Brett Shipp v. Dr. Richard Malouf and Leanne Malouf
439 S.W.3d 432
| Tex. App. | 2014Background
- Dr. Richard Malouf (Dallas dentist, subject of state civil suits alleging Medicaid fraud) and his wife sued WFAA reporter Brett Shipp for defamatory statements in a June 26, 2012 TV broadcast.
- Broadcast recounted government investigations and civil suits against Malouf, and included the lines that Malouf “filed for bankruptcy and is in the process of divesting his once impressive empire,” which was partially false (Malouf’s company filed bankruptcy, not Malouf personally).
- Shipp filed a plea to the jurisdiction (arguing denial of a 12-person jury in county court at law) and a motion to dismiss under the Texas Citizens Participation Act (TCPA), claiming the suit targeted his exercise of free speech on a matter of public concern.
- Trial court denied both plea and TCPA motion; Shipp appealed interlocutorily under section 51.014.
- The Court of Appeals affirmed denial of the jurisdictional plea, held the broadcast constituted protected speech on a matter of public concern, found the Maloufs failed to present clear and specific evidence establishing a prima facie case on defamation and conspiracy, reversed the denial of the TCPA motion, rendered dismissal with prejudice, and remanded for award of costs and attorney’s fees under the TCPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction / jury size | Malouf: case in county court at law deprived Shipp of right to 12-person jury, depriving court of jurisdiction | Shipp: jury size is not a jurisdictional defect; county courts at law have jurisdiction | Court: Jury size is not a jurisdictional issue; affirmed denial of plea to jurisdiction |
| TCPA applicability (exercise of free speech; matter of public concern) | Malouf: Complaint limited to false statements about personal bankruptcy/divestment (personal finances not public concern) | Shipp: Entire broadcast concerned Medicaid fraud and government efforts; communication relates to matter of public concern | Court: Consider whole broadcast and context; broadcast concerned government efforts to curb Medicaid fraud — TCPA applies |
| Whether false bankruptcy statement is defamation per se | Malouf: False allegation of bankruptcy is defamation per se; general damages presumed | Shipp: Bankruptcy allegation does not necessarily injure Malouf’s professional fitness as a dentist; not per se | Court: Not per se; per Hancock, statement must injure fitness to perform profession — personal bankruptcy did not show such harm for a dentist |
| Prima facie evidence of damages / claim elements under TCPA §27.005(c) | Malouf: Damages presumed (per se) or otherwise shown (contractor email) | Shipp: Maloufs must present clear and specific evidence of each element; record lacks such evidence of actual damages or conspiracy | Court: Maloufs failed to present clear and specific evidence of actual damages or of conspiracy; TCPA dismissal required — judgment rendered dismissing claims |
Key Cases Cited
- In re Siemens Corp., 153 S.W.3d 694 (Tex. App.—Dallas 2005) (jury size is not a jurisdictional matter)
- Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013) (elements of defamation and standards distinguishing per se and per quod)
- Hancock v. Variyam, 400 S.W.3d 59 (Tex. 2013) (defamation per se requires statement to affect plaintiff’s fitness to perform business or profession)
- In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218 (Tex. 2004) (definition of prima facie standard)
- Gulf Constr. Co. v. Mott, 442 S.W.2d 778 (Tex. Civ. App.—Houston [14th Dist.] 1969) (false charge of bankruptcy actionable per se for merchant/contractor relying on credit)
- Denton Publ’g Co. v. Boyd, 460 S.W.2d 881 (Tex. 1970) (false statement of merchant bankruptcy may be libelous per se)