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Mediaone, LLC v. Henderson

Court of Appeals of Texas, Twelfth District, Tyler

December 4, 2019

MEDIAONE, LLC D/B/A THE MONITOR AND AIM MEDIA TEXAS OPERATING, LLC D/B/A THE MONITOR, Appellant
v.
RODNEY ALLAN HENDERSON, Appellee

          APPEAL FROM THE 3RD JUDICIAL DISTRICT COURT HENDERSON COUNTY, TEXAS

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          OPINION

          JAMES T. WORTHEN, CHIEF JUSTICE

         MediaOne, L.L.C. d/b/a The Monitor (The Monitor) appeals the denial of its motion to dismiss a lawsuit that Rodney Allan Henderson (Henderson) filed against it. In three issues it contends the Texas Citizens Participation Act (TCPA) applies, the Defamation Mitigation Act (DMA) requires dismissal, and Henderson failed to meet his burden to establish a prima facie case on each element of his claims. We affirm in part, reverse and render in part, and reverse and remand in part.

         Background

         In its February 4, 2018 edition (originally distributed and available online Friday, February 2), The Monitor published a news story with the headline "Deputies arrest major meth dealers." The article detailed the separate arrests of Michael Brandon Moore and Rodney Wayne Henderson, each of whom was charged with manufacturing and delivering a controlled substance. Included in the article were mugshots labeled "Michael Brandon Moore" and "Rodney Henderson." However, the photograph of Rodney Henderson was actually a photograph of Rodney Allan Henderson, the former police chief of Star Harbor who had been arrested in 2016 and charged with assault. Those charges were later dismissed, but Henderson's mugshot was still on file with The Monitor.

         On February 2, Henderson's criminal defense attorney called The Monitor and alerted the newspaper that the wrong Henderson's photograph had been included in the article. Later that day, The Monitor published a retraction and correction on its website and Facebook page. It published the photograph of Rodney Wayne Henderson that had been provided by the Henderson County Sheriff's Office. The correction stated that "the wrong mug shot was published due to both men having the same first and last name." It further stated, "The Monitor regrets the error and extends its sincere apology to former Star Harbor Police Chief Rodney Henderson and any other affected by this error. A correction will appear in the Thursday, Feb. 8 issue of The Monitor." The article in the February 8th issue was on the front page of the newspaper and was consistent with the February 2nd correction and retraction.

         Henderson filed suit against The Monitor for defamation. In his petition, he alleges that the original article is defamatory because publishing his photograph along with the article regarding drug dealers falsely accused him of a crime. He further contends that the correction articles are defamatory because they left readers with the wrong impression that Henderson has a pending criminal charge or has been convicted of a crime. The Monitor filed a motion to dismiss under the TCPA, alleging the Texas anti-SLAPP[1] statute applies to its articles and that Henderson's suit is in response to the exercise of its right of free speech. Following a hearing, the trial court failed to rule on the motion, and it was overruled by operation of law.[2] This appeal followed.[3]

         Issues Presented

         In its first issue, The Monitor asserts the TCPA applies to Henderson's suit. In its second issue, it contends Henderson's failure to comply with the DMA requires dismissal. And in its third issue, The Monitor urges Henderson failed to establish a prima facie case of defamation.

         Texas Citizens Participation Act[4]

         The purpose of the TCPA is to "encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." Tex. Civ. Prac. & Rem. Code Ann. § 27.002 (West 2015). Although we construe the TCPA liberally "to effectuate its purpose and intent fully," it "does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case or common law or rule provisions." Id. § 27.011 (West 2015).

         The TCPA provides a mechanism for early dismissal of a cause of action that "is based on, relates to, or is in response to a party's exercise of the right of free speech, the right to petition, or right of association ...." Id. § 27.003 (West 2015). The party moving for dismissal has the initial burden to establish by a preponderance of the evidence "that the legal action is based on, relates to, or is in response to the party's exercise of" the right of free speech, the right to petition, or the right of association. Id. § 27.005(b) (West 2015). If the movant makes this showing, 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). When determining whether to dismiss the legal action, the court must consider "the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a) (West 2015).

         The Texas Supreme Court has explained the meaning of the requirement that the nonmovant establish by "clear and specific evidence a prima facie case." In re Lipsky, 460 S.W.3d 579, 590-91 (Tex. 2015) (orig. proceeding). "Clear" means "unambiguous, sure or free from doubt," and "specific" means "explicit or relating to a particular named thing." Id. at 590. A "prima facie case" is "the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Id. (citing In re E.I. Du Pont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)). It refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted. Id. (citing Simonds v. Stanolind Oil & Gas Co., 136 S.W.2d 207, 209 (Tex. 1940)). The "clear and specific evidence" requirement does not impose an elevated evidentiary standard, nor does it categorically reject circumstantial evidence. Id. at 591. But it requires more than mere notice pleading. Id. at 590-91. Instead, a plaintiff must provide enough detail to show the factual basis for its claim. Id. at 590.

         We review questions of statutory construction de novo. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). We consider de novo the legal question of whether the movant has established by a preponderance of the evidence that the challenged legal action is covered by the TCPA. Serafine v. Blunt, 466 S.W.3d 352, 357 (Tex. App.-Austin 2015, no pet.). We also review de novo a trial court's determination of whether a nonmovant has presented clear and specific evidence establishing a prima facie case of each essential element of the challenged claims. Id. We consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based. Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a); Campbell v. Clark, 471 S.W.3d 615, 623 (Tex. App.-Dallas 2015, no pet.). We view the pleadings and evidence in the light most favorable to the nonmovant. Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214- 15 (Tex. App.-Houston [14th Dist.] 2014, no pet.).

         Applicability of the TCPA

         In issue one, The Monitor contends that Henderson's lawsuit is based on, relates to, and is in response to its exercise of the right to free speech. Specifically, it urges that the publications at issue are communications made in connection with a matter of public concern. In response, Henderson argues that defamatory statements are not considered protected free speech and should be exempt from TCPA protections.

         The TCPA defines "exercise of the right of free speech" as a communication made in connection with a matter of public concern. Tex. Civ. Prac. & Rem. Code Ann. § 27.001(4) (West 2015). A "matter of public concern" includes an issue related to health or safety; environmental, economic, or community well-being; the government; a public official or public figure; or a good, product, or service in the marketplace. Id. § 27.001(7). A "communication" is defined to include "the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." Id. § 27.001(1); see Tex. Gov't Code Ann. § 311.005(13) (West 2013) ("Includes" and "including" generally "are terms of enlargement and not of limitation or exclusive enumeration[]"). The TCPA does not discriminate between public and private communications as long as they are made in connection with a matter of public concern. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curium).

         Applying the plain language of the TCPA, The Monitor's publications fall under the statutory definition of "communication." See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1). Furthermore, the publications were in connection with a matter of public concern because they were reporting alleged criminal activity in the community. While the TCPA does not define community well-being, Texas courts have held that statements regarding misconduct or crime are statements regarding community well-being. See Watson v. Hardman, 497 S.W.3d 601, 607 (Tex. App.-Dallas 2016, no pet.). In response to Henderson's argument, we note that the Texas Supreme Court has explicitly held that the TCPA applies to defamation claims. See Adams v. Starside Custom Builders, L.L.C., 547 S.W.3d 890, 897 (Tex. 2018).

         Henderson asserted causes of action for defamation alleging that each of The Monitor's articles regarding Rodney Wayne Henderson were defamatory against him. For the reasons discussed above, each of these actions are based on, relate to, or are in response to The Monitor's exercise of its right of free speech. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). Because the TCPA applies, we sustain The Monitor's first issue.

         Prima ...


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