Lead Opinion
OPINION ON REHEARING
Appellee, Robert J. Rogers,-filed suit for defamation against all of the appellants. The appellants filed motions to dismiss under Chapter 27 of the Texas Civil Practice and Remedies Code.
Appellants, Richard Fawcett, Kevin Roberts, Darrin Pitts,' George Lillard, Christopher Matthews, Armando Florido, Billy Moreno, David Vukovic, Ken Kirkpatrick, James Lemons, Douglas Hissong, and Salomon Lahana, filed a motion for rehearing from our January 14, 2016 opinion. We grant the motion for rehearing, withdraw our prior opinion and judgment, and issue this opinion and- a new judgment in their place. -
We affirm, in part, and reverse and render, in part.'
Background
All of the parties to this appeal, with the exception of Lahana, are members and officers of Gray Masonic Lodge 329, in Houston, Texas. Rogers served as the treasurer for Gray Lodge'from July 2011 to April 30, 2014. On August 6; 2014, all but three of the appellants, Lahana, His-song, and Lillard, signed a document entitled “Chargés of Masonic Disciplinary Violations,”- charging Rogers and-'two other members with violating several Masonic rules.
The document states that the charges “were public[ly] presented at the August 6th, 2014 stated meeting of Gray Lodge No. 329 _ in the presence of R.W. Dennis Billings District Deputy Grand Master, during his official' visit to the lodge.” The document also announced that everyone who “affixed their names” to the document was “in agreement to these charges.” The details of the charges as
In response to the masonic charges, Rogers filed suit against the people who signed the charging document, Lahana, and Hissong. Rogers claimed that the allegations against him in the charging document were defamatory.
After Rogers filed suit, certain members of the lodge, including Lillard, sent emails discussing the suit. In one email in the exchange, Lillard suggested to Roberts that Roberts should contact the lodge’s insurance company, deny any wrongdoing, and inform the insurance company that Rogers may have committed a “swoop and squat” scheme. Specifically, Lillard wrote,
I also. recommend that you order (in writing) Mark to convey to the insurance ■ company • that we [heartily] deny any liability or wrong doing and (this is important) that the suing party is the same person who insisted .on the lodge tak[ing] out heavy liability coverage. Don’t, say “it is” but this might be a variation, of the old “swoop & squat” where the claimant “sets up” the claim ahead of time.
Lillard later included others officers of the lodge on the email chain containing the email in question. Soon after, Rogers amended his petition, naming Lillard as a defendant and claiming that the email in question was defamatory.
Once they answered, the defendants filed motions to dismiss based on 'Chapter 27 of the Civil Practice and Remedies Code.
Rogers responded to the motion, asserting that Chapter 27 did not apply and that he had sufficient proof of his claims to prevent dismissal. ■ One of Rogers’s exhibits attached to the motion was his affidavit. In it, he averred that the parties that charged him with financial wrongdoing never consulted or involved the lodge’s treasurer. He also asserted that all of the defendants that signed the charging document knew an annual audit of the organization was underway and that two of the signers were on the audit committee. He testified that that the audit — completed two weeks after the charges — found no financial wrongdoing. The record also includes a letter stating that the grand master, who oversaw the investigation of the charges asserted against Rogers, “determined that the allegations do not rise to the level of a Masonic disciplinary violation. He dismissed the allegations.”
After a hearing, the trial court denied the motion to dismiss.
Motion to Dismiss
In their first two issues, the appellants argue that the trial court erred by denying their motion to dismiss because they proved that .Rogers’s claims are subject to Chapter 27 and because Rogers failed to establish the prima facie elements of his defamation claims. Before analyzing these issues, it is necessary to distinguish between certain appellants. Nine of the ap
A. Standard of Review
We review de novo a trial court’s ruling on a motion to dismiss pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code. Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc.,
B. Whether the Claims Fall Under Chapter 27
Chapter 27 of the Civil Practice and Remedies Code allows parties to seek dismissal of certain types of claims filed against them unless the opposing party presents prima facie evidence of each element of those claims. See Tex. Crv. PRAC. & Rem. Code Ann. §§ 27.003(a), 27.005(b)-(c) (Vernon 2015). This involves a two-step process. See Prather & Bland, Bullies Beware: Safeguarding Constitutional Rights Through Anti-SLAPP in Texas, 47 Tex. Tech. L. Rev. 725, 750-53 (2015). First, as it applies to this case, the moving party must show “that the legal action is based on, relates to, or is in response to the ■ party’s exercise of ... the right of association.” Civ, PRAC. & Rem. § 27.005(b)(3). If the movant, carries this burden, the non-movant must then submit prima facie proof of each essential element of the applicable claims.
Rogers brought defamation claims against each of the appellants. The appellants argue that the ■ defamation claims relate to their .exercise of the right of association. A legal action that “is based on, relates to, or is in response to a party’s exercise of ... the right of association” falls under the protections of Chapter 27. See id. § 27.003(a); accord Tex. Civ. PRAC. & Rem. Code Ann. § 27.005(b)(3). “.‘Exercise of the right of association’ means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.” Tex, Civ. Pbac. & Rem, Code Ann. § 27.001(2) (Vernon 2015).
All the parties to this suit are Masons. All but Lahana are members of the same lodge. For all of the appellants except Lillard, the facts giving rise to the suit stem from the Signing Defendants signing .a document accusing Rogers of violations of the organization’s rules and seeking review within the organization of the allega
'• The claim of defamation against Lillard stems from an email discussing the allega*-tions asserted against Rogers. In one email in the exchange, Lillard suggested to Roberts that Roberts should contact the lodge’s insurance company, deny any wrongdoing, and inform the insurance company that Rogers may have committed a “swoop and squat” scheme. Lillard later included other officers of the lodge on the email chain containing the email in question.
The facts of all of these allegations are similar to those in Combined Law Enforcement Associations of Texas v. Sheffield, No. 03-13-00105-CV,
Ultimately, Sheffield brought defamation actions against CLEAT and its executive director, Burpo. Id. at *2. In the suit, Sheffield alleged that CLEAT and Burpo defamed him by stating that “Sheffield committed criminal acts in connection with his employment with CLEAT.” Id. CLEAT and Burpo. filed a motion to dismiss under Chapter 27, claiming the statements related to their right of association. Id. The Austin Court of Appeals held that the statements made among the members of CLEAT fell under Chapter 27. See id. at *5. - The members of CLEAT had “joined. together ... to collectively express, promote,; or defend the common interests of police officers.” Id. The allegations of Sheffield’s wrongdoing during and immediately following his employment with CLEAT “plainly [were] based on, related] to, or [were] in response to these communications made in the exercise of the right of association.” Id.
We hold the same is true here. All of the communications about which Rogers complains were made among Masons.. All of the defendants except for Lahana were members of the same lodge. Lahana’s basis for being sued was his .involvement in the activities of the Gray Lodge. All of the complained-of communications concerned whether Rogers had violated internal rules of the organization. The allegedly defamatory document that the Signing Defendants signed sought review within the organization of Rogers’s actions.
It is undisputed that all of the parties, as members of the Masons, have joined together to collectively express, promote or defend common interests. See Civ. PRAC. & Rem. § 27.001(2). All of the allegedly defamatory statements were between individuals seeking to defend their common interests. See id. And Rogers’s claims are based on these statements. See id. §§ 27.003(a), 27.005(b)(3). Accordingly, we hold that the appellants carried their burden of establishing that Chapter 27 applies.
Rogers argues that Chapter 27 does not apply because the chapter’s protections are limited to public communications or participation in government. Because the communications at issue were only between private parties, Rogers argues, Chapter 27 does not apply to his claims.
Rogers also argues that the chapter does not apply because “defamatory statements are not protected under” the chapter. This ultimately concerns, however, whether Rogers established the prima fa-cie elements for his defamation claims, not whether the claims fall under the chapter. See Civ. Prac. & Rem. § 27.005(b)-(c).
We sustain the appellants’ first issue.
C. Prima Facie Elements of the Defamation Claims
The trial court denied the appellants’ motion to dismiss on the express conclusion that Chapter 27 did not apply to Rogers’ claims. We have reached the opposite conclusion. Because this is a de novo review, however, we are not constrained by the trial court’s conclusions. See Market Ins. Co. v. Muzyka,
In their second issue, the appellants argue that Rogers failed to establish prima facie proof for each element of his defamation claims. “The court may not dismiss a legal action under this section if the party bringing the legal action establishes by clear and specific evidence a pri-ma facie case for each essential element of the claim in question.” Civ. Prac. & Rem. § 27.005(c). Rogers asserted defamation claims against each of the appellants. In a suit by a private person against a non-media defendant, the elements for a defamation claim are (1) the publication of a statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in some'cases. See In re Lipsky,
Because the allegations against the Signing Defendants are the same, we will consider Rogers’s claims against them together.
1. The Signing Defendants
The document charging-Rogers of wrongdoing begins • by recognizing that charges were filed on behalf of Gray Lodge against Rogers- and others. . The document states that the charges “were public[ly] presented at the August 6th, 2014 stated meeting of Gray Lodge No.
The details of the charges asserted against Rogers claimed that, among other things, he had (1) “violated his masonic Obligation wherein he promised he would not cheat wrong or defraud a Brother Master Mason or Master Masons Lodge, etc”; (2) “misappropriated funds therefore, cheating and defrauding Gray Lodge by signing a check ... and using Gray lodge funds for personal jewelry without the Iodge[’]s consent”; and (3) allowed another member of the lodge to sign a check after that member had been removed as a signer on the bank account.
The document in question shows by itself, then, that, the. Signing Defendants agreed to allegations of the charges and that the details of the charges were publicly presented at a lodge meeting. The charges asserted that Rogers had misappropriated funds, spent those funds on personal goods, and allowed unauthorized signing of checks. See id. at 593 (holding element of defamation is publication of statements of fact to third party).
Certain factual assertions, if untrue, are deemed to be defamatory per se. See id. at 596. Such assertions include “accusing someone of a crime, of having a foul or loathsome disease, or of engaging in serious sexual misconduct” as well as “remarks that adversely reflect on a person’s fitness- to conduct his or her business or trade.” Id. Misappropriating funds and permitting unauthorized withdrawals of funds is a crime. See Morrill v. Cisek,
In their motion for rehearing, the Signing Defendants argue that “it was error for-[this] Court to find Rogers established a prima facie case for defamation per se against the Signing Defendants” because Rogers did not assert that his defamation claim against them was a defamation per se claim in his pleadings or his response to the motion to dismiss. “Defamation per se and defamation per quod are not separate causes of action, however. ‘[T]he distinction between them instead is based on a rule of evidence, the difference between them lying in the proof of the resulting injury.’ ” Levine v. Steve Scharn Custom Homes, Inc.,
Moreover, Texas follows a “fair notice” standard of pleading. Low v. Henry,
Because Rogers is a private individual, his burden is to prove the defamatory statements were published with negligence. See Lipsky,
Rogers presented some proof in his affidavit that the Signing Defendants did not investigate the charges before signing the document. He asserted that all of the Signing Defendants knew an annual audit of the organization was underway and that two of the Signing Defendants were- on the audit committee. He testified that the audit — completed two weeks after the charges — found no financial wrongdoing. The record also shows that the grand master, who oversaw the investigation of the charges asserted against Rogers, “determined that the allegations do not rise to the level of a Masonic disciplinary violation. -He dismissed the allegations.”- We hold this is prima facie proof that the Signing Defendants failed to investigate the truth or falsity of the allegations before publishing the documents. See Lipsky,
In their motion for rehearing, the Signing Defendants argue that the audit is not proof of a failure to investigate “considering the audit was never designed to uncover every specific misuse of specific funds, but rather to make sure that documentation was being kept regarding expenditures.” The Signing Defendants provide no record citation for this assertion. The record shows that the lodge performed an audit for the lodge’s finances for the time in question. The audit did not show any wrongdoing. Nothing in the record establishes thqt Rogers,could not have relied on this as, some evidence that the Signing Defendants failed to conduct an adequate investigation when charging Rogers with misappropriating lodge funds. See Civ. ,PRAC. & Rem. § 27.005(c) (requiring plaintiff to present prima facie evidence of elements of claim).
For the same reason, we reject, the Signing Defendants’ argument that “a dismissal by the Grand Lodge investigating committee ... is not a finding that the allegations were untrue, only that the alleged conduct does not amount to a Masonic Disciplinary Violation.” Whether Rogers could have — as the charging document alleges — “misappropriated entrusted funds therefore, cheating and defrauding Gray Lodge” while not committing a masonic disciplinary violation is a matter to be resolved by the trier of fact. Rogers has presented sufficient prima facie evidence to defeat the motion to dismiss. See id.
The - final element is damages. See Lipsky,
We overrule the appellants’ second issue as it applies to the Signing Defendants.
2. Lahana and Hissong
According to the evidence presented by the parties, Lahana and His-song’s only involvement in the alleged defamation of Rogers was being listed as potential witnesses by the Signing Defendants in the document specifying the charges against Rogers. Rogers argues,
Appellant Lahana authorized and consented to his name being listed as a witness on the document containing the defamatory statements. By doing so, he necessarily had approved and accepted the contents of the document. By allowing his name to be listed on the document containing the defamatory statements, Appellant Lahana effectively signed the document and therefore published the defamatory statements.
The only authority Rogers cites to support this claim is a criminal case from 1948. See Bustillos v. State,
We hold Rogers failed to carry his burden of presenting prima facie proof of a defamation claim against Lahana and His-song. We sustain the appellants’ second issue as it applies to Lahana and Hissong.
3. Lillard
The action against Lillard concerns statements made in an email chain. In one email in the exchange, Lillard suggested to Roberts that Roberts should contact the lodge’s insurance company, deny any wrongdoing, and inform the insurance company that Rogers may have committed a “swoop and squat” scheme. Specifically, Lillard wrote,
I also recommend that you order (in writing) Mark to convey to the insurance company that we [heartily] deny any liability or wrong doing and (this is important) that the suing-party is the same person who insisted on the lodge tak[ing] out heavy liability coverage. Don’t say “it is” but this might be a variation of the old “swoop & squat” where the claimant “sets up” the claim ahead of time.
Rogers argues the last statement accuses him of committing insurance fraud. We disagree.
Lillard did not assert that Rogers committed insurance fraud. Instead, he advised someone within the organization to warn them insurance provider that, based on the allegations, Rogers might have committed insurance fraud. “Under the First Amendment there is no such thing as a false idea.” Gertz v. Robert Welch, Inc.,
We hold Rogers failed to carry' his burden of presenting prima facie proof of a defamation claim against Lillard. We sustain the appellants’ second issue as it applies to Lillard.
Judicial Non-Interference
In their third issue, the appellants argue the trial court should have dismissed the claims against them based on the doctrine of judicial non-interference.
This is an interlocutory appeal. “A party may not appeal an interlocutory order unless authorized by statute.” Bally Total Fitness Corp. v. Jackson,
An exception to this rule is that certain jurisdictional matters can be considered for the first time on appeal even when they are outside the scope of the interlocutory appeal.. See Rusk State Hosp. v. Black,
Some courts have held that the doctrine of judicial noninterference is a jurisdictional rule implicating subject-matter jurisdiction. See Tex. Thoroughbred Breeders Ass’n v. Donnan,
We agree with the analysis of the Fourteenth Court of Appeals. The decision about whether to apply the doctrine is determined by balancing the rights of an organization to enact its own rules and prescribing qualifications for 'membership against any valuable rights of property interests at stake. See id at 75-76. , Subject-matter jurisdiction* is not established or disproved by weighing policy concerns. See City of DeSoto v. White,
We overrule the appellants’ third issue.
Conclusion
We reverse the trial court’s order denying the motion 'to dismiss as it- applies to Salomon Lahana, Douglas Hissong, and George Lillard. We affirm the remainder of the order. We remand to the trial court for dismissal of Salomon Lahana, Douglas Hissong, and George Lillard.
Justice Jennings, concurring in part and dissenting in part.
Notes
. See Tex. Civ. Prac. & Rem. Code Ann, § 27.003(a) (Vernon 2015).
. See Civ. Prac. & Rem,-§ 27.003(a),
. In some instances, there is a third step to the process. See Prather & Bland, Bullies Beware: Safeguarding Constitutional Rights Through Anti-SLAPP in Texas, 47 Tex. Tech. L. Rev. 725, 754 (2015). If the non-movant carries its burden on establishing the elements of the applicable claims, the movant can seek dismissal based on applicable affirmative defenses. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d) (Vernon 2015). While the mov-ants in this case asserted some affirmative defenses at trial, they have not argued on appeal that any of . the affirmative ■ defenses form a reason to reverse the trial court’s ruling. See Tex. R. App. P. 38.1(i) (requiring briefs to contain clear and concise arguments with appropriate citation to legal authority and record); Walling v. Metcalfe,
. Lahana did not sign the document but was listed as a witness within the document.
Concurrence in Part
Concurring and Dissénting
I, withdraw my concurring and dissenting opinion,, dated January 14, 2016 , and issue this opinion in its stead.
I concur in the portion of the judgment of this Court affirming the trial court’s order denying the motion of appellants, Richard Fawcett, Kevin Roberts, Darrin Pitts, Christopher Matthews, Armando Florido, Billy Moreno, David Vukovic, Ken Kirkpatrick, and James Lemons (collectively, the “Signing Defendants”), to dismiss the suit of .appellee, Robert J. Rogers, against them for defamation. I respectfully dissent from the portion of the judgment of this Court reversing the trial court’s order denying the motion of appellants, George Lillard, Salomon Laha-na, and Douglas Hissong, to dismiss Rogers’s suit against them for defamation.
In their first issue, the Signing Defendants, Lillard, Lahana, and Hissong argue that the trial court erred in denying their motion to dismiss Rogers’s suit against them because his defamation claim is “based on, related to, or in response to [their] exercise of their rights of association as defined in the Texas Citizen Participation Act.” See Tex. Civ. PRAC. & Rem. Code Ann. §§ 27.001(2), 27.001~.011 (Vernon 2015). However, Rogers’s allegations that appellants falsely accused him of misappropriating funds do not at all concern their constitutional right to 'associate as discussed in Chapter 27 of the Texas Civil Practice and Remedies Code. See Cheniere Energy, Inc. v. Lotfi,
Here, although all of the parties were members of the Order of the Freemasons at the Gray Lodge, the complained-of acts of all of the appellants in regard to their alleged defamation of Rogers do not at all concern their constitutional rights to petition, speak freely, associate freely, “and otherwise participate in government,” i.e., engage in citizen or public participation. See id. Rogers’s lawsuit against appellants has nothing to do with their constitutional right to engage in citizen or public participation. See id And his allegation
Accordingly, I respectfully disagree with the majority’s analysis of the first issue and its conclusion that the trial court erred in not dismissing Rogers’s suit against Lil-lard, Lahana, and Hissong. And I agree with the majority that the trial court did not err in denying the motion of the Signing Defendants to dismiss Rogers’s suit against them.