Skeet Phillips v. Ray Clark

Opinion

DISMISS and Opinion Filed May 3, 2019

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00556-CV

SKEET PHILLIPS, Appellant V. RAY CLARK, Appellee

On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 90510-422

OPINION Before Justices Whitehill, Molberg, and Reichek Opinion by Justice Reichek In this suit for libel and defamation, Skeet Phillips appeals the trial court’s denial of his

motion for traditional and no-evidence partial summary judgment. Because we conclude Phillips

has failed to demonstrate his entitlement to bring an interlocutory appeal under section

51.014(a)(6) of the Texas Civil Practice and Remedies Code, we dismiss this appeal for lack of

jurisdiction.

Procedural Background

Ray Clark brought this suit against Phillips and others asserting claims for defamation/libel

per se, defamation/libel per quod, and conspiracy. According to Clark’s live pleading, in March

2014, he was the incumbent candidate for the office of County Commissioner of Precinct 2 in

Kaufman County, Texas. Phillips was one of Clark’s challengers in the Republican primary election. Clark asserted that Phillips hired his co-defendants Michael Hendrix, Ben Campbell, and

John Knox, along with their organizations, The Precise Agency, The Precise Agency Group, My

Right to Know, and Your Right to Know, to advertise for his campaign.

On March 1, 2014, three days before the election, many residents of Precinct 2 received a

mailer purportedly sent by My Right to Know. Clark asserted the mailer contained numerous false

statements of fact that unambiguously associated him with corruption in connection with the

prosecution of an alleged child molester, Stoney Adams. The next day, an article appeared on

myrighttoknow.org containing substantially similar statements about Clark’s association with

Stoney. Clark alleged that “My Right to Know” was an assumed name of Hendrix, Campbell, and

Your Right to Know, and that Phillips provided them with all or part of the information contained

in the article.

Phillips filed a motion for partial summary judgment on Clark’s claims for defamation/libel

per quod and conspiracy asserting both traditional and no-evidence grounds. In the motion,

Phillips argued Clark could not establish damages caused by the allegedly false statements in the

mailer and on the website or a meeting of the minds to defame him. The trial court denied the

motion, and Phillips filed this interlocutory appeal.

In his notice of appeal, Phillips relies on section 51.014(a)(6) of the Texas Civil Practice

and Remedies Code as the basis for this Court’s jurisdiction. Section 51.014(a)(6) permits an

interlocutory appeal from an order that

denies a motion for summary judgment that is based in whole or in part upon a claim against or a defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73.

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6). Phillips further states in the notice, “For

purposes of appellate jurisdiction, Defendant attaches and incorporates by reference the Affidavit –2– of Ben Campbell dated May 27, 2014 (Exhibit A), and two inForney.com news articles dated

March 3, 2014 and March 25, 2014 (Exhibit B).”1

In Campbell’s affidavit he states that Your Right to Know is a Texas nonprofit corporation

of which he is one of three directors. The corporation’s statement of purpose is “for charitable,

religious, education, and scientific purposes under 501(c)(3) of the Internal Revenue Code.”

Campbell also states Your Right to Know created the website myrighttoknow.org and, prior to

March 2014, the website addressed “the need for transparency in healthcare matters.”

According to Campbell, Lacie Adams, Stoney’s ex-wife, wanted to have her “strong

opinion” on the matter of Stoney’s prosecution posted in an article on the myrighttoknow.org

website. Your Right to Know “hired an individual who had investigative reporting experience” to

write the article, but the content of the article “did not contain anything that was a substantive

change from what Lacie had provided to be posted on the website.” The mailer sent out to some

of the residents of Precinct 2 prior to the election referenced the myrighttoknow.org website.

Exhibit B to Phillips’s notice of appeal is two articles printed from inForney.com. The first

is entitled “Will Precinct 2 voters reject negative political mailers?” The second is entitled

“Commissioner Clark files defamation suit against Skeet Phillips, wife, and others.” On May 16,

2018, Phillips filed in this Court an affidavit by Mathew Richards, a journalist working with

inForney.com. Richards states “inForney is an online news publication that publishes stories/news

on a variety of topics which include, but are not limited to, Local News, Business, Crime,

Education, Sports, Politics, and Entertainment.” Richards further states that the articles published

1 TEX. GOV’T CODE ANN. § 22.220(c) (court of appeals may, on affidavit or otherwise, ascertain matters of fact necessary to proper exercise of jurisdiction); Greystar, LLC v. Adams, 426 S.W.3d 861, 865 (Tex. App.—Dallas 2014, no pet.) (we may consider submitted documents outside the record for limited purpose of determining our own jurisdiction). –3– on the inForney website contained quotes from the mailer and/or the article published on

myrighttoknow.org.

In his brief on appeal, Phillips does not address this Court’s jurisdiction over his appeal

other than to cite section 51.014 of the Texas Civil Practice and Remedies Code and refer to

Richards’s affidavit. Clark asserts in his responsive brief that we have no jurisdiction because

Phillips is not a media defendant and has not asserted any defenses based on free speech, freedom

of the press, or Chapter 73. Although Phillips filed a reply brief, he did not address Clark’s

jurisdictional arguments.

Jurisdiction Under Section 51.014(a)(6)

Appellate courts have jurisdiction to consider immediate appeals from interlocutory orders

only if a statute explicitly provides such jurisdiction. Tex. A&M Univ. Sys. v. Koseoglu, 233

S.W.3d 835, 840 (Tex. 2007). In this case, Phillips relies solely on section 51.014(a)(6) of the

civil practice and remedies code. For an interlocutory appeal under section 51.014(a)(6), there

must be: (1) an order (2) that denies a motion for summary judgment (3) that is based in whole or

in part upon a claim against or defense by (4) a member of the media or a person quoted in the

media (5) arising under constitutional free speech guarantees or Texas libel statutes. TEX. CIV.

PRAC. & REM. CODE ANN. § 51.014(a)(6); see also Dallas Symphony Ass’n, Inc. v. Reyes, No. 17-

0835, 2019 WL 1090771, at *4 (Tex. Mar. 8, 2019). The order from which Phillips appeals denies

his motion for summary judgment challenging Clark’s claims against him arising under the Texas

libel statutes.2 However, unless the record affirmatively shows Phillips was either a member of

the media, or his statements appeared in the media, we must dismiss the appeal. See Brashear v.

Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.—Dallas 2009, no pet.).

2 We disagree with the concurrence’s conclusion that a motion challenging a claim under the Texas libel statutes is not a motion “based upon” the challenged claim. –4– Assuming the communications at issue are attributable to Phillips, which he denies, not

everyone who comments on the news or political or social issues is a “member of the media.”

Serv. Emps. Int’l Union Local 5 v. Prof’l Janitorial Serv. of Houston, Inc., 415 S.W.3d 387, 395

(Tex. App.—Houston [1st Dist.] 2013, pet. denied). The distinction between media defendants

and those who merely opine on the issues of the day is particularly important today when every

person with an internet connection has the ability to publish his or her comments to a broad

audience. If the entirety of the internet and those who communicate on it were considered the

“media,” the limiting language of section 51.014(a)(6) would be rendered meaningless. Id.

Several courts have addressed the application of section 51.014(a)(6)’s media defendant

requirement in this age of easy mass communication. Each of these cases has recognized that the

term “media” must be interpreted in such a way as to limit the applicability of the section to the

class of persons it was intended to benefit. In Service Employees International Union Local 5 v.

Professional Service of Houston, Inc., the Houston First Court of Appeals held that a person is a

“member of the media” when “the person’s primary business is reporting the news and they are

. . . acting in such capacity.” Id. at 398. In Kaufman v. Islamic Society of Arlington, the Fort Worth

Court of Appeals set out a number of factors to be considered, including the “circumstances

relating to the character and text of the communication itself, its editorial process, its volume of

dissemination, the communicator’s extrinsic notoriety unconnected to the communication, [and]

the communicator’s compensation for or professional relationship to making the communication.”

291 S.W.3d 130, 142 (Tex. App.—Fort Worth 2009, pet. denied). Finally, in Hotze v. Miller, the

Tyler Court of Appeals concluded the appellant was a “media defendant” based, in part, on the

record showing he had been a political writer and journalist for thirty years, his editorials were

published in a weekly newspaper, and he hosted a radio broadcast and website that published his

articles. 361 S.W.3d 707, 711–12 (Tex. App.—Tyler 2012, pet. denied). A common thread

–5– through all of these holdings is that the appellant’s communications must be made in the context

of professional news reporting or professional investigation and commentary on matters of public

concern. See also Main v. Royall, 348 S.W.3d 381, 387 (Tex. App.—Dallas 2011, no pet.) (writer

and publisher of traditional book criticizing government’s use of eminent domain power were

“members of the electronic or print media” for purposes of section 51.014(a)(6)).

The record before us shows that Phillips was a candidate for public office who allegedly

provided information that was published in mailers and on a website. Nothing in the record shows

Phillips has ever engaged in professional news reporting or any other form of journalism or

professional investigation and commentary about matters of public concern. Accordingly, Phillips

does not qualify as a “member of the media.”

We recognize that section 51.014(a)(6) contains a second, independent basis to bring an

interlocutory appeal if the appellant’s communications appeared in the media. Hotze. at 712.

There is no suggestion in the statute, however, that the “media” in which the appellant’s

communications must appear is any different than the “media” of which the appellant must be a

member. Accordingly, not every publication falls within the scope of section 51.014(a)(6). For

example, although the internet has been recognized as a type of “nontraditional electronic media,”

not every website will qualify as “media” for purposes of section 51.014(a)(6). See Serv. Emps.,

415 S.W.3d at 402. To conclude otherwise would lead to the absurd result that a person who was

not a member of the media could become a “media defendant” simply by having his statements

appear somewhere on the internet regardless of the context in which they appeared. The media in

which the appellant’s communications appear, therefore, must also be in the business of news

reporting or professional investigation and commentary on matters of public concern.

In this case, Phillips’s alleged communications appeared in mailers and a website article

published by myrighttoknow.org. According to the affidavit testimony submitted by Phillips,

–6– myrighttoknow.org was a website created by Your Right to Know, a Texas nonprofit corporation

established “for charitable, religious, education, and scientific purposes.” Although Phillips’s co-

defendant Campbell testified that Your Right to Know hired an individual with “investigative

reporting experience” to write the article about which Clark complains, Campbell also stated the

content of the article came entirely from a non-media source provided to the writer. There is no

indication that investigative reporting played any role in the creation of the article.

Clark has alleged that Hendrix, another co-defendant, is the registered owner of

myrighttoknow.org and that Hendrix “does business as My Right to Know, Your Right to Know,

The Precise Agency, LLC, and The Precise Agency Group LLC.” Hendrix testified by affidavit

that Phillips retained the Precise Agency as a consultant for his campaign and to provide campaign

advertising and maintenance and monitoring of social media. On this record, there is nothing to

suggest that myrighttoknow.org, or any of the persons associated with it, is in the business of news

reporting or professional investigation and commentary. Because of this, we conclude their

publications do not qualify as “media” for the purposes of section 51.014(a)(6).

Finally, Phillips appears to rely on the news articles appearing on inForney.com to bring

him within the scope of section 51.014(a)(6). The articles on inForney.com were written by a

professional journalist and discuss the mailers sent prior to the election and the subsequent lawsuit

brought by Clark. But Clark has not pleaded any claims based on the publication of those articles,

nor does he allege that they are defamatory. Phillips cannot, therefore, rely on those articles to

establish his standing as a media defendant. Id. at 403.

–7– Based on the foregoing, we conclude the record fails to affirmatively show that Phillips

falls within the class of persons to which section 51.014(a)(6) applies. Accordingly, we dismiss

this appeal for want of jurisdiction.

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE

Whitehill, J., concurring.

180556F.P05

–8– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

SKEET PHILLIPS, Appellant On Appeal from the 422nd Judicial District Court, Kaufman County, Texas No. 05-18-00556-CV V. Trial Court Cause No. 90510-422. Opinion delivered by Justice Reichek. RAY CLARK, Appellee Justices Whitehill and Molberg participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want of jurisdiction.

It is ORDERED that appellee RAY CLARK recover his costs of this appeal from appellant SKEET PHILLIPS.

Judgment entered May 3, 2019

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