Court of Appeals of Texas, Twelfth District, Tyler
MEDIAONE, LLC D/B/A THE MONITOR AND AIM MEDIA TEXAS OPERATING, LLC D/B/A THE MONITOR, Appellant
RODNEY ALLAN HENDERSON, Appellee
FROM THE 3RD JUDICIAL DISTRICT COURT HENDERSON COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. WORTHEN, CHIEF JUSTICE
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.
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
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.
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 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. This appeal
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
Citizens Participation Act
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).
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).
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.
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
of the TCPA
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
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).
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).
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.