamps.”

D Magazine Partners, L.P. v. Rosenthal (majority), No. 05-12-00951-CV

D Magazine Partners, L.P. v. Rosenthal (dissent)

The Knives Came Out in the Race for Kaufman County Commissioner

A Republican primary battle for the office of Kaufman County commissioner (precinct 2) resulted in a defamation claim against the challenger’s media consultant. It seems that two days before the election, a website went up that strongly implied the incumbent, Ray Clark, had intervened in multiple child molestation cases brought against his “nephew,” Stoney Adams. resulting in the charges being dismissed. A series of mailed-out fliers made similar allegations. In reality, Adams was only distantly related through a series of marriages on Clark’s wife’s side of the family, and Clark averred that he had never done anything to support or assist Adams in any criminal case. Based on those facts, the trial court denied the defendants’ motion to dismiss under the TCPA, finding that Clark had established a prima facie case for each element of his defamation claims. The Dallas Court of Appeals affirmed, rejecting the defendants’ argument that the statements were protected as “rhetorical hyperbole.” Similarly, the statements were not protected as non-actionable opinions just because they were attributed to Adams’ ex-wife, but were instead capable of being defamatory because they implied knowledge that Clark really had intervened in Adams’ child molestation cases. As for actual malice, the Court of Appeals credited Clark’s argument that the defendants had “carefully attempted to distance themselves” from the defamatory statements, which in turn demonstrated that they “entertained serious doubts” about them.

Campbell v. Clark, No. 05-14-01056-CV

Attorney Fees Don’t Need to Be Superseded in TCPA Appeals

With all the TCPA cases running through the appellate courts, it’s worth taking a quick look at one procedural issue. The question presented by way of motion to the Court of Appeals was whether the appellants were required to supersede the attorney fees awarded to the defendants in a judgment dismissing the plaintiffs’ business disparagement claims. The appellate court held that attorney fees are not damages, and therefore the trial court did not err in denying the defendants’ motion to raise the supersedeas amount to include the attorney fees.

Mansik & Young Plaza LLC v. K-Town Mgmt., LLC, No. 05-15-00353-CV

Yes, Your Online Reviews Are Protected by the TCPA

A nasty Zillow review of a real estate agent prompted a defamation lawsuit, which these days pretty much inevitably leads to a motion to dismiss under the Texas Citizens’ Participation Act. In this instance, the agent had listed the seller’s house as “temporarily off market” instead of “active.” The Collin County trial court denied the seller’s motion to dismiss, but the Dallas Court of Appeals reversed. The seller’s claim that the agent had listed the house as being off market for “over 100 days” was incorrect, but the Court held that the falsity of that statement was immaterial because the agent had actually listed the property that was for 64 days instead. The plaintiffs also failed to establish that listing the house as off market was in accordance with the seller’s instructions, as her complaint that she “did not want her property shown” was not the equivalent of asking it to be listed as “temporarily off market.” Finally, the plaintiffs could not base their defamation case on the seller’s statement that the agent was “incompetent, mentally unstable, or raging from rejection” because those were non-actionable statements of opinion. The Court therefore rendered judgment for the defendant and remanded for a determination of her costs and recoverable attorney fees.

Ruder v. Jordan, No. 05-14-01265-CV

Rational Interpretation Negates Malice in TCPA Appeal

Former GOP Senate candidate Chris Mapp sued the Dallas Morning News for defamation after it published an editorial stating Mapp had told the editorial board “that ranchers should be allowed to shoot on sight anyone illegally crossing the border on their land, referring to such people as ‘wetbacks,’ and called the president a ‘socialist son of a bitch.'” Mapp claimed that the “shoot on sight” comment had been taken out of context because he had actually said ranchers should be permitted to shoot when they were in “fear for their life” or in defense of property, the same as anybody else. The News filed a motion to dismiss under the TCPA, but the 30-day statutory period after the hearing passed without a ruling by the trial court. That caused the motion to be overruled by operation of law, and the newspaper perfected an interlocutory appeal. The trial court then issued an order granting the motion to dismiss, albeit outside the prescribed time period.

This raised two questions for the Dallas Court of Appeals: What was the effect of the late-issued dismissal order, and should the case have been dismissed on the merits in any event? As to the first question, the Court held that the untimely dismissal order was a nullity. On the merits, the Court held that Mapp (who was a public figure) had not met his prima facie burden of showing that the newspaper had published the allegedly defamatory statements with constitutional malice. Paraphrasing or deliberately altering another person’s words does not establish actual malice unless there is evidence the defendant misinterpreted the remarks on purpose or in circumstances so improbable that the mistake could only have been recklessly. The Court concluded that the newspaper’s paraphrase of the statements Mapp had made in his tape-recorded interview was a rational interpretation of what he had said, and Mapp had not submitted any evidence to contradict the reporter’s affidavit explaining his subjective intent. The Court of Appeals therefore concluded that the trial court had erred by allowing the motion to dismiss to be overruled by operation of law, rendered judgment that Mapp’s case be dismised, and remanded to the trial court for a determination of the DMN’s costs, fees, and other recoverable expenses.

The Dallas Morning News, Inc. v. Mapp, No. 05-14-00848-CV

No Interlocutory Appeals for Partial Dismissals Under the TCPA

Three of four defendants filed motions to dismiss under the Texas Citizens Participation Act, all of which were granted by the district court. The plaintiffs sought interlocutory review of those rulings, but the Dallas Court of Appeals concluded that it did not have jurisdiction to review the rulings. Because the claims against the fourth defendant were still pending, there was no final, appealable judgment in the case. Under the 2013 version of CPRC § 51.014(a)(12), only orders denying a TCPA motion to dismiss are subject to interlocutory appeal, and the current version of the TCPA itself only authorizes interlocutory appeals when the motion has been overruled by operation of law due to the trial court’s failure to rule within 30 days. The plaintiffs will therefore have to wait until final judgment before appealing the TCPA dismissals.

Horton v. Martin, No. 05-15-00015-CV

The TCPA Is a Powerful Tool, But Not All-Powerful

The Texas Citizens Participation Act is becoming a powerful tool for disposing of certain types of lawsuits at an early stage of litigation, but an opinion from the Dallas Court of Appeals recognizes two important limits to the TCPA’s scope. Travis Coleman sued his former employer, ExxonMobil Pipeline, and two former supervisors for defamation and related claims. Coleman contended that the defendants had lied about his alleged failure to measure the level of fluid in a chemical holding tank, which led to his dismissal. The trial court denied Exxon’s motion to dismiss under the TCPA, and the Court of Appeals affirmed.

The Court of Appeals first relied on the Texas Supreme Court’s recent holding in Lippincott v. Whisenhunt (4/25/15) to reject Coleman’s argument that the TCPA did not apply because the speech was purely private. Nevertheless, the Court held that the allegedly defamatory statements did not involve a “matter of public concern” because their contents related to Coleman’s private job performance, not health, safety, the environment, or Exxon’s economic interests. The fact that the potential consequences of Coleman’s alleged failure to check the tank included health, safety, environmental, and economic concerns was not enough to transform the statements into a matter of public concern. The Court also rejected Exxon’s argument that the TCPA applied on free association grounds, holding that communications made in the context of free association had to involve some sort of public or citizens’ participation to fall under the TCPA.

ExxonMobil Pipeline Co. v. Coleman, No. 05-14-00188-CV

The Opinion Was Not Issued on a Free CD-ROM

Last summer, the Dallas Court of Appeals rendered judgment in favor of television reporter Brett Shipp on a motion to dismiss under the Texas Citizens Participation Act. The plaintiff in that case, Dr. Richard Malouf, is back in the Court of Appeals with another pair of defamation cases involving the TCPA. This time, Malouf and his wife sued AOL, Inc. and its reporter for publishing an allegedly defamatory story concerning a backyard water park being built while Malouf was “charged” with millions of dollars in Medicaid fraud. Malouf claimed that was defamatory because he had never been “charged” with fraud in any criminal proceeding.

Because the statements related to matters of public concern — namely, allegations of defrauding taxpayers and the provision of dental services to the public — the TCPA shifted the burden to the Maloufs to establish a prima facie case for each element of the defamation claim by clear and specific evidence. The Court of Appeals held that they had failed to do so. Because the defendants were acting as members of the media, the Maloufs had to prove that the statements were actually false. The Court of Appeals held that the words “charged” and “stolen’ did not improperly suggest criminal charges or activity when Malouf had been sued under civil law for the alleged conduct several times. Therefore, a person of ordinary intelligence would not perceive the article’s claims to be more damaging to Malouf’s reputation merely because the article omitted to distinguish between civil and criminal proceedings. The Court of Appeals reversed and rendered in favor of AOL, affirmed dismissal as to the reporter, and remanded to the trial court for determination of AOL’s attorney fees and expenses.

AOL, Inc. v. Malouf, No. 05-13-01637-CV