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.

Morrison v. Profanchik

Court of Appeals of Texas, Third District, Austin

May 22, 2019

Kenneth W. Morrison; and StoneCoat of Texas, LLC, Appellants
v.
John D. Profanchik Jr., Appellee

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT NO. D-1-GN-17-001379, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Kelly

          OPINION

          JEFF ROSE, CHIEF JUSTICE

         This is an interlocutory appeal from the district court's order denying a motion to dismiss under the Texas Citizens Participation Act (TCPA). Tex. Civ. Prac. & Rem. Code § 27.001-.011 (provisions of TCPA); id. § 51.014(a)(12) (authorizing interlocutory appeal from order denying TCPA motion to dismiss). John D. Profanchik Jr. sued Kenneth W. Morrison and StoneCoat of Texas, LLC (collectively, "StoneCoat") for defamation in connection with an allegedly fake online review by StoneCoat of its competitor, ProCal Stone Design, LLC. Based on our determination that Profanchik Jr.'s suit against StoneCoat falls under the TCPA's "commercial speech" exemption, see id. § 27.010(b), we will affirm the district court's order.

         Background

         ProCal and Appellant StoneCoat are Dallas-area competitors in the business of spray-on limestone. Appellant Morrison is a principal of StoneCoat. Appellee Profanchik Jr. is the son of John D. Profanchik Sr., who is a principal of ProCal.

         In December 2016, "Don Henley" of Plano, Texas posted the following review on the website ripoffreport.com:

         Pro Cal Stone John Profanchik They Are Rip Off Artists Beware of This Man and Anyone Associated With Him Including His Son Addison Texas

Beware of John Profanchik with Pro Cal Stone. He claims to be the inventor of this spray on stone product. After Hiring him to redo the front of my house with spay on stone John Profanchik quickly began to show his true colors. He kept asking for more money and the work they performed was aweful. After some online Investigating I discovered that Stone Coat of Addison Tx was the inventor of this product. I fired John Profanchik with Pro Cal Stone and Thank God for Stone Coat. They did exactly what they said and at a better price plus the work was amazing. Beware of John Profanchik with Pro Cal Stone he lies and will try to take your money.

(Errors in original.) The ripoffreport.com review and other allegedly fake reviews of ProCal prompted Profanchik Sr. and ProCal to sue StoneCoat for defamation, business disparagement, deceptive trade practices, and fraud in Dallas and Collin counties. See Morrison v. ProCal Stone Design, LLC, No. 05-17-00696-CV, 2018 WL 4090637, at *1 (Tex. App.-Dallas Aug. 28, 2018, pet. denied) (mem. op.); Morrison v. Profanchik, No. 05-17-00680-CV, 2018 WL 4090635, at *1 (Tex. App.-Dallas Aug. 28, 2018, pet. denied) (mem. op.).[1]

         The ripoffreport.com review also spawned the underlying defamation case against StoneCoat, which Profanchik Jr. filed in Travis County district court. Profanchik Jr.'s petition alleged that StoneCoat published the ripoffreport.com review; the review is false; the review constitutes libel per se because it tended to injure Profanchik Jr.'s reputation and impeached his honesty, integrity, and reputation; StoneCoat knew the review was false or acted with reckless disregard concerning the review's truth; and Profanchik Jr. was injured by the fake review. See Tex. Civ. Prac. & Rem. Code § 73.001 (setting forth elements of claim for libel).

         StoneCoat generally denied Profanchik Jr.'s claim and asserted several affirmative defenses. StoneCoat also filed a motion to dismiss Profanchik Jr.'s suit under the TCPA, arguing that Profanchik Jr. filed his defamation claim based on or in response to StoneCoat's exercise of the right of free speech in the ripoffreport.com review. See id. § 27.003(a) (authorizing a motion to dismiss an action that "is based on, relates to, or is in response to a party's exercise of the right of free speech"). In response, Profanchik Jr. argued that StoneCoat did not establish that his defamation claim against StoneCoat was based on its exercise of the right of free speech and that, even if it had, the "commercial speech" exemption applies to Profanchik Jr.'s claim. See id. §§ 27.005(b) (allowing trial court to dismiss action if movant "shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to" the movant's exercise of certain rights), .010(b) ("commercial speech" exemption); Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018) (explaining applicability of commercial-speech exemption). Alternatively, Profanchik Jr. argued that he had established a prima facie case of the elements necessary to recover for defamation. See id. § 27.005(c). After an evidentiary hearing, the district court denied the motion to dismiss without explanation. StoneCoat filed this interlocutory appeal. See id. § 51.014(a)(12) (authoring appeal from interlocutory order that denies TCPA motion to dismiss).

         TCPA

         The TCPA establishes a multi-step process for the expedited dismissal of legal actions that are "based on, relate[] to, or [are] in response to a party's exercise of the right of free speech, right to petition, or right of association." Id. § 27.003(a). First, the party who brings such a motion to dismiss must show "by a preponderance of the evidence that the legal action is based on, relates to, or is in response to" the movant's exercise of the above-enumerated protected rights. Id. § 27.005(b). If the movant meets that burden, then under the second step, the burden shifts to the nonmovant to establish "by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). If the nonmovant fails to satisfy its burden under section 27.005(c) to present a prima facie case, the trial court must dismiss the action within the TCPA's expedited time frame. See id. § 27.005(c)-(d); see also id. §§ 27.003(b), .004, .005(a), .007(b), .008 (establishing deadlines). If the nonmovant establishes the required prima-facie case, the movant may still obtain dismissal by establishing "by a preponderance of the evidence each essential ...


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.