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Harwood v. Gilroy

Court of Appeals of Texas, Fourth District, San Antonio

June 28, 2017

John HARWOOD, Appellant
v.
Brian GILROY, Appellee

         From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2016CI11327 Honorable Antonia Arteaga, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          Sandee Bryan Marion, Chief Justice

         In the underling lawsuit, Brian Gilroy sued John Harwood and Daniel Burch, alleging libel per se and defamation. Harwood filed a motion to dismiss Gilroy's claims pursuant to the Texas Citizens Participation Act ("TCPA"). The trial court denied the motion to dismiss, and this accelerated appeal by Harwood ensued. Because we conclude Gilroy did not satisfy his burden to establish a prima facie case with regard to his claims, we reverse the trial court's order and render judgment dismissing Gilroy's libel per se and defamation claims against Harwood. We remand for further proceedings consistent with this opinion.[1]

         BACKGROUND

         Gilroy is a member of Wildlife Partners LLC, which purchases and sells exotic game animals. Gilroy establishes relationships with ranch managers and exotic game breeders, and he is the primary purchaser and seller of all game for Wildlife Partners. Harwood owns and operates an online auction site for the sale and purchase of exotic wild game named Wildlife Buyer LLC, and a dude ranch named Circle H Ranch. Burch operates and controls High Fence Wildlife Association ("High Fence"), which is an open forum Facebook page dedicated to the exotic game industry. The High Fence mission statement is as follows:

[t]o preserve and protect High Fence Ranchers property and hunting rights, to preserve and enhance wildlife habitats behind high fences, to promote quality animal health and well-being of wildlife and to enable High Fence Ranchers the ability to assemble and create an environment for success. This will include family morals and values, market security and educational/information support in the industry.

         On or about June 29, 2016, Burch posted, on the High Fence open forum, the alleged details of a business dispute between Wildlife Partners and a ranch that sells exotic game animals. The dispute involved whether a Kudu bull, which Gilroy bought, measured at sixty inches, sixty-one inches, or over sixty-one inches, and who took the measurements. Burch's post ended with the following statement: "Brian Gilroy and Wildlife Partners will go on the … DO NOT RECOMMEND Page of the High Fence[] Wildlife Association!!"

         That same day, Gilroy posted a response to Burch's allegations on the High Fence open forum. On July 1, 2016, Harwood published, in the open forum, the following three posts:

Brian Gilroy and his newest scam Wildlife Partners is a joke. He repeatedly agreed to buy animals from us which he would later back out on and then when he did buy an animal through Wildlife Buyer, LLC [sic] and then he killed it later by not feeding it well before he delivered it 2 weeks later to blame us for the whole incident. They misrepresent animals all the time and Gilroy didn't realize that the person he had sold the animal to is a good friend of my family and that I was aware of the problems before he even called me as a last ditch effort to try and recover a loss for which he was responsible for [sic]. These guys don't know what they are doing and have to call others to ask questions as how to [sic] catch or move an animal. They can't even move a giraffe 40 miles without killing it. My prediction is they will be out of business in less than 2 years.
One more thing. Circle H Ranch, Wildlife Buyer, LLC, and any of my other businesses will never do business with Gilroy as he can't be trusted. My family has been in the oil and gas business and agriculture for a very long time and Gilroy wouldn't last 15 minutes with us as we can see his scam coming from a mile away. My recommendation is to stay away from these guys or you will be involved in some lawsuits as investors start to sue Wildlife Partners and Gilroy over misrepresentations as animals sales are called up by court order.
Love that you put that up!! Thank you! Shows what an ass you are!! First of all it was 14 animals you purchased in total, and don't forget about the 23 that you backed out on after verbally agreeing to buy them before we sold you the 14 which I think shows an incredible control on our part (or stupidity). 1 axis broke its leg on delivery and you didn't have to pay for her I did!! The Lechwe wasn't misrepresented and was way bigger that your 17" that you claimed. Don't forget we still hold pictures of the animals you purchased. . . . So that's 2 out 14 that you say died, and 23 that you backed out on after confirming you wanted them for more than two weeks. You also sold Transcaspian Urials through Wildlife Buyer that you purchased at the YO auction but then claimed they died in a text to Mr. Sadler. . . . Here's a picture of that 17" Lechwe that was misrepresented as a Big Lechwe Bull. Also how about those 45" Nubians you were selling that turned out to be 32"-38". Remember that??? The only thing I regret is that I didn't call you out on your BS earlier, but I knew that if I let you have enough rope you would eventually hang yourself. Mike Drop- -WOW!!

         Gilroy later sued Burch and Harwood for defamation and libel per se. Harwood then filed a motion to dismiss Gilroy's claims pursuant to the TCPA. Gilroy responded, alleging Harwood's statements did not involve a matter of public concern, and the TCPA does not protect Harwood's speech because his comments fall under the "commercial speech" exemption to the TCPA. The trial court denied Harwood's motion to dismiss, and Harwood now appeals.

         THE TCPA

         The TCPA's purpose is to "encourage and 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 Ann. § 27.002 (West 2015). The TCPA "shall be construed liberally to effectuate its purpose and intent fully." Id. § 27.011(b). To effect the statute's purpose, the Legislature has provided a two-step procedure to expedite the dismissal of claims brought to intimidate or to silence a defendant's exercise of these First Amendment rights. See id. § 27.003; In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding).

         First, the defendant, who has moved to dismiss, must show by a preponderance of the evidence that the plaintiff's claim "is based on, relates to, or is in response to the [defendant's] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association." Tex. Civ. Prac. & Rem. Code § 27.005(b); In re Lipsky, 460 S.W.3d at 586. This first step of the inquiry is a legal question that we review de novo. Newspaper ...


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