Opinion issued June 21, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00838-CV ——————————— THE IOLA BARKER AND JAMES TRICE, Appellants V. MONICA HURST AND SCOTT MARTINDALE, Appellees
On Appeal from the 12th District Court Grimes County, Texas Trial Court Case No. 34,116 MEMORANDUM OPINION
In this interlocutory appeal,1 appellants, The Iola Barker (“the Barker”) and
James Trice, challenge the trial court’s denial2 of their motion to dismiss, pursuant
to the Texas Citizens’ Participation Act (“TCPA”),3 the claims of appellees, Monica
Hurst and Scott Martindale. In two issues, the Barker and Trice argue that the trial
court erred in denying their motion to dismiss the claims against them because their
motion survived Hurst’s nonsuit and neither appellant presented clear and specific
evidence of a prima facie case.
We reverse and remand.
Background
In April 2017, the Barker, an anonymous blog, published several articles
about the Iola Independent School District (the “District”) and its pursuit of a
“District of Innovation” (“DOI”) designation. A DOI designation allows a district
to declare exemptions from certain provisions of the Texas Education Code.4 To
achieve the DOI designation, the District created the Local Innovation Planning
Committee (“LIPC”) to collect public feedback and develop a plan. The Barker,
1 See TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(a) (West 2015) (providing that if a court does not rule on a motion to dismiss within the time prescribed, the motion is deemed denied by operation of law and the moving party may appeal). 2 See id. 3 See id. §§ 27.001–.011 (West 2015). 4 See TEX. EDUC. CODE ANN. §§ 12A.001–.009 (West 2015).
2 reported on potential effects that it believed such designation might have on teachers,
administrators, students, and parents, and encouraged members of the public to get
involved by attending public hearings on the issue.
Before a District hearing on April 6, 2017, the Barker reported that Hurst, the
District’s “Director of Technology,” had publicly posted on her Facebook page a
“meme,” or photograph with superimposed comments, depicting a scene from a
movie, Men in Black.5 The Barker re-published the meme, adding commentary, as
follows:
For your judgment, here is a post that was on a member of administrations’ Facebook page and was open to the public.
Sure, it seems innocent until you realize what the device in the picture accomplishes. As previously discussed, this device is a Neuralizer
5 MEN IN BLACK (Columbia Pictures 1997). 3 and it wipes the memories (opinions) of those that it is used on and the user then replaces the wiped memories (opinions) with what they want the victim to believe. To us this is implying that we can form our own opinions but they are going to ignore them and do exactly what they want to do and assume that everyone shares the administration’s opinions . . . .
In her First Amended Petition, Hurst complained that the Barker, in
re-publishing her Facebook posting, had included her Facebook profile picture,
which depicted her husband and two minor children. She alleged that the publication
of a photograph of her family was “done to embarrass, provoke, intimidate, or harm”
her and that the “publisher or writer of [the Barker] published the article and the
photo depicting [her] children, with malice, as the photo had absolutely no
journalistic value to the opinion or article in the publication.” She asserted that the
publication “has or will cast and place innocent children into disputes, situations,
and ridicule for which the children have no control or responsibility.” She sought
an injunction, “ordering and preventing [the Barker] from utilizing the photographs
of children or anyone else, without the written permission and consent of the natural
mother or father of any child.” Through discovery, Hurst identified Trice as the
author of the blog.
Subsequently, Martindale, a District principal, joined the lawsuit, alleging
that, “beginning at or around the month of April, 2017,” the Barker published,
“without [his] permission, several stories that mentioned [him] by name.” He
alleged that “the publication of [his] name” was intended to “hurt and harm [him]”; 4 was done with malice; and “has or will cast and place [him] and his family into
disputes, situations, and ridicule for which [he] has no control or responsibility.”
Hurst and Martindale both sought damages of “less than $100,000,” “in an
amount that the jury . . . determine[d] fair and reasonable.”
The Barker and Trice filed special exceptions, asserting that neither Hurst nor
Martindale had alleged, or stated the elements of, any specific cause of action. After
the trial court denied their special exceptions, the Barker and Trice filed a motion to
dismiss the suit, pursuant to the TCPA (the “TCPA motion to dismiss”). They
asserted that the TCPA mandated dismissal because Hurst and Martindale had
brought their claims to uncover Trice’s identity and to quell his exercise of the right
of free speech. The statements at issue involved discussion of the District’s attempt
to obtain a DOI designation, and the blog posts discussed Hurst and Martindale
solely within the context of their actions as public officials, both as administrators at
the District and as members of the LIPC. Further, the Barker and Trice asserted,
Hurst and Martindale could not establish “by clear and specific evidence a prima
facie case for each essential element” of their claims.6 The Barker and Trice sought
dismissal with prejudice and asserted that they were statutorily entitled to an award
6 See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c).
5 of attorney’s fees and sanctions.7 In support of their request for attorney’s fees, they
submitted the affidavit of their attorney and billing statements.
Days later, Hurst filed a motion for nonsuit without prejudice, stating that she
no longer wished to prosecute her claim, which the trial court granted.
Martindale filed a response to the motion to dismiss, in which he identified
his claim as that of libel per se. He attached, as his evidence to defeat the TCPA
motion to dismiss, his affidavit, the affidavit of a teacher, Jenna Conner, and 100
pages of blog entries from the Barker. In his affidavit, Martindale testified that, on
April 25, 2017, in a blog titled, “Donnez-leur un pouce et ils prendront un mile,” the
Barker commented:
It appears to us that they haven’t had any issues getting rid of our teachers. Oh, by the way, this week is the week for the School Board to vote on teacher[s’] contracts. Now that Martindale’s wife is an Iola ISD employee, it will be much easier for them to choose which ones they need to get rid of to open positions for their friends, i.e. the kindergarten teacher that use [sic] to be the Martindale[s’] nanny.
Martindale complained that the statement alleged that he had “engaged in improper
terminating and hiring practices by forcing out an existing teacher so that he could
hire an individual [who] had previously worked for him and his family as a nanny.”
He identified the teacher referenced as Jenna Conner, whom, he asserted, had not
worked for him, or his family, as a nanny or in any other similar capacity. He
7 See id. § 27.009.
6 complained that Trice had not spoken with him to verify the veracity of the comment
before publishing it, that the “accusation” was “blatantly untrue,” and that it had
“injured [his] reputation,” “exposed [him] to contempt in the community,” and
“called into question [his] honesty, integrity, virtue, and reputation.” Conner, in her
affidavit, testified that she “believe[d]” that she was the teacher referenced in the
comment, that she had never worked as a nanny for Martindale or his family, and
that Trice had not spoken with her.
Martindale asserted, as evidence of the elements of his defamation claim8 to
defeat the TCPA motion to dismiss, that Trice had published in the Barker the
statement at issue, i.e., that Conner was previously his nanny and he engaged in
improper hiring practices; that the affidavits establish the falsity of the statement;
and that the statement was defamatory because it tended to injure his reputation,
personally and professionally. Regarding actual malice, Martindale requested a
continuance in order to depose Trice about his state of mind. Martindale asserted
8 See id. § 73.001 (West 2017) (defining libel as “defamation expressed in written or other graphic form”). The applicable elements of a defamation claim are: (1) the defendant made a false statement of fact to a third party; (2) the statement was defamatory concerning the plaintiff; (3) when the plaintiff is a public official or public figure, as it is undisputed here, the defendant acted with actual malice; and (4) the statement caused damages, unless the statement is defamatory per se, in which case damages may be presumed. See Deaver v. Desai, 483 S.W.3d 668, 676 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
7 that “there [was] no requirement that proof of damages be offered” because the
statement at issue was “defamatory per se.”
At the hearing on the motion to dismiss, as pertinent here, the Barker and Trice
asserted that the complained-of statement did not constitute defamation per se and
that Martindale had not shown “clear and specific” evidence of damages, as required.
After the hearing, the trial court found that the TCPA applies because
Martindale’s claim was based on the Barker’s and Trice’s exercise of the right of
free speech; the communication at issue was made in connection with a matter of
public concern; and Martindale is a “public official or public figure.” The trial court
further found that Martindale had established, by clear and specific evidence, that
the Barker and Trice had “made a false statement of fact to a third person”; that “the
statement was defamatory concerning [Martindale]”; and that “the statement caused
damage to [Martindale].” The trial court ordered that good cause existed to allow
Martindale, as requested in his response to the motion to dismiss, to take Trice’s
deposition on the “limited issue of actual malice.”
Thereafter, the Barker and Trice’s motion to dismiss was denied by operation
of law.9
9 See TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(a) (“If a court does not rule on a motion to dismiss . . . in the time prescribed . . . , the motion is considered to have been denied by operation of law and the moving party may appeal.”). 8 TCPA
In a portion of their first issue, the Barker and Trice assert that their TCPA
motion to dismiss survived Hurst’s nonsuit. In the remaining portion of their first
issue and in their second issue, the Barker and Trice argue that the trial court erred
in denying their TCPA motion to dismiss the claims against them because Hurst and
Martindale did not establish by “clear and specific evidence a prima facie case for
each essential element” of their claims.
Standard of Review and Principles of Law
The purpose of the TCPA is “to encourage and safeguard the constitutional
rights of persons to petition, speak freely, associate freely, and otherwise participate
in government to the maximum extent permitted by law.” TEX. CIV. PRAC. & REM.
CODE ANN. § 27.002 (West 2015). It “protects citizens . . . from retaliatory
lawsuits that seek to intimidate or silence them” from exercising their First
Amendment freedoms and provides a procedure for the “expedited dismissal of such
suits.” In re Lipsky, 460 S.W.3d 579, 584, 586 (Tex. 2015); see TEX. CIV. PRAC. &
REM. CODE ANN. §§ 27.001–.011 (West 2015). The TCPA is intended to identify
and summarily dispose of lawsuits “designed only to chill First Amendment rights,
not to dismiss meritorious lawsuits.” In re Lipsky, 460 S.W.3d at 589. It is to be
“construed liberally to effectuate its purpose and intent fully.” TEX. CIV. PRAC. &
REM. CODE ANN. § 27.011(b).
9 A defendant who believes that a lawsuit is based on his valid exercise of First
Amendment rights may move for expedited dismissal of the suit. In re Lipsky, 460
S.W.3d at 586. The defendant must first show by a preponderance of the evidence
that the TCPA applies, that is, that the plaintiff’s “legal action,” i.e., “a lawsuit, cause
of action, petition, complaint, cross-claim, or counterclaim or any other judicial
pleading or filing that requests legal or equitable relief,” is based on, relates to, or is
in response to the defendant’s exercise of: (1) the right of free speech; (2) the right
to petition; or (3) the right of association. Id. at 586–87; see also TEX. CIV. PRAC.
& REM. CODE ANN. § 27.005(b); James v. Calkins, 446 S.W.3d 135, 145 (Tex.
App.—Houston [1st Dist.] 2014, pet. denied). The first step of the inquiry is a legal
question that we review de novo. Newspaper Holdings, Inc. v. Crazy Hotel Assisted
Living, Ltd., 416 S.W.3d 71, 80 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).
If the initial showing is made, the burden shifts to the plaintiff to establish by
“clear and specific evidence a prima facie case for each essential element” of his
claim. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c); In re Lipsky, 460 S.W.3d at
587–88; Newspaper Holdings, 416 S.W.3d at 80. “The legislature’s use of ‘prima
facie case’ in the second step of the inquiry implies a minimal factual burden: ‘[a]
prima facie case represents the minimum quantity of evidence necessary to support a
rational inference that the allegation of fact is true.’” Schimmel v. McGregor, 438
S.W.3d 847, 855 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (quoting KTRK
10 Television, Inc. v. Robinson, 409 S.W.3d 682, 688 (Tex. App.—Houston [1st Dist.]
2013, pet. denied)). In determining whether a legal action should be dismissed, “the
court shall consider the pleadings and supporting and opposing affidavits stating the
facts on which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.006(a). We review the pleadings and evidence in a light favorable to the
plaintiff. Newspaper Holdings, 416 S.W.3d at 80–81. If the defendant’s
constitutional rights are implicated and the plaintiff has not met the required showing
of a prima facie case, the trial court must dismiss the plaintiff’s claim. TEX. CIV.
PRAC. & REM. CODE ANN. § 27.005.
Hurst
As a threshold matter, the Barker and Trice assert that their TCPA motion to
dismiss constituted a claim for affirmative relief that survived Hurst’s nonsuit.
Generally, a plaintiff may dismiss a case or take a nonsuit at any time before
she introduces all of her evidence, excluding rebuttal evidence. TEX. R. CIV. P. 162.
Any such dismissal, however, “shall not prejudice the right of an adverse party to be
heard on a pending claim for affirmative relief” and “shall have no effect on any
motion for sanctions, attorney’s fees or other costs, pending at the time of the
dismissal.” Id.
A motion to dismiss a suit under the TCPA seeks dismissal of a “legal action”
that is “based on, relates to, or is in response to a party’s exercise of the right of free
11 speech.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a). If the trial court dismisses
the legal action, the court “shall award” to the moving party:
(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.
Id. § 27.009. Courts have held that a motion to dismiss under the TCPA constitutes
a claim for affirmative relief. Duchouquette v. Prestigious Pets, LLC, No. 05-16-
01163-CV, 2017 WL 5109341, at *3 (Tex. App.—Dallas Nov. 6, 2017, no pet.); see
also CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d
299, 300 (Tex. 2013) (“A motion for sanctions is a claim for affirmative relief that
survives nonsuit if the nonsuit would defeat the purpose of sanctions.”).
The Barker and Trice, in their TCPA motion to dismiss Hurst’s claim, sought
dismissal with prejudice and an award of sanctions, attorney’s fees, and costs against
Hurst. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009. Days later, Hurst filed a
motion to nonsuit her claim against the Barker and Trice, stating that she no longer
wished to prosecute her claim, requesting a nonsuit without prejudice. The trial court
then granted Hurst a nonsuit without prejudice.
Rule 162 expressly provides that a nonsuit “shall not prejudice the right of an
adverse party to be heard on a pending claim for affirmative relief” and “shall have
12 no effect on any motion for sanctions, attorney’s fees or other costs, pending at the
time of the dismissal.” See TEX. R. CIV. P. 162. The Barker and Trice’s motion, in
which they sought dismissal of Hurst’s lawsuit with prejudice and attorney’s fees,
costs, and sanctions, constituted a “pending claim for affirmative relief” within the
meaning of rule 162. See Breitling Oil & Gas Corp. v. Petroleum Newspapers of
Alaska, LLC, No. 05-14-00299-CV, 2015 WL 1519667, at *3 (Tex. App.—Dallas
Apr. 1, 2015, pet. denied) (mem. op.) (holding that, under express language of rule
162, nonsuit had no effect on pending motion to dismiss under TCPA); see also
CTL/Thompson Tex., LLC, 390 S.W.3d at 300 (holding, in architect liability suit, that
nonsuit without prejudice had no effect on defendant’s pending claim for affirmative
relief, including request for dismissal with prejudice and award of fees, expenses,
costs, and sanctions); Villafani v. Trejo, 251 S.W.3d 466, 467 (Tex. 2008) (holding,
in health care liability context, that nonsuit had no effect on pending relief for
dismissal with prejudice and attorney’s fees under statute). Thus, although the trial
court’s order granting Hurst a nonsuit resolved Hurst’s claim, it had no effect, and
did not resolve, the Barker and Trice’s pending claim.
We sustain the portion of the Barker and Trice’s first issue, in which they assert
that their TCPA motion to dismiss survived Hurst’s nonsuit.
13 We do not, however, reach the merits of the Barker and Trice’s TCPA motion
to dismiss with respect to Hurst’s claim because there is no indication in the record
that the trial court actually considered the motion in regard to her.
In Duchouquette, after the defendant posted an unfavorable online review of
the plaintiff’s business and the plaintiff sued the defendants for defamation, the
defendants filed a motion to dismiss, under the TCPA. 2017 WL 5109341, at *1.
The plaintiff did not respond to the motion; rather, it filed a notice of nonsuit and
request for dismissal without prejudice. Id. The trial court granted the plaintiff’s
nonsuit and denied the defendants’ TCPA motion to dismiss. Id. The defendants
appealed, arguing that their motion to dismiss constituted an independent claim for
relief that survived the plaintiff’s nonsuit, and the appellate court agreed. Id. at *2–
3. The defendants further argued that they were entitled to recover their attorney’s
fees and costs because the plaintiff did not establish the essential elements of its claim
by clear and specific evidence, as required under the TCPA. Id. at *4. Because,
however, the plaintiff, having nonsuited its case, had not responded to the defendants’
motion to dismiss, no hearing on the issue was held, and there was no indication that
the trial court had actually considered the TCPA motion to dismiss, the appellate
court remanded the case to the trial court for consideration of the motion on the
merits. Id.
14 Similarly, here, after the trial court granted Hurst’s nonsuit without prejudice,
she did not respond to the Barker and Trice’s TCPA motion to dismiss and, at the
hearing, there was no discussion of the motion as it pertained to her. See id. Further,
the trial court’s order on the motion speaks only of Martindale and refers to “plaintiff”
in the singular. Although the TCPA provides that “[i]f a court does not rule on a
motion to dismiss . . . [within] the time prescribed . . . , the motion is considered to
have been denied by operation of law,” there is no indication in the record that the
trial court actually considered the Barker and Trice’s motion to dismiss as it relates
to Hurst. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.008(a). Because, as discussed
above, Hurst’s non–suit did not resolve the Barker and Trice’s TCPA motion to
dismiss, which constitutes an outstanding claim for affirmative relief, and there is no
indication that the trial court actually considered the motion as it relates to Hurst, we
remand this portion of the case to the trial court for consideration of the TCPA motion
on the merits.
Martindale
In their second issue, the Barker and Trice argue that the trial court erred in
denying their TCPA motion to dismiss Martindale’s claim because he did not
establish by “clear and specific evidence a prima facie case for each essential
element” of his claim.
15 We first consider whether the Barker and Trice established that the TCPA
applies, that is, whether the claim is based upon, relates to, or is in response to the
Barker and Trice’s exercise of the right of free speech, the right to petition, or the
right of association. See In re Lipsky, 460 S.W.3d at 586–87. The Barker and Trice
asserted that Martindale’s claim is based on their exercise of the right of free speech
and right to petition. The trial court found that Martindale’s claim was based on their
exercise of the right of free speech. We need only focus on the right of free speech.
The TCPA defines the “[e]xercise of the right of free speech” as “a
communication made in connection with a matter of public concern.” TEX. CIV.
PRAC. & REM. CODE ANN. § 27.001(3). A “communication” includes “the making or
submitting of a statement or document in any form or medium, including oral, visual,
written, audiovisual, or electronic.” Id. § 27.001(1). A “matter of public concern”
includes an issue related to “(A) health or safety; (B) environmental, economic, or
community well-being; (C) the government; (D) a public official or public figure; or
(E) a good, product, or service in the marketplace.” Id. § 27.001(7).
Martindale’s claim is based on Trice’s electronic statement published by the
Barker, a web-based forum. The statement constitutes a “communication[],” as
defined in the statute. See id. § 27.001(1); Deaver v. Desai, 483 S.W.3d 668, 673
(Tex. App.—Houston [14th Dist.] 2015 no pet.) (holding that statements on website
qualified as communication for purposes of TCPA). Further, the complained-of
16 statement regards a “matter of public concern,” as defined, because it relates to
community well-being, the government, and to public officials. See TEX. CIV. PRAC.
& REM. CODE ANN. § 27.001(7). Martindale asserted at the hearing on the motion to
dismiss that he is a public official.
Thus, the burden switched to Martindale to establish by “clear and specific
evidence a prima facie case for each essential element” of his claim. See TEX. CIV.
PRAC. & REM. CODE § 27.005(c); In re Lipsky, 460 S.W.3d at 592.
Martindale’s claim is that the statements at issue constitute libel per se. Libel
is defamation expressed in written or other graphic form. TEX. CIV. PRAC. & REM.
CODE ANN. § 73.001 (West 2017). 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) damages, unless
the statements are defamatory per se. In re Lipsky, 460 S.W.3d at 593.
Whether a publication constitutes an actionable statement of fact depends on
its verifiability and the context in which it was made. See Bentley v. Bunton, 94
S.W.3d 561, 581 (Tex. 2002). A statement is defamatory if it “tends to injure
a . . . person’s reputation and thereby expose the person to public hatred, contempt or
ridicule, or financial injury” or to “impeach” the person’s “honesty, integrity, virtue
or reputation.” TEX. CIV. PRAC. & REM. CODE ANN. § 73.001; Neely v. Wilson, 418
S.W.3d 52, 60 (Tex. 2013). Further, it is one that is derogatory, degrading, somewhat
17 shocking, and contains elements of disgrace. Better Bus. Bureau of Metro. Hous.,
Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 356 (Tex. App.—Houston [1st Dist.]
2013, pet. denied). A communication that hurts the plaintiff’s feelings or is merely
unflattering, abusive, annoying, irksome, or embarrassing is not actionable. Id. We
construe the statement as a whole in light of surrounding circumstances based upon
how a person of ordinary intelligence would perceive the entire statement. Musser
v. Smith Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987). “Whether words
are capable of the defamatory meaning the plaintiff attributes to them is a question of
law for the court.” John Moore Servs., Inc., 441 S.W.3d at 356. Questions of law
are subject to de novo review. Id.
The “requisite degree of fault” depends upon the status of the person allegedly
defamed. In re 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. “Actual
malice” in this context means that the statement was made with knowledge of its
falsity or with reckless disregard for its truth. Huckabee v. Time Warner Entm’t Co.,
19 S.W.3d 413, 420 (Tex. 2000) (“Actual malice in a defamation case is a term of
art. Unlike common-law malice, it does not include ill-will, spite, or evil motive.”).
Finally, the plaintiff must plead and prove damages, unless the defamatory
statements are defamatory per se. In re Lipsky, 460 S.W.3d at 593. “Texas
recognizes the common-law rule that defamation is either per se or per quod.” Dallas
18 Morning News, Inc. v. Tatum, No. 16-0098, 2018 WL 2182625, at *3 (Tex. May 11,
2018). Defamation per se refers to statements that are so obviously harmful that
general damages, such as mental anguish and loss of reputation, are presumed. In re
Lipsky, 460 S.W.3d at 593–94. For example, accusing a person of committing a
crime, having a foul or loathsome disease, or engaging in serious sexual misconduct,
or making remarks that adversely reflect on a person’s fitness to conduct his business
or trade, may be deemed defamatory per se. Id. at 596. If the court must resort to
innuendo or extrinsic evidence to determine that a statement was defamatory, then it
constitutes defamation per quod, i.e., not apparent on its face. Meisel v. U.S. Bank,
N.A., 396 S.W.3d 675, 680 (Tex. App.—Dallas 2013, no pet.); see also Hancock v.
Variyam, 400 S.W.3d 59, 64 (Tex. 2013) (“Defamation per quod is defamation that
is not actionable per se.”). Whether a statement qualifies as defamation per se is
generally a question of law. In re Lipsky, 460 S.W.3d at 596.
If a statement qualifies as defamation per se, Texas law presumes the existence
of general damages without proof of an actual injuury. Hancock, 400 S.W.3d at 65.
It does not, however, presume any particular amount of damages beyond nominal
damages. Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012). “Awards of
presumed actual damages are subject to appellate review for evidentiary support.”
Hancock, 400 S.W.3d at 66. Special damages, on the other hand, are never presumed,
19 as they represent specific economic losses that must be proven. In re Lipsky, 460
S.W.3d at 593–94.
Damages
The Barker and Trice contend that Martindale neither presented clear and
specific evidence that the complained-of comment constitutes defamation per se nor
presented such evidence of damages. Martindale argued that he was not required to
present clear and specific evidence of damages because the comment is defamatory
per se.
We first consider whether the statement at issue constitutes defamation per se,
which would absolve Martindale of presenting evidence of damages. A statement
constitutes defamation per se if it “injures a person in [his] office, profession, or
occupation.” Bedford v. Spassoff, 520 S.W.3d 901, 905 (Tex. 2017). A statement
that injures one in his profession is one that “ascribes to another conduct,
characteristics or a condition that would adversely affect his fitness for the proper
conduct of his lawful business, trade or profession, or of his public or private office.”
Hancock, 400 S.W.3d. at 66 (quoting RESTATEMENT (SECOND) OF TORTS § 573 (AM.
LAW. INST. 1977)). For example, “[w]hen peculiar skill or ability is necessary, an
imputation that attributes a lack of skill or ability tends to harm the other in his
business or profession.” Id. at 67 (quoting RESTATEMENT (SECOND) OF TORTS § 573
cmt. c). “Disparagement of a general character, equally discreditable to all persons,
20 is not enough unless the particular quality disparaged is of such a character that it is
peculiarly valuable in the plaintiff’s business or profession.” Id. (quoting
RESTATEMENT (SECOND) OF TORTS § 573 cmt. e). The inquiry is not whether a
reputation is necessary for a profession, because all professions require reputations
of some sort and, thus, all statements defaming professionals would be defamatory
per se. Id. The proper inquiry, rather, is whether a defamatory statement accuses a
professional of lacking a peculiar or unique skill that is necessary for the proper
conduct of the profession. Id. We consider the pleadings and supporting and
opposing affidavits stating the facts on which the liability is based. TEX. CIV. PRAC.
& REM. CODE ANN. § 27.006(a).
Martindale, in his affidavit, alleged that he was defamed by the following
comment by Trice on the Barker:
It appears to us that they haven’t had any issues getting rid of our teachers. Oh, by the way, this week is the week for the School Board to vote on teacher[s’] contracts. Now that Martindale’s wife is an Iola ISD employee, it will be much easier for them to choose which ones they need to get rid of to open positions for their friends, i.e. the kindergarten teacher that use [sic] to be the Martindale[s’] nanny.
He asserted that the teacher hired to fill the referenced kindergarten position, Jenna
Conner, has not worked for him or his family as a nanny or in another other similar
capacity. In his response to the motion to dismiss, he explained that the statement
alleges that he “engaged in improper terminating and hiring practices by forcing out
21 an existing teacher so that he could hire an individual [who] had previously worked
for him and his family as a nanny.”
Read carefully, however, the complained-of comment expressly refers to
hiring decisions being made by the school board, through a voting process:
It appears to us that they haven’t had any issues getting rid of our teachers. Oh, by the way, this week is the week for the School Board to vote on teacher[s’] contracts. Now that Martindale’s wife is an Iola ISD employee, it will be much easier for them to choose which ones they need to get rid of to open positions for their friends, i.e. the kindergarten teacher that use [sic] to be the Martindale[s’] nanny.
(Emphasis added.) The comment does not expressly state that Martindale engaged
in any particular conduct.
To constitute defamation per se, the defamatory nature of the challenged
statement must be apparent on its face without reference to extrinsic facts or
“innuendo.” KTRK Television, Inc., 409 S.W.3d at 691; see also Moore v. Waldrop,
166 S.W.3d 380, 386 (Tex. App.—Waco 2005, no pet.) (noting that “the very
definition of ‘per se,’ ‘in and of itself,’ precludes the use of innuendo”). If the court
must resort to innuendo or extrinsic evidence to determine whether a statement is
defamatory, the remark, if defamatory at all, can only constitute defamation per quod
and requires proof of injury and damages. KTRK Television, Inc., 409 S.W.3d at 691.
Here, the defamatory nature that Martindale espouses, i.e., that he “engaged in
improper terminating and hiring practices by forcing out an existing teacher so that
he could hire an individual [who] had previously worked for him and his family as a 22 nanny,” requires reference to extrinsic facts or innuendo. See id. Further, the
statement does not accuse Martindale of lacking a peculiar or unique skill that is
necessary for proper conduct as a school principal. See Hancock, 400 S.W.3d at 67.
Thus, we conclude that the complained-of statement does not constitute defamation
per se. See Bedford, 520 S.W.3d at 905.
Because the statement at issue is not defamatory per se, Martindale had the
burden to present “clear and specific evidence” of injury and damages. See id.;
Salinas, 365 S.W.3d 318, 320 (holding that general damages are presumed only if
statement qualifies as defamation per se).
With respect to damages, Martindale, in his petition, stated that the
complained-of comment “has or will cast and place [him], and his family, into
disputes, situations, and ridicule for which [he] ha[d] no control or responsibility.”
He sought damages “in an amount” that the jury determined was “fair and
reasonable,” not to exceed $100,000. In his response to the motion to dismiss, he
asserted that he was not required to prove actual damages because the complained-of
comment constituted defamation per se and thus general damages were presumed.
In his affidavit, he asserted that the complained-of comment had “injured [his]
reputation and exposed [him] to contempt in the community” and had “called into
question [his] honesty, integrity, virtue, and reputation.”
23 General averments “do not satisfy the Act’s clear-and-specific-evidence
standard without ‘specific facts illustrating how [a defendant’s] alleged remarks
about [a plaintiff’s] activities actually caused such losses.’” Bedford, 520 S.W.3d at
906. Rather, clear and specific evidence means that the “plaintiff must provide
enough detail to show the factual basis for its claim.” Id. at 904. “In a defamation
case that implicates the [Act], pleadings and evidence that establish[] 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 motion to dismiss under
the Act.” Id. (emphasis added).
Martindale’s affidavit is devoid of any “clear and specific” facts to illustrate
how he was damaged. See id. at 904–05 (concluding that neither petition, nor
response to motion to dismiss, nor affidavit attached to response, identified any actual
damages). Conclusory statements are not probative and accordingly will not suffice
to establish a prima facie case. John Moore Servs., 441 S.W.3d at 355. We conclude
that Martindale did not establish damages by clear and specific evidence. See
Bedford, 520 S.W.3d at 904–05 (holding that, “[e]ven if the Facebook post here were
defamatory, the statement is not defamation per se and Spassoff and the Dodgers
failed to establish damages by clear and specific evidence”).
Accordingly, we hold that the trial court erred in denying the Barker and
Trice’s motion to dismiss Martindale’s claim against them.
24 We sustain the Barker and Trice’s second issue.
Conclusion
We reverse the order of the trial court. With respect to Hurst’s claim, we
remand for consideration of the motion to dismiss on the merits. See Duchouquette,
2017 WL 5109341, at *4. With respect to Martindale’s claim, we remand for
dismissal and determination of attorney’s fees and sanctions consistent with the
TCPA. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a); Bedford, 520 S.W.3d
at 906.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.