D Magazine Partners, L.P. D/B/A D Magazine v. Janay Bender Rosenthal
475 S.W.3d 470
Tex. App.2015Background
- In March 2013 D Magazine published a one-page article titled “The Park Cities Welfare Queen,” identifying Janay Bender Rosenthal and criticizing SNAP (food-stamp) recipients who live in wealthy neighborhoods. The article alleged Rosenthal obtained SNAP benefits while living in a $1.15M house and implied she committed welfare fraud.
- Rosenthal sued publishers (D Magazine Partners, Magazine Limited Partners, Allison Media) for negligent defamation, libel per se, libel per quod with actual malice, and statutory claims under the DTPA and ITEPA; she sought actual and exemplary damages and attorney’s fees.
- Defendants moved to dismiss under the Texas Citizens Participation Act (TCPA). The trial court granted dismissal as to the DTPA/ITEPA claims and all claims on behalf of Rosenthal’s daughter, but denied dismissal of Rosenthal’s individual libel claim, finding she had established a prima facie case by clear and specific evidence.
- Key factual dispute: Rosenthal presented affidavits and HHSC (Texas Health and Human Services Commission) investigation results stating HHSC found no evidence of fraud; defendants relied on sources the magazine consulted (HHSC officers, public records) and argued the article’s gist was substantially true or privileged commentary on a matter of public concern.
- The appeals court reviewed de novo whether Rosenthal met the TCPA’s burden to establish a prima facie libel case and whether defendants proved affirmative defenses by a preponderance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rosenthal established by clear and specific evidence a prima facie libel claim (falsity, defamatory meaning, fault, damages) | Rosenthal produced pleadings, affidavits, HHSC letter finding no fraud, and evidence that HHSC was misled by an impersonator; she argued the article’s gist accused her of welfare fraud (a crime) and was false and defamatory per se. | Defendants argued the article’s gist was substantially true (Rosenthal lived in/used address near UP, had theft history, trust properties existed, SNAP payments occurred) and that any implication of fraud was reasonable comment on a matter of public concern. | Held: Affirmed trial court — Rosenthal met the TCPA prima facie burden by clear and specific evidence that the article’s gist (that she committed welfare fraud) was false, defamatory per se, and that defendants were negligent in verification. |
| Whether defendants established affirmative defenses (truth; fair-comment qualified privilege) by a preponderance of the evidence | N/A (plaintiff disputes truth/privilege) | Defendants asserted substantial truth of key facts and that the piece was fair comment/criticism on a public matter and thus privileged. | Held: Defendants failed to prove truth of the article’s implication that Rosenthal lied on her SNAP renewal or that the article was protected fair comment as to those false assertions; trial court correctly denied dismissal on libel claim. |
| Whether defendants were entitled to TCPA attorney’s fees on claims dismissed below and whether remand required for fees | N/A | Defendants sought fees for dismissed claims (DTPA, ITEPA, daughter’s claims) and fees/costs overall. | Held: Because defendants did not prevail on the libel claim, they were not entitled to TCPA fees for that claim; appellate jurisdiction did not allow review of fee awards for the dismissed claims, so no remand for fees was ordered. |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (explains TCPA burdens, "clear and specific evidence" standard, and treatment of defamation claims under TCPA)
- Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000) (court must construe publication as a whole and determine the publication’s "gist")
- WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998) (standards for defamation and negligence in media reporting)
- Scripps Texas Newspapers, L.P. v. Belalcazar, 99 S.W.3d 829 (Tex. App.—Corpus Christi 2003) (negligence standard for media defendants and when editors should be alerted to defamatory potential)
- Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013) (discussion of privilege as defense in defamation context)