D Magazine Partners, L.P. D/B/A D Magazine v. Janay Bender Rosenthal

Affirmed and Opinion Filed August 28, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00951-CV
D MAGAZINE PARTNERS, L.P. D/B/A D MAGAZINE, MAGAZINE LIMITED
PARTNERS, L.P., AND ALLISON MEDIA, INC., Appellants
V.
JANAY BENDER ROSENTHAL, Appellee
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-01346-G
OPINION
Before Justices Francis, Myers, and Brown
Opinion by Justice Myers
D Magazine Partners, L.P. d/b/a D Magazine, Magazine Limited Partners, L.P., and
Allison Media, Inc. appeal the trial court’s denial of their motion under the Texas Citizens
Participation Act (“TCPA”) to dismiss Janay Bender Rosenthal’s libel claim. Appellants bring
three issues on appeal asserting (1) appellee did not meet her burden of establishing a prima facie
case on each element of her libel claim by clear and specific evidence; (2) appellants established
the essential elements of one or more affirmative defenses by a preponderance of the evidence;
and (3) the case should be remanded for a determination of appellants’ attorney’s fees and costs.
We affirm the trial court’s order denying the motion to dismiss.
BACKGROUND1
In May 2011, after years of divorce and child-custody proceedings against her former
husband left her financially drained, appellee applied for government benefits under the
Supplemental Nutritional Assistance Program (“SNAP”). The Texas Health and Human
Services Commission (“HHSC”) approved her application and paid her benefits under SNAP. In
early 2012, appellee and her minor daughter were living with appellee’s fiancé, who owned a
home in Dallas near the City of University Park. The home was in the Highland Park
Independent School District, and appellee’s daughter attended public school in that district.
Appellee continued to receive SNAP benefits while living with her fiancé. Appellee testified
that while she was dating her fiancé, she was harassed by his ex-girlfriend. Appellee stated this
woman had impersonated or gotten other persons to impersonate police and “disease control
representatives” in attempts to ruin appellee’s reputation.
In the March 2013 edition of D Magazine, appellants published an article about appellee.
The article described appellee’s government benefits, her change of address to her fiancé’s
house, property listed in her daughter’s living trust, an affidavit of indigency, appellee’s criminal
record, and her spending at grocery stores using SNAP benefits. Appellee contends that the
article accused her, wrongly, of having committed “welfare fraud.” Following publication of the
article, appellee’s fiancé broke up with her. Appellee was shunned by her acquaintances, and she
had difficulty obtaining employment. Appellee alleged that “[t]o this day, a search of [her name
on the internet] pulls up numerous articles regarding welfare fraud.”
After the article was published, appellee contacted HHSC, which administers SNAP in
Texas, to find out if she had done anything wrong. A Deputy Inspector General told her HHSC
1
This factual summary is drawn from the statements in the parties’ pleadings and from the affidavits and attachments to appellants’ motion
to dismiss and appellee’s response to the motion. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.006 (West 2015).
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had investigated the facts asserted in the article and “found no evidence anyone has fraudulently
obtained or otherwise abused state benefits.”
Appellee testified that recordings of telephone calls to HHSC from before the article was
published showed a woman had called HHSC pretending to be appellee. This caller used
appellee’s social security number and date of birth to obtain information about appellee’s SNAP
benefits account and her spending of the benefits. Appellee stated she recognized the caller’s
voice as that of her fiancé’s ex-girlfriend who had been harassing her.
Appellee, individually and as next friend of her daughter, filed suit against appellants,
alleging causes of action for negligent defamation, libel per se, libel per quod with actual malice,
and violations of the Texas Deceptive Trade Practices-Consumer Protection Act (“DTPA”) and
the Identity Theft Enforcement and Protection Act (“ITEPA”). See TEX. BUS. & COM. CODE
ANN. §§ 17.41–.63 (West 2011 & Supp. 2014) (DTPA); id. §§ 521.001–.152 (West Supp. 2014)
(ITEPA). Appellee requested actual and exemplary damages as well as an award of her
attorney’s fees. Appellants moved for dismissal under the TCPA. After a hearing, the trial court
granted the motion to dismiss as to the DTPA and ITEPA causes of action and on all claims on
behalf of appellee’s daughter. The court denied the motion to dismiss as to appellee’s claims on
her own behalf for libel. The court stated in the order that “the Court finds that Plaintiff has
established by clear and specific evidence a prima facie case of defamation.”
THE ARTICLE
The article was mentioned on the upper-left corner of the magazine’s cover as follows:
[CRIME]
THE PARK CITIES
WELFARE QUEEN PAGE 16
The article itself was one page. In the top left corner of the page was the word “pulse.” Below
that on the left side was a photograph of appellee with a towel around her neck and shoulders
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taken by police in Collin County following her arrest for theft. Appellee’s photograph was
surrounded by an ornate gilded frame. The photograph had the caption, “Glamour shot: Janay
Bender Rosenthal was arrested for theft in Collin County, where all mug shots are taken with a
gray towel wrapped around the perp’s neck.” To the right of the photograph is the first part of
the article:
[CRIME]
THE PARK CITIES
WELFARE QUEEN
One University Park mom has figured out how to get food stamps while living in
the lap of luxury. By Anonymous Park Cities Parent
Who wouldn’t like some extra spending money each month? Cash for those little
treats at Whole Foods and Tom Thumb? Well, it can be yours with just a little
effort. All you have to do is apply for food stamps. What’s that, you say? You
live in the Park Cities and would never qualify? Hogwash. Just have a look at
how 40-year-old University Park mom Janay Bender Rosenthal pulls it off.
The rest of the article is set out in five columns, with the headings “1. Know the System,” “2.
Move in with Your Boyfriend,” “3. Say You’re Head of the Household,” “4. Don’t Lose Your
Job,” and “5. Commit Only Minor Crimes.”
1. Know the System
When Rosenthal applied for funds from the Supplemental Nutritional Assistance
Program (SNAP) sometime before 2011, she had to prove she qualified for
welfare. Information about individuals receiving aid is not publicly available, so
we can’t say for sure what she told the Health and Human Services Commission
(HHSC), which oversees the program. But public records indicate that Rosenthal
must have been less than forthcoming when she renewed her application online in
October 2012. Every six months, she has had to establish that she is still destitute.
An HHSC Eligibility Department officer who would not provide his name
confirmed that Rosenthal will receive $367 per month through April 2013.
Assuming she has received that same benefit every month during the time she has
been enrolled in SNAP, we figure she has received a cool $10,276.
2. Move in with Your Boyfriend
Rosenthal’s current driver’s license lists an old address on La Cabeza Drive, in
Far North Dallas, a house within the boundaries of the district where she attended
high school. The house is owned by a [R.B.]. According to an Eligibility
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Department officer, it is the same address contained in the HHSC database and
sworn to on an affidavit of indigency that Rosenthal filed in Dallas County
District Court on August 7, 2012. (Falsifying such a document is a felony.) But
on February 22, 2012, in a divorce proceeding, Rosenthal filed a document under
oath stating that her address had changed from a location in Irving to one on Bryn
Mawr Drive, in University Park. That same address is listed as her child’s in a
Highland Park ISD school directory. The 6,000-square-foot, five-bedroom UP
house is on the tax rolls for $1.15 million.
3. Say You’re Head of the Household
The Bryn Mawr house is owned by [M.Z.], President of a real estate and
construction business . . . . He is the head of household because he owns and
lives in the house. In a July 2012 police report, Rosenthal stated that [M.Z.] was
her fiancé. In a recent Facebook photo, Rosenthal can be seen wearing a diamond
ring on her left hand, fourth finger. The SNAP application requires that
applicants include the name, address, phone number, and signature of any person
who gives you gifts or pays your bills, and the amount of money the person brings
“into the home.” Rosenthal left this part blank, according to another HHSC
officer. According to the Dallas Central Appraisal District, Rosenthal has a
relationship to other households, too. Nine properties are listed in the name of her
daughter’s living trust.
4. Don’t Lose Your Job
Especially if you are your own boss. To receive SNAP benefits, applicants must
be employed or participating in a work program. They must show bank
statements and either paychecks or self-employment records.2 These documents
are not required to renew benefits, just to get them started. According to
Rosenthal’s August affidavit of indigency, at the time she had just $60 in a bank
account, $50 in cash, no jewelry, and a 10-year-old Suzuki valued at $3,000. The
affidavit also shows that the box marked “unemployed” was checked but then
scribbled out. Instead, the “self-employed” box was checked. Her October
SNAP renewal lists $135 in a checking account, according to the HHSC
eligibility department officer, and $35 in expenses for the Suzuki.
5. Commit only Minor Crimes
Public police records for Rosenthal show numerous theft-related arrests and
convictions in North Texas. One arrest occurred at a Tom Thumb store where she
routinely uses her Lone Star Card, the debit card that the state uses to distribute
2
The internet version of the article included a footnote at this location stating:
*Correction: An earlier version of this story stated that HHSC checks income and resources records only when a person
first applies for SNAP benefits, not when they renew. That was inaccurate. HHSC makes these checks when a client
renews benefits, too, which generally happens every six months.
This footnote was not in the print version of the article.
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SNAP funds. According to the HHSC eligibility department officer, on
December 27, Rosenthal spent $43.50 at the East Lover’s Lane Tom Thumb. On
January 5, she spent $141.67 at the Preston/Royal Tom Thumb. (On January 7,
she went more upscale, spending $23.19 in welfare money at the Whole Foods on
Preston Road.) Interestingly, even if Rosenthal did report her run-ins with the
law, the state still might award benefits. Stephanie Goodman, the HHSC director
of communications, says, “We only check for felony drug convictions.”
The Park Cities Welfare Queen, D MAGAZINE, Mar. 2013, at 16 (footnote added). Besides the
printed copy of the article in the published magazine, the article was also available in electronic
form on appellants’ website through at least the day of the hearing on the motion to dismiss.
CITIZENS PARTICIPATION ACT
The purpose of the TCPA 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 a person to file
meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002
(West 2015). Although we construe the TCPA liberally “to effectuate its purpose and intent
fully,” the act “does not abrogate or lessen any other defense, remedy, immunity, or privilege
available under other constitutional, statutory, case, or common law or rule provisions.” Id.
§ 27.011.
The TCPA provides a mechanism for early dismissal of a cause of action that “is based
on, relates to, or is in response to a party’s exercise of the right of free speech, the right to
petition, or right of association . . . .” Id. § 27.003. “‘Exercise of the right of free speech’ means
a communication made in connection with a matter of public concern.” Id. § 27.001(3).
“‘Communication’ 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). “‘Matter of
public concern’ includes an issue related to . . . (B) environmental, economic, or community
well-being; . . . [or] (C) the government . . . .” Id. § 27.001(7).
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The TCPA imposes the initial burden on the party moving for dismissal to establish by a
preponderance of the evidence “that the legal action is based on, relates to, or is in response to
the party’s exercise of (1) the right of free speech . . . .” Id. § 27.005(b)(1). If the movant makes
this showing, the burden shifts to the nonmovant to “establish[] by clear and specific evidence a
prima facie case for each essential element of the claim in question.” Id. § 27.005(c). However,
even if the nonmovant makes this showing, the trial court must dismiss the cause of action if the
movant “establishes by a preponderance of the evidence each essential element of a valid defense
to the nonmovant’s claim.” Id. § 27.005(d). When determining whether to dismiss the legal
action, the court must consider “the pleadings and supporting and opposing affidavits stating the
facts on which the liability or defense is based.” Id. § 27.006(a).
In In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (orig. proceeding), the supreme court
discussed the meaning of the requirement that the nonmovant “establish[] by clear and specific
evidence a prima facie case for each essential element.” “Clear” means “unambiguous, sure, or
free from doubt,” and “specific” means “explicit or relating to a particular named thing.” Id. at
590. A “prima facie case” is “the minimum quantum of evidence necessary to support a rational
inference that the allegation of fact is true.” Id. (quoting In re E.I. DuPont de Nemours & Co.,
136 S.W.3d 218, 223 (Tex. 2004)). It refers to evidence sufficient as a matter of law to establish
a given fact if it is not rebutted or contradicted. Id. “Clear and specific evidence” refers to the
quality of evidence required to establish a prima facie case, and the term “prima facie case”
refers to the amount of evidence required to satisfy the nonmovant’s minimal factual burden.
Serafine v. Blunt, No. 03-12-00726-CV, 2015 WL 3941219, at *3 (Tex. App.—Austin June 26,
2015, no pet. h.). The “clear and specific evidence” requirement does not impose an elevated
evidentiary standard, nor does it categorically reject circumstantial evidence. Lipsky, 460
S.W.3d at 591.
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STANDARD OF REVIEW
We review de novo the trial court’s determinations that the parties met or failed to meet
their burdens of proof under section 27.005.3 See Shipp v. Malouf, 439 S.W.3d 432, 437 (Tex.
App.—Dallas 2014, pet. denied).
The parties do not dispute that appellee’s libel action “is based on, relates to, or is in
response to” appellants’ exercise of the right of free speech. Therefore, appellee had the burden
to establish her prima facie case by clear and specific evidence. See TEX. CIV. PRAC. & REM.
CODE ANN. § 27.005(b), (c).
Libel is defamation expressed in written or other graphic form. TEX. CIV. PRAC. & REM.
CODE ANN. § 73.001 (West 2011). A libel plaintiff must prove (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. A
statement is defamatory if it tends to injure the subject’s reputation, to expose her to public
hatred, contempt, ridicule, or financial injury, or to impeach her integrity, honesty, or virtue. Id.
A statement may be false, unpleasant, abusive, or objectionable without being defamatory in
light of the surrounding circumstances. Id. Whether a statement is capable of a defamatory
meaning is initially a question of law for the court. Id. Moreover, to be actionable, a statement
must assert an objectively verifiable fact rather than an opinion. Id. Merely expressing a
defamatory statement in the form of an “opinion” does not shield it from tort liability because
opinions often imply facts. Id. We classify a statement as fact or opinion based on the
3
In Lipsky, the supreme court concluded that the trial court “did not abuse its discretion in denying” the motion to dismiss under chapter 27.
Lipsky, 460 S.W.3d at 596. In that case, the supreme court was reviewing a petition for writ of mandamus, and mandamus issues to correct an
abuse of discretion. See In re Connor, 458 S.W.3d 532, 534 (Tex. 2015) (per curiam). It does not appear the supreme court has addressed
whether review on appeal from the denial of a motion to dismiss under chapter 27 should be de novo or for an abuse of discretion. Therefore, we
follow our precedent and review the trial court’s determinations de novo.
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statement’s verifiability and the entire context in which the statement was made. Id. Whether a
statement is a statement of fact or opinion is a question of law. Id.
PRIMA FACIE CASE
In their first issue, appellants contend the trial court erred by determining appellee
established a prima facie case of her libel claim by clear and specific evidence. Appellants argue
the “clear and specific evidence” standard requires more than “some” evidence. They also argue
this standard is a heightened standard, requiring “evidence that is unaided by presumptions,
inferences, or intendments.” See Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 726 (Tex.
App.—Houston [14th Dist.] 2013, pet. denied). The supreme court disapproved of these
concepts in Lipsky.4 See Lipsky, 460 S.W.3d at 587–88, 591. The supreme court rejected the
notion that the legislature imposed an elevated evidentiary standard or prohibited circumstantial
evidence. Id. at 591. “[A] plaintiff must provide enough detail to show the factual basis for its
claim. In a defamation case that implicates the TCPA, pleadings and evidence that establishes
the facts of when, where, and what was said, the defamatory nature of the statements, and how
they damaged the plaintiff should be sufficient to resist a TCPA motion to dismiss.” Id. In
determining whether the plaintiff presented a prima facie case, we consider only the pleadings
and evidence in favor of the plaintiff’s case. We do not consider whether the defendant
presented evidence rebutting the plaintiff’s case; such evidence is appropriate in determining a
defendant’s motion for summary judgment or at trial but not in determining whether the plaintiff
presented a prima facie case.5 See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) (issue is
whether claimant established prima facie case for each essential element).
4
The supreme court also disapproved of similar statements in this Court’s cases of Shipp v. Malouf, 439 S.W.3d 432, 439 (Tex. App.—
Dallas 2014, pet. denied), and Young v. Krantz, 434 S.W.3d 335, 342–43 (Tex. App.—Dallas 2014, no pet.). See Lipsky, 460 S.W.3d at 587, 591.
5
The dissent paraphrases this statement of the standard of review for determining the existence of a prima facie case as considering “only
the plaintiff’s evidence” and states this interpretation of section 27.006(a) would render meaningless the statute’s requirement that the court
consider opposing affidavits in determining a motion to dismiss under the TCPA. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a). We
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In this case, “when, where, and what was said” was the magazine article itself, both in its
printed form mailed to subscribers and sold in newsstands around Dallas in 2013 and, in its
electronic form, still present on the internet through at least the date of the hearing in the trial
court. Appellants assert the article was not defamatory, however, because the overall “gist” of
the article was substantially true.
In determining whether a publication is defamatory, we construe the article as a whole in
light of the surrounding circumstances based upon how a person of ordinary intelligence would
perceive it. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000). “[A] publication
can convey a false and defamatory meaning by omitting or juxtaposing facts, even though all the
story’s individual statements considered in isolation were literally true or non-defamatory.” Id.
“[A] plaintiff claiming defamation based on a publication as a whole must prove that the
publication’s ‘gist’ is false and defamatory and the publication is not otherwise privileged.” Id.
at 115. A private individual may recover damages from a publisher for defamation upon a
showing that: (1) the media defendant knew or should have known the publication was false; and
(2) the content of the publication would warn a reasonably prudent editor of its defamatory
potential. Scripps Tex. Newspapers, L.P. v. Belalcazar, 99 S.W.3d 829, 837 (Tex. App.—
Corpus Christi 2003, pet. denied). “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.’” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 580B
cmt. g (AM. LAW INST. 1977)). Thus, to determine whether appellee established a prima facie
case, we must determine the gist of the article, whether the gist is false, whether the gist is
disagree. First, in considering whether the plaintiff established a prima facie case, we consider the evidence that supports the plaintiff’s case,
regardless of whether it was in a supporting or opposing pleading or affidavit. Second, before the court reaches the question of whether the
plaintiff has established a prima facie case, the court must first determine whether the defendant has shown “by a preponderance of the evidence”
that the plaintiff’s cause of action concerns the defendant’s exercise of the right of free speech, the right to petition, or the right of association. Id.
§ 27.005(b). And, if the court determines the plaintiff established a prima facie case, the court considers whether the defendant established a
valid defense “by a preponderance of the evidence.” Id. § 27.005(d). Determination of whether the defendant met the preponderance-of-
the-evidence burden of proof requires consideration of all the evidence, regardless of its source.
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defamatory, whether “the publication is not otherwise privileged,”6 whether appellee was
damaged unless the defamation was per se, and whether appellants were negligent in publishing
the article. See id.; WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); see also
Lipsky, 460 S.W.3d at 593.
The Gist of the Article
The parties disagree over what constitutes the gist of the article. Appellee asserts the gist
of the article was that appellee had committed welfare fraud. Appellants argue the gist of the
article “was that Rosenthal, who had a criminal history of theft, was obtaining and using SNAP
benefits while living in a $1.15 million home in the wealthy HPISD.”7
The “gist” of the article is its “main point or material part,” its “essence.” Gist,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED
959 (1981); see also Gist, BLACK’S LAW DICTIONARY 805 (10th ed. 2014). We determine the
meaning of a publication from the perception of a reasonable person. See Lipsky, 460 S.W.3d at
594. We conclude that the gist is actually a combination of appellants’ and appellee’s statements
of the gist. A reasonable person would conclude the article was a criticism of SNAP, which
allowed appellee, who had been convicted of theft, to receive benefits while living in a $1.15
million home and while defrauding HHSC by filing false information with HHSC.
Appellants’ assertion of the article’s gist is a list of some of the facts set forth in the
article, but it does not take into consideration its headline, “The Park Cities Welfare Queen,” or
6
Whether the lack of privilege is an element of the plaintiff’s case, or whether the existence of a privilege is an affirmative defense, is not
clear. In Turner, the supreme court appears to indicate that the lack of a privilege is part of the plaintiff’s burden of proof. Turner, 38 S.W.3d at
114. In Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013), the supreme court indicated it was a defense. Id. at 56. Traditionally, fair comment or
opinion has been considered a qualified privilege and an affirmative defense. See A.H. Belo & Co. v. Looney, 246 S.W. 777, 781–83 (Tex. 1922).
For purposes of this opinion, we view it both ways. Therefore, we first consider whether appellee established a prima facie case of the element of
lack of privilege by clear and specific evidence, and then we consider whether appellants established a privilege as an affirmative defense by a
preponderance of the evidence.
7
Appellants’ statement on appeal of the gist of the article is more expansive than that set forth in their motion to dismiss in the trial court:
“The gist of the Defendants’ Article was that Plaintiff was receiving SNAP benefits while living in one of the most expensive neighborhoods in
Dallas.”
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the categorization of the article, “[Crime].” The term “Welfare Queen” has two meanings; it can
mean either (1) a woman who has defrauded the welfare system by using false information to
obtain benefits to which she is not legally entitled, and it can also mean (2) a woman who has
exploited the welfare system by having children out of wedlock and avoiding marital
relationships for the purpose of continuing to qualify legally for government benefits.8 In this
case, the pleadings and evidence indicate it can mean only the former, that appellee was
committing welfare fraud. Appellee had only one child, she presented evidence she had been
married and had gone through a protracted divorce and lengthy child-custody proceedings that
exhausted her savings and income, and as the article states, she was engaged to be married to an
apparently wealthy man at the time of the publication of the article. Thus, appellee does not fit
the definition of “welfare queen” as a person who remains legally qualified for benefits by
having children out of wedlock and avoiding marital relationships. Therefore, the title, “Park
Cities Welfare Queen,” means a woman in the Park Cities who is committing fraud to receive
government-assistance benefits illegally. Placing the word “[Crime]” over the headline “The
Park Cities Welfare Queen” on the cover and the article would indicate to a reasonable person
that the article concerned a person, a welfare queen, who was committing a crime, namely,
8
The term “welfare queen” with its first meaning was coined in 1974 in articles in the Chicago Tribune newspaper and Jet magazine
referring to a notorious case of welfare fraud. Welfare Queen, WIKIPEDIA, https://en.wikipedia.org/wiki/Welfare_queen (last visited Aug. 28,
2015) (“WIKIPEDIA”). The articles were about Linda Taylor, who, according to the Tribune, used three Social Security cards, 27 names, 31
addresses, and 25 telephone numbers to obtain $150,000 in illicit welfare cash. See WIKIPEDIA; see also Josh Levin, The Welfare Queen, SLATE
(Dec. 19, 2013),
http://www.slate.com/articles/news_and_politics/history/2013/12/linda_taylor_welfare_queen_ronald_reagan_made_her_a_notorious_american_
villain.html (“SLATE”). Taylor used the money to finance a lifestyle of new cars, expensive clothes, fur coats, and jewelry. SLATE. Taylor was
eventually convicted of stealing $8,000 of welfare funds using four aliases. Id. Ronald Reagan referred to Taylor’s welfare fraud during his 1976
Presidential campaign, and he used the phrase “welfare queen” in a radio commentary. WIKIPEDIA; SLATE. The term was later applied to other
notorious cases of welfare fraud. See People v. Williams, 164 Cal. Rptr. 767, 771 (Cal. Ct. App. 1980) (Barbara Williams, who received more
than $200,000 of government benefits to which she was not entitled by using aliases and false birth certificates claiming more than 70 children,
was “the Welfare Queen”); Lois Timnick, ‘Welfare Queen’ Arrested on New Fraud Charges, LOS ANGELES TIMES, (May 22, 1987),
http://articles.latimes.com/1987-05-22/news/mn-1219_1_welfare-fraud (“‘Welfare Queen’ Dorothy Woods” convicted of stealing $377,000 in
welfare payments “by posing as a dozen impoverished women with a total of 49 dependent children, while she was actually living in splendor in
Pasadena—in a mansion with a live-in housekeeper, several luxury cars, mink coats and a swimming pool”). Subsequently, the phrase became
part of the political discourse of welfare reform and evolved its second meaning involving the most odious of racial and gender stereotypes and
prejudices to mean a woman, usually a minority, exploiting the public-assistance system by having multiple children and avoiding marital
relationships to continue her eligibility for benefits. See Risa E. Kaufman, The Cultural Meaning of the “Welfare Queen”: Using State
Constitutions to Challenge Child Exclusion Provisions, 23 N.Y.U. REV. L. & SOC. CHANGE 301, 310 (1997).
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welfare fraud.9 The statement in the article that appellee “must have been less than forthcoming
when she renewed her application online in October 2012” would indicate to a reasonable person
that appellee submitted false information to HHSC in her application for renewal of benefits.
A reasonable person would conclude from the article that appellee committed fraud by
submitting false information to HHSC to continue to receive SNAP benefits to which she
otherwise would not have been entitled. We agree with appellee that the gist of the article
included the assertion that appellee had committed welfare fraud.
Truth or Falsity of the Gist
Appellee testified in her affidavit that after the article was published, HHSC, which is
responsible for SNAP, investigated whether appellee had committed fraud. See TEX. HUM. RES.
CODE ANN. § 33.0006 (West 2013) (HHSC “operates the supplemental nutrition assistance
program”). Appellee’s evidence in her response to the motion to dismiss included a letter from a
Deputy Inspector General of HHSC stating the Commission had investigated the facts asserted in
the article and related information and “found no evidence anyone has fraudulently obtained or
otherwise abused state benefits.”
The article implied that appellee committed fraud by falsely stating her address on SNAP
benefits renewal forms, failing to report income or other support from properties in her
daughter’s living trust (or that she was hiding the properties by placing them in the trust), and
failing to report financial subsidies from her fiancé.
Appellee stated in her affidavit that when she filled out the application for SNAP
benefits, she answered all questions truthfully. She testified that she had always used her
parents’ address on La Cabeza Drive as her mailing address. She stated she put that address on
9
Appellants argue that the heading “[Crime]” was not to indicate appellee had committed the crime of welfare fraud but because the article
was about the propriety of the law allowing persons with a history of theft charges to qualify for welfare benefits. This may be the gist of the
fifth column by itself, but it is not the gist of the article as a whole. Furthermore, the heading “[Crime]” for an article about persons with criminal
backgrounds lawfully receiving SNAP benefits would not make sense because the article would not be about crime.
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the SNAP benefits application form and on the affidavit of indigency form because those forms
asked for her mailing address. Appellee stated in her petition that she was not financially
supported by her fiancé.
Appellee stated her brother set up the living trust for her daughter, and the properties in
the living trust were vacant land, not “households” as the article stated. She testified that none of
the properties were worth more than $9,000 and that she and her daughter had never received
any income or value from the trust. Appellee’s brother stated in an affidavit that he purchased
the properties at “distressed prices” and put them into a trust at the suggestion of his “trust and
estate lawyer.” He also testified he did not tell appellee or her daughter about the trust before the
article was published. Appellee attached to her affidavit information from the website of Dallas
Central Appraisal District showing the District’s valuation of the properties. This information
supported appellee’s statements that the properties had no improvements and were all valued less
than $9,000. Because appellee presented evidence she did not own the properties, and she and
her daughter had no knowledge of the living trust and received no income or other benefit from
it, appellee presented evidence that the import from the article’s discussion of the trust—that
appellee filed false information with HHSC by failing to report the trust to HHSC—was false.
After considering appellee’s pleadings and affidavits, we conclude appellee presented
sufficient clear and specific evidence to establish a prima facie case that part of the article’s gist,
that she had committed welfare fraud, was not true.
Defamatory Nature of the Gist of the Article
Next, we consider whether the article’s assertion that appellee committed welfare fraud
was defamatory. An article is defamatory if it
tends to blacken the memory of the dead or . . . tends to injure a living person’s
reputation and thereby expose the person to public hatred, contempt or ridicule, or
financial injury or to impeach any person’s honesty, integrity, virtue, or reputation
–14–
or to publish the natural defects of anyone and thereby expose the person to public
hatred, ridicule, or financial injury.
TEX. CIV. PRAC. & REM. CODE ANN. § 73.001. Falsely accusing a person of a crime is
considered defamation per se. See Lipsky, 460 S.W.3d at 596.
Part of the article’s gist was that appellee had lied to HHSC to receive SNAP benefits of
“a cool $10,276” to which she was not entitled under the law. Appellee presented a prima facie
case that this allegation was false. Unlawful receipt of SNAP benefits in this amount is a felony.
See 7 U.S.C. § 2024(b), (c); TEX. HUM. RES. CODE ANN. § 33.011(a), (b) (West 2013); TEX.
PENAL CODE ANN. § 31.03(e)(4) (West Supp. 2014).
We conclude appellee presented a prima facie case by clear and specific evidence that the
article’s gist was defamatory because it falsely accused her of committing a crime.
Whether the Publication Was Privileged
Section 73.002 of the Texas Civil Practice and Remedies Code provides that certain
communications are privileged for periodical publishers.
(a) The publication by a newspaper or other periodical of a matter covered by this
section is privileged and is not a ground for a libel action. . . .
(b) This section applies to:
....
(2) reasonable and fair comment on or criticism of an official act of a
public official or other matter of public concern published for general
information.
TEX. CIV. PRAC. & REM. CODE ANN. § 73.002 (West 2011). This privilege extends to
“reasonable and fair comment on or criticism” of a matter of public concern. However, false
statements of fact concerning a person that are defamatory are not protected by the privilege.
Golden Bear Distrib. Sys. of Tex., Inc. v. Chase Revel, Inc., 708 F.2d 944, 949 (5th Cir. 1983);
Davila v. Caller Times Pub. Co., 311 S.W.2d 945, 947 (Tex. Civ. App.—San Antonio 1958, no
writ). To the extent that the article is comment or criticism of SNAP, it is privileged. However,
–15–
to the extent it states falsely that appellee committed fraud on HHSC by making false statements
in applying for SNAP benefits, it is not privileged.
We conclude appellee presented a prima facie case by clear and specific evidence that the
article’s defamatory statements that she had committed welfare fraud were not privileged.
Fault
Appellee also had to make a prima facie case that appellants acted with the requisite
degree of fault.10 “A private individual need only prove negligence.” Lipsky, 460 S.W.3d at 593.
“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., 99 S.W.3d at 837 (quoting RESTATEMENT (SECOND) OF TORTS § 580B
cmt. g). The following factors may be considered in determining the thoroughness of the check
that a reasonable person would make before publishing a statement: (1) the time element; (2) the
nature of the interests the defendant was seeking to promote by publishing the communication;
and (3) the extent of the damage to the plaintiff’s reputation, or the injury to his sensibilities that
would be produced if the communication proved to be false. Id. (citing RESTATEMENT (SECOND)
OF TORTS § 580B cmt. h).
In this case, nothing indicates the newsworthiness of the article was time sensitive. The
subject of the article, fraud by an applicant for government benefits, did not compel hurried
publication. The damage to appellee’s reputation in this case was great, as shown by her
10
Lipsky appears to be internally inconsistent on whether negligence is an element the plaintiff must establish to avoid dismissal under the
TCPA. At one point, the supreme court states, “In a defamation case that implicates the TCPA, pleadings and evidence that establishes the facts
of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff should be sufficient to resist a
TCPA motion to dismiss.” Lipsky, 460 S.W.3d at 591. The element of negligence or other fault is noticeably absent from this statement. Later
in the opinion, while listing the elements of a defamation cause of action, the supreme court lists “the requisite degree of fault” and states, “A
private individual need only prove negligence . . . .” Id. at 593. Although the opinion states that fault is an element of a defamation claim, the
court did not discuss that element in its analysis determining the trial court did not abuse its discretion by denying the defendant’s motion to
dismiss. See id. at 593–96. However, it does not appear that the movant for dismissal in that case asserted the plaintiff failed to establish a prima
facie case of negligence. See id.; see also In re Lipsky, 411 S.W.3d 530 (Tex. App.—Fort Worth 2013, orig. proceeding), mand. denied, 460
S.W.3d 579 (Tex. 2015). Therefore, whether the claimant established the element of fault may not have been before the supreme court. This
Court has determined that fault, either negligence or actual malice, is an essential element that the plaintiff must establish by clear and specific
evidence to overcome a motion to dismiss under the TCPA. See Young v. Krantz, 434 S.W.3d 335, 343–44 (Tex. App.—Dallas 2014, no pet.).
–16–
pleading and testimony. Therefore, appellants should have had the opportunity to conduct a
thorough check of the veracity of the article.
The editor of D Magazine and the Community Engagement Manager of D Magazine
Partners, L.P. testified in their affidavits that they checked the veracity of the article by
discussing with the author her interview of two HHSC officers “and confirming that the
substance of the interviews was accurately stated.” The editor and community engagement
manager also testified they examined:
a change-of-address letter filed by appellee in a lawsuit showing her address had
changed from Irving to Bryn Mawr Drive in Dallas;
an affidavit of indigency filed by appellee in August 2012 in a lawsuit stating that
her address was on La Cabeza Drive;
the Dallas Central Appraisal District’s website, which showed appellee’s fiancé’s
house was appraised at $1.15 million;
Dallas County property records listing multiple properties belonging to appellee’s
daughter’s living trust;11
Collin County and Texas Department of Public Safety criminal records regarding
appellee; and
a blank SNAP benefits application form.
Appellee testified in her affidavit that someone claiming to be the editor of D Magazine called
her and said the magazine was publishing an article about her committing welfare fraud.
Appellee said the editor did not ask her about any of the specific statements that appeared in the
article.12
11
Attached to the editor’s affidavit was a document from the website of Dallas Central Appraisal District showing there were eight
properties in the living trust, not nine as the article stated.
12
The editor also testified that he contacted appellee to ask for her side of the story. He stated that appellee said she did not believe he was
the editor of D Magazine and explained she had a stalker. The editor said he told appellee to “Google” D Magazine’s front desk number and call
him back, but she never returned his call. We do not consider this evidence because it rebuts appellee’s version of events. Because the issue is
whether appellee established a prima facie case, we do not consider evidence rebutting the evidence in support of her case. See TEX. CIV. PRAC.
& REM. CODE ANN. § 27.005(c).
–17–
Appellee pleaded and testified in her affidavit that her fiancé’s ex-girlfriend, who had
been harassing her, placed two telephone calls to HHSC and pretended to be appellee, using
appellee’s name, address, and social security number.13 Transcripts of HHSC’s recordings of the
telephone calls show the caller obtained much of the information about appellee’s SNAP benefits
account that appeared in the article that was attributed to HHSC’s employees, including the
amount of benefits appellee received and the stores and times that she spent SNAP funds.14 At
the end of the second telephone call, the caller told HHSC that the caller was an investigative
reporter. The editor and community engagement manager stated in their affidavits that they
verified the truth of the factual statements in the article in part through their “discussions with the
freelance author regarding her interview of two HHSC officers cited in the article and confirming
that the substance of the interviews was accurately stated.” This statement, combined with
appellee’s testimony about the telephone calls to HHSC from her harasser pretending to be
appellee, indicates the freelance author may have been appellee’s harasser.15
This evidence indicates appellants did not act reasonably in checking the truth or falsity
of the defamatory character of the communication before publishing the article. The evidence in
support of appellee’s libel claim shows the editor did not tell appellee the specific statements in
the article when seeking her side of the story. His affidavit indicates he and the community
engagement manager did nothing to check the credibility of the anonymous author who may
13
Appellee stated in her affidavit that she obtained from HHSC recordings of telephone calls to HHSC concerning her benefits. Appellee
testified that, other than the calls she made, she recognized the voice of the caller on the recordings as that of her harasser.
14
The transcripts of the telephone calls do not contain information about the date of appellee’s renewal-of-benefits application or that the
application “lists $135 in a checking account . . . and $35 in expenses for the Suzuki.” The article states this information was obtained from “the
HHSC eligibility department officer.” The record does not disclose the circumstances under which this information was obtained from the
eligibility department officer. All of the information in the article about appellee’s SNAP benefits account was confidential, and it is a criminal
offense to solicit such information from an HHSC employee other than “for purposes directly connected with the administration of the
department’s assistance programs.” TEX. HUM. RES. CODE ANN. § 12.003 (West 2013).
15
The editor testified that the freelance author’s name was not the same as the woman appellee identified as her harasser. We do not
consider this evidence at this stage of the litigation because the question is whether appellee established a prima facie case of the element of
negligence by clear and specific evidence, not whether appellants presented evidence tending to rebut the prima facie case. See TEX. CIV. PRAC.
& REM. CODE ANN. § 27.005(c).
–18–
have been appellee’s harasser. The evidence also indicates they did not confirm the truth of the
interviews of the anonymous author with the HHSC employees by contacting them. A
reasonable deduction from the evidence is that if the editor and community engagement manager
had taken these steps, they would have learned that the article’s assertion that appellee “must
have been less than forthcoming,” i.e., that she committed welfare fraud, was false.
We conclude the pleadings and affidavits established a prima facie case of the element of
negligence by clear and specific evidence.
Damages
Appellee pleaded that appellants committed libel per se by falsely stating she committed
a crime. See Lipsky, 460 S.W.3d at 596 (accusing someone of a crime is defamation per se).
“When an offending publication qualifies as defamation per se, a plaintiff may recover general
damages without proof of any specific loss.” Id. As discussed above, a reasonable person could
read the article and conclude the article accused appellee of committing welfare fraud, which is a
crime under federal and state law. Because the defamation was defamation per se, “actual
damage is not an essential element of the claim to which the TCPA’s burden of clear and specific
evidence might apply.” Id.
We conclude appellee presented a prima facie case by clear and specific evidence of each
element of her cause of action for libel. We overrule appellants’ first issue.
AFFIRMATIVE DEFENSES
In their second issue, appellants contend the trial court erred by denying their motion to
dismiss because appellants “established the essential elements of one or more affirmative
defenses by a preponderance of the evidence.” In making this determination, the court considers
all the evidence, that is, the pleadings and supporting and opposing affidavits. See TEX. CIV.
–19–
PRAC. & REM. CODE ANN. §§ 27.005(d), .006(a). Appellants assert they proved two affirmative
defenses: truth, and the fair comment qualified privilege.
Truth
Section 73.005 of the Texas Civil Practice and Remedies Code codifies the traditional
rule that “[t]he truth of the statement in the publication on which an action for libel is based is a
defense to the action.” TEX. CIV. PRAC. & REM. CODE ANN. § 73.005 (West 2011). Appellants
assert the pleadings and evidence establish the substantial truth of the factual statements in the
article. Appellee was staying in a $1.15 million house while receiving SNAP benefits. The
house was only a half block outside the city limits of University Park and was in the Highland
Park school district. Even if appellee was not convicted of theft, she pleaded guilty and nolo
contendere to theft charges and was placed on community supervision for theft. Eight properties
were in appellee’s daughter’s living trust. And appellee used her parents’ address for her mailing
address on the application for renewal of benefits and on an affidavit of indigency filed in a civil
court case and not the address near University Park where she was actually living at the time.
However, the record contains no evidence to support the truth of the allegation that
appellee made false statements on the application for renewal of the benefits. Appellants did not
allege in their pleading or set forth in their affidavits what appellee actually stated in the
application. Appellants provided the trial court a blank copy of an application for SNAP
benefits. The substance of the form indicates it is the form for an initial application of benefits.
But the application does not state it is the form used for renewal of benefits, and appellants
presented no other evidence that the same form was used for renewal of benefits at the time
appellee applied for renewal of benefits. Because appellants presented no evidence that they had
knowledge of what appellee was required to tell HHSC when applying for a renewal of SNAP
–20–
benefits, they also presented no evidence that the article spoke truthfully about the information
appellee failed to disclose to HHSC when renewing her application for benefits.16
We conclude appellants failed to establish by a preponderance of the evidence that the
implications in the article that appellee presented false information by failing to disclose required
information to HHSC was true.
Fair Comment Privilege
Appellants also assert they established by a preponderance of the evidence that appellee’s
libel claim is barred by the statutory fair comment privilege. Section 73.002 of the Texas Civil
Practice and Remedies Code provides that a publication in a periodical is privileged and not a
ground for a libel action if it is a “reasonable and fair comment on or criticism of . . . [a] matter
of public concern published for general information.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 73.002(a), (b)(2) (West 2011). The privilege is an affirmative defense to an action for
defamation. Lucas v. Burleson Publ’g Co., No. 10-01-00228-CV, 2004 WL 1177199, at *1
(Tex. App.—Waco May 26, 2004, no pet.) (mem. op.); see Bentley v. Bunton, 94 S.W.3d 561,
579 (Tex. 2002) (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 13 (1990)). However, a
false statement of fact concerning a person that is defamatory, even if made in a discussion of
matters of public concern, is not privileged as fair comment. Golden Bear Distrib. Sys. of Tex.,
Inc. v. Chase Revel, Inc., 708 F.2d 944, 949 (5th Cir. 1983); Davila v. Caller Times Pub. Co.,
311 S.W.2d 945, 947 (Tex. Civ. App.—San Antonio 1958, no writ).
Appellants argue they established the fair comment privilege because the article was
comment or criticism about SNAP’s allowing a woman who lived in a $1.15 million home to
obtain taxpayer-funded assistance designed to aid the poor. If that was the extent of the article,
16
The article states, “[Appellee’s] October SNAP renewal lists $135 in a checking account, according to the HHSC eligibility officer, and
$35 in expenses for the Suzuki [appellee’s automobile].” The record contains no evidence of the truth of this statement. The record also contains
no evidence that appellee was financially subsidized by her fiancé or that she had any knowledge of, interest in, or received any benefit from the
properties in her daughter’s living trust.
–21–
then the article might be privileged as fair comment or criticism. However, the article went on to
identify the woman as appellee and assert she had been “less than forthcoming” with HHSC
about her status, which is an assertion that appellee lied on the application form for renewal of
benefits, which is a crime. We conclude appellants failed to establish the qualified privilege of
fair comment by a preponderance of the evidence.
We overrule appellants’ second issue.
ATTORNEY’S FEES
In their third issue, appellants contend we should remand the cause to the trial court for
determination and award of their attorney’s fees and costs. Section 27.009 of the TCPA
provides, “If the court orders dismissal of a legal action under this chapter, the court shall award
to the moving party: (1) court costs, reasonable attorney’s fees, and other expenses incurred in
defending against the legal action as justice and equity may require . . . .” TEX. CIV. PRAC. &
REM. CODE ANN. § 27.009(a)(1) (West 2015). “‘Legal action’ means a lawsuit, cause of action,
petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that
requests legal or equitable relief.” Id. § 27.001(6).
Appellants’ motion to dismiss prayed for an award of “reasonable attorneys’ fees, costs
and expenses.” The trial court’s order on the motion to dismiss granted the motion on appellee’s
claims under the DTPA, the ITEPA, and appellee’s claims brought on her daughter’s behalf and
ordered that appellee take nothing on those claims. The order also stated that the motion was
denied “in all other respects as the Court finds that Plaintiff has established by clear and specific
evidence a prima facie case of defamation.”
Appellants assert the trial court erred by denying their request for reasonable and
necessary attorney’s fees and costs on appellee’s libel claim on her own behalf because the trial
court erred by denying the motion to dismiss on that claim. Appellants were not entitled to
–22–
attorney’s fees and costs on that claim unless they prevailed on their motion to dismiss that
claim. See id. § 27.009(a)(1). Appellants have not shown the trial court erred by denying the
motion to dismiss that claim. Because appellants have not prevailed on their motion to dismiss
the libel claim, the trial court did not err by denying the request for attorney’s fees and costs as to
that claim. See Reyna v. Baldridge, No. 04-14-00740-CV, 2015 WL 4273265, at *7 (Tex.
App.—San Antonio July 15, 2015, no pet. h.) (mem. op.).
Appellants assert the trial court erred by not awarding them their fees on the legal actions
the trial court dismissed, the DTPA and IETPA legal actions and the legal actions appellee
brought on her daughter’s behalf. Under section 51.014(a)(12), we have jurisdiction to review
the trial court’s denial of a motion to dismiss filed under the TCPA. TEX. CIV. PRAC. & REM.
CODE ANN. § 51.014(a)(12) (West 2015). Appellants’ claim for attorney’s fees on these legal
actions relates to the trial court’s grant of the motion to dismiss. Our jurisdiction under section
51.014 does not extend to the claim for attorney’s fees on these legal actions. See Bally Total
Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001) (legislature intended section 51.014
be strictly construed as narrow exception to general rule that only final judgments are
appealable).
We overrule appellants’ third issue.
CONCLUSION
We affirm the trial court’s order.
/Lana Myers/
LANA MYERS
JUSTICE
Brown, J., dissenting
–23–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
D Magazine Partners, L.P. d/b/a D On Appeal from the 134th Judicial District
Magazine, Magazine Limited Partners, L.P. Court, Dallas County, Texas
and Allison Media, Inc., Appellants Trial Court Cause No. DC-14-01346-G.
Opinion delivered by Justice Myers, Justices
No. 05-14-00951-CV V. Francis and Brown participating.
Janay Bender Rosenthal, Appellee
In accordance with this Court’s opinion of this date, the order of the trial court is
AFFIRMED.
It is ORDERED that appellee Janay Bender Rosenthal recover her costs of this appeal
from appellants D Magazine Partners, L.P. d/b/a D Magazine, Magazine Limited Partners, L.P.
and Allison Media, Inc.
Judgment entered this 28th day of August, 2015.
–24–