Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Warner Bros. Entertainment, Inc. v. Jones

Court of Appeals of Texas, Third District, Austin

December 21, 2017

Warner Bros. Entertainment, Inc.; Warner Bros. Technical Operations, Inc. d/b/a Warner Bros. Advanced Digital Services; TMZ Productions, Inc.; EHM Productions Inc. d/b/a TMZ; TMZ.com; and Elizabeth McKernan, Appellants
v.
Robert Jones, Appellee Date Time Event

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT NO. D-1-GN-15-002342, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Bourland.

          OPINION

          Cindy Olson Bourland, Justice.

         This suit arises at the crossroads where the First Amendment's protection of free speech and a free press meets the Texas Constitution's protection of the right to bring suit for reputational torts-an area with which the Texas Citizens Participation Act intersects to the extent it provides for early dismissal of some claims. Compare U.S. Const. amend. I ("Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .") with Tex. Const. art. I §§ 8 ("Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege . . . ."), 13 ("All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." (emphasis added)); see also generally Tex. Civ. Prac. & Rem. Code §§ 27.001-.011 (TCPA). In this case, a news story about a former Dallas Cowboy football player, Robert Jones, was posted on the celebrity-news website, TMZ.com. The article's headline reads, "EX-SUPER BOWL CHAMP SUSPECT IN POLICE INVESTIGATION, " with a subheading stating, "Allegedly Tried to Hire Hit Man." The article states that Jones allegedly tried to hire a hit man "to take out his agent." TMZ's source for the article was Theodore Watson, Jones's first cousin and a convicted felon. The record indicates that Watson had been harassing Jones and his family and trying to extort money from them. Watson called the TMZ tip line a couple of days after Jones's attorney had sent Watson a cease-and-desist letter. The TMZ article was posted at 2:45 a.m. Central time on June 18, 2014, without first obtaining Jones's reaction to it.[1] Jones's attorney contacted defendant Elizabeth McKernan ("Liz" or "McKernan"), the TMZ associate producer who investigated the story, at 8:00 a.m. Central time that morning. After the attorney sent McKernan a press release on Jones's behalf, an update appeared on TMZ.com later that morning that included some of the information from the press release.

         Jones later sued the appellants, Warner Bros. Entertainment, Inc.; Warner Bros. Technical Operations, Inc. d/b/a Warner Bros. Advanced Digital Services; TMZ Productions, Inc.; EHM Productions Inc. d/b/a TMZ; TMZ.com; and Elizabeth McKernan (collectively, "the TMZ Defendants"), for libel, civil conspiracy, intentional infliction of emotional distress, malicious prosecution, and abuse of process, seeking exemplary damages and a permanent injunction. The TMZ Defendants moved to dismiss Jones's claims pursuant to the TCPA, which provides a mechanism for early dismissal of claims in some cases involving First Amendment rights. See In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding) ("The TCPA's purpose is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits."). The trial court allowed limited discovery, including document production and the deposition of McKernan, before conducting a hearing. See Tex. Civ. Prac. & Rem. Code § 27.006(b) (providing that "court may allow specified and limited discovery relevant to the motion" as exception to TCPA's stay of discovery after motion to dismiss is filed). Both sides submitted various affidavits with their motion-to-dismiss briefing. After the hearing, the trial court issued an order stating, "After considering Defendants' motion to dismiss, the responses, the replies, the evidence, the pleadings, and argument of counsel, the Motion to Dismiss is DENIED."

         The TMZ Defendants appeal from the trial court's denial of their motion in three issues, contending that (1) the TCPA applies to Jones's suit, (2) Jones failed to establish a prima facie case by clear and specific evidence of each essential element of his claims, and (3) the trial court erred by overruling their objections to Jones's evidence and considering that evidence when ruling on the motion to dismiss. See id. § 51.014(a)(12) (authorizing interlocutory appeal from order denying TCPA motion to dismiss). We conclude that the TCPA applies to the suit but that Jones failed to establish a prima facie case for the essential elements of (1) his claims for libel and civil conspiracy against only TMZ.com and (2) his claims against all appellants for intentional infliction of emotional distress, malicious prosecution, and abuse of process; therefore, we will reverse in part and render judgment dismissing those claims. We further conclude that Jones established a prima facie case against all appellants other than TMZ.com on his libel claim and his conspiracy claim, which is derivative of the libel claim; we will affirm the trial court's decision not to dismiss those claims and will remand the case for further proceedings.

         THE TMZ ARTICLE

         The initial article appeared on the Sports webpage of TMZ.com at 2:45 a.m. Central time on June 18, 2014. The article's headline was "EX-SUPER BOWL CHAMP SUSPECT IN POLICE INVESTIGATION, " with a subheading stating, "Allegedly Tried to Hire Hit Man." The article states it is "BY TMZ STAFF" and "EXCLUSIVE." A picture of Jones in his Dallas Cowboys uniform appears between the headline and the body of the article. The original article stated:

A former Dallas Cowboys linebacker has been named the primary suspect in a police investigation in Cleveland after allegedly trying to hire a hit man to take out his agent ... this according to a police report obtained by TMZ Sports.
The man at the center of the case is Robert Jones -- a 1st round pick in the '92 NFL Draft who went on to become a Pro Bowler who won 3 Super Bowls with the Cowboys.
According to the document, a 47-year-old man named Theodore told police that Jones approached him and tried to hire Theo to take out Jones' agent.
Theo told cops he refused -- and Jones (who's also 47-years-old) -- responded by saying he is a "gangster" and he would make Theodore "disappear."
Theodore told cops he's afraid and fears for his personal safety because he believes Jones will make good on his threat.
So far, Jones has NOT been arrested or charged with a crime. We reached out to Jones several times for comment -- so far, no word back.

         Later that morning, after McKernan spoke with Jones's lawyer, an update appeared at 10:21 a.m. Central time (8:21 a.m. Pacific time) between Jones's picture and the body of the original article. The update stated:

8:21 AM PT -- Jones says the hit man allegations are complete B.S. --and insists he's got a great relationship with his agent.
The former NFL star just issued a statement saying the accuser -- a distant relative -- "has filed a false police report" ... and that he "absolutely denies" all allegations.
Jones says he plans on taking legal action of his own against Theodore -- and says the guy has "recently been attempting to extort money" from him and his family.
As far as the allegation that he tried to hire a hit man to take out his agent, Jones says the two have a "wonderful relationship" and the notion that he wants him dead is completely false.

         After the update, the full article appeared as follows on the Internet:

         (Image Omitted)

         Later that day, TMZ posted on its Twitter account: "WHOA. Ex-Super Bowl champ, Robert Jones allegedly tried to hire a HIT MAN to kill who?"[2]

         BACKGROUND

         The following table provides a chronology of events leading up to the publication of the TMZ article. The facts are derived from the evidence the parties submitted with the briefing on the motion to dismiss, which included various affidavits, McKernan's deposition testimony, email correspondence, and phone records.

Date
Time
Event [3]

Tuesday June 10, 2014

Jones's attorney, Nicholas Bressi, sends Watson a cease-and-desist letter advising him to cease communications with Jones and his family or risk the filing of civil and criminal complaints against him and a lawsuit seeking a restraining order.

Thursday June 12, 2014

(unclear from record)

Watson calls Bressi's office and leaves threatening voice mail.

June 12, 2014

9:34-9:45 a.m. CDT

Watson calls TMZ tip line.

June 12, 2014

9:40 a.m. CDT

McKernan emails her contact information to Watson.

June 12, 2014

11:36-11:40 a.m. CDT

Watson calls McKernan. McKernan did not recall the details of any specific conversations with Watson, but she testified at her deposition that it was reasonable to assume that she had spoken with him on the morning of June 12.

June 12, 2014

12:07-12:09 p.m. CDT

McKernan calls Watson.

June 12, 2104

3:34 p.m. CDT

Bressi emails Watson and asks him to cease communicating with his office.

June 12, 2014

4:05 p.m. CDT

Watson forwards email from Bressi to McKernan.

June 12, 2014

4:19 p.m. CDT

Watson sends a follow-up email to McKernan stating, “Miss McKernan the are trying to shut me up or even Kill me .”

Friday

June 13, 2014

11:13 a.m. CDT

Watson goes to the Cleveland Police Department and files an “Offense/Incident Report” (“Incident Report”), alleging that on May 13, 2014, Jones asked Watson to kill Jones's agent and threatened Watson when he refused.

June 13, 2014

11:20-11:23 a.m. CDT

Watson calls McKernan.

Monday June 16, 2014

12:49-12:50 p.m. CDT

Watson calls McKernan.

June 16, 2014

1:39 p.m. CDT

Watson emails McKernan: “I have the report miss McKernan I will fax it to today what is your fax so that I got the right fax number thank you.”

June 16, 2014

2:10-2:11 p.m. CDT

McKernan calls Watson.

June 16, 2014

3:10 p.m. CDT

Watson emails McKernan: “I want to go all the way with this espn, nationl enqure, people mag, cnn, talk shows what ever, this way he will not try to kill me the worid will know! The lawyer is herasing me know. I trust you liz this is real. And let jerry jones know he had a killer on his team.” McKernan responds, “Did u send fax yet?” Watson responds, “Im in rout to fax.”

June 16, 2014

3:31 p.m. CDT

Watson faxes the Incident Report to McKernan with a cover sheet stating, “This is it. No turning back. Thank you Liz”

Tuesday June 17, 2014

9:19 a.m. CDT

Watson emails McKernan and asks, “Hi miss McKernan did you get it and are you working on the story?”

June 17, 2014

9:19 a.m. CDT

McKernan responds, “Yes sir! Making calls right now. You doing ok?”

June 17, 2014

9:57-9:59 a.m. CDT

McKernan calls the Cleveland Police Records Department.

June 17, 2014

10:29 a.m. CDT

McKernan emails Watson: “I got it! Have to make a few calls this morning. But we should be good to go.” Watson responds, “My aunt is worried but in the end its all going to work out.”

June 17, 2014

4:21 p.m. CDT

Watson emails McKernan: “So what do you think about this story? How fare do you think this will go? And do you think this will reach the masses. I have no reason to lie my rep is on the line .”

June 17, 2014

4:22 p.m. CDT

McKernan responds, “We have your back. Posting the story first thing tomorrow morning. It will hit the east coast at 5 a.m. Writing everything up right now. What did police tell you.”

June 17, 2014

4:34 p.m. CDT

Watson responds, “The cops said I did the right thing.” McKernan replies, “That's good. What did they say about investigating it?”

June 17, 2014

4:49 p.m. CDT

Watson responds, “They said should have went to the fBI. This need hit tv I'm ready.”

June 17, 2014

4:50 p.m. CDT

McKernan tells Watson, “It goes up live tomorrow morning. The morning time is our busiest time for the website, and then it will also go on the show...”

June 17, 2014

5:03 p.m. CDT

Watson says, “The Austin, Texas cops told me to file here first, then they would go from there. I hope Jerry Jones fineds out”

June 17, 2014

6:14 p.m. CDT

McKernan emails Watson: “Just making sure your cousin played for cowboys right?” The email includes a link to a Wikipedia page covering Jones's football career.

June 17, 2014

7:45 p.m. CDT

McKernan messages Jones on Twitter: “This is Liz from @TMZ_sports Can you please follow/DM [direct message] me? We need to talk!”

June 17, 2014

7:50 p.m. CDT

Jones responds, “What's up Liz, ” and asks her to DM him.

June 17, 2014

8:07 p.m. CDT

McKernan direct messages Jones: “We have a police report that was filed against you claiming you hired a hitman to kill your agent [message break] the alleged victim claims that he is in fear for his life because of this [message break] we wanted to reach out to you about it - - because it's hard to believe obviously.” She also gives him her phone number.

June 17, 2014

8:17 p.m. CDT

Jones responds, “Call this number and talk to this guy.” The phone number he gives her is his attorney Bressi's cell-phone number.

June 17, 2014

At her deposition, McKernan testified that she believes she left Bressi a voice mail on the evening of June 17. The phone records show a two-minute call to Bressi's cell-phone number.

June 17, 2014

Jones informs Bressi that McKernan had contacted him about a potential article. Jones told Bressi he had asked McKernan to contact Bressi and asked Bressi to contact McKernan if he had not heard from her. Bressi testifies he did not hear from anyone at TMZ that night.

Wednesday June 18, 2014

2:45 a.m. CDT

TMZ publishes the initial article.

June 18, 2014

7:45 a.m. CDT (1-minute call)

McKernan calls the Cleveland Police Department Public Information Office.

June 18, 2014

8:03 a.m. CDT

Bressi calls McKernan to discuss the TMZ article and Watson's relationship with Jones.

June 18, 2014

8:14 a.m. CDT

McKernan sends Bressi the Incident Report.

June 18, 2014

10:12 a.m. CDT

Bressi sends McKernan a press release from Jones.

June 18, 2014

10:21 a.m. CDT

TMZ posts an update to the initial article.

June 18, 2014

12:30 p.m. CDT

TMZ sends out the Twitter post.

         LEGAL FRAMEWORK

         All defamation suits encompass the competing constitutional rights to free speech and press and the constitutional right to seek redress for reputational torts. Neely v. Wilson, 418 S.W.3d 52, 56 (Tex. 2013). "To balance these competing interests, the United States Supreme Court through federal constitutional law, th[e] [Texas Supreme] Court through the common law, and the Legislature through statutes, have undertaken to tailor the tort of defamation so as to preserve the right to recover for reputational damages while minimally impinging on the rights to free speech and a free press." Id. at 60. A plaintiff must overcome many hurdles to recover on a defamation claim because "[w]hatever is added to the field of libel is taken from the field of free debate." New York Times Co. v. Sullivan, 376 U.S. 254, 272 (1964) (recognizing that erroneous statements are inevitable and "must be protected if the freedoms of expression are to have the 'breathing space'" needed to survive).

         "Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury." Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). "[I]n today's world, we must be especially mindful of this longstanding yet delicate balance, as modern technology allows information to be easily and widely disseminated without necessarily being subjected to the sort of rigorous verification processes that conventional media sources are expected to employ." D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 433 (Tex. 2017). Maintaining the proper balance of protecting a free press and protecting the rights of individuals harmed by false or misleading reporting "remains an essential task, and courts continue to struggle 'to define the proper accommodation between these competing concerns.'" Id. (quoting Gertz, 418 U.S. at 342). The Texas Legislature designed the TCPA in part to balance these competing interests. See id.

         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 § 27.002. The Act is to "be construed liberally to effectuate its purpose and intent fully, " but it "does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions." Id. § 27.011. "To effectuate 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." ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (citing Tex. Civ. Prac. & Rem. Code § 27.003; In re Lipsky, 460 S.W.3d at 586).

         First, the Act imposes the initial burden on the litigant who moves to dismiss a legal action to show by a preponderance of the evidence that the nonmovant's claim "is based on, relates to, or is in response to the [movant's] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association."[4] Tex. Civ. Prac. & Rem. Code § 27.005(b); Coleman, 512 S.W.3d at 898. Most relevant to this case, the Act defines "exercise of the right of free speech" as "a communication made in connection with a matter of public concern." Tex. Civ. Prac. & Rem. Code § 27.001(3). A "'[c]ommunication' includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." Id. § 27.001(1). A "'[m]atter of public concern' includes an issue related to: (A) health or safety; (B) environmental, economic, or community well-being; (C) the government; (D) a public official or public figure; or (E) a good, product, or service in the marketplace." Id. § 27.001(7)(A)-(E).

         The second step of the process shifts the burden to the nonmovant to avoid dismissal by "establish[ing] by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). When determining whether to dismiss the legal action, the court must consider "the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a). The court may allow specified and limited discovery relevant to the motion on a showing of good cause, as it did in this case, but otherwise all discovery in the legal action is suspended until the court has ruled on the motion to dismiss. Id. §§ 27.003, .006(b). Finally, even if the nonmovant meets its burden under the second step, the court must dismiss the action if the movant "establishes by a preponderance of the evidence each essential element of a valid defense" to the nonmovant's claim. Id. § 27.005(d).

         We review de novo questions of statutory construction. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). We consider de novo the legal question of whether the movant has established by a preponderance of the evidence that the challenged legal action is covered under the Act. Serafine v. Blunt, 466 S.W.3d 352, 357 (Tex. App.-Austin 2015, no pet.); see also Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 725 (Tex. App.-Houston [14th Dist.] 2013, pet. denied), disapproved on other grounds by In re Lipsky, 460 S.W.3d at 587-91. We also review de novo a trial court's determination of whether a nonmovant has presented clear and specific evidence establishing a prima facie case for each essential element of the challenged claims. Serafine, 466 S.W.3d at 357.

         ANALYSIS

         The TMZ Defendants challenge the trial court's denial of their TCPA motion to dismiss in three issues. They first assert that the Act applies to Jones's lawsuit because they established by a preponderance of the evidence that his suit is based on, relates to, or is in response to their exercise of the right of free speech and their exercise of the right to petition. In their second issue, they contend that Jones failed to carry his burden of establishing a prima facie case by clear and specific evidence of every essential element of his claims for libel, civil conspiracy, intentional infliction of emotional distress, malicious prosecution, and abuse of process. The TMZ Defendants argue in their third issue that the trial court erred by overruling their objections to affidavits submitted by Jones, and as a result, improperly considered inadmissible evidence when ruling on the motion to dismiss.

         Does the TCPA apply to Jones's suit?

         We first consider whether the TMZ Defendants satisfied their burden of proving by a preponderance of the evidence that Jones's lawsuit is based on, relates to, or is in response to their exercise of the right of free speech and their exercise of the right to petition. The parties do not dispute that the claims asserted by Jones in his petition are based on the article posted by the TMZ Defendants. Thus, we must decide whether the article satisfies the Act's definition of the "exercise of the right of free speech" as "a communication made in connection with a matter of public concern." Tex. Civ. Prac. & Rem. Code § 27.001(3). As noted above, a "'[m]atter of public concern' includes an issue related to: (A) health or safety; (B) environmental, economic, or community well-being; (C) the government; (D) a public official or public figure; or (E) a good, product, or service in the marketplace." Id. ยง 27.001(7)(A)-(E). The TMZ Defendants assert that the article involved a matter of public concern because the initial story described "a police report recounting an alleged plot by a decorated former professional football player to hire a hitman to murder his sports agent, and an alleged threat to harm Watson if the plot was not executed." They assert that this was a matter ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.