Jordan Rogers v. Benjamin David Bryan
This text of Jordan Rogers v. Benjamin David Bryan (Jordan Rogers v. Benjamin David Bryan) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00338-CV __________________
JORDAN ROGERS, Appellant
V.
BENJAMIN DAVID BRYAN, Appellee
__________________________________________________________________
On Appeal from the 457th District Court Montgomery County, Texas Trial Cause No. 21-04-05679-CV __________________________________________________________________
MEMORANDUM OPINION
In this accelerated interlocutory appeal, pro se Appellant Jordan Rogers
(“Rogers”) appeals the trial court’s order denying her motion to dismiss a
counterclaim filed by Appellee Benjamin David Bryan (“Benjamin” or “Ben”) who
is a defendant in the lawsuit filed by Rogers. Rogers filed her motion to dismiss
pursuant to the Texas Citizen’s Participation Act (“TCPA”). See Tex. Civ. Prac. &
Rem. Code Ann. § 27.001-27.011, 51.014(a)(12) (authorizing interlocutory appeal
1 of an order denying motion to dismiss filed under TCPA section 27.003).1 We
affirm.
Procedural Information
Rogers filed a pro se original petition against Benjamin for breach of contract
and intentional infliction of emotional distress.2 Rogers alleged that she purchased a
golden retriever in January 2021 and offered the dog for sale to Benjamin in April
2021. According to the petition, Rogers then “made an oral offer of her dog” to
Benjamin “to accept her dog for free” under the condition that he take adequate care
of the dog, and Benjamin requested a seven-day trial period with the dog. Rogers
alleged that before Benjamin accepted the offer to keep the dog for “free,” she
requested payment for the dog or return of the dog, but Benjamin refused. Rogers
alleged in the petition that when she communicated that she would involve law
enforcement to recover the dog, Benjamin sent her “a threatening text with videos
and photographs of his criminal sexual indecency with a child by exposure
1 The TCPA applies to “a legal action [that] is based on or is in response to a party’s exercise of the right of free speech, right to petition, or right of association or arises from any act of that party in furtherance of the party’s communication or conduct described by Section 27.010(b)[.]” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a). 2 Two days after the trial court signed the order denying Rogers’s TCPA Motion to Dismiss, Rogers filed a Second Amended Petition and Request for Disclosure which added Benjamin’s ex-wife, Lindsay Theresa Bryan, as a defendant. Because Lindsay Theresa Bryan was not a party to the suit at the time the TCPA Motion to Dismiss was denied, Lindsay Theresa Bryan is not a party to this appeal. 2 December 6, 2020 incident[]” and a video of him participating in a sexual act
involving another dog. Rogers alleged she notified law enforcement.
Rogers alleged in the petition that six days into Benjamin’s trial period with
her dog, she sent a cell phone text to Benjamin “revoking her free offer with
conditions and seven day trial period and communicated a new offer of selling the
dog” to Benjamin. According to Rogers, she revoked her offer before Benjamin
clearly accepted the dog or paid any consideration, and Benjamin was in breach of
contract because he neither returned her dog nor paid her consideration for the dog.
Rogers sought actual damages, recission, exemplary damages, court costs, and pre-
judgment and post-judgment interest. Rogers also alleged Benjamin inflicted severe
emotional distress on her by sending her pornography, and she sought actual
damages, exemplary damages, court costs, and pre-judgment and post-judgment
interest on her intentional infliction of emotional distress claim. Rogers attached an
exhibit to her original petition which is an 8 1/2” x 11” printout of a photograph on
which she typed “Defendant pedophile Ben Bryan[,]” and underneath that phrase is
what appears to be a photograph of a man in a vehicle, with two children in car seats
in the back seat, and a dog sitting in the passenger seat, and then she also typed on
it the words “Felony Arrest Warrant.”3
3 In her petition, Rogers does not refer to the attached exhibit for any purpose, nor does she provide an explanation of the source of the exhibit. Additionally, throughout the petition Rogers refers to Benjamin as “Defendant child molester[,]” 3 Benjamin filed an Original Pro Se Answer, Jury Demand and Counter-Claim,
and he alleged that Rogers’s pleadings were “entirely false, libelous and frivolous in
violation of Chapters 9 & 10 of the Texas Civil Practice[] & Remedies Code.”4
According to Benjamin, Rogers asked him to take custody of the dog to prevent
further physical abuse that the dog was experiencing, and Benjamin alleged he did
not have a contract with Rogers. Benjamin alleged that Rogers’s intentional
infliction of emotional distress claims were entirely false and baseless, and that the
trial court should strike her petition and assess penalties and sanctions. Benjamin
asserted a counterclaim against Rogers for defamation, alleging that Rogers had
“engaged in an ongoing and unlawful scheme to publish and otherwise communicate
these false and defamatory claims to the public for the purpose of financial gain[,]”
and Benjamin sought actual and punitive damages from Rogers.
Rogers filed an Original Answer to the counterclaim and generally denied the
counterclaim, asserted special exceptions and various defenses (including “absolute
privilege, judicial privilege, qualified privilege, and common-law qualified
“Defendant sexual predator[,]” “Defendant pervert[,]” “Defendant sex offender[,]” “Defendant pedophile[,]” “Defendant sex trafficker[,]” “Defendant sex addict[,]” “Defendant drug addict[,]” “Defendant crook[,]” “Defendant con artist[,]” “Defendant thief[,]” “Defendant swindler[,]” “Defendant liar[,]” “Defendant criminal[,]” “Defendant defalcator[,]” and “Defendant coward[.]” 4 Benjamin’s original answer and counterclaim was filed pro se, but after Rogers filed her TCPA Motion to Dismiss and prior to Benjamin filing his first amended answer and counterclaim, an attorney appeared for Benjamin and filed a Notice of Appearance of designated counsel. 4 privilege[]”), and asked the trial court to dismiss Benjamin’s counterclaim and assess
costs and sanctions against him. Rogers subsequently filed a motion to dismiss
Benjamin’s defamation counterclaim pursuant to the TCPA (“TCPA Motion”).
Rogers alleged in the TCPA Motion that “[i]t is only a matter of time before a
Montgomery County Grand Jury issues a felony indictment against [Benjamin] and
when he is found guilty, he will be sentenced to two to ten years in the Texas State
Penitentiary at Huntsville.” Rogers argued that Benjamin’s claims were based on her
exercise of her right to petition and her exercise of her right of free speech.
According to Rogers, the statements she made about Rogers were about matters of
public concern because
[c]rimes are by definition “a matter of public concern,” especially the crime of indecency with a child that requires upon conviction, the defendant’s personally identifiable information be entered into the State’s sex offender registration program, and notice sent to various entities warning of a sex offender’s location as a matter of public concern.
In her TCPA Motion, Rogers alleged that Benjamin’s counterclaim “is void of any
Free access — add to your briefcase to read the full text and ask questions with AI
In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00338-CV __________________
JORDAN ROGERS, Appellant
V.
BENJAMIN DAVID BRYAN, Appellee
__________________________________________________________________
On Appeal from the 457th District Court Montgomery County, Texas Trial Cause No. 21-04-05679-CV __________________________________________________________________
MEMORANDUM OPINION
In this accelerated interlocutory appeal, pro se Appellant Jordan Rogers
(“Rogers”) appeals the trial court’s order denying her motion to dismiss a
counterclaim filed by Appellee Benjamin David Bryan (“Benjamin” or “Ben”) who
is a defendant in the lawsuit filed by Rogers. Rogers filed her motion to dismiss
pursuant to the Texas Citizen’s Participation Act (“TCPA”). See Tex. Civ. Prac. &
Rem. Code Ann. § 27.001-27.011, 51.014(a)(12) (authorizing interlocutory appeal
1 of an order denying motion to dismiss filed under TCPA section 27.003).1 We
affirm.
Procedural Information
Rogers filed a pro se original petition against Benjamin for breach of contract
and intentional infliction of emotional distress.2 Rogers alleged that she purchased a
golden retriever in January 2021 and offered the dog for sale to Benjamin in April
2021. According to the petition, Rogers then “made an oral offer of her dog” to
Benjamin “to accept her dog for free” under the condition that he take adequate care
of the dog, and Benjamin requested a seven-day trial period with the dog. Rogers
alleged that before Benjamin accepted the offer to keep the dog for “free,” she
requested payment for the dog or return of the dog, but Benjamin refused. Rogers
alleged in the petition that when she communicated that she would involve law
enforcement to recover the dog, Benjamin sent her “a threatening text with videos
and photographs of his criminal sexual indecency with a child by exposure
1 The TCPA applies to “a legal action [that] is based on or is in response to a party’s exercise of the right of free speech, right to petition, or right of association or arises from any act of that party in furtherance of the party’s communication or conduct described by Section 27.010(b)[.]” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a). 2 Two days after the trial court signed the order denying Rogers’s TCPA Motion to Dismiss, Rogers filed a Second Amended Petition and Request for Disclosure which added Benjamin’s ex-wife, Lindsay Theresa Bryan, as a defendant. Because Lindsay Theresa Bryan was not a party to the suit at the time the TCPA Motion to Dismiss was denied, Lindsay Theresa Bryan is not a party to this appeal. 2 December 6, 2020 incident[]” and a video of him participating in a sexual act
involving another dog. Rogers alleged she notified law enforcement.
Rogers alleged in the petition that six days into Benjamin’s trial period with
her dog, she sent a cell phone text to Benjamin “revoking her free offer with
conditions and seven day trial period and communicated a new offer of selling the
dog” to Benjamin. According to Rogers, she revoked her offer before Benjamin
clearly accepted the dog or paid any consideration, and Benjamin was in breach of
contract because he neither returned her dog nor paid her consideration for the dog.
Rogers sought actual damages, recission, exemplary damages, court costs, and pre-
judgment and post-judgment interest. Rogers also alleged Benjamin inflicted severe
emotional distress on her by sending her pornography, and she sought actual
damages, exemplary damages, court costs, and pre-judgment and post-judgment
interest on her intentional infliction of emotional distress claim. Rogers attached an
exhibit to her original petition which is an 8 1/2” x 11” printout of a photograph on
which she typed “Defendant pedophile Ben Bryan[,]” and underneath that phrase is
what appears to be a photograph of a man in a vehicle, with two children in car seats
in the back seat, and a dog sitting in the passenger seat, and then she also typed on
it the words “Felony Arrest Warrant.”3
3 In her petition, Rogers does not refer to the attached exhibit for any purpose, nor does she provide an explanation of the source of the exhibit. Additionally, throughout the petition Rogers refers to Benjamin as “Defendant child molester[,]” 3 Benjamin filed an Original Pro Se Answer, Jury Demand and Counter-Claim,
and he alleged that Rogers’s pleadings were “entirely false, libelous and frivolous in
violation of Chapters 9 & 10 of the Texas Civil Practice[] & Remedies Code.”4
According to Benjamin, Rogers asked him to take custody of the dog to prevent
further physical abuse that the dog was experiencing, and Benjamin alleged he did
not have a contract with Rogers. Benjamin alleged that Rogers’s intentional
infliction of emotional distress claims were entirely false and baseless, and that the
trial court should strike her petition and assess penalties and sanctions. Benjamin
asserted a counterclaim against Rogers for defamation, alleging that Rogers had
“engaged in an ongoing and unlawful scheme to publish and otherwise communicate
these false and defamatory claims to the public for the purpose of financial gain[,]”
and Benjamin sought actual and punitive damages from Rogers.
Rogers filed an Original Answer to the counterclaim and generally denied the
counterclaim, asserted special exceptions and various defenses (including “absolute
privilege, judicial privilege, qualified privilege, and common-law qualified
“Defendant sexual predator[,]” “Defendant pervert[,]” “Defendant sex offender[,]” “Defendant pedophile[,]” “Defendant sex trafficker[,]” “Defendant sex addict[,]” “Defendant drug addict[,]” “Defendant crook[,]” “Defendant con artist[,]” “Defendant thief[,]” “Defendant swindler[,]” “Defendant liar[,]” “Defendant criminal[,]” “Defendant defalcator[,]” and “Defendant coward[.]” 4 Benjamin’s original answer and counterclaim was filed pro se, but after Rogers filed her TCPA Motion to Dismiss and prior to Benjamin filing his first amended answer and counterclaim, an attorney appeared for Benjamin and filed a Notice of Appearance of designated counsel. 4 privilege[]”), and asked the trial court to dismiss Benjamin’s counterclaim and assess
costs and sanctions against him. Rogers subsequently filed a motion to dismiss
Benjamin’s defamation counterclaim pursuant to the TCPA (“TCPA Motion”).
Rogers alleged in the TCPA Motion that “[i]t is only a matter of time before a
Montgomery County Grand Jury issues a felony indictment against [Benjamin] and
when he is found guilty, he will be sentenced to two to ten years in the Texas State
Penitentiary at Huntsville.” Rogers argued that Benjamin’s claims were based on her
exercise of her right to petition and her exercise of her right of free speech.
According to Rogers, the statements she made about Rogers were about matters of
public concern because
[c]rimes are by definition “a matter of public concern,” especially the crime of indecency with a child that requires upon conviction, the defendant’s personally identifiable information be entered into the State’s sex offender registration program, and notice sent to various entities warning of a sex offender’s location as a matter of public concern.
In her TCPA Motion, Rogers alleged that Benjamin’s counterclaim “is void of any
facts to any elements of defamation, no clear and specific evidence of the facts of
when, where, and what was said, the defamatory nature of the statements, and how
they damaged him” as required by section 27.005(c) of the Texas Civil Practice and
Remedies Code. Rogers further argued that, even if Benjamin met his burden by
establishing a prima facie case for each essential element of defamation, her
statements and publications were made in the course of judicial proceedings and are 5 privileged, and her defense of “absolute judicial privilege” bars Benjamin’s
defamation claims.
Benjamin filed a First Amended Answer and Counter-Claim, the live pleading
at the time of the trial court’s ruling on Rogers’s TCPA Motion, wherein Benjamin
alleged the following:
Plaintiff/Counter-Defendant Rogers has engaged in an ongoing and unlawful scheme to publish and otherwise communicate the false and defamatory claims detailed in her Original Petition to the public. Rogers, and/or her agents, have done so in multiple ways, including by publishing the defamatory remarks in her petition to [Benjamin]’s neighbors, friends, and family. Rogers has also sent e-mails, text message, social media messages, and made social media posts in which she asserts as fact the vile and false claims in her petition. Untrue claims of [t]hese actions constitute unlawful slander, libel, and defamation under law. Rogers’ written communications constitute Statutory Libel, because her statements injured [Benjamin]’s reputation, thus exposing him to public hatred, contempt, and/or ridicule and impeached his honesty, integrity, virtue, and reputation. The despicable claims Rogers has made—that [Benjamin] has engaged in sexual activity with children, bestiality, and other sexual misconduct and criminal offenses—are common law defamation per se. Rogers, and her agents, published these statements despite either knowing they were false, or with reckless disregard for their falsity, solely to injure [Benjamin]. [Benjamin] seeks the recovery of both actual and punitive damages from Rogers for such wrongful conduct as provided by law.
Benjamin also filed a motion for sanctions against Rogers.
Benjamin filed a response to the TCPA Motion. Therein, Benjamin argued
that the trial court should deny the TCPA Motion because Rogers “has misused her
‘Right to Petition’ and/or ‘Right to Free Speech’ as a vehicle to publish false and
defamatory comments” against Benjamin, and the TCPA Motion should be denied 6 because he could establish a prima facie case of defamation per se against Rogers,
and Rogers was unable to establish an affirmative defense. Benjamin attached (1)
his unsworn declaration; (2) an unsworn declaration of his ex-wife, Lindsay Bryan
(“Lindsay”), along with exhibits to her declaration; and (3) an affidavit of his
neighbor, Daniel Ogden Jones. According to Benjamin, his exhibits established the
facts of when, where, and what was said, the defamatory nature of the statements,
and how they damaged him. Benjamin argued that the exhibits “show the
communications [he] complains of—claims of criminal offenses and sexual
misconduct—were made throughout April and May of 2021 via hard copy and
digital communication (e-mail and text messages).” Benjamin argued that the
defamatory nature of these communications is obvious from the face of the
statements and that the statements are so obviously harmful that general damages
may be presumed.
As for Rogers’s affirmative defense of absolute judicial privilege, Benjamin
argued that even though his defamation claim includes the defamatory
communications made by Rogers in Rogers’s petition, not all of Rogers’s
defamatory communications were made in her petition, and that the exhibits attached
to his response demonstrate that copies of Rogers’s petition were distributed by
Rogers in Benjamin’s neighborhood, they were emailed to his ex-wife, Lindsay, and
dropped off at his ex-wife’s residence. Additionally, Benjamin contends the judicial
7 privilege does not apply because Rogers’s defamatory communications have nothing
to do with the claims she alleged in her petition. Citing to Landry’s, Inc. v. Animal
Legal Defense Fund, 631 S.W.3d 40 (Tex. 2021), Benjamin also argued that absolute
judicial privilege does not extend to communications made outside the courtroom.
In Benjamin’s unsworn declaration attached to his response, he stated the
following:
Jordan Rogers has published numerous communications to multiple persons in which she claims as fact that I am or have, among other things, been/am being investigated by law enforcement agencies for sexual crimes against a minor, have engaged in sexual acts with a minor, that I am guilty of sexual crimes involving minors, that I have sent her videos and photographs of child pornography, and that I am a child molester.
I recognize the email address [*******]@yahoo.com to be Jordan Rogers’s e-mail address from the numerous emails sent to my ex-wife and I including documents and notifications pertaining to this lawsuit. In addition, Jordan sent me vaccination records for Bo the golden retriever after dropping him off at my house.
Plaintiff’s Original Petition contains these false and defamatory statements and copies of this document were distributed to many, if not all, of my neighbors at approximately 1:00 am on or about May 5, 2021 by Rogers and/or her agents. This was before I was even served notice of process in this case.
All of these statements are false and were made by Rogers, or her agents. Rogers and her agents further made these statements despite knowing that they are false or made them with reckless disregard for their falsity.
In Lindsay’s unsworn declaration, which was attached as an exhibit to
Benjamin’s response, Lindsay stated the following: 8 I have received numerous communications from Jordan Rogers in which she claims as fact that Benjamin David Bryan is or has, among other things, been/ is being investigated by law enforcement agencies for sexual crimes against a minor, engaged in sexual acts with a minor, guilty of sexual crimes involving minors, and is a child molester.
Attached as Exhibit A to this Unsworn Declaration is/ are e-mail(s) Jordan Rogers has sent me in which she makes these claims. I recognize the e-mail address shown in these e-mails, “[*******]@yahoo.com,” to be hers because it is her name, has her signature, and is the same e- mail address she uses as her e-service address with the Court in her petition. She frequently e-mails me fillings [sic] from this case.
On or about May 5, 2021, I received several copies of Rogers’ Petition in this lawsuit at my house and sent to me by her via e-mail. Exhibit B is a photo of some of those copies of the petition in this lawsuit that were left outside the door of my residence, and a close-up photo of the last page of the petition, claiming that Benjamin David Bryan is a child molester with a felony arrest warrant. When I returned home later that day, two more copies of the document were left on my front porch.
Exhibits A, B, and C are attached to Lindsay’s declaration. Exhibit A appears to be
an email from “Jordan Rogers <[*******]@yahoo.com>” dated April 30, 2021,
addressed to Lindsay with the “subject” line stating “Subject: Ben Bryan arrested
for child molestation[.]” The body of the email stated the following:
Lindsay,
Your ex-husband Ben Bryan has been sued in the 457th Judicial District Court of Montgomery County. Please see attached PDF to review the Original Petition.
What is important to you is Ben Bryan is currently under criminal investigation for “indecency with a child by exposure,” which is a third- degree felony, punishable by 2 to 10 years in State prison.
9 After a Montgomery County Grand Jury convenes, Ben Bryan will be charged with “indecency with a child by exposure” and a felony arrest warrant will be issued for Ben Bryan. The details of his crime are explained in the attached Original Petition. Ben Bryan is 100% guilty as there are eyewitnesses, and videos that Ben Bryan created of the crime. All of this evidence is in possession of Montgomery County law enforcement.
The disturbing nature of Ben Bryan’s child molestation criminal case means there is an extremely high probability that [your children] []may have also been involved in other child molestation acts involving Ben Bryan.
Since you have lived at [] for at least 6 months, Montgomery County now has jurisdiction over the custody of your children. You need to immediately hire a family law attorney in Montgomery County and file a SAPCR (Suit Affecting Parent Child Relationship) in Montgomery County. When you file suit, file an Emergency Temporary Restraining Order ex parte, and have the documents sealed. Attach this Original Petition as your Exhibit A. The Judge will immediately grant you a 14- day TRO full custody possession order until the TRO oral hearing. More than likely, Ben Bryan will hire an attorney and his attorney will ask you for a Rule 11 to extend the TRO by a few weeks to allow them to prepare his defense for the TRO hearing. There is a high probability that you will win the TRO, which will become a TO (Temporary Order.) Request supervised visitation for Ben Bryan, he is too dangerous as a sexual predator to allow your [children] to be around him without supervision. Over the next several months, Ben Bryan will be arrested on felony charges, and when Ben Bryan is convicted, he will also have to register as a sex offender. At that time, you will be able to request termination of parental rights for Ben Bryan to permanently protect your children from his sexual deviance.
I know this is shocking news, and you wish it weren’t true, but you have to protect your children at this point. Ben Bryan knowingly and intentionally committed a felony act of indecency with a child; it was not the child’s fault, and only Ben Bryan is responsible for his criminal child sex act violations.
10 Sincerely,
Jordan Rogers
Exhibit B is also attached to Lindsay’s unsworn declaration. Exhibit B is described
by Lindsay as a photograph of the papers that were left on her front porch and it
shows a close-up of the last page of the petition Rogers filed against Benjamin
Bryan.
In Jones’s affidavit attached to Benjamin’s response, Jones (a neighbor who
lives in Benjamin’s neighborhood) stated the following:
My name is Daniel Ogden Jones, III. I am over the age of 18, am of sound mind, and capable of making this affidavit. The facts contained within this affidavit are true and correct and within my personal knowledge.
On the Morning of May 5, 2021, I found on my property some paperwork claiming that a man who lives in my neighborhood, Benjamin David Bryan was, among other things, a child molester who had engaged in sex crimes with minors.
Rogers filed a Reply to Defendant’s Response to the TCPA Motion and she
filed an affidavit from herself and from Mark Thuesen. Thuesen stated in his
affidavit that sometime in mid-April of 2021 he viewed phone videos and
photographs sent from Benjamin to Rogers through Snapchat software showing
Benjamin engaging in sexual activity with a child under five years old, and Thuesen
said he reported this to law enforcement. Thuesen also stated, in relevant part, that
Rogers was with Thuesen at his home in Conroe, Texas, on May 4th and May 5th
11 and Thuesen explained that Rogers could not have been “45 miles away” at
Benjamin Bryan’s house or “5 miles away” at Lindsay Bryan’s house, at the time
and dates alleged by Benjamin.
In her reply to Benjamin’s response, Rogers also objected to Benjamin’s
evidence. She argued that Jones’s affidavit was inadmissible on the grounds that the
affidavit referred to “paperwork[,]” but Jones did not attach the documents to which
he referred, and therefore, the affidavit also violated the best-evidence rule. She
argued the attached exhibits to Lindsay’s unsworn statement were not competent
evidence because Lindsay’s purported signature on the declaration was a forgery as
evidenced by a comparison of Lindsay’s signatures presented in Rogers’s reply.
Rogers also objected to Lindsay’s unsworn declaration because she did not identify
the “numerous communications” she referred to and that Exhibits A and B attached
to Lindsay’s unsworn declaration were not properly authenticated. Rogers objected
to Benjamin’s unsworn affidavit on the grounds that it contradicted his deemed
admissions, and he did not identify, authenticate, or attach the “numerous
communications” he referred to in the declaration, and he did not identify,
authenticate, or attach the documents he described as “numerous emails” and
“documents and notifications pertaining to this lawsuit[.]” Rogers also objected to
Benjamin’s affidavit because his statements about her email address and the dog’s
vaccinations were irrelevant, the declaration included factual and legal conclusions,
12 and the declaration was not based on Benjamin’s personal knowledge. Rogers also
argued that the Landry’s opinion “is only effective from the date the opinion is
delivered,” and that Benjamin made no allegations of defamation occurring after the
Landry’s decision. Rogers denied distributing her Original Petition outside the
courtroom but argued that even if she had, she “is authorized by law” to do so, and
she argued that the result in the Landry’s case carved out an exception that applied
to these facts.
Rogers filed her own affidavit wherein she stated she had never had contact
with Daniel Ogden Jones III and she had never been on his property, nor had she
placed any “paperwork” describing Benjamin as “a child molester who had engaged
in sex crimes with minors[]” on Jones’s property. Rogers also stated in her affidavit
that Benjamin “dodg[ed] service” of her petition for two weeks and that “[o]ne or
more copies of [her] Original Petition left on Defendant/Counter Plaintiff
[Benjamin] Bryan’s property could have easily been blown by the wind onto Daniel
Jones’[s] property, or another neighbor’s property.” According to Rogers’s affidavit,
she was never within five miles of Lindsay’s property and never placed the Original
Petition on Lindsay’s property, and she never wrote the email to Lindsay attached to
Benjamin’s response as Exhibit A and never emailed Exhibit A to Lindsay. Rogers
stated that because Benjamin was dodging service, she gave her process server
Lindsay’s address where Benjamin would pick up his children every week, and the
13 process server told Rogers that on or about May 5, 2021, he saw Benjamin inside
Lindsay’s house. According to Rogers, the process server thought he had identified
Benjamin in the house, but the man quickly hid, the process server “did what he
described as a ‘drop service,’ by dropping copies of [the] Original Petition” onto
Lindsay’s front porch. Rogers stated in her affidavit that after the process server
described the man in Lindsay’s house to Rogers, Rogers told the process server that
he had mistakenly served Lindsay’s live-in boyfriend and that the service was
invalid. Rogers stated that the process server did not go back to retrieve the copies
of the Original Petition. Rogers also stated that Lindsay’s signature on her unsworn
declaration is a forgery because it appeared to be different from the signature on
documents filed in Lindsay’s and Benjamin’s divorce proceeding, and she alleged
that Benjamin forged the signature. Rogers denied distributing copies of her Original
Petition to any of Benjamin’s neighbors on any day and she alleged she has “an alibi
from a witness who will swear under oath” that she was with him all night from 4:20
p.m. on May 4, 2021 through the morning of May 5, 2021 at 9:30 a.m. Rogers
specifically alleged in her affidavit that on December 6, 2020, while in a hotel room,
she “personally saw” Benjamin commit indecency with a child by exposure and
“personally saw” Benjamin videotape the incident with his cell phone. In the
affidavit, Rogers also gives the names and ages of Benjamin’s children. And Rogers
claims in her affidavit that she knows the identity of the child that Benjamin
14 “sexually molested, [but] for privacy reasons [she would] not disclose the child’s
name in a public document.” Rogers further stated in her affidavit that Benjamin
admitted to her “that he is a chronic abuser of marijuana and other illicit drugs[]”
and that he had “bragged to [her] on multiple occasions about his illicit drug abuse
in front of his children while inside his home.” She also claimed to have personally
witnessed Benjamin smoking marijuana at his home on April 7, 2021. She stated
that when she communicated to Benjamin that she would involve law enforcement
to recover her dog, Benjamin sent her “a threatening text message and videos and
photographs through the Snapchat software application of his sexual indecency with
a child by exposure crime that occurred on December 6, 2020.” Rogers stated that
Benjamin also sent her a video of him committing a sexual act with a dog. According
to Rogers, a Houston Police Officer contacted her because Benjamin had contacted
Houston Police “to falsely report” that she was “stealing his dog” when it was her
dog “that Defendant/Counter-Plaintiff [Benjamin] Bryan refused to return or pay
$7,300 for.” She averred that Benjamin “provided false and misleading statements
to law enforcement about his false ownership of [her] dog[]” and “intentionally and
recklessly requested that [she] should be arrested [for] attempting to recover [her]
dog.”
In a supplemental reply, Rogers objected to any live testimony or evidence
being admitted at the hearing that was set later that month “because the TCPA does
15 not authorize a trial court to consider such testimony[,]” she objected to Benjamin’s
counsel making any statements at the hearing because those statements are not
competent evidence, she stated she wanted “a running objection” to Benjamin
contradicting his deemed admissions, and she stated that she was making “a running
objection” to the application of the Landry’s decision because it did not apply
retroactively.
On October 5, 2021, Benjamin filed a Sur-Reply in Support of his Response
to Rogers’s TCPA Motion. Benjamin argued that Rogers’s first fourteen objections
should be struck. Benjamin argued that Rogers did not include a required statement
of requested relief in her original petition so his time to respond to her discovery
responses did not begin to run until the filing of her amended petition, and therefore,
his answers could not be late or deemed admitted, and the issue was resolved upon
the filing of his amended discovery responses. Benjamin argued in the alternative
that if the trial court determined Benjamin’s admissions deemed, that he be allowed
to withdraw the deemed admissions because he showed good cause and no undue
prejudice. According to Benjamin, his failure to sign the responses was an accident
and not intentional or the result of conscious indifference and allowing him to
withdraw the discovery responses would not delay trial or hinder the opposing
party’s ability to prepare for trial because Benjamin had already responded to the
discovery requests. Benjamin also attached to his Sur-Reply an unsworn declaration
16 from his counsel, Alexander Taylor (Taylor). Benjamin attached a copy of Taylor’s
email communication with Lindsay attaching a draft of Lindsay’s unsworn
declaration and asking Lindsay if it is true and correct for her to confirm, and a copy
of Lindsay’s response that said, “Yes all is correct.”
In her second reply to Benjamin’s Response, Rogers objected to Benjamin’s
Sur-Reply as untimely because it was filed three days before the hearing on her
motion to dismiss. She also objected to Taylor’s unsworn declaration on the basis
that it was testimony from an interested witness and his unsworn declaration was not
properly authenticated.
On October 6, 2021, Rogers filed a First Amended Petition and Request for
Disclosure asserting the same causes of action against Benjamin. Two days later, the
trial court held its hearing on Rogers’s TCPA Motion. Before the hearing on the
TCPA Motion, the trial court ordered Rogers, Benjamin, and Benjamin’s attorney to
appear at the hearing and the court issued a subpoena for Rogers to appear.
Rogers did not appear at the hearing despite being provided notice and having
a subpoena issued for her appearance. At the hearing, Benjamin’s counsel argued
that the evidence attached to his response to the TCPA Motion was “direct evidence
of who, what, when, where, why, and how[,]” for his defamation claim, and that the
evidence was sufficient to survive the TCPA Motion. The trial court took judicial
notice on the record that “there is no warrant ping notification that [] Benjamin David
17 Bryan has an active felony warrant[.]” The trial court found that the unsworn
declarations attached to Benjamin’s response to the TCPA Motion to Dismiss were
in proper form.5 The trial court noted on the record that Rogers had used “very
untraditional” and “abusive-type language[]” in her petition, that it was “unsettling”
that Rogers had made such serious allegations against Benjamin but had failed to
appear, and that Rogers could possibly face criminal charges as a result of her actions
in the case. The trial court struck Rogers’s pleadings except her TCPA Motion,
ordered that Rogers had thirty days to amend her petition to remove the “defamatory,
abusive language” and stated the revised petition should only be served on the
parties, granted Benjamin’s motion for sanctions against Rogers, and denied
Rogers’s TCPA Motion.6
5 In general, “an unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute[.]” Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a). Such a declaration must be in writing and must be subscribed as true under penalty of perjury. Id. § 132.001(c). The statute requires a jurat to appear in “substantially” the same form as the template jurat before an unsworn declaration becomes operative. Id. § 132.001(d). 6 The trial court heard Benjamin’s counsel testify as to the reasonable and necessary attorney’s fees for counsel to respond to the alleged defamatory pleadings, and the trial court granted Benjamin’s motion for sanctions and ordered that Rogers pay Benjamin $9,450 in attorney’s fees and $35,000 as a sanction against Rogers’s conduct. Rogers does not complain about the attorney’s fees or sanctions on appeal. In the written order granting Benjamin’s motion for sanctions, the trial court included the following findings: It is clear to the Court that the pleadings Rogers has filed with This Honorable Court were brought in bad faith and/or for the purposes of harassment. Additionally, Rogers was subpoenaed to attend the hearing on this Motion and to bring with her evidence to show that her 18 On October 13, 2021, the trial court signed an order denying Rogers’s TCPA
Motion. On October 21, 2021, the trial court signed a Final Amended Order on
Rogers[’s] Objections to Benjamin’s Response to her TCPA Motion to Dismiss and
denied each of her twenty-two objections. Rogers timely filed a notice of appeal.
Issues
In issue one, Rogers states “the TCPA Motion, hearing and ruling were
timely.” In issue two, she contends she met her initial burden demonstrating that the
legal action is based on or is in response to her exercise of the right to free speech
and the right to petition. In issue three, Rogers argues that the trial court abused its
discretion in overruling Rogers’s “running objection” to Benjamin’s statements of
fact that contradicted Benjamin’s deemed admissions. In issue four, Rogers contends
the trial court abused its discretion in overruling all of Rogers’s objections to
Benjamin’s evidence. In issue five, Rogers argues Benjamin failed to establish by
Intentional Infliction of Emotional Distress claim was not groundless. She failed to appear. The Court took judicial notice of the fact that there are no active warrants for Benjamin David Bryan. The Court finds that there is no basis in fact for Plaintiff[’]s allegations that [Benjamin] has been convicted of a crime, has felony warrants, or has engaged in any sexual misconduct of any kind for these reasons and those described more particularly on the record. Roger[s]’s conduct has violated Tex. R. Civ. P. 13 and Tex. Civ. Prac. & Rem. Code Chapter 10. Rogers[’s] non- appearance at this hearing, despite receiving notice and being subpoenaed to attend, is particularly troubling to this Court. Most troubling is exposing young minor children’s faces after making the most serious allegations of child sex crimes. 19 clear and specific evidence a prima facie case for each essential element of his
defamation counterclaim. And, in issue six, Rogers contends that she established an
affirmative defense to Benjamin’s defamation counterclaim and is entitled to
judgment as a matter of law.
Analysis
Rogers’s First, Third, and Fourth Issues
We address Rogers’s first, third, and fourth issues together. In issue one, she
argues “the TCPA Motion, hearing and ruling were timely.” The trial court did not
find otherwise. Under the Texas Rules of Appellate Procedure, which control the
required contents and the organization for an appellate brief, an appellant’s issue
presented for appellate review is sufficient if it directs the reviewing court’s attention
to the error about which the complaint is made. See Canton-Carter v. Baylor Coll.
of Med., 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
(citing Tex. R. App. P. 38.1). Rule 38.1(f) of the Texas Rules of Appellate Procedure
requires the appellant’s brief to “state concisely all issues or points presented for
review.” See Tex. R. App. P. 38.1(f). We must examine a party’s issue to decide
whether it is “sufficient to put [us] on notice” and “to invite [us] to correct any error
of law[.]” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 481
(Tex. 2019). Rogers’s first issue does not point out any error allegedly committed
by the trial court. See id. We overrule her first issue.
20 In her third issue, Rogers argues the trial court abused its discretion in
overruling Rogers’s “running objection” to Benjamin’s statements of fact that
contradicted Benjamin’s deemed admissions. According to Rogers, Benjamin did
not sign his request for admission answers and, therefore, the admissions are deemed
admitted, and she argues the trial court should not have overruled Rogers’s running
objection that Benjamin’s unsworn declaration contradicted his deemed admissions.
The record shows that Benjamin filed original and then additional responses to
Rogers’s discovery requests, and he disagreed with the arguments Rogers made.
Benjamin also made a request that the trial court allow him to withdraw his original
responses, in the event the trial court determined that his mistake in failing to sign
the original responses meant they had been deemed admitted.
“The responding party’s failure to timely answer requests for admission,
timely file written objections, or obtain leave of court to file the answers late, results
in each request for admission being deemed admitted pursuant to Texas Rule of Civil
Procedure 169.” In re Estate of Herring, 970 S.W.2d 583, 588 (Tex. App.—Corpus
Christi 1998, no pet.). Under Rule 169, the requests for admissions are deemed
admitted automatically unless the responding party complies with the requirements
of Rule 169(1). Id. at 588-89. Here, Rogers does not argue that Benjamin’s original
or later-filed responses were not timely; instead, she argues that the original
responses were not signed by Benjamin, so she contends the admissions were
21 deemed admitted. After Benjamin hired an attorney, the attorney filed signed
responses to Rogers’s original discovery requests and requested the trial court allow
him leave to withdraw the earlier responses. Even assuming without deciding that
because Benjamin failed to sign his original responses means his admissions were
deemed admitted, a trial court has broad discretion to permit the withdrawal of
deemed admissions. See Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). We
cannot say the trial court abused its discretion in overruling Rogers’s objection, and
we overrule issue three.
In issue four, although Rogers contends the trial court abused its discretion in
overruling all of Rogers’s objections to Benjamin’s evidence, Rogers states in her
brief that “[a] few of Appellant’s 22 objections are moot and Appellant has decided
to waive a few other objections that are not a priority.” On appeal, Rogers
specifically argues the trial court abused its discretion in overruling her Objections
1-7, 9, 11-14, 20, and 22.
We review a trial court’s ruling on the admissibility of evidence for an abuse
of discretion. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex.
2015). A trial court abuses its discretion when it acts in an arbitrary or unreasonable
manner, or if it acts without reference to any guiding rules or principles. See Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We will
uphold the trial court’s decision if it is within the zone of reasonable disagreement.
22 Diamond Offshore Servs., Ltd. v. Williams, 542 S.W.3d 539, 545 (Tex. 2018). We
consider a trial court’s ruling in light of what was before the court at the time the
ruling was made. See Stephens Cty. v. J.N. McCammon, Inc., 52 S.W.2d 53, 55 (Tex.
1932) (“When an appellate court is called upon to revise the ruling of a trial court it
must do so upon the record before that court when such ruling was made.”);
Congleton v. Shoemaker, Nos. 09-11-00453-CV & 09-11-00654-CV, 2012 Tex.
App. LEXIS 2880, at **15-16 n.3 (Tex. App.—Beaumont April 12, 2012, pet.
denied) (mem. op.) (“Our review . . . is limited to the record before the trial court at
the time of its ruling.”).
On appeal, Rogers argues that the trial court abused its discretion in overruling
Objections 1 and 2 because Jones’s affidavit references “paperwork” and lacks
supporting evidence and the “paperwork” is not attached to the affidavit, and
therefore it violates Rule 166a(f) of the Texas Rules of Civil Procedure and Texas
Rule of Evidence 1002 (the “best evidence rule”). Rule 166a(f) requires that
“[s]worn or certified copies of all papers or parts thereof referred to in an affidavit
shall be attached thereto or served therewith.” See Tex. R. Civ. P. 166a(f). The “best
evidence rule” provides that “[a]n original writing, recording, or photograph is
required in order to prove its content unless these rules or other law provides
otherwise.” Tex. R. Evid. 1002. Benjamin stated in his response to the TCPA Motion
to Dismiss that Jones’s affidavit was attached and that “Exhibits 1, 2, and 3 all
23 describe how copies of the Rogers’[s] petition were distributed through [Benjamin]
Bryan’s neighborhood, e-mailed to [Benjamin] Bryan’s ex-wife, Lindsay Bryan, and
even dropped off at her residence.” A copy of Jones’s affidavit was filed with the
trial court and appears in the clerk’s record. We cannot say that the trial court’s
decision to overrule the Objections 1 and 2 was an abuse of discretion because it was
within the zone of reasonable disagreement. See Williams, 542 S.W.3d at 545.
Rogers also argues the trial court erred in overruling Objections 3 through 7,
which relate to Lindsay’s unsworn declaration and attached exhibits. In Objection 3,
Rogers complained that Lindsay’s unsworn declaration did not comply with section
132.001(a)(c)(2) of the Texas Civil Practice and Remedies Code because she argued
Lindsay’s signature on the unsworn declaration was “a forgery” because it appeared
different than her signature that appeared on certain court documents in her divorce
proceedings with Benjamin. In his Sur-Reply, Benjamin asserted Lindsay’s unsworn
declaration was signed in person by Lindsay and the judgment in the divorce
proceeding appears to have been initialed digitally with Adobe’s DocuSign.
Benjamin also attached to his Sur-Reply a copy of his counsel’s email
communication with Lindsay attaching a draft of the unsworn declaration and asking
Lindsay that if it is true and correct for her to confirm, and then Lindsay’s response
was “Yes all is correct.” Accordingly, we cannot say that the trial court’s decision
24 to overrule the Objections 3 through 7 was an abuse of discretion because it was
within the zone of reasonable disagreement. See id.
In Objection 4, Rogers objected on the bases that Lindsay’s reference in her
declaration to “numerous communications” in the first paragraph of her declaration
lacks supporting evidence and she does not identify, authenticate, or attach the
documents she describes as “numerous communications.” In Objections 5 through
7, Rogers objected on grounds that Lindsay’s exhibits to her declaration were not
properly authenticated because she did not state that they are true and correct copies
and because Lindsay must prove that she saw the photographs attached as Exhibit B
near the time of the event, that she recognizes the photographs, and that the
photographs are a true and accurate representation of the subject as it appeared at
that time. Lindsay describes in her declaration that she has received “numerous
communications” from Rogers in which Rogers claims that Benjamin is or has been
investigated by law enforcement for sexual crimes against a minor, engaged in
sexual acts with a minor, is guilty of sexual crimes involving minors, and is a child
molester. She then refers to Exhibit A, which is an email from Rogers “in which
[Rogers] makes these claims[]” and which Lindsay attaches. Lindsay also references
Rogers’s petition, which was already before the trial court. And Lindsay attached a
photograph that she states depicts copies of Rogers’s petition left outside the door of
Lindsay’s residence and a photograph of the last page of the petition which was on
25 file with the trial court. Rogers’s own affidavit admits that her process server, at her
direction, left a copy of the petition at Lindsay’s home when he was trying to serve
Benjamin and the trial court could have reasonably concluded that the documents
were sufficiently authenticated. We cannot say that the trial court’s decision to
overrule the Objections was an abuse of discretion because it was within the zone of
reasonable disagreement. See id.
In Objections 9, 11, 12, 13, and 14, Rogers objects to Benjamin’s unsworn
declaration. She argues that Benjamin’s declaration references “numerous
communications” in the first paragraph and “numerous emails” and “documents and
notifications pertaining to this lawsuit” in the second paragraph, but those references
lack supporting evidence because the documents he references are not attached.
Benjamin specifically refers to Rogers’s email to Lindsay, which was attached to
Lindsay’s unsworn declaration, and to “Plaintiff’s Original Petition” that “contains
these false and defamatory statements” which was before the trial court. The trial
court could have concluded that the challenged references in Benjamin’s declaration
had sufficient support or that the objection might go to the weight of the evidence
but would not prevent the declaration from being considered by the trial court. In
Objections 11 and 12, Rogers objected to portions of Benjamin’s unsworn
declaration on the grounds that some statements are impermissible legal conclusions.
Rogers pointed to statements in the third paragraph of Benjamin’s declaration where
26 he says “Plaintiff’s Original Petition contains these false and defamatory statements
. . .” and in the fourth paragraph of Benjamin’s statement that “[a]ll of these
statements are false and were made by Rogers, or her agents. Rogers and her agents
further made these statements despite knowing that they were false or made them
with reckless disregard for their falsity.”
Generally, conclusory statements are not probative evidence and are not
sufficient to establish a prima facie case. See In re Lipsky, 460 S.W.3d 579, 592
(Tex. 2015) (stating that “[b]are, baseless opinions” are not “a sufficient substitute
for the clear and specific evidence required to establish a prima facie case under the
TCPA.”). That said, on the record that was before the trial court at the time it made
its rulings on the TCPA Motion, it was within the zone of reasonable disagreement
for the trial court to conclude that Benjamin’s unsworn declaration, along with the
other declarations attached to his responses, provided more than mere baseless
opinions, and sufficiently established a prima facie claim of defamation.
In Objection 13, Rogers objects to Benjamin’s statement in paragraph three
of his declaration that “copies of this document were distributed to many, if not all,
of my neighbors . . . by Rogers and/or her agents[]” on the grounds that it is not
based on personal knowledge. The trial court could have reasonably inferred based
on other evidence in the record from one of Benjamin’s neighbors (Jones) that
Benjamin had personal knowledge that one of his neighbors had received a copy of
27 Rogers’s petition and that Rogers or her agents had distributed the petition to
Lindsay and Jones. The trial did not abuse its discretion in overruling Objections 9,
11, 12, 13 and 14.
In Objection 20, Rogers argued Benjamin’s Sur-Reply to her TCPA Motion
to Dismiss, which was filed three days before the hearing, “was time barred as a
matter of law[]” because it was filed after the allowable deadline under section
27.003(e) of the Texas Rules of Civil Procedure. A party responding to a TCPA
motion to dismiss “shall file the response, if any, not later than seven days before
the date of the hearing on the motion to dismiss unless otherwise provided by an
agreement of the parties or an order of the court.” Tex. Civ. Prac. & Rem. Code Ann.
§ 27.003(e). It is undisputed that Benjamin timely filed his response to the TCPA
motion. After Rogers filed a Reply to that Response, Benjamin filed a Sur-Reply to
address the forgery allegation Rogers makes in her Reply. The order denying
Rogers’s TCPA Motion states that in denying the motion the trial court considered
“the pleadings on file, Rogers’ Motion, [Benjamin]’s Response, any replies on file,
and the arguments of counsel or the pro se Plaintiff, if any[.]” Even assuming without
deciding that leave was required, we presume, based on the wording of the order,
that the trial court granted Benjamin leave to file his Sur-Reply to Rogers’s TCPA
Motion to Dismiss. See Griffith Truck & Equip., Inc. v. Flash Tank Servs., Inc., No.
14-21-00331-CV, 2022 Tex. App. LEXIS 5144, at *12 (Tex. App.—Houston [14th
28 Dist.] July 26, 2022, no pet.) (mem. op.). The trial court did not abuse its discretion
in overruling Objection 20.
In Objection 22, Rogers objected to Exhibit B that Rogers argued was attached
to the unsworn declaration of Alexander Taylor (Benjamin’s counsel) on the grounds
that Taylor never referred to Exhibit B and it had not been properly authenticated.7
Taylor’s unsworn declaration was attached as Exhibit A to Benjamin’s Sur-Reply in
Support of his Response to Rogers’s Response. Exhibit B (email communications
between Lindsay and Benjamin’s counsel regarding Lindsay’s unsworn declaration)
was attached as the next exhibit to Benjamin’s Sur-Reply and discussed in the Sur-
Reply, and therefore, it was not an attachment to Taylor’s affidavit. The trial court
found that the unsworn declarations were in proper format and Rogers does not
challenge any part of the declaration other than the lack of a reference to an exhibit
and authentication. Accordingly, we cannot say that the trial court abused its
discretion in overruling Objection 22. See Downer, 701 S.W.2d at 241-42. Issue four
is overruled.
7 Taylor’s unsworn declaration stated that he did not receive service of Rogers’s September 22, 2021 Reply to Benjamin’s Response to Rogers’s TCPA Motion to Dismiss by U.S. mail despite her certificate of service stating otherwise. After the trial court ruled on Rogers’s TCPA Motion, Taylor became aware that the pleading had been mis-filed and Benjamin asked that Taylor’s “verified objection” be withdrawn. To the extent that Rogers argues on appeal that Taylor’s affidavit constitutes perjury, we note that this argument was not before the court at the time the trial court ruled on Rogers’s TCPA Motion; nor was Taylor’s affidavit material to the trial court’s ruling on Rogers’s TCPA Motion. 29 Issues Two, Five, and Six—the Burden Shifting Process Under the TCPA
We next address issues two, five, and six which pertain to the burden shifting
process at issue in a TCPA challenge. A three-step burden shifting mechanism is
triggered by the filing of a motion to dismiss under the TCPA. Lipsky, 460 S.W.3d
at 586-87. First, the movant (Rogers) bears the initial burden to demonstrate that the
legal action is based on or is in response to the movant’s exercise of the right of free
speech, the right of association, or the right to petition. Tex. Civ. Prac. & Rem. Code
Ann. § 27.005(b). Second, if the movant meets her initial burden, the burden shifts
to the nonmovant (Benjamin Bryan) to establish by clear and specific evidence a
prima facie case for each essential element of his claim. Id. § 27.005(c). If the
nonmovant fails to meet his burden, the trial court must grant the motion to dismiss
the legal action. See id. § 27.005(b), (c). Third, if the nonmovant satisfies his burden,
the burden shifts back to the movant to establish each essential element of a valid
defense to the nonmovant’s claim by a preponderance of the evidence. Id.
§ 27.005(d).
In determining whether the nonmovant’s claim is subject to or should be
dismissed under the TCPA, the court shall consider the pleadings, any evidence a
court could consider under Rule 166a of the Texas Rules of Civil Procedure and
supporting and opposing affidavits stating the facts on which the liability or defense
is based. Id. § 27.006(a). “On appeal, the trial court’s ruling on a motion to dismiss
30 under the TCPA is reviewed de novo, and the pleadings and evidence are viewed in
the light most favorable to the nonmovant.” Montano v. Cronan, No. 09-20-00232-
CV, 2021 Tex. App. LEXIS 5654, at *9 (Tex. App.—Beaumont July 15, 2021, no
pet.) (mem. op.) (citing Sanchez v. Striever, 614 S.W.3d 233, 242 (Tex. App.—
Houston [14th Dist.] 2020, no pet.); Maldonado v. Franklin, No. 04-18-00819-CV,
2019 Tex. App. LEXIS 8747, at *7 (Tex. App.—San Antonio Sept. 30, 2019, no
pet.) (mem. op)).
The TCPA protects citizens from retaliatory lawsuits that seek to intimidate
or silence them on matters of public concern. Lipsky, 460 S.W.3d at 584. We
construe the TCPA “liberally to effectuate its purpose and intent fully.” See Tex.
Civ. Prac. & Rem. Code Ann. § 27.011(b); see State ex rel. Best v. Harper, 562
S.W.3d 1, 11 (Tex. 2018). The stated purpose of the Act “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.
Once a TCPA Motion to Dismiss is filed, the burden is on the nonmovant to
show by clear and specific evidence a prima facie case for each essential element of
the claim in question, but it is not a heightened evidentiary burden. See Andrews Cty.
v. Sierra Club, 463 S.W.3d 867, 867 (Tex. 2015) (per curiam) (citing Tex. Civ. Prac.
31 & Rem. Code Ann. § 27.005(c); Lipsky, 460 S.W.3d at 587). A “prima facie case”
refers to evidence sufficient as a matter of law to establish a given fact if it is not
rebutted or contradicted. See Lipsky, 460 S.W.3d at 590 (citing Simonds v. Stanolind
Oil & Gas Co., 136 S.W.2d 207, 209 (Tex. 1940)). It 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)
(per curiam)). Therefore, in the context of a motion to dismiss under the TCPA in a
lawsuit for defamation, mere notice pleading will not suffice to defeat the motion,
and
. . . a [party] 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.
See id. at 590-91. Direct evidence of damages is not required, but the evidence must
be sufficient to allow a rational inference that some damages naturally flowed from
the defendant’s conduct. S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d
843, 847 (Tex. 2018).
We may consider circumstantial evidence to determine whether the parties
met their burdens under the TCPA. See Sierra Club, 463 S.W.3d at 867; Lipsky, 460
S.W.3d at 588-89. In conducting our analysis, “‘we ascertain and give effect to the
Legislature’s intent as expressed by the language of the statute.’” Harper, 562
32 S.W.3d at 11 (quoting City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.
2008)). We construe the statute’s words according to their plain and common
meaning “‘unless a contrary intention is apparent from the context, or unless such a
construction leads to absurd results.’” Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex.
2018) (quoting Hughes, 246 S.W.3d at 625-26). We decide the applicability of the
TCPA based on “a holistic review” of the pleadings and supporting and opposing
affidavits. See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex.
2018).
The TCPA defines the “[e]xercise of the right of free speech” as “a
communication made in connection with a matter of public concern.” See Tex. Civ.
Prac. & Rem. Code Ann. § 27.001(3). The TCPA also defines “[m]atter of public
concern” as:
. . . a statement or activity regarding: (A) a public official, public figure, or other person who has drawn substantial public attention due to the person’s official acts, fame, notoriety, or celebrity; (B) a matter of political, social, or other interest to the community; or (C) a subject of concern to the public.
Id. § 27.001(7). The phrase “matter of public concern” commonly refers to matters
“of political, social, or other concern to the community,” and a subject of general
interest and of value and concern to the public, as opposed to purely private matters.
Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 135 (Tex.
2019) (citing Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017)); see also 33 ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (explaining
that communications related to health and safety are a matter of public concern under
the TCPA) (citing Lippincott v. Whisenhunt, 462 S.W.3d 507, 509-10 (Tex. 2015)).
“Speech deals with matters of public concern when it can ‘be fairly considered as
relating to any matter of political, social, or other concern to the community[.]’”
Snyder v. Phelps, 562 U.S. 443, 453 (2011) (quoting Connick v. Myers, 461 U.S.
138, 146 (1983)); see also Creative Oil & Gas, LLC, 591 S.W.3d at 135. “Public
matters include, among other things, ‘commission of crime, prosecutions resulting
from it, and judicial proceedings arising from the prosecutions.’” See Brady, 515
S.W.3d at 884 (quoting Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492 (1975)). To
be protected under the TCPA, the communication at issue need not specifically
mention the matter of public concern. See Gensetix, Inc. v. Baylor Coll. of Med., 616
S.W.3d 630, 641 (Tex. App.—Houston [14th Dist.] 2020, pet. dism’d) (citing
ExxonMobil Pipeline Co., 512 S.W.3d at 900). In addition, the communication need
not have more than a tangential relationship to a matter of public concern. See
ExxonMobil Pipeline Co., 512 S.W.3d at 900.
In determining whether the statements and allegations of criminal conduct that
Rogers allegedly made are “a matter of public concern” under the TCPA, we are not
required to determine the truth or falsity of those statements. See In re Lipsky, 411
S.W.3d 530, 543 (Tex. App.—Fort Worth 2013, orig. proceeding), mand. denied,
34 460 S.W.3d 579 (Tex. 2015). The pleadings in this case reflect that Rogers made
allegations that Benjamin committed sexual offenses involving children and animals
and Rogers alleged that he had been or was being investigated for the alleged crimes
and that he was guilty of criminal conduct. Benjamin disputes those allegations and
statements, and says they are false and defamatory. We note that most if not all of
the allegedly defamatory statements Rogers made appear to have little to no nexus
to Rogers’s breach of contract cause of action. That said, Rogers also made a claim
in her petition for intentional infliction of emotional distress, and some of the
statements could possibly relate to that claim, if any.8
We conclude that the allegedly defamatory statements complained of here
concern alleged criminal conduct which would (if true) involve a matter of public
concern. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7); Brady, 515 S.W.3d at
884; Deaver v. Desai, 483 S.W.3d 668, 673 (Tex. App.—Houston [14th Dist.] 2015,
no pet.); Campbell v. Clark, 471 S.W.3d 615, 623-24 (Tex. App.—Dallas 2015, no
pet.). The Texas Supreme Court has explained that at this stage of the litigation, we
do not decide whether the claims or communications were “valid, partly valid, or
completely concocted[.]” See Adams, 547 S.W.3d at 897. Benjamin’s counterclaim
is factually predicated on Rogers’s communications and statements in her petition,
We expressly have not determined whether any of the allegations or claims 8
made by Rogers against Benjamin have any merit. 35 and Rogers sufficiently demonstrated her communications fall within the scope of
the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b); see also Adams, 547
S.W.3d at 897. Rogers has met her initial burden to show that her communications
relate to the exercise of the right of free speech, so we need not address whether her
communications were also within the exercise of the right to petition. See Tex. Civ.
Prac. & Rem. Code Ann. § 27.005(b); see also Tex. R. App. P. 47.1.
Next, we must determine whether Benjamin met his burden to establish by
clear and specific evidence the elements of his defamation claim. The elements of a
defamation claim are (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) in some cases, damages. Lipsky, 460 S.W.3d at 593 (citing WFAA-TV,
Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Waste Mgmt. of Tex. Inc. v.
Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 146 n.7 (Tex. 2014)). The status
of the person allegedly defamed determines the requisite degree of fault. Lipsky, 460
S.W.3d at 593. A private individual need only prove negligence, whereas a public
figure or official must prove actual malice. Id.
A party seeking to recover on a defamation claim must plead and prove
damages, unless the defamatory statements are defamatory per se. Id. Defamation
per se refers to statements that are so obviously harmful that general damages may
be presumed. Id. “‘[A]ccusing someone of a crime, of having a foul or loathsome
36 disease, or of engaging in serious sexual misconduct’ constitutes defamation per se.”
Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 637-38 (Tex. 2018) (quoting
Lipsky, 460 S.W.3d at 596); see also Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex.
App.—Waco 2005, no pet.). Whether a statement is defamatory per se is generally
a question of law. See Lipsky, 460 S.W.3d at 596.
As stated above, the pleadings and evidence in this case reflect that Rogers
made communications that attributed sexual misconduct and alleged criminal
conduct by Benjamin that would be defamatory per se. Benjamin provided evidence
that established Rogers distributed the communications to his neighbor and by email
to Lindsay. Rogers alleged that Benjamin committed sexual offenses involving
children and that he had been or was being investigated for the alleged crimes.
Rogers’s alleged defamatory statements are defamatory per se because they accuse
him of a crime and of engaging in serious sexual misconduct. See Dallas Morning
News, Inc., 554 S.W.3d at 637-38 (quoting Lipsky, 460 S.W.3d at 596); Moore, 166
S.W.3d at 384. Accordingly, Benjamin need not prove actual damages. See Lipsky,
460 S.W.3d at 593, 596 (“Pleading and proof of particular damage is not required to
prevail on a claim of defamation per se[]” nor to defeat a TCPA motion to dismiss.).
To state a prima facie claim, Benjamin must also “show that the defendant
knew or should have known that the defamatory statement was false.” See French v.
French, 385 S.W.3d 61, 73 (Tex. App.—Waco 2012, pet. denied). Benjamin’s
37 affidavit alleged that Rogers and her agents made defamatory allegations against
Benjamin involving accusations that he committed sexual offenses involving minors
and that he had been or was being investigated for the alleged crimes “despite
knowing that they were false or made them with reckless disregard for their falsity.”
At the hearing on the TCPA Motion, Rogers failed to appear, and the trial court took
judicial notice at the hearing that there was “no warrant ping notification that the
Counterplaintiff/Defendant Benjamin David Bryan has an active felony warrant[.]”
In its order granting sanctions against Rogers, the trial court found “there is no basis
in fact for Plaintiff[’]s allegations that [Benjamin] Bryan has been convicted of a
crime [or] has felony warrants[.]” On this record and viewing the pleadings and
evidence in the light most favorable to the nonmovant we conclude that Benjamin
has presented at least circumstantial evidence that Rogers knew or should have
known when making the defamatory statements that the statements were false. See
id.
Defamation also requires publication to a third party. Lipsky, 460 S.W.3d at
593. Publication occurs if the defamatory statements are communicated orally, in
writing, or in print to some third person who is “capable of understanding their
defamatory import and in such a way that the third person did so understand.” Exxon
Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017). Benjamin’s unsworn
affidavit attached to his Response to Rogers’s TCPA Motion alleged that “Jordan
38 Rogers has published numerous communications to multiple persons” that he is
being investigated and/or committed sexual offenses involving children. His
affidavit stated that Rogers sent emails to his ex-wife, Lindsay, pertaining to the
lawsuit, and that Rogers’s Original Petition was distributed to his neighbors on or
about May 5, 2021, by Rogers and/or her agents. Lindsay’s unsworn affidavit
attached to Benjamin’s Response to Rogers’s TCPA Motion to Dismiss stated that
she received communications from Rogers in which Rogers claimed as fact that
Benjamin had or was being investigated by law enforcement agencies for sexual
offenses involving children, and Lindsay stated that she received several copies of
Rogers’s Original Petition on her front porch with the last page claiming that
Benjamin was a child molester with a felony arrest warrant. Lindsay attached a
photograph of what she asserts was the petitions left on her porch and a copy of an
email from Rogers to Lindsay wherein Rogers stated that Benjamin was being or
had been investigated and had committed sexual offenses involving children, and
that he was going to be arrested. Jones’s affidavit stated that he is Benjamin’s
neighbor and that on May 5, 2021, Jones found paperwork claiming that Benjamin
“was, among other things, a child molester who had engaged in sex crimes with
minors.”
Benjamin presented the trial court circumstantial evidence that Rogers’s
defamatory statements were published to a third party who was capable of
39 understanding and did understand the statements to be defamatory. See id. Viewing
the pleadings and evidence in the light most favorable to the nonmovant, we
conclude that Benjamin’s affidavit presented clear and specific evidence of
publication to a third party. See Sanchez, 614 S.W.3d at 242.
The burden then shifts to Rogers to establish a defense to the defamation
claim. Rogers asserts that the judicial proceeding privilege applies and would be an
absolute defense to the defamation counterclaim. Based on the record before us, we
conclude that Rogers failed to demonstrate that the judicial proceeding privilege
applies. In Landry’s, Inc. v. Animal Legal Defense Fund, the Texas Supreme Court
explained the judicial-proceedings privilege as follows:
. . . . The judicial-proceedings privilege is straightforward: “Communications in the due course of a judicial proceeding will not serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made.” [] The “due course of a judicial proceeding” may include communications “in serious contemplation of such a proceeding.” [] Although commonly applied in defamation cases, the privilege prohibits “any tort litigation based on the content of the communication” at issue.” [] The judicial-proceedings privilege is an absolute privilege that covers “any statement made by the judge, jurors, counsel, parties or witnesses, and attaches to all aspects of the proceedings, including statements made in open court, pre-trial hearings, depositions, affidavits and any of the pleadings or other papers in the case.” [] The privilege facilitates the proper administration of justice by promoting “full and free disclosure of information . . . by participants in judicial proceedings.” [] Although the judicial-proceedings privilege traditionally applies to “statements made in open court, pre-trial hearings, depositions, affidavits and any of the pleadings or other papers in the case,” [] it can
40 also include statements made “preliminary to a proposed judicial proceeding[.]” []
631 S.W.3d at 46-47 (citations omitted). In declining to extend the privilege to
attorneys who publicize their clients’ defamatory allegations to the media, the Court
in Landry’s explained:
The reasoning of one court of appeals nearly a century ago remains compelling today: The privilege accorded a litigant which exempts him from liability for damages caused by false charges made in his pleadings, or in the court in the course of a judicial proceeding, cannot be enlarged into a license to go about in the community and make false and slanderous charges against his court adversary and escape liability for damages caused by such charges on the ground that he had made similar charges in his court pleadings. [] The judicial-proceedings privilege exists to facilitate the proper administration of the justice system. It does so by relieving the participants in the judicial process from fear of retaliatory lawsuits for statements they make in connection with the proceeding itself. []
Id. at 48 (citations omitted).
Rogers failed to establish as a matter of law that her email to Lindsay with the
defamatory communications or the copy of the petitions distributed to Lindsay or to
Benjamin’s neighbor were made in the course of judicial proceedings. We disagree
with Rogers’s position that Landry’s does not apply retroactively. A decision of the
Supreme Court operates retroactively unless the Supreme Court exercises its
discretion to modify that application. Bowen v. Aetna Casualty & Surety Co., 837
S.W.2d 99, 100 (Tex. 1992).
41 On the record before us, after viewing the pleadings and evidence in the light
most favorable to Benjamin as the nonmovant, as we must, 9 we conclude that
Benjamin presented clear and specific evidence to state a prima facie claim for
defamation that is sufficient to defeat Rogers’s TCPA Motion to Dismiss, and
Rogers failed to demonstrate that the claim was barred by an affirmative defense.
Therefore, the trial court correctly denied Rogers’s motion to dismiss Benjamin’s
counterclaim under the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c)
(“The court may not dismiss a legal action under [the TCPA] if the party bringing
the legal action establishes by clear and specific evidence a prima facie case for each
essential element of the claim in question.”); ExxonMobil Pipeline Co., 512 S.W.3d
at 899. We overrule Appellant’s issues, and we affirm the trial court’s order.10
9 See Sanchez v. Striever, 614 S.W.3d 233, 242-43 (Tex. App.—Houston [14th Dist.] 2020, no pet.); Maldonado v. Franklin, No. 04-18-00819-CV, 2019 Tex. App. LEXIS 8747, at *7 (Tex. App.—San Antonio Sept. 30, 2019, no pet.) (mem. op.). 10 On appeal, Benjamin requested this Court sanction Rogers for her continued “gamesmanship” during this litigation and because she knew or should have known that this appeal was frivolous. We have discretion to award damages for frivolous appeals. Tex. R. App. P. 45. “Sanctions will be imposed on appeal if the record clearly shows appellant had no reasonable expectation of reversal, and the appellant has not pursued the appeal in good faith.” Chamberlain v. Alexander, Nos. 09-00- 174 CV & 09-00-175 CV, 2001 Tex. App. LEXIS 4724, at *13 (Tex. App.— Beaumont July 12, 2001, no pet.); see also Herring v. Welborn, 27 S.W.3d 132, 145 (Tex. App.—San Antonio 2000, pet. denied) (citing Gen. Elec. Credit Corp. v. Midland Cent. Appraisal Dist., 826 S.W.2d 124, 125 (Tex. 1991) (per curiam)); Campos v. Inv. Mgmt. Props., Inc., 917 S.W.2d 351, 356 (Tex. App.—San Antonio 1996, writ denied). We deny Benjamin’s motion for sanctions. 42 AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on October 10, 2022 Opinion Delivered January 26, 2023
Before Horton, Johnson and Wright JJ.
Related
Cite This Page — Counsel Stack
Jordan Rogers v. Benjamin David Bryan, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-rogers-v-benjamin-david-bryan-texapp-2023.