Court of Appeals of Texas, Third District, Austin
Combined Law Enforcement Associations of Texas and John Burpo, Appellants
Mike Sheffield, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT NO. D-1-GN-12-003281, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
Before Justices Puryear, Rose, and Goodwin
Jeff Rose, Justice
Combined Law Enforcement Associations of Texas and John Burpo brought this interlocutory appeal of the denial of their motions to dismiss Mike Sheffield's defamation claims. Appellants contend that they triggered the dismissal procedures of the Texas Citizens Participation Act by showing that Sheffield filed his lawsuit in response to their exercise of their right of association. See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. Appellants contend that Sheffield failed to respond with clear and specific evidence showing a prima facie case for each essential element of his claims as required to avoid dismissal under the TCPA. They further contend that the trial court erred by failing to award them their costs, reasonable attorney's fees, and other expenses incurred in defending this suit.
We will reverse the trial court's order denying the motion to dismiss with respect to claims based on comments made among CLEAT members and will dismiss those claims pursuant to the TCPA. We will affirm the order denying the motion to dismiss Sheffield's claim based on comments made to the district attorney and other unnamed persons. We will remand the case for further proceedings consistent with this opinion, including consideration by the trial court of an award of costs and fees relating to the motion to dismiss.
CLEAT is a labor union that represents law enforcement officers. Burpo was its executive director, and Sheffield worked for CLEAT as a field service representative, having retired from the Austin Police Department. He was assigned to help various local police associations including the Austin Police Association (APA). After disagreements relating to the scope and manner of Sheffield's interactions with APA members, Burpo fired him on July 18, 2011.
The comments giving rise to the defamation claims in this case relate to Sheffield's conduct with respect to his CLEAT-issued laptop computer in the aftermath of his firing. When he was fired, Sheffield had his CLEAT computer at home. Sheffield asserts by affidavit that the standard practice at CLEAT was to erase a departing employee's computer, reprogram it, and then give it to another employee. Sheffield states that a computer store technician saved his personal files to a thumb drive. Sheffield says he then took the computer home and deleted data from the laptop's hard drive intending to prevent disclosure of personal information. He turned in his laptop to CLEAT and says he was assured by the employee receiving it that his actions were acceptable.
Appellants assert that CLEAT's practice was always to control the computer-scrubbing process, downloading files beforehand to avoid the complete loss of data. CLEAT's expert analyzed Sheffield's computer and found some data—including some partial documents and emails—that appellants contend support their reasons for firing Sheffield. Appellants contend that the data was potentially relevant in legal proceedings relating to the firing that followed—complaints and suits by both sides that have been rejected, dismissed, or withdrawn.
The parties have engaged in a series of legal wranglings. Sheffield filed unfair labor practices grievances and complaints against CLEAT with his union and the National Labor Relations Board. The union declined to pursue the grievance in arbitration, and the NLRB dismissed one complaint before Sheffield withdrew the other two. Meanwhile, Sheffield returned to work at the Austin Police Department, which prompted APD's Special Investigations Unit to investigate CLEAT's allegations that Sheffield had committed a crime by scrubbing his CLEAT computer's memory. APD found no criminal element in the conduct by Sheffield. According to APD's memo, however, its investigation was limited by CLEAT's decision not to supply APD with evidence because CLEAT wanted either Williamson County or federal authorities to investigate. APD also referred the issue to the FBI's cybercrimes unit which found "no federal [criminal] element" in Sheffield's behavior. Sheffield averred that the Lockhart Police Department (where he also worked post-CLEAT) also investigated and "likewise cleared [him]." The Williamson County grand jury in August 2012 declined to indict Sheffield. CLEAT states that in August 2012 it filed a conversion action against Sheffield in Williamson County that was transferred to Travis County and then nonsuited.
Sheffield's defamation suit is based on comments allegedly made by Burpo and others associated with CLEAT. The core of Sheffield's complaint in his live petition is as follows:
[O]n one or more occasions, the Defendants defamed Mr. Sheffield by uttering and/or broadcasting and/or repeating statements and false allegations that Mr. Sheffield committed criminal acts in connection with his employment with CLEAT. Those allegations included that Sheffield inappropriately accessed CLEAT's computer system and deleted files with the intention of harming CLEAT. Upon information and belief, such false accusations were broadcast to 70 plus police officers and former co-workers of Mr. Sheffield, at least. The statements were made by an officer or agent of CLEAT acting within his or her scope of authority in publishing the defamatory statement.
Appellants moved to dismiss this claim under the TCPA, a statute enacted by the Texas Legislature in 2011 to "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. One way the statute seeks to protect those rights is by providing an early dismissal mechanism for certain categories of lawsuits. If a defendant shows by a preponderance of the evidence that the plaintiff's suit is based on, relates to, or is in response to the defendant's exercise of the rights listed in section 27.002, the TCPA requires dismissal of the suit unless the party bringing the legal action "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question." See id. §§ 27.003, .005(c). The TCPA must be "construed liberally to effectuate its purpose and intent fully." Id. § 27.011(b). In their motions to dismiss under the TCPA, appellants asserted that Sheffield's suit was in response to a single email Burpo sent to the CLEAT board and staff. They argued that TCPA applies because Sheffield's suit impinges on their right of association and that Sheffield could not establish a prima facie case for defamation.
In his response to appellants' motions to dismiss, Sheffield listed five communications that he alleges were made in 2012 and were defamatory:
(1)An email sent on January 4 from Burpo to the CLEAT board and staff. Burpo sent the email after the NLRB set a hearing on Sheffield's complaint that he was fired for violating an overly broad limitation on work-related communications. In the email, Burpo discussed the nature and consequences of the NLRB's action. Sheffield focuses on this statement, "The Executive Board has directed me to file criminal charges against Sheffield for deleting files that were the property of CLEAT which [CLEAT attorney] Rod Tanner advises is a criminal act under Texas law."
(2)An alleged comment by Burpo to Corpus Christi Police Officers Association President Mike Staff in the summer. Staff said in an affidavit that Burpo offered him a job with CLEAT and discussed an ongoing reshuffling within CLEAT. According to Staff, Burpo told him that "he and CLEAT were still dealing with Mike Sheffield because of what Mr. Burpo told me was Mr. Sheffield's 'criminal conduct' and that he thought that would end soon."
(3)Alleged statements various CLEAT officials made to Laredo Police Association President Luis Dovalina. In his affidavit, Dovalina states that CLEAT Region 2 Director Mark Guerra "would not or could not provide an answer to why Mr. Sheffield was terminated but did state to me 'it could go criminal, for what he did.'" Although Dovalina said he asked for specifics on Sheffield's termination, he said he never received them and was not told that "a grand jury and other investigations had never led to any charges against Mr. Sheffield." Dovalina said that, when he later asked Burpo about Guerra's comments, Dovalina said that Burpo "informed me that it was 'going to court, ' and that he would brief me on it at a later date" but never did. He averred that three or four CLEAT officials "stated to me that criminal charges could be filed against Sheffield by CLEAT for what Mr. Sheffield had done."
(4)Statements allegedly made by CLEAT corporate counsel John Curtis that APD chief Art Acevedo created a special employment position for Sheffield after CLEAT fired him. Sheffield asserts that this allegation (a) was false because the positions were created previously and independent of his employment situation and (b) was "tantamount to an assertion of conduct violating Section 39.02 of the Texas Penal Code" governing abuse of official capacity.
(5) Statements Curtis allegedly made to Williamson County District Attorney John Bradley attempting to persuade him to allow Curtis to present information to the grand jury in pursuit of an indictment of Sheffield ...