Stephen Nolan BEDFORD and Autumn Bedford, Appellants v. Darin SPASSOFF and 6 Tool, LLC, formerly known as Dallas Dodgers Baseball Club, LLC, d/b/a Dallas Dodgers Baseball, Appellees
NO. 02-15-00045-CV
Court of Appeals of Texas, Fort Worth.
DELIVERED: February 11, 2016
485 S.W.3d 641
ATTORNEY FOR APPELLEE: ANDY EDMONDSON, TASS D., WA-TERSTON, EDMONDSON LAW, GROUP, PLLC, COPPELL, TEXAS
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
OPINION
BILL MEIER, JUSTICE
I. INTRODUCTION
In five points, Appellants Stephen Nolan Bedford and Autumn Bedford appeal an interlocutory order denying their motion to dismiss under the Texas Citizens Participation Act (TCPA). See
II. BACKGROUND
Appellee Darin Spassoff is the sole owner and president of Appellee 6 Tool, LLC, formerly known as Dallas Dodgers Baseball Club, LLC, d/b/a Dallas Dodgers Baseball, a youth instructional baseball organization. The Bedfords’ son was a member of the Dodgers.
At around 10:00 a.m. on September 12, 2014, Stephen sent Spassoff the following text message: “My name is [Stephen] and I need to speak to [you] ASAP to give you a chance to make something right before I start hitting your social media sites.” Spassoff called Stephen, who explained that his wife had had an extramarital affair with Terry Cruz, the Dodgers’ batting coach.1 Stephen was “extremely hostile and profane” during the conversation and demanded a refund of the $1,000 participation fee that had been paid for the Fall 2014 season.
Later in the afternoon that same day, Stephen sent Spassoff a number of other text messages, including one in which he questioned the ethics of the Dodgers organization and threatened to display a sign at their games. Just before 6:00 p.m., Stephen forwarded to Spassoff a copy of a message that had just been posted on Facebook using Autumn‘s account. The post “reviewed” the Dodgers, gave the organization one out of five stars, and stated,
Be very careful. One of the coaches put my son on the team an[d] then started
calling and texting my wife. This coach is a home wrecker and the club stands behind him. I guess that‘s the kind of lessons they plan on teaching the kids. Very unethical and from talking to the executives they don‘t plan on changing. Please stay away!!!!!!!!!!!!!!!!!!
At around 6:30 p.m., Spassoff‘s attorney notified Stephen to stop communicating directly with Spassoff and that Appellees were conducting an investigation into Stephen‘s accusation involving Autumn and Cruz. Thereafter, Stephen sent Spassoff a message that contained a picture of two posters that he had prepared and that stated, “Dodgers coach put my son on a team and then had an affair with my wife!” At 6:56 p.m., Stephen sent Spassoff and his attorney an email that stated, among other things, “I can post any and every truth online, which I plan to do . . . . I wanted to leave the Dodger organization out of it completely[,] but it seems they have taken a different path.” Spassoff cancelled the Dodgers’ practice that was scheduled for the following day.
Appellees sued the Bedfords in November 2014. Specifically complaining about the September 12, 2014 Facebook posting regarding the Dodgers, Appellees asserted claims against both Stephen and Autumn for libel and business disparagement. Additionally, Spassoff asserted a claim against Stephen for intentional infliction of emotional distress (IIED), and the Dodgers asserted a claim against Stephen for tortious interference with an existing contract or, alternatively, a claim against Autumn for breach of contract, averring that Stephen had removed his son from the Dodgers organization and had demanded to be reimbursed for the registration fee “through coercive threats and disparaging acts.”
The Bedfords timely filed a motion to dismiss that expressly implicated chapter
III. JURISDICTION
Directing us to our opinion in Jennings v. WallBuilder Presentations, Inc., 378 S.W.3d 519, 524-29 (Tex.App.-Fort Worth 2012, pet. denied) (construing
IV. THE TCPA
The TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern. Lipsky, 460 S.W.3d at 586. Its
Under the TCPA‘s two-step dismissal process, the initial burden is on the defendant-movant to show by a preponderance of the evidence that the plaintiff‘s claim “is based on, relates to, or is in response to the [movant‘s] exercise of,” among other things, the right of free speech.
We review de novo a trial court‘s ruling on a motion to dismiss under the TCPA. United Food & Commercial Workers Int‘l Union v. Wal-Mart Stores, Inc., 430 S.W.3d 508, 511 (Tex.App.-Fort Worth 2014, no pet.). We consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.
V. THE BEDFORDS’ INITIAL BURDEN
In their first point, the Bedfords argue that they met their initial burden under the TCPA‘s expedited dismissal procedure to show by a preponderance of the evidence that all of Appellees’ claims are based on, relate to, or were filed in response to their exercise of the right of free speech.
Under the TCPA, the “[e]xercise of the right of free speech” means “a communication made in connection with a matter of public concern,” which includes an issue related to “a good, product, or service in the marketplace.”
The Bedfords filed their motion to dismiss pursuant to chapter 27, stating that they were sued “for expressing an opinion on the internet and ‘threatening to protest.‘” Appellees’ libel and business disparagement claims are premised upon the Facebook posting, which stated that a coach began contacting Autumn after the Bedfords’ son had joined the Dodgers, that the coach is a “home wrecker,” that the Dodgers “stand[ ] behind him,” that this is the kind of “lesson[ ]” that the Dodgers planned to teach the team members, and that it was very unethical. Spassoff‘s IIED claim and the Dodgers’ tortious interference claim, which broadly averred that Stephen was liable under those theories on account of the “threats and disparaging” assertions or acts that he directed at Appellees, can only concern the Facebook posting and the texts or emails that Stephen sent to Spassoff on September 12, 2014. The Dodgers’ alternative claim against Autumn for breach of contract, which hinges upon allegations that she removed her child from the Dodgers organization and demanded a reimbursement of the non-refundable registration fee, plainly relates to the Facebook posting and texts or emails.
The record thus demonstrates that Appellees’ claims are premised upon communications that were made in connection with a matter of public concern—i.e., an issue related to the Dodgers’ provision of youth baseball coaching services in the marketplace. See
VI. OBJECTIONS
The Bedfords argue in their second point that the trial court erred by sustaining Appellees’ objections to Stephen‘s affidavit. We have determined that the Bedfords met their initial burden under the TCPA, and they do not argue that the contents of the affidavit are necessary to establish any element of a defense to the Appellees’ claims. See
VII. APPELLEES’ BURDEN
In their third point, the Bedfords argue that Appellees failed to establish by clear and specific evidence a prima facie case for each essential element of their claims. See
“[C]lear and specific evidence,” as used in the TCPA, requires a plaintiff to “provide enough detail to show the factual basis for its claim.” Lipsky, 460 S.W.3d at 590-91. “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.” Id. at 591.
Appellees argued in their response to the Bedfords’ motion to dismiss that they established by clear and specific evidence a prima facie case for each essential element of their libel claim. Appellees did not, however, assert any argument or analysis in an effort to meet their burden as to their business disparagement, IIED, tortious interference, and breach of contract claims. Appellees therefore failed to meet their burden under the TCPA as to those claims, and the trial court erred by denying the Bedfords’ motion to dismiss those claims. See
As for Appellees’ libel claim, libel is defamation expressed in written or other graphic form.
Moreover, to be actionable, a statement must assert an objectively verifiable fact rather than an opinion. Bentley v. Bunton, 94 S.W.3d 561, 580-81 (Tex. 2002). “We classify a statement as fact or opinion based on the statement‘s verifiability and the entire context in which the statement was made.” Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 875 (Tex.App.-Dallas 2014, no pet.). According to one court, a statement is an opinion if it is “by its nature, an indefinite or ambiguous individual judgment that rests solely in the eye of the beholder” or is “a loose and figurative term employed as metaphor or hyperbole.” Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 511 (Tex.App.-Tyler 2008, pet. denied). Whether a statement is a statement of fact or opinion is a question of law. Am. Heritage Capital, LP, 436 S.W.3d at 875.
When the Bedfords’ Facebook posting is construed as a whole and in light of the surrounding circumstances, instead of individually and in isolation, as the dissent‘s analysis proceeds, the gist of the posting is that the Dodgers and Spassoff condone adultery and plan to teach the same to its players. This is not a simple, unflattering statement of opinion. It is a degrading comment, it challenges Appellees’ integrity, it has the potential to inflict financial injury upon the Dodgers, and it is verifiably false. Indeed, the Dodgers are a youth instructional baseball organization. In exchange for a fee, team members receive instruction about baseball and have the opportunity to participate in the game. No part of the services provided by the Dodgers has anything to do with condoning adultery. As Spassoff affirmed in his affidavit, neither he nor the Dodgers condone or approve of adultery between players’ parents and coaches.
Private plaintiffs, like Appellees, must prove that the defendant was at least negligent. Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 82, 85 (Tex.App.-Houston [1st Dist.] 2013, pet. denied). Spassoff testified in his affidavit that Stephen barraged him with numerous text messages or emails and made the Facebook posting before he had an opportunity to gather information and conduct an internal inquiry into Stephen‘s accusations. See id. (“Texas courts have defined negligence in the defamation context as the ‘failure to investigate the truth or falsity of a statement before publication, and [the] failure to act as a reasonably prudent [person].’ “).
Finally, when an offending publication qualifies as defamation per se, a plaintiff may recover general damages without proof of any specific loss. Lipsky, 460 S.W.3d at 596. This is because defamation per se refers to statements that are so obviously harmful that general damages, such as mental anguish and loss of reputation, are presumed. Id. Defamation is actionable per se if it injures a person in his office, business, profession, or occupation. Morrill v. Cisek, 226 S.W.3d 545, 549 (Tex.App.-Houston [1st Dist.] 2006, no pet.). As explained, the Facebook posting has the potential to inflict financial injury upon the Dodgers’ business. Thus, as defamation per se, damages to the Dodgers’ reputation are presumed, although the presumption alone will support only an award of nominal damages. See Lipsky, 460 S.W.3d at 596.
The dissent contends that the Facebook posting is incapable of constituting defamation per se because no part of it “accuses Mr. Spassoff or the Dallas Dodgers
We hold that Appellees met their burden to establish by clear and specific evidence a prima facie case for each essential element of their libel claim. See
VIII. CLAIMS AGAINST AUTUMN
The Bedfords argue in their fourth and fifth points that the trial court should have granted the motion to dismiss as to Autumn because the only allegation relating to her is that her Facebook page was used by Stephen. This complaint was not raised in the Bedfords’ motion to dismiss. See Tex. R. App. P. 33.1(a);
IX. CONCLUSION
We reverse the trial court‘s order denying the Bedfords’ motion to dismiss as to Appellees’ business disparagement, IIED, tortious interference, and breach of contract claims; affirm the order denying the motion to dismiss as to Appellees’ libel claim; and remand this cause to the trial court for further proceedings consistent with this opinion and in accordance with the TCPA. See
DAUPHINOT, J., concurs without opinion.
WALKER, J., filed a dissenting opinion.
I. INTRODUCTION
I respectfully dissent. Appellees Darin Spassoff and 6 Tool, LLC, formerly known as Dallas Dodgers Baseball Club, LLC, d/b/a Dallas Dodgers Baseball (collectively Dodgers) filed suit for libel based on two written statements. Because as a matter of law the elements of libel cannot be established concerning either of the written statements, I dissent from the majority‘s failure to reverse the trial court‘s judgment denying Appellants Stephen Nolan Bedford and Autumn Bedford‘s motion to dismiss the libel claim pursuant to the Texas Citizens’ Protection Act (TCPA).1
II. THE ALLEGED LIBEL
The first factual basis for the Dodgers’ libel claim stems from an email sent by Mr. Bedford to Mr. Spassoff (the owner of the Dodgers) threatening to protest at the Dodgers’ practice with homemade poster board signs that Bedford had made, photographed, and included in the email. The second factual basis for the Dodgers’ libel claim stems from a post on the Dallas Dodgers’ Facebook page by Mr. Bedford using Mrs. Bedford‘s Facebook account and “rating” the Dodgers by giving them one star. Following the one-star rating, the post states, in toto:
Be very careful. One of the coaches put my son on the team an [sic] then started calling and texting my wife. This coach is a home wrecker and the club stands behind him. I guess that‘s the kind of lessons they plan on teaching the kids. Very unethical and from talking to the executives they don‘t plan on changing. Please stay away[.]
III. NO PUBLICATION OF THE EMAIL
Concerning Mr. Bedford‘s email to Mr. Spassoff, the email (with photos of his handmade poster board signs attached) as a matter of law cannot form the basis of the Dodgers’ libel claim because the email was not published to a third party. See, e.g., In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015) (orig. proceeding) (setting forth elements of libel with first element being “the publication of a false statement of fact to a third party“); Lyle v. Waddle, 144 Tex. 90, 92-93, 188 S.W.2d 770, 771-72 (1945) (holding that publication is an essential element of a libel action and that without publication, there is no libel);
IV. THE POST IS NOT DEFAMATORY, AND THE DODGERS FAILED TO ESTABLISH DAMAGES
Concerning the post Mr. Bedford made to the Dallas Dodgers’ Facebook page, the Dodgers failed to establish by clear and specific evidence a prima facie case for the required elements that (1) a statement in the post was defamatory3 and (2) they suffered damages. See, e.g.,
A. No Defamatory Statement Concerning Spassoff or the Dodgers
Whether a false statement is capable of a defamatory meaning is initially a question of law for the court. Hancock v. Variyam, 400 S.W.3d 59, 67 (Tex. 2013); Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987). Whether a publication is false and defamatory depends upon a reasonable person‘s perception of the entire publication. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000). We construe an alleged defamatory statement “as a whole in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive it.” New Times, Inc. v. Isaacks, 146 S.W.3d 144, 154 (Tex. 2004). A statement may be false, abusive, unpleasant, or objectionable without being defamatory in light of the surrounding circumstances. Double Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 854 (Tex.App.-Dallas 2003, no pet.). Moreover, to be actionable, a statement must assert an objectively verifiable fact rather than an opinion. Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013); Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989) (“[A]ll assertions of opinion are protected by the [F]irst [A]mendment . . . .“). We classify a statement as fact or opinion based on the statement‘s verifiability and the entire context in which the statement was made. Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex. 2002).
Looking to the circumstances surrounding Mr. Bedford‘s allegedly defamatory statements in his post and how a person of ordinary intelligence would perceive them, I note that the statements were made in a post on the Dodgers’ Facebook page after Mr. Bedford gave the Dodgers a one-star rating. A consumer‘s rating of a business and comments supporting the rating are designed to be an expression of that one consumer‘s experience with and opinion of the business.4 A person of ordinary intelligence perceives the ratings and reviews made by consumers on a business‘s Facebook page as reflecting the opinion of that consumer. In the post, Mr. Bedford as-
B. Even if Post Is Defamatory, It Is Not Defamatory Per Se, and No Damages Were Established
A plaintiff asserting a defamation claim “must plead and prove damages, unless the defamatory statements are defamatory per se.” Lipsky, 460 S.W.3d at 592. The Dodgers failed to meet their burden of establishing by clear and specific evidence a prima facie case for the essential element of damages from Mr. Bedford‘s post. The parties’ briefing as well as questions during oral argument established that the Dodgers successfully removed Mr. Bedford‘s comments from the Dodgers’ Facebook page within a few weeks. The prayer for relief in the Dodgers’ original petition pleads for “actual damages,” but neither the Dodgers’ petition, nor the Dodgers’ response to the Bedfords’ motion to dismiss, nor Mr. Spassoff‘s affidavit attached to the Dodgers’ response to the Bedfords’ motion to dismiss, identify any “actual damages” suffered by either Mr. Spassoff or by the Dallas Dodgers Baseball Club as a result of Mr. Bedford‘s comments that were posted for approximately two weeks.7 The Dodgers did not plead or prove that any individual actually read Mr. Bedford‘s post before it was removed. The Dodgers did not plead or prove that the Dodgers received any calls or expressions of concerns regarding the post. The Dodgers did not plead or prove that they lost any clients or ballplayers as a result of the post. In short, the Dodgers did not plead or establish by clear-and-specific evidence a prima facie case for the essential element of damages in their libel claim. See
The Texas Supreme Court has held that disparagement of a general character is not enough to constitute defamation per se “unless the particular quality disparaged is of such a character that it is peculiarly valuable in the plaintiff‘s business or profession.” Hancock, 400 S.W.3d at 67 (holding statements—that doctor lacked veracity and dealt in half-truths—were not, in the context the statements were made, defamatory per se). The proper inquiry is whether a defamatory statement accuses a professional of lacking a peculiar or unique skill that is necessary for the proper conduct of the profession. Id. When a statement is defamatory per se, then the factfinder may presume that the statement injured the plaintiff‘s reputation, and this presumption will support an award of general damages. Bentley, 94 S.W.3d at 604; see also Downing v. Burns, 348 S.W.3d 415, 424 (Tex.App.-Houston [14th Dist.] 2011, no pet.) (holding that relators’ statements—that former employee, who had worked as an assistant to the relators, had stolen from them and their clients—was defamatory per se).
Here, no statement in Mr. Bedford‘s post accuses Mr. Spassoff or the Dallas Dodgers Baseball Club of lacking a peculiar or unique skill related to baseball or to running a baseball organization. Even the Dodgers’ brief states that the independent contractor coach‘s conduct in “hooking up” with Mrs. Bedford had nothing to do with baseball. The Dodgers provide no argument or analysis explaining how Mr. Bedford‘s post falls within the category of defamation per se.8 A statement disparaging the Dodgers for not preventing a batting coach from engaging in an extramarital affair or for not disciplining such a coach in some unidentified manner, as apparently desired by Mr. Bedford, is not the disparagement of a character or quality that is essential to the business of operating a baseball club. At most, it is a general disparagement. See Hancock, 400 S.W.3d at 68 (recognizing that “[i]f an accusation of untruthfulness is defamatory per se for a physician in her profession, it would likewise be defamatory per se for other trades, businesses, and professions that rely on human interaction“). An accusation on a business‘s Facebook page as a “ratings and reviews” comment that the business did not prevent an employee‘s extramarital affair with a client and did not properly discipline the employee or handle the situation is defamatory per se only if it would likewise be defamatory per se for all other trades, businesses, and professions that rely on human interaction. I cannot agree with the majority that Mr. Bedford‘s post, even if defamatory, was so egregious and obviously injurious to the reputation of Mr. Spassoff and of the Dal-
Accordingly, I would sustain the Bedfords’ third point in toto.9
V. CONCLUSION
For the above reasons, I would hold that the trial court erred by failing to dismiss all of the Dodgers’ claims against the Bedfords, including the libel claim, and I would remand the case to the trial court for further proceedings in accordance with the TCPA. See