Skeet Phillips v. Ray Clark

DISMISS and Opinion Filed May 3, 2019
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00556-CV
SKEET PHILLIPS, Appellant
V.
RAY CLARK, Appellee
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 90510-422
OPINION
Before Justices Whitehill, Molberg, and Reichek
Opinion by Justice Reichek
In this suit for libel and defamation, Skeet Phillips appeals the trial court’s denial of his
motion for traditional and no-evidence partial summary judgment. Because we conclude Phillips
has failed to demonstrate his entitlement to bring an interlocutory appeal under section
51.014(a)(6) of the Texas Civil Practice and Remedies Code, we dismiss this appeal for lack of
jurisdiction.
Procedural Background
Ray Clark brought this suit against Phillips and others asserting claims for defamation/libel
per se, defamation/libel per quod, and conspiracy. According to Clark’s live pleading, in March
2014, he was the incumbent candidate for the office of County Commissioner of Precinct 2 in
Kaufman County, Texas. Phillips was one of Clark’s challengers in the Republican primary
election. Clark asserted that Phillips hired his co-defendants Michael Hendrix, Ben Campbell, and
John Knox, along with their organizations, The Precise Agency, The Precise Agency Group, My
Right to Know, and Your Right to Know, to advertise for his campaign.
On March 1, 2014, three days before the election, many residents of Precinct 2 received a
mailer purportedly sent by My Right to Know. Clark asserted the mailer contained numerous false
statements of fact that unambiguously associated him with corruption in connection with the
prosecution of an alleged child molester, Stoney Adams. The next day, an article appeared on
myrighttoknow.org containing substantially similar statements about Clark’s association with
Stoney. Clark alleged that “My Right to Know” was an assumed name of Hendrix, Campbell, and
Your Right to Know, and that Phillips provided them with all or part of the information contained
in the article.
Phillips filed a motion for partial summary judgment on Clark’s claims for defamation/libel
per quod and conspiracy asserting both traditional and no-evidence grounds. In the motion,
Phillips argued Clark could not establish damages caused by the allegedly false statements in the
mailer and on the website or a meeting of the minds to defame him. The trial court denied the
motion, and Phillips filed this interlocutory appeal.
In his notice of appeal, Phillips relies on section 51.014(a)(6) of the Texas Civil Practice
and Remedies Code as the basis for this Court’s jurisdiction. Section 51.014(a)(6) permits an
interlocutory appeal from an order that
denies a motion for summary judgment that is based in whole or in part upon a
claim against or a defense by a member of the electronic or print media, acting in
such capacity, or a person whose communication appears in or is published by the
electronic or print media, arising under the free speech or free press clause of the
First Amendment to the United States Constitution, or Article I, Section 8, of the
Texas Constitution, or Chapter 73.
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6). Phillips further states in the notice, “For
purposes of appellate jurisdiction, Defendant attaches and incorporates by reference the Affidavit
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of Ben Campbell dated May 27, 2014 (Exhibit A), and two inForney.com news articles dated
March 3, 2014 and March 25, 2014 (Exhibit B).”1
In Campbell’s affidavit he states that Your Right to Know is a Texas nonprofit corporation
of which he is one of three directors. The corporation’s statement of purpose is “for charitable,
religious, education, and scientific purposes under 501(c)(3) of the Internal Revenue Code.”
Campbell also states Your Right to Know created the website myrighttoknow.org and, prior to
March 2014, the website addressed “the need for transparency in healthcare matters.”
According to Campbell, Lacie Adams, Stoney’s ex-wife, wanted to have her “strong
opinion” on the matter of Stoney’s prosecution posted in an article on the myrighttoknow.org
website. Your Right to Know “hired an individual who had investigative reporting experience” to
write the article, but the content of the article “did not contain anything that was a substantive
change from what Lacie had provided to be posted on the website.” The mailer sent out to some
of the residents of Precinct 2 prior to the election referenced the myrighttoknow.org website.
Exhibit B to Phillips’s notice of appeal is two articles printed from inForney.com. The first
is entitled “Will Precinct 2 voters reject negative political mailers?” The second is entitled
“Commissioner Clark files defamation suit against Skeet Phillips, wife, and others.” On May 16,
2018, Phillips filed in this Court an affidavit by Mathew Richards, a journalist working with
inForney.com. Richards states “inForney is an online news publication that publishes stories/news
on a variety of topics which include, but are not limited to, Local News, Business, Crime,
Education, Sports, Politics, and Entertainment.” Richards further states that the articles published
1
TEX. GOV’T CODE ANN. § 22.220(c) (court of appeals may, on affidavit or otherwise, ascertain matters of fact
necessary to proper exercise of jurisdiction); Greystar, LLC v. Adams, 426 S.W.3d 861, 865 (Tex. App.—Dallas 2014,
no pet.) (we may consider submitted documents outside the record for limited purpose of determining our own
jurisdiction).
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on the inForney website contained quotes from the mailer and/or the article published on
myrighttoknow.org.
In his brief on appeal, Phillips does not address this Court’s jurisdiction over his appeal
other than to cite section 51.014 of the Texas Civil Practice and Remedies Code and refer to
Richards’s affidavit. Clark asserts in his responsive brief that we have no jurisdiction because
Phillips is not a media defendant and has not asserted any defenses based on free speech, freedom
of the press, or Chapter 73. Although Phillips filed a reply brief, he did not address Clark’s
jurisdictional arguments.
Jurisdiction Under Section 51.014(a)(6)
Appellate courts have jurisdiction to consider immediate appeals from interlocutory orders
only if a statute explicitly provides such jurisdiction. Tex. A&M Univ. Sys. v. Koseoglu, 233
S.W.3d 835, 840 (Tex. 2007). In this case, Phillips relies solely on section 51.014(a)(6) of the
civil practice and remedies code. For an interlocutory appeal under section 51.014(a)(6), there
must be: (1) an order (2) that denies a motion for summary judgment (3) that is based in whole or
in part upon a claim against or defense by (4) a member of the media or a person quoted in the
media (5) arising under constitutional free speech guarantees or Texas libel statutes. TEX. CIV.
PRAC. & REM. CODE ANN. § 51.014(a)(6); see also Dallas Symphony Ass’n, Inc. v. Reyes, No. 17-
0835, 2019 WL 1090771, at *4 (Tex. Mar. 8, 2019). The order from which Phillips appeals denies
his motion for summary judgment challenging Clark’s claims against him arising under the Texas
libel statutes.2 However, unless the record affirmatively shows Phillips was either a member of
the media, or his statements appeared in the media, we must dismiss the appeal. See Brashear v.
Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.—Dallas 2009, no pet.).
2
We disagree with the concurrence’s conclusion that a motion challenging a claim under the Texas libel statutes
is not a motion “based upon” the challenged claim.
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Assuming the communications at issue are attributable to Phillips, which he denies, not
everyone who comments on the news or political or social issues is a “member of the media.”
Serv. Emps. Int’l Union Local 5 v. Prof’l Janitorial Serv. of Houston, Inc., 415 S.W.3d 387, 395
(Tex. App.—Houston [1st Dist.] 2013, pet. denied). The distinction between media defendants
and those who merely opine on the issues of the day is particularly important today when every
person with an internet connection has the ability to publish his or her comments to a broad
audience. If the entirety of the internet and those who communicate on it were considered the
“media,” the limiting language of section 51.014(a)(6) would be rendered meaningless. Id.
Several courts have addressed the application of section 51.014(a)(6)’s media defendant
requirement in this age of easy mass communication. Each of these cases has recognized that the
term “media” must be interpreted in such a way as to limit the applicability of the section to the
class of persons it was intended to benefit. In Service Employees International Union Local 5 v.
Professional Service of Houston, Inc., the Houston First Court of Appeals held that a person is a
“member of the media” when “the person’s primary business is reporting the news and they are
. . . acting in such capacity.” Id. at 398. In Kaufman v. Islamic Society of Arlington, the Fort Worth
Court of Appeals set out a number of factors to be considered, including the “circumstances
relating to the character and text of the communication itself, its editorial process, its volume of
dissemination, the communicator’s extrinsic notoriety unconnected to the communication, [and]
the communicator’s compensation for or professional relationship to making the communication.”
291 S.W.3d 130, 142 (Tex. App.—Fort Worth 2009, pet. denied). Finally, in Hotze v. Miller, the
Tyler Court of Appeals concluded the appellant was a “media defendant” based, in part, on the
record showing he had been a political writer and journalist for thirty years, his editorials were
published in a weekly newspaper, and he hosted a radio broadcast and website that published his
articles. 361 S.W.3d 707, 711–12 (Tex. App.—Tyler 2012, pet. denied). A common thread
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through all of these holdings is that the appellant’s communications must be made in the context
of professional news reporting or professional investigation and commentary on matters of public
concern. See also Main v. Royall, 348 S.W.3d 381, 387 (Tex. App.—Dallas 2011, no pet.) (writer
and publisher of traditional book criticizing government’s use of eminent domain power were
“members of the electronic or print media” for purposes of section 51.014(a)(6)).
The record before us shows that Phillips was a candidate for public office who allegedly
provided information that was published in mailers and on a website. Nothing in the record shows
Phillips has ever engaged in professional news reporting or any other form of journalism or
professional investigation and commentary about matters of public concern. Accordingly, Phillips
does not qualify as a “member of the media.”
We recognize that section 51.014(a)(6) contains a second, independent basis to bring an
interlocutory appeal if the appellant’s communications appeared in the media. Hotze. at 712.
There is no suggestion in the statute, however, that the “media” in which the appellant’s
communications must appear is any different than the “media” of which the appellant must be a
member. Accordingly, not every publication falls within the scope of section 51.014(a)(6). For
example, although the internet has been recognized as a type of “nontraditional electronic media,”
not every website will qualify as “media” for purposes of section 51.014(a)(6). See Serv. Emps.,
415 S.W.3d at 402. To conclude otherwise would lead to the absurd result that a person who was
not a member of the media could become a “media defendant” simply by having his statements
appear somewhere on the internet regardless of the context in which they appeared. The media in
which the appellant’s communications appear, therefore, must also be in the business of news
reporting or professional investigation and commentary on matters of public concern.
In this case, Phillips’s alleged communications appeared in mailers and a website article
published by myrighttoknow.org. According to the affidavit testimony submitted by Phillips,
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myrighttoknow.org was a website created by Your Right to Know, a Texas nonprofit corporation
established “for charitable, religious, education, and scientific purposes.” Although Phillips’s co-
defendant Campbell testified that Your Right to Know hired an individual with “investigative
reporting experience” to write the article about which Clark complains, Campbell also stated the
content of the article came entirely from a non-media source provided to the writer. There is no
indication that investigative reporting played any role in the creation of the article.
Clark has alleged that Hendrix, another co-defendant, is the registered owner of
myrighttoknow.org and that Hendrix “does business as My Right to Know, Your Right to Know,
The Precise Agency, LLC, and The Precise Agency Group LLC.” Hendrix testified by affidavit
that Phillips retained the Precise Agency as a consultant for his campaign and to provide campaign
advertising and maintenance and monitoring of social media. On this record, there is nothing to
suggest that myrighttoknow.org, or any of the persons associated with it, is in the business of news
reporting or professional investigation and commentary. Because of this, we conclude their
publications do not qualify as “media” for the purposes of section 51.014(a)(6).
Finally, Phillips appears to rely on the news articles appearing on inForney.com to bring
him within the scope of section 51.014(a)(6). The articles on inForney.com were written by a
professional journalist and discuss the mailers sent prior to the election and the subsequent lawsuit
brought by Clark. But Clark has not pleaded any claims based on the publication of those articles,
nor does he allege that they are defamatory. Phillips cannot, therefore, rely on those articles to
establish his standing as a media defendant. Id. at 403.
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Based on the foregoing, we conclude the record fails to affirmatively show that Phillips
falls within the class of persons to which section 51.014(a)(6) applies. Accordingly, we dismiss
this appeal for want of jurisdiction.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
Whitehill, J., concurring.
180556F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SKEET PHILLIPS, Appellant On Appeal from the 422nd Judicial District
Court, Kaufman County, Texas
No. 05-18-00556-CV V. Trial Court Cause No. 90510-422.
Opinion delivered by Justice Reichek.
RAY CLARK, Appellee Justices Whitehill and Molberg
participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want
of jurisdiction.
It is ORDERED that appellee RAY CLARK recover his costs of this appeal from
appellant SKEET PHILLIPS.
Judgment entered May 3, 2019
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