Jennifer Lane v. Christine H. Phares

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-17-00190-CV

JENNIFER LANE APPELLANT

V.

CHRISTINE H. PHARES APPELLEE

----------

FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 16-04838-16

----------

OPINION

----------

This is a permissive interlocutory appeal from the trial court’s dismissal of

Appellant Jennifer Lane’s defamation suit against Appellee Christine H. Phares.

The trial court dismissed Lane’s claims under the Texas Citizens Participation

Act (TCPA), finding that the TCPA applied to Lane’s claims, that Lane is a

limited-purpose public figure, and that Lane did not establish that Phares made

internet postings about Lane with actual malice. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 27.003, 27.008 (West 2015). We granted Lane permission to

appeal the trial court’s dismissal order. See Tex. R. App. P. 28.3. Because Lane

is a limited-purpose public figure and failed to produce clear and specific

evidence that Phares published defamatory statements with actual malice, we

affirm.

I. Background

Lane is an operatic singer and a voice professor at the University of North

Texas (UNT). Phares is a former student of Lane’s at UNT. Phares

anonymously posted a comment on an online forum for classical singers, stating

that Lane: (1) filed lawsuits against each of her former university employers and

against UNT; (2) “loses an average of 3–4 students out of her studio per

semester”; (3) “teaches in unhealthy ways [and] causes vocal problems”; and

(4) “talks shit on singers and faculty in a serious way.” Phares also posted

comments on the RateMyProfessors.com website stating that: (1) Lane’s

teaching methods caused documented vocal injury; (2) Lane is distracted and not

focused during lessons, often on computers or her phone while a student is

singing; (3) Lane is not organized and is often late to lessons; (4) Lane demeans

students and is not respected by faculty, peers, or students; and (5) Lane has

been on faculty probation.

Lane sued Phares and other unnamed defendants for defamation, a

permanent injunction, and a request for a correction, clarification, or retraction

under civil practice and remedies code section 73.055(d). See Tex. Civ. Prac. &

2
Rem. Code Ann. § 73.055(d) (West 2017). Phares answered, filed a

counterclaim for fraud, and filed a motion to dismiss under the TCPA. In the

motion, she asserted that Lane’s suit was based on, related to, or was in

response to Phares’s exercise of her rights to free speech and of association and

that Lane is an all-purpose public figure, or at least a limited-purpose public

figure. In response, Lane asserted that she is not a public figure, limited or

otherwise, and that even if she is, Phares posted her online comments with

actual malice.

After a hearing, the trial court granted Phares’s TCPA motion to dismiss.

In the dismissal order, the trial court found by a preponderance of evidence that

Lane is a public figure and that her legal action is based on, relates to, or is in

response to Phares’s exercise of her rights of free speech and association. The

trial court further found that Lane did not establish that Phares’s comments were

made with actual malice.

At Lane’s request, the trial court made findings of fact and conclusions of

law. The trial court found that Lane has chosen a career that regularly involves

media attention and has invited public attention and that she has achieved

notoriety and recognition in her community as both an opera singer and a

professor. The trial court concluded that Lane is a public figure and that she did

not establish that Phares acted with actual malice with regard to the internet

postings. Upon Lane’s further request, the trial court made the additional finding

that Lane is a limited-purpose public figure.

3
 Lane filed a petition seeking permission for this interlocutory appeal

challenging the trial court’s order, which we granted. See Tex. R. App. P. 28.3;

Lane v. Phares, No. 02-17-00190-CV, 2017 WL 2807404 (Tex. App.—Fort Worth

June 29, 2017, no pet.).

II. Dismissal under the TCPA

We review de novo a trial court’s ruling on a motion to dismiss under the

TCPA. Dall. Morning News, Inc. v. Hall, 524 S.W.3d 369, 374 (Tex. App.—Fort

Worth 2017, pet. filed); Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716,

724–27 (Tex. App.—Houston [14th Dist.] 2013, pet. denied), disapproved of on

other grounds by In re Lipsky, 460 S.W.3d 579 (Tex. 2015). We construe the

TCPA liberally to fully effectuate its purpose and intent. Hotchkin v. Bucy,

No. 02–13–00173–CV, 2014 WL 7204496, at *1 (Tex. App.—Fort Worth Dec. 18,

2014, no pet.) (mem. op.) (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.011(b)

(West 2015)).

A plaintiff defeats a motion to dismiss under the TCPA by establishing by

clear and specific evidence a prima facie case for each essential element of the

plaintiff’s claim. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c) (West 2015).

The requirement for “clear and specific evidence” means the plaintiff “must

provide enough detail to show the factual basis for its claim.” Lipsky, 460 S.W.3d

at 590–91. For a defamation claim, a plaintiff must prove among other elements

that the defendant published a false statement of fact and that the defendant did

4
so with the requisite degree of fault—with negligence if the plaintiff is a private

figure or with actual malice if the defendant is a public figure. Id. at 591.

III. Public Figures and Defamation Law

Whether Lane is a public figure is a question of law. See Neely v. Wilson,

418 S.W.3d 52, 70 (Tex. 2013). “In this determination, federal, not state,

standards apply.” Schofield v. Gerda, No. 02-15-00326-CV, 2017 WL 2180708,

at *12 (Tex. App.—Fort Worth May 18, 2017, no pet.) (mem. op.) (citing

Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S. Ct. 669, 675 (1966)).

There are two classes of public figures in the defamation context:

(1) general-purpose public figures, “who have achieved such pervasive fame or

notoriety that they become public figures for all purposes and in all contexts,” and

(2) limited-purpose public figures, who are “public figures for a limited range of

issues surrounding a particular public controversy.” WFAA-TV, Inc. v.

McLemore, 978 S.W.2d 568, 571 (Tex. 1998). General-purpose public figures

hold positions of persuasive power and influence, while limited-purpose public

figures have “thrust themselves to the forefront of particular public controversies

in order to influence the resolution of the issues involved. In either event, they

invite attention and comment.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345,

94 S. Ct. 2997, 3009 (1974); see also Hoskins v. Fuchs, 517 S.W.3d 834,

842 (Tex. App.—Fort Worth 2016, pet. filed) (stating that limited-purpose public

figures “thrust themselves to the forefront of particular public controversies in

order to influence the resolution of the issues involved . . . invit(ing) attention and

5
comment”; “inject ( ) (themselves) or (are) drawn into a particular public

controversy . . . assum(ing) special prominence in the resolution of public

questions”; and “thrust (themselves) into the vortex of (a) public issue . . . (or)

engage the public’s attention in an attempt to influence its outcome.”) (citations

omitted). “[P]ublic figures effectively have assumed the risk of potentially unfair

criticism by entering into the public arena and engaging the public’s attention.”

Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 273 (3d Cir. 1980).

We use a three-part test to determine whether a person is a limited-

purpose public figure:

(1) the controversy at issue must be public both in the sense
that people are discussing it and people other than the
immediate participants in the controversy are likely to feel the
impact of its resolution;

(2) the plaintiff must have more than a trivial or tangential role
in the controversy; and

(3) the alleged defamation must be germane to the plaintiff’s
participation in the controversy.

Neely, 418 S.W.3d at 70.

IV. Lane Qualifies as a Public Figure under Defamation Law

A. The Record Contains Conclusive Evidence Establishing Lane’s
Public-Figure Status

1. Lane’s Professional Website

Lane maintains a personal website about her career. Phares included

excerpts from the site as exhibits to her affidavit included with her TCPA motion

to dismiss. According to the site, “[t]he press has described [Lane’s] singing as

6
‘clear, rich, plangent,’ ‘compelling and dramatic,’ and possessing ‘agility and

charisma.’” On her biography page on her website, Lane lists her many

acclaimed public performances, stating that “[s]he has been featured by many of

the most prestigious institutions and orchestras in the US and abroad,” including

the Metropolitan Opera, New York City Opera, San Francisco Opera, Opera

Monte Carlo, Opera du Caen, and the San Francisco Symphony. She also

states that she “has over fifty CD recordings to her name on a wide variety of

labels, as well as two films.”

Lane’s biography page on her personal website also mentions her

distinguished teaching career, stating that she taught at the University of

Kentucky-Lexington “before being recruited to [UNT] as Associate Professor.”

She states that before the University of Kentucky, she taught at Stanford and that

she teaches regularly at summer workshops. She states that her students have

won awards from the Metropolitan Opera Council, the Orpheus Competition, the

Holt Foundation, and the National Association of Teachers of Singing and have

been admitted to graduate study at the Peabody Institute, the Royal Academy of

Music/London, Indiana University, McGill, and Eastman. She further states that

“[a] number of them are enjoying active national and international opera, concert,

and teaching careers.”

The website additionally has a “Critical Acclaim” page where Lane sets out

excerpts from positive press reviews of her performances drawn from reviews of

operas she has appeared in across the country, including reviews from the

7
Philadelphia Inquirer, the Cleveland Plain Dealer, the Chicago Tribune, the

Washington Post, the Los Angeles Times, TheaterJones.com, and several other

arts-oriented websites. Lane’s personal website also has pages with lengthy

listings of her operatic roles, orchestra appearances, recitals, and discography,

and a page dedicated to her voice teaching, discussing her teaching positions

past and present and master classes she has taught.

2. Lane’s Faculty Page on UNT’s Website

Lane’s faculty page on the UNT website is also included as part of the

evidence supporting the motion to dismiss. The faculty page, after listing her

contact information, begins with a statement that she was nominated for a

Grammy in 2015 for one of her operatic roles. The page then notes the various

institutions at which she has taught and states that she was an ensemble

member on a Grammy-winning recording of a symphony performance with the

New York Philharmonic. Next, the page asserts that many of her students are

now successful professional singers and academics. Then the page states that

Lane “is recognized internationally for her stunning interpretations of repertoire.”

The page notes that she performed a main role in a production of Dido &

Aeneas, which was filmed for BRAVO Television and has been released on

DVD, and that the DVD “is now used by universities nationwide in Humanities,

Opera, Gender Studies[,] and other courses.”

8
 3. Lane’s Affidavit

In Lane’s affidavit submitted in response to the motion to dismiss, she

swore to the following statements regarding her career achievements:

5. Over the course of my career in vocal performance and
operatic singing, I have garnered a reputation as an excellent singer.
I began singing professionally in 1972. I have performed in opera
and concert with the Tanglewood Festival, Boston Early Music
Festival, the New Getty Center, the Frick Collection, Opernhaus
Halle, Opernhaus Dessau, Utah Opera, Salzburger
Bachgesellschaft, Seattle Baroque Orchestra, Jerusalem Symphony,
St. Louis Symphony, Orchestra della Toscana, and the New York
City Opera, where I performed over twenty roles, including Amastre
in its acclaimed production of Handel’s Xerxes, voted opera
production of the year by USA Today.

6. In 2015, I was nominated for a Grammy award for my
role (Athena) in Milhaud’s Orestie.

7. I am an ensemble member on the Grammy-winning
Deutsche Grammophon recording of Mahler’s Symphony No. 3, with
the New York Philharmonic, conducted by Leonard Bernstein.

....

10. While my operatic performances have been reviewed by
various opera critics, none of these reviews have pertained to any
part of my life aside from the particular performance that the critic
reviewed. . . . .

11. I have never been the subject of a news article specifically
about me or one of my operatic performances that was not also
about the work performed or the work to be performed and did not
also cover other individuals involved in the performance.

12. I have never been the subject of an article in Time
Magazine or Life Magazine. I have never appeared on any national
radio or television talk show.

13. My Internet presence is limited to my professional website,
my faculty profile page on UNT’s website, my Linkedln account, and
my Facebook page.

9
 She further swore that she has never held a press conference and has no

fan websites devoted to her, that no member of the press has reported on what

people are saying about her accomplishments or her teaching positions, and that

she is not a household name and not a celebrity.

4. Phares’s Affidavit

In Phares’s affidavit supporting the motion to dismiss, she averred that

when Lane was trying to recruit her to her studio at UNT, “both in person and on

the telephone, [Lane] mentioned her career and how well connected she is due

to her performance career.” Phares looked up Lane’s personal website and

faculty page and “found her lengthy resume to be impressive and felt that her

connections within the opera world could be beneficial to [Phares] in the future.”

She further stated that when she was auditioning for different schools prior to

enrolling at UNT, students normally sat in the hallways and talked before their

auditions, and in these talks students would ask each other which teacher they

studied with “and then proceed to speak of that teacher.” When Phares

mentioned Lane, other students at the auditions would tell her that Lane had a

reputation for suing each of her former university employers. According to

Phares, this conversation happened at multiple auditions with other students.

10
 5. Phares’s Deposition

In Phares’s deposition,1 she testified that after she started at UNT, a friend

was looking at graduate schools, and as a potential student he took a lesson with

Lane and another UNT voice professor. Afterward, Lane called Phares to ask

which teacher Phares’s student friend liked better, and Lane “reminded [Phares]

of [her] stature” and asked Phares to tell her student friend how much Phares

liked her lessons with Lane.

Phares also further testified, as discussed more below, that the

conversations about Lane suing her employers that she had heard at auditions

continued after she enrolled at UNT. According to Phares, once she became a

UNT student, when she went to auditions for various programs, if she told other

students that Lane was her teacher, the students at those auditions would tell her

those same rumors about Lane filing lawsuits against her employers. At one

audition, she was told that Lane had problems at other schools with students

wanting to leave.

B. Lane is a Public Figure

First, the evidence in the record demonstrates a public controversy about

Lane’s role as a university voice teacher. “[A] public controversy is a dispute that

1
In ruling on a TCPA motion to dismiss, the trial court generally considers
the pleadings and supporting and opposing affidavits. Tex. Civ. Prac. & Rem.
Code Ann. § 27.006(a) (West 2015). However, the trial court may allow specific,
limited discovery relevant to the motion, and the trial court allowed such
discovery in this case, including allowing Lane to conduct a three-hour deposition
of Phares. Id. § 27.006(b).

11
in fact has received public attention because its ramifications will be felt by

persons who are not direct participants.” Waldbaum v. Fairchild Publications,

Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980). “‘To determine whether a

controversy indeed existed and, if so, to define its contours, the judge must

examine whether persons actually were discussing some specific question.’”

McLemore, 978 S.W.2d at 572 (quoting Waldbaum, 627 F.2d at 1297). Here,

students were talking about the issue, and the issue affected more than just Lane

and Phares, the immediate participants in the controversy, because it dealt with a

professor’s fitness for, and performance of, her role as a teacher, which affects

any potential or current UNT voice student.

Second, Lane had more than a trivial or tangential role in the public

controversy. In determining Lane’s role in the controversy, we consider such

factors as whether: (1) she actually sought publicity surrounding the controversy;

(2) she had access to the media; and (3) she “voluntarily engag(ed) in activities

that necessarily involve(d) the risk of increased exposure and injury to

reputation.” McLemore, 978 S.W.2d at 573 (quotation marks and citation

omitted). Lane “either must have been purposely trying to influence the outcome

or could realistically have been expected, because of [her] position in the

controversy, to have an impact on its resolution.” Waldbaum, 627 F.2d at 1297.

The record conclusively shows that, as the trial court found, “Lane has

chosen a career that regularly involves media attention and has invited public

attention.” There is no question that Lane, in her career, has “invite[d] attention

12
and comment.” Gertz, 418 U.S. at 345, 94 S. Ct. at 3009 (stating that public

figures “invite attention and comment”). Certainly, students outside of UNT knew

of Lane as a voice teacher. Indeed, Lane’s own affidavit asserts that she has a

reputation as an exceptional singer, was nominated for a Grammy award, and

was a member of an ensemble that won a Grammy. Cf. Celle v. Filipino

Reporter Enterprises Inc., 209 F.3d 163, 177 (2d Cir. 2000) (“Given plaintiff

Celle’s own characterization of himself as a ‘well known radio commentator’

within the Metropolitan Filipino–American community, the district court correctly

held that he is a public figure.”). In addition, Phares’s deposition, on which Lane

also relied, is some evidence that Lane used her stature as a world-recognized

opera singer to recruit students to her studio and that students at UNT and

students at other schools had heard of Lane. The record further shows that Lane

is recognized nationally and internationally for her singing. Lane’s singing

performances have been discussed in media stories in newspapers across the

country. In fact, a recording of one of Lane’s performances, filmed for television,

is used as a teaching tool in universities across the country. And, Lane

intertwines her renown in the opera world with her teaching credentials, using her

successes in her singing career to boost her voice teacher credentials on her

faculty page and discussing her teaching successes on her professional website,

promoting herself on the site as a teacher who leads her students to success in

the opera world.

13
 Third, the statements Lane sued Phares for making, discussed more below

under Lane’s second issue, all concerned Lane’s role as a voice teacher.

Despite this undisputed evidence of Lane’s notoriety in her profession,

Lane directs our attention to this court’s decision in Hoskins and argues that the

facts in this case “closely align with the facts in Hoskins,” where we held that the

plaintiff, a university professor, was not a public figure. See Hoskins, S.W.3d at

843. However, even a cursory review of that case reveals that the facts of this

case are quite unlike the facts of Hoskins. Unlike here, the record in that case

established only that the plaintiff was a tenured university professor. Id. Based

on that fact, we held that the evidence was insufficient to show that the plaintiff

was a public official, a general-purpose public figure, or a limited-purpose public

figure. Id.

Oddly, Lane then argues that it was the trial court’s fault for making her a

public figure by “inappropriately punish[ing] Professor Lane for promoting her

career,” “as revealed by the [trial court’s] repeated references to Professor

Lane’s professional websites.” This argument is without merit. As Abraham

Lincoln observed, “[w]hat kills a skunk is the publicity it gives itself.” GREAT

QUOTES FROM GREAT LEADERS 21 (compiled by Peggy Anderson, 1990). Lane’s

career is what it is without any assistance from the trial court. Lane simply

cannot sing her national and international renown on her website and the UNT

faculty page, stand by those statements in her affidavit, and then claim she has

no public presence. The trial court’s recognition of Lane’s accomplishments as

14
set out on her websites and her affidavit was not “punishment” for her self-

promotion—it was an acceptance of the evidence before it.

We hold that Lane is, at the least, a limited-purpose public figure. We

therefore overrule Lane’s first issue.

V. Lane Did Not Establish Actual Malice

A. Actual Malice in Defamation Claims

As a public figure, to maintain her claim Lane had to produce evidence that

Phares published a defamatory statement about her with actual malice. See

Hearst Corp. v. Skeen, 159 S.W.3d 633, 636–37 (Tex. 2005). “Actual malice” in

the defamation context does not mean injurious motive or ill will toward the

plaintiff, but rather means that the defendant had knowledge of the falsity of the

statement or reckless disregard for the truth. Greer v. Abraham, 489 S.W.3d

440, 444 (Tex. 2016). The focus therefore “is on the defendant’s attitude toward

the truth, not [her] attitude toward the plaintiff.” Id; see also New Times, Inc. v.

Isaacks, 146 S.W.3d 144, 162 (Tex. 2004) (“Constitutional malice generally

consists of (c)alculated falsehood.” (citations and quotation marks omitted)).

“Reckless disregard is a subjective standard, focusing on the defendant’s state of

mind.” New Times, 146 S.W.3d at 162. To establish reckless disregard, the

plaintiff “must establish that the defendant in fact entertained serious doubts as to

the truth of [her] publication, or had a high degree of awareness of . . . (the)

probable falsity of the published information.” Id. (citations and quotation marks

omitted); see also Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,

15
511 n.30, 104 S. Ct. 1949, 1965 n.30 (1984) (“The burden of proving ‘actual

malice’ requires the plaintiff to demonstrate . . . that the defendant realized that

his statement was false or that he subjectively entertained serious doubt as to

the truth of his statement.”). “[T]he actual malice standard focuses on the

defendant’s state of mind at the time of publication not after the defendant was

sued.” Cruz v. Van Sickle, 452 S.W.3d 503, 517 (Tex. App.—Dallas 2014, pet.

struck).

“Although the failure to investigate does not, on its own, demonstrate

actual malice, a purposeful avoidance of the truth does.” Tex. Disposal Sys.

Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 578–79 (Tex.

App.—Austin 2007, pet. denied); see also Harte-Hanks Commc’ns, Inc. v.

Connaughton, 491 U.S. 657, 692, 109 S. Ct. 2678, 2698 (1989) (“[F]ailure to

investigate will not alone support a finding of actual malice”); Duffy v. Leading

Edge Prods., Inc., 44 F.3d 308, 313 (5th Cir. 1995) (“Negligence, lack of

investigation, or failure to act as a reasonably prudent person are insufficient to

show actual malice.”). “An understandable misinterpretation of ambiguous facts

does not show actual malice, but inherently improbable assertions and

statements made on information that is obviously dubious may show actual

malice.” Bentley v. Bunton, 94 S.W.3d 561, 596 (Tex. 2002). Further, while a

lack of care or a bad motive is not proof of actual malice, “care and motive are

factors to be considered.” Id.

16
B. Lane Failed to Make a Prima Facie Showing of Phares’s Actual Malice

Lane argues that she produced prima facie evidence of Phares’s actual

malice because: (1) Phares attested that her comments were based on gossip

from anonymous individuals, rendering her comments “‘inherently improbable

assertions’ that were ‘obviously dubious’”; (2) Phares failed to investigate the

truth of the rumors she heard before republishing them as fact; and (3) Phares’s

comments were not based on personal experience.

We discuss below the basis of Phares’s belief in each of the statements

she made. However, we must first address Lane’s assertion in her brief that she

had prima facie evidence of actual malice because “Phares testified that her

normal habit was to only make statements that concerned her personal

experience[,]” but “in this case, none of the defamatory statements concern her

personal experience.” To support this assertion, Lane cited to a part of Phares’s

deposition in which Phares talked about ensuring that her complaints were based

on her personal experience. Lane, however, “cherry-picks” and misrepresents

the context of that testimony. A closer look at the deposition transcript shows

Phares was responding to a question asking specifically about statements she

made in a letter to the chair of the UNT voice department in which she

complained about Lane’s teaching. When asked what care she exercised to

make sure her statements in that specific letter were correct, she replied that she

“reread and made sure it was all based on [her] personal experience” and that

she reviewed recordings of her voice lessons and a voice journal she kept with

17
notes from her lessons. Phares’s response to the question did not address the

basis of Phares’s belief for all of the statements she posted online and for which

Lane has sued her.

1. Phares’s statements that Lane filed lawsuits against every
school that employed her, including UNT

The first statements for which Lane contends she had evidence of actual

malice was Phares’s statements that Lane filed lawsuits against each of her

university employers. Lane stated in her affidavit that she has never filed a

lawsuit against a university. As for Phares’s knowledge or belief about the truth

of her statements, Lane asserted that she met her burden to show actual malice

because Phares’s TCPA motion “establishes that she knew that she could not

know whether her statements were true or not because she is not an attorney.”

Lane’s argument references a contention Phares made in her TCPA motion that

her online comments were statements of opinion. See Vice v. Kasprzak,

318 S.W.3d 1, 18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“The

analysis for distinguishing between an actionable statement of fact and a

constitutionally protected expression of opinion focuses on the statement’s

verifiability and the entire context in which it was made.”). In arguing that her

comments were statements of opinion because they were not objectively

verifiable, Phares asserted that while an attorney with access to the filings of

each county of each school that had employed Lane could possibly verify the

accuracy of the statements, such an undertaking would not be easily done, much

18
less by a lay person. That section of Phares’s motion to dismiss did not negate

her belief in the truthfulness of the statements. Elsewhere in her motion, she

argued that the statements she made were true, and she addressed the basis for

her belief.

Further, Phares’s affidavit and deposition testimony, both of which Lane

included with her response to Phares’s TCPA motion, showed the basis for

Phares’s belief. In Phares’s affidavit, she explained that she began to hear

rumors about Lane while auditioning for schools and on the audition circuit for

companies and programs. During those auditions, students commonly sat and

talked in the hallways before their auditions, and conversation would turn to who

studied with whom. According to Phares’s affidavit, “[n]umerous, non-UNT

students on the audition circuits had stated that Lane had caused problems at

her former schools and threatened lawsuits, filed lawsuits, and was known for

trying to settle things out of court and under the rug.” At first, Phares dismissed

the talk as mere gossip, but she “became convinced it was the truth when more

and more students recounted the same story at various auditions.” She “further

ran across a lawsuit online while searching for Lane’s name, which [she] believed

fit the description of one story [she] had heard, but was unable to verify it as the

case had been settled.” Then, while she was a student at UNT, multiple students

told Phares that Lane had filed a complaint against another voice teacher. And

during her lessons with Lane, Lane would make statements against UNT and

19
students, and Lane told Phares “that she took gossip very seriously and would

not hesitate to involve the legal system.”

In her deposition, Lane’s attorney asked Phares to elaborate on the

statements in her affidavit. Phares testified that she first heard the rumors about

Lane while auditioning at the University of Kentucky, a school where Lane had

once taught. People made similar statements about Lane’s litigious reputation at

other auditions, and Phares continued to hear such rumors about Lane after she

started at UNT. Multiple UNT students told Phares that Lane had filed a

complaint against a specific UNT professor; other students said she had filed or

was planning to file a lawsuit against the professor. At her deposition, Phares

provided the names of some of the UNT students who were present for the

conversations, but she could not remember which student said what. At an

audition for a program in Austin, another auditioning student asked Phares if it

was true that Lane had filed a lawsuit against every school she had ever worked

for.

Lane’s attorney asked Phares if she had ever asked Lane about the

rumors. Phares responded that she had not because she did not feel

comfortable asking Lane questions due to the atmosphere Lane created. Phares

testified that she “didn’t feel as though questions were encouraged during [her]

lessons and sometimes questions were not allowed,” and Phares “was pretty

intimidated” by Lane. Phares also stated that there “were a few times in [the]

lesson where [Phares] was asking for a pedagogical clarification and [she] was

20
not allowed to finish the question and told [by Lane] something like, [‘]that’s an

undergraduate question[’] or [‘]don’t question me.[’]” Phares stated that the

lessons with Lane developed an environment “to where [she] didn’t feel

comfortable talking about things that were a little uncomfortable to talk about.”

This testimony mirrored the complaint that Phares made to the chair of the UNT

voice department, in which she stated that she was “uneasy and often nervous

around Lane,” that she dreaded her lessons and had trouble sleeping the night

before and after, that “Lane often shut[] [her] down when [she] attempt[ed] to

explain things,” and that Phares had “tried to disagree or discuss things with

Lane and ha[d] been shut down and not acknowledged.”

Asked at her deposition if she believed at the time she posted online the

alleged defamatory statements that Lane had filed lawsuits against the University

of Kentucky, Stanford University, and UNT, Phares responded that it was gossip

she had heard “a lot,” and she did believe it. When asked what she did to verify

the accuracy of her statements about Lane filing lawsuits, Phares answered that

her statement “was based on things I heard from others at various points and the

repetition and so I started to believe it was true.” Then, after finding information

online about a lawsuit involving a Jennifer Lane, “when [she] put all that together,

[she] just believed it was true.” Phares found a case summary online of a

1997 suit that named the plaintiff, defendant, and the nature of the case. The

defendant in the suit was not a university, but because the plaintiff’s name was

Jennifer Lane and the suit involved defamation—and some of the people telling

21
Phares the lawsuit rumors had mentioned defamation—Phares believed at the

time that the 1997 suit had been filed by her voice teacher, Lane.

Finally, upon deposition questioning from her own lawyer, Phares

acknowledged that it was possible that people talking about Lane’s filings against

her employers had used the word “complaints” and that Phares had

misinterpreted the word “complaint” to mean a legal action, meaning that the

people speaking could have meant that Lane had filed internal complaints at the

universities where she worked.

In sum, Lane’s evidence of actual malice included Phares’s testimony that

she was repeatedly told by other students about Lane filing complaints or

lawsuits against each of her university employers. Lane’s behavior and

demeanor in her lessons intimidated Phares and deterred her from asking Lane

about the rumors directly, but Phares testified that Lane herself told Phares she

would not hesitate to take legal action to defend herself against gossip. Phares

attempted to find confirmation online using resources available to a lay person,

and she found a lawsuit that she believed, albeit mistakenly, supported what she

had come to believe. This evidence does not indicate that Phares purposefully

avoided learning the truth. See Bentley, 94 S.W.3d at 596 (“A failure to

investigate fully is not evidence of actual malice; a purposeful avoidance of the

truth is.”). From this evidence, Lane did not make a prima facie showing that

when Phares published the statements about Lane filing lawsuits and complaints,

she knew the statements were false, had serious doubts as to their truth, or had

22
a high degree of awareness of their probable falsity. See New Times,

146 S.W.3d at 162; Cruz, 452 S.W.3d at 517.

2. Phares’s statement that Lane loses an average of three to four
students per semester

Lane contends that she satisfied her prima facie burden to show that

Phares acted with actual malice in posting on the internet that Lane loses an

average of three to four students per semester because Phares testified in her

deposition that she never asked Lane about the truth of the statement.

According to Lane, “Phares testified that she had personal knowledge of the

students who left Professor Lane’s studio, and so she should have known that

only one student left Professor Lane’s studio in the Fall of 2014 and three

students (including Phares) left Professor Lane’s studio in Spring 2015.”

Lane again misconstrues Phares’s testimony. Phares testified in her

deposition that she still believed that her statement was true at the time that she

made it based on her personal experience. She named two students she

believed left in the fall 2014, and seven students, including herself, she believed

left in the spring 2015, although she stated that because the students left at the

end of the semester, one or two of those students may not have officially

withdrawn until fall 2015. Phares stated that she based her knowledge of these

students leaving on seeing students who used to be in Lane’s studio with her

begin going to performance rooms of voice teachers other than Lane and seeing

different teachers listed for them in performance programs. She also had

23
conversations with most of those students about leaving Lane’s studio. Phares

even described her conversation with the students. In those conversations, the

students talked about leaving, trying to obtain approval to leave Lane’s studio, or

starting the process to leave, and the various steps they were taking or thought

they should take to get official approval to withdraw. Phares testified that she

trusted the students she spoke with to tell her the truth. Given this evidence, we

cannot say that Lane established a prima facie case that Phares knew the

statement was false or that she showed a reckless disregard for the truth. See

New Times, 146 S.W.3d at 162.

3. Phares’s statement that Lane teaches in unhealthy ways and
causes vocal problems and injuries

Lane argues that she met her burden to show actual malice regarding

Phares’s internet postings about Lane teaching in unhealthy ways and causing

vocal problems because Phares had no personal experience with Lane causing a

documented vocal injury.

In Lane’s affidavit, she stated, without elaboration, that she does not teach

in unhealthy ways and has never caused a student vocal problems or vocal

injuries. As for evidence about Phares’s knowledge of the truth of her

statements, we agree with Lane that in Phares’s deposition testimony describing

her experience in Lane’s studio, she admitted that none of the techniques Lane

had her perform in lessons caused her actual injury. However, Phares further

explained that she did experience vocal problems, which, to her, was a different

24
issue than vocal injury. When she wrote of Lane causing vocal injury, she was

referring to the experience of another student. She then provided the basis for

her online comments.

Regarding vocal problems, Phares testified that “you shouldn’t leave your

lessons feeling vocally tired or hoarse at all, and I would leave my lessons feeling

that way.” At the time of her deposition, she acknowledged that in retrospect, it

was possible that in her lessons, she incorrectly performed the techniques Lane

was teaching her. But despite having less certainty than she previously had that

Lane had caused her problems, she still believed that Lane taught in unhealthy

ways that caused vocal problems. That she later questioned her previous belief

does not show that at the time she made the statement, she knew it was false or

that she had a reckless disregard for the truth. See New Times, 146 S.W.3d at

162.

As for her statements that Lane had caused a student documented vocal

injury, Phares explained that while Lane did not cause her vocal injury, when she

posted the comments online, she believed that Lane had caused another student

vocal injury. She first heard the allegation from another auditioning student while

she was auditioning at the University of Kentucky. The student’s comment

concerned Phares, but she tried to “tune it out.”

Once at UNT, Phares heard about the issue from Lane herself. Early in

Phares’s first semester as Lane’s student, Lane told Phares that another student,

Fabiana, blamed Lane for her vocal injury. Lane said “that that was a big issue,”

25
and “[s]he mentioned that other students say things about her methods of

teaching that aren’t true.” Lane told Phares that “there was an air of gossip and

that a lot of it . . . wasn’t true and it was based on students not liking her.” When

Phares came to her lesson from another class, Lane asked her “if anyone in that

class said anything about her that day and mentioned to stay away from students

in [another teacher’s] studio.”

Phares talked to Fabiana, who said that “there was an issue” and did not

elaborate. Phares had a conversation with a fellow student of Lane’s named

Barrett, who told her that Fabiana had told him that Lane had caused Fabiana a

vocal injury. Barrett indicated Fabiana’s injury “was caused by what was going

on in lessons and techniques and various things,” though at the time of her

deposition, Phares could not remember the exact details of that conversation.

Phares stated that she believed Barrett, who she knew was “very good friends

with Fabiana.” Because she believed Barrett, she believed her statement that

Lane had caused a student a documented vocal injury was true when she made

it.

While still Lane’s student, Phares wrote two emails that were

complimentary of Lane that she submitted to the chair of the voice department,

and Lane included one of these letters with her response to Phares’s TCPA

motion. The letter a September 2014 email, was written soon after Phares

began studying with Lane. She stated in the email that she was “happy to be

surrounded by professionals who recognize vocal issues early on and see that

26
excellent treatment is provided as quick as possible,” and she thanked the chair

for “providing and maintaining such a supportive and healthy environment for

your musicians.” She stated that faculty members at a program she had recently

participated in were “excited that [she is] with a teacher here who won’t push

[her] into singing the Ring Cycle before [she is] ready, and a Music Department

that supports ideal healthy singing practices.”

The September 2014 email, written soon after Phares began studying with

Lane, does not show that Phares knew her statements about Lane causing vocal

damage and vocal injury were untrue at the time she made them. In a letter

Phares submitted to the chair of the voice department in February 2016, which

Lane included with her response to Phares’s motion, Phares explained that she

had written the September 2014 email at Lane’s request and that Lane told her

what the letter should say and had Phares email her the rough draft. She

explained at her deposition that at the time she wrote the email, she believed she

“was involved in healthy singing practices” and believed what she wrote at Lane’s

direction was true. But later, from her own experience and from talking to

Barrett, she came to believe otherwise.

While Phares testified that Lane told her that the students talking about her

made untrue accusations, Phares’s description of the context of Lane’s

statements suggested a preoccupation on Lane’s part with possible negative

statements students and faculty might be making about her. In that context as

described by Phares, Lane’s statements about Fabiana’s accusation do not look

27
like evidence that Phares knew her statement was false when she made it, but

like Phares’s opinion that Lane had tried to manage Phares’s opinion of her.

Further, Phares testified that Barrett, Fabiana’s close friend, gave her information

about the cause of Fabiana’s injury, and she believed him. Considering all this

evidence together, Lane failed to make a prima facie showing that when Phares

made the statements about Lane’s teaching methods, she knew they were false

or that she showed a reckless disregard for the truth. See New Times,

146 S.W.3d at 162.

4. Phares’s statement that Lane disparages UNT singers and faculty

According to Lane, she met her burden to show actual malice regarding

Phares’s internet postings that Lane disparages UNT singers and faculty

because Phares had no personal experience of Lane disparaging UNT singers

and faculty. But Phares testified in her deposition that the basis for this

statement was “personal experience and the different things [Lane] had said to

[Phares] during lessons about others.” Phares even gave several examples of

what she considered to be Lane disparaging UNT singers and faculty. She

described Lane telling Phares, regarding a student who had been given a

particular role in a production, that the student “had no business singing that role

and [that Lane] wasn’t sure why she was cast that way.” Lane “told [Phares] that

a lot of faculty said things about her that were untrue, and would ask me what

they said,” and she told Phares that faculty members “were very unprofessional

in regards to [Lane].” Phares also testified that Lane asked her if another

28
teacher, Carol Wilson, had been trying to recruit Phares to Wilson’s studio, and

told Phares “to be very careful and asked [Phares] to remove Carol Wilson

from . . . [her] orals committee.” Lane told Phares not to take any issues to the

chair of the vocal department because “he’s part of the problem.” While Lane

might disagree that these alleged statements rise to the level of “serious”

disparagement, Phares’s deposition is evidence of Phares’s belief in the truth of

her statement, formed from her personal experience, and a lack of actual malice

on her part.

Further, in the complaint Phares gave to the chair of the vocal department

regarding Lane, which Lane included with her response to the motion to dismiss,

Phares stated that “Lane has mentioned specific likes/dislikes about other

students to me (Kong, Claire, undergrads),” “Lane talks about other students in

her studio to me,” and “Lane becomes suspicious when I befriend people outside

of her studio.”

Lane’s affidavit was the only evidence Lane presented to make a prima

facie showing that Phares had no personal experience of Lane disparaging UNT

singers and faculty and to counter Phares’s deposition testimony and the

statements in her complaint. In Lane’s affidavit, she addressed Phares’s online

comments on the matter in a single conclusory statement: “I do not disparage

UNT singers and faculty members in a serious way.” She did not elaborate and

did not address or dispute the allegations Phares made in her deposition

testimony or in her written complaint. The evidence did not make a prima facie

29
showing that Phares knew her online comment about Lane disparaging others

was untrue or that she made the comment with reckless disregard to its truth. Cf.

Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.—Houston [14th Dist.]

2000, pet. denied) (“Conclusory statements in affidavits are not proper as

summary judgment proof if there are no facts to support the conclusions.”). Lane

therefore did not make a prima facie showing of actual malice with respect to this

statement.

5. Phares’s statement that Lane is distracted and not focused
during lessons and is often on computers and cell phone while
a student is singing in Lane’s studio sessions

Regarding her posted comment that Lane is distracted and not focused

during lessons and is often on computers and her cell phone, Phares

acknowledged that her comment was based on her own personal experience.

She testified in her deposition that she based her comment on “situations [she]

recalled and also verified in [her] voice lesson recordings and [her] voice lesson

journal.” Lane would look at her phone or computer during the lesson,

sometimes while Phares was singing. Asked if Lane “was maybe just keeping

time on her timer on her phone,” Phares responded, “I couldn’t pinpoint every

single time, but—for example, one time she had to answer the phone and it was

something not related to a lesson.” Lane took the call while Phares was singing.

In her affidavit, Phares stated that “during many of my voice lessons with Lane,

Lane was looking at her phone or computer and seemed distracted and

unfocused.”

30
 Lane stated in her affidavit that she is “not often on computers or cellular

devices while one of my students is singing in my studio sessions.” (She did not

address or deny the part of Phares’s comment contending that Lane was

distracted and not focused during lessons.) However, Lane’s affidavit is not

prima facie evidence about Phares’s belief about the truth of her statement.

Lane’s single, conclusory statement does not deny that she was sometimes on

her computer or cell phone during lessons. She does not address Phares’s

statement that during one of her lessons, Lane took a phone call unrelated to the

lesson. Lane’s affidavit states simply that she was not often on the phone or

computer during lessons. Lane’s affidavit contains no facts supporting or

explaining the statement and does nothing to challenge the basis of Phares’s

belief that the behavior Phares complained of not only happened, but happened

often. Lane therefore did not establish that Phares made the comment with

actual malice.

6. Phares’s statement that Lane has been on faculty probation

Finally, Lane challenges Phares’s posted statement that Lane has been on

faculty probation by countering with her affidavit testimony that “I have never

been on faculty probation.” This is not evidence of Phares’s knowledge of its

truthfulness. See Bose Corp., 466 U.S. at 511, 104 S. Ct. at 1965 (“[T]here is a

significant difference between proof of actual malice and mere proof of falsity.”).

Phares’s affidavit and deposition, on the other hand, explain the basis of

her belief for the comment. In Phares’s affidavit, she stated that her “belief and

31
understanding is that Lane did not teach voice lessons because she was not

allowed to teach voice lessons prior to 2014.” While Phares did not know UNT’s

reason for not allowing Lane to teach voice lessons, she knew that Lane “was

teaching other classes and was not on sabbatical.” Phares did not have access

to UNT records and could not verify if Lane had been on probation, but “the

impression [Phares] was left with was that she had been.”

In her deposition, Phares explained that UNT’s website lists what courses

professors have taught or are teaching, and when Phares looked at the website,

Lane was listed as having taught voice lesson and voice studio in previous years,

but not for the year immediately before Phares started at UNT. Phares believed

that Lane was not on sabbatical, however, because she taught other classes that

year. Phares testified, “when a voice professor doesn’t teach studio voice, it just

made me wonder why and wonder if there was a bigger reason.” Phares spoke

to another student, Julianna, about the issue, and Julianna told Phares that Lane

had not been allowed to teach voice that year because of “some issues.” Phares

could not remember if Julianna had expanded on what those “issues” were.

Based on Lane being a voice professor yet not teaching voice classes and on

Julianna’s statement that Lane had not been allowed to teach voice that year,

Phares believed at the time she made her comment that Lane had been on

probation for that year. Phares discussed her belief with another student, Farah,

who agreed it “didn’t look good” that Lane, a voice professor, had not taught

voice the previous year. As of the time of the deposition, Phares did not know if

32
“probation” was the “official,” correct term, but she still believed that whatever the

proper term for what happened, it was “something” that meant Lane had not

been allowed to teach that year.

A document listing classes Lane taught from 2011 to 2015, which Lane

included as evidence with her response to Phares’s motion to dismiss, showed

that Lane taught only voice classes in 2011, 2012, and spring of 2015. She

taught both voice and “graduate diction” in fall 2014, but she did not teach voice

in 2013. Instead, for the academic year from fall 2013 to spring 2014, she taught

“advanced vocal diction” and “vocal literature.”

None of the record evidence makes a prima facie showing that Phares

made her online comment about Lane being on faculty probation with knowledge

that the comment was untrue or with reckless disregard for the truth.

Because Lane did not make a prima facie showing of actual malice for the

challenged statements, we overrule her second issue.

VI. Conclusion

Having overruled Lane’s two issues, we affirm the trial court’s order

dismissing Lane’s claims against Phares under the TCPA.

33
 /s/ Mark T. Pittman
MARK T. PITTMAN
JUSTICE

PANEL: SUDDERTH, C.J.; MEIER and PITTMAN, JJ.

DELIVERED: February 15, 2018

34