On
Appeal from the 422nd Judicial District Court Kaufman County,
Texas Trial Court Cause No. 90510-422
Before
Justices Whitehill, Molberg, and Reichek
OPINION
AMANDA
L REICHEK JUSTICE.
In this
suit for libel and defamation, Skeet Phillips appeals the
trial court's denial of his motion for traditional and
no-evidence partial summary judgment. Because we conclude
Phillips has failed to demonstrate his entitlement to bring
an interlocutory appeal under section 51.014(a)(6) of the
Texas Civil Practice and Remedies Code, we dismiss this
appeal for lack of jurisdiction.
Procedural
Background
Ray
Clark brought this suit against Phillips and others asserting
claims for defamation/libel per se, defamation/libel per
quod, and conspiracy. According to Clark's live pleading,
in March 2014, he was the incumbent candidate for the office
of County Commissioner of Precinct 2 in Kaufman County,
Texas. Phillips was one of Clark's challengers in the
Republican primary election. Clark asserted that Phillips
hired his co-defendants Michael Hendrix, Ben Campbell, and
John Knox, along with their organizations, The Precise
Agency, The Precise Agency Group, My Right to Know, and Your
Right to Know, to advertise for his campaign.
On
March 1, 2014, three days before the election, many residents
of Precinct 2 received a mailer purportedly sent by My Right
to Know. Clark asserted the mailer contained numerous false
statements of fact that unambiguously associated him with
corruption in connection with the prosecution of an alleged
child molester, Stoney Adams. The next day, an article
appeared on myrighttoknow.org containing substantially
similar statements about Clark's association with Stoney.
Clark alleged that "My Right to Know" was an
assumed name of Hendrix, Campbell, and Your Right to Know,
and that Phillips provided them with all or part of the
information contained in the article.
Phillips
filed a motion for partial summary judgment on Clark's
claims for defamation/libel per quod and conspiracy asserting
both traditional and no-evidence grounds. In the motion,
Phillips argued Clark could not establish damages caused by
the allegedly false statements in the mailer and on the
website or a meeting of the minds to defame him. The trial
court denied the motion, and Phillips filed this
interlocutory appeal.
In his
notice of appeal, Phillips relies on section 51.014(a)(6) of
the Texas Civil Practice and Remedies Code as the basis for
this Court's jurisdiction. Section 51.014(a)(6) permits
an interlocutory appeal from an order that
denies a motion for summary judgment that is based in whole
or in part upon a claim against or a defense by a member of
the electronic or print media, acting in such capacity, or a
person whose communication appears in or is published by the
electronic or print media, arising under the free speech or
free press clause of the First Amendment to the United States
Constitution, or Article I, Section 8, of the Texas
Constitution, or Chapter 73.
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(6).
Phillips further states in the notice, "For purposes of
appellate jurisdiction, Defendant attaches and incorporates
by reference the Affidavit of Ben Campbell dated May 27, 2014
(Exhibit A), and two in Forney.com news articles dated March
3, 2014 and March 25, 2014 (Exhibit B)."[1]
In
Campbell's affidavit he states that Your Right to Know is
a Texas nonprofit corporation of which he is one of three
directors. The corporation's statement of purpose is
"for charitable, religious, education, and scientific
purposes under 501(c)(3) of the Internal Revenue Code."
Campbell also states Your Right to Know created the website
myrighttoknow.org and, prior to March 2014, the website
addressed "the need for transparency in healthcare
matters."
According
to Campbell, Lacie Adams, Stoney's ex-wife, wanted to
have her "strong opinion" on the matter of
Stoney's prosecution posted in an article on the
myrighttoknow.org website. Your Right to Know "hired an
individual who had investigative reporting experience"
to write the article, but the content of the article
"did not contain anything that was a substantive change
from what Lacie had provided to be posted on the
website." The mailer sent out to some of the residents
of Precinct 2 prior to the election referenced the
myrighttoknow.org website.
Exhibit
B to Phillips's notice of appeal is two articles printed
from inForney.com. The first is entitled "Will Precinct
2 voters reject negative political mailers?" The second
is entitled "Commissioner Clark files defamation suit
against Skeet Phillips, wife, and others." On May 16,
2018, Phillips filed in this Court an affidavit by Mathew
Richards, a journalist working with inForney.com. Richards
states "inForney is an online news publication that
publishes stories/news on a variety of topics which include,
but are not limited to, Local News, Business, Crime,
Education, Sports, Politics, and Entertainment."
Richards further states that the articles published on the
inForney website contained quotes from the mailer and/or the
article published on myrighttoknow.org.
In his
brief on appeal, Phillips does not address this Court's
jurisdiction over his appeal other than to cite section
51.014 of the Texas Civil Practice and Remedies Code and
refer to Richards's affidavit. Clark asserts in his
responsive brief that we have no jurisdiction because
Phillips is not a media defendant and has not asserted any
defenses based on free speech, freedom of the press, or
Chapter 73. Although Phillips filed a reply brief, he did not
address Clark's jurisdictional arguments.
Jurisdiction
Under Section 51.014(a)(6)
Appellate
courts have jurisdiction to consider immediate appeals from
interlocutory orders only if a statute explicitly provides
such jurisdiction. Tex. A&M Univ. Sys. v.
Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). In this case,
Phillips relies solely on section 51.014(a)(6) of the civil
practice and remedies code. For an interlocutory appeal under
section 51.014(a)(6), there must be: (1) an order (2) that
denies a motion for summary judgment (3) that is based in
whole or in part upon a claim against or defense by (4) a
member of the media or a person quoted in the media (5)
arising under constitutional free speech guarantees or Texas
libel statutes. Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(6); see also Dallas Symphony Ass'n, Inc. v.
Reyes, No. 17-0835, 2019 WL 1090771, at *4 (Tex. Mar. 8,
2019). The order from which Phillips appeals denies his
motion for summary judgment challenging Clark's claims
against him arising under the Texas libel
statutes.[2] However, unless the record
affirmatively shows Phillips was either a member of the
media, or his statements appeared in the media, we must
dismiss the appeal. See Brashear v. Victoria Gardens of
McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.-Dallas
2009, no pet.).
Assuming
the communications at issue are attributable to Phillips,
which he denies, not everyone who comments on the news or
political or social issues is a "member of the
media." Serv. Emps. Int'l Union Local 5 v.
Prof'l Janitorial Serv. of Houston, Inc., 415 S.W.3d
387, 395 (Tex. App.-Houston [1st Dist.] 2013, pet. denied).
The distinction between media defendants and those who merely
opine on the issues of the day is particularly important
today when every person with an internet connection has the
ability to publish his or her comments to a broad audience.
If the entirety of the internet and those who communicate on
it were considered the "media," the limiting
language of section 51.014(a)(6) would be rendered
meaningless. Id.
Several
courts have addressed the application of section
51.014(a)(6)'s media defendant requirement in this age of
easy mass communication. Each of these cases has recognized
that the term "media" must be interpreted in such a
way as to limit the applicability of the section to the class
of persons it was intended to benefit. In Service
Employees International Union Local 5 v. Professional Service
of Houston, Inc., the Houston First Court of Appeals
held that a person is a "member of the media" when
"the person's primary business is reporting the news
and they are . . . acting in such capacity."
Id. at 398. In Kaufman v. Islamic Society of
Arlington, the Fort Worth Court of Appeals set out a
number of factors to be considered, including the
"circumstances relating to the character and text of the
communication itself, its editorial process, its volume of
dissemination, the communicator's extrinsic notoriety
unconnected to the communication, [and] the
communicator's compensation for or professional
relationship to making the communication." 291 S.W.3d
130, 142 (Tex. App.-Fort Worth 2009, pet. denied). Finally,
in Hotze v. Miller, the Tyler Court of Appeals
concluded the appellant was a "media defendant"
based, in part, on the record showing he had been a political
writer and journalist for thirty years, his editorials were
published in a weekly newspaper, and he hosted a radio
broadcast and website that published his articles. 361 S.W.3d
707, 711-12 (Tex. App.-Tyler 2012, pet. denied). A common
thread through all of these holdings is that the
appellant's communications must be made in the context of
professional news reporting or professional investigation and
commentary on matters of public concern. See also Main v.
Royall, 348 S.W.3d 381, 387 (Tex. App.-Dallas 2011, no
pet.) (writer and publisher of traditional book criticizing
government's use of eminent domain power were
"members of the electronic or print media" for
purposes of section 51.014(a)(6)).
The
record before us shows that Phillips was a candidate for
public office who allegedly provided information that was
published in mailers and on a website. Nothing in the record
shows Phillips has ever engaged in professional news
reporting or any other form of journalism or professional
investigation and commentary about matters of public concern.
Accordingly, Phillips does not qualify as a "member of
the media."
We
recognize that section 51.014(a)(6) contains a second,
independent basis to bring an interlocutory appeal if the
appellant's communications appeared in the media.
Hotze. at 712. There is no suggestion in the
statute, however, that the "media" in which the
appellant's communications must appear is any different
than the "media" of which the appellant must be a
member. Accordingly, not every publication falls within the
scope of section 51.014(a)(6). For example, although the
internet has been recognized as a type of
"nontraditional electronic media," not every
website will qualify as "media" for purposes of
section 51.014(a)(6). See Serv. Emps., 415 S.W.3d at
402. To conclude otherwise would lead to the absurd result
that a person who was not a member of the media could become
a "media defendant" simply by having his statements
appear somewhere on the internet regardless of the context in
which they appeared. The media in which the appellant's
communications appear, therefore, must also be in the
business of news reporting or professional investigation and
commentary on matters of public concern.
In this
case, Phillips's alleged communications appeared in
mailers and a website article published by myrighttoknow.org.
According to the affidavit testimony submitted by Phillips,
myrighttoknow.org was a website created by Your Right to
Know, a Texas nonprofit corporation established "for
charitable, religious, education, and scientific
purposes." Although Phillips's co-defendant Campbell
testified that Your Right to Know hired an individual with
"investigative reporting experience" to write the
article about which Clark complains, Campbell also stated the
content of the article came entirely from a non-media source
provided to the writer. There is no indication that
investigative reporting played any role in the creation of
the article.
Clark
has alleged that Hendrix, another co-defendant, is the
registered owner of myrighttoknow.org and that Hendrix
"does business as My Right to Know, Your Right to Know,
The Precise Agency, LLC, and The Precise Agency Group
LLC." Hendrix testified by affidavit that Phillips
retained the Precise Agency as a consultant for his campaign
and to provide campaign advertising and maintenance and
monitoring of social media. On this record, there is nothing
to suggest that myrighttoknow.org, or any of the persons
associated with it, is in the business of news reporting or
professional investigation and commentary. Because of this,
we conclude their publications do not qualify as
"media" for the purposes of section 51.014(a)(6).
Finally,
Phillips appears to rely on the news articles appearing on
inForney.com to bring him within the scope of section
51.014(a)(6). The articles on inForney.com were written by a
professional journalist and discuss the mailers sent prior to
the election and the subsequent lawsuit brought by Clark. But
Clark has not pleaded any claims based on the publication of
those articles, nor does he allege that they are defamatory.
Phillips cannot, therefore, rely on those articles to
establish his standing as a media defendant. Id. at
403.
Based
on the foregoing, we conclude the record fails to
affirmatively show that Phillips falls within the class of
persons to which section 51.014(a)(6) applies. Accordingly,
we dismiss this appeal for want of jurisdiction.
Whitehill, J, concur
JUDGMENT
On
Appeal from the 422nd Judicial District Court, Kaufman
County, Texas Trial Court Cause No. 90510-422. Opinion
delivered by Justice Reichek. Justices Whitehill and Molberg
participating.
In
accordance with this Court's opinion of this date, the
appeal is DISMISSED for want of
jurisdiction.
It is
ORDERED that appellee RAY CLARK recover his
costs of this appeal from appellant SKEET PHILLIPS.
CONCURRING
...