Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 237th District Court Lubbock County, Texas
Trial Court No. 2016-519, 740, Honorable Les Hatch, Presiding
QUINN, CJ., and CAMPBELL and PIRTLE, JJ.
Quinn Chief Justice
trial court denied the motion of Timothy Castleman and
Castleman Consulting, LLC (Castleman) to dismiss the
defamation suit filed against them by Internet Money Limited
d/b/a The Offline Assistant and Kevin O'Connor
(collectively referred to as Offline). Castleman thought
itself entitled to such relief per the terms of the
"Texas Citizens Participation Act" (TCPA). Tex.
Civ. Prac. & Rem. Code Ann. § 27.01 et
seq. (West 2015). We affirm.
to the limited record before us, the dispute arose from a
commercial or business relationship between Castleman and
Offline. The former retained the latter to help order and
deliver products sold over the Castleman website. Allegedly,
Offline failed to properly comply with instructions from
Castleman about how to perform its tasks, which deviations
purportedly resulted in Castleman experiencing lost profits.
Offline responded by alleging that it had followed the
instructions provided it.
Castleman posted on the internet comments about Offline's
performance. For instance, it titled one of its blogs
"Warning: Stay Away From The Offline Assistant Company
& Kevin O'Connor" and wrote about the business
relationship between the two, how he mentored O'Connor,
how he "help[ed] [O'Connor] grow his business,
" and the controversy arising therefrom. That blog also
contained allegations that 1) "[n]o one from
[O'Connor's] company . . . reviewed any of
the orders to ensure they were being done correctly despite
his assurances they do quality control and project management
on all jobs, " 2) "[t]here was an 85% error rate by
his staff in ordering products for us, " 3) O'Connor
"doesn't stand behind his employees['] work,
" and 4) Offline "has zero quality control or
checks to ensure work is being done correctly." Through
other internet avenues, Castleman stated that 1) his
"goal [was] to protect other business owners from losing
$8k or having to take a company to court like [he's]
doing, " and 2) "[t]he fallout for this is going to
be maybe 10 or 100 multiples of what this guy owes me, and
none of it had to happen."
deemed the comments defamatory, demanded their removal, and
requested damages. So too did it sue Castleman when the
latter refused Offline's demands.
answering the petition, Castleman invoked the provisions of
the TCPA and moved to dismiss the suit. According to
Castleman, Tim Castleman had "the right to speak his
mind on the behavior of companies and individuals with whom
he [did] business. He has done so, and [Offline is] now
trying to make him pay for it. But Castleman's statements
[weren't] defamatory; they [fell] within no exception to
the liberty of free speech that would allow a reasonable
person to find them defamatory." Furthermore, the
"Texas Citizens Participation Act" purportedly
"protected] him from [Offline's] attempts to impose
upon him the cost of defending such a lawsuit."
trial court denied the motion to dismiss and issued findings
of facts and conclusions of law supporting its decision.
Among other things, it determined that 1) "[t]he
statements at issue arose out of the sale of goods, and the
intended audience is actual or potential buyers or customers,
" 2) Castleman's "statements were made with
either the knowledge of their falsity or, at the very least,
with reckless disregard as to their truth or falsity, "
3) Castleman "admitted their intent to harm [Offline]
and acknowledged the damage their statements were causing
[Offline], " 4) Castleman failed to prove that "the
legal action was based on, related to, or was in response to
[Castleman's] exercise of the right of free speech, the
right to petition, or of the right of association, " 5)
"Defendant Castleman Consulting, LLC did not file a
motion to dismiss under the Texas Citizens Participation Act,
" only Tim Castleman, " and 6) Castleman's
"acts fall within an exception to the Citizens
Participation Act." Castleman appealed.
sole issue before us concerns whether the trial court
properly denied the motion to dismiss. We overrule the issue.
TCPA requires the dismissal of suits that impinge on certain
First Amendment rights. Greer v. Abraham, 489 S.W.3d
440, 441 (Tex. 2016). The rights within its scope are those
pertaining to free speech, to petition, and of association.
Tex. Civ. Prac. & Rem. Code Ann. §
27.003(a). Yet, the Act "does not apply to a legal
action brought against a person primarily engaged in the
business of selling or leasing goods or services, if the
statement or conduct arises out of . . . a commercial
transaction in which the intended audience is an actual or
potential buyer or customer." Id. §
27.010(b). Offline contended that the circumstances
underlying its suit fall within this exemption. The trial
court agreed, as illustrated by its statements that the
"statements at issue arose out of the sale of goods, and
the intended audience is actual or potential buyers or
customers, " and Castleman's "acts fall within
an exception to the Citizens Participation Act."
us, though, Castleman posits that the decision is
"nonsense" since "[t]he commercial-speech
exception denies the Act's protection to misstatements
about the products or services of a company or its
competitors in an attempt to win business for the
speaker (Emphasis added). It was not attempting to win
business for itself, according to Castleman, when uttering
the purported falsehoods at bar. Rather, he was attempting to
warn prospective customers of Offline about Offline's
supposed business capabilities and shortcomings. And, to
support the contention, he cited multiple opinions rendered
by various Texas intermediate appellate courts and a federal
trial court. See, e.g., Epperson v. Mueller, No.
01-15-00231-CV, 2016 Tex.App. LEXIS 8671 (Tex. App.-Houston
[1st Dist.] Aug. 11, 2016, no pet.) (mem. op.); Backes v.
Misko,486 S.W.3d 7 (Tex. App.-Dallas 2015, pet.
denied); Whisenhunt v. Lippincott,474 S.W.3d 30
(Tex. App.-Texarkana 2015, no pet.); Hicks v. Grp. &
Pension Adm'rs, Inc.,473 S.W.3d 518 (Tex.
App.-Corpus Christi-Edinburg 2015, no pet); Kinney v. BCG
Attorney Search, Inc., No. 03-12-00579-CV, 2014 Tex.App.
LEXIS 3998 (Tex. App.-Austin Apr. 11, 2014, pet. ...