Court of Appeals of Texas, Fifth District, Dallas
D MAGAZINE PARTNERS, L.P. D/B/A D MAGAZINE AND DALLAS SYMPHONY ASSOCIATION, INC. A/K/A DALLAS SYMPHONY ORCHESTRA, Appellants
JOSE REYES, Appellee
Appeal from the 116th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-14-07308
Justices Fillmore, Brown, and O'Neill 
MICHAEL J. O'NEILL JUSTICE
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.
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.
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.
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.
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.
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.
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.
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
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
Motions for Summary Judgment
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.
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.
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.
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).
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).
Magazine raises three issues in this Court.
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).
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).
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.).
address Reyes's fifteen statements in turn to make these
The Article's Headline: "The Talented Mr. Reyes:
How a man of meager means and a mysterious past duped Dallas
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.
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.
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.
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
Photo caption: "Social Butterfly: Jose Reyes strikes a
pose with Anna-Sophia van Zweden (left) and Ana
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.
"It seemed strange that so many people on the party
circuit knew him, but none could say where he'd come from