578 S.W.3d 676
Tex. App.2019Background
- StoneCoat (and principal Morrison) and ProCal are competing Texas businesses selling spray‑on/blown limestone; Profanchik Jr. is son of a ProCal principal.
- An allegedly fake negative review on ripoffreport.com accused ProCal/Profanchik of poor work and praised StoneCoat; Profanchik Jr. alleged StoneCoat posted or caused the review.
- Profanchik Jr. sued StoneCoat for defamation (libel per se) in Travis County; StoneCoat moved to dismiss under the Texas Citizens Participation Act (TCPA).
- StoneCoat argued the suit was based on its exercise of free speech (triggering the TCPA); Profanchik Jr. countered that the TCPA’s commercial‑speech exemption applied and alternatively that he had established a prima facie defamation case.
- The district court denied StoneCoat’s TCPA motion; StoneCoat appealed. The Court of Appeals affirmed, concluding the commercial‑speech exemption excluded the claim from the TCPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether StoneCoat met initial TCPA burden that the suit is based on its exercise of free speech | Profanchik: petition shows claim is not within TCPA because exemption applies; also contests movant’s proof | StoneCoat: pleadings show claim is based on its alleged online review; therefore TCPA applies | Court: StoneCoat met initial burden by relying on plaintiff’s petition showing suit is based on the ripoffreport review |
| Whether the TCPA’s commercial‑speech exemption (§27.010(b)) bars application of the TCPA | Profanchik: exemption applies because review relates to marketplace goods/services and intended customers | StoneCoat: exemption inapplicable—argues review is not paid advertising, no transaction with plaintiff, and no evidence StoneCoat authored the review | Court: Exemption applies—speech need not be paid advertising and need not involve a transaction with the plaintiff; the review relates to goods/services and targeted potential customers |
| Whether plaintiff met TCPA step‑two prima facie showing of defamation | Profanchik: asserts he established prima facie elements at hearing | StoneCoat: argued plaintiff failed to prove prima facie case | Court: Did not address because commercial‑speech exemption removes the claim from the TCPA and precludes dismissal under the TCPA |
Key Cases Cited
- Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018) (interpreting TCPA commercial‑speech exemption elements)
- Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017) (plaintiff’s petition defines the basis of the action for TCPA first‑step analysis)
- Best v. Harper, 562 S.W.3d 1 (Tex. 2018) (if a TCPA exemption applies, movant cannot invoke TCPA protections)
- Stockyards Nat’l Bank v. Maples, 95 S.W.2d 1300 (Tex. 1936) (pleadings as primary evidence of nature of action)