Because the judicial-proceedings privilege is a powerful defense against defamation claims, it requires that “an allegedly defamatory statement must bear ‘some relation’ to the proceeding for the privilege to apply.” That said, the “some relation” requirement was readily satisfied in Mishkoff v. Garrett, where “the statement in question was made in a counterclaim for trespass and described Mishkoff’s alleged conduct in trespassing on Bryant’s property.” No. 05-22-01063-CV (Feb. 26, 2024) (mem. op.).

In an opinion reversing the denial of a TCPA motion to dismiss, the Texas Supreme Court made a helpful observation for the legal blogging community:

[A]nyone who appreciates lawyerly precision has probably read plenty of news stories about legal affairs that gloss over lawyerly distinctions or contain inadvertent mischaracterizations of legal or procedural concepts. These journalistic imprecisions are not to be applauded, and they certainly can mislead the average reader in some cases. But errors of law by those reporting on the law are not automatically actionable as defamation.

Polk County Publ. Co. v. Coleman, No. 22-0103 (Tex. Feb. 16, 2024).

In a defamation / business disparagement claim, when the charge told the jury to:it was reversible error for the jury to consider evidence about the effects of “a widespread ‘whisper campaign'” distinct from the referenced statement. Memorial Hermann Health System v. Gomez, No. 19-0872 (Tex. April 22, 2022).

The long-running defamation case continues about a D Magazine article called “The Park Cities Welfare Queen,” most recently with the Fifth Court affirming the denial of the defendants’ summary-judgment motion: “There are multiple fact issues about whether Bender committed a crime by providing false or incomplete information to the HHSC to obtain thousands of dollars of SNAP benefits to which she was not entitled. Having reviewed the entire record, we conclude there is more than a scintilla of evidence that the gist of the Article is not substantially true.” D Magazine Partners LP v. Bender, No. No. 05-19-01525-CV (June 9, 2021) (mem. op.).

In Marble Ridge Capital v. Neiman-Marcus Group, the Fifth Court affirmed the denial of a TCPA motion in a defamation action brought by Neiman-Marcus, pre-bankruptcy, against an investment fund. Among other holdings, the Court thoroughly surveyed Texas law about the judicial-communications privilege and held: “Based on this record, we conclude Marble Ridge did not satisfy its burden under section 27.005(d) regarding the judicial-communications privilege because Marble Ridge was not actually contemplating and giving serious consideration to a  judicial proceeding when making its September 18, September 21, and September 25, 2018 communications.” No. No. 05-19-00443-CV (Sept. 30, 2020) (emphasis added). LPHS represented Neiman-Marcus in this matter.

On the facts of California Commercial Investment Group v. Herrington, “even
though the charges were dropped, [Defendant’s] statements made to police are protected as an exercise of the right to petition and of free speech.” The Fifth Court went on to find that no prima facie case was made on the plaintiff’s malicious-prosecution and defamation claims, and reversed the trial court’s denial of the defendant’s TCPA motion to dismiss. No. 05-19-00805-CV (July 8, 2020) (mem. op.).

Clark sued Phillips, his former competitor in an an election for Kaufman County Commissioner, for defamation in campaign materials. Phillips lost a summary judgment motion and sought one of the many interlocutory appeals available under Texas’s Byzantine interlocutory-appeals statute; specifically, section 51.014(a)(6). The result is the second split in recent weeks between a Democratic majority and a Republican dissenter, as follows.

Justice Reichek, joined by Justice Molberg, held that the Fifth Court lacked jurisdiction: “The record before us shows that Phillips was a candidate for public office who  allegedly provided information that was published in mailers and on a website. Nothing in the record shows Phillips has ever engaged in professional news reporting or any other form of journalism or professional investigation and commentary about matters of public concern. Accordingly, Phillips does not qualify as a ‘member of the media (emphasis added),'” and thus could not avail himself of this statute.

Justice Whitehill, invoking Occam’s Razor, agreed with the majority’s conclusion but disagreed with the path of its reasoning: “In short, whether we have jurisdiction over Phillips’s appeal from the denial of his summary judgment motion in this defamation case depends on whether he asserted a ground based on the First Amendment, its Texas equivalent, or Civil Practice and Remedies Code Chapter 73. He didn’t. Enough said. That should end the appeal. . . . Because there is a straightforward answer to this case without exploring in the first instance the boundaries of what constitutes the electronic media, we should follow the straightforward path and wait until when defining the electronic media is necessary to decide the case then before us (emphasis added).” Phillips v. Clark (links to both opinions above), No. 05-18-00556-CV (May 3, 2019).

Football legend Deion Sanders sued his ex-wife for defamation; the trial court granted summary judgment on liability and entered judgment for $2.2 million after a bench trial on damages. The Fifth Court reversed, holding that this testimony was too conclusory to justify a summary judgment on the issue of malice:

“At the hearing, Deion was asked, ‘Does Pilar Sanders know that these statements are untrue,’ and he answered ‘Yes.’ In his affidavit, Deion stated, ‘Defendant knew or should have known that each of the defamatory statements . . . were [sic] false . . . I have previously so testified.”

Finding no other evidence or argument sufficient to sustain the judgment as to malice, the Court remanded. Sanders v. Sanders, No. 05-16-00248-CV (Aug. 29, 2017) (mem. op.)

The Fifth Court affirmed summary judgment for D Magazine in a defamation suit by a former volunteer, finding that most of the statements at issue were unactionable opinions or accurate statements of fact. Summarizing the underlying principles of free speech, the opinion reminds that a “rhetorical flourish” that is “merely unflattering, abusive, annoying, irksome, or embarrassing, or that only hurts the plaintiff’s feelings, is not actionable.” The court lacked appellate jurisdiction over part of a related appeal by the Dallas Symphony, since it involved the denial of a summary judgment about a tortious interference claim rather then free speech issues, although the Court was able to address the civil conspiracy claim against the Symphony. D Magazine Partners LP v. Reyes, No. 05-16-00294-CV (April 18, 2017) (mem. op.)

Plaintiffs sued for libel, based on four articles in the Korea Town News (N.B. – Dallas has the largest Korean-American community in Texas). Unfortunately, the TCPA “anti-SLAPP” statute applied, because the articles dealt with “the proposed sale of an office building . . . for use as a community center, which would be purchased “in part with funds raised by the public.” And the statements at issue were not actionable, as they “the majority of these statements concern the value of the building . . . the appraisal value of the building, the purchase price, and its market value.” Accordingly, the Fifth Court affirmed the dismissal of Plaintiffs’ claim — and the resulting award of attorneys fees under the TCPA. Mansik & Young Plaza LLC v. K-Town Management LLC, No. 05-15-00353-CV (Aug. 15, 2016) (mem. op.)

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)

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

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

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

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

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

The Texas Citizens’ Participation Act continues to be a powerful tool in certain types of commercial cases. In this instance, the publisher of Petroleum News Bakken managed to obtain and affirm a judgment of dismissal and attorney fees in a business disparagement and tortious interference case. The dispute arose out of a newspaper article that stated no records could be found for wells that Breitling Oil & Gas claimed to have drilled in North Dakota. The publisher moved to dismiss under the TCPA, which shifted the burden to the burden to the plaintiff to come forward with prima facie evidence of each element of its claims. Breitling responded with a notice of nonsuit, but that didn’t stop the trial court from moving forward with the hearing and awarding the defendant $88,444.58 in attorney fees and expenses. The Court of Appeals affirmed, holding that the nonsuit did not moot the pending motion to dismiss because the defendant had already made a “pending claim for affirmative relief” through its request for attorney fees and sanctions. The Court also rejected Breitling’s argument that the attorney fees should have been tried to a jury, noting that the record did not show that Breitling ever objected to the trial court making findings on the reasonableness of the fees awarded.

Breitling Oil & Gas Corp. v. Petroleum Newspapers of Alaska, LLC, No. 05-14-00299-CV

A trio of worked-up horse breeders managed to Facebook-rant their way into a colorful defamation lawsuit, which the Dallas Court of Appeals has now permitted to proceed as to one of the two counterclaim defendants. Appellants Jane McCurley Backes and Tracy Johns sued Appellee Karen Misko for tortious interference.  Misko counterclaimed against Johns for libel and against Backes for conspiracy to libel. The opinion quotes extensively from the women’s online postings, the pettiness of which will be no surprise to anyone familiar with the Internet. Misko eventually unfriended Backes and Johns, the latter of whom then posted a thinly-disguised query whether anyone had ever known someone with Munchausen Syndrome by Proxy. Misko’s daughter had long been a victim of health issues, and other posters saw Johns’ post as an attack on Misko. That post served as the basis for Misko’s libel claim. The trial court denied Johns and Backes’ motions to dismiss under the Texas Citizens Participation Act.

The Court of Appeals held that Johns and Backes both met their initial burden of demonstrating that the claims against them were based on their rights to free speech and association, respectively. That shifted the burden to Misko to come forward with clear and specific evidence establishing a prima facie case of each element of her claims. The Court of Appeals held that Misko had indeed met that burden with respect to her libel claim against Johns, but not as to the conspiracy claim against Backes. Because Misko had not come forward with clear and specific evidence of a meeting of the minds between Backes and Johns, the Court rendered judgment dismissing the civil conspiracy claim and remanded the case to the trial court for consideration of an award of attorney fees and costs.

Backes v. Misko, No 05-14-0566-CV

Attorney Baltasar Cruz sued for libel against the operators of the Burnt Orange Report, which published a statement that Cruz had been “thrown out three times, finally by the police, of an Elizabeth Edwards book signing event in Dallas several years ago.” The defendants moved to dismiss on anti-SLAPP grounds. The trial court granted the motion and awarded the defendants their attorney fees. The Court of Appeals affirmed the dismissal of the case, but reversed on the award of attorney fees.

Cruz raised a remarkable 121 issues for appellate review, taking up 25 pages of non-word count briefing. The Court of Appeals did not find that lack of conciseness persuasive — see Tex. R. App. P. 38.1(f) — nor did it care for the absence of headings, divisions, or groupings in the brief’s 69 pages of argument. The Court also noted that the brief lacked legal authority and failed to identify the evidentiary objections Cruz was seeking to vindicate on appeal. As a result, the Court deemed many of Cruz’s “multifarious” issues to be waived. On the merits of the anti-SLAPP motion, the Court quickly disposed of Cruz’s claim that the statement was not a “matter of public concern” because he was a candidate for judicial office at the time the blog post was published and a candidate’s character is relevant to his qualification for public office. Cruz also could not establish that the statement was published with malice just because the defendants had not been present at the book signing incident, while the defendants averred they had relied on several sources for their account.

However, the Court of Appeals vacated an award of $158,521.50 in attorney fees to one group of defendants because they had not actually “incurred” those fees. Since their attorneys had taken the case pro bono, the clients were not personally responsible for payment of the claimed fees. However, the Court sustained a separate fee award of $31,783.75 to another defendant, holding that there was evidence showing that party was personally liable for those fees.

Cruz v. Van Sickle, No. 05-13000191-CV

A trial court that dismisses a lawsuit after a motion made under the Texas Citizens Participation Act “shall award to the moving party . . . reasonable attorney’s fees . . . incurred in defending against the legal action as justice and equity may require.” Tex. Civ. Prac. & Rem. Code § 27.009(a)(1). In this case, the trial court signed its order on March 6 granting the defendant’s motion to dismiss the lawsuit, then followed it up on April 14 with an order awarding defendant $15,616 in attorney fees and sanctioning the plaintiff another $15,000. The plaintiff claimed that the April 14 award was a nullity because the March 6 order was a final judgment. The Court of Appeals disagreed, first order did not purport to dispose of the defendant’s claim for fees and costs, and both the court and the parties recognized that there had not been a final judgment because they continued to litigate the additional issues. The Court of Appeals went on to rule on several other issues, concluding among other things that the plaintiff had waived any complaint about the trial court’s failure to timely hold a hearing on the motion to dismiss by failing to object in the trial court; that the statements attributed to the defendant were not capable of being defamatory; and that the plaintiff had not pointed to any evidence of damages to support its tortious interference claim. The judgment was therefore affirmed.

American Heritage Capital LP v. Gonzalez, No. 05-12-0892-CV

Television reporter Brett Shipp was sued for defamation by Dr. Richard Malouf, founder of the All Smiles Dental Center. Shipp broadcast a story on allegations of Medicaid fraud involving Malouf, and closed by reporting that Malouf “has yet to comment on the allegations but filed for bankruptcy and is in the process of divesting his once impressive empire.” Malouf alleged that statement was defamatory because it was All Smiles Dental Center that filed for bankruptcy, not Malouf personally. Shipp filed a plea to the jurisdiction and a motion to dismiss under the Texas Citizens Participation Act. The trial court denied both the plea and the motion, and Shipp took the matters up on interlocutory review.

The Court of Appeals affirmed the denial of the plea to the jurisdiction, but reversed and rendered based on on the TCPA. The plea to the jurisdiction claimed that the county court at law was without jurisdiction because it would deny Shipp the right to a 12-person jury. The Court quickly disposed of that issue, citing its own case law establishing that the size of the available jury does not negate subject matter jurisdiction that has otherwise been properly conferred on a court. As to the TCPA, the Court held that Shipp had met his initial burden of showing that the lawsuit arose out of his exercise of the right to free speech because the subject matter of his report as a whole — not just the statement about the bankruptcy filing — was made in connection with a matter of public concern. That shifted the burden to Malouf to come forward with a prima facie case, based on “clear and specific evidence,” for each element of his defamation claim. Malouf argued that a false accusation of personal bankruptcy was defamation per se, which would have given rise to a presumption of damages. The Court of Appeals disagreed, holding that it was not defamation per se because it did not “touch Malouf in a way that is harmful to one engaged in the profession of dentistry.” Without any other clear and specific evidence of damages, the Court held that the motion to dismiss under the TCPA should have been granted.

Shipp v. Malouf, No. 05-13-01080-CV

The Texas Citizens Participation Act continues to be a fruitful source of appellate activity. In this instance, the Court of Appeals has reversed the trial court’s order denying a motion to dismiss in a case arising out of a bad review on Angie’s List. Barbara Young hired Perennial Properties to construct an outdoor living space at her home, but Young claimed that Perennial failed to perform its work as required. McKinney Lumber Company then filed a lien against Young’s property for $9,779 in lumber that Perennial had failed to pay for. After the lumber company sued everyone involved, Young wrote up her experience in an online review, giving Perennial an overall grade of “F” and describing Perennial’s owners as incompetent crooks. Those owners then intervened in the lawsuit in order to sue Young and her attorney for defamation and intentional infliction of emotional distress.

The Court of Appeals first held that Young had met her initial burden of showing that the online review was an exercise of her right to free speech because it was a communication made to the public in connection with a good, product, or service. That brought it within the scope of the TCPA and shifted the burden to Perennial’s owners to establish by clear and specific evidence a prima facie case for each element of their claims. That they failed to do, according to the Court of Appeals. The defamation claim failed because the owners had not provided any evidence that the allegedly false statements were defamatory (as opposed to non-actionable opinions) or that Young had been negligent in making them. The intentional infliction of emotional distress claim failed because that cause of action is only a “gap-filler” tort, and there were no different or distinguishing facts from the defamation claim to permit it to proceed separately. The Court of Appeals therefore dismissed both claims and remanded the case for further proceedings under the TCPA, presumably to consider an award of attorney fees to Young.

Young v. Krantz, No. 05-13-00853-CV

If “blogger” sounds like an unusual pastime for the son of an oil-and-gas billionaire, this colorful case may be the one for you. T. Boone Pickens and several of his children sued Michael Pickens. Michael is T. Boone’s son and a recovering drug addict who has chronicled his life and his recovery in his blog, “5 Days in Connecticut” (which is now closed to uninvited readers). The blog has not been very kind to the other members of Michael’s family, which led them to sue for invasion of privacy, defamation, and intentional infliction of emotional distress. Michael moved to dismiss based on the Texas Citizens Participation Act, our version of the “anti-SLAPP” laws that have been enacted around the country in recent years. The trial court denied the motion to dismiss, and the Court of Appeals affirmed, holding that Michael’s statements about his life and his family did not qualify for protection under the TCPA because they were not “made in connection with a matter of public concern.”  Tex. Civ. Prac. & Rem. Code § 27.001(3).

Although the TCPA defines “public concern” to include statements relating to “a public figure,” the Court drew a distinction between general-purpose public figures and limited-purpose public figures. To qualify as a matter of public concern under the TCPA, the speech must either relate to a general-purpose public figure (whose entire life is followed by the public) or a limited-purpose public figure (who is only followed at times, or on certain topics). If it is a limited-purpose public figure, then the defendant’s speech only qualifies as a matter of public concern if the statements relate to the subject matter that makes the person a limited-purpose public figure. Here, the Court concluded that Michael’s evidence was insufficient to show that T. Boone was a public figure for all purposes, and that he was only a public figure for the limited purpose of his opinions and activities in the energy industry. Because Michael’s statements related to T. Boone’s family life, and not the energy industry, they did not qualify as matter of public interest under the TCPA, and therefore Michael’s motion to dismiss had to be denied.

Pickens v. Cordia, No. 05-13-00780-CV

Southwestern Christian College fired its track coach after he allowed two ineligible athletes to run in a meet.  Later, when the college’s track program got audited, the athletic director chose not to respond and accepted a ban from that year’s national championship, because the penalty for running ineligible athletes would have been worse than the penalty for failing to respond to an audit request.  The athletic director then told the track team that the reason they could not compete in the national championship meet was because the coach ran ineligible athletes.  The coach disputed that explanation.  He claimed that the audit and resulting ban were due to the athletic director’s failure to submit certain forms.

The coach sued the college, the athletic director, and the college’s president, alleging, among other things, that the athletic director and college president had made slanderous statements that tarnished his reputation in the track and field community and prevented him from getting another job.  The trial court granted the defendants’ motion for summary judgment and dismissed all of the coach’s claims.  The Court of Appeals, however, reversed the trial court’s dismissal of the coach’s slander claims against the college and the athletic director, finding that the coach had raised a material fact issue as to the truth of the athletic director’s statements to the track team.

Porter v. Southwestern Christian College, No. 05-12-01737-CV

The Court of Appeals has affirmed summary judgment in favor of the defendant in a libel and business disparagement case.  The case arises out of statements made by OAC Senior Living in an administrative waiver proceeding initiated by a competitor, Senior Care Resources. The allegedly defamatory statements were made to the Texas Department of Aging and Disability Services, a state agency designated to administer and monitor human services programs, including Medicaid. If that sounds like the sort of thing that would be absolutely privileged under defamation law, the Court of Appeals agrees with you. Although DADS is not a court, it was exercising quasi-judicial power in determining whether to grant Senior Care’s requested waiver. The Court’s opinion provides a lengthy analysis of when it is proper for a court to conclude, as a matter of law, that such a proceeding qualifies as quasi-judicial for purposes of the absolute privilege defense.

Senior Care Resources, Inc. v. OAC Senior Living, LLC, No. 05-12-00495-CV

Based on a report from a confidential informant, the Texas Department of Family and Protective Services investigated Robert Mason for allegations that he hit his ten-year-old daughter three times.  The investigation determined that, based on the available evidence, the alleged abuse did not occur.  But Mason suspected that the informant was David Glickman, the Rabbi of a congregation with which Mason associated, so he sued Glickman for defamation.  Because the TDFPS had redacted its report (as required by Texas law) to conceal the name of the informant, Mason could not establish that Glickman was the one who made the allegedly defamatory statement.  Under a Texas Family Code provision, however, Mason moved the trial court to order disclosure of the unredacted report, arguing that disclosure was essential to the administration of justice.  The trial court denied the motion and granted Glickman’s no-evidence motion for summary judgment.  The Court of Appeals agreed, holding that disclosure of the report was not essential to the administration of justice.  Further, the court rejected Mason’s stated goal of discouraging reports of suspected child abuse since the statute exists to encourage child abuse reporting, regardless of whether the allegations are ultimately confirmed.

Mason v. Glickman

The Court of Appeals has granted mandamus relief to the defendants in the defamation lawsuit brought by the teenaged son of baseball player Torii Hunter. The suit arises out of sexual assault charges that a grand jury eventually no-billed. In the subsequent defamation case, the defendants moved to dismiss under the Texas Citizens Participation Act, which requires the plaintiff in such a case to come forward with prima facie evidence of each element of the case at an early stage of the litigation. The plaintiff responded with an emergency motion seeking leave to take the depositions of one of the alleged victims and her mother.  The trial court granted leave, but the Court of Appeals held that the plaintiff’s briefing had not stated any “good cause” for the discovery, as required by the TCPA, and at the hearing on the motion had only argued that the depositions were necessary “in order to defend the motion to dismiss.” Without any specific showing of good cause in the record, the Court of Appeals concluded that the trial court had abused its discretion in allowing the depositions and conditionally granted mandamus relief.

In re D.C., No. 05-13-00944-CV

After receiving a number of unresolved or unanswered complaints over several years, the Better Business Bureau (“BBB”) gave the Lloyd Ward & Associates (“Ward”) an “F” rating.  Ward was not happy about this and sued the BBB for libel, slander, and negligence, seeking an injunction preventing the BBB from including Ward in its listing service.  The BBB moved to dismiss on constitutional and other grounds, but the trial court denied their motion.

On appeal, the Court referred to its related opinion in another BBB-related lawsuit, which held that the BBB’s rating service provided a service to the marketplace and, thus, qualified as a matter of public concern under the Texas Citizens Participation Act (“TCPA”).  Because the TCPA applied to the BBB’s ratings, the burden shifted to Ward to establish “by clear and specific evidence” a prima facie case for each element of his claims.  But in his arguments on appeal Ward never presented any evidence for his case, instead relying entirely on the argument that the TCPA did not apply at all.  The Court therefore found that Ward failed to meet his burden and reversed the trial court’s decision.

Better Business Bureau v. Ward

In January 2010, Rodney Meisel found an uncashed paycheck from his former employer, dated May 2009.  After calling the former employer’s bank to confirm that the check hadn’t been previously cashed, Mr. Meisel deposited it in his account at U.S. Bank and informed the ex-employer that he had done so.  But four days later, the employer designated the check for return, based on a computer program that indicated it had been previously paid. The next day, the employer told its bank that the check was still good, but the check was still returned to U.S. Bank. Although U.S. Bank was informed that the check wasn’t counterfeit, it still closed Meisel’s accounts and reported to a credit agency that the closure was due to “transactions involving items or checks belonging to another party.” Meisel sued for defamation based on that communication. The trial court granted summary judgment for U.S. Bank, and the court of appeals affirmed based on the defense of truth.

On appeal, the court noted that a true statement is not actionable as libel. Starting from that premise, the court noted that there were two versions of the check in the summary judgment record. Version 1 was a “LEGAL COPY” of Meisel’s check, apparently a type of substitute check provided for under federal law, that he deposited in 2009. The second copy was the one deposited in 2010, which was the original, non-substitute version of the same check. The court of appeals rejected Meisel’s contention that he still “owned” the original check even though he had deposited the substitute version of the same check eight months earlier. Copies may be admissible the same way as originals, but they are not owned in the same way.

Meisel v. U.S. Bank, N.A., No. 05-11-01336-CV

Back in December, the Dallas Court of Appeals became one of the first courts to issue a ruling on the merits under our new anti-SLAPP statute, the Texas Citizens Participation Act. As we noted previously, the TCPA permits defamation defendants to file a motion to dismiss, which then puts the plaintiff to the burden of producing prima facie evidence in support of their claim. The statute may also permit an interlocutory appeal if the trial court denies the motion to dismiss (although maybe not so much under the Fort Worth Court of Appeals’ reading of the statute). But to invoke the right to an interlocutory appeal, the defendant still has to follow the deadlines established by the TCPA, which requires the notice of appeal to be filed within 60 days after the motion to dismiss is denied, whether by order of the trial court or by operation of law.

Defendant Ravinder Jain timely filed his motion to dismiss, and the trial court heard the motion on February 2, 2012. But the court did not issue a ruling on the motion within 30 days, at which time the TCPA deems the motion to be denied by operation of law. On May 17, the trial court issued an order expressly denying the motion to dismiss, and Jain filed his notice of appeal only a few days after that order. However, the court of appeals held that the notice of appeal needed to be filed within 60 days of the date that the motion was originally denied by operation of law (i.e., early March), making Rain’s late-May notice of appeal untimely. The court therefore dismissed the interlocutory appeal for lack of jurisdiction.

Jain v. Cambridge Petroleum Group, Inc., No. 05-12-0677-CV

In 2011, the Texas Legislature enacted the Texas Citizens Participation Act, a type of statute that is known nationally as an anti-SLAPP (“Strategic Lawsuit Against Public Participation”) act. As with other anti-SLAPP laws, the TCPA gives litigants the right to file a motion to dismiss if the claim involves their “exercise of the right of free speech, right to participation, or right of association.” Tex. Civ. Prac. & Rem. Code § 27.003(a). The filing of such a motion stays discovery in the case (except on a showing of good cause) and puts the burden on the claimant to establish a prima facie case for each element of the claim.  Id. §§ 27.003(a) & 27.005(c). The motion has to be heard within 30 days of filing, and the court must rule on the motion within an additional 30 days or the motion is deemed to be denied by operation of law. §§ 27.004, 27.005, 27.008(a). If the motion is overruled by operation of law, the TCPA grants the movant the right to an interlocutory appeal. Id. § 27.008(a). In short, the TCPA is a powerful tool for the defendant in a defamation case, requiring the plaintiff to prove early in the case that it already has evidence supporting each element of the defamation claim, and potentially taking the case out of the hands of the trial court altogether.

(Strangely, the statute does not expressly grant the movant the right to appeal if the trial court timely denies the motion to dismiss. See Lipsky v. Range Prod. Co., 2012 WL 3600014 (Tex. App.-Fort Worth Aug. 23, 2012, pet. filed). It is unclear whether anything will be done to fix that apparent oversight in the coming legislative session, or whether the Supreme Court will find authorization for such an appeal implicit in the statute.)

The Dallas Court of Appeals has now become one of the first appellate courts to weigh in on the substance of the TCPA. In Avila v. Larrea, an attorney sued Univision and one of its reporters after they broadcast a story suggesting he had engaged in misconduct against some of his clients. The defendants filed a motion to dismiss pursuant to the TCPA and the trial court conducted a hearing. But instead of ruling on the motion itself, the trial court found good cause to permit 90 days of discovery and continued the hearing until that discovery was completed. After 30 days, however, the defendants filed their interlocutory appeal, arguing that the appeal was authorized because the motion was automatically denied after 30 days. The court of appeals agreed, then went on to hold that the plaintiff had failed to produce sufficient evidence that the alleged statements were false, or that the broadcaster had failed to exercise due care to prevent other people from making defamatory statements in the broadcast.  The court of appeals therefore rendered judgment in favor of the defendants and remanded to the trial court to consider an award of damages and costs against the plaintiff.

Avila v. Larrea, No. 05-11-01637-CV

Attorney Robert Collins was sued by his client, Chris Green, for professional negligence and breach of fiduciary duty.  Green claimed that Collins had failed to serve the defendant in the underlying lawsuit, thereby allowing that case to be dismissed for want of prosecution.  As a result, Green’s claims became time-barred.  Collins filed an answer to Green’s lawsuit, but failed to appear at trial. Green testified in support of his claim, and the trial court granted a default judgment for $31,500.  The trial court subsequently denied Collins’ motion for new trial, and Collins appealed.

On appeal, Collins argued that the judgment had to be reversed because Green had failed to prove that he could have collected on any judgment in the underlying lawsuit.  But while that complaint may have been accurate, the court of appeals saw no need to reach it because Collins had failed to brief anything about Green’s breach of fiduciary duty claim.  That meant that he had failed to attack all independent grounds supporting the judgment, resulting in affirmance of the case.

Collins v. Green, No. 05-11-00893-CV

In a defamation case, the court of appeals has affirmed summary judgment in favor of the defendants.  The case was brought by a group of Dallas police officers who claimed they had been defamed by a former cop, D Magazine, and the magazine’s writer following the publication of a story alleging the issuance of fraudulent misdemeanor citations.  In the process of overruling the plaintiffs’ complaint that the trial court had abused its discretion by failing to grant a further continuance of the summary judgment hearing, the court of appeals endorsed the San Antonio court’s formulation of “a qualified First Amendment privilege against compelled disclosure of confidential information possessed by a journalist.” The court also rejected the plaintiff’s objections to the writer’s affidavit, holding that his testimony of relying on anonymous sources was sufficient to establish a good faith basis for publishing the allegedly defamatory claims, which the plaintiffs had failed to rebut.  Finally, the court of appeals held that the defendants had submitted adequate evidence to prove their lack of actual malice against the plaintiffs, and that the plaintiff had failed to raise a fact issue to contradict that evidence.

Nelson v. Pagan, No. 05-09-01380-CV