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The Iola Barker v. Hurst

Court of Appeals of Texas, First District

June 21, 2018


          On Appeal from the 12th District Court Grimes County, Texas Trial Court Case No. 34, 116

          Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.


          Sherry Radack Chief Justice

         In this interlocutory appeal, [1] appellants, The Iola Barker ("the Barker") and James Trice, challenge the trial court's denial[2] of their motion to dismiss, pursuant to the Texas Citizens' Participation Act ("TCPA"), [3] the claims of appellees, Monica Hurst and Scott Martindale. In two issues, the Barker and Trice argue that the trial court erred in denying their motion to dismiss the claims against them because their motion survived Hurst's nonsuit and neither appellant presented clear and specific evidence of a prima facie case.

         We reverse and remand.


         In April 2017, the Barker, an anonymous blog, published several articles about the Iola Independent School District (the "District") and its pursuit of a "District of Innovation" ("DOI") designation. A DOI designation allows a district to declare exemptions from certain provisions of the Texas Education Code.[4] To achieve the DOI designation, the District created the Local Innovation Planning Committee ("LIPC") to collect public feedback and develop a plan. The Barker, reported on potential effects that it believed such designation might have on teachers, administrators, students, and parents, and encouraged members of the public to get involved by attending public hearings on the issue.

         Before a District hearing on April 6, 2017, the Barker reported that Hurst, the District's "Director of Technology, " had publicly posted on her Facebook page a "meme, " or photograph with superimposed comments, depicting a scene from a movie, Men in Black.[5] The Barker re-published the meme, adding commentary, as follows:

For your judgment, here is a post that was on a member of administrations' Facebook page and was open to the public.

         (Image Omitted)

Sure, it seems innocent until you realize what the device in the picture accomplishes. As previously discussed, this device is a Neuralizer and it wipes the memories (opinions) of those that it is used on and the user then replaces the wiped memories (opinions) with what they want the victim to believe. To us this is implying that we can form our own opinions but they are going to ignore them and do exactly what they want to do and assume that everyone shares the administration's opinions . . . .

         In her First Amended Petition, Hurst complained that the Barker, in re-publishing her Facebook posting, had included her Facebook profile picture, which depicted her husband and two minor children. She alleged that the publication of a photograph of her family was "done to embarrass, provoke, intimidate, or harm" her and that the "publisher or writer of [the Barker] published the article and the photo depicting [her] children, with malice, as the photo had absolutely no journalistic value to the opinion or article in the publication." She asserted that the publication "has or will cast and place innocent children into disputes, situations, and ridicule for which the children have no control or responsibility." She sought an injunction, "ordering and preventing [the Barker] from utilizing the photographs of children or anyone else, without the written permission and consent of the natural mother or father of any child." Through discovery, Hurst identified Trice as the author of the blog.

         Subsequently, Martindale, a District principal, joined the lawsuit, alleging that, "beginning at or around the month of April, 2017, " the Barker published, "without [his] permission, several stories that mentioned [him] by name." He alleged that "the publication of [his] name" was intended to "hurt and harm [him]"; was done with malice; and "has or will cast and place [him] and his family into disputes, situations, and ridicule for which [he] has no control or responsibility."

         Hurst and Martindale both sought damages of "less than $100, 000, " "in an amount that the jury . . . determine[d] fair and reasonable."

         The Barker and Trice filed special exceptions, asserting that neither Hurst nor Martindale had alleged, or stated the elements of, any specific cause of action. After the trial court denied their special exceptions, the Barker and Trice filed a motion to dismiss the suit, pursuant to the TCPA (the "TCPA motion to dismiss"). They asserted that the TCPA mandated dismissal because Hurst and Martindale had brought their claims to uncover Trice's identity and to quell his exercise of the right of free speech. The statements at issue involved discussion of the District's attempt to obtain a DOI designation, and the blog posts discussed Hurst and Martindale solely within the context of their actions as public officials, both as administrators at the District and as members of the LIPC. Further, the Barker and Trice asserted, Hurst and Martindale could not establish "by clear and specific evidence a prima facie case for each essential element" of their claims.[6] The Barker and Trice sought dismissal with prejudice and asserted that they were statutorily entitled to an award of attorney's fees and sanctions.[7] In support of their request for attorney's fees, they submitted the affidavit of their attorney and billing statements.

         Days later, Hurst filed a motion for nonsuit without prejudice, stating that she no longer wished to prosecute her claim, which the trial court granted.

         Martindale filed a response to the motion to dismiss, in which he identified his claim as that of libel per se. He attached, as his evidence to defeat the TCPA motion to dismiss, his affidavit, the affidavit of a teacher, Jenna Conner, and 100 pages of blog entries from the Barker. In his affidavit, Martindale testified that, on April 25, 2017, in a blog titled, "Donnez-leur un pouce et ils prendront un mile, " the Barker commented:

It appears to us that they haven't had any issues getting rid of our teachers. Oh, by the way, this week is the week for the School Board to vote on teacher[s'] contracts. Now that Martindale's wife is an Iola ISD employee, it will be much easier for them to choose which ones they need to get rid of to open positions for their friends, i.e. the kindergarten teacher that use [sic] to be the Martindale[s'] nanny.

Martindale complained that the statement alleged that he had "engaged in improper terminating and hiring practices by forcing out an existing teacher so that he could hire an individual [who] had previously worked for him and his family as a nanny." He identified the teacher referenced as Jenna Conner, whom, he asserted, had not worked for him, or his family, as a nanny or in any other similar capacity. He complained that Trice had not spoken with him to verify the veracity of the comment before publishing it, that the "accusation" was "blatantly untrue, " and that it had "injured [his] reputation, " "exposed [him] to contempt in the community, " and "called into question [his] honesty, integrity, virtue, and reputation." Conner, in her affidavit, testified that she "believe[d]" that she was the teacher referenced in the comment, that she had never worked as a nanny for Martindale or his family, and that Trice had not spoken with her.

         Martindale asserted, as evidence of the elements of his defamation claim[8] to defeat the TCPA motion to dismiss, that Trice had published in the Barker the statement at issue, i.e., that Conner was previously his nanny and he engaged in improper hiring practices; that the affidavits establish the falsity of the statement; and that the statement was defamatory because it tended to injure his reputation, personally and professionally. Regarding actual malice, Martindale requested a continuance in order to depose Trice about his state of mind. Martindale asserted that "there [was] no requirement that proof of damages be offered" because the statement at issue was "defamatory per se."

         At the hearing on the motion to dismiss, as pertinent here, the Barker and Trice asserted that the complained-of statement did not constitute defamation per se and that Martindale had not shown "clear and specific" evidence of damages, as required.

         After the hearing, the trial court found that the TCPA applies because Martindale's claim was based on the Barker's and Trice's exercise of the right of free speech; the communication at issue was made in connection with a matter of public concern; and Martindale is a "public official or public figure." The trial court further found that Martindale had established, by clear and specific evidence, that the Barker and Trice had "made a false statement of fact to a third person"; that "the statement was defamatory concerning [Martindale]"; and that "the statement caused damage to [Martindale]." The trial court ordered that good cause existed to allow Martindale, as requested in his response to the motion to dismiss, to take Trice's deposition on the "limited issue of actual malice."

         Thereafter, the Barker and Trice's motion to dismiss was denied by operation of law.[9]


         In a portion of their first issue, the Barker and Trice assert that their TCPA motion to dismiss survived Hurst's nonsuit. In the remaining portion of their first issue and in their second issue, the Barker and Trice argue that the trial court erred in denying their TCPA motion to dismiss the claims against them because Hurst and Martindale did not ...

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