the Better Business Bureau of Metropolitan Houston, Inc. v. John Moore Services, Inc. and John Moore Renovation, LLC
2013 Tex. App. LEXIS 8756
| Tex. App. | 2013Background
- This interlocutory appeal challenges the trial court’s denial of the Better Business Bureau’s TCPA motion to dismiss John Moore’s suits arising from BBB ratings and use of BBB awards.
- Moore was BBB-accredited with an A+ rating before December 2010; it resigned, and the Houston BBB revoked accreditation after consumer complaints.
- Moore relocated its headquarters to Bryan-College Station; the Houston BBB then reclassified Moore as not aligned with the Houston area and changed its rating to NR.
- In 2012 the BBB learned Moore still advertised Houston contact information and used BBB marks; the BBB again treated Moore as Houston-area and filed related disputes, including a federal trademark suit.
- Moore asserted multiple causes of action (defamation, business disparagement, fraud, tortious interference); the BBB moved to dismiss under the TCPA, arguing actions were based on free-speech rights.
- The court held jurisdiction to review the denial under section 27.008 and then analyzed the TCPA merits, concluding Moore failed to present clear and specific evidence for a prima facie case on all claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Interlocutory appeal jurisdiction under TCPA | Moore argued no interlocutory appeal when the denial was not by law. | BBB argued section 27.008 permits appeal from a timely denial of a TCPA motion. | We have interlocutory jurisdiction and address denial. |
| Whether the action is based on the exercise of free speech | Moore contends the claims are not protected speech. | BBB shows the claims relate to ratings and use of BBB marks as opinions in the marketplace. | Yes; the actions relate to the exercise of free speech about goods/services. |
| Applicability of the commercial-speech exemption | Moore argues exemption may apply since BBB sells advertising and services. | Intended audience is the general public, not actual or potential BBB members. | Exemption does not apply. |
| Prima facie evidence standard under TCPA | Moore provided evidence to support each element of its claims. | Moore failed to provide clear and specific evidence for essential elements. | Moore failed to marshal clear and specific evidence for prima facie claims. |
| Defamation sufficiency under TCPA | Statements about accreditation, awards, and F-rating were defamatory. | Some statements were non-defamatory opinions or not verifiably false. | No actionable defamation shown; some statements not defamatory as a matter of law. |
Key Cases Cited
- WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998) (defamation standards and verifiability of statements)
- Meadows v. ABCABCO, Inc., 315 S.W.3d 209 (Tex. App.—Austin 2010) (defamatory meaning and standard of fault)
- Carr v. Brasher, 776 S.W.2d 567 (Tex. 1989) (defamatory meaning and determination by court)
- Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653 (Tex. 1987) (defamation protectable statements and general rule)
- Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors Inc., 960 S.W.2d 41 (Tex. 1998) (fraud elements and reliance standard)
- Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573 (Tex. 2001) (reliance and misrepresentation standard in fraud)
- In re Humphreys, 880 S.W.2d 402 (Tex. 1994) (contract and tort analysis framework)
- Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762 (Tex. 1987) (business disparagement elements and malice)
- Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 2013 WL 1867104 (Tex. App.—Houston [1st Dist.] 2013) (TCPA clear and specific evidence standard)