Cindy Olson Bourland, Justice
Jones later sued the appellants, Warner Bros. Entertainment, Inc.; Warner Bros. Technical Operations, Inc. d/b/a Warner Bros. Advanced Digital Services; TMZ Productions, Inc.; EHM Productions Inc. d/b/a TMZ; TMZ.com; and Elizabeth McKernan (collectively, "the TMZ Defendants"), for libel, civil conspiracy, intentional infliction of emotional distress, malicious prosecution, and abuse of process, seeking exemplary damages and a permanent injunction. The TMZ Defendants moved to dismiss Jones's claims pursuant to the TCPA, which provides a mechanism for early dismissal of claims in some cases involving First Amendment rights. See In re Lipsky ,
The TMZ Defendants appeal from the trial court's denial of their motion in three issues, contending that (1) the TCPA applies to Jones's suit, (2) Jones failed to establish a prima facie case by clear and specific evidence of each essential element of his claims, and (3) the trial court erred by overruling their objections to Jones's evidence and considering that evidence when ruling on the motion to dismiss. See
THE TMZ ARTICLE
The initial article appeared on the Sports webpage of TMZ.com at 2:45 a.m. Central time on June 18, 2014. The article's headline was "EX-SUPER BOWL CHAMP SUSPECT IN POLICE INVESTIGATION," with a subheading stating, "Allegedly Tried to Hire Hit Man." The article states it is "BY TMZ STAFF" and "EXCLUSIVE." A picture of Jones in his Dallas Cowboys uniform appears between the headline and the body of the article. The original article stated:
A former Dallas Cowboys linebacker has been named the primary suspect in a police investigation in Cleveland after allegedly trying to hire a hit man to take out his agent ... this according to a police report obtained by TMZ Sports .
The man at the center of the case is Robert Jones -a 1st round pick in the '92 NFL Draft who went on to become a Pro Bowler who won 3 Super Bowls with the Cowboys.
According to the document, a 47-year-old man named Theodore told police that Jones approached him and tried to hire Theo to take out Jones' agent.
Theo told cops he refused-and Jones (who's also 47-years-old)-responded by saying he is a "gangster" and he would make Theodore "disappear."
Theodore told cops he's afraid and fears for his personal safety because he believes Jones will make good on his threat.
So far, Jones has NOT been arrested or charged with a crime. We reached out to Jones several times for comment-so far, no word back.
Later that morning, after McKernan spoke with Jones's lawyer, an update appeared at 10:21 a.m. Central time (8:21 a.m. Pacific time) between Jones's picture and the body of the original article. The update stated:
8:21 AM PT-Jones says the hit man allegations are complete B.S.-and insists he's got a great relationship with his agent.
The former NFL star just issued a statement saying the accuser-a distant relative-"has filed a false police report"
... and that he "absolutely denies" all allegations.
Jones says he plans on taking legal action of his own against Theodore-and says the guy has "recently been attempting to extort money" from him and his family.
As far as the allegation that he tried to hire a hit man to take out his agent, Jones says the two have a "wonderful relationship" and the notion that he wants him dead is completely false.
After the update, the full article appeared as follows on the Internet:
BACKGROUND
The following table provides a chronology of events leading up to the publication of the TMZ article. The facts are derived from the evidence the parties submitted with the briefing on the motion to dismiss, which included various affidavits, McKernan's deposition testimony, email correspondence, and phone records.
Date Time Event3 Tuesday Jones's attorney, Nicholas Bressi, sends Watson a June 10, 2014 cease-and-desist letter advising him to cease communications with Jones and his family or risk the filing of civil and criminal complaints against him and a lawsuit seeking a restraining order. Thursday (unclear from Watson calls Bressi's office and leaves threatening June 12, 2014 record) voice mail. June 12, 2014 9:34-9:45 a.m. CDT Watson calls TMZ tip line. June 12, 2014 9:40 a.m. CDT McKernan emails her contact information to Watson. June 12, 2014 11:36-11:40 a.m. Watson calls McKernan. McKernan did not recall CDT the details of any specific conversations with Watson, but she testified at her deposition that it was reasonable to assume that she had spoken with him on the morning of June 12.
June 12, 2014 12:07-12:09 p.m. McKernan calls Watson. CDT June 12, 2104 3:34 p.m. CDT Bressi emails Watson and asks him to cease communicating with his office. June 12, 2014 4:05 p.m. CDT Watson forwards email from Bressi to McKernan. June 12, 2014 4:19 p.m. CDT Watson sends a follow-up email to McKernan stating, "Miss McKernan the are trying to shut me up or even Kill me." Friday 11:13 a.m. CDT Watson goes to the Cleveland Police Department and June 13, 2014 files an "Offense/Incident Report" ("Incident Report"), alleging that on May 13, 2014, Jones asked Watson to kill Jones's agent and threatened Watson when he refused. June 13, 2014 11:20-11:23 a.m. Watson calls McKernan. CDT Monday 12:49-12:50 p.m. Watson calls McKernan. June 16, 2014 CDT June 16, 2014 1:39 p.m. CDT Watson emails McKernan: "I have the report miss McKernan I will fax it to today what is your fax so that I got the right fax number thank you." June 16, 2014 2:10-2:11 p.m. CDT McKernan calls Watson. June 16, 2014 3:10 p.m. CDT Watson emails McKernan: "I want to go all the way with this espn, nationl enqure, people mag,cnn,talk shows what ever, this way he will not try to kill me the worid will know! The lawyer is herasing me know. I trust you liz this is real. And let jerry jones know he had a killer on his team." McKernan responds, "Did u send fax yet?" Watson responds, "Im in rout to fax." June 16, 2014 3:31 p.m. CDT Watson faxes the Incident Report to McKernan with a cover sheet stating, "This is it. No turning back. Thank you Liz" Tuesday 9:19 a.m. CDT Watson emails McKernan and asks, "Hi miss June 17, 2014 McKernan did you get it and are you working on the story?"
June 17, 2014 9:19 a.m. CDT McKernan responds, "Yes sir! Making calls right now. You doing ok?" June 17, 2014 9:57-9:59 a.m. CDT McKernan calls the Cleveland Police Records Department. June 17, 2014 10:29 a.m. CDT McKernan emails Watson: "I got it! Have to make a few calls this morning. But we should be good to go." Watson responds, "My aunt is worried but in the end its all going to work out." June 17, 2014 4:21 p.m. CDT Watson emails McKernаn: "So what do you think about this story? How fare do you think this will go? And do you think this will reach the masses. I have no reason to lie my rep is on the line." June 17, 2014 4:22 p.m. CDT McKernan responds, "We have your back. Posting the story first thing tomorrow morning. It will hit the east coast at 5 a.m. Writing everything up right now. What did police tell you." June 17, 2014 4:34 p.m. CDT Watson responds, "The cops said I did the right thing." McKernan replies, "That's good. What did they say about investigating it?" June 17, 2014 4:49 p.m. CDT Watson responds, "They said should have went to the IBI. This need hit tv I'm ready." June 17, 2014 4:50 p.m. CDT McKernan tells Watson, "It goes up live tomorrow morning. The morning time is our busiest time for the website, and then it will also go on the show ..." June 17, 2014 5:03 p.m. CDT Watson says, "The Austin, Texas cops told me to file here first, then they would go from there. I hope Jerry Jones fineds out" June 17, 2014 6:14 p.m. CDT McKernan emails Watson: "Just making sure your cousin played for cowboys right?" The email includes a link to a Wikipedia page covering Jones's football career. June 17, 2014 7:45 p.m. CDT McKernan messages Jones on Twitter: "This is Liz from @TMZ_sports Can you please follow/DM [direct message] me? We need to talk!" June 17, 2014 7:50 p.m. CDT Jones responds, "What's up Liz," and asks her to DM him.
June 17, 2014 8:07 p.m. CDT McKernan direct messages Jones: "We have a police report that was filed against you claiming you hired a hitman to kill your agent [message break] the alleged victim claims that he is in fear for his life because of this [message break] we wanted to reach out to you about it - because it's hard to believe obviously." She also gives him her phone number. June 17, 2014 8:17 p.m. CDT Jones responds, "Call this number and talk to this guy." The phone number he gives her is his attorney Bressi's cell-phone number. June 17, 2014 At her deposition, McKernan testified that she believes she left Bressi a voice mail on the evening of June 17. The phone records show a two-minute call to Bressi's cell-phone number. June 17, 2014 Jones informs Bressi that McKernan had contacted him about a potential article. Jones told Bressi he had asked McKernan to contact Bressi and asked Bressi to contact McKernan if he had not heard from her. Bressi testifies he did not hear from anyone at TMZ that night. Wednesday 2:45 a.m. CDT TMZ publishes the initial article. June 18, 2014 June 18, 2014 7:45 a.m. CDT McKernan calls the Cleveland Police Department (1-minute call) Public Information Office. June 18, 2014 8:03 a.m. CDT Bressi calls McKernan to discuss the TMZ article and Watson's relationship with Jones. June 18, 2014 8:14 a.m. CDT McKernan sends Bressi the Incident Report. June 18, 2014 10:12 a.m. CDT Bressi sends McKernan a press release from Jones. June 18, 2014 10:21 a.m. CDT TMZ posts an update to the initial article. June 18, 2014 12:30 p.m. CDT TMZ sends out the Twitter post.
[Editor's Note: The preceding image contains the reference for footnote
LEGAL FRAMEWORK
All defamation suits encompass the competing constitutional rights to free speech and press and the constitutional right to seek redress for reputational torts. Neely v. Wilson ,
"Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury." Gertz v. Robert Welch, Inc. ,
The TCPA's purpose is "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." Tex. Civ. Prac. & Rem. Code § 27.002. The Act is to "be construed liberally to effectuate its purpose and intent fully," but it "does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions."
First, the Act imposes the initial burden on the litigant who moves to dismiss a legal action to show by a preponderance of the evidence that the nonmovant's claim "is based on, relates to, or is in response to the [movant's] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association."
The second step of the process shifts the burden to the nonmovant to avoid dismissal by "establish[ing] by clear and specific evidence a prima facie case for each essential
We review de novo questions of statutory construction. Molinet v. Kimbrell ,
ANALYSIS
The TMZ Defendants challenge the trial court's denial of their TCPA motion to dismiss in three issues. They first assert that the Act applies to Jones's lawsuit because they established by a preponderance of the evidence that his suit is based on, relates to, or is in response to their exercise of the right of free speech and their exercise of the right to petition. In their second issue, they contend that Jones failed to carry his burden of establishing a prima facie case by clear and specific evidence of every essential element of his claims for libel, civil conspiracy, intentional infliction of emotional distress, malicious prosecution, and abuse of process. The TMZ Defendants argue in their third issue that the trial court erred by overruling their objections to affidavits submitted by Jones, and as a result, improperly considered inadmissible evidence when ruling on the motion to dismiss.
Does the TCPA apply to Jones's suit?
We first consider whether the TMZ Defendants satisfied their burden of proving by a preponderance of the evidence that Jones's lawsuit is based on, relates to, or is in response to their exercise of the right of free speech and their exercise of the right to petition. The parties do not dispute that the claims asserted by Jones in his petition are based on the article posted by the TMZ Defendants. Thus, we must decide whether the article satisfies the Act's definition of the "exercise of the right of free speech" as "a communication made in connection with a matter of public concern." Tex. Civ. Prac. & Rem. Code § 27.001(3). As noted above, a " '[m]atter of public concern' includes an issue related to: (A) health or safety; (B) environmental, economic, or community well-being; (C) the government; (D) a public official or public figure; or (E) a good, product, or service in the marketplace."
More specifically, the TMZ Defendants contend that because the article described the police report made by Watson, which documented his "rendition of Jones'[s] role in a murder-for-hire plot, the assignment of a police unit to investigate the charges, and the referral of the matter to the prosecutor's office for possible additional investigation," the article relates to the government, to community well-being, and to health and safety issues. The TMZ Defendants argue that courts have applied the TCPA when a statement concerns an individual's safety. See Cavin v. Abbott , --- S.W.3d ----, ---- - ----, No. 03-16-00395-CV,
Having determined that the TMZ Defendants have shown that the TCPA applies because Jones's claims relate to their exercise of the right of free speеch, we next consider whether Jones "establishe[d] by clear and specific evidence a prima facie case for each essential element" of his claims.
Neither the TCPA nor the common law defines "clear and specific" evidence; consequently, we give these terms their ordinary meaning. In re Lipsky ,
A "prima facie case" "refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted." In re Lipsky ,
I. Defamation
Defamation includes libel and slander. Neely ,
The TMZ Defendants do not assert that the article is true or that it is not defamatory per se. They only assert that Jones did not establish a prima facie case that each of them actually published the statements at issue and that they acted with actual malice. They also assert that Jones never requested a correction, clarification, or retraction of the article, and therefore, the suit is barred by the Defamation Mitigation Act. See generally Tex. Civ. Prac. & Rem. Code §§ 73.051 -.062.
As explained above, the Texas Supreme Court has rejected the idea that the TCPA establishes a heightened evidentiary standard or prohibits circumstantial evidence. In re Lipsky ,
A. Publication
The first defamation element we consider is whether Jones established a prima facie case that each of the TMZ Defendants "published" the statements. The TMZ Defendants include five corporate defendants, (1) Warner Bros. Entertainment, Inc.; (2) Warner Bros. Technical Operations, Inc., d/b/a Warner Bros. Advanced Digital Services; (3) TMZ Productions, Inc.; (4) EHM Productions Inc. d/b/a TMZ; (5) TMZ.com; and an individual defendant, (6) Elizabeth McKernan. Jones alleged that "Defendants were the owners, operatоrs and publishers of various publications that printed articles about plaintiff and acted wrongfully in the publication of the defamatory statements in that such statements were based on false claims." He further alleged that they acted with actual malice and that they "permitted the statements to be published even though [they] knew the statements were false and had participated in fabricating the statements."
We first examine whether Jones has established a prima facie case of publication by the various corporate defendants. In response to the motion to dismiss, Jones submitted evidence of the TMZ Defendants' notification to the public of the various relationships among the corporate defendants. At the time of the motion to dismiss, the name "EHM Productions, Inc." appeared at the bottom of the home page of the TMZ.com website. The TMZ.com website contained multiple links to webpages entitled "Privacy Policy," "Terms of Use," and "About TMZ.com" (which linked to "TMZ legal inquiry" leading to another "Terms of Use" page). The first "Terms of Use" document stated,
In Texas, the general rule is that "[a]n action is sustainable against a corporation for defamation by its agent, if such defamation is referable to the duty owing by the agent to the corporation, and was made while in the discharge of that duty. Neither express authorization nor subsequent ratification is necessary to establish liability." Texam Oil Corp. v. Poynor ,
In reply to Jones's response, the TMZ Defendants filed an affidavit from Jason Beckerman, the in-house counsel of EHM Productions, Inc. In his affidavit, Beckerman testified that he had personal knowledge about the corporate structure of the various defendants and was familiar with TMZ.com, "the website run by EHM." Beckerman disclaimed responsibility for publication by three of the six defendants. He testified that the defendant identified as "Warner Bros. Entertainment, Inc." is the indirect parent company of Defendant Warner Bros. Technical Operations, Inc. and the partial indirect parent company of EHM. He further stated, "[a]s such, and in that role, Warner Bros. Entertainment, Inc. did not publish the news story." Beckerman also testified that the defendant identified as "TMZ Productions, Inc." "has no operational function, and it had no operational function on the date of the publication of the news story," and therefore did not publish the story. Finally, Beckerman testified that the defendant identified аs "TMZ.com" "does not exist as a legal entity, and it did not exist as a legal entity" on the date of the article; he concluded, "It, therefore, did not publish the news story." Beckerman did not aver that Warner Bros. Technical Operations, EHM Productions, or McKernan did not publish the article.
As noted above, Jones argues that we should not consider Beckerman's self-serving affidavit at all. We will consider the affidavit in the light most favorable to Jones, but conclusive evidence can overcome the prima facie case that Jones has established against the corporate defendants. Beckerman's affidavit is the testimony of an interested witness, and as such, it could only establish an issue as a matter of law if "the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." See Tex. R. Civ. P. 166a(c) (explaining when summary judgment may be based on interested-witness testimony). Moreover, " '[b]are, baseless opinions will not support a judgment even if there is no objection to their admission in evidence,' and we have 'often held that such conclusory testimony cannot support a judgment.' "
As for TMZ.com, Jones argues that Rule 28 provides that a party may sue an entity doing business under an assumed name to preserve its substantive rights, and that the website name "TMZ.com" is an example of a trade name. See Tex. R. Civ. P. 28 ; Horseshoe Bay Resort Sales Co. v. Lake Lyndon B. Johnson Improvement Corp. ,
With regard to the individual defendant McKernan, the TMZ Defendants argue that "the uncontroverted evidence establishes that McKernan did not even write any of the news story, much less 'publish' it." The allegedly "uncontroverted evidence" upon which Defendants rely is McKernan's own affidavit in which she states:
The news story was published on June 18, 2014. I did not write or publish the news story made the basis of Plaintiff's lawsuit. Instead, the news story was written by my former boss. Also, as a sports section producer, I had no ability to publish anything on the TMZ.com website.
However, the evidence offered by Jones includes emails between McKernan and Watson showing that McKernan was the only person communicating with Watson, and in one of those emails, she states, "Writing everything up right now." In her deposition, McKernan testified that she was the lead investigator bringing the story and the information to her supervisor, who was drafting the article while she was there with him contributing to the process along with one of the in-house lawyers who was there to advise them. She testified that she read the article as her supervisor wrote it and that she did not have any problem with its accuracy, thoroughness, or completeness. She also gathered the information for the update and gave it to her supervisor to write up. Viewed in the light most favorable to Jones, the evidence of McKernan's direction of and participation in the process of writing the defamatory article establishes a prima facie case of the element of publication, and McKernan's self-serving affidavit offered in rebuttal does not conclusively prove she did not "publish" the article. See Leyendecker & Assocs. v. Wechter ,
Accordingly, we conclude that Jones established by clear and specific evidence a prima facie case of the element of publication against all the TMZ Defendants, except the domain name TMZ.com.
B. Actual malice
The TMZ Defendants also assert that Jones failed to marshal clear and specific evidence to support a prima facie case of actual malice.
"Knowledge of falsity is a relatively clear standard; reckless disregard is much less so." Bentley ,
"The defendant's state of mind can-indeed, must usually-be proved by circumstantial evidence." Bentley ,
A defendant's self-serving protestations of good-faith belief in the statements' truth cannot alone suffice to disprove actual malice.
A lack of care or an injurious motive in making a statement is not alone proof of actual malice, but care and motive arefactors to be considered. An understandable misinterpretation of ambiguous facts does not show actual malice, but inherently improbable assertions and statements made on information that is obviously dubious may show actual malice. A failure to investigate fully is not evidence of actual malice; a purposeful avoidance of the truth is. Imagining that something may be true is not the same as belief.
The parties' arguments about actual malice revolve around the quality of the TMZ Defendants' investigation before the article's publication. Jones asserted in response to the motion to dismiss that the weight of the circumstantial evidence in this case demonstrated not only that the TMZ Defendants had "serious doubts" about the truth of its publication, but that they also had knowledge that the statements were false. Jones argued that the story itself was inherently implausible, that the TMZ Defendants selectively omitted certain facts from the story and deliberately distorted others, and that it was essentially based on an unverified, anonymous account that the TMZ Defendants assisted in fabricating. On appeal, the TMZ Defendants primarily rely on their assertion that they did not act with actual malice because they accurately reported the contents of the report that Watson filed with the Cleveland Police Department. They also contend that Jones's allegations that McKernan failed to adequately research the story and relied too heavily on Watson's statements are no evidence of actual malice. They point to evidence of the steps McKernan took before the article's publication as evidence of her appropriate investigation and her belief that the publication was correct. Finally, they assert that their failure to retract the news story after Jones denied the allegations is also no evidence of actual malice.
We begin by noting the gravity of the accusations made against Jones. The article alleges that Jones "has been named the primary suspect" in a plot to hire a hit man (Watson) to kill his agent. The article further alleges that when Watson refused to participate, Jones responded that he is a "gangster" and would make Watson "disappear." The allegations against Jones in this case are far more serious than those that factored into the Supreme Court's decision that the evidence supported a finding of actual malice in Curtis Publishing Co. v. Butts . See
The investigation in this case suffers from a shortcoming similar to that of the investigations in Butts and in Harte-Hanks ; the Supreme Court held that both
The TMZ Defendants do not dispute that no one investigated Watson to determine whether he was a credible source. Jones presented evidence that Watson is a convicted felon and has a fairly lengthy criminal history, both easily verifiable matters of public record.
Mr. Watson:
I received a messаge that you called my office today. I have no intention of speaking with you as there's nothing to discuss and I have no reason or need to speak with you. All that needs to be said was set forth in my letter. Please cease communicating with my office.
At her deposition, McKernan testified that this message instructing Watson to stop calling Jones's attorney caused her to believe that Watson was afraid for his safety because his relationship with Jones "had gone sour." She did not ask Watson to provide her with a copy of the referenced letter and she "didn't know" whether the contents of that letter might be important or relevant to the story Watson was telling her. She thinks that Watson sent her the
McKernan also testified that she did not know whether Watson was a stalker or whether he was mentally unstable. The email correspondence between Watson and McKernan before the article was published includes emails in which Watson stated:
I want to go all the way with this espn, nationl enqure, people mag, cnn, talk shows what ever, this way he will not try to kill me the worid will know! The lawyer is herasing me know. I trust you liz this is real. And let jerry jones know he had a killer on his team," and "So what do you think about this story? How fare do you think this will go? And do you think this will reach the masses. I have no reason to lie my rep is on the line."
McKernan admitted that she did not know whether he was telling her the truth. "Imagining that something may be true is not the same as belief." Bentley ,
Watson's email correspondence with McKernan supports an inference that McKernan purposefully avoided inquiring into the details of Watson's relationship with Jones by failing to ask why Jones's attorney Bressi sent Watson a letter, what the letter said, and why Bressi wanted Watson to stop communicating with his office. McKernan did not contact Bressi to inquire into the details of Jones and Watson's relationship, even though the email included Bressi's contact information. The correspondence supports the further inference that McKernan purposefully avoided considering the plausibility of Watson's story that Jones desired to have his agent murdered and threatened Watson when he refused to do the job, given that Jones had his attorney send Watson a letter saying "[a]ll that needs to be said" and the attorney asked Watson to stop communicating with his office.
Furthermore, the TMZ Defendants failed to meaningfully seek corroboration of Watson's story from any other sources, including Jones. McKernan never called Jones's sports agent, despite the fact that his life was purportedly in danger and that he would have been able to provide more information about his current relationship with Jones and why Jones would want to hire someone to kill him. She said the agent was not named, and she was not sure whether she had ever asked what his name was. She could not remember whether she had ever done any investigation to find out who he was.
The timing of McKernan's effort to contact Jones also supports an inference of purposeful avoidance. Although the initial article stated, "We reached out to Jones several times for comments-so far, no word back," McKernan in fact contacted Jones via a direct message on Twitter at about 8:00 p.m. Central time on June 17 before the stоry was published and received a response. McKernan's message stated, "We have a police report that was filed against you claiming you hired a hitman to kill your agent [message break] the alleged victim claims that he is in fear for his life because of this [message break] we wanted to reach out to you about it-because it's hard to believe obviously. " (Emphasis added.) Jones responded, "Call this number and talk to this guy," and
Finally, the TMZ Defendants' acts after publication support an inference that their article was a "calculated falsehood" or that they recklessly disregarded its truth. See Turner ,
[Watson] has been harassing Mr. Jones and his family for the past several months. Mr. Watson received a cease and desist letter from Mr. Jones' lawyer last week and after receiving that letter apparently Mr. Watson decided to escalate his extortion attempts by filing a false police report against Mr. Jones then circulating the false report to the media.
Jones suggests that the fact that he had asked an attorney to take action against Watson before Watson filed his Incident Report is inconsistent with the idea that Jones is someone who claims to be a "gangster" and threatened to make Watson "disappear" and that it explains Watson's motive for filing a false report about Jones. TMZ's decision to omit this information supports an inference that they knew the story was false or recklessly disregarded whether it was true. McKernan testified that she did not recall following up on the article at all once the update was published and that she did not know whether anyone else did. She considered it finished at the time it was updated. She did not know whether she ever called Watson after to find out whether he was "still alive."
The TMZ Defendants argue that a "mere failure to investigate the facts, by itself, is no evidence of actual malice," and therefore, McKernan's reliance solely on Watson and her failure to check other sources have no bearing on a determination of actual malice. See Bentley ,
To rebut Jones's prima facie case on actual malice, the TMZ Defendants also rely heavily on their argument that they were merely reporting what was in the police department's Incident Report. Accordingly, they assert, the relevant question is whether they falsely represented the contents of the document. We note that the Texas Supreme Court has reaffirmed the "well-settled legal principle that one is liable for republishing the defamatory statement of another." Neely ,
The parties also join issue over whether the TMZ Defendants misrepresented the nature of the document created by the Cleveland Police Department and whether the TMZ Defendants knowingly or recklessly misrepresented that the police were actually investigating Jones, when in fact, they were not. Jones offered the affidavit of an expert witness on the Department's procedures, Jamie Serrat, an attorney who practices criminal law and has experience with criminal investigations in Cleveland, Ohio. In addition to offering his opinions on the Cleveland Police Department's procеdure, Serrat also interviewed the police officer indicated as the reporting officer on the document titled "Offense/Incident Report," which we have referred to as the "Incident Report." Serrat testified that this type of document "should never be referred to as a "Police Report" because "Field Reports/Police Reports are typically generated after a suspect is arrested" and they contain different information because they are the product of independent police investigation or police work. In contrast,
The TMZ Defendants argue that their reporting that Jones was the primary suspect in a police investigation was not knowingly false or reckless because the report states that Moorе is the "Primary Investigating Officer," so they did not know that there would be no investigation. However, they provide no explanation for what they thought the phrase "victim advised to Prosecutor at earliest" meant. When asked at her deposition what she thought this phrase meant, McKernan stated, "It meant that the victim was advised to perhaps [sic] a prosecutor soon." When asked whether or not she believed this to mean that Watson had been advised to go and talk to someone else about the case because the police would not investigate, McKernan said, "I don't know." And McKernan could not remember at all what she spoke to Watson about when she talked to him minutes after he left the police station or specifically whether it was possible that he was told to go somewhere else. She also asked him in subsequent emails before the article went out what the police had told him, and he said, "The cops said I did the right thing." She followed up with: "What did they say about investigating it?" Watson replied, "The Austin, Texas cops told me to file here first, then they would go from there. I hope Jerry Jones fineds out," and shortly after, "They said should have went to the FBI. This need hit TV. I'm ready." McKernan testified that she was not sure whether she knew when she was corresponding with Watson if the police were going to investigate at all.
The TMZ Defendants' argument that they cannot be expected to know that the Incident Report did not in fact indicate that the Cleveland police were undertaking an investigation of Jones is undercut by the correspondence and McKernan's testimony. While McKernan testified that she was unsure whether she knew if police were investigating Watson's case, she also testified that she had worked with the Cleveland Police Department's public-information office in the past. McKernan made only one call to the Cleveland Police Department-to the records department-the day before the article was published. She testified that the call to the records department was to confirm that Watson had actually filed the report. After the article was published at 2:45 a.m. Central time on June 18, she made another call to the Cleveland Police Department public-information office at 7:45 a.m. that same morning, and she testified that she is "not sure" why she called the public-information office. However, her correspondence with Bressi that morning after the article was published stated, "I've called Cleveland P.D., asking what it is they are even doing about the report. All I know from records is that it is open and it was only recently filed." At a minimum, viewed in
Having examined the entirety of the evidence, we conclude that Jones has marshaled clear and specific evidence that supports a prima facie case of actual malice, based on "the relation of the parties, the circumstances attending the publication, the terms of the publication itself, and from the defendant's words or acts before, at, or after the time of the communication." Dolcefino ,
C. Application of Section 73.055
The TMZ Defendants assert that the trial court should have dismissed Jones's defamation claim because Jones failed to satisfy the requirements of the Defamation Mitigation Act (DMA). See generally Tex. Civ. Prac. & Rem. Code §§ 73.051 -.062. The TMZ Defendants argue that the DMA requires dismissal of Jones's defamation claim, based on their contention that Jones did not timely request a correction, clarification, or retraction of the allegedly defamatory statements as required by the Act. See
The Texas Legislature enacted the DMA in 2013 to "provide a method for a person who has been defamed by a publication or broadcast to mitigate any perceived damage or injury."
We agree that when the statute is read in its entirety, giving effect to all its provisions and considering the purpose of the statute, the consequence for failing to timely make a request is not dismissal, but rather preclusion of recovery of exemplary damages. See Hardy ,
We agree with the court's analysis in Hardy , and we conclude that Jones was not required to establish a prima facie case of demand pursuant to Section 73.055 as an essential element of his defamation claim when resisting a TCPA motion to dismiss. The TMZ Defendants assert on appeal that the DMA does not provide an affirmative defense to Jones's defamation claim for which they bear the burden of proving a prima facie case; instead, they rely on their argument that Jones had the burden to show as part of his prima facie case that he satisfied what they describe as a statutory prerequisite to suit. See Tex. Civ. Prac. & Rem. Code § 27.005(d) (allowing movant to establish by preponderance of evidence each essential element of valid defense to nonmovant's claim). Accordingly, we need not reach the parties' arguments about whether Jones made a timely and sufficient request for correction, clarification, or retraction under the DMA or whether the TMZ Defendants issued a clarification. Having determined that Jones established a prima facie case for the essential elements of defamation challenged by the TMZ Defendants and that he was not required to demonstrate that he satisfied the DMA to avoid dismissal, we conclude that Jones established a prima facie case of defamation.
II. Civil conspiracy
Jones also alleged that the TMZ Defendants conspired with Watson to defame him. The TMZ Defendants argue on appeal that Jones's conspiracy claim must be dismissed because it is derivative of his defamation claim. "Civil conspiracy, generally defined as a combination of two or more persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlаwful means, might be called a derivative tort." Tilton v. Marshall ,
III. Intentional infliction of emotional distress
The TMZ Defendants also assert that Jones has failed to establish a prima facie case for his claim of intentional infliction of emotional distress. "This tort has four elements: (1) the defendant acted intentionally or recklessly; (2) its conduct was extreme and outrageous; (3) its actions caused the plaintiff emotional distress; and (4) the emotional distress was severe." Hersh v. Tatum ,
In this case, the facts that Jones bases this claim on are the same facts that he bases his defamation claim on. Jones does not assert that there are any additional, unrelated facts in the record that support his claim for intentional infliction of emotional distress. For this reason, we conclude that Jones did not establish a prima facie case of intentional infliction of emotional distress; therefore, the trial court erred by not dismissing this claim. See Bilbrey ,
IV. Malicious prosecution
The TMZ Defendants challenge the trial court's failure to dismiss Jones's malicious-prosecution claim, arguing that he failed to establish a prima facie case for each element of the claim. To establish a claim for malicious criminal prosecution, Jones needed to show that: (1) a criminal prosecution was commenced against him; (2) the TMZ Defendants initiated or procured that prosecution; (3) the prosecution terminated in Jones's favor; (4) Jones was innocent of the charges; (5) the TMZ Defendants lacked probable cause to initiate the prosecution; (6) the TMZ Defendants acted with malice; and (7) Jones suffered damages. See Kroger Tex. Ltd. P'ship v. Suberu ,
V. Abuse of process
The TMZ Defendants contend that Jones failed to establish a prima facie case for his abuse-of-proсess claim. An abuse-of-process claim "presupposes an originally valid and regular process duly and properly issued." Futerfas v. Park Towers ,
As noted above, criminal proceedings do not commence without at least the issuance of an arrest warrant or a lawful arrest. See French ,
Having concluded that the trial court did not err by denying the TMZ Defendants' motion to dismiss with regard to Jones's defamation and conspiracy claims except as to TMZ.com, we ovеrrule their second issue as it relates to these claims. Having concluded that the trial court erred by denying the TMZ Defendants' motion to dismiss with regard to Jones's claims for intentional infliction of emotional distress, malicious prosecution, and abuse of process against all defendants and his claims for defamation and conspiracy against TMZ.com, we sustain their second issue as it relates to these claims.
Did the trial court err by considering the evidence challenged by the TMZ Defendants?
In their third issue, the TMZ Defendants argue that the trial court erred
Our disposition of the issues on appeal does not turn on any of the affidavits that the TMZ Defendants objected to. Although when analyzing actual malice we considered portions of the affidavit of Serrat, Jones's expert witness, that evidence is cumulative of other evidence related to the TMZ Defendants' stated uncertainty about whether the police were investigating. Gee v. Liberty Mut. Fire Ins. Co. ,
"An expert witness may testify regarding scientific, technical, or other specialized matters if the expert is qualified, the expert's opinion is relevant, the opinion is reliable, and the opinion is based on a reliable foundation." Whirlpool Corp. v. Camacho ,
We reverse that portion of the trial court's order denying the TMZ Defendants' motion to dismiss Jones's claims for defamation and conspiracy only against TMZ.com and Jones's claims for intentional infliction of emotional distress, malicious prosecution, and abuse of process, and we render judgment dismissing these claims with prejudice. We affirm that portion of the trial court's order denying the TMZ Defendants' motion to dismiss Jones's claims for defamation and conspiracy against all appellants other than TMZ.com. We remand the case to the trial court for further proceedings consistent with this opinion, including consideration of the defamation and conspiracy claims and determination of the attorneys' fees and sanctions that must be awarded under Section 27.009 in connection with the dismissal of the other claims. See Sullivan v. Abraham ,
Notes
There are three different time zones involved in this case. Jones lives in Austin, Texas; defendant McKernan worked in Los Angeles, California; and at the time of the relevant events, Watson lived in Cleveland, Ohio. For convenience, all references to times have been converted to Central Daylight Time (CDT).
We refer to the article, the update, and the Twitter post collectively as the "article," the "story," or the "news story."
All quotations from the record are accurately transcribed. All mistakes have been left as found in the original documents, but for ease of reading, they are not identified with "[sic]."
A " 'legal action' means a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief." Tex. Civ. Prac. & Rem. Code § 27.001(6).
The TMZ Defendants alternatively argue that the TCPA applies because (1) Jones's claims are related to their exercise of the right of free speech because Jones is a public figure and because the article concerned the government and related to community well-being and (2) Jones's claims are related to their exercise of the right to petition. See Tex. Civ. Prac. & Rem. Code § 27.001(3), (4)(B), (7)(B), (C), (D). We need not reach these arguments because we hold that, on this record, Jones's claims related to the TMZ Defendants' exercise of the right of free speech because the statements are related to "health or safety." See
While we conclude that Jones has established a prima facie case that Warner Bros. Entertainment, Inc. and TMZ Productions, Inc. published the article, we express no opinion on the ultimate merits of his claim as to the corporate defendants. We merely conclude that at this early stage of the case, the corporatе defendants have not conclusively rebutted the prima facie case established by Jones.
Jones also argued on appeal that the TMZ Defendants' denial that they published the statements at issue precludes their ability to obtain dismissal under the TCPA. We note that the Texas Supreme Court recently rejected this theory. See Hersh v. Tatum ,
As noted previously, the TMZ Defendants assert that Jones is a public figure. If the trial court concludes that Jones is a public figure, he will be required to show at trial that the TMZ Defendants acted with actual malice regarding the truth of the challenged statements, rather than with negligence. See Neely v. Wilson ,
At her deposition, McKernan testified that she could not remember whether she had done anything to investigate Watson, including whether she had asked him what he did for a living, whether she had asked him if he ever had any criminal problems, or whether she had Googled his name. She further testified that she did not recall or know of anyone else at TMZ investigating Watson or his background. Later in her deposition, she testified that "[j]ail records are sometimes public record" and that she might have looked up whether Jones was in jail before the article was published.
Because we determined that the trial court erred by refusing to dismiss Jones's defamation claim against the domain name TMZ.com, the trial court likewise erred by refusing to dismiss Jones's conspiracy claim against the domain name TMZ.com, which was dependent on the defamation claim.