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D Magazine Partners, L.P. v. Reyes

Court of Appeals of Texas, Fifth District, Dallas

April 18, 2017

JOSE REYES, Appellee

         On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-07308

          Before Justices Fillmore, Brown, and O'Neill [1]



         In this interlocutory appeal, D Magazine Partners, L.P. d/b/a D Magazine (D Magazine) and Dallas Symphony Association, Inc. a/k/a Dallas Symphony Orchestra (DSO) challenge the trial court's partial denial of their motions for summary judgment on all claims urged by appellee Jose Reyes. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(6) (West Supp. 2016). D Magazine raises three issues in this Court, arguing the trial court should have granted summary judgment dismissing Reyes's claims for defamation per quod, negligence, gross negligence, and conspiracy. In two issues, DSO contends the trial court erroneously denied its motion for summary judgment on Reyes's claims for conspiracy and tortious interference with his employment relationship.

         We dismiss DSO's appeal of Reyes's claim for tortious interference with employment for lack of jurisdiction. We reverse the trial court's orders denying appellants' motions for summary judgment on Reyes's claims for defamation per quod, negligence, gross negligence, and conspiracy to defame Reyes.


         In 2013, Jose Reyes worked for Bank of America and enjoyed volunteering for a number of civic enterprises, including DSO. Reyes was a member of the Vivaldi Patron Circle of the DSO, and he served the DSO in a number of capacities over approximately a ten-year period. However, some number of people associated with DSO developed issues with Reyes, and DSO received complaints about him from other volunteers and sponsors. On July 9, 2013, Jenny Shephard, vice president of development at DSO, called Reyes and terminated his position as a volunteer. She gave two reasons: Reyes's overstepping his boundaries in dealing with the press and his attending parties to which he was not invited. Reyes steadfastly denied both charges. Jonathan Martin, the DSO's president and CEO, approved the discharge.

         A little after three o'clock on the morning of July 10th, Reyes emailed Martin from his computer at Bank of America. In this email (the Martin Email), Reyes referred to his lengthy service on behalf of DSO, stating that he had raised thousands of dollars for the organization over the years. Reyes reminded Martin that Bank of America was a major donor of DSO, and he stressed that "[w]e take our volunteer service, community involvement, and non-profit support of organizations very seriously here at Bank of America." Reyes went on to inform Martin of Shephard's call, saying he was "shocked and highly offended" by her comments, and Reyes warned that he would not "go quietly." Reyes asked for Shephard to be replaced and for his ouster to be reversed; he demanded a written apology.

         Later that same day, Reyes's termination was made public when Chris Shull, DSO's manager of public relations, sent the following message to eighteen media outlets and sponsors:

The Dallas Symphony Orchestra would like to inform its sponsors and media partners that as of July 9, 2013 Jose Reyes is no longer affiliated as a volunteer with the Dallas Symphony Orchestra or with any of its volunteer organizations and/or organizing committees.
Thank you.

         One recipient was D Magazine, which printed the message on its blog that afternoon. D Magazine also began to follow up on the story; a reporter, Jeanne Prejean, began looking into the reason why DSO had terminated Reyes.

         Later that day, Kerri Cleghorn Lai-DSO's director of institutional giving-forwarded the Martin Email to Gillian Breidenbach, who served as a DSO contact at Bank of America. Breidenbach then forwarded the Martin Email to Scott Prince, Reyes's supervisor at the bank. She also told Prince that D Magazine was planning to write a story about Reyes. The bank initiated an investigation, and at some point Reyes was placed on administrative leave.

         Prejean continued working on her story for D Magazine. On July 16th, she interviewed Reyes. The following day, Bank of America terminated Reyes's employment, stating the Martin Email violated company policy. The Prejean article was published in September 2013.

         Reyes sued D Magazine and DSO. The defendants both filed motions for summary judgment, which were granted in part and denied in part. They appeal all grounds of the motions that were denied.

         The Motions for Summary Judgment

         D Magazine filed a motion for summary judgment on both traditional and no-evidence grounds. The trial court granted the motion on Reyes's claims for defamation per se, intentional infliction of emotional distress, and tortious interference with prospective business relationships. This appeal addresses the claims on which the trial court denied summary judgment: defamation per quod, negligence and gross negligence, and conspiracy to defame.

         As to Reyes's surviving defamation claim, D Magazine argued in its motion that (1) the statements on which Reyes's claim was premised were true or were non-actionable statements of opinion and, therefore, were incapable of defamatory meaning; (2) the statements were not made negligently; and (3) Reyes had suffered no damages from publication of the statements. The magazine argued further that Reyes's negligence and gross negligence claims should be dismissed because they were based on the same facts as the defamation claim. And the conspiracy claim, according to D Magazine's motion, must fail for lack of a substantive tortious act as well as a meeting of the minds between D Magazine and DSO.

         DSO also filed a traditional and no-evidence summary judgment motion. The trial court granted DSO's motion on Reyes's claims for intentional infliction of emotional distress, defamation per se, defamation per quod, negligence, and tortious interference with prospective business relationships. DSO appeals the denial of its motion on grounds of conspiracy to defame Reyes and tortious interference with Reyes's employment relationship with Bank of America. According to DSO's motion, Reyes's conspiracy claim fails for lack of evidence that DSO conspired with D Magazine to publish any defamatory statements or otherwise commit any tortious conduct. And Reyes's interference-with-contract claim fails because: (i) Bank of America terminated his employment solely due to his poor employment history and various policy violations, and (ii) Reyes has no evidence that the DSO willfully or intentionally interfered with that relationship or caused Bank of America to fire him.

         We apply well-known standards in our review of traditional and no-evidence summary judgment motions. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). With respect to a traditional motion for summary judgment, the movant has the burden to demonstrate that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Nixon, 690 S.W.2d at 548-49. We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. Tex.R.Civ.P. 166a(i); Gish, 286 S.W.3d at 310. To defeat a no-evidence summary judgment, the nonmovant is required to produce evidence raising a genuine issue of material fact on each challenged element of its claim. Gish, 286 S.W.3d at 310; see also Tex. R. Civ. P. 166a(i). In reviewing both traditional and no-evidence summary judgments, we consider the evidence in the light most favorable to the nonmovant. Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009); 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). We credit evidence favorable to the nonmovant if reasonable jurors could, and we disregard evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

         Within these standards, we review the summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). As a general rule, when both no-evidence and traditional summary judgment motions are filed, we address the no-evidence motion first. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

         D Magazine's Appeal

         D Magazine raises three issues in this Court.

         Defamation Per Quod

         In its first issue, D Magazine contends the trial court should have dismissed Reyes's defamation per quod claim on traditional and no-evidence grounds. Defamation per quod is defamation that is not actionable per se. In re Lipsky, 460 S.W.3d 579, 596 (Tex. 2015).[2]

         To maintain a defamation per quod cause of action, the plaintiff must prove that the defendant: (1) published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). A defamation per quod plaintiff must also prove an injury causing damages. See Lipsky, 460 S.W.3d at 596. "To be actionable, a statement must assert an objectively verifiable fact." Main v. Royall, 348 S.W.3d 381, 389 (Tex. App.-Dallas 2011, no pet.). We determine whether a statement asserts such a fact-as opposed to a constitutionally protected opinion-as a question of law. Id. We construe the allegedly defamatory statement as a whole in light of the surrounding circumstances and based upon how a person of ordinary intelligence would perceive it. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000).

         Allegedly Defamatory Statements

         In his pleading, Ryes identified fifteen statements that he contends are defamatory. It is undisputed that the statements were published by D Magazine. Our first task, therefore, is to determine-as a matter of law-whether these statements are reasonably capable of a defamatory meaning from the perspective of an ordinary reader in light of the surrounding circumstances. See Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013). If a statement is capable of a defamatory meaning, we ask next whether the summary judgment evidence established that the statement was false. See Main, 348 S.W.3d at 389-90 ("If we determine that the statements are not capable of a defamatory meaning, we need not consider whether the complained-of statements are false or not substantially true."). A true statement cannot form the basis of a defamation complaint. Double Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 855 (Tex. App.-Dallas 2003, no pet.).

         We address Reyes's fifteen statements in turn to make these determinations.

         (1) The Article's Headline: "The Talented Mr. Reyes: How a man of meager means and a mysterious past duped Dallas society."

         Reyes contends the headline's reference to his means as "meager" is insulting, and he asserts that in fact his means are "just fine with him." Likewise, Reyes argues the references to his "mysterious past" and to his "duping Dallas society" inaccurately suggest he was hiding some dark secret or that he engaged in deceptive conduct toward those around him in the DSO. D Magazine responds that the elements of the headline are no more than unverifiable opinions.

         To determine whether a statement is fact or opinion, we focuses our analysis on the statement's verifiability and the entire context in which it was made. Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex. 2002). Employing that standard, we agree with D Magazine that a reference to meager means is a subjective opinion, given that an income one person views as meager may be substantial to another. See Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 875 (Tex. App.-Dallas 2014, no pet.). This kind of description cannot be objectively verified because it amounts to a personal judgment that "rests solely in the eye of the beholder." Avila v. Larrea, 394 S.W.3d 646, 659 (Tex. App.-Dallas 2012, pet. denied). Accordingly, the description is not capable of a defamatory meaning.

         As to the remainder of the headline-assertions that Reyes had a mysterious past and that he duped Dallas society-we conclude the headline writer was employing rhetorical hyperbole, an exaggeration employed for rhetorical effect. Backes v. Misko, 486 S.W.3d 7, 26 (Tex. App.- Dallas 2015, pet. denied); see also Tatum v. The Dallas Morning News, Inc., 493 S.W.3d 646, 661 (Tex. App.-Dallas 2015, pet. filed). Viewed in the context of the article as a whole, we see no discussion of Reyes's "past" or of any effort on Reyes's part to trick members of the DSO in any fashion. Although the Article appears to chastise Reyes for describing his work in a call center as "marketing, " to move from that characterization to descriptions of mysteries and trickery can only be seen as extravagant exaggeration. And that kind of rhetorical flourish is not actionable as defamation. Backes, 486 S.W.3d at 26.

         We acknowledge that the headline and many other statements within the Article could be interpreted as criticism of Reyes, and they undoubtedly hurt his feelings. However, to the extent the statements amount to opinions that Reyes did not "fit" within Dallas society, they are not actionable. "[A] communication that is merely unflattering, abusive, annoying, irksome, or embarrassing, or that only hurts the plaintiff's feelings, is not actionable." Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 356 (Tex. App.-Houston [1st Dist.] 2013, pet. denied). We conclude the headline to the Article is not capable of defamatory meaning.

         (2) Photo caption: "Social Butterfly: Jose Reyes strikes a pose with Anna-Sophia van Zweden (left) and Ana Pettus."

         Next, Reyes points to a photo caption that called him a "social butterfly." In his deposition, Reyes testified that the term "label[ed] him in a negative context" and asserted that "labeling somebody with those words could be very hurtful." However, when pressed in the deposition, Reyes acknowledged the term "could mean several different things." And in this Court, Reyes defines the term as "one who is friendly or talks a lot, " which is certainly not a negative connotation. Whether we accept Reyes's definition or accept his admission that the term may have many meanings, we must conclude that the caption merely expresses an opinion about him. Different people may consider the term positive or pejorative based upon their own preferences for social activity. Again, when a statement represents a personal judgment that "rests solely in the eye of the beholder, " it is not actionable as defamation. Avila, 394 S.W.3d at 646.

         (3) "It seemed strange that so many people on the party circuit knew him, but none could say where he'd come from or ...

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