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Bejarano v. Dorgan

Court of Appeals of Texas, Third District, Austin

September 18, 2019

Conrad Bejarano, Appellant
v.
John Dorgan, Appellee

          FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-18-006382, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Kelly and Smith

          MEMORANDUM OPINION

          Edward Smith, Justice.

         This is an appeal from an order denying a motion to dismiss filed under the Texas Citizens Participation Act (TCPA), Tex. Civ. Prac. & Rem. Code § 27.003. We will affirm the district court's order.

         BACKGROUND

         As relevant to this appeal, Conrad Bejarano and John Dorgan jointly own a well-established entertainment venue commonly known as Spider House, which is located near the University of Texas at Austin. In 2017, former Spider House employee Jeremy Rogers[1]published a Facebook post accusing Dorgan of engaging in years of unprofessional conduct while managing the venue. The employee alleged that Dorgan was often inebriated or under the influence of illegal substances, was physically and verbally abusive to staff and customers, and was generally incapable of managing the venue effectively. The post asked for the community's help in "dealing with the constant depravity of John Dorgan and his continuous hail storm of abuse."

         Shortly thereafter, someone posted a response to the allegations on Spider House's Facebook page. The response, signed by Bejarano on behalf of the venue's ownership and management, assured readers that Spider House "would take appropriate steps to make sure our Spider House Family feels comfortable and secure." This post further indicated that Dorgan was "banned from the premises" and would "now and forever [be] a silent partner" in the enterprise. It continued:

Spider House as a whole has strived for 26 years to guarantee our establishment is a haven for all. We do not discriminate, or allow hateful situations to occur in our vicinity. We will continue to do so, working to gain and keep the trust and support from our community. The current management staff has an open door, open dialogue policy; that goes for both our staff and our guests. . . .
At this time we would like our supporters, staff, and anyone currently or previously associated with Spider House to feel free to come to us at any time with comments or concerns they may have. Our hope is to have an open dialogue, allowing our community to heal. We hope you will continue coming to Spider House for shows, events, and more.[2]

         Bejarano maintains that he did not post or approve this statement, but Dorgan alleges that Bejarano authored the statement himself or "could have effected its retraction or correction."

         Dorgan sued Bejarano and others, alleging libel, slander, and business disparagement. Bejarano moved to dismiss under the TCPA, arguing that Dorgan's claims arise from his right to the exercise of free speech. See id. The district court denied the motion to dismiss and Bejarano timely perfected this appeal. See id. § 27.008(b) (authorizing accelerated interlocutory appeal).

         DISCUSSION

         Bejarano contends the district court erred by denying the motion to dismiss, raising arguments that: (1) the TCPA applies to Dorgan's claims against him; (2) Dorgan cannot make out a prima facie case for the elements of his claims; and (3) those claims do not fall into any statutory exception. Dorgan responds that even if the statute applies to his claims, he can make out a prima facie case for each element of the claims and that the claims fall into the TCPA's exception for commercial speech. See id. § 27.003, .010.

         The TCPA allows a party to move for dismissal of any "legal action that is based on, related to, or in response to [that] party's exercise of the right of free speech, right to petition, or right of association." See id. Its purpose is to "encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government," while still "protect[ing] the rights of a person to file meritorious lawsuits for demonstrable injury." See id. § 27.002. "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) (per curiam) (citing Tex. Civ. Prac. & Rem. Code § 27.003). "Under the first step, a movant seeking to prevail on a motion to dismiss under the TCPA has the burden to 'show[ ] by a preponderance of the evidence that the [non-movant's] legal action 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.'" Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 872 (Tex.App.-Austin 2018, pet. filed) (quoting Tex. Civ. Prac. & Rem. Code § 27.005(b)). In the second step, once the court "determines that the movant has met his burden to show that the TCPA applies, the burden shifts to the non[-]movant to establish 'by clear and specific evidence a prima facie case for each essential element of the claim in question.'" Id. at ...


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