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Goldstein v. Villas On Travis Condominium Owners' Association, Inc.

Court of Appeals of Texas, Third District, Austin

August 29, 2019

Carole Goldstein, Appellant
v.
Villas on Travis Condominium Owners' Association, Inc. Board; Pamela Hite; Karla Given; Michelle Bock; Rick Sirles; and Brenda Schroeder, Appellees

          FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-18-003495, THE HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Triana and Smith

          MEMORANDUM OPINION

          GISELA D. TRIANA, JUSTICE

         Appellant Carole Goldstein sued Appellees the Villas on Travis Condominium Owners' Association, Inc. Board and its members, Pamela Hite, Karla Given, Michelle Bock, Rick Sirles, and Brenda Schroeder for libel. See Tex. Civ. Prac. & Rem. Code § 73.001 (Elements of Libel). Appellees moved to dismiss pursuant to the Texas Citizens Participation Act (TCPA). See generally id. §§ 27.001-.011. Following a hearing, the trial court granted the motion to dismiss and awarded Appellees attorney's fees. Goldstein appeals, asserting that the district court erred because (1) she met her burden to establish by clear and specific evidence a prima facie case for each essential element of the claim in question and (2) Appellees failed to establish by a preponderance of the evidence each essential element of a valid defense to her claim. See id. §§ 27.005(c), (d). We will affirm the district court's order.

         BACKGROUND

         The Villas on Travis (the Villas) is a condominium complex in Travis County, Texas. Goldstein moved into the Villas in January 2016 and shortly thereafter spearheaded an effort to oust the Villas' property manager, Octus, Inc. d/b/a Pioneer Management. Goldstein began regularly attending condominium owners' association meetings, and she collected over $30, 000 from owners to retain "local counsel" to terminate and then sue Octus for claims relating to its management of the Villas (the Octus suit). Later in 2016, in response to Goldstein's efforts to terminate Octus, the entire Villas' condominium owners' board resigned and was replaced. Goldstein was appointed (apparently by the counsel she hired) to serve as the board's president. The appointment of the new board members also became the subject of a lawsuit, Compton v. Gold, [1] Bock, and Navar (the Compton suit). Goldstein alleges that she dedicated six days a week to her voluntary, unpaid role as a board member, during which time she was "involved in the lawsuit against [Octus], as well as other legal matters," including assisting counsel for the Villas "with strategy and drafting of discovery" in at least one of the Villas lawsuits. Specifically, in the Compton suit, Goldstein helped craft interrogatories and requests for production of documents. She also asserts that in November 2018, counsel for the Villas[2] asked her to represent the Villas in Travis County district court for an emergency motion, and, despite not having filed a pro hac vice motion, she did. Goldstein is licensed to practice law in Pennsylvania, but not in Texas.

         Goldstein resigned from the board in March 2017 "due to exhaustion from this grueling effort" but continued to attempt to stay involved in the board's litigation. A few months after her departure from the board, she requested, among other things, that the board send monthly updates to the entire community regarding the board's ongoing lawsuits and concluded her message with the statement that, absent a full response, she would "reach out to the community at large." The record contains several messages from Goldstein either to the board or board members in which Goldstein emphasizes her thorough knowledge of the board's issues based on her involvement from February 2016 forward. She stated that for "14 months [she] had researched and compiled evidence to support" the Octus lawsuit. In several messages, she advised the board of how to proceed in litigation and implied that, as nonlawyers, they lack the expertise needed to manage the lawsuits despite having counsel. Some of these messages are signed or contain letterhead for "Carole Goldstein, Esq." She sent a lengthy email attachment in September 2017 in which she explained what interrogatories are "under Texas Civil Procedure," and also explained requests for production, admissions, and depositions. She further advised the board as to how to manage the deposition of a key witness in one of the board's lawsuits, including how to staff it with an insurance carrier's attorney and the board's separate counsel. She based her recommendations on her experience of "practicing law for decades" and provided her "professional recommendation" as to how to proceed with discovery in the Compton suit. According to Goldstein, the board "refused to permit [her] any knowledge regarding the litigation from April 1, 2017 through February 11, 2018," and "[a]ll of [her] efforts to assist and / or determine the status of the litigation were rebuked as were third party efforts to have the Board meet with me." She did, however, meet with board members individually following her resignation regarding the ongoing litigation, and she asserted, "As an attorney and the one person who had direct and detailed knowledge of this entire matter from the beginning, I knew I could be of assistance." Although she alleges she was not given information regarding the progression of the board's litigation, she nonetheless was dissatisfied with the board's failure to depose a person named Paul Meisler, a property manager working for Octus, and failure to propound certain interrogatories in the Octus suit. To rectify those concerns, Goldstein informed two board members on separate occasions that she would provide litigation support for $200 per hour and suggested it would save the Villas legal fees to have her assist counsel as she had in the Compton suit. In a February 12, 2018 message to the board's president, Goldstein demanded information on the status of the Octus lawsuit, expressed frustration at the board's failure to allow her to attend a deposition along with the board's attorney, and indicated that absent a full and timely response, she intended to notify the "community at large of her observation of the Board's reluctance to proceed with discovery in a meaningful way."

         Because she did not receive a "full and timely reply as requested," Goldstein sent an email on February 14 to all Villas owners, except for the owners who had indicated they did not want to receive mass mailing and the board members. In the letter, Goldstein states her opinions "as a lawyer," discusses the board's ongoing Octus suit, accuses the board of inaction, accuses the board of paying excessive legal fees because the board paid its attorney rather than following Goldstein's suggestion they "stand firm on proof of excessive billing," and accuses the board of being "cloaked behind a false narrative" that providing information to Goldstein might breach confidentiality and adversely affect the board's ongoing litigation. The email closes by calling on the members of the community to request that the board follow Goldstein's advice to depose Paul Meisler and propound discovery in the Octus suit and "please request that I assist in drafting interrogatories and attending the deposition." The letter was forwarded to the board, and the board responded the following day with a letter to Villas owners. The board's response explains that the board had been "advised to maintain confidentiality with respect to all aspects of the case that are not public knowledge," that the board "does not feel it appropriate to ignore competent counsel whose area of expertise is in HOA law," that Goldstein offered to assist with litigation for a fee, and that Goldstein "is not a member of the Texas Bar, and as such cannot practice law in this state." The letter explains that Goldstein's past time with legal counsel "is part of what has led to the current $170, 000 (and climbing, albeit much more slowly since April) legal fees assessed to the Villas." It further says that Goldstein had not recently approached the board directly and had not submitted "a proposal, including exactly what she proposes to do, a specific timeline, and what, if anything she requires from the Board," and notes the board's "grave concerns that the relationship moving forward would not be harmonious."

         Alleging that the board's response is libel, Goldstein sued Appellees. Appellees moved to dismiss under the TCPA, asserting that even if Goldstein established by clear and specific evidence a prima facie case for each essential element of her libel claim, Appellees had shown entitlement to a valid defense of qualified privilege. The district court granted the motion, and Goldstein appealed.

         DISCUSSION

         "The [TCPA] protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them." In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). The protection comes in the form of a motion to dismiss a suit that would stifle the defendant's exercise of those rights. Id. "Reviewing a TCPA motion to dismiss requires a three-step analysis." Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). First, the party moving for dismissal must show by a preponderance of the evidence that the TCPA applies to the legal action against it. Tex. Civ. Prac. & Rem. Code § 27.005(b). If the movant meets that burden, the nonmovant must establish by clear and specific evidence a prima facie case for each essential element of its claim. Id. § 27.005(c). "The words 'clear' and 'specific' in the context of this statute have been interpreted respectively to mean, for the former, 'unambiguous,' 'sure,' or 'free from doubt' and, for the latter, 'explicit' or 'relating to a particular named thing.'" Hawxhurst v. Austin's Boat Tours, 550 S.W.3d 220, 230 (Tex. App.- Austin 2018, no pet.) (quoting In re Lipsky, 460 S.W.3d at 590). Collectively, these elements require that the "plaintiff must provide enough detail to show the factual basis for its claim." Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per curiam). If the nonmovant satisfies that requirement, the burden shifts back to the movant to prove each essential element of any valid defenses by a preponderance of the evidence. Tex. Civ. Prac. & Rem. Code § 27.005(d).

         The parties do not dispute that the TCPA applies to the libel action against Appellees. Therefore, only the second and third steps of the TCPA analysis are at issue here- whether Goldstein established by clear and specific evidence a prima facie case for each essential element of her libel claim and, if so, whether Appellees proved each essential element of their qualified privilege defense by a preponderance of the evidence. We review de novo whether the parties met or failed to meet their respective burdens of proof under section 27.005. See Smith Robertson, L.L.P. v. Hamlin, No. 03-18-00754-CV, 2019 Tex.App. LEXIS 5787 at *5 (Tex. App.-Austin July 11, 2019, no pet. h.) (mem. op.); Batra v. Covenant Health Sys., 562 S.W.3d 696, 708 (Tex. App.-Amarillo 2018, pet. denied).

         In the second step of the analysis, Goldstein must establish by clear and specific evidence a prima facie case for each essential element of her libel claim. Tex. Civ. Prac. & Rem. Code § 27.005(c). "A libel is a defamation expressed in written or other graphic form . . . ." Id. § 73.001. Defamation occurs when "(1) the defendant published a false statement; (2) that defamed the plaintiff; (3) with the requisite degree of fault regarding the truth of the statement (negligence if the plaintiff is a private individual); and (4) damages (unless the statement constitutes defamation per se)." D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, ...


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