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Apple Tree Café Touring, Inc. v. Levatino

Court of Appeals of Texas, Fifth District, Dallas

August 3, 2017

APPLE TREE CAFÉ TOURING, INC. AND ERICA WRIGHT, Appellants
v.
PAUL LEVATINO, Appellee

         On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-12742

          Before Justices Francis, Brown and Schenck

          MEMORANDUM OPINION

          DAVID J. SCHENCK JUSTICE

         This is 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. Tex.R.App.P. 47.4.

         Factual and Procedural Background

         Erica 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.

         Badu 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.[1] She also posted a statement that Levatino had "shut down my main fan info face book [sic] page."

         On 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 by deception.

         Levatino 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.

         Levatino 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.

         Appellants 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."[2] 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 appeal followed.

         Summary of the Issues

         Appellants raise seven issues.

         In 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

         she was exercising her rights of association and of free speech.

         In their second issue, appellants assert the foregoing statements are not reasonably understood by the average reader as statements calculated to defame Levatino.

         In 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.

          In 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.

         In 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 ...


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