ERIC LYNN BAUMGART, Appellant v. PHILLIP DOUGLAS ARCHER, KPRC-TV CHANNEL 2, GRAHAM MEDIA GROUP, HOUSTON, INC., GRAHAM MEDIA GROUP, GRAHAM HOLDINGS COMPANY, Appellees
NO. 01-18-00298-CV
Court of Appeals For The First District of Texas
June 27, 2019
On Appeal from the 157th District Court, Harris County, Texas, Trial Court Case No. 2017-83349
O P I N I O N
Baumgart sued Graham Media for defamation. Graham Media moved for and obtained dismissal of Baumgart‘s claims and an award of attorney‘s fees under the Texas Citizens Participation Act (TCPA or the “Act“). See
Background
Baumgart was a reserve officer with the Liberty County Constable‘s Office and an investigator with the Harris County Public Defender‘s Office when he was charged with crimes—acting as a private security guard without the appropriate license and tampering with a governmental record.2
Baumgart alleges that he served time in jail because of Greenwood‘s vendetta against him. According to Baumgart, the vendetta began when Baumgart helped draft a federal civil rights complaint against Harris County. And the complaint provoked Greenwood, who then served as an assistant district attorney in the police integrity unit, not only to prosecute retaliatory criminal charges against Baumgart, but also, to pressure the public defender to end his employment.
While he was incarcerated, Baumgart submitted a request under the Texas Public Information Act, see
Phillip Douglas Archer, a Graham Media journalist working for the Houston NBC affiliate known as KPRC, learned of Baumgart‘s public-records request during his investigation of Greenwood‘s murder. Archer interviewed Baumgart the day after Greenwood died, and asked about Baumgart‘s fraught relationship with Greenwood, whether the men perceived one another as a safety threat, and Greenwood‘s death.
The same day, KPRC ran a television news story and related article, both of which KPRC published on its website, about Greenwood‘s murder and the documented hostility between Baumgart and Greenwood. Archer was the reporter. The web article—entitled “Slain deputy constable feared former officer he had investigated, source says“—read in its entirety:
Five days before he was slain, Clint Greenwood told officials in the county attorney‘s office that he believed a man he‘d helped send to jail was a threat to him and his family.
The man he was talking about is currently a prisoner in the Harris County Jail, Eric Baumgart, a former investigator for the Harris County Public Defender‘s Office and a reserve officer with the Liberty County police agency.
Greenwood helped convict him of tampering with a government document and with providing private security services without a license in 2014.
Baumgart, 47, was sentenced to 90 days in jail and five years of probation. He began serving his sentence in January.
In an interview Tuesday afternoon at the jail, Baumgart said county detectives searched his belongings on Monday, following Greenwood‘s death, but he says they still haven‘t spoken to him.
Last January, a source close to the murder investigation said Baumgart submitted a freedom of information request from jail asking for Greenwood‘s pay records. Greenwood was contacted by the county attorney‘s office, and asked that the records not be released.
Greenwood sent another email on March 30 saying he believed Baumgart was a threat to him and his family, according to the source.3
On Tuesday, Baumgart attributed that statement to what he calls a vendetta Greenwood waged against him after Baumgart helped a friend file a civil rights lawsuit against the county in 2012.
He says Greenwood ruined his career and put him in jail. He said he considered Greenwood a threat to him.
During the election last fall, Baumgart ran an ad accusing Greenwood‘s boss at the time, District Attorney Devon Anderson, of corruption – naming Greenwood in the ad – among others.
When asked if he wanted Clint Greenwood dead – or had anything to do with his murder, Baumgart said, “Of course not.”
He says he expects investigators will be talking to others who were involved in the lawsuit with him.
Police investigating Greenwood‘s death have not named Baumgart, or anyone else, as a suspect in this case.
Editor‘s note: An earlier version of this story reported that Baumgart had been questioned in connection with Greenwood‘s homicide, and that Baumgart worked as a reserve deputy at the Liberty County Sheriff‘s Office. The corrected version of the story is above.
This same information was also conveyed to a viewing audience in a television broadcast.
Baumgart asserts that the murder coverage published by KPRC falsely portrayed him as Greenwood‘s “assassin.” According to Baumgart, the defamatory coverage was motivated by Graham Media‘s desire to increase advertising revenue through click-bait headlines. He sued Graham Media, pleading causes of action for defamation per se and per quod and negligence. Graham media moved to dismiss Baumgart‘s lawsuit under the TCPA. See
We first consider whether Graham Media and Baumgart satisfied their respective burdens under the TCPA and whether the trial court erred by not permitting Baumgart to conduct discovery before dismissing his claims.
A. Principles of law and standard of review
“The Texas Citizens Participation Act is a bulwark against retaliatory lawsuits meant to intimidate or silence citizens on matters of public concern.” Dallas Morning News, Inc. v. Hall, No. 17-0637, 2019 WL 2063576, at *4 (Tex. May 10, 2019). A defendant in a case that is “based on, relates to, or is in response to a party‘s exercise of the right of free speech” may move for dismissal under the Act.
A prima facie case is “the ‘minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.‘” KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 721 (Tex. 2016) (citing In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015)). The clear-and-specific-evidence requirement means the plaintiff “must provide enough detail to show the factual basis for its claim” and must provide enough evidence “to support a rational inference that the allegation of fact is true.” Lipsky, 460 S.W.3d at 590–91;
If the plaintiff fails to carry his burden—or if the defendant establishes the essential elements of a valid defense under section 27.005(d)—the trial court must dismiss the suit. In deciding if dismissal is warranted, we consider all the “pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.”
B. Whether Graham Media satisfied its TCPA burden
The trial court found that Baumgart‘s lawsuit was based on Graham Media‘s exercise of the right of free speech, which the TCPA defines as “a communication made in connection with a matter of public concern.”
Baumgart does not dispute that the murder of a high-ranking law enforcement officer was a matter of public concern. His complaint is that Graham Media identified him as a past threat to Assistant Chief Deputy Greenwood even though Graham Media knew he could not have committed the murder because he was in jail at the time. According to Baumgart, “[k]nowingly linking an innocent person to an assassination and placing a family in harm‘s way” is
We agree with Graham Media that its reporting on Baumgart‘s historical conflict with Greenwood involved a matter of public concern and, thus, is speech protected by the TCPA. “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community‘” or when it “‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.‘” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). The courts routinely hold that “matters related to the reporting of crimes and related proceedings are matters of public concern.” Klentzman v. Brady, 456 S.W.3d 239, 258 (Tex. App.—Houston [1st Dist.] 2014), aff‘d, 515 S.W.3d 878 (Tex. 2017). So too are the activities of government officials and law enforcement personnel. Klentzman, 456 S.W.3d at 258; see Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 769 (1986) (holding that news articles asserting that private businessman used organized-crime connections to influence governmental processes were on issues of public concern); Connick, 461 U.S. at 148 (holding that speech seeking to “bring to light actual or potential wrongdoing or breach of public trust” by government official constitutes speech on matter of public concern); Brawner v. City of Richardson, 855 F.2d 187, 191–92 (5th Cir. 1988) (holding that alleged misconduct by public officials, particularly law enforcement officials, is matter of public concern).
The speech Baumgart complains of concerned (1) the fraught relationship between Greenwood, a high-ranking peace officer, and Baumgart, a former peace officer, which at least Greenwood believed could become violent, and (2) allegations of official misconduct by Greenwood in prosecuting Baumgart in retaliation for his effort to hold the county responsible for alleged civil rights violations. Such speech detailing the prosecution of one peace officer and the allegations of misconduct against another peace officer and former prosecutor is a communication made in connection with an issue related to health or safety, community well-being, government, or public officials, and thus, is a matter of public concern. See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492 (1975) (“The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions . . . are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report the operations of government.“); see also Opaitz v. Gannaway Web Holdings, LLC, 454 S.W.3d 61, 66 (Tex. App.—Amarillo 2014, pet. denied) (explaining that because of public trust placed in law enforcement officers, public has interest in information considering an officer‘s fitness for duty). Baumgart‘s legal action asserting claims against Graham Media was filed “in response to” this speech addressing his relationship with Greenwood. See
C. Whether Baumgart satisfied his TCPA burden
Baumgart asserted defamation and negligence claims against Graham Media; however, only his defamation claim is at issue on appeal. Beyond his threshold assertion that Graham Media‘s speech is not protected by the TCPA, which we rejected above, Baumgart has made no argument in support of his negligence claim. We thus consider the negligence claim abandoned on appeal and only decide whether the record establishes “by clear and specific evidence a prima facie case for each essential element of the [defamation] claim in question.”
The parties we refer to collectively as “Graham Media” are undisputedly media defendants, and we have already determined that their publications communicated matters of public concern. When a plaintiff sues a media defendant over statements on matters of public concern, the elements of defamation are (1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) was made with the requisite degree of fault, and (4) damages, in some cases. Hall, 2019 WL 2063576, at *5; Lipsky, 460 S.W.3d at 593. “In a defamation case that implicates the TCPA, pleadings and evidence that establishes the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff should be sufficient to resist a TCPA motion to dismiss.” Lipsky, 460 S.W.3d at 591.
Here, the evidence of falsity and defamatory content is lacking. Baumgart had the burden of establishing by clear and specific evidence a prima facie case that Graham Media‘s publications were false. See D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017) (“Because of the importance of cultivating and protecting freedom of expression, the plaintiff bears the burden of proving falsity if the alleged defamatory statements were made by a media defendant over a matter of public concern.“). To not be false, “[a] statement need not be perfectly true[ ] as long as it is substantially true.” Toledo, 492 S.W.3d at 714 (citing Neely v. Wilson, 418 S.W.3d 52, 63–64 (Tex. 2013)). Substantial truth may be measured by whether the article, taken as
Baumgart does not argue on appeal that Graham Media falsely stated that he was guilty of murder or other criminal misconduct related to Greenwood‘s death. Neither does he argue that the individual statements published by Graham Media are not substantially true. Rather, he argues that Graham Media implied his guilt. “[A] plaintiff can bring a claim for defamation when discrete facts, literally or substantially true, are published in such a way that they create a substantially false and defamatory impression by omitting material facts or juxtaposing facts in a misleading way.” Id. at 115; see Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 627 (Tex. 2018) (explaining that, in defamation-by-implication case, defamatory meaning arises implicitly from statement‘s text). So even if a publication “gets the details right but fails to put them in the proper context and thereby gets the story‘s ‘gist’ wrong,” it may be liable for defamation. Turner, 38 S.W.3d at 115 (internal citation omitted).
The Texas Supreme Court‘s opinion in Rosenthal is instructive here. In Rosenthal, the Court recognized that true statements strung together and accompanied by speculative commentary might wrongly imply that the subject of a publication has committed a crime. See Rosenthal, 529 S.W.3d at 431–32. The case concerned an article, “The Park Cities Welfare Queen,” that described a woman living in a wealthy neighborhood but receiving food stamps.
The Court held that the article impliedly accused the woman of obtaining welfare benefits by fraud.
This is not a Rosenthal case. We cannot find any statements in Graham Media‘s television broadcast or web article6 implying that Baumgart is guilty of any crime in connection with Greenwood‘s murder. In Rosenthal, the magazine made thinly veiled accusations such as the plaintiff “must have been less than forthcoming” and juxtaposed damning facts with seemingly on-point criminal statutes. Graham
We conclude that Baumgart‘s claim that the television broadcast and web article imply he murdered or was involved in the murder of Greenwood is not supported by the record. Accordingly, we hold that Baumgart did not meet his burden under the TCPA to establish by clear and specific evidence that Graham Media‘s reporting was not substantially true or was published in such a way that it created a substantially false and defamatory impression, and the trial court did not err in dismissing his legal action under the TCPA. See
D. Denial of Discovery
Baumgart also contends that the trial court‘s denial of his request for limited discovery “unjustly denied” him access to the courts and due process under Article I, Section 13 of the Texas Constitution.7 We disagree.
Article I, Section 13 instructs that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”
Baumgart maintains that the trial court ran afoul of this guarantee by denying the limited discovery he requested. See
We also reject Baumgart‘s contention that the denial of his discovery request is reversible, non-constitutional error. Baumgart argues that he requested discovery that would have buttressed his defamation claim. In his motion, Baumgart requested the depositions of Archer, Soard (the county attorney who told Archer that Greenwood had described Baumgart as a threat in an email about Baumgart‘s public-records request), two county attorneys who were included in the email correspondence, and “a designated witness from the information technology department” for the county. At the hearing on Graham Media‘s TCPA motion, Baumgart argued:
The email that they are relying on that Mr. Soard gave them is an unauthenticated email. That is one of the things that I do want to get in deposition. I want that authenticated and I want the IT department to authenticate it.
If you look at the exhibit that they produced, it appears to be cut and pasted. There‘s something wrong with that email and I think I‘m entitled to answers on it.
Given our conclusion that Graham Media‘s reporting was not capable of defamatory meaning, we fail to see how the requested depositions—of Archer, the county attorneys, and a county IT professional on the information communicated to Archer about Baumgart‘s public-records—would have changed the result in this case. See
For all these reasons, we conclude that the record does not support reversal because of the denial of discovery.
Constitutional Challenges
Baumgart raises alternative arguments that the TCPA violates the Texas Constitution. Specifically, he argues that Section 27.009(a)‘s language authorizing a
Baumgart, however, did not raise these constitutional challenges in the trial court,8 and therefore they are not preserved for our review. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002) (observing that litigant “must raise an open-courts challenge in the trial court” to preserve challenge for appellate review); Tex. Dep‘t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (“‘[A]s a rule, a claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal.‘” (citations omitted)); Wisenhunt, 474 S.W.3d at 39 (same); see also
Conclusion
For these reasons, we conclude Graham Media met its initial burden to establish by a preponderance of the evidence that Baumgart‘s legal action is based on, relates to, or is in response to its exercise of the right of free speech, as defined in the TCPA. Because Baumgart failed to meet his burden to establish clear and specific evidence of a prima facie case for each essential element of his defamation claim, the trial court properly dismissed Baumgart‘s legal action. We decline to hold that either the TCPA or any subpart at issue in this appeal is unconstitutional because those questions have not been preserved for our review. Accordingly, we overrule Baumgart‘s appellate issues and affirm the trial court‘s judgment.
Sarah Beth Landau
Justice
Panel consists of Justices Keyes, Higley, and Landau.