Court of Appeals of Texas, Fifth District, Dallas
APPLE TREE CAFÉ TOURING, INC. AND ERICA WRIGHT, Appellants
PAUL LEVATINO, Appellee
Appeal from the 44th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-14-12742
Justices Francis, Brown and Schenck
J. SCHENCK JUSTICE
an interlocutory appeal of the trial court's denial of
appellants Apple Tree Café Touring, Inc. and Erica
Wright's motion to dismiss appellee Paul Levatino's
defamation claim under the Texas Citizens Participation Act
(TCPA), an Anti-SLAPP statute. See Tex. Civ. Prac.
& Rem. Code Ann. §§ 27.001-27.011 (West 2015).
We reverse, in part, that portion of the trial court's
order awarding Levatino attorney's fees and costs and
remand the issue of attorney's fees and costs to the
trial court for a determination as to whether the motion to
dismiss was frivolous or solely intended to delay. We
otherwise affirm the trial court's order. Because all
issues are settled in law, we issue this memorandum opinion.
and Procedural Background
Wright is a recording artist, producer, and actress
professionally known as Erykah Badu. Apple Tree Café
Touring, Inc. is one of Badu's companies. Levatino worked
for Badu through her various companies, including Apple Tree,
for about eight years. He was the general manager of
Badu's business entities and played a significant role
within her organization. His job duties involved marketing,
concert and event management, merchandising, and other
business operations. He received compensation for his
services through Apple Tree.
fired Levatino on or about May 27, 2014. On May 29, 2014, she
used social media to declare that she never had a manager and
that Levatino never was her manager. She also posted a statement that Levatino
had "shut down my main fan info face book [sic]
October 20, 2014, Levatino's lawyer sent Badu's
lawyer a letter accusing Badu of defamation and demanding a
public retraction and correction and unspecified
compensation. On October 31, 2014, appellants filed their
original petition against Levatino seeking a declaratory
judgment that "Levatino was not a talent manager for
[appellants] and is therefore owed no compensation related to
management services." Thereafter, they amended their
petition to add claims of fraud, conversion, and civil theft
answered and later filed a counterclaim asserting Badu's
Facebook and Twitter posts were defamatory and have caused
Levatino to suffer actual damages in the form of lost
compensation and earning capacity, and non-pecuniary damages.
Levatino asserts Apple Tree is liable for the statements and
omissions made by Badu.
timely moved to dismiss appellants' claims under the
TCPA, arguing that his demand letters that sparked
appellants' suit were protected activity under the
statute. The trial court denied his motion and this Court
affirmed the trial court's order on interlocutory appeal.
See Levatino v. Apple Tree Café Touring,
Inc., 486 S.W.3d 724');">486 S.W.3d 724 (Tex. App.-Dallas 2016, pet.
denied). Levatino sought review in the Texas Supreme Court.
The supreme court denied Levatino's petition for review.
then filed a motion to dismiss Levatino's defamation
claims under the TCPA. Appellants sought to dismiss
Levatino's defamation claim as to Badu's Facebook and
Twitter posts that she had never had a manager in her
professional career, and her Twitter post "Paul Levatino
Was Never My Manager. Although . . . he WAS an ambitious
employee. Be well Pauly the knife." Appellants did not seek to dismiss
Levatino's defamation claim as to Badu's Twitter post
"My x employee, Paul Levatino just shut down my main fan
info face book [sic] page. Will be up and running again soon.
Thanks." The trial court denied the motion and awarded
Levatino attorney's fees and costs. This interlocutory
of the Issues
raise seven issues.
their first issue, appellants assert the trial court should
have concluded that when Badu posted on Twitter and on her
Facebook fan page that:
I've Never Had A Manager In The 17 Years Of My
Professional Career, and
Paul Levatino Was Never My Manager. Although . . . He WAS an
ambitious employee. Be Well Pauly The Knife
exercising her rights of association and of free speech.
their second issue, appellants assert the foregoing
statements are not reasonably understood by the average
reader as statements calculated to defame Levatino.
their third and fourth issues, appellants assert the trial
court should have dismissed Levatino's defamation claim
as to her "manager" statements because they are
subjective and not objectively verifiable as true or false,
and are substantially true.
their fifth issue, appellants argue the trial court should
have dismissed Levatino's defamation claim because
Badu's statements were not defamatory per se,
and Levatino failed to meet his burden under section
27.005(c) of the civil practice and remedies code of citing
clear and specific evidence of special damages.
their sixth issue, appellants assert the trial court should
have dismissed Levatino's defamation claim against Apple
Tree because Badu's statements were made in ...