Karen Neyland, Susan Sinclair, Phyllis Watts, and Connie Causin v. Nancy Thompson ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00643-CV
Karen Neyland, Susan Sinclair, Phyllis Watts, and Connie Causin, Appellants
v.
Nancy Thompson, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-13-001409, HONORABLE GUS J. STRAUSS, JR., JUDGE PRESIDING
MEMORANDUM OPINION
In this interlocutory appeal, Karen Neyland, Susan Sinclair, Phyllis Watts, and
Connie Causin challenge the trial court’s denial of their motions to dismiss pursuant to the
Texas Citizens Participation Act (TCPA or the Act), which provides for dismissal of
actions involving the exercise of certain constitutional rights. See Tex. Civ. Prac. & Rem. Code
§§ 27.001–.011. Appellants contend that Nancy Thompson filed her lawsuit in response to their
exercise of the rights of association and free speech. See id. § 27.001(2), (3). Appellants further
contend that Thompson failed to respond with clear and specific evidence showing a prima facie case
for each essential element of her claims as required to avoid dismissal under the TCPA. See id.
§ 27.005(c). For the reasons that follow, we affirm in part and reverse and dismiss in part.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants are residents of Sunchase Condominiums, located in Austin, Texas, and
members of the Sunchase Homeowners Association, Inc. (HOA). Thompson was the property
manager for the HOA. Beginning in 2011, Appellants began to express dissatisfaction with
Thompson’s performance as property manager. Thompson contends that Appellants stated in
writing and orally that she misappropriated HOA funds, committed fraudulent activities with the
president of the HOA board of directors, and has been fired from prior property management jobs
for mismanagement of funds. The comments giving rise to this action were made in emails between
Watts, Sinclair, and a nonparty member of the HOA; in flyers and a petition Appellants distributed
to HOA members; at an HOA meeting; and to a television reporter. In 2013, Thompson filed suit
against Appellants alleging libel per se and slander per se.1 Appellants filed motions to dismiss
under the TCPA contending that Thompson’s claims are based on, relate to, or are in response to
their exercise of the right of association and the right of free speech concerning matters of public
concern.2 See id. § 27.001(2), (3). Following a hearing, the trial court denied the motions without
stating a basis. This appeal followed.
TCPA DISMISSAL MECHANISM AND STANDARD OF REVIEW
The TCPA is an “anti-SLAPP” statute that permits defendants targeted by “Strategic
Lawsuits Against Public Participation” or SLAPP suits to move for dismissal if the action “is based
1
Thompson also sued a fifth person whom she subsequently nonsuited.
2
Neyland, Sinclair, and Watts filed a joint motion. Causin filed a separate motion.
2
on, relates to, or is in response to [the defendant’s] exercise of the right of free speech, right to
petition, or right of association . . . .” See id. § 27.003(a). The “‘[e]xercise of the right of
association’ means a communication between individuals who join together to collectively express,
promote, pursue, or defend common interests.” Id. § 27.001(2). The Act defines “the exercise of
the right of free speech” as “a communication made in connection with a matter of public concern.”
Id. § 27.001(3). A “matter of public concern” includes, relevant to this appeal, issues relating to
“community well-being,” or a “service in the marketplace.” Id. § 27.001(7)(B), (E). A
“‘[c]ommunication’ includes the making or submitting of a statement or document in any form or
medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1).
In enacting the TCPA, the legislature explained that its purpose is “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 persons to file meritorious lawsuits for demonstrable injury.” Id. § 27.002. The legislature
also directed courts to construe the Act “liberally to effectuate its purpose and intent fully.” Id.
§ 27.011(b). This Court has construed the Act to encompass broader activity than simply
participation in governmental issues.3 See Combined Law Enforcement Ass’n of Tex. v. Sheffield,
3
Our sister courts have construed the TCPA similarly. See Newspaper Holdings, Inc.
v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80–81 (Tex. App.—Houston [1st Dist.] 2013,
pet. denied) (applying TCPA to claims for defamation, business disparagement, and tortious
interference with contract against newspaper and source); Better Bus. Bureau of Metro. Dallas, Inc.
v. BH DFW, Inc., 402 S.W.3d 299, 308 (Tex. App.—Dallas 2013, pet. denied) (although stated
statutory purpose is to protect participation in government, Act defines protected activity more
broadly); Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345,
353–54 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (mem. op.) (rejecting argument that
phrase “otherwise participate in government” limits protection to “subclass of . . . communications”
3
No. 03-13-00105-CV, 2014 Tex. App. LEXIS 1098, at *6 n.1 (Tex. App.—Austin Jan. 31, 2014,
pet. filed ) (mem. op.) (“There is nothing in the plain language of the statute that limits its scope . . .
solely to public participation in government.”); Kinney v. BCG Att’y. Search, Inc.,
No. 03-12-00579-CV, 2014 Tex. App. LEXIS 3998, at *21 (Tex. App.—Austin Apr. 11, 2014, pet.
denied) (mem. op.) (op. on reh’g) (applying TCPA to claims for breach of contract and fiduciary
duty, violations of Lanham Act, and defamation based on online statements concerning services in
marketplace); see also Senate Comm. on State Affairs, Bill Analysis, Tex. HB. 2973, 82d Leg., R.S.
(2011) (Author’s/Sponsor’s Statement of Intent) (“Whether petitioning the government, writing a
traditional news article, or commenting on the quality of a business, involvement of citizens in the
exchange of ideas benefits our society.”). In determining whether to dismiss an action, the trial court
must consider “the pleadings and supporting and opposing affidavits stating the facts on which the
liability or defense is based.” Tex. Civ. Prac. & Rem. Code § 27.006.
The Act employs a burden-shifting mechanism, and the court’s inquiry is a two-step
process. See KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 688 (Tex. App.—Houston [1st
Dist.] 2013, pet. denied); Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 723 (Tex.
App.—Houston [14th Dist.] 2013, pet. denied). The defendant bears the initial burden of showing
by a preponderance of the evidence that the legal action is based on, relates to, or is in response to
his exercise of the right of association, free speech, or petition. Tex. Civ. Prac. & Rem. Code
§ 27.005(b); Farias v. Garza, 426 S.W.3d 808, 813 (Tex. App.—San Antonio 2014, pet. filed);
Whisenhunt v. Lippincott, 416 S.W.3d 689, 695 (Tex. App.—Texarkana 2013, pet. filed); Rehak,
directed only toward government).
4
404 S.W.3d at 723. If the defendant meets this burden, the trial court must dismiss the action unless
the plaintiff “establishes by clear and specific evidence a prima facie case for each essential element
of the claim in question.”4 Tex. Civ. Prac. & Rem. Code § 27.005(b), (c); Newspaper Holdings, Inc.
v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied; Rehak, 404 S.W.3d at 723–24. The Act does not define “clear and specific” or “prima facie
case.” See Tex. Civ. Prac. & Rem. Code § 27.005(c); Robinson, 409 S.W.3d at 689.
The first step of the inquiry—determining whether the TCPA applies—is a legal
question that we review de novo. City of Rockwell v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008);
Newspaper Holdings, 416 S.W.3d at 80; Robinson, 409 S.W.3d at 688; Rehak, 404 S.W.3d at 725;
see Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299, 304 (Tex.
App.—Dallas 2013, pet. denied) (whether TCPA applies is question of statutory construction we
review de novo). “The legislature’s use of the term ‘prima facie case’ in the second step implies a
minimal factual burden [for the plaintiff].” Newspaper Holdings, 416 S.W.3d at 80. “The prima
facie standard requires only the ‘minimum quantity of evidence necessary to support a rational
inference that the allegation of fact is true.’” In re E. I. DuPont de Nemours & Co., 136 S.W.3d 218,
223 (Tex. 2004) (orig. proceeding) (per curiam) (quoting Texas Tech Univ. Health Scis. Ctr. v.
Apodaca, 876 S.W.2d 402, 407 (Tex. App.—El Paso 1994, writ denied)); see Farias, 426 S.W.3d
4
In 2013, the legislature amended the TCPA so as to make the inquiry a three-step process.
See Act of May 24, 2013, 83d Leg., R.S., ch. 1042, § 2, sec. 27.005(d), 2014 Tex. Gen. Laws 2499,
2499 (codified at Tex. Civ. Prac. & Rem. Code § 27.005(d)) (court shall dismiss if, after plaintiff
presents prima facie case of each essential element of claim, defendant establishes by preponderance
of evidence each essential element of defense). However, Appellants do not rely on section
27.005(d), and we do not consider whether the amendment applies to this case.
5
at 813; Robinson, 409 S.W.3d at 688; Sheffield, 2014 Tex. App. LEXIS 1098 at *27. Prima facie
evidence is evidence that will suffice as proof of a fact in issue until its effect is overcome by other
evidence. Farias, 426 S.W.3d at 814; Rehak, 404 S.W.3d at 726 (citing Duncan v. Butterowe, Inc.,
474 S.W.2d 619, 621 (Tex. Civ. App.—Houston [14th Dist.] 1971, no writ)). “‘In other, words, a
prima facie case is one that will entitle a party to recover if no evidence to the contrary is offered by
the opposite party.’” Farias, 426 S.W.3d at 814 (quoting Rehak, 404 S.W.3d at 726). A
determination of whether a party has presented prima facie evidence of a meritorious claim is a
question of law that we review de novo. Farias, 426 S.W.3d at 814; Rehak, 404 S.W.3d at 726.
Because the TCPA does not define “clear and specific,” we give those terms their
ordinary meanings. See TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011);
Farias, 426 S.W.3d at 813–14; Robinson, 409 S.W.3d at 689. “Clear” means “free from doubt,”
“sure,” or “unambiguous.” Black’s Law Dictionary 287 (9th ed. 2009); see Farias, 426 S.W.3d at
814; Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 355
(Tex. App.—Houston [1st Dist.] 2013, pet. denied) (mem. op.). “Specific” means “explicit,” or
“relating to a particular named thing.” Black’s Law Dictionary 1528; see Farias, 426 S.W.3d at 814;
John Moore Servs., 441 S.W.3d at 355. This Court has concluded that “[t]he characterization of the
evidence needed to support the prima facie case as ‘clear and specific’ does not alter the burden or
cause it to exceed a preponderance of the evidence.” Sheffield, 2014 Tex. App. LEXIS 1098 at
*27–28. Rather, the term “clear and specific” refers to the quality of the evidence, while the term
“prima facie case” refers to the amount of evidence required. See id.; In re DuPont, 136 S.W.3d at
223. Therefore, the proper standard of review as to the second step of the inquiry is to determine de
6
novo whether the record contains the minimum quantum of clear and specific evidence necessary
to support a rational inference as to each essential element of the claim in question if no contrary
evidence is offered. See Tex. Civ. Prac. & Rem. Code § 27.005(c); In re DuPont, 136 S.W.3d at
223; Farias, 426 S.W.3d at 814.
ALLEGEDLY DEFAMATORY COMMUNICATIONS
Thompson contends that Appellants made defamatory statements about her to
Sunchase residents in emails, flyers, a petition, and oral statements and to a television news reporter
in oral statements.
Emails to Sunchase Homeowners
The record contains an email chain between HOA board member Lisa Mims, Sinclair,
and Watts. In the emails, Watts states that she has “concerns . . . with this situation” and that the
“ball is in Lisa’s court” to “do the right thing.” Sinclair states that they “are just going to be in a
holding pattern for awhile” and that she “just wanted [Thompson] to shake in her boots.”
Flyers and Petition Distributed to Sunchase Homeowners
The evidence includes two flyers addressed to Sunchase homeowners. One undated
flyer refers to recent “discussion and publicity” concerning “possible misappropriation of funds” by
property management, “the possibility of fraudulent activity” between the HOA board president and
property manager, the “incompetence” of property management, and “blatant breaches of her
contract and Sunchase By-Laws” by the property manager. It also includes the statement that “[t]he
cause for this chaos is the past board and property management’s incompetence, misappropriation
7
of funds and frivolous disregard for the law . . . .” The second flyer, dated June 21, 2012, states that
“our current management company has been fired from 3 other condominium associations for
mismanagement of funds and in one case, a condominium Board sued to get their money back and
won.” The first flyer is anonymous, and the second is signed only “Your concerned neighbors of
Sunchase,” but affidavit testimony establishes that Causin distributed flyers to Sunchase residents,
and Neyland, Sinclair, and Watts do not dispute their alleged responsibility for the flyers.
Thompson’s uncontradicted affidavit also shows that Appellants brought a petition to the April 2012
HOA meeting seeking Thompson’s termination and stating that she had failed to comply with the
Sunchase Condominium Bylaws’ requirement that an annual audit be performed.
Oral Statements to Sunchase Residents
Thompson offered three affidavits in which Sunchase HOA members state that in an
October 2012 HOA board meeting and on “multiple other occasions,” Appellants “called
Nancy Thompson a thief,” “accused her of stealing Association money,” and stated that she has been
“fired from previous property management jobs for misappropriating funds.”
Oral Statements to Television Reporter
In May and June 2012, a local television station carried at least two stories covering
the management dispute at Sunchase Condominiums. In the televised reports, statements were
attributed to Neyland, Sinclair, and Watts. Their affidavits include the following quotes from the
televised report:
8
“They [the property manager and the HOA Board] will not respond to us,” said
Karen Neyland, a 31-year[-old] Sunchase homeowner. . . . Neyland said that the
HOA Board members have been uncooperative.
“This is just not right. Something is wrong,” said Karen Neyland, who lives at
Sunchase and pays HOA dues.
Former Board members said that they were under the impression that audits were
being done. In an email from Thompson to former Board member Susan Sinclair on
August 24, 2011, Thompson clearly states that the “2008 and 2009 audits are being
done.” “I really wish I knew exactly what was going on,” Sinclair said. “We may
never know.”
“We wanted to [vote] [at the HOA member meeting called to consider replacement
of the Board], but everybody was quashed,” said condo owner Susan Sinclair. “The
whole Board said they would resign tonight if that’s what we voted on, but they never
let us vote.”
“Well something’s going on,” says Phyllis Watts, another former Sunchase Board
member. “And I hope to find out what it is.”
Later, Sunchase homeowner Phyllis Watts said “you can’t get anything from the
Board members now. They don’t want to give anything out, any information at all.”
Appellants aver that these statements appear to be substantially accurate recitations of the statements
they gave and are fairly representative and typical of the statements they made concerning
the dispute.
APPLICABILITY OF THE TCPA
Appellants contend they established that Thompson’s claims are based on, relate to,
and are in response to their exercise of the right of association and the right of free speech on matters
of public concern, specifically issues relating to community well-being and Thompson’s services in
9
the marketplace. See Tex. Civ. Prac. & Rem. Code § 27.001(7)(B), (E).5 The parties’ affidavits and
attachments show that the allegedly defamatory statements, with the exception of those made to the
television reporter, were made between or among members of the Sunchase HOA. The evidence
shows that HOA members share common interests, such as ownership of the Sunchase “Common
Elements” and “Common Expenses.” Thus, in the TCPA’s terms, these communications were
between individuals who joined the Sunchase HOA to collectively express, promote, or defend their
common interests as Sunchase homeowners. See Tex. Civ. Prac. & Rem. Code § 27.001(2). The
record therefore shows by a preponderance of the evidence that Thompson’s suit against Appellants
for defamation through these statements made to HOA members is based on, relates to, or was in
response to communications made in the exercise of the right of association. See id. § 27.005(b)(3);
Sheffield, 2014 Tex. App. LEXIS 1098, at *13–14 (concluding action based on communications
between and among members of law enforcement union was based on, related to, or was in response
to exercise of right of association under TCPA); cf. Cheniere Energy, Inc. v. Lofti, 449 S.W.3d 210,
214–15 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (appellants who asserted that
communications between attorney and corporate client established constitutional right of association
but provided no evidence they had any communications or acted in furtherance of common interest
5
The TCPA also includes an issue related to “a public figure” in the definition of “a matter
of public concern.” See Tex. Civ. Prac. & Rem. Code § 27.001(7)(D). Appellants argue that
Thompson is a limited-purpose public figure but do so only in the context of the proof required to
show defamation. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998) (plaintiff
who is public official must show defendant acted with actual malice and not mere negligence as with
private individual). They do not rely on section 27.001(7)(D) as a basis for application of the Act.
Therefore, we do not address Appellants’ contention that Thompson is a limited-purpose public
figure in assessing whether the allegedly defamatory statements fall within the purview of the TCPA.
10
could not rely on attorney-client relationship to bridge evidentiary gap and failed to meet burden
under section 27.005(b)(3)). We conclude that Appellants have met their burden to show by a
preponderance of the evidence that Thompson’s action is based on, relates to, or is in response to
Appellants’ right of association as to the written and oral statements made to Sunchase HOA
members.6 See Tex. Civ. Prac. & Rem. Code § 27.005(b)(1); Farias, 426 S.W.3d at 813; Sheffield,
2014 Tex. App. LEXIS 1098, at *13–14.
Appellants have also met their burden to show that the statements Neyland, Sinclair,
and Watts made to the television reporter fall within the scope of the TCPA. One of the bases
Appellants assert for application of the TCPA to their statements is that they were communications
relating to community well-being. See Tex. Civ. Prac. & Rem. Code § 27.001(3), (7)(B). Neyland,
6
Appellants have also met their burden to show by a preponderance of the evidence that, as
to some of these statements, Thompson’s action is based on, relates to, or is in response to
Appellants’ exercise of the right of free speech. The written statements in the flyers and petition and
the oral statements to Sunchase homeowners concern Thompson’s performance as property manager
for Sunchase HOA. Thompson’s pleadings and affidavit testimony establish that she performed
property management services to the HOA through Nancy Thompson Management, a sole
proprietorship, not as an employee of the HOA, and that she simultaneously offered her services to
more than one homeowners association. Thus, the evidence shows that the written and oral
statements to Sunchase residents, with the exception of the email statements, were made in
connection with Appellants’ exercise of the right of free speech concerning a matter of public
concern—Thompson’s property management services offered in the marketplace—and the Act
applies to these statements on this basis as well. See Tex. Civ. Prac. & Rem. Code § 27.005(b)(1);
BH DFW, 402 S.W.3d at 307–08 (where Better Business Bureau established its business review
related to good, product, or service in marketplace, action fell within scope of TCPA); John Moore
Servs., 441 S.W.3d at 354 (where Better Business Bureau presented evidence action was based on
its expression of opinions regarding quality of John Moore’s goods and services, it established action
was related to matter of public concern under Act); Avila v. Larrea, 394 S.W.3d 646, 655 (Tex.
App.—Dallas 2012, pet. denied) (allegedly defamatory statements made in television broadcast
concerning Larrea’s legal services constituted exercise of right of free speech in connection with
matter of public concern and Act applied).
11
Sinclair, and Watts made these statements in connection with a reporter’s investigation of alleged
misappropriation of Sunchase HOA funds and possible fraud, which could potentially damage the
revenues of the HOA and interfere with its ability to pay common expenses and maintain common
elements. Thus, the statements relate to the HOA’s “economic or community well-being,” issues
which are included in the statutory definition of “matter of public concern” under the TCPA. See
id.; Schimmel v. McGregor, 438 S.W.3d 847, 858–59 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied) (statements by attorney for homeowners association to reporter and association board in
connection with dispute among homeowners concerning matters that would allegedly damage
property values and association’s future revenue stream related to “economic and community well-
being” within meaning of TCPA’s definition of “matter of public concern”). We conclude that
Appellants have shown by a preponderance of the evidence that Thompson’s action as to the
statements Neyland, Sinclair, and Watts made to the television reporter is based on, relates to, or is
in response to their exercise of the right of free speech as defined in the TCPA. See Tex. Civ.
Prac. & Rem. Code § 27.001(3), (7)(B), (E), .005(b)(1); Farias, 426 S.W.3d at 813; Schimmel,
438 S.W.3d at 858–59. Because Appellants have met their burden to show that the TCPA applies to
their allegedly defamatory statements, the burden shifted to Thompson to present a prima facie case.
PRIMA FACIE CASE
We turn, then, to the second step in our inquiry—whether Thompson has
demonstrated by clear and specific evidence a prima facie case for each essential element of her
claims for libel per se and slander per se.
12
Elements of Defamation
Libel is defamation expressed in written or other graphic form. Tex. Civ. Prac. &
Rem. Code § 73.001; Neely v. Wilson, 418 S.W.3d 52, 60 (Tex. 2013). “Slander, the spoken form
of defamation, is not codified, but has been recognized at common law . . . .” Cain v. Hearst Corp.,
878 S.W.2d 577, 580 (Tex. 1994). To maintain a defamation cause of action, a plaintiff must prove
that the defendant (1) published a statement, (2) that was defamatory concerning the plaintiff,
(3) while acting with either malice, if the plaintiff was a public official, or negligence, if the plaintiff
was a private individual, regarding the truth of the statement. WFAA-TV, Inc. v. McLemore,
978 S.W.2d 568, 571 (Tex. 1998); Newspaper Holdings, 416 S.W.3d at 81–82; Rehak, 404 S.W.3d
at 727.
Whether statements are defamatory is a question of law subject to de novo review.
Rehak, 404 S.W.3d at 728–29; Texas Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc.,
219 S.W.3d 563, 581 (Tex. App.—Austin 2007, pet. denied). A statement is defamatory when, in
light of the surrounding circumstances, a person of ordinary intelligence would interpret it in a way
that tends to injure the subject’s reputation and thereby expose the subject to public hatred, contempt,
or ridicule, or financial injury, or to impeach the subject’s honesty, integrity, virtue, or reputation.
Tex. Civ. Prac. & Rem. Code § 73.001; Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex.
2000); Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987); Rehak,
404 S.W.3d at 728. If the statement is not reasonably capable of a defamatory meaning,
the statement is not defamatory as a matter of law, and the claim fails. Hancock v. Variyam,
400 S.W.3d 59, 66 (Tex. 2013). Some statements are so obviously injurious to a plaintiff’s
13
reputation that they require no proof of injury to make them actionable, and general damages are
presumed; such statements are considered defamatory per se. Id. at 63–64; Texas Disposal,
219 S.W.3d at 581. A statement will typically be classified as defamatory per se if it injures a person
in his office, profession, or occupation, Hancock, 400 S.W.3d at 64; Farias, 426 S.W.3d at 815;
Texas Disposal, 219 S.W.3d at 581, or charges a person with the commission of a crime, dishonesty,
fraud, rascality, or general depravity, Robinson, 409 S.W.3d at 690; Texas Disposal, 219 S.W.3d at
581. With regard to a statement concerning a person’s profession or occupation, “[t]he proper
inquiry is whether a defamatory statement accuses a professional of lacking a peculiar or unique skill
that is necessary for the proper conduct of the profession.” Hancock, 400 S.W.3d at 67 (citing
Restatement (Second) of Torts § 573 cmts. c, e).
Limited-Purpose Public Figure
Appellants contend that Thompson is a limited-purpose public figure.
Limited-purpose public figures are public figures only for a limited range of issues surrounding a
particular public controversy. McLemore, 978 S.W.2d at 571. They are persons who “‘thrust
themselves to the forefront of particular public controversies in order to influence the resolution of
the issues involved. . . . inviting attention and comment,’ who ‘inject[] themselves or [are] drawn
into a particular public controversy . . . . assum[ing] special prominence in the resolution of public
questions,’ ‘thrusting [themselves] into the vortex of [a] public issue . . . [or] engag[ing] the public’s
attention in an attempt to influence its outcome.’” Klentzman v. Brady, 312 S.W.3d 886, 904 (Tex.
App.—Houston [1st Dist.] 2009, no pet.) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323,
342 (1974)).
14
To determine whether an individual is a limited-purpose public figure, the supreme
court has adopted a three-part test: “(1) the controversy at issue must be public both in the sense that
people are discussing it and people other than the immediate participants in the controversy are likely
to feel the impact of its resolution; (2) the plaintiff must have more than a trivial or tangential role
in the controversy; and (3) the alleged defamation must be germane to the plaintiff’s participation
in the controversy.” McLemore, 978 S.W.2d at 571–72 (applying “generally accepted test” adopted
by Fifth Circuit in Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 433 (5th Cir. 1987)).
Whether a person is a limited-purpose public figure is a question of law for the court to decide.
Klentzman, 312 S.W.3d at 904 (citing Rosenblatt v. Baer, 383 U.S. 75, 88 (1966)).
Appellants contend they have met all three elements of the Trotter test. We disagree.
Even if we were to assume a “public controversy” existed, Appellants have not shown that
Thompson had more than a trivial or tangential role in the controversy. See McLemore, 978 S.W.2d
at 571; Klentzman, 312 S.W.3d at 904. To determine whether an individual had more than a trivial
or tangential role in the controversy, a court should consider: whether the plaintiff (1) actively
sought publicity surrounding the controversy; (2) had access to the media; and (3) voluntarily
engaged in activities that necessarily involved the risk of increased exposure and injury to reputation.
McLemore, 978 S.W.2d at 572–73; Klentzman, 312 S.W.3d at 905. A private person does not
become a public figure merely because he is discussed in the media. Klentzman, 312 S.W.3d at 905
(citing Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979)). A defamation defendant “must show
more than newsworthiness to justify application of the demanding burden of [actual malice].” Id.
at 906 (quoting Hutchinson, 443 U.S. at 135). “‘[T]hose charged with defamation cannot, by their
15
own conduct, create their own defense by making the claimant a public figure.’” Id. at 905 (quoting
Hutchinson, 443 U.S. at 135). Moreover, involuntary public figures are rare. See Gertz, 418 U.S.
at 345. In the words of the U.S. Supreme Court,
Hypothetically, it may be possible for someone to become a public figure through no
purposeful action of his own, but the instances of truly involuntary public figures
must be exceedingly rare. . . . More commonly, those classed as public figures have
thrust themselves to the forefront of particular public controversies in order to
influence the resolution of the issues involved. [T]hey invite attention and comment.
Id. Neither the U.S. Supreme Court nor the Texas Supreme Court has found circumstances in which
a person involuntarily became a limited-purpose public figure. Neely, 418 S.W.3d at 71. Like the
supreme court in Neely, we decline to do so here. See id.
Appellants have not shown that Thompson actively sought publicity, had access to
the media, or voluntarily acted so as to risk exposure and injury to her reputation. See Klentzman,
312 S.W.3d at 906–07 (where evidence showed only that plaintiff’s father was public official,
plaintiff was not limited-purpose public figure). Rather, the record shows that Thompson was not
quoted in the television reports and, when contacted by the reporter, declined comment. There is no
evidence that she appeared at the HOA board meeting at which the allegedly defamatory comments
were made or responded to any statements Appellants made in the emails, flyers, and petition. In
short, there is no evidence that she thrust or injected herself into the controversy or invited attention
and comment.7 See id.; cf. McLemore, 978 S.W.2d at 573 (journalist who reported live from scene
7
To the extent Appellants argue that because Thompson sought and obtained a job as a
property manager, she thrust herself into the subsequent controversy, we reject the contention that
seeking and obtaining employment meets the Gertz standard. See Gertz v. Robert Welch, Inc.,
16
and later spoke with other members of press about his coverage and role in assisting wounded acted
voluntarily to invite attention and scrutiny). We do not find this to be the “exceedingly rare case”
in which a person has become a limited-person figure against her will. See Gertz, 418 U.S. at 345;
Neely, 418 S.W.3d at 71–72 (declining to find disciplined doctor, who was mentioned in two
newspaper articles but not quoted in either and who declined to speak to reporter about television
report, was limited-purpose public figure). Because Thompson is not a limited-purpose public
figure, she must prove only negligence, not actual malice, in meeting her burden to demonstrate by
clear and specific evidence a prima facie case for each essential element of her claims for libel per
se and slander per se under section 27.005(c). See Neely, 418 S.W.3d at 60; McLemore, 978 S.W.2d
at 571.
Application of the Elements of Defamation to the Facts
Appellants do not dispute that they made the statements alleged to be defamatory.8
We therefore consider only the second and third elements—whether the statements defamed
Thompson and whether Appellants acted negligently regarding the truth of the statements. See
McLemore, 978 S.W.2d at 571; Newspaper Holdings, 416 S.W.3d at 81–82; Rehak, 404 S.W.3d at
727. We address the four categories of statements in turn.
418 U.S. 323, 342 (1974).
8
Appellants state that they dispute that they made any defamatory statements against
Thompson, but in their affidavits state only that they acted in good faith and never harbored any
serious doubts about the truth of the statements they made. They have offered no argument,
authority, or evidence that they did not make the statements attributed to them, and to the extent they
contend that they did not make the statements at issue, they have waived that argument. See Tex.
R. App. P. 38.1(i).
17
Emails to Sunchase Homeowners
The emails in evidence contain statements by Watts regarding her concerns about
“this situation” and her thoughts that HOA board member Mims “will do the right thing.” Sinclair
refers to their being in a “holding pattern” and wanting Thompson “to shake in her boots.” There
is nothing intrinsically defamatory about these statements. There are no comments about
Thompson’s profession or occupation, see Hancock, 400 S.W.3d at 64, and they do not say or imply
that Thompson committed a crime or was guilty of dishonesty, fraud, rascality, or general depravity,
see Robinson, 409 S.W.3d at 690; Texas Disposal, 219 S.W.3d at 581. Rather, the emails express
Watts’s and Sinclair’s thoughts in such vague terms that, even read in the context of the HOA
dispute, there is nothing defamatory about Thompson. In fact, the only reference to Thompson is
Sinclair’s statement indicating that she wanted Thompson to be nervous.
We do not believe that a person of ordinary intelligence would interpret these
statements in a way that tends to injure Thompson’s reputation. See Tex. Civ. Prac. & Rem. Code
§ 73.001; Hancock, 400 S.W.3d at 66 (statements that doctor lacked veracity and dealt in half-truths
not defamatory per se because they did not injure him in profession as physician; trait of truthfulness
not peculiar or unique to being a physician); Rehak, 404 S.W.3d at 729–30; Robinson, 409 S.W.3d
at 691 (finding statements concerning insufficiency of financial records but not alleging
misappropriation or embezzlement not defamatory per se). Thus, these email statements are not
defamatory as a matter of law. See Hancock, 400 S.W.3d at 66; Musser, 723 S.W.2d at 655
(complained-of statement merely called plaintiff strong and successful competitor and was not
defamatory as matter of law). Consequently, Thompson has not produced the minimum quantum
18
of clear and specific evidence necessary to support a rational inference that the email statements were
defamatory and has failed to establish a prima facie case for each essential element of her claim for
libel per se as to these statements. See Tex. Civ. Prac. & Rem. Code § 27.005(c); In re DuPont,
136 S.W.3d at 223; Farias, 426 S.W.3d at 814; Rehak, 404 S.W.3d at 732. We conclude the trial
court erred in denying Appellants’ motion to dismiss as to the email statements. See Tex. Civ. Prac.
& Rem. Code § 27.005(c); Rehak, 404 S.W.3d at 729–30, 732 (where statements were
merely rhetorical hyperbole, not defamatory, dismissal was appropriate); John Moore Servs.,
441 S.W.3d at 356–58 (statements that John Moore Services not accredited and not rated not
actionable defamatory statements, and trial court erred in denying motion to dismiss).
Flyers and Petition Distributed to Sunchase Homeowners
The flyers include statements that Thompson is incompetent, breached her contract,
misappropriated funds, disregarded the law, and has been fired from three other homeowners
associations for mismanagement of funds, one of which sued and obtained a money judgment. The
petition Appellants circulated alleged that Thompson had failed to comply with the HOA bylaws’
requirement that an annual audit be performed. The record shows that Thompson operated a
property management business under the name Nancy Thompson Management and performed
accounting and other financial services for the Sunchase HOA and at least one other condominium
homeowners association at the time the flyers were distributed. In the context of this HOA dispute,
we believe a person of ordinary intelligence would have understood these statements to mean that
Thompson had actually performed incompetently; violated the law, including by engaging in
misappropriation of HOA funds, both at Sunchase and elsewhere; and been fired for similar conduct
19
at previous jobs. See Tex. Civ. Prac. & Rem. Code § 73.001; Turner, 38 S.W.3d at 114–15; Musser,
723 S.W.2d at 654–55; Rehak, 404 S.W.3d at 728. These statements accuse Thompson of
incompetence in skills necessary to her profession, as well as dishonesty, and fraudulent—even
criminal—conduct in her professional activities and adversely reflect on her fitness for her chosen
profession. Accordingly, these statements injure Thompson in her profession, accuse her of
dishonest, fraudulent, and criminal conduct, and are defamatory per se.9 Hancock, 400 S.W.3d at
63–64, 67; Farias, 426 S.W.3d at 815; Robinson, 409 S.W.3d at 690; Texas Disposal, 219 S.W.3d
at 581.
We next consider whether Thompson has shown the third element of her libel claim
based on the statements in the flyers and petition. Because we have concluded that Thompson is not
a limited-purpose public figure, her burden is to establish that Appellants acted negligently with
regard to the truth of the statements. See McLemore, 978 S.W.2d at 571; Newspaper Holdings,
416 S.W.3d at 81–82; Rehak, 404 S.W.3d at 727. “Negligent conduct is determined by asking
‘whether the defendant acted reasonably in checking the truth or falsity or defamatory
character of the communication before publishing it.’” Scripps Tex. Newspapers, L.P. v. Belalcazar,
99 S.W.3d 829, 837 (Tex. App.—Corpus Christi 2003, pet. denied) (quoting Restatement (Second)
of Torts § 580B cmt. g).
9
Appellants argue that these statements cannot be defamatory because they are based on the
same conduct for which another homeowners association sued Thompson and obtained a default
judgment. However, they offer no authority for this argument and have therefore waived it. See
Tex. R. App. P. 38.1(i). While we conclude below that the true statement that such a suit and
judgment exist is not defamatory, that does not mean that the statements at issue in this lawsuit
cannot be defamatory.
20
With regard to the statement that one of the homeowners associations for which
Thompson had previously worked sued and obtained a money judgment against her, the record
shows that the statement is true. The evidence includes (1) a small claims court petition filed by a
homeowners association against Thompson for funds lost, spent without authorization, and spent for
items not purchased for the homeowners association and (2) a default judgment against Thompson.
Because the record contains no evidence that the statement was false, Thompson has not produced
the minimum quantum of clear and specific evidence necessary to support a rational inference that
Appellants acted negligently with regard to the truth of this statement and has thus failed to establish
a prima facie case for each essential element of her claim for libel per se as to this statement. See
Tex. Civ. Prac. & Rem. Code § 27.005(c); In re DuPont, 136 S.W.3d at 223; McLemore,
978 S.W.2d at 571; Farias, 426 S.W.3d at 814; Newspaper Holdings, 416 S.W.3d at 81–82, 84. We
therefore conclude that the trial court erred in denying Appellants’ motion to dismiss as to this
statement. See Tex. Civ. Prac. & Rem. Code § 27.005(c); Newspaper Holdings, 416 S.W.3d at 84,
86 (where there was no evidence to counter showing statement was substantially true, plaintiff did
not make prima facie case of defamation); Avila v. Larrea, 394 S.W.3d 646, 662 (Tex. App.—Dallas
2012, pet. denied) (where there was no evidence allegations were reported inaccurately and no
evidence of falsity, trial court erred in denying motion to dismiss under section 27.005).
As for the remainder of the statements in the flyers and petition, we conclude that
Thompson has met her burden to show by clear and specific evidence that Appellants acted with
negligence with regard to the truth of the statements. In her uncontradicted affidavit, Thompson
avers that she never stole anything from the HOA, she never had signatory authority over the HOA
21
bank account, all checks were signed by a board member and not her, a board member reviewed
every withdrawal the entire time she was property manager, she has never been fired from a
homeowners association for misappropriation of funds, she was still working for one of the
condominium associations from which Appellants alleged she has been fired at the time of the
allegation, she had witnessed board members telling Appellants there was no evidence that she had
stolen anything, and Appellants did not review the HOA bank records before stating that she “stole”
from the HOA and was a “thief.” Thompson offered a copy of a May 2012 letter from the HOA
board to its members informing them that the board was not aware of any embezzlement or
wrongdoing on the part of Thompson and that it was not Thompson’s responsibility to conduct
audits. Thompson also produced a copy of the Sunchase Condominium bylaws, which specify that
the HOA board treasurer, not the property manager, is responsible for coordinating the annual audits,
keeping true and accurate financial records, ensuring that all accounts are kept under the sole control
of the board, and signing all disbursement checks, which require three board members’ signatures.
We believe that this evidence constitutes clear and specific evidence that the
statements were false and that Appellants acted with negligence with regard to the truth of the
statements. There is no evidence to counter Thompson’s showing, supported by details, that the
statements were false. Cf. Alphonso v. Deshotel, 417 S.W.3d 194, 198 (Tex. App.—El Paso 2013,
no pet.) (where plaintiff did not testify he did not misappropriate funds, only that statements he did
were false and defamatory, he failed to produced clear and specific evidence of prima facie case
statements were false). Further, the record shows that, as HOA members, Appellants had access to
HOA bylaws and records, which they could have reviewed to check the truth or falsity of their claims
22
prior to making any accusation of incompetence, theft, or other wrongdoing. Although there is
evidence that Appellants were frustrated in attempts to obtain records from the HOA board, the
record also shows that Appellants did not refrain from making these statements about Thompson
until they had obtained and reviewed the records so as to ascertain the truth or falsity of their
suspicions and allegations.10 The evidence also establishes that prior to at least some of these
statements, the HOA board members’ explanations to Appellants and the board’s May 2012 letter
to the members expressly informed Appellants that there was no evidence of any wrongdoing on the
part of Thompson and that under the bylaws, which were available to appellants, it was not her
responsibility to ensure that annual audits were performed. The record further shows that Appellants
investigated Thompson’s prior employment history sufficiently to name the condominium
associations where she previously worked but did not offer any evidence of the alleged firings and
failed to discover or ignored that at the time of this allegation, Thompson was still working for one
association from which Appellants alleged she has been fired.
On this record, we conclude that Thompson has produced the minimum quantum of
clear and specific evidence necessary to support a rational inference that the statements were false
and that Appellants acted with negligence with regard to the truth of the statements. See Tex. Civ.
Prac. & Rem. Code § 27.005(c); In re DuPont, 136 S.W.3d at 223; McLemore, 978 S.W.2d at 571;
Farias, 426 S.W.3d at 814; French v. French, 385 S.W.3d 61, 74 (Tex. App.—Waco 2012, pet.
denied) (plaintiff who presented evidence that defendant failed to investigate alleged missing money,
10
In fact, the first flyer, which contains numerous allegations against Thompson, also
includes Appellants’ complaint that they had been unable to obtain the records necessary to
substantiate their suspicions and allegations.
23
other than to confront plaintiff who denied it, and had other information indicating plaintiff was not
involved raised fact issue as to whether defendant acted with negligence); KBMT Operating Co.
v. Toledo, 434 S.W.3d 276, 290 (Tex. App.—Beaumont 2014, pet. granted) (where gist of news
broadcast was based on documents that did not suggest what was reported, media defendants acted
negligently in reporting); cf. Newspaper Holdings, 416 S.W.3d at 86 (where plaintiff provided no
evidence that defendant should have investigated more fully, he did not show by clear and specific
evidence that report was false or negligently reported). Therefore, we further conclude that
Thompson has established by clear and specific evidence—evidence “that will entitle [Thompson]
to recover if no evidence to the contrary is offered by [Appellants]”—each essential element of her
libel per se claims as to the statements in the flyers and petition other than the statement concerning
the suit and default judgment against Thompson. See Tex. Civ. Prac. & Rem. Code § 27.005(b), (c);
In re DuPont, 136 S.W.3d at 223; McLemore, 978 S.W.2d at 571; Farias, 426 S.W.3d at 814.
Therefore, the trial court did not err in denying Appellants’ motion to dismiss as to these claims. See
Tex. Civ. Prac. & Rem. Code § 27.005(c); Toledo, 434 S.W.3d at 290.
Oral Statements to Sunchase Residents
The oral statements to Sunchase residents alleged to be defamatory are that Thompson
is a “thief,” was “stealing Association money,” and has been “fired from previous property
management jobs for misappropriating funds.” For the same reasons we have concluded that the
statements in the flyers and petition were defamatory per se, we also conclude that these statements
injure Thompson in her profession, accuse her of dishonest, fraudulent, and criminal conduct, and
are defamatory per se. See Hancock, 400 S.W.3d at 63–64, 67; Farias, 426 S.W.3d at 815;
24
Robinson, 409 S.W.3d at 690; Texas Disposal, 219 S.W.3d at 581. Similarly, for the same reasons
that we have concluded that Thompson has produced the minimum quantum of clear and specific
evidence necessary to support a rational inference that the statements in the flyers and
petition—other than the statement concerning the suit and default judgment against
Thompson—were false and that Appellants acted negligently with regard to the truth or falsity of
those statements, we conclude that she has made the same showing as to these oral statements to
Sunchase residents. See French, 385 S.W.3d at 74; Toledo, 434 S.W.3d at 290. Thus, we conclude
that Thompson has established by clear and specific evidence a prima facie case for each essential
element of her slander per se claims as to the oral statements made to Sunchase residents and the trial
court did not err in denying Appellants’ motion to dismiss as to these claims. See Tex. Civ. Prac.
& Rem. Code § 27.005(c); In re DuPont, 136 S.W.3d at 223; McLemore, 978 S.W.2d at 571; Farias,
426 S.W.3d at 814; Toledo, 434 S.W.3d at 290.
Oral Statements to Reporter
The only evidence of the statements Neyland, Sinclair, and Watts made to the
television reporter is contained in Appellants’ affidavits. Neyland, Sinclair, and Watts aver that they
told the reporter the HOA board and property management would “not respond,” the HOA board had
been uncooperative, something was “just not right,” they “wished [they] knew what was going on,”
“something [was] going on,” they “hope[d] to find out what it is,” and they had wanted to vote on
replacement of the board but were “quashed.” Viewing these statements as a whole and in context,
we do not believe that a person of ordinary intelligence would perceive them as defamatory to
Thompson’s reputation. See Tex. Civ. Prac. & Rem. Code § 73.001; Rehak, 404 S.W.3d at 729–30.
25
They do not allege that Thompson lacks the skills to perform her professional duties, see Hancock,
400 S.W.3d at 67, or charge her with the commission of a crime, dishonesty, fraud, rascality, or
general depravity, see Robinson, 409 S.W.3d at 690; Texas Disposal, 219 S.W.3d at 581. In fact,
the statements as a whole are more critical of the HOA board than of Thompson and are as much
statements of opinion as of fact. See John Moore Servs., 441 S.W.3d at 357–58 (Better Business
Bureau’s “F” rating not defamatory because it was opinion that lacked high degree of verifiability).
Therefore, these statements to the reporter are not defamatory as a matter of law. See Hancock, 400
S.W.3d at 66; Musser, 723 S.W.2d at 655.
Because Thompson has not produced the minimum quantum of clear and specific
evidence necessary to support a rational inference that the statements to the reporter were
defamatory, she has failed to establish a prima facie case for each essential element of her claim for
slander per se as to these statements. See Tex. Civ. Prac. & Rem. Code § 27.005(c); In re DuPont,
136 S.W.3d at 223; McLemore, 978 S.W.2d at 571; Farias, 426 S.W.3d at 814; Rehak, 404 S.W.3d
at 732. Therefore, the trial erred in denying Appellants’ motion to dismiss as to Neyland’s,
Sinclair’s, and Watts’s oral statements to the reporter. See Tex. Civ. Prac. & Rem. Code
§ 27.005(c); Rehak, 404 S.W.3d at 729–30, 732; John Moore Servs., 441 S.W.3d at 357–58, 362.
CONCLUSION
We affirm the trial court’s denial of Appellants’ motion to dismiss Thompson’s
claims that Appellants defamed her through their written statements in the flyers—with the exception
of the statement concerning the suit and default judgment against Thompson—and the petition and
their oral statements to Sunchase residents. We conclude that Thompson made the requisite
26
prima facie showing as to those claims. We reverse and render dismissal of Thompson’s claims as
to the email statements to Sunchase residents, the statement in the flyers concerning the suit and
default judgment against Thompson, and the statements to the television reporter, having concluded
that Thompson did not make the required prima facie showing as to those claims. The case may
proceed in the trial court consistent with our resolution of these issues on interlocutory appeal.
_____________________________________________
Melissa Goodwin, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed in Part; Reversed and Dismissed in Part;
Concurring Opinion by Justice Field
Filed: April 7, 2015
27