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Schofield v. Gerda

Court of Appeals of Texas, Second District, Fort Worth

May 18, 2017






         I. Introduction

         "The Texas Citizens Participation Act (TCPA) protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them." In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding) (citing Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (West 2015)) (footnote omitted). The statute's purpose is to identify and summarily dispose of lawsuits designed to chill First Amendment rights but not to dismiss meritorious lawsuits. Id. at 589 (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.002). In three issues, Appellants Brad Schofield and Alma Marie Howard bring this interlocutory appeal from the trial court's denial of their motion under the TCPA to dismiss Appellee David Douglas Gerda's defamation suit. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011, 51.014(a)(12) (West 2015 & Supp. 2016). We reverse and remand to the trial court for further proceedings.

         II. Factual and Procedural Background

         The following facts are derived from Gerda's verified original petition, Schofield and Howard's motion to dismiss and the affidavits and other evidence attached to their motion, and Gerda's response to the motion and the affidavits and other evidence attached to his response. See id. § 27.006(a) (providing that the trial court "shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based" in considering chapter 27 motions to dismiss); Lipsky, 460 S.W.3d at 587.

         A. The Contested School Board Race

         On January 31, 2015, Gerda appointed Matthew Mucker as his campaign treasurer for his bid for election to Place 6 on the Keller Independent School District (KISD) Board of Trustees, the seat held by Schofield at the time. From that date until election day-May 9, 2015-Gerda and Schofield were opponents in a contested and spirited political race for public office. All statements Gerda complains of in his defamation lawsuit against Schofield and Howard, a political activist, occurred after Gerda officially declared his candidacy for public office.

         In February 2015, after learning that Gerda was running for his KISD seat, Schofield began to research both Gerda and Mucker. In his investigation, Schofield uncovered various activities that he described as "strange, " "odd, " and potentially unethical involving Gerda, Mucker, Vote Yes for Keller Schools PAC (VYKS PAC), a political action committee formed to advocate voter support for a $169.5 million bond proposal to benefit KISD, and VKS Architects, a firm selected by KISD to perform construction work on recently-approved bond projects. Voters had approved the bond package in the November 2014 election.

         B. Gerda's Connection with VYKS PAC

         At the beginning of the race, and in response to an offer to local candidates to submit information about their campaigns, Gerda submitted the following to the Texas Blaze News:

[W]e've just passed a bond to build new schools, renovate others and to create a game changing Career Technology Education Center.
. . . .
I believed we could pass this bond while my opponent did not, so spending the hundreds of hours this last election cycle was a labor of love for me to help benefit our KISD kids. We also had 8-9 moms and dads giving that same type effort, and yet I didn't see my opponent advocating the elements of the bond to our citizens. What I did see was someone wanting to delay the bond, which would have cost our district tens of millions of dollars more and delay much needed help and space for our kids. . . .
I also believe that by putting my name behind the bond meant having a responsibility to make sure our administrators are true to their word regarding the bond. They've earned much trust from us but we still have to verify. Equally important is one's energy level and belief system toward our upcoming projects. I was honored to serve as Co-Chair of the Get the Yes Vote Out last fall and currently serve on Oversight Committees that oversee interviewing of [c]onstruction firms for the renovations of Keller High and BCI and general Bond Oversight Committee to make sure the bond is utilized in the fashion promoted last fall. These next few years will change our kid's [sic] lives for the good and my opponent has decided that it is not important enough to put the time and effort in as several other board members have.

Texas Blaze News published this information in March 2015.

         C. VYKS PAC's Connection with VLK Architects

         When Schofield investigated Gerda's role as self-proclaimed "Co-Chair"[2] of VYKS PAC in advocating for voter approval for the bond package in the November election, he discovered the following:

• At the conclusion of the November 4, 2014 election, VYKS PAC was in debt in the amount of $3, 311.
• On November 17, 2014, Mucker, who also served as campaign treasurer for VYKS PAC, personally loaned the PAC $1, 673.79.
• On December 11, 2014, the Citizens Bond Oversight Committee (CBOC) met and discussed that VLK Architects had been selected "in a no-bid process, " for recommendation as the provider of architectural services for the 2014 bond program. Gerda was present at that meeting, serving as a member of the CBOC, the committee he referenced in the Texas Blaze News article.[3]
• On December 16, 2014, KISD approved VLK Architects' no-bid contract.
• On December 22, 2014, six days after being awarded the architectural contract and 46 days after the November election, VLK Architects contributed $1, 600 to VYKS PAC.
• On February 15, 2015, VYKS PAC, acting through Mucker as treasurer, repaid Mucker $1, 311.42 of the $1, 673.79 he had loaned VYKS PAC three months earlier.
• Without VLK Architects' contribution, VYKS PAC would have had insufficient funds to repay Mucker's loan to the PAC.

         Based upon this chain of events, Schofield suspected that "VLK's contribution to VYKS PAC was a quid pro quo for being selected to receive a no-bid contract."

         D. Other Issues Related to Gerda's Campaign Materials

         Schofield also noticed other anomalies.

         On VYKS PAC's January 16, 2015 Campaign Finance Report, the PAC revealed an expenditure made to Gerda on November 3, 2014, in the amount of $600.40. That entry, however, was manually crossed out with a large "x" over the entry, but no corresponding in-kind contribution was reported to indicate whether Gerda had contributed any materials or services to the PAC.[4]

         In February 2015, Schofield also noticed that the templates for Gerda's campaign website and for VYKS PAC were "nearly identical." Both shared the same color schemes, layouts, navigation menu styles, and fonts. In his affidavit, Schofield stated, "It appeared as though the website files were transferred from VYKS PAC['s] website to Mr. Gerda's campaign website. To me, this looked to be a campaign contribution from VYKS PAC to the Gerda campaign, which I believe violates Texas election laws." See generally Tex. Elec. Code Ann. § 254.031(1) (West Supp. 2016) (requiring candidates to report contributions received).

         Schofield also noticed that Gerda's campaign website contained a disclosure at the bottom that stated, "Political ad paid for by the Gerda for KISD PAC." Yet, according to Schofield, no such PAC existed in the public filings. Schofield concluded, "This appeared to be in violation of Texas election laws requiring all political committees to appoint a treasurer and report such appointment with the TEC." See generally id. §§ 252.001-.003, 255.001 (West 2010).

         When Schofield revisited Gerda's campaign website in March, the disclaimer had been changed to read, "Political ad paid for by David Gerda." But the website also included a new feature, a link to "Donate" for accepting campaign donations. When Schofield clicked on that link, he was directed to a PayPal page listing "furniture experts llc dba aamco" as the owner of the account. This appeared to Schofield "as though Mr. Gerda was using his business's bank accounts to receive donations to his political campaign, which also appeared violate [sic] Texas election laws." See id. § 253.040 (West Supp. 2016) (requiring candidates to keep campaign contributions in accounts "separate from any other account maintained by the person").

          E. Howard Becomes Involved

         Schofield took his suspicions to Howard, president of The Boiling Point TEA Party, [5] whom he had met in 2012 when he was running for election to the KISD Board.[6] Schofield showed to Howard VYKS PAC's financial disclosure listing the November 17, 2014 $1, 673.79 loan that Mucker made to the PAC, the disclosure reflecting the $1, 600 donation made by VLK Architects to VYKS PAC on December 22, 2014-seven weeks after the bond election and six days after the KISD Board approved a no-bid contract to VLK Architects to work on the Keller High School renovations-as well as the disclosure showing that on February 15, 2015, VYKS PAC, through Mucker as treasurer, repaid Mucker $1, 311.42 of his outstanding loan.

         According to Howard, after reviewing these documents, she believed that the issues were "important to the community" and "needed to be addressed."

         1. Howard Suggests Schofield Speak with the District Attorney

         Howard suggested that Schofield take up the matter with Sharen Wilson, the Tarrant County Criminal District Attorney and, according to Schofield, since Howard knew Wilson personally, she agreed to introduce them. Since Wilson was already scheduled to speak at the Boiling Point's March 24, 2015 meeting, Schofield attended. At some point during the meeting, he and Wilson discussed the matter, and Schofield presented Wilson with a "Criminal Offense Investigation Referral form that [he] had obtained from the Tarrant County District Attorney's office and filled out" that outlined his concerns. According to Schofield, Wilson directed him to bring the matter back to her attention after the KISD school board election had concluded.[7]

         2. Howard's Statement at the March 26 KISD Board Meeting

         During their conversations, Schofield also asked Howard to bring these issues to the attention of the KISD Board at its March 26 meeting. Howard agreed to do so.

         According to Schofield, he "prepared some remarks that summarized [his] findings" for her and emailed that summary to Howard with a message that she should "feel free to edit [his] remarks in whatever way she deemed necessary." Howard took Schofield up on his suggestion and edited the prepared remarks by "cut[ting] down the length of the remarks and remov[ing] some of the conclusory language."

         At the March 26 meeting, Howard addressed the KISD Board and said:

This statement concerns the questionable actions of two members on the KISD Citizens Bond Oversight Committee, who are also members of the interview committee for bond construction contractors. These two individuals have the capacity and ability to nudge a particular bond construction contract from one contractor to another. With this power to influence the bidding and review process[8] an individual should be upright, unbiased, objective in carrying out their bond oversight duties and should be free of conflicts of interest. In my opinion, that was not the case concerning the VLK Architect[s] contract approved by the Board in December.
Taking you back to November fourth, the KISD bond was passed by the voters. The following day the Vote Yes for Keller Schools PAC (which is Political Action Committee) found itself over thirty-three hundred dollars in debt. With the bond already passed by the voters, options were limited by the PAC to pay its outstanding debts. In early December, the PAC started getting inquiries from vendors and others wanting payment for their overdue bills. Up until December twenty-second the PAC only received seventy-five dollars in new donations since the bond election. The PAC still owed over thirty-two hundred dollars nearly seven weeks after the November bond election.
PAC campaign treasurer, Matthew Mucker, loaned the PAC approximately sixteen hundred dollars on November sixteenth, in efforts to keep it afloat.
On December the eleventh, the KISD Citizens Bond Oversight Committee met with PAC co-chair, David Gerda, with PAC campaign treasurer, Matthew Mucker in attendance. The VLK Architect[s] no-bid contract was on the agenda. Mr. Gerda and Mr. Mucker strongly supported granting VLK Architects a no-bid contract for work to be done on Keller High and Bear Creek Intermediate schools.
On December sixteenth, at the recommendation of the KISD Citizens Bond Oversight Committee, the KISD bond [sic] approved the VLK Architect[s] no-bid contract.
On December twenty-second, just four business days after the Board approved the contract, VLK Architect[s] provided Mr. Gerda and Mr. Mucker with a sixteen-hundred dollar contribution to the Vote Yes PAC. This contribution was made seven weeks after the election and just four days after VLK obtained their no-bid contract. The VLK check was equal to the amount of money Mr. Mucker loaned the PAC on November sixteenth.
For the record, no KISD employee is involved in any actions described within this commentary.
KISD prides itself on financial integrity and transparency but the VLK contract damages what the district has worked so hard to achieve. In order to rebuild the district's reputation of excellence in financial stewardship, I request that David Gerda and Matthew Mucker resign their positions on the KISD Citizens Bond Oversight Committee and also resign their positions on the Committee to interview construction firms and any other membership involving dispersing bond proceeds from the November fourth bond election.
I ask the Board to take up this matter as an action item in a future Board meeting. [Emphasis added.]

         3. The Boiling Point Newsletter

         On April 20, Howard published a Boiling Point newsletter that included a political endorsement of Schofield and other candidates. It also included a segment expressing concern about Gerda, his campaign treasurer, the VYKS PAC contributions and expenditures, and the VLK Architects no-bid contract with KISD. Included in the three-paragraph article was the statement, "VLK Architect[s] provided Mr. Gerda and Mr. Mucker with a $1, 600 dollar contribution to the Vote Yes PAC. This contribution was made seven weeks after the election and just FOUR days after VLK obtained their no-bid contract."

         F. Schofield's Comments at the March 26 KISD Board Meeting

         At the same meeting where Howard had made her statement, Schofield expressed his own concerns about the KISD Board awarding no-bid contracts to vendors. Schofield's comments were made in conjunction with his request that an agenda item-unrelated to VLK Architects-be "pulled" from the consent agenda for discussion. During that discussion, Schofield said,

I guess my main concern is the no-bid contract. My concern is that VLK was a no-bid contract. And two gentlemen on the CBOC committee got reimbursed about sixteen hundred bucks. And they got to have personally benefited by that money. And that money went right back into-about thirteen-a little over thirteen hundred went back into their checking accounts.
My concern is-this here, what are their involvements in-Mr. Gerda and Mr. Mucker's involvement in these two no-bid contracts? And are they going to get payments from these also? That is my main concern. I don't know what their involvement is in the process of this.

         Schofield then directly addressed the individual who was at the podium presenting the agenda item, "I don't know if you know that question, can answer that question or not."

         Further discussion ensued between the two regarding the VLK Architects selection process, specifically regarding which individuals were involved in the vendor selection process. As Schofield received answers, he posed clarifying questions, such as "No volunteers were involved in that decision?" After he was assured that none of the volunteers who served on the CBOC participated in the selection process, he reiterated, "Okay, they weren't involved in any of the process of selection?" At that point, Schofield was assured by the presenter- and by another unidentified woman who voluntarily joined the discussion-that Gerda and Mucker were not involved in the VLK Architects selection process.

         The woman, who said that she had participated in the selection process, offered further details, affirming to Schofield that neither of the "two gentlemen" Schofield had referenced were actually a part of the committee that made the selection. She explained that while they were "on the CBOC, " and while they were present "when the selection was taken to CBOC, " the two men "weren't even in the room" at the time the selection was actually made. By her account, Gerda and Mucker were at the meeting when the decision was announced to the CBOC, but they did not participate in choosing VLK Architects.

         At that point, Schofield said, "Doesn't matter. They still got thirteen hundred in their checking account - I have evidence of it. So they did personally benefit, and unethically." Immediately after that comment, a third person pointed out that because the VLK Architects issue was not on the agenda for the meeting, any discussion related to VLK Architects needed to cease, and it did.

         G. Schofield Files a Complaint with the Texas Ethics Commission

         In late April, Schofield filed a complaint against Gerda with the Texas Ethics Commission (TEC). In it, he raised three additional complaints about irregularities that he had uncovered related to Gerda and Gerda's political campaign.

         Schofield complained that one of Gerda's campaign finance reports did not purport to cover the entire reporting period, as required by law. Because on its face the report did not purport to cover the period between January 29, 2015, and February 27, 2015, Schofield concluded that Gerda had not reported his campaign finances for that gap in time, which "also appeared to violate Texas election laws." See Tex. Elec. Code Ann. § 254.041 (West Supp. 2016) (providing penalties for an incomplete campaign finance report). He also complained that Gerda released campaign e-mails that did not contain the required disclosure stating the name of the person who paid for creating or distributing the e-mail. See id. § 255.001 (West 2010) (requiring certain disclosures on political advertising). And, finally, he complained that Gerda's campaign signs that read, "Gerda for School Board Place 6, " were deceptive because the word "for" was "less than half the size of the other words, " creating the false impression that Gerda was the incumbent in that position. See id. § 255.006 (West 2010) (requiring political advertising by a nonincumbent to include "the word 'for' in a type size that is at least one-half the type size used for the name of the office to clarify that the candidate does not hold that office"). In his affidavit Schofield stated that he believed that these three additional complaints also violated Texas election laws.

         Two days prior to the election, the TEC sent Schofield a notice of noncompliance, informing him that his complaint did not comply with the "legal and technical form requirements" for a complaint filed with the agency. The notice provided Schofield with an item-by-item description of the deficiencies it found with each allegation. The record indicates that Schofield did not amend his complaint after receiving the notice and that on May 29, 2015, the TEC dismissed Schofield's complaint for noncompliance with "form requirements."

         H. Schofield's Political Ads in the Keller Citizen

         Also in late April, Schofield purchased a political advertisement in the Keller Citizen newspaper that was published on two dates-April 29 and May 6. Those advertisements included the following statement: "Brad's opponent and his campaign treasurer have been reported to state and county officials for contribution transfers from the [V]ote Yes [B]ond PAC to his personal campaign, incomplete campaign finance reporting, and running campaign credit card donations through a furniture company LLC."

         I. The Schofield-Gerda Race Gets Media Attention

         On the eve of the election, the Fort Worth Star-Telegram ran an article entitled, "Ethics replaces education as campaign topic." The subheading stated, "KISD Incumbent Brad Schofield and challenger David Gerda are accusing each other of unethical behavior." The article stated that the conflict started in late March when Schofield "wrote a speech for a resident to give during the public comment portion of a school board meeting, accusing challenger David Gerda of using his influence as a member of the KISD Citizens Bond Oversight Committee to help an architecture firm win a contract." The article went on to say that Schofield contended that it was unethical for the leaders of VYKS PAC to sit on the CBOC because of the contributions the PAC received from VLK Architects and other firms bidding on bond projects.

         The article also included Gerda's response that Schofield violated campaign ethics by using his position as a board member to circulate false allegations against him. The article mentioned that Howard's speech had been drafted by Schofield and had accused Gerda and Mucker-"both members of the bond oversight committee-of using their influence to get VLK the contract."

         The newspaper article alleged that VLK had contributed to VYKS PAC not once, but twice-a $5, 000 contribution on September 24 and a $1, 600 contribution on December 22. It also reported that VLK was awarded the contract by the school board on December 16 by a 5-2 vote.

         With regard to the VLK Architects selection process, the newspaper reported that school district officials stated that neither Gerda nor Mucker was on the subcommittee that recommended the company. The article repeated Gerda's claim that his first meeting with the CBOC was on December 11, two days after the subcommittee had already made its recommendation on VLK Architects. And the article quoted Gerda, "The accusation that I could influence a meeting that I didn't know existed for a company I didn't know was up for the work is impossible."

         J. Gerda Sues Schofield and Howard

         On May 1, 2015, Gerda sued Schofield and Howard for defamation-libel per se and slander-and civil conspiracy. He also sought attorney's fees, as well as a temporary injunction and a temporary restraining order prohibiting Schofield and Howard "from making any statements concerning or regarding Gerda and from publishing any statements or advertisements concerning or regarding Gerda" until an injunction hearing "may be had."

         Gerda waited until election day-May 9, 2015-to have Schofield and Howard served with the lawsuit.[9] Howard was served while acting in her capacity as election judge at the Shady Grove Elementary School polling site. Schofield was served while he was campaigning near the Bear Creek Intermediate School polling site.

         In his Original Petition and Application for Temporary Restraining Order, Gerda identifies four allegedly defamatory publications: (1) Howard's statements at the March 26 KISD meeting, (2) Schofield's remarks at the March 26 KISD meeting, (3) the statements contained in the April 20 Boiling Point newsletter, which Gerda attributed to both Howard and Schofield, and (4) the paid political advertisements[10] that appeared in the Keller Citizen newspaper, which he attributed not just to Schofield, but also to Howard.

         1. Gerda's Defamation Allegations Against Howard

         In the lawsuit, Gerda specifically complained that Howard: • Made "false statements of fact concerning [Gerda]."

• [F]alsely stated that "Gerda accepted money in his personal capacity from VLK Architects in exchange for helping get VLK the contract."
• Made false statements "indicating that Gerda accepted a bribe."
• "Falsely stated that Gerda influenced the selection of VLK by strongly supported [sic] granting VLK Architects a no-bid contract."
• Stated that "Gerda had the ability to influence, control, or impact the Board's decision."
• Stated that "Gerda attended the meeting to select VLK Architect[s]."
• Published a flier on behalf of Boiling Point "falsely stating that 'VLK Architect[s] provided Mr. Gerda and Mr. Mucker with a $1, 600 dollar [sic] contribution to the Vote Yes PAC'"
• Published "an advertisement in the newspaper falsely stating 'Brad's opponent [Gerda] and his campaign treasurer have been reported to state and county officials for contribution transfers from the [V]ote Yes [B]ond PAC to his personal campaign, incomplete campaign finance reporting, and running campaign credit card donations through a furniture company LLC'"

         2. Gerda's Defamation Allegations Against Schofield

         With regard to Schofield, Gerda complained that he:

• Made "false statements that Schofield had evidence that Gerda accepted money from VLK Architects."
• Made a false statement that "VLK Architects directed funds through a PAC and that the funds from VLK were deposited into Gerda's personal checking account."
• Stated that "[Schofield] provided evidence supporting his statements to the District Attorney."
• "Incorrectly replied"-to other speakers who took issue with certain facts that Schofield had alleged-that "he had evidence that Gerda and another individual received $1, 300.00 into ...

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