Adams v. Starside Custom Builders, LLC, 05–15–01162–CV

• Decision Date: 28 June 2016
• Docket Number: No. 05–15–01162–CV,05–15–01162–CV
• Citation: 545 S.W.3d 572
• Parties: John David ADAMS, Appellant v. STARSIDE CUSTOM BUILDERS, LLC, Appellee
• Court: Texas Court of Appeals

545 S.W.3d 572

John David ADAMS, Appellant

v.STARSIDE CUSTOM BUILDERS, LLC, Appellee

No. 05–15–01162–CV

Court of Appeals of Texas, Dallas.

Opinion Filed June 28, 2016

Rehearing Overruled August 17, 2016.

Byron K. Henry, Frisco, TX, Israel L. Suster, Plano, TX, for appellants.

Nathan Allen, Jr., Laura L. Worsham, Lynn Warren Schleinat, Lindy D. Jones, Dallas, TX, for appellees.

Before Justices Fillmore, Stoddart, and O'Neill¹

OPINION

Opinion by Justice Fillmore

Starside Custom Builder, LLC sued John David Adams asserting, among other causes of action, a claim for defamation. Adams filed a supplemental motion under the Texas Citizens Participation Act, TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001 –.011 (West 2015) (TCPA), requesting that the trial court dismiss Starside's defamation claim. The trial court failed to rule on the supplemental motion within the time period set out in the statute, and the supplemental motion was denied by operation of law. Id. §§ 27.005(a), 27.008(a). Adams filed this interlocutory appeal, challenging the denial of the supplemental motion. We conclude Adams failed to establish the TCPA applies to Starside's defamation claim and affirm the denial of the supplemental motion to dismiss.

Background

Bentley Premier Builders, LLC, which was owned by Sandy Golgart and Phillip Pourchot, developed and constructed homes in the Normandy Estates subdivision in Plano, Texas. Adams and his wife own a home in the subdivision. On August 6, 2013, Bentley filed for bankruptcy protection. Adams and several other homeowners subsequently filed a criminal complaint against Golgart for signing false "all bills paid" affidavits concerning their homes.

During Bentley's bankruptcy proceedings, Adams published an internet blog regarding his experiences with Bentley. The home page of the blog contains an image of Bentley's website superimposed with the statement that Bentley had "made life miserable" for builders, subcontractors, and families. Across the bottom of the page were tabs labeled "unpaid creditors," "commingled funds," "contract fraud/felony investigation," and "undisclosed felony conviction."² The blog page invited the reader to contact Golgart's and Pourchot's attorneys for "their rebuttal to these allegations." The bankruptcy court ultimately confirmed a plan of reorganization for Bentley proposed by Pourchot. Bentley was then renamed Starside. Pourchot is Starside's chief executive officer.

Behind Adams's home is a creek and a parcel of land owned by Starside and designated as a "common area" of the subdivision. Adams desired to purchase the common area to provide more privacy for his family and believed Starside had agreed in principle to sell him the land if the City approved the "replat." However, in late 2014, the Normandy Estates Homeowners Association (the HOA), with funds provided by Starside, began performing landscaping work in the common area, including the removal of small trees, brush, and undergrowth. Adams and his wife strongly objected to the landscaping work being done in the common area.

On March 15, 2015, Dr. Kim Castleberry, the president of the HOA, and his wife, were marking trees in the common area that were to be removed. Adams sent an email to Starside's attorney and a number of text messages to members of the board of the HOA threatening to shoot anyone who cut down trees in the common area. Pourchot contacted the Plano police department the following day. The police officer who spoke to Adams told Pourchot that Adams claimed he owned the common area.

On March 18, 2015, at 10:18 a.m., Starside sent an email to "Normandy Estates Owners" attaching a letter and "follow up attachments" concerning "an ongoing situation in the neighborhood." The information attached to the email is not in the appellate record and the email does not reveal the recipients. Adams sent a response to the email at 11:36 a.m. that, although addressed to "HOW [sic] members," appears to have been sent only to Cindy Warren, who was an employee of Starside, Pourchot, Castleberry, and Marc Powell, a member of the board of the HOA. In the response, Adams stated, as relevant to this appeal:

First, I would like to apologize that this had to become public. It is a situation that frustrates our family very much, but we have tried to keep the rest of the neighborhood our [sic] of it, and have had no private (other homeowners) conversations regarding this since the first incident where the HOA clear cut land, and did not follow city ordinances on tree preservation. ...

In order to avoid making claims that can not [sic] be substantiated, I will attempt to just provide verifiable facts. If you are interested in this, you can verify the facts for yourself, and I think it will give you a clear understanding that the issues we had with Sandy Golgart have continued on now that Phill is completely in control. Starside has made claims in their email that they can not [sic] substantiate. This does not matter to them though.

Adams then set out a recitation of his views about the dispute over the common area.

Starside sued Adams and his wife on March 20, 2015, asserting claims against Adams for threat of imminent bodily injury and business disparagement. Starside also sought injunctive relief as well as a declaratory judgment stating that Starside owned the common area. In its claim for business disparagement, Starside did not set out any specific conduct by Adams that it alleged caused it harm, stating generally that Adams had "maliciously made false and disparaging statements regarding [Starside], about CEO Pourchot's character and as a business person."

Adams moved to dismiss Starside's business disparagement claim pursuant to the TCPA. In his motion, Adams alleged that Starside's business disparagement claim was based on his: (1) expressed intent to protest Starside's services at the front entrance of the HOA; (2) expressed intent to protest Starside's services in yard signs on his lawn; (3) filing a police report against an individual affiliated with Starside; (4) allegedly posting a blog about a former business partner of Pourchot; (5) threatening to send a text message asking for feedback regarding Starside's services; and (6) statements to law enforcement after Starside contacted them about the "communications made the basis of this suit." Adams asserted that Starside filed the suit to prevent him "from exercising his constitutional rights of free speech and to petition the government." He argued he was entitled to the dismissal of the business disparagement claim because he had a "constitutional right to voice his opinions regarding [Starside's] services and officers of the HOA, of which he is a member," and had a "privilege and right to interact with law enforcement, including filing a police report against those individual(s) [he] believes might have committed a crime."

Starside filed an amended petition, dropping its claim for business disparagement and adding a claim for defamation that was based on the homepage of Adams's 2014 blog and Adams's March 18, 2015 email. As to the blog, Starside asserted the page included Golgart's and Pourchot's names and contained a tab entitled "undisclosed felony conviction." Starside alleged that, because this tab contained a picture of a man's handcuffed wrists, it "appears to say" Pourchot has an undisclosed felony conviction. Starside alleged the March 18, 2015 email contained the defamatory statements that "the issues we had with Sandy Golgart have continued on now that Phill is completely in control," and "land was cleared without getting the appropriate permit from the City." Starside contended these statements were defamatory because they tended to injure its reputation, impeached its honesty and integrity, and exposed it to contempt, hatred, and financial injury. Starside also alleged the statements in the March 18, 2015 email were defamatory per se because they suggested it was guilty of violating City codes and engaging in felony criminal activity.

Adams filed a three-page supplemental motion to dismiss Starside's defamation claim. The supplemental motion incorporated Adams's original motion to dismiss and briefly addressed the elements of a claim for defamation. It did not, however, address how the specific statements relied upon by Starside to support its defamation claim fell within the purview of the TCPA.

The trial court heard Adams's motion to dismiss on August 5, 2015. The trial court found that Starside attempted to avoid the motion to dismiss by "nonsuiting [its] claim for business disparagement in favor of a claim for defamation." The trial court granted the motion; dismissed Starside's business disparagement claim with prejudice; awarded Adams court costs, attorneys' fees, and other expenses incurred in defending the claim for business disparagement, in an amount to be determined at a later date; and ordered Starside should be sanctioned in an amount, to be determined at a later date, sufficient to deter it from bringing a similar action in the future.

The trial court heard Adams's supplemental motion to dismiss on August 14, 2015. The trial court failed to rule on Adams's supplemental motion within thirty days of the hearing, and the supplemental motion was denied by operation of law. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.005(a), 27.008(a). Adams's brought this interlocutory appeal from the denial of his supplemental motion to dismiss. See id. § 51.014(a)(12) (West Supp. 2015).

Analysis

Adams contends the trial court erred by denying his supplemental motion to dismiss because Starside's defamation claim is subject to the TCPA and Starside failed to present clear and specific evidence of each element of the claim.

The TCPA's purpose 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...