In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00275-CV
___________________________
RICHARD A. WEBER, ERIC ELAM, AND JOE PALMER, Appellants
V.
FRANK FERNANDEZ, Appellee
On Appeal from the 48th District Court
Tarrant County, Texas
Trial Court No. 048-299878-18
Before Gabriel, Pittman, and Bassel, JJ.
Memorandum Opinion by Justice Bassel
Dissenting and Concurring Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
I. INTRODUCTION
This interlocutory appeal arises from the trial court’s order denying Appellants
Richard A. Weber’s, Eric Elam’s, and Joe Palmer’s Texas Citizens Participation Act
(TCPA) motion to dismiss.
Many understandably find the tenor of today’s political discussion unpleasant.
But the TCPA protects those who speak on matters of public concern. See Tex. Civ.
Prac. & Rem. Code Ann. §§ 27.001–.011. Undoubtedly, the statements in this case—
directed toward a public official, Appellee Frank Fernandez, who had recently pled
guilty to a criminal offense, resigned from public office, and continued to participate
in political activities—fall within the ambit of the TCPA. The legislature has made its
decision that the subjects of legal actions falling within the ambit of the TCPA may
immediately put those bringing the action to the task of establishing “by clear and
specific evidence a prima facie case for each essential element of the claim in
question.” Id. § 27.005(c). And the burden to make the prima facie showing in this
case is enhanced by another rule of law designed to foster free—though perhaps
unpleasant—speech. That rule requires clear and specific proof by a plaintiff who is
a public figure that the defamatory statements were made with actual malice.
Here, the allegedly defamatory statements at issue were not made of whole
cloth—the public record demonstrates that although the trial court deferred an
adjudication of guilt, Fernandez had recently pleaded guilty to a charge of
2
misdemeanor theft. See Tex. Penal Code Ann. § 31.03(e)(3). Instead, Fernandez
challenges how Appellants characterized the disposition and nature of the offense that
no one disputes occurred. We agree that Appellants made statements that
mischaracterized both the disposition and the nature of the offense and that those
mischaracterizations appear blatant to lawyers and judges who devote themselves to
parsing the distinctions that Appellants misstated. But we do not analyze the
statements through a lens so finely tuned to the intricacies of the law. Our lens
focuses on whether the statements were substantially true as perceived by a person of
ordinary intelligence. And again, at the TCPA stage, Fernandez carries the burden to
establish by clear and specific prima facie proof that Appellants made the statements
while acting with actual malice.
These principles guide our resolution of this appeal in two ways. First,
analyzed through the lens of substantial truth perceived by a person of ordinary
intelligence, we conclude that the mischaracterization of the disposition of the
criminal offense was not defamatory. Second, we conclude that Fernandez failed to
present clear and specific evidence to make a prima facie showing that Appellants
mischaracterized the offense while acting with actual malice. But because Appellants
failed to challenge Fernandez’s claim for intentional infliction of emotional distress
(IIED) in their TCPA motion to dismiss or on appeal, we affirm in part and reverse
and remand in part.
3
II. BACKGROUND
A. Factual Background
This controversy began with a conflict between Fernandez and Janie Woodside
Joplin. Fernandez is a former councilmember of the City of Kennedale; Joplin is a
current councilmember of the City of Kennedale. According to Fernandez, his
relationship with Joplin has been problematic since 2016 when Joplin’s husband
“physically accosted” him, and Fernandez in turn filed charges against him.
Fernandez’s service as a councilmember ended in 2017 after legal troubles of
his own. While still a councilmember, he was charged with the offense of Class A
misdemeanor theft for allegedly stealing a silver bar worth more than $750 but less
than $2,500. See id. As part of a plea bargain, Fernandez pleaded guilty to the offense.
He was placed on deferred adjudication-community supervision, was fined $500, and
was ordered to pay court costs. Fernandez resigned from his position as a
councilmember around the same time that he pleaded guilty.
Fernandez claims that when he subsequently became involved in an effort to
obtain signatures to support a petition to recall Joplin (who had recently been elected
as a councilmember), Appellants and Joplin began “a smear campaign” against him by
using a variety of media to publish “false and defamatory statements”—that he is “a
convicted criminal” and a “known thief,” that he “committed robbery while being a
Kennedale city council member,” that “he lied when gathering signatures for a
Kennedale political campaign,” and that he took part in “corruption and cover-up.”
4
Fernandez also alleged that Elam stopped him in the middle of the road and began
filming him as an “intimidation tactic.”
B. Procedural Background
Fernandez filed a lawsuit against Appellants and Joplin, asserting claims for
statutory defamation by libel, common law defamation by libel and libel per se,
defamation by slander, and IIED.1 Fernandez also sought temporary and permanent
injunctive relief. Fernandez filed a supplement to his pleading in which he asserted a
claim against Appellants for conspiracy to defame.
Fernandez complained about the following communications from Appellants
that he contends are defamatory:
4.8 Defendants . . . falsely told two of Fernandez’s neighbors that Fernandez
was a convicted criminal. Said two neighbors were [formerly] friendly and
cordial to Fernandez, but they no longer speak with Fernandez since
Defendants made the false and defamatory statements. Elam has
stopped in the middle of the road and filmed Fernandez as an
intimidation tactic. Joplin, Elam[,] and Weber hired Palmer to assist
them in their harassing campaign against Fernandez.
4.9 Elam sent and published a bullying text message about Fernandez to
Erin Matthews on a Facebook group aimed at Kennedale residents. Always
the gentleman, in the message ‘internet tough-guy’ Elam insulted Ms.
Matthews in a threatening manner (warning said lady not to “run your
slobbering mouth”), and falsely stating that “Frank [Fernandez] is a
convicted criminal, he [committed] robbery while being a Kennedale city council
member.” Fernandez is not a convicted criminal, and has never even been
charged with (much less committed) robbery.
1
Fernandez eventually settled with Joplin and dismissed her from the lawsuit.
She is not a party to this appeal.
5
4.10 Elam, Joplin[,] and Weber posted false and defamatory statements
about Plaintiff on “Kennedale Voters Group[,”] an electronic Facebook group/forum
that Elam, Joplin, and Weber served as administrators for. Elam, Joplin,
and Weber caused a video to be published on Facebook’s Kennedale Voters Group,
bearing a heading “Mayor is Associated with convicted robber before and after being
found guilty[,”] which described the Kennedale Mayor’s association with
Fernandez, falsely stating that Fernandez was a “convicted robber” and had been
“found guilty[,”] neither of which were true.
....
4.12 Texas Debt Watch, an online Facebook group run by
Palmer, published a video online with the heading “Store Owner
Rejoices as Profits Go Back to Normal After Former City Councilman’s
Foiled Heist.” Said video, published by Palmer online, also described Fernandez as
a “known thief[,”] that “he stole from somebody[,”] and that he lied when gathering
signatures for a Kennedale political campaign. After receiving a criminal
trespassing warning from the Kennedale Police Department, Palmer also
implied on a Facebook video that [the] Mayor and Fernandez took part in
corruption and cover-up. [Emphasis added.]
Appellants filed a TCPA motion to dismiss, contending that Fernandez’s claims
were based on, related to, or in response to the exercise of their rights of free speech.2
See Tex. Civ. Prac. & Rem. Code Ann. § 27.003. Fernandez filed a response and
objections to Appellants’ declarations that were attached to their motion. The trial
court considered the motion to dismiss by submission before signing an order
indicating that it would sustain Fernandez’s objections to Appellants’ declarations,
2
Although Appellants’ TCPA motion to dismiss broadly stated that all of
Fernandez’s “claims” were based on, related to, and in response to their exercise of
their rights of free speech, the motion did not specifically assert that Fernandez’s
claims for IIED and conspiracy implicated the TCPA, nor did it challenge Fernandez
to set forth clear and specific evidence of the elements of these claims. The effect of
this is discussed in section (V)(D) of this memorandum opinion.
6
except that Appellants would be permitted to cure the formal defects in the
declarations.3 The order then stated that the failure to cure the defects would result in
the denial of the TCPA motion to dismiss but that if the defects were cured, the trial
court would grant the motion to dismiss.
Appellants filed “improved” declarations and submitted a proposed order
granting the motion to dismiss, but the trial court signed an order denying the motion.
The order stated that the trial court had considered “the pleadings, the evidence and
arguments of counsel,” and while the trial court acknowledged its prior order
indicating that it would grant the motion if the declarations’ formal defects were
cured, the trial court stated that it “undertook a complete review of the matter and
decided to [deny] the motion.”
III. ISSUES ON APPEAL
Appellants raise three issues challenging the denial of their TCPA motion to
dismiss: (1) the trial court erred by deciding that Fernandez’s defamation claims
3
It is worth mentioning that the trial court’s order included a footnote
suggesting to the parties that Texas Rule of Civil Procedure 166a(f)—the rule
concerning summary-judgment affidavits—was instructive for curing formal defects
in Appellants’ declarations. Although our analysis does not turn on the admissibility
of Appellants’ declarations, we mention that in a slightly different context, our
colleague, Justice Kerr, has expressed skepticism about the applicability of the
standards articulated in rule 166a in resolving a TCPA motion to dismiss, and we
adopt and reiterate that skepticism here as it relates to the admissibility of TCPA
affidavits. Cf. Mogged v. Lindamood, No. 02-18-00126-CV, 2018 WL 6920502, at *12–
14 (Tex. App.—Fort Worth Dec. 31, 2018, pet. filed) (mem. op.) (Kerr, J., dissenting
and concurring) (calling into doubt the applicability of rule 166a standards to resolve a
TCPA motion to dismiss).
7
against them are not based on, related to, or in response to the exercise of their rights
of free speech; (2) the trial court erred by deciding that Fernandez had established by
clear and specific evidence a prima facie case for each element of his defamation
claims, including that Appellants acted with actual malice because they contend
Fernandez is a public figure; and (3) the trial court erred by deciding that Appellants
had failed to establish by a preponderance of the evidence each element of their
defense to the defamation claims. Although he disagrees with each contention,
Fernandez focuses the majority of his brief on his contention that because he is no
longer a city councilmember, he should not be considered a public figure and
therefore should not be subjected to the heightened intent element of actual malice to
establish his defamation claims.
IV. STANDARD AND SCOPE OF REVIEW
We review a trial court’s ruling on a motion to dismiss under the TCPA
de novo. United Food & Commercial Workers Int’l Union v. Wal–Mart Stores, Inc., 430
S.W.3d 508, 511 (Tex. App.—Fort Worth 2014, no pet.). In our de novo review, “the
unique language of the TCPA” dictates that we decide the initial question of the
TCPA’s applicability based on a “holistic review of the pleadings.” Adams v. Starside
Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018). After resolving the initial
question of applicability, we review a trial court’s TCPA determination based on “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).
8
V. DISCUSSION
A. The Texas Citizens Participation Act
The TCPA “protects citizens from retaliatory lawsuits that seek to intimidate or
silence them on matters of public concern.” In re Lipsky, 460 S.W.3d 579, 586 (Tex.
2015) (orig. proceeding). 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.
“To effectuate the [TCPA’s] purpose, the [l]egislature 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). Under the first step,
a movant [defendant] seeking to prevail on a motion to dismiss under
the TCPA has the burden to “show . . . by a preponderance of the
evidence that the [nonmovant’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.”4
Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 872 (Tex. App.—Austin 2018, pet. filed)
(quoting Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)). The Supreme Court of
Texas holds that because the basis of a legal action is determined by the plaintiff’s
4
The TCPA provides specific definitions for each of the rights it protects. See
Tex. Civ. Prac. & Rem. Code Ann. § 27.001(2)–(4).
9
allegations, “[w]hen it is clear from the plaintiff’s pleadings that the action is covered
by the Act, the defendant[s] need show no more” to satisfy the first step of the TCPA
analysis and bring themselves within the TCPA’s protections. Hersh v. Tatum, 526
S.W.3d 462, 467 (Tex. 2017).
“Under the second step, if the trial court determines that the movant
[defendant] has met his burden to show that the TCPA applies, the burden shifts to
the nonmovant [plaintiff] to establish ‘by clear and specific evidence a prima facie case
for each essential element of the claim in question.’” Grant, 556 S.W.3d at 872–73
(quoting Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c)). A “prima facie case” refers
to “evidence sufficient as a matter of law to establish a given fact if it is not rebutted
or contradicted.” Lipsky, 460 S.W.3d at 590. It is the “minimum quantum of
evidence necessary to support a rational inference that the allegation of fact is true.”
Id. Clear and specific evidence ultimately means that the “plaintiff must provide
enough detail to show the factual basis for its claim.” Id. at 591.
But even if the nonmovant/plaintiff satisfies this step-two burden and presents
a prima facie case by clear and specific evidence, “the trial court must dismiss the legal
action if the [defendant] establishes by a preponderance of the evidence each essential
element of a valid defense to the [plaintiff’s] claim.” Grant, 556 S.W.3d at 873
(internal quotation marks omitted); see Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d)
(“Notwithstanding the provisions of Subsection (c), the court shall dismiss a legal
10
action against the moving party if the moving party establishes by a preponderance of
the evidence each essential element of a valid defense to the nonmovant’s claim.”).
Finally, the TCPA provides that if the trial court grants a TCPA motion to
dismiss, it “shall” award the moving party
(1) court costs, reasonable attorney’s fees, and other expenses incurred in
defending against the legal action as justice and equity may require; and
(2) sanctions against the party who brought the legal action as the court
determines sufficient to deter the party who brought the legal action
from bringing similar actions described in this chapter.
Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a). Our court has held that “[a]lthough
the trial court [is] required by section 27.009[(a)(2)] to award some amount of
sanctions, it ha[s] the discretion to award only a nominal amount, such as $1.00,” as
long as the mandatory award of attorney’s fees and costs is already sufficient to deter
the plaintiff from bringing similar actions. Rich v. Range Res. Corp., 535 S.W.3d 610,
613, 615 (Tex. App.—Fort Worth 2017, pet. denied).
B. Analysis of Step One
In their first issue, Appellants argue that the trial court erred by concluding that
they had failed to establish their step-one burden—that is, Appellants contend that
they established by a preponderance of evidence that Fernandez’s lawsuit is based on,
relates to, or is in response to their exercise of their rights of free speech. See Tex.
Civ. Prac. & Rem. Code Ann. § 27.005(b). We agree. The lawsuit is related to the
11
right of free speech because it involved communications made in connection with a
matter of public concern.
The TCPA defines the “exercise of the right of free speech” as consisting of “a
communication made in connection with a matter of public concern.” Id. § 27.001(3).
The TCPA defines a “matter of public concern” as including 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). The TCPA defines a “communication” as “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).
Fernandez does not argue that the statements to his neighbors or those
contained in the videos, Facebook message, and postings are not “communications”
as defined by the TCPA, and our research reveals no reason to conclude otherwise.
See id.; Smith v. Crestview NuV, LLC, 565 S.W.3d 793, 798 (Tex. App.—Fort Worth
2018, pet. filed) (explaining that the breadth of the TCPA’s definition of
communication extends the application of the TCPA to “[a]lmost every imaginable
form of communication, in any medium” (quoting Adams, 547 S.W.3d at 894)). Thus,
we focus our analysis on whether the communications were made in connection with
a “matter of public concern.”
Fernandez’s defamation claims are predicated on statements to Fernandez’s
neighbors that he was a “convicted criminal”; the message that Fernandez is a
12
convicted criminal who committed “robbery”; posting a video on a Facebook group
page and captioning it with the statement that Fernandez is a “convicted robber” who
had been “found guilty”; posting a video on a different Facebook group page stating
that Fernandez was a “known thief” who “stole from somebody”; the video itself
which stated that Fernandez had engaged in a “failed robbery”; and the insinuations in
the video that Fernandez was part of “corruption” and a “cover-up” when he
resigned from city council and that he had lied while gathering signatures for a
political campaign. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). Thus,
Fernandez’s pleading establishes that his defamation claims are based on, related to,
or are in response to communications. See Cavin v. Abbott, 545 S.W.3d 47, 69 (Tex.
App.—Austin 2017, no pet.) (concluding that the plaintiffs’ claims “relate to” the
defendants’ “exercise of the right of free speech” because “there is some sort of
connection, reference, or relationship” between the claims and the exercise of the
right of free speech).
We agree with Appellants that the challenged statements are communications
made in connection with a matter of public concern because they were made during a
political contest—i.e., a petition to recall an elected councilmember—and because
they are related to the charge and prosecution of Fernandez for the crime of theft
while he was a city councilmember, as well as to the circumstances surrounding his
resignation from the city council. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7);
Lane v. Franks, 573 U.S. 228, 241, 134 S. Ct. 2369, 2380 (2014) (explaining that
13
“[s]peech involves matters of public concern when it can be fairly considered as
relating to any matter of political . . . concern to the community” (internal quotation
marks omitted)); Adams, 547 S.W.3d at 896, 898 (holding appellate court erred in
concluding that defendants failed to meet their step one TCPA burden, in part,
because plaintiff’s allegation that a developer and HOA repeatedly violated the law
and engaged in corrupt or criminal activity is a matter of public concern); Brady v.
Klentzman, 515 S.W.3d 878, 884 (Tex. 2017) (“Public matters include, among other
things, ‘commission of crime, prosecutions resulting from it, and judicial proceedings
arising from the prosecutions.’” (quoting Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492,
95 S. Ct. 1029, 1045 (1975))).
Therefore, because we conclude that Appellants satisfied their burden under
step one and demonstrated by a preponderance of evidence that Fernandez’s
defamation claims are based on, related to, or in response to Appellants’ exercise of
their right of free speech, we sustain Appellants’ first issue.5
C. Analysis of Step Two
Having concluded that Appellants satisfied step one, we now turn to
Appellants’ second issue—that Fernandez failed to carry his burden and establish by
Because we reach this conclusion based solely on Fernandez’s pleadings, we
5
need not resolve the objections to and the issue of the admissibility of Appellants’
declarations. See Tex. R. App. P. 47.1; Hersh, 526 S.W.3d at 467 (“When it is clear
from the plaintiff’s pleadings that the action is covered by the Act, the defendant need
show no more.”); DeAngelis v. Protective Parents Coal., 556 S.W.3d 836, 850 (Tex.
App.—Fort Worth 2018, no pet.).
14
clear and specific evidence a prima facie case for each essential element of his
defamation claims.
“To maintain a cause of action for defamation, the plaintiff must establish that
the defendant (1) published a false statement about the plaintiff; (2) that was
defamatory; (3) while acting with either actual malice, if the plaintiff was a public
official or public figure, or negligence, if the plaintiff was a private individual,
regarding the truth of the statement.” Grotti v. Belo Corp., 188 S.W.3d 768, 774 (Tex.
App.—Fort Worth 2006, pet. denied); see also Lipsky, 460 S.W.3d at 593; WFAA-TV,
Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Ghrist v. MBH Real Estate LLC,
No. 02-17-00411-CV, 2018 WL 3060331, at *4 (Tex. App.—Fort Worth June 21,
2018, no pet.) (mem. op.). Fernandez’s burden turns on whether he occupied the
status of a public figure at the time of publication of Appellants’ statements, which we
conclude that he did.
1. Public Figure or Public Official Status
To succeed on a defamation claim, private plaintiffs must prove that the
defendant was at least negligent, whereas public officials and public figures must
establish a higher degree of fault—they must prove that the defendant published a
defamatory falsehood with actual malice, that is, with “knowledge that it was false or
with reckless disregard of whether it was true or not.” Neely v. Wilson, 418 S.W.3d 52,
69 (Tex. 2013); see also New York Times Co. v. Sullivan, 376 U.S. 254, 279–80, 84 S. Ct.
710, 726 (1964); New Times, Inc. v. Isaacks, 146 S.W.3d 144, 162 (Tex. 2004).
15
In a defamation context, “the ‘public official’ designation applies at the very
least to those among the hierarchy of government employees who have, or appear to
the public to have, substantial responsibility for or control over the conduct of
governmental affairs.” Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S. Ct. 669, 676 (1966). A
public official’s position “must be one which would invite public scrutiny and
discussion of the person holding it, entirely apart from the scrutiny and discussion
occasioned by the particular charges in controversy.” Id. at 86 n.13, 86 S. Ct. at 677
n.13. While not every public employee is a public official, the rule is not limited to the
upper echelons of government. Villarreal v. Harte–Hanks Commc’ns, Inc., 787 S.W.2d
131, 134 (Tex. App.—Corpus Christi 1990, writ denied).
Elected city councilmembers and candidates for city council are public officials.
See Schofield v. Gerda, No. 02-15-00326-CV, 2017 WL 2180708, at *12 (Tex. App.—
Fort Worth May 18, 2017, no pet.) (mem. op.) (“[A] ‘public official’ includes anyone
who holds, by election or appointment, a public office.”); Colson v. Grohman, 24 S.W.3d
414, 420 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (same); Ross v. Labatt,
894 S.W.2d 393, 395 (Tex. App.—San Antonio 1994, writ dism’d w.o.j.) (same).
Although the parties disagree as to whether Fernandez was still a city councilmember
at the time of the allegedly defamatory statements, it is undisputed that Fernandez was
a city councilmember from 2011 through at least 2017. Thus, Fernandez was a public
official while he was a city councilmember and a candidate for city council. See
Schofield, 2017 WL 2180708, at *12.
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But according to Fernandez’s affidavit testimony, he resigned from city council
on May 2, 2017, and all of the disputed statements occurred after his resignation. So,
we must decide if Fernandez as a former public official was still a public figure or if he
lost that status after resigning from his public office. Because neither the parties’
briefs nor our research revealed that any Texas courts have addressed this issue, we
will look to federal case law for guidance. Cf. McLemore, 978 S.W.2d at 571–72
(adopting the Fifth Circuit’s three-part test in defamation case to assess whether an
individual is a limited-purpose public figure); Schofield, 2017 WL 2180708, at *12 (“In
this [public figure] determination, federal, not state, standards apply.”).
The Supreme Court of the United States has not yet decided “whether or when
an individual who was once a public figure may lose that status by the passage of
time.” Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 166 n.7, 99 S. Ct. 2701, 2706
n.7 (1979). However, both the United States Supreme Court and the Fifth Circuit
Court of Appeals have suggested that “there may be cases where a person is so far
removed from a former position of authority that comment on the manner in which
he performed his responsibilities no longer has the interest necessary to justify the
New York Times rule.” Rosenblatt, 383 U.S. at 87 n.14, 86 S. Ct. at 676 n.14; Belli v.
Orlando Daily Newspapers, 389 F.2d 579, 588 (5th Cir. 1967) (quoting Rosenblatt).
In Zerangue v. TSP Newspapers, Inc., the Fifth Circuit considered and rejected the
plaintiffs’ contention “that the passage of nearly six years between their discharge
[from public office] and the publication of the two [allegedly defamatory] articles had
17
returned them to private figure status.” 814 F.2d 1066, 1069 (5th Cir. 1987). The
Fifth Circuit noted that the plaintiffs “cite[d] no cases holding that public official
status erodes with the passage of time.” Id. Indeed, the Fifth Circuit recognized that
other jurisdictions have held that “ex-public officials must prove that ‘actual malice’
prompted speech concerning their in-office activities.” See id. (collecting cases); cf.
Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 435–36 (5th Cir. 1987) (concluding
that once an individual becomes a public figure, he “cannot erase his public-figure
status by limiting public comment and maintaining a low public profile”).
We agree with this reasoning and hold that based on the specific facts of this
case, Fernandez, as a former public official, was a public figure with respect to the
publication of the challenged statements because such a short time (less than one
year) had passed between his resignation and the allegedly defamatory statements, and
because the statements related to his conduct while he was a public official as well as
his resignation from city council and his subsequent activity and involvement in the
political campaign to recall Joplin.6 See Scruggs v. City of Bowie, No. 7:14-cv-00129-O,
2015 WL 13450692, at *4 (N.D. Tex. Dec. 17, 2015) (order) (holding former police
6
In support of his position that he is not a public figure, Fernandez primarily
relies upon Foster v. Laredo Newspapers, Inc., a case from the Supreme Court of Texas,
for the proposition that for a former public official to be considered a public figure,
the allegedly defamatory statements must clearly relate to the former official’s conduct
as a councilmember. 541 S.W.2d 809 (Tex. 1976). Fernandez’s reliance on Foster is
misplaced because Fernandez’s petition specifically alleges that Appellants “falsely
stat[ed] that ‘Frank [Fernandez] is a convicted criminal, he [committed] robbery while
being a Kennedale city council member.’” [Emphasis added.]
18
officer was still public figure with respect to defamation claims stemming from
published statements in press release after his termination).
Accordingly, in step two of the TCPA analysis, Fernandez must establish that
Appellants made the allegedly defamatory statements under the actual malice
standard.
2. First Element – Falsity of Statements
There is no dispute that the challenged statements made in a Facebook
message, in Facebook video captions, and in the videos themselves were published.
Therefore, we focus our analysis of the first element on whether Fernandez set forth
clear and specific evidence that the statements were false. Bentley v. Bunton, 94 S.W.3d
561, 586–87 (Tex. 2002) (explaining that when the plaintiff is a public official, he must
initially prove that defamatory statements made about him were false and thus it is not
the defendants’ burden to prove the truth of their statements as an affirmative
defense).
With respect to the first element, a publication is false if it “is not substantially
true.” Neely, 418 S.W.3d at 63; Rodriguez v. Gonzales, No. 14-17-00667-CV, 2018 WL
6614153, at *3 (Tex. App.—Houston [14th Dist.] Dec. 18, 2018, no pet. h.) (quoting
Neely for the proposition that “[r]egarding the first element, a publication is false if it
‘is not substantially true’”). A publication is not substantially true if, taken as a whole,
it is more damaging to the plaintiff’s reputation than a truthful publication would have
been. See Neely, 418 S.W.3d at 63. “A publication’s meaning is determined ‘by
19
construing the publication or broadcast [“]as a whole in light of the surrounding
circumstances based upon how a person of ordinary intelligence would perceive
it.[”]’” Rodriguez, 2018 WL 6614153, at *3 (quoting KBMT Operating Co., LLC v. Toledo,
492 S.W.3d 710, 721 (Tex. 2016)). In other words, we determine falsity by first
ascertaining the “gist” of the publication. See Neely, 418 S.W.3d at 63–64. The
supreme court has recently affirmed that “it does not matter whether the gist of the
article is analyzed before or after the individual statements, as long as it is assessed
independently.” Dallas Symphony Ass’n, Inc. v. Reyes, No. 17-0835, 2019 WL 1090771,
at *7 (Tex. Mar. 8, 2019).
a. Elam’s statements
Elam’s first statement that Fernandez complains of was in the following
Facebook message:
You are another fake supporter . . . do you know something I don’t?
What arrest record? Teach me, before you run your slobbering mouth
and try to speak my name, you may wish to do some research yourself.
All of the arrest records were staged by the police for undercover work
with the Dallas Police & County task force back in the seventies and
eighties, You are so quick to put a noose around my neck without
knowing the facts. Such fools. No I was not ever into drugs, I am a
happily married man with an upstanding record here in Kennedale for
the 24 years that we have lived here. You people are so delirious and ate
up with hate. Frank is a convicted criminal, he commite [sic] robbery while being a
Kennedale city council member. . . . another history lesson about the crimes
right here in Kennedale. Your group you foolish person, one member
was arrested for stealing over $50,000 from Kennedale while in public
office here in Kennedale and another for putting his hands all over
young teenage girls while he was also in office here in Kennedale. Now
lets [sic] look at my past, I grew up in the heart of Oak Cliff, went to
public schools there. Never got in any trouble as a teen. I went and
20
Joined the Army when I was 18, came out got married, did end up
getting a divorce, I got custody of my daughter and was a single parent.
[Emphasis added.]
Fernandez also complains that Elam posted a video on a Facebook group page
and captioned the video with the word “convicted” and suggested that Fernandez was
a “convicted robber” who had been “found guilty.”
b. Palmer’s statements
Fernandez complains about a statement from Palmer in the beginning of a
video, in which Palmer stated that he was updating “the story we posted two weeks
ago involving disgraced former Kennedale city councilmember Frank Fernandez and
his failed robbery of [a] coin shop.” [Emphasis added.] Fernandez also complains that
Palmer stated that Fernandez is a “known thief” who “stole from somebody,” that
Fernandez lied while gathering signatures for a political campaign, and that he took
part in “corruption” and a “cover-up.”
c. Weber’s statements
Fernandez’s complaint regarding Weber is that he is liable as the administrator
of the Facebook group where the allegedly defamatory statements were published.
d. The gist
“convicted criminal” who was “found guilty”
Although Fernandez complains about several different statements from Elam
and Palmer, the main thrust of Fernandez’s complaint appears to be the statements
that he is a convicted criminal who had been found guilty of robbery when Fernandez
21
maintains that he has not been charged with robbery and that he has not been
convicted of any crime.
To be sure, Fernandez was not “convicted” of theft of the silver bar. A
conviction is defined as “[t]he act or process of judicially finding someone guilty of a
crime; the state of having been proved guilty.” Conviction, Black’s Law Dictionary
(10th ed. 2014). In Fernandez’s case, there was no trial with the State admitting
evidence establishing proof of his guilt, a jury verdict of guilty, or a final judgment
providing the same. Indeed, the order of deferred adjudication expressly states,
“Adjudication of Guilt Deferred.”
However, Fernandez did plead guilty to the offense of theft of more than $750
but less than $2,500, he received twenty months of community supervision, and he
had to pay a $500 fine plus court costs. As we noted, the test we apply is not one that
makes a clear demarcation of black and white between a statement being true or false.
The standard is deciding when a statement becomes so grey that it becomes
actionable. We test the defamatory character of the statement by taking it as a whole
and looking at it through the lens of a person of average intelligence. Our goal is to
decide whether, to that person of average intelligence, the statement made is more
damaging than the truth would have been, and even statements that exaggerate may
still be substantially true through that lens:
“The test used in deciding whether a statement is substantially true
involves considering whether the alleged defamatory statement was more
damaging to the plaintiff’s reputation, in the mind of the average listener,
22
than a truthful statement would have been. This evaluation involves
looking to the “gist” of the statement.” Austin[ v. Inet Techs., Inc.], 118
S.W.3d[ 491,] 496 [(Tex. App.—Dallas 2003, no pet.)] (citing McIlvain v.
Jacobs, 794 S.W.2d 14, 16 (Tex. 1990)); see also Turner v. KTRK Television,
Inc., 38 S.W.3d 103, 115 (Tex. 2000) (noting “the substantial truth
doctrine precludes liability for a publication that correctly conveys a
story’s ‘gist’ or ‘sting’ although erring in the details”); Langston v. Eagle
Printing Co., 797 S.W.2d 66, 69 (Tex. App.—Waco 1990, no writ) (stating
a publication is substantially true even if it “greatly exaggerate[s]”
plaintiff’s misconduct, as long as “an ordinary reader would not attach
any more opprobrium to the plaintiff’s conduct merely because of the
exaggeration”).
Ruder v. Jordan, No. 05-14-01265-CV, 2015 WL 4397636, at *3 (Tex. App.—Dallas
July 20, 2015, no pet.) (mem. op.).
We have found three cases that deal with a situation analogous to the statement
that we review.
A federal district court in Texas has resolved a similar set of facts in which a
plaintiff had sued a news outlet for defamation when the outlet ran a story that the
plaintiff had been “convicted” of “a crime that was sexual in nature.” Williams v.
Cordillera Commc’ns, Inc., 26 F. Supp. 3d 624, 631 (S.D. Tex. 2014). In that case, the
plaintiff had not been convicted of a crime but had confessed to the crime of
telephone harassment, signed a written plea of guilty to the charge, and had entered
into a deferred prosecution agreement. Id. This resolution punitively required him to
stay away from the victim, to pay restitution, and to obtain therapy from a sex
offender therapist. Id. at 632. The federal district court reasoned that “[w]hile [the
plaintiff] was not convicted of a crime, he confessed to the crime and was punished
23
for it,” so “[t]he damaging issue in the mind of an ordinary viewer with respect to [the
plaintiff’s] reputation [of] guilt and [the news outlet’s] statement that [the plaintiff] had
been convicted did not carry a heavier sting than the truth of his confessed guilt.” Id.
Therefore, the federal court concluded, “The statement that [the plaintiff] was
convicted was substantially true.” Id.
A federal district court in Tennessee that was presented with a similar argument
reached a similar conclusion. There, the plaintiff claiming defamation asserted that he
pleaded guilty and received “Judicial Diversion” and that “[d]eferral is not the same
thing as being a ‘Convicted Felon’ [so] the news reports were not true and not entitled
to protection under the truth defense.” Molthan v. Meredith Corp., No. 3:17-CV-00380,
2018 WL 691338, at *4 (M.D. Tenn. Feb. 2, 2018), report and recommendation adopted,
No. 3:17-CV-00380, 2018 WL 2387235 (M.D. Tenn. May 25, 2018), appeal dismissed,
No. 18-5664, 2018 WL 4621952 (6th Cir. Aug. 17, 2018). More specifically,
Plaintiff contends that judicial diversion precludes an adjudication of
guilt and he maintains that “although the meaning [of conviction] differs
based on context, [ ] it generally refers to a step in the judicial process,
namely the “Verdict” phase (finding of guilt).” He explains that because
he “never reached a ‘Verdict’ or ‘Finding of Guilt’ in his criminal case
and instead received Judicial Diversion, it would appear certain that he
has been immunized from the characterization of ‘Convicted Felon’ in
all instances except those enumerated within the statute itself.
Id. at *5 (internal citation omitted). The United States Magistrate Judge recommended
dismissal of the plaintiff’s defamation claim, and in adopting the recommendation
over the plaintiff’s objections, the United States District Judge concluded that
24
“Plaintiff’s distinction between being ‘convicted’ and ‘pleading guilty’ to later receive a
deferred conviction is immaterial for purposes of this case.” Molthan, 2018 WL
2387235, at *2.
Finally, a federal district court in Virginia similarly granted summary judgment
on a plaintiff’s claim that he had been defamed when the defendants “portrayed him,
through constant telephone calls and letters, to other members of the . . . community
as a ‘convicted felon.’” Carpenter v. Drechsler, Civ. A. No. 89-0066-H, 1991 WL
332766, at *3 (W.D. Va. May 7, 1991) (mem. op.), aff’d, 19 F.3d 1428 (4th Cir. 1994).
Interestingly, the alleged conviction had occurred in Texas, and the plaintiff argued
that because “a final adjudication of his guilt in the Texas proceedings was deferred
pending his successful completion of ten years on probation without further criminal
incident, . . . he is not a convicted felon and that characterizing him as such is patently
defamatory.” Id. In a footnote, the district court more fully explained the legal
subtleties of the plaintiff’s objection:
[T]he plaintiff’s objection to the label “convicted felon” seems to be
grounded in the fact that, in the Texas criminal proceeding, he pled
guilty to the aggravated-promotion-of-prostitution charge under a plea
agreement whereby a final “adjudication of his guilt would be deferred”
as long as he completed his probation period without further criminal
incident.
Id. at *6 n.6.
The district court rejected this argument and concluded that although in some
“hyper-technical sense,” the statement that “the plaintiff is a ‘convicted felon,’ when
25
he is only a ‘confessed felon,’ may not fully incorporate all of the subtleties of the plea
agreement into which he entered with the prosecution,” there is nothing “substantially
inaccurate about the statement and, as a matter of law, cannot subject the defendants
to any type of liability for defamation.” Id.
We find the reasoning of these federal district courts persuasive and applicable
to our case. While a licensed attorney may be able to distinguish a guilty plea with an
order of deferred adjudication from a conviction, we believe the average reasonable
person would not. That is, the statements that Fernandez was a “convicted” criminal
are no more damaging than if Appellants had more accurately stated that Fernandez
pleaded guilty to the charge of misdemeanor theft and that the trial court deferred a
finding of guilty, placed Fernandez on deferred adjudication-community supervision,
and ordered him to pay a $500 fine. See Provencio v. Paradigm Media, Inc., 44 S.W.3d 677,
681 (Tex. App.—El Paso 2001, no pet.) (“[A] statement is substantially true if it is no
more damaging than a true statement would have been.”); Rogers v. Dallas Morning
News, Inc., 889 S.W.2d 467, 472–73 (Tex. App.—Dallas 1994, writ denied).
We appreciate the dissent’s perspective on this issue but believe that the
perspective that we adopt is the proper one. The dissent begins with an accurate and
thorough discussion of the Texas Code of Criminal Procedure and the distinctions
found in the law between those convicted of a crime and those who have received
deferred adjudication. The statement that Fernandez had been convicted of a crime is
not true. But the dissent concludes that the distinctions highlighted in the code of
26
criminal procedure and that we as lawyers and judges deal with everyday are apparent
to “those of us who are ‘ordinary’” and that the mischaracterization of Fernandez’s
status makes the statement grey enough—not substantially true enough—to be
actionable. We have cited three cases applying the person-of-ordinary-intelligence
standard that reach the opposite conclusion. Though they are not precedents that
bind us, we do find them persuasive.
The dissent also suggests that we resolve this case with an approach that
improperly parses the statements at issue by looking at words such as “convicted” in
isolation and not in the context of the full phrase used, such as “convicted robber.”
Part of that emphasis comes from the approach adopted by Fernandez’s counsel
when he sent his cease-and-desist letter that we will discuss in detail below. That
letter focused on the suggestion that Fernandez had been convicted of a crime. With
that focus, we found it reasonable to focus initially on the sting of the word
“convicted” in isolation. And, as explained above, the supreme court has recently
affirmed that individual statements may be assessed before analyzing the gist, as long
as the gist is independently analyzed. Dallas Symphony Ass’n, Inc., 2019 WL 1090771, at
*7. 7
In a footnote, the dissent highlights that Appellants’ declarations state that “I
7
am aware that there are some legal processes that treat ‘deferred adjudication’ similar
to ‘convicted.’” These statements are vague, but we do not view them as a confession
that Appellants ignored the legal distinction, nor do they alter how a person of
ordinary intelligence would view the use of the word “convicted.”
27
Also, we note below that we do find the suggestion that Fernandez was a
robber to not be substantially true, but that is because of the additional element of
bodily injury or threatening bodily injury that the offense connotes. It is that
distinction that we find central and not any additional sting that results from the
failure to distinguish between a convicted robber and one who received deferred
adjudication.
Therefore, because the gist of the statements—that Fernandez was a
“convicted criminal”—is substantially true, we conclude that Fernandez did not carry
his burden under step two for his defamation claims based on these statements.
“known thief” who “stole from somebody”
Fernandez also asserts a defamation claim for a video posted by Palmer, which
described Fernandez as a “known thief” who “stole from somebody.” It is
undisputed that Fernandez was charged with theft of property of more than $750 but
less than $2,500. The charging instrument, which was attached to Fernandez’s
petition, specifies that Fernandez was alleged to have “unlawfully appropriate[d] by
acquiring or otherwise exercising control over property, namely a silver bar, of the
value of $750 or more, but less than $2,500, with intent to deprive the owner . . . of
the property.”
As we explained above, Fernandez pleaded guilty to this offense and as part of
his plea, he was placed on twenty months’ deferred adjudication-community
supervision and was ordered to pay a fine of $500 plus court costs. Viewing the
28
allegations in the charging instrument in connection with Fernandez’s guilty plea, fine,
and terms of community supervision, we conclude that the gist of the statements—
that Fernandez was a “known thief” who “stole from somebody”—is substantially
true and, to any degree, no more damaging than a true statement would have been.
See Provencio, 44 S.W.3d at 682; Rogers, 889 S.W.2d at 472. Thus, Fernandez did not
carry his burden under step two for his defamation claims based on these statements.
“committed robbery,” “convicted robber,” “failed robbery”
But Appellants did not simply call Fernandez a “convicted criminal” or a
“known thief.” Fernandez alleges that Elam posted a message on a Facebook group
page stating that Fernandez had “commite [sic] robbery” and captioned a video on a
different Facebook group page, which stated that Fernandez is a “convicted robber
[who had] be[en] found guilty.” And Palmer stated in a video that Fernandez had
engaged in a “failed robbery.”
Theft—what Fernandez was actually charged with—and robbery are related
but distinct offenses. Compare Tex. Penal Code Ann. § 31.03(a) (defining theft), and
Webster’s Third New Int’l Dictionary 2369 (2002) (defining theft as “the felonious taking
and removing of personal property with intent to deprive the rightful owner of it”),
with Tex. Penal Code Ann. § 29.02(a) (providing elements for the offense of robbery,
which include theft), and Webster’s Third New Int’l Dictionary 1964 (defining robbery as
“a larceny from the person or immediate presence of another by violence or threat of
violence”). Specifically, robbery incorporates theft and adds to it an element of
29
intentionally, knowingly, or recklessly causing bodily injury to another or threatening
bodily injury to another. See Cooper v. State, 430 S.W.3d 426, 430–31 (Tex. Crim. App.
2014) (Keller, J., concurring) (“The requirement that there be theft activity is a
common element to the different statutory methods of committing robbery.”).
So while robbery and theft are “closely related crimes,” the “distinction
between the two offenses lies in the antecedent violence, either actual or threatened,
which is perpetrated on the victim of the robbery.” Ex parte Evans, 530 S.W.2d 589,
591 (Tex. Crim. App. 1975); Mann v. Scott, 41 F.3d 968, 977 (5th Cir. 1994) (explaining
that in Texas, “[r]obbery, by statutory definition, is essentially ‘theft plus’—namely, it
is theft accomplished by the use of physical force or threats of bodily injury”).
Because of the requirement of antecedent violence, either actual or threatened, against
an individual, the offense of robbery necessarily implicates another flesh-and-blood
person, whereas theft may be committed against businesses or entities. Cf. United
States v. Davis, 487 F.3d 282, 286 (5th Cir. 2007) (“To commit robbery, an individual
must interact with the victim in order to cause bodily injury or place the victim in fear
of it.”); Scott v. Tanner, No. 01-02-00668-CV, 2003 WL 22862806, at *1 n.1 (Tex.
App.—Houston [1st Dist.] Dec. 4, 2003, no pet.) (mem. op.) (recognizing “that
people, not parks, are ‘robbed’” despite parties’ erroneous use of the term “robbed”).
In light of the foregoing, we conclude that Elam’s statements that Fernandez is
a convicted “robber” who was “found guilty” and that he “[committed] robbery” and
Palmer’s statement that Fernandez engaged in a “failed robbery” suggest that in
30
addition to theft, he intentionally, knowingly, or recklessly caused or attempted to
cause another bodily injury. Indeed, by calling Fernandez a convicted “robber” who
had engaged in a “failed robbery,” Elam’s and Palmer’s statements have falsely
imputed to Fernandez the additional act of committing or attempting to commit
violence or threatening violence against a person. See Davis, 487 F.3d at 287
(concluding robbery offense under Texas statute qualifies as a violent felony under
federal law because a violation of the statute “poses a substantial risk of violent
confrontation, [and] there is a substantial risk that physical injury will result”).
Fernandez was not charged with nor did he plead guilty to robbery. Rather, he was
charged with and pleaded guilty to the misdemeanor theft of a silver bar.
Therefore, the gist of Elam’s statements referring to Fernandez as a “robber”
and the allegation that he was “found guilty” of “robbery” and Palmer’s statement
that Fernandez attempted a “failed robbery” was not substantially true because the
statements were more damaging than the true statements that Fernandez was charged
with misdemeanor theft and pleaded guilty to it. See Campbell v. Clark, 471 S.W.3d
615, 627 (Tex. App.—Dallas 2015, no pet.) (concluding defamation plaintiff satisfied
his step-two burden under the TCPA and established by a preponderance of evidence
that “statements in [an] article and mailer—including statements . . . that accused [the
plaintiff] of corruption in obstructing justice—were presented as objectively
verifiable” and thus defamatory). Fernandez carried his step-two burden with respect
to these statements.
31
“corruption” and “cover-up”
Fernandez’s next allegation concerns Palmer’s statements in the videos and
their suggestion of “corruption” and “cover-up” regarding Fernandez’s resignation
from the city council. Specifically, Palmer attempts to tie together Fernandez’s arrest,
a quote from the mayor in an article in the Fort Worth Star-Telegram in which the mayor
stated that Fernandez had tendered a resignation letter, subsequent statements from
the mayor and Fernandez that Fernandez had verbally resigned due to health reasons,
and the mayor’s subsequent refusal to speak to Palmer at a public event at which
Palmer claims he received a criminal trespass warning at the mayor’s urging. Because
Fernandez apparently continued to be an active supporter of the mayor and because
Palmer claims that city employees told him that Fernandez’s resignation letter was
“sealed,” Palmer theorized that there was “corruption” and a “cover-up” to conceal
from the public the real reason Fernandez resigned—his arrest for theft of the silver
bar.
“A defamatory statement must be directed at the plaintiff as an ascertainable
person to be actionable.” Vice v. Kasprzak, 318 S.W.3d 1, 13 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied). Moreover, “[t]he false statement must point to the
plaintiff and no one else.” Klentzman v. Brady, 456 S.W.3d 239, 254 (Tex. App.—
Houston [1st Dist.] 2014), aff’d, 515 S.W.3d 878 (Tex. 2017).
Although it is obvious that Fernandez may enjoy some benefit from the alleged
“cover-up” and “corruption”—i.e., less publicity of his arrest—and it is plausible that
32
Fernandez may have asked the city to seal his resignation letter or otherwise downplay
the relationship between his arrest and resignation, the gist of the statements when
read together in light of the surrounding circumstances suggests that they are directed
not at Fernandez but at the mayor. Fernandez was helping the mayor’s election
campaign, so the benefit of any alleged “corruption” or “cover-up” would primarily
benefit the mayor. Moreover, it is unclear how Fernandez could engage in any
“corruption” or “cover-up” when he was no longer a councilmember at the time of
the alleged “corruption” and “cover-up.” Finally, the video refers to a newspaper
quote from the mayor that Fernandez had tendered a resignation letter and then
shows Palmer questioning the mayor following a public meeting, ostensibly to expose
that the mayor is covering up the real reason for Fernandez’s resignation.
Therefore, we conclude that the statements about “corruption” and a “cover-
up” are not actionable false statements about Fernandez because the gist of the
statements is directed not at Fernandez, but at the mayor for allegedly engaging in
“corruption” and a “cover-up” in order to protect a political supporter and campaign
worker. Fernandez failed to carry his step-two burden.
“lied when gathering signatures for a Kennedale political
campaign”
Fernandez’s final allegation concerns Palmer’s statement that Fernandez lied
when gathering signatures for the petition to recall Joplin. Although the statement
appears several times throughout the record, the allegation of lying when gathering
33
signatures is, in every instance but one, directed at a “paid consultant,” not Fernandez.
Thus, these statements cannot support the first element of Fernandez’s defamation
claim because the allegation of lying is directed at the “paid consultant,” not
Fernandez. See id.
However, at the end of one of the videos, Palmer asks a Kennedale resident
what she thinks about Fernandez “gathering signatures, telling people lies in order to get
them to sign the petition.” [Emphasis added.] While calling someone a liar or a crook in a
general sense is not defamatory on its face, Palmer specified that Fernandez had lied
to obtain signatures for the recall petition, so Palmer’s statement that Fernandez was
“telling people lies in order to get them to sign the [recall] petition” could be an
actionable false statement. See Billington v. Houston Fire & Cas. Ins. Co., 226 S.W.2d
494, 496 (Tex. App.—Fort Worth 1950, no writ) (holding words such as “liar” and
“crook” in isolation are not actionable per se). But unlike other portions of his
affidavit, Fernandez does not specifically dispute the allegation that he told lies in
order to get people to sign the recall petition. Thus, Fernandez has failed to provide
clear and specific evidence of the first element of his defamation claim that Palmer’s
statement that Fernandez lied to get people to sign the recall petition is false.
Having determined that Fernandez only set forth clear and specific evidence of
the first element of his defamation claims with respect to Elam’s statements that
Fernandez is a “convicted robber” who was “found guilty” and that he had
committed “robbery,” and Palmer’s statement that Fernandez engaged in a “failed
34
robbery,” we next analyze whether Fernandez carried his step-two burden of the
second element of defamation for these statements.
3. Second Element – Defamatory Statement
A defamatory statement is one that “tends to injure a living person’s reputation
and thereby expose the person to public hatred, contempt or ridicule, or financial
injury or to impeach any person’s honesty, integrity, virtue, or reputation.” Tex. Civ.
Prac. & Rem. Code Ann. § 73.001. “A statement may be unpleasant, abusive, false, or
objectionable without being defamatory in light of the circumstances.” Campbell, 471
S.W.3d at 625.
“Whether a publication is capable of a defamatory meaning is initially a
question for the court.” Turner, 38 S.W.3d at 114; Simmons v. Ware, 920 S.W.2d 438,
449 (Tex. App.—Amarillo 1996, no writ). To make this determination, courts should
consider whether the words used are reasonably capable of defamatory meaning by
considering how a person of ordinary intelligence would perceive the allegedly
defamatory statement as a whole. Bentley, 94 S.W.3d at 579; Musser v. Smith Protective
Servs., Inc., 723 S.W.2d 653, 654–55 (Tex. 1987).
However, the Supreme Court of Texas has characterized some statements as
“defamation per se” when they are “so obviously hurtful to a plaintiff’s reputation
that the jury may presume general damages, including for loss of reputation and
mental anguish.” Hancock v. Variyam, 400 S.W.3d 59, 63–64 (Tex. 2013) (footnote
omitted). In this usage, “[a] statement that injures a person in her office, profession,
35
or occupation is typically classified as defamatory per se.” Id. at 64. “[W]hether a
statement qualifies as defamation per se is generally a question of law.” Lipsky, 460
S.W.3d at 596.
“Accusing someone of a crime, of having a foul or loathsome disease, or of
engaging in serious sexual misconduct are examples of defamation per se.” Id. Thus,
we hold that the statements that Fernandez is a “convicted robber” who “commite
[sic] robbery” and engaged in a “failed robbery” are false accusations of a crime and
are thus defamatory per se. See id.
Therefore, we conclude that Fernandez has set forth clear and specific evidence
to support the second element of his defamation claims with regard to Elam’s
statements that he was “found guilty” of “robbery” and is a convicted “robber” and
Palmer’s statements that Fernandez engaged in a “failed robbery.” See Campbell, 471
S.W.3d at 627 (concluding defamation plaintiff satisfied his step-two burden under the
TCPA and established by clear and specific evidence that statements that “accused
[the plaintiff] of corruption in obstructing justice—were presented as objectively
verifiable” and thus defamatory).
4. Third Element – Actual Malice
Having concluded that these statements are defamatory, we now consider
whether Fernandez established clear and specific evidence of the third element of his
defamation claims—that Elam and Palmer acted with actual malice. See McLemore,
978 S.W.2d at 571; Simmons, 920 S.W.2d at 449.
36
In Schofield, our court recited the difference between actual malice in a
defamation context and malice in its ordinary context:
As the supreme court explains, the concept of “actual malice” in the
context of a defamation action is significantly different from the
meaning commonly attributed to the word “malice”:
Actual malice in a defamation case is a term of art. Unlike
common-law malice, it does not include ill-will, spite, or evil
motive. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). Rather,
to establish actual malice, a plaintiff must prove that the
defendant made the statement “with knowledge that it was false
or with reckless disregard of whether it was true or not.” New
York Times, 376 U.S. at 279–80, 84 S. Ct. 710[, 726]. Reckless
disregard is also a term of art. To establish reckless disregard, a
public official or public figure must prove that the publisher
“entertained serious doubts as to the truth of his publication.” St.
Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323[, 1325]
(1968).
Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 420 (Tex. 2000).
2017 WL 2180708, at *15; Carr v. Brasher, 776 S.W.2d 567, 571 (Tex. 1989). And,
recklessness is not the same as negligence but again requires a high degree of
awareness of probable falsity. 8 “Thus, the constitutional focus is on the defendant’s
8
One appellate court has explained reckless disregard as follows:
“[The] reckless [disregard of the truth] is not measured by whether a
reasonably prudent man would have published, or would have
investigated before publishing.” St. Amant, 390 U.S. at 731, 88 S. Ct. at
1325. “The standard is a subjective one—there must be sufficient
evidence to permit the conclusion that the defendant actually had ‘a high
degree of awareness of . . . probable falsity.’” Harte–Hanks Commc’ns, Inc.
v. Connaughton, 491 U.S. 657, 688, 109 S. Ct. 2678, 2696 . . . (1989)
(quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 216 . . .
(1964)). To demonstrate that a defendant made a statement with “a high
37
attitude toward the truth, not his attitude toward the plaintiff.” Greer v. Abraham, 489
S.W.3d 440, 444 (Tex. 2016).
Here, the only evidence Fernandez points to in support of actual malice is that
Appellants kept the defamatory statements posted on the Facebook group page for at
least one month after they had been served with a cease-and-desist letter. Fernandez
cites no authority to support the proposition that the failure to immediately comply
with a cease-and-desist letter is evidence of actual malice.9
Moreover, upon examination, the cease-and-desist letter does not specifically
challenge the statements that Fernandez committed “robbery” and is a convicted
“robber” who was “found guilty” or that Fernandez engaged in a “failed robbery” but
degree of awareness of probable falsity,” the plaintiff must show, not
negligence on the part of the defendant in ascertaining the truth, but that
the defendant had actual subjective doubt about the truthfulness of the
statements. Id. at 688, 109 S. Ct. at 2696 (quoting St. Amant, 390 U.S. at
731, 88 S. Ct. at 1325). A defendant’s negligent failure to investigate the
veracity of his sources cannot constitute malice. Id. at 733, 88 S. Ct. at
1326; Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 756 (Tex. 1984);
Johnson v. [Sw.] Newspapers Corp., 855 S.W.2d 182, 188 (Tex. App.—
Amarillo 1993, writ denied). A plaintiff’s allegation that the defendant
was negligent in addressing the truth of a statement will be successful
only when “the publisher’s allegations are so inherently improbable that
only a reckless man would have put them in circulation [or when] there
are obvious reasons to doubt the veracity of [his sources].” St. Amant,
390 U.S. at 732, 88 S. Ct. at 1326.
Morris v. Dallas Morning News, Inc., 934 S.W.2d 410, 420 (Tex. App.—Waco 1996, writ
denied).
9
Although the specific date is not clear, the parties all appear to agree that the
posts were taken down from the Facebook group page between one and two months
after the cease-and-desist letter was sent to Appellants.
38
instead focuses on the falsity of the allegations that Fernandez was a “convicted
criminal”:
Specifically, you are publicizing that my client is a convicted criminal. That of
course is false. Your actions are intended to hurt my client and are done
with malevolence and with forethought.
....
[P]ublicizing that my client is a criminal or has been convicted of committing a crime
will not be tolerated. Your failure to [heed] this warning will almost
certainly find one or all of you in a court of law.
Demand is further made for you to remove, without delay, all
references to my client being convicted of theft or convicted of any criminal act, from
all web sites, internet locations as well as social media posts and any
other form used to publicize these or similar statements as they are false.
[Emphasis added.]
Although we explained above why statements that Fernandez was convicted of
robbery were not substantially true even though statements that Fernandez was
convicted of theft were substantially true, we believe that the legal distinctions
between the two offenses are likely too technical to be known by reasonable people of
ordinary intelligence. See Scott, 2003 WL 22862806, at *1 n.1 (clarifying “that people,
not parks, are ‘robbed’” because the parties—who were represented by counsel—had
erroneously referred to an incident in which a skate park was “robbed”).
Minett v. Snowden, a recent memorandum opinion from the Dallas Court of
Appeals, supports our conclusion. No. 05-18-00003-CV, 2018 WL 2929339, at *9
(Tex. App.—Dallas June 12, 2018, pets. denied) (mem. op.). In Minett, a candidate for
the local school board filed a defamation lawsuit against a defendant who made a
39
Facebook post that stated the candidate had an undisclosed past criminal arrest and
conviction for serving alcohol to a minor. The defendant made a flyer that included
the assertion of an undisclosed past criminal arrest but also added a specific “inmate
number” for the candidate that the Facebook post did not contain, which indicated
that the school board candidate had also served time in jail. Id. at *1–2.
The defendant filed a TCPA motion to dismiss, which the trial court denied.
Id. at *1. Although the Dallas Court of Appeals reversed in part with respect to the
Facebook post, it affirmed the denial of the TCPA motion to dismiss with respect to
the flyer because it had included the inmate number, which falsely conveyed the
meaning that the school board candidate had actually been incarcerated and assigned a
number as an inmate. Id. at *9. Indeed, the inmate number appeared to be made up
from whole cloth because while the school board candidate had been charged with
and found guilty of misdemeanor delivery of alcohol to a minor and sentenced to
thirty days in jail, his sentence was probated, and he never served any jail time. Id. at
*10. Thus, Minett concluded that the school board candidate set forth clear and
specific evidence of actual malice. See id.
Had Appellants accused Fernandez of some obviously fabricated, wholly
unrelated offense, that could perhaps be clear and specific evidence of reckless
disregard for the truth to support actual malice. But, because theft and robbery are
characterized as “closely related” offenses, with the legal distinction between the two
likely unknown to the mind of a person of ordinary intelligence, Fernandez needed,
40
but failed, to show that Appellants actually knew the difference between the two
offenses and still alleged that Fernandez had committed “robbery.” See Evans, 530
S.W.2d at 591. Indeed, “[a]n understandable misinterpretation of ambiguous facts
does not show actual malice.” Lane v. Phares, 544 S.W.3d 881, 891 (Tex. App.—Fort
Worth 2018, no pet.) (quoting Bentley, 94 S.W.3d at 596).
Finally, to the extent that Fernandez complains that Elam and Palmer had a
duty to verify his communications before publishing them, “the ‘failure to investigate
fully,’ without more, is no evidence of actual malice.” Schofield, 2017 WL 2180708, at
*16 (quoting Bentley, 94 S.W.3d at 596). The failure to investigate will not rise to the
level of actual malice without proof that Elam and Palmer acted with purposeful
avoidance of the truth. Id. There is no clear and specific evidence in this record of
any purposeful avoidance by Elam and Palmer.10 See id.
Thus, because Fernandez has failed to set forth clear and specific evidence that
Elam acted with actual malice when making the defamatory statements that
Fernandez committed “robbery” and is a “convicted robber” and that Palmer acted
with actual malice in stating that Fernandez engaged in a “failed robbery,” we hold
that the trial court erred by denying Appellants’ motion to dismiss Fernandez’s
10
Accordingly, we cannot agree with the dissent that Palmer’s declaration—in
which he stated that he knew that Fernandez had pleaded guilty to theft and in which
he acknowledged that he had inaccurately used the words “robber” and “robbery”
but that he removed the video as soon as he knew the characterization was
inaccurate—is clear and specific evidence of purposeful avoidance and actual malice.
Nor is the mere fact that Elam admits to posting the statements on Facebook clear
and specific evidence of purposefully avoiding the truth. See id.
41
defamation claims. And, because Fernandez’s claim against Weber is derived wholly
from Weber’s position as the Facebook group administrator and the statements from
Elam and Palmer published therein, Fernandez has likewise failed to provide clear and
specific evidence to support his defamation claims against Weber.
The dissent takes issue with our resolution because Appellants made statements
that do “not negate actual malice.” Again, we respect the dissent’s perspective but
respectfully disagree. First, Fernandez carried the burden to “establish[] by clear and
specific evidence a prima facie case for each essential element of the claim in
question.” See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). The dissent agrees that
one part of that burden was to establish that Appellants had made the statements with
actual malice.
And again, we are not dealing with a situation in which Appellants made
statements that accused an innocent man of a crime he did not commit. Instead, we
must begin with the basic fact that Fernandez did confess to a crime. Appellants’
statements at times mischaracterized the crime but did so by a matter of degree. In
the dissent’s view, the lack of sensitivity to that matter of degree is evidence of actual
malice—indeed, none of the evidence that Fernandez offered suggested that
Appellants acted with awareness of this matter of degree. Instead, it appears that the
standard applied is that they should have known. But that is a negligence standard
and not an application of the principles of actual malice.
42
We understand that the consequence of denying a TCPA motion to dismiss is
that the lawsuit goes forward. But the legislature has decided that in certain classes of
legal actions, the plaintiff must clear hurdles of proof before the legal action can
proceed. The dissent does not disagree that Fernandez’s legal action fell within the
ambit of the TCPA and thus brought with it the consequence of clearing the hurdles
created by the legislature. We simply disagree with the dissent that Fernandez failed
to clear the hurdle of presenting prima facie proof of actual malice in the unique
circumstances of this case.
Accordingly, we sustain Appellants’ second issue. 11
D. Claims not addressed in the TCPA motion to dismiss
Although not addressed by the parties, we note that in addition to defamation,
Fernandez alleged a claim for IIED. He also filed a supplemental pleading in which
he added a claim for conspiracy. Appellants’ TCPA motion to dismiss did not
address either claim, nor does their brief on appeal.
Our court has explained that simply because one claim may require dismissal
under the TCPA, it does not ipso facto require that dismissal be granted on other claims
not specifically addressed in the motion to dismiss. Cf. Ghrist, 2018 WL 3060331, at
*5 n.9 (“Each cause of action stands or falls on its own merit; there is no
bootstrapping effect for other causes of action that do not meet the criteria set forth
Having sustained Appellants’ first and second issues regarding Fernandez’s
11
defamation claims, we need not address Appellants’ third issue. See Tex. R. App. P.
47.1.
43
in the [TCPA] statute”). Indeed, neither the TCPA nor cases interpreting it require
that we perform a search of the record to find clear and specific evidence of each
element of the plaintiff’s claims. See Cavin, 545 S.W.3d at 72 (dismissing claims when
the plaintiffs “have merely recited what they view as the essential elements of each
claim; cited en masse to pages of the record they deem relevant to some unspecified
element or elements of that claim; but provided no argument, analysis, or explanation
as to which record reference supports which elements or (perhaps more critically) why
that evidence would satisfy the specific element under the governing law”).
Yet we recognize that in Adams, the Supreme Court of Texas recently reversed
an appellate court decision affirming the denial of a TCPA motion to dismiss based in
part on a party’s failure to preserve an argument by failing to specifically raise it in the
motion to dismiss. 547 S.W.3d at 896. The Adams court admonished that the
appellate court “imposed too strict a view of error preservation in this context” and
buttressed its position with reference to the TCPA’s directive that its applicability is to
be “based on a holistic review of the pleadings.” Id. at 896–97. As the Adams court
explained, once the defendant alleged in his motion that he was entitled to dismissal
of the plaintiff’s defamation claim because it was based on his right of free speech,
“[h]e was not required on appeal or at trial to rely on precisely the same case law or
statutory subpart that we now find persuasive.” Id. at 896.
44
With these decisions in mind, we consider whether Fernandez’s conspiracy and
IIED claims—although not addressed in Appellants’ motion to dismiss or the parties’
briefs—require dismissal under the TCPA.
1. Conspiracy
Our examination of Fernandez’s conspiracy claim reveals that it is derived
wholly from his defamation claims. That is, he essentially alleges that Appellees
engaged in a conspiracy to defame him. Therefore, because we have already
concluded that Fernandez’s defamation claims require dismissal under the TCPA, we
likewise conclude that his conspiracy claim requires dismissal. See Schofield, 2017 WL
2180708, at *27 (“Because we find no clear and specific evidence that Howard and
Schofield committed defamation against Gerda, Gerda’s cause of action against
Schofield and Howard for conspiracy to commit defamation against him must also
fail.”).
2. IIED
IIED is viewed under Texas law as a “gap-filler” tort, created to permit
recovery in “those rare instances in which a defendant intentionally inflicts severe
emotional distress in a manner so unusual that the victim has no other recognized
theory of redress.” Hoffmann–La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex.
2004). Because this tort was never intended to provide plaintiffs an easier and
broader way to allege claims that are already addressed by our existing civil and
criminal laws, nor was it intended to replace or duplicate existing statutory or
45
common law remedies, if the gravamen of a plaintiff’s complaint is another tort, “a
claim for [IIED] will not lie regardless of whether the plaintiff succeeds on, or even
makes the alternate claim.” Draker v. Schreiber, 271 S.W.3d 318, 322 (Tex. App.—San
Antonio 2008, no pet.). In this context, to maintain an IIED claim alongside a
defamation claim, the IIED claim must be supported by facts that are independent of
the factual allegations supporting the defamation claim. See id. at 323 (explaining that
“to maintain [an IIED claim], [the plaintiff] was required to allege facts independent
of her defamation claim” and then affirming dismissal for the plaintiff’s failure to
allege such independent facts).
It appears that the gravamen of Fernandez’s complaint is defamation, and it is
possible that his IIED claim may ultimately be a recasting of his defamation claims.
Fernandez did, however, allege in his petition that Elam had harassed him by stopping
his car on the road in order to film him, which is a factual allegation independent of
the factual allegations supporting Fernandez’s defamation claims. And, Appellants do
not set forth any argument in their brief that Fernandez’s IIED claim implicates the
TCPA, that Fernandez failed to meet his burden under step two regarding his IIED
claim, or that Appellants have established by a preponderance of evidence each
element of an affirmative defense to Fernandez’s IIED claim.
Therefore, although Fernandez’s allegations are scant, we cannot conclude that
the trial court erred by denying Appellants’ TCPA motion to dismiss on Fernandez’s
IIED claim because the issue was not raised either to the trial court or to this court on
46
interlocutory appeal. See Spencer v. Overpeck, No. 04-16-00565-CV, 2017 WL 993093, at
*5 (Tex. App.—San Antonio Mar. 15, 2017, pet. denied) (mem. op.) (“Because the
Spencers do not raise any argument in their brief asserting Overpeck failed to
establish a prima facie case for each of the above-referenced elements of her [IIED]
claim, we hold the trial court did not err in denying the Spencers’ [TCPA] motion to
dismiss as to this claim.”). 12
E. Attorney’s Fees and Sanctions
When appellate courts conclude that a trial court has erroneously denied a
TCPA motion to dismiss, they “generally remand the fee issue.” Tatum v. Hersh, 559
S.W.3d 581, 586 (Tex. App.—Dallas 2018, no pet.). Because we hold that the trial
court erred by denying Appellants’ TCPA motion to dismiss Fernandez’s defamation
claim, we remand for the trial court to consider the issue of attorney’s fees and
sanctions under section 27.009 of the civil practice and remedies code. See id.; Rich,
535 S.W.3d at 612; see also Tex. Civ. Prac. & Rem. Code Ann. § 27.009.
VI. CONCLUSION
We affirm in part and reverse and remand in part. Having sustained
Appellants’ first and second issues with respect to Fernandez’s defamation and
conspiracy claims, we reverse the trial court’s order as to those claims and render
We do not believe this conclusion puts us at odds with the supreme court’s
12
admonition in Adams because the facts of the instant case are not of a defendant
refining his TCPA arguments on appeal but of Appellants’ complete failure to
challenge Fernandez’s IIED claim at any stage in this litigation.
47
judgment dismissing Fernandez’s defamation and conspiracy claims pursuant to the
TCPA.
Having concluded that Appellants wholly failed to address Fernandez’s IIED
claim, we affirm that part of the trial court’s order denying Appellants’ TCPA motion
to dismiss as to the IIED claim and remand the case for further proceedings
consistent with this opinion.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: March 28, 2019
48