BETTER BUSINESS BUREAU OF METROPOLITAN DALLAS, INC., Appellant v. Lloyd WARD, Appellee
2013 Tex. App. LEXIS 6048
| Tex. App. | 2013Background
- BBB moved to dismiss Ward’s defamation and negligence action under TCPA; trial court denied the motion.
- Court held TCPA applies to the BBB’s business reviews and public communications.
- Ward added as a plaintiff; BBB sought dismissal of Ward’s individual claims within 60 days of amended petition.
- Court discussed jurisdiction for interlocutory appeal from denial of TCPA motion, citing a contemporaneous Dallas panel decision.
- BBB argued Ward’s claims are based on or related to BBB’s exercise of free speech and Ward failed to prove prima facie elements by clear and specific evidence.
- Court ultimately held the BBB’s motion to dismiss should be granted, and remanded for further proceedings consistent with TCPA §27.009(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the TCPA apply to the BBB’s business reviews? | Ward contends the TCPA doesn’t shield the BBB’s reviews. | BBB contends the review is a matter of public concern and protected by the TCPA. | Yes; applying to the BBB’s business review and public communication. |
| Did Ward establish a prima facie case for each element under the TCPA burden? | Ward argues no need to show prima facie elements due to non-applicability. | BBB contends Ward failed to provide clear and specific evidence for each essential element. | Ward failed to establish prima facie evidence; trial court erred in denial of dismissal. |
| Is the interlocutory appeal proper under TCPA §27.003 and related decisions? | Ward argues no interlocutory appeal jurisdiction. | BBB asserts jurisdiction exists under the Texas TCPA scheme. | Court has jurisdiction over the interlocutory appeal and reverses accordingly. |
Key Cases Cited
- Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011) (statutory construction standard for review of text)
- TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) (interpretation of legislative intent in statutory analysis)
- Leland v. Brandal, 257 S.W.3d 204 (Tex. 2008) (textual approach to statutory interpretation and purpose)
- Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864 (Tex. 1999) (legislative intent guiding statutory construction)