QBE Americas, Inc. and Sonia Diaz v. Deylan Walker ( 2021 )

Reversed and Remanded and Opinion Filed May 12, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00439-CV
QBE AMERICAS, INC. AND SONIA DIAZ, Appellants
V.
DEYLAN WALKER, Appellee
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-14300
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Goldstein
Opinion by Justice Pedersen, III
Appellee Deylan Walker sued appellants QBE Americans, Inc. (“QBE”) and
Sonia Diaz for defamation in this dispute concerning statements Diaz made to law
enforcement. Appellants filed a motion to dismiss pursuant to the Texas Citizens
Participation Act (TCPA), which was heard before the trial court. The motion was
denied by operation of law. In this Court, appellants raise a single issue, arguing that
Walker’s claims should have been dismissed under the TCPA. See TEX. CIV. PRAC.
& REM. CODE ANN. §§ 27.001–.011. We reverse the denial of appellants’ motion to
dismiss as to Walker’s defamation claim and remand the cause to the trial court.
I. BACKGROUND
A. Blackmon’s Insurance Claim, Estimates, and Invoices
On May 1, 2018, Donna Blackmon reported a claim for hail damage to her
home in Rockwall, Texas to QBE Insurance Corporation. QBE was the claims
administrator for QBE Insurance Corporation, and it opened a claim file for
Blackmon’s hail damage claim. QBE assigned Diaz to handle Blackmon’s claim,
and QBE’s independent adjuster prepared a first estimate for the claim.
Blackmon hired Deylan Walker as her contractor, and on May 11, 2018,
Walker complained to Diaz that this first estimate did not cover all of the damage to
Blackmon’s property.1 On June 15, 2018, Walker emailed QBE a different estimate
and an invoice from his company—both specifying $35,150.85 in repair cost. QBE
then engaged a second independent adjuster, ASI, to prepare an estimate. ASI and
Walker agreed on a price of $23,639.53 to repair Blackmon’s property. On July 2,
2018, QBE approved an additional payment to Blackmon in the amount of
$11,594.52. Also on July 2, 2018, Walker called QBE to request “final check be
express and that mortgage be left off the final check.” Diaz also spoke with Walker
on July 2, and she advised him (i) on the agreed final price and (ii) that he could
finish his work for Blackmon.
1
During this time, QBE made two payments to Blackmon in the amounts of (i) $559.27 paid on May
10, 2018, and (ii) $6,296.88 paid on June 7, 2018.
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On July 13, 2018, Walker submitted an amended invoice for $23,639.53 to
QBE. Walker’s amended invoice stated “Storm Damage (Revised 7/11/18) Invoice
per DW Group Construction Company final estimate as attached.” Diaz interpreted
this amended invoice as the final invoice and released the depreciation check, which
is not paid until the work is complete, to Blackmon. QBE closed its file on
Blackmon’s claim on July 18, 2018. QBE made all payments to Blackmon, and
Blackmon paid Walker $12,000.00 to begin work.
B. Insurance Investigation and Criminal Charge
Following QBE’s closure of Blackmon’s claim, Blackmon contacted QBE
several times to voice her concerns with Walker’s demands regarding additional
payment and Walker’s lack of completed work. Blackmon spoke with Kevin Magee,
Diaz’s supervisor. QBE began a special investigation, which included a three-way
call with Blackmon and Walker. Ultimately, Blackmon informed QBE that she was
going to file a complaint against Walker, and QBE concluded Walker
“misrepresented his final invoice as if the work had already been completed.” QBE
closed its special investigation on August 27, 2018, and it referred the matter to the
Texas Department of Insurance. On August 29, 2018, Blackmon spoke with Diaz to
inform her of the situation with Walker and complain about QBE’s handling of the
claim.
On August 30, 2018, Rockwall Police Department Detective Tinsley spoke
with Diaz about Blackmon’s claim and Walker. On August 7, 2019, Blackmon
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informed Diaz that the district attorney had charged Walker with a felony. A
Rockwall grand jury indicted Walker on a charge of theft of property between
$2,500.00 and $30,000.00.
C. Walker’s Defamation Suit
On September 10, 2019, Walker filed suit against, among other defendants,
appellants for defamation. Walker based his claims of defamation on Diaz’s
statements to Detective Tinsley. Walker alleged Diaz’s reports to Detective Tinsley
caused the felony charge against him and resulted in a negative rating and review by
the Better Business Bureau in Dallas. On November 14, 2019, appellants filed a
motion to dismiss Walker’s suit pursuant to the TCPA, asserting that Walker’s
claims are related to appellants’ exercise of the right of free speech, the right of
association, and the right to petition. On February 10, 2020, Walker amended his
petition to add tortious interference with contract and conspiracy claims.2
The trial court heard appellants’ TCPA motion on February 17, 2020, but
entered no order. The trial court denied appellants’ motion by operation of law on
March 18, 2020. CIV. PRAC. & REM. § 27.008(a).3 This interlocutory appeal
followed.
2
Walker alleged that Diaz and another QBE adjustor, Stephanie Sifford, acted together to tortiously
interfere with his contract with a different QBE-insured individual. Walker’s conspiracy claim alleged QBE
and Blackmon acted in concert to defame Walker.
3
“If a court does not rule on a motion to dismiss under Section 27.003 in the time prescribed by Section
27.005, the motion is considered to have been denied by operation of law and the moving party may appeal.”
CIV. PRAC. & REM. § 27.008(a). The court must rule on a motion under Section 27.003 not later than the
30th day following the date the hearing on the motion concludes. CIV. PRAC. & REM. § 27.005(a).
–4–
II. ISSUE RAISED
Appellants raise a single issue on appeal—whether the trial court erred in
denying appellants’ motion to dismiss pursuant to the TCPA.
III. STANDARD OF REVIEW
We review de novo a trial court’s ruling on a TCPA motion to dismiss. Dyer
v. Medoc Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas 2019, pet.
denied). In doing so, we consider the pleadings and supporting and opposing
affidavits in the light most favorable to the non-movant. Fishman v. C.O.D. Capital
Corp., No. 05-16-00581-CV, 2017 WL 3033314, at *5 (Tex. App.—Dallas July 18,
2017, no pet.) (mem. op.).4 Whether the TCPA applies to a non-movant’s claims is
an issue of statutory interpretation that we also review de novo. Youngkin v. Hines,
546 S.W.3d 675, 680 (Tex. 2018).
IV. TCPA
We construe the TCPA “liberally to effectuate its purpose and intent fully.”
CIV. PRAC. & REM. § 27.011(b); see also State ex rel. Best v. Harper, 562 S.W.3d 1,
11 (Tex. 2018). We ascertain and give effect to the Legislature’s intent as expressed
in the language of the statute. Harper, 562 S.W.3d at 11. We construe the statute’s
words according to their plain and common meaning, unless a contrary intention is
apparent from the context, or unless such a construction leads to absurd results.
4
A plaintiff’s pleadings are usually “‘the best and all-sufficient evidence of the nature of the action.’”
Hersh, 526 S.W.3d at 467 (quoting Stockyards Nat’l Bank v. Maples, 95 SW.2d 1300, 1302 (Tex. 1936)).
–5–
Youngkin, 546 S.W.3d at 680. As directed by the supreme court, we must adhere to
the definitions in the TCPA. Adams v. Starside Custom Builders LLC, 547 S.W.3d
890, 894 (Tex. 2018); Youngkin, 546 S.W.3d at 680. However, in the process of
applying “isolated” definitions, we are required to construe those individual words
and provisions in the context of the statute as a whole. Youngkin, 546 S.W.3d at 680.
“The TCPA’s purpose is to identify and summarily dispose of lawsuits
designed only to chill First Amendment rights.” In re Lipsky, 460 S.W.3d 579, 589
(Tex. 2015) (orig. proceeding). The legislature enacted the TCPA 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.” See CIV. PRAC. & REM. § 27.002; ExxonMobil Pipeline
Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017).
To achieve this purpose, the statute provides a two-step procedure to expedite
dismissal of claims brought to intimidate or to silence a defendant’s exercise of a
protected right. Coleman, 512 S.W.3d at 898; see also CIV. PRAC. & REM. §§
27.003(a), 27.005(b); Youngkin, 546 S.W.3d at 679. First, a movant seeking
dismissal under the TCPA bears the burden of showing—by a preponderance of the
evidence—that the legal action is based on, relates to, or in response to the movant’s
exercise of (i) the right of free speech, (ii) the right of association, or (iii) the right
to petition. CIV. PRAC. & REM. § 27.005(b); see also S & S Emergency Training
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Solutions, Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018).5 Second, if the movant
shows the TCPA applies to the non-movant’s legal action, the burden shifts to the
non-movant to establish by clear and specific evidence a prima facie case for each
essential element of its claims. CIV. PRAC. & REM. § 27.005(c); Elliott, 564 S.W.3d
at 847. However, even if the non-movant satisfies this requirement, the trial court
must still dismiss a claim if the movant “establishes by a preponderance of the
evidence each essential element of a valid defense to the [non-movant’s] claim.”
CIV. PRAC. & REM. § 27.005(d); see Youngkin, 546 S.W.3d at 679–80.
V. DISCUSSION
A. Whether the TCPA Applies to Walker’s Defamation Action
Appellants contend that the TCPA applies to Walker’s suit because it “is based
on or in response to [appellants’] free speech, free association, and petition rights.”
The Texas Supreme Court has explicitly held that the TCPA applies to defamation
claims. See Adams, 547 S.W.3d at 897. Nevertheless, we first address whether
appellants’ actions are protected by the right of free speech, as it is dispositive to the
first step of our TCPA analysis.
Under the TCPA, the “exercise of the right of free speech” means “a
communication made in connection with a matter of public concern.” CIV. PRAC. &
REM. § 27.001(3). We must first determine whether appellants’ actions were
5
The movant must show only that the act is protected by at least one of those rights as defined by the
TCPA. CIV. PRAC. & REM. § 27.005(b).
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“communications.” The TCPA defines a “communication” as “the making or
submitting of a statement or document in any form or medium, including oral, visual,
written, audiovisual, or electronic.” CIV. PRAC. & REM. § 27.001(1).
Here, Walker’s suit against appellants is based on statements Diaz made to
Detective Tinsley as part of Tinsley’s law enforcement investigation of Walker. The
record does not contain the complete conversation between Diaz and Detective
Tinsley. However, Walker conducted a deposition of Diaz in which he questioned
Diaz about her statements to Detective Tinsley.
Q. (By [Walker’s counsel]) . . . Did you tell Officer Tinsley—did
Officer Tinsley—do you recall Officer Tinsley asking you, “[Walker]
called up and lied to you guys as far as the work being done and being
finished and turned in paperwork to that effect to you guys. Right?”
And[,] you answered, “Yes.” Like we told—”[Walker] told me it was
done, but then when [the special investigation unit] called him he said,
‘Oh, no. I never told her that.’ But[,] you sent in an invoice that said
final invoice.”
And[,] Officer Tinsley said, “Okay.”
And you said, “He told me, because I put it in my notes, that he said the
work was completed. So, of course he’s pulling back on that.”
Isn’t that what you said?
A. According to this transcript, yes.
Q. Do you recall saying that, now that you’ve listened to the tape?
A. I heard it on the tape recording, yes.
...
Q. (By Mr. Robinson) Did you tell Detective Tinsley that we had
another claim, not her, another person, that had the same contractor.
And she gave him less money than ours did, than Blackmon did. But he
still walked away with some of her money too.
Do you recall saying that to Officer Tinsley?
–8–
A. According to the transcript with Detective Tinsley and the
call, yes.
Q. So you do recall—actually recall that? Does that—did that help you
remember that conversation?
A. Hearing the recording? Yes.
...
Q. Now, Officer Tinsley asked you about speaking to Kevin Magee,
correct?
A. I believe so. Let me double check.
Q. And[,] you directed him to somebody else[,] other than Mr. Magee,
correct?
A. I initially sent [Detective Tinsley] to our [special investigation
unit] investigator, which was Shawn. But[,] he did ask me about
Kevin, and I told him Kevin was one of the managers there.
Walker further complains of several notes from QBE call logs—which relate to
Diaz’s statements to Detective Tinsley—as defamatory. The record shows that Diaz
made communications in the form of oral statements to Detective Tinsley and
written statements in the form of the notes. Appellants meet the “communication”
element of an “exercise of the right of free speech.” CIV. PRAC. & REM § 27.001(3).
We must next determine whether the communications were made in connection with
a matter of public concern. Id.
The TCPA defines a “matter of public concern” as “a statement or activity
regarding . . . (B) a matter of political, social, or other interest to the community; or
(C) a subject of concern to the public.” CIV. PRAC. & REM. § 27.001(7). Walker
argues that Diaz denied several assertions she made in speaking with Detective
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Tinsley, and therefore, the TCPA does not apply to Diaz’s allegedly false statements
to Detective Tinsley. In determining application of the TCPA, “[t]he basis of a legal
action is not determined by the defendant’s admissions or denials but by the
plaintiff’s allegations.” Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017).6
Nevertheless, Walker asserts that the TCPA does not apply if a petition, instead of
complaining about a free speech issue, complains of “only the untruthful statement
constituting defamation . . . because the statements complained of were not a ‘matter
of public concern.’” The Texas Supreme Court expressly rejected this assertion in
Adams v. Starside:
We emphasize that whether Adams’s colorful allegations were valid,
partly valid, or completely concocted by a disgruntled resident with an
axe to grind is not the question before us. Further litigation may seek
those answers. The question at this stage is whether Adams’s
challenged statements involve a “matter of public concern” as defined
by the TCPA.
Adams, 547 S.W.3d at 897. Thus, the truthfulness of the complained-of statements
is not determinative of whether the TCPA applies. Id.; see Coleman, 512 S.W.3d at
901 (holding the TCPA applied to untrue communications); Garton v. Shiloh Vill.
Partners, LLC, No. 12-16-00286-CV, 2017 WL 6884451, at *3 (Tex. App.—Tyler
Aug. 23, 2017, no pet.) (mem. op.) (holding that a TCPA movant has no burden to
substantiate the truth of her communications).
6
“When it is clear from the plaintiff’s pleadings that the action is covered by the Act, the defendant
need show no more.” Hersh, 526 S.W.3d at 467.
–10–
In Watson v. Hardman, our Court discussed “community well-being” in the
TCPA context of a “matter of public concern” after the Hardmans filed suit against
Watson for allegedly accusing the Hardmans of stealing publicly solicited charitable
funds:
The statute does not define “community well-being,” but courts have
held statements to be related to community well-being in a variety of
contexts:
• Statements about a children’s baseball coach’s angry and
aggressive behavior during a game. Bilbrey v. Williams, No. 02–
13–00332–CV, 2015 WL 1120921, at *11 (Tex. App.—Fort
Worth Mar. 12, 2015, no pet.) (mem. op.).
• Statements by homeowners association members about
possible misconduct by the association’s property manager.
Neyland v. Thompson, No. 03–13–00643–CV, 2015 WL
1612155, at *5 (Tex. App.—Austin Apr. 7, 2015, no pet.) (mem.
op.).
• Statements accusing someone of identity theft. Deaver v. Desai,
483 S.W.3d 668, 673 (Tex. App.—Houston [14th Dist.] 2015, no
pet.).
497 S.W.3d 601, 607 (Tex. App.—Dallas 2016, no pet.). In Watson, we concluded
that “the Hardmans’ own live pleading allege[d] facts demonstrating that Watson’s
alleged accusations against [the Hardmans] related to a matter of public concern—
specifically, community well-being.” Id. In AOL, Inc. v. Malouf, we held statements
that a dentist had been charged with defrauding taxpayers out of tens of millions of
dollars in a Medicaid scam related to a matter of public concern under the
community well-being prong and other prongs of the statute. No. 05 -13-01637-CV,
2015 WL 1535669, at *2 (Tex. App.—Dallas Apr. 2, 2015, no pet.) (mem.op.). Thus,
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statements regarding crime qualify as statements regarding a matter of interest to the
community. See id.
Although Walker argues appellants were not “reporting a crime,” it is
undisputed that Diaz’s statements to Detective Tinsley were statements made to a
public servant in connection with a law enforcement investigation. Similar to
Watson, Walker’s own petition states that Diaz’s statements to Detective Tinsley
“were the cause of felony criminal charges being brought against [Walker] in
Rockwall County and resulted in a negative rating and review being reported and
posted online by the Better Business Bureau in Dallas.”7 Accordingly, we must
conclude that the communications in question were made in connection with a matter
of public concern—regarding a matter of interest to the community. Appellants have
demonstrated that Walker’s legal action is based on or is in response to their exercise
of the right of free speech. CIV. PRAC. & REM. § 27.005(b).
7
We note that Walker’s indictment makes no mention of appellants. Instead, the Rockwall County,
Texas indictment specifies that:
[Walker] on or about the 5th day of May, 2018 and before the presentment of [the]
indictment, in the County and State aforesaid, did then and there unlawfully appropriate,
by acquiring or exercising control over, property, to-wit: money in the value of $2,500.00
or more but less than $30,000.00 from Donna Gail Blackmon, the owner thereof, without
the affective consent of the owner, namely, by deception, to-wit: by sending invoices
representing work had started or had been completed on the roof of the owner’s residence
when it had not, and with the intent to deprive the owner of the property[.]
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B. Whether Walker Established a Prima Facie Case for Each Essential
Element of His Defamation Claim
The second step of our TCPA analysis requires us to determine whether
Walker established “by clear and specific evidence a prima facie case for each
essential element of the claim in question.” CIV. PRAC. & REM. § 27.005(c). Prima
facie evidence is the minimum amount of evidence necessary to support a rational
inference that a factual allegation is true. Lipsky, 460 S.W.3d at 592. Although the
TCPA does not define “clear and specific” evidence, these terms are given their
ordinary meaning—that is, unambiguous, easily understood, and explicit. See Texas
State Bd. of Exam’rs of Marriage & Family Therapists v. Texas Med. Ass’n, 511
S.W.3d 28, 34-35 (Tex. 2017) (explaining that where statute does not define key
term, we must apply “common, ordinary meaning unless a contrary meaning is
apparent”). Accordingly, the plaintiff must do more than make general allegations
that restate the elements of a cause of action—he must provide enough detail to show
the factual basis for his claim. Marble Ridge Capital LP v. Neiman Marcus Group,
Inc., 611 S.W.3d 113, 122 (Tex. App.—Dallas 2020, pet. abated) (citing Lipsky, 460
S.W.3d at 590-91).
The elements of a defamation claim are as follows: “(1) the publication of a
false statement of fact to a third party, (2) that was defamatory concerning the
plaintiff, (3) with the requisite degree of fault, and (4) damages, in some cases.”
Lipsky, 460 S.W.3d at 593. We next address each of these elements.
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i. Whether Walker Established by Clear and Specific Evidence that
Appellants Publicized False Statements of Fact to a Third Party
The threshold requirement for a defamation claim is the publication of a false
statement of fact to a third party. Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572,
579 (Tex. 2017). “‘Publication’ occurs if the defamatory statements are
communicated orally, in writing, or in print to some third person who is ‘capable of
understanding their defamatory import and in such a way that the third person did so
understand.’ Id. (quoting Austin v. Inet Techs., Inc., 118 S.W.3d 491, 496 (Tex.
App.—Dallas 2003, no pet.)). Furthermore, as this case involves a matter of public
concern, the plaintiff has the burden of proving falsity of the published statements.
See Bentley v. Bunton, 94 S.W.3d 561, 586 & n.62 (Tex. 2002). Thus, to meet these
burdens, Walker must offer clear and specific evidence that the statements were
published and fail the “substantial truth” test. Masson v. New Yorker Mag., Inc., 501
U.S. 496, 516–17 (1991) (libel suit against media defendant); Dallas Morning News,
Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019) (similar libel suit against media
defendant). The record shows Diaz’s statements to Detective Tinsley were oral
statements she made to a third party. Walker therefore meets the publication element
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for his defamation claim as to these oral statements. We next address whether the
statements fail the “substantial truth” test.
Substantial truth is evaluated by looking at the gist of the publication. D
Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017).8
This evaluation requires us to determine whether, in the mind of the
average reader, the alleged defamatory statements were more damaging
to Rogers’ reputation than truthful statements would have been. If we
conclude that the underlying facts as to the gist of the defamatory
charges are undisputed, then we may disregard “any variances with
respect to items of secondary importance,” and decide, as a matter of
law, that the articles are substantially true.
Rogers v. Dallas Morning News, Inc., 889 S.W.2d 467, 472 (Tex. App.—Dallas
1994, writ denied) (internal citation omitted).
Walker’s first allegation of defamatory statements relates to Diaz’s answers
to Detective Tinsley’s August 30, 2018 questions about whether Walker
misrepresented the completion of his work. The record shows Diaz, on July 2, 2018,
advised Walker (i) on the final price for the repair and (ii) that he could finish work.
The record then shows that on July 13, 2018, Walker sent an email to Kevin Magee
of QBE, which stated the following: “. . . we are forwarding the DW Group
Construction Co. amended invoice in the amount of $23,639.53 . . . for damages to
your insured[.] This July 13, 2018 email was accompanied by an invoice from
Walker’s company that (i) contained the signatures of Walker and Blackmon,
8
The term “gist” means “the main point or part” or “essence.” Reedy v. Webb, 113 S.W.3d 19, 24 (Tex.
App.—Tyler 2002, pet. denied) (citing WEBSTER’S COLLEGIATE DICTIONARY 493 (10th ed. 1993).
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(ii) was dated July 11, 2018 on three locations, and (iii) contained the following
phrase “Insurance: 1. Invoice per DW Group Construction Company final estimate
as attached.” This “final estimate” invoice showed a cost amount of $23,639.53. On
July 17, 2018, Diaz released the final depreciation payment, which brought the full
payment from QBE to Blackmon to $23,639.53. She then closed the claim on July
18, 2018.
However, the record shows that on July 25, 2018, seven days after Diaz closed
Blackmon’s claim, Blackmon called QBE to complain Walker had not begun work.
Walker suggests in his briefing that because Blackmon knew about the status of the
repairs, Diaz “knew all along that the repairs had not started or been completed.”
However, there is no evidence in the record to suggest Diaz knew the status of the
repairs from Blackmon at any time before she closed the claim on July 18, 2018. To
the contrary, the record contains a transcript of a telephone conversation between
Blackmon and Diaz on August 29, 2018, in which Blackmon informs Diaz that
Walker “had taken [her] money and scammed y’all as well.”9 Thus, the record does
not contain evidence that Diaz’s statements to Detective Tinsley were untrue.
Walker’s second allegation of a defamatory statement consists of Diaz’s
statement to Detective Tinsley that QBE had another insured who complained
9
In that conversation, Diaz confirmed her understanding that Walker had completed the work, and
Blackmon asked “why don’t y’all check with the consumer? Why do you check with the contractor?”
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Walker “walked away with some of her money[,] too.” Apart from Walker’s bare
denial, the record contains no evidence this statement was untrue.10
Walker’s third allegation of a defamatory statement consists of Diaz’s
statement to Detective Tinsley that directed Detective Tinsley to QBE’s special
investigations unit and Kevin Magee. There is no evidence in the record that this is
a false statement. Walker does not contend this statement was untrue. Thus, we must
conclude Walker failed to raise clear and specific evidence that the above-discussed
allegations against appellants failed the “substantial truth” test.11 Walker’s affidavit
further claims that several notes from QBE’s call logs were defamatory. However,
there is no evidence in the record that the call logs were published to any third party.
Thus, we must conclude Walker has failed to establish by clear and specific evidence
the first element of his defamation claim.
ii. Whether Walker Established by Clear and Specific Evidence that
Appellants’ Statements Were Defamatory Against Walker
“[T]he standard for construing defamatory meaning generally is whether the
publication is ‘reasonably capable’ of defamatory meaning.” Dallas Morning News,
10
We note the record contains an April 4, 2020 affidavit from Walker in which he discusses this
allegation involving “another Insured.” However, Walker’s affidavit contains no clear or specific evidence
as to the falsity of the allegation that he “walked away with some of [that insured’s] money, too.” As in
Lipsky, Walker’s affidavit testimony on this allegation is conclusory and, therefore, is insufficient to satisfy
the TCPA’s requirement of “clear and specific evidence.” Lipsky, 460 S.W.3d 592 (“Bare, baseless opinions
do not create fact questions, and neither are they a sufficient substitute for the clear and specific evidence
required to establish a prima facie case under the TCPA.”).
11
Walker’s affidavit further claims that several notes from QBE’s call logs were defamatory. However,
there is no evidence in the record that the call logs were published to any third party.
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Inc. v. Tatum, 554 S.W.3d 614, 629 (Tex. 2018). To determine whether the statement
is reasonably capable of a defamatory meaning, the court must consider (1) the type
of defamation alleged and (2) whether the statement was ambiguous. See Tatum, 554
S.W.3d at 631–32. Whether a statement is reasonably capable of a defamatory
meaning is determined by the court as a matter of law using an objective standard.
Tatum, 554 S.W.3d at 625.
Although Walker’s petition and brief do not identify the type of defamation
alleged, it is apparent from the record that he accused appellants of textual
defamation.12 There are two types of textual defamation: explicit defamation and
defamation by implication. Tatum, 554 S.W.3d at 627. Explicit defamation occurs
when the defamatory meaning of a statement arises from the face of the statement
itself. Tatum, 554 S.W.3d at 626–27. Implicit defamation occurs when the
defamatory meaning of a statement arises implicitly from the statement’s text.
Tatum, 554 S.W.3d at 627.
Here, Diaz’s statements to Detective Tinsley that (i) Walker misrepresented
the completion of his work and (ii) Walker “walked away” with another insured’s
money explicitly and unambiguously assert that Walker in some way misrepresented
his work to obtain payment for services he allegedly did not render. Similarly, the
12
Textual defamation occurs when a statement’s defamatory meaning arises from the statement’s
words without reference to any extrinsic evidence—that is, the plaintiff can prove the defamatory meaning
with the statement itself and no other evidence. See Tatum, 554 S.W.3d at 626.
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notes from the QBE call log explicitly and unambiguously describe that Walker did
the same. We must conclude Walker has established by clear and specific evidence
the second element of his defamation claim as to these statements.
However, the statements from Diaz directing Tinsley to QBE’s special
investigation unit and Kevin Magee are not reasonably capable of defamatory
meaning. These statements do not explicitly relate to Walker, and Walker has not
established by clear and specific evidence how, if at all, these statements implicitly
defame him.13 We must conclude Walker has not established by clear and specific
evidence the second element to his defamation claim as to these statements.
iii. Whether Walker Established by Clear and Specific Evidence that
Appellants’ Acted with the Requisite Degree of Fault
“The status of the person allegedly defamed determines the requisite degree
of fault. A private individual need only prove negligence, whereas a public figure or
official must prove actual malice.” Lipsky, 460 S.W.3d at 593. The record reflects
Walker was a private individual, not a public figure. However, a private individual
must prove actual malice whenever the defendant has a qualified privilege. Randall’s
Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). Statements made to
police and law enforcement relating to a crime are qualifiedly privileged. See Robert
B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 610 (Tex. App.—San Antonio 2018,
13
In all defamation-by-implication claims, the plaintiff must provide additional, affirmative evidence
within the statement itself that the defendant intended the defamatory meaning. Tatum, 554 S.W.3d at 635.
–19–
pet. denied) (“[R]eporting a crime to the police is qualifiedly privileged.); Espinosa
v. Aaron’s Rents, Inc., 484 S.W.3d 533, 544 (Tex. App.—Houston [1st Dist.] 2016,
no pet.) (“We conclude that [qualified privilege applies] with respect to Aaron’s
investigation of the missing merchandise and its report to the police. A qualified
privilege also cloaks statements made to law enforcement.”).
Here, Walker complains of communications appellants made to Detective
Tinsley in connection with a law enforcement investigation. Therefore, a qualified
privilege applies to appellants’ communications, and Walker must prove appellants
made their statements with actual malice. “[A] statement is made with actual malice
when the statement is made with knowledge of its falsity or with reckless disregard
as to its truth.” Johnson, 891 S.W.2d at 646. Reckless disregard is a subjective
standard that focuses on the conduct and state of mind of the defendant during the
editorial process and at the time of publication. See Forbes Inc. v. Granada
Biosciences, Inc., 124 S.W.3d 167, 171 (Tex. 2003); Bentley v. Bunton, 94 S.W.3d
561, 591 (Tex. 2002).
Here, Walker first argues that his affidavit establishes evidence that appellants
acted with actual malice against him. Specifically, Walker’s affidavit describes
evidence of “[going] over Ms. Diaz’s head concerning errors” she made; complaints
of Diaz’s alleged unprofessionalism; and controversy over Diaz’s release of the final
depreciation payment. Among other characterizations, Walker asserts Diaz was
“upset” with him and that she attempted to “protect herself from possibly losing her
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job.” Walker’s affidavit asserts Diaz “acted with actual ‘Malice’ toward [him] to get
even with [him] and to avoid looking bad to her superiors and [Blackmon].”
Walker’s conclusions and speculations as to Diaz’s state of mind are
unsupported by the record and are not a “sufficient substitute for the clear and
specific evidence required to establish a prima facie case.” Lipsky, 460 S.W.3d at
592; Van Der Linden v. Khan, 535 S.W.3d 179, 193 (Tex. App.—Fort Worth 2017,
pet. denied) (“We start with the fundamental premise that a witness’s testimony
regarding what another person was thinking is inadmissible speculation and should
not be considered.”). Furthermore, apart from Walker’s speculative assertions about
Diaz’s state of mind, there is no evidence that Diaz was upset with Walker or trying
to “get even” with him. There is no evidence that this circumstance made Diaz look
bad to her superiors or caused her any other concern as related to her employment.
As for the depreciation payment, the record shows Diaz submitted the depreciation
payment to Blackmon based on her understanding that Walker submitted a final
invoice—with which Magee agreed.
Thus, there is no competent evidence in the record that shows appellants made
any communications with reckless disregard for the truth. As we have concluded
above, the record does not show that appellants made communications with
knowledge of their respective falsity. We must conclude Walker has not established
by clear and specific evidence that appellants acted with actual malice against him—
the third element of his defamation claim.
–21–
iv. Whether Walker Established Damages by Clear and Specific Evidence
Walker pleaded damages in excess of $2,000,000 and exemplary damages in
sum of at least $10,000,000. Walker pleaded damages in the form of actual damages,
exemplary damages, costs of court, and pre and post-trial interest. Walker further
pleaded damages including:
loss of business opportunity, loss of reputation, future losses related
thereto, physical pain and suffering from anxiety, high blood pressure,
sleepless nights, upset stomach, nervousness, emotional distress, and
mental pain and anguish resulting from embarrassment including
personal humiliation, shame and disgrace.
In Texas defamation suits, damages for injury to reputation, personal
humiliation, and mental anguish and suffering are considered general damages. See
Innovative Block v. Valley Builders Supply, Inc., 603 S.W.3d 409, 418 (Tex. 2020).
Whether general damages must be proved or are presumed depends on the types of
defamation, speech, parties, and degrees of fault involved in the suit. See Tatum, 554
S.W.3d at 626–27.
Walker asserts appellants’ communications were defamatory per se,14 and he
consequently argues that he is entitled to presumption of general damages. See
Tatum, S.W.3d at 637–38 (citing Lipsky, 460 S.W.3d at 596). However, as we have
concluded above, (i) appellants’ communications were a matter of public concern
14
“When defamation is per se, the communication is actionable in and of itself without proof of actual
damages.” Valley Builders Supply, Inc., 603 S.W.3d at 418. “A statement is defamatory per se when it falls
within one of the categories that the common law considers so obviously harmful to reputation that the jury
may presume the existence of general damages.” Id.
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and (ii) Walker failed to prove actual malice. Thus, Walker’s claims of general
damages may not be presumed. Hancock v. Variyam, 400 S.W.3d 59, 65–66 (Tex.
2013) (“[T]he First Amendment requires competent evidence to support an award of
actual or compensatory damages when the speech is public or the level of fault is
less than actual malice. . . . Thus, the Constitution only allows juries to presume the
existence of general damages in defamation per se cases where: (1) the speech is not
public, or (2) the plaintiff proves actual malice.”).
Walker nevertheless asserts he proved his damages, referring us to his
affidavit. Walker’s affidavit lists, verbatim, the same exact damages as found in his
pleading. Walker’s affidavit does not substantiate his damages with other evidence,
and the record contains no clear and specific evidence as to Walker’s damages. Such
general averments of damages do not satisfy the requirements of the TCPA. See
Lipsky, 460 S.W.3d at 592. We must conclude Walker has not established his
damages by clear and specific evidence. See id.; Elizondo v. Krist, 415 S.W.3d 259,
264 (Tex. 2013) (“Conclusory statement[s] ... [are] insufficient to create a question
of fact to defeat summary judgment.”); City of San Antonio v. Pollock, 284 S.W.3d
809, 816 (Tex. 2009) (holding conclusory, baseless testimony to be no evidence).
Because Walker has failed to establish any of the requisite elements, we must
conclude Walker has failed to establish a prima facia case of defamation. Coupled
with our conclusion that the TCPA applies to appellants’ communications, we
sustain appellants’ first issue.
–23–
C. Walker’s Tortious Interference With Contract and Conspiracy
Claims
Appellants ask us to address Walker’s tortious interference with contract and
conspiracy claims as a part of this pertinent TCPA motion—which was filed
November 14, 2019, and heard February 17, 2020. Walker amended his petition to
include the two additional claims on February 10, 2020—months after appellants
filed their first TCPA motion. Nevertheless, appellants argue “Walker’s conspiracy
and tortious interference with contract claims are based on or relate to the same
essential factual allegations as the original defamation claims.”15
Before perfecting this appeal, appellants filed a second TCPA motion to
dismiss on March 30, 2020, which included requests for dismissal of Walker’s
tortious interference with contract and conspiracy claims. The record shows
appellants’ second TCPA motion to dismiss has not been heard or otherwise
adjudicated by the trial court. In Walker v. Pegasus Eventing, LLC we held:
The TCPA requires a defendant seeking the statute’s protections to
move for dismissal and to obtain a hearing on the motion within certain
clearly defined periods. Braun v. Gordon, No. 05-17-00176-CV, 2017
WL 4250235, at *3 (Tex. App.—Dallas Sept. 26, 2017, no pet.) (mem.
op.). The failure to meet these requirements results in the defendant’s
forfeiting the statute’s protections, and the case should continue as if
the motion to dismiss were never filed. Id. Specifically, if the trial court
does not hold a hearing at all, then we lack jurisdiction over an appeal
related to the motion. See In re Herbert, No. 05-19-01126-CV, 2019
15
“An amended pleading that does not add new parties or claims does not restart the deadline for filing
a motion to dismiss under the TCPA.” Mancilla v. Taxfree Shopping, Ltd, No. 05-18-00136-CV, 2018 WL
6850951, at *3 (Tex. App.—Dallas Nov. 16, 2018, no pet.). “[A]n amended petition asserting claims based
upon new factual allegations may reset a TCPA deadline as to the newly added substance.” Mancilla, 2018
WL 6850951, at *3.
–24–
WL 4509222, at *1 (Tex. App.—Dallas Sept. 19, 2019, orig.
proceeding) (mem. op.) (“[C]ourts of appeals lack jurisdiction over an
appeal involving [a TCPA] motion if the trial court refuses to hold a
timely hearing despite the movant’s reasonable requests to the trial
court for that hearing.”).
No. 05-19-00252-CV, 2020 WL 3248476, at *5 (Tex. App.—Dallas June 16, 2020,
pet. denied) (footnote omitted, emphasis added). Here, since the trial court has not
heard appellants’ second TCPA motion, we (i) decline to address and (ii) offer no
opinion on Walker’s claims of tortious interference with contract and conspiracy.
See Walker, 2020 WL 3248476, at *5; TEX. R. APP. P. 33.1(a)(2) (“As a prerequisite
to presenting a complaint for appellate review, the record must show that . . . the trial
court . . . ruled on the request, objection, or motion, either expressly or implicitly; or
refused to rule on the request, objection, or motion, and the complaining party
objected to the refusal.”).
D. CONCLUSION
Having sustained appellants’ first issue, we reverse the judgment of the trial
court, which overruled appellants’ November 14, 2019 TCPA motion to dismiss by
operation of law. We render judgment dismissing Walker’s defamation claim
pursuant to the TCPA, and we remand this case to the trial court for further
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proceedings consistent with this opinion and section 27.009(a) of the Texas Civil
Practice and Remedies Code. CIV. PRAC. & REM. § 27.009(a).16
/Bill Pedersen, III//
200439f.p05 BILL PEDERSEN, III
JUSTICE
16
Section 27.009(a) provides:
Except as provided by Subsection (c), if the court orders dismissal of a legal action under
this chapter, the court: (1) shall award to the moving party court costs and reasonable
attorney’s fees incurred in defending against the legal action; and (2) may award to the
moving party 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.
CIV. PRAC. & REM. § 27.009(a)(1-2).
–26–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
QBE AMERICAS, INC. AND On Appeal from the 101st Judicial
SONIA DIAZ, Appellants District Court, Dallas County, Texas
Trial Court Cause No. DC-19-14300.
No. 05-20-00439-CV V. Opinion delivered by Justice
Pedersen, III. Justices Partida-
DEYLAN WALKER, Appellee Kipness and Goldstein participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED. Walker’s defamation claim against appellants is
DISMISSED. This cause is REMANDED to the trial court for further proceedings
consistent with this opinion.
It is ORDERED that appellants QBE AMERICAS, INC. AND SONIA DIAZ
recover their costs of this appeal from appellee DEYLAN WALKER.
Judgment entered this 12th day of May, 2021.
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