John N. Burgger v. Jerry Swinford and Jason Swinford
14-16-00069-CV
| Tex. App. | Aug 23, 2016Background
- Jerry and Jason Swinford, former officers/contracting parties with Coil Tubing Technology, Inc. (CTT), sued John Brugger for defamation, libel, and business disparagement arising from alleged statements Brugger made to CTT shareholders and others accusing the Swinfords of self-dealing and criminal conduct.
- Swinfords allege Brugger told shareholders he was authorized to pursue self-dealing claims, warned a third party (Connaughton) not to settle, and compared the Swinfords to a convicted stock-fraud defendant.
- Brugger (an attorney connected to CTT) filed a TCPA (Texas Citizens’ Participation Act) motion to dismiss, asserting the claims were based on his exercise of free speech regarding matters of public concern (economic well-being/marketplace service).
- The trial court denied Brugger’s TCPA motion without specifying grounds; Brugger filed an interlocutory appeal under the TCPA’s interlocutory appeal provision.
- On appeal, the court reviewed de novo whether Brugger met his initial burden to show by a preponderance that the Swinfords’ claims implicate the TCPA (i.e., were based on exercise of free speech) and concluded he did not.
- Because Brugger failed to establish the communication was made in connection with a matter of public concern, the court dismissed the interlocutory appeal for lack of jurisdiction and did not reach whether the Swinfords had established a prima facie case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the TCPA applies because claims are based on defendant’s exercise of free speech | Swinfords: statements alleged are not shown to be communications on a matter of public concern; motion lacks evidence | Brugger: statements to shareholders and about CTT relate to economic well-being/marketplace and thus are protected speech under TCPA | Held: No — Brugger failed to prove by preponderance that the communications were made in connection with a matter of public concern; TCPA does not apply |
| Whether the interlocutory appeal is properly before the court under TCPA | Swinfords: appeal should be dismissed because TCPA not invoked | Brugger: interlocutory appeal permitted if TCPA dismissal granted | Held: Appeal dismissed for lack of jurisdiction because movant did not satisfy TCPA threshold |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (establishes TCPA two-step framework and burdens)
- Rehak Creative Servs. v. Witt, 404 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2013) (standard for de novo review of TCPA denial)
- Jardin v. Marklund, 431 S.W.3d 765 (Tex. App.—Houston [14th Dist.] 2014) (jurisdictional precedent regarding TCPA interlocutory appeals)
- Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210 (Tex. App.—Houston [1st Dist.] 2014) (pleadings viewed in favor of nonmovant when assessing TCPA)
- ExxonMobil Pipeline Co. v. Coleman, 464 S.W.3d 841 (Tex. App.—Dallas 2015) (business/internal communications are not necessarily matters of public concern)