Adams v. Starside Custom Builders, LLC

• Decision Date: 20 April 2018
• Docket Number: NO. 16–0786,16–0786
• Citation: 547 S.W.3d 890
• Parties: John David ADAMS, Petitioner, v. STARSIDE CUSTOM BUILDERS, LLC, Respondent
• Court: Texas Supreme Court

547 S.W.3d 890

John David ADAMS, Petitioner,

v.STARSIDE CUSTOM BUILDERS, LLC, Respondent

NO. 16–0786

Supreme Court of Texas.

Argued January 9, 2018

OPINION DELIVERED: April 20, 2018

Rehearing Denied June 22, 2018

Byron K. Henry, Andrea K. Bouressa, Scheef & Stone, L.L.P., Frisco, TX, for Petitioner.

Lindy D. Jones, Laura L. Worsham, Lewis Jones, Lynn Warren Schleinat, Nathan Allen Jr., Jones Allen & Fuquay, L.L.P., Dallas, TX, for Respondent.

Justice Blacklock delivered the opinion of the Court.

This is an appeal from the denial of a motion to dismiss under the Texas Citizens Participation Act (TCPA). The defendant, John Adams, moved to dismiss the defamation claim filed against him. The court of appeals affirmed the denial of the motion to dismiss, holding that Adams's allegedly defamatory communications did not relate to a "matter of public concern." Because we conclude that the challenged communications do relate to a "matter of public concern" as defined by the TCPA, we reverse the court of appeals judgment and remand the case to that court for further proceedings.

I. Legal, Factual, and Procedural Background

A. The TCPA

Under the TCPA, a party may file a motion to dismiss a "legal action" that is "based on, relates to, or is in response to a party's exercise of the right of free speech." TEX. CIV. PRAC. & REM. CODE § 27.003(a). A "legal action" can consist of an entire lawsuit or a single cause of action. Id. § 27.001(6). The TCPA provides its own definition of "exercise of the right of free speech." The statutory definition is not fully coextensive with the constitutional free-speech right protected by the First Amendment to the U.S. Constitution and article I, section 8 of the Texas Constitution. In the TCPA, the " ‘[e]xercise of the right of free speech’ means a communication made in connection with a matter of public concern." Id. § 27.001(3). " ‘Communication’ includes 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). A " ‘[m]atter of public concern’ includes an issue related to ... environmental, economic, or community well-being; ... the government; ... or ... a good, product, or service in the marketplace." Id. § 27.001(7).

The TCPA requires a court to "consider the pleadings and supporting and opposing affidavits" filed by the parties before ruling on a motion to dismiss. Id. § 27.006(a). The statute directs the trial court to dismiss the action "if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party's exercise of ... the right of free speech." Id. § 27.005(b)(1). The court may not dismiss the claim if the non-moving party "establishes by clear and specific evidence a prima facie case for each essential element of the claim." Id. § 27.005(c). Nevertheless, the movant can still win dismissal by establishing "by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim." Id. § 27.005(d). An order denying a TCPA motion to dismiss may be appealed. Id. § 51.014(a)(12). If the trial court does not rule on a motion to dismiss within a prescribed time, the motion is considered denied by operation of law and the moving party may appeal. Id. § 27.008(a).

B. Trial Court Proceedings

This appeal is part of a long-running dispute between Adams and the developer of the neighborhood where he lives. Bentley Premier Builders, LLC (Bentley) developed the Normandy Estates subdivision in Plano, Texas. Adams and his wife own a home in the subdivision. After bankruptcy, Bentley became Starside Custom Builders, LLC (Starside), as described further below.

Starside and Adams became embroiled in an ugly dispute over a common area in the subdivision. Starside sued Adams and his wife, asserting claims for threat of imminent bodily injury and business disparagement. The petition also sought a declaratory judgment that Adams did not own any of the land that Starside alleged was a common area. Adams moved to dismiss the business disparagement claim under the TCPA. Starside then filed an amended petition that dropped the business disparagement claim and added a defamation claim.

The amended petition contained the following pertinent allegations. Starside is the developer of the Normandy Estates subdivision. Starside undertook to develop the neighborhood's common areas, including a common area adjacent to Adams's property. At the time in issue, the common area was owned by Starside but was dedicated as a common area by plat. Starside controlled the common area during this period. Starside and the Normandy Estates homeowners' association (HOA) worked together to improve the common area. These improvements benefitted Starside's business because they attract future homeowners to the neighborhood. Starside's owner and CEO, Phillip Pourchot, is one of three members of the HOA board.

Adams opposed the work done by Starside and the HOA in the common area. Adams accused the HOA of clear cutting trees in violation of Plano city ordinances. On March 15, 2015, Adams sent angry texts to the HOA board and others, in which he threatened to shoot people involved in the landscaping work. Pourchot and his attorney contacted the Plano police department. Two officers visited Adams and reported that "the situation was worse than was thought." Adams claimed he owned a portion of the common area stretching from his property to a creek running through the common area.

The amended petition alleges that Adams defamed Starside in a 2014 blog and in a March 18, 2015 e-mail Adams sent to Pourchot, to the HOA president, and to others. The blog's homepage is attached to the petition. The page shows a handcuffed man with a tab stating "undisclosed felony conviction." It states the names of Sandy Golgart and Phill Pourchot, the prior owners of Bentley, allegedly implying that Pourchot is a felon. The page has a large image of the logo for "Bentley Premier Builders" and also has tabs for "unpaid creditors," "commingled funds," and "contract fraud/felony investigation." Under the Bentley logo, the page states, "How a west Plano Developer took a prime Plano location[,] a group of high end home builders[,] several hardworking subcontractors[,] a few families eager to build new homes[, and] made life miserable for all involved." The March 18 e-mail asserts that the HOA "clear cut" land and did not follow city ordinances. The e-mail alleges that Pourchot is in complete control of the HOA. The e-mail claims that Adams and Starside had an agreement in principle to sell part of the common area to Adams. The petition alleged that this e-mail was sent "to the Normandy Estates Residents and builders, all of whom are members of the HOA."¹

Adams's motion to dismiss contains the following allegations. Adams purchased his home from Bentley, Starside's predecessor. Phillip Pourchot was an owner of Bentley. Bentley filed for bankruptcy and changed its name to Starside. Starside controls the Normandy Estates HOA. Adams filed a police report because the other owner of Bentley, Sandy Golgart, had falsely attested that there were no liens on his property. In late 2014, Starside began cutting down trees and landscaping the subdivision's common area. The tree cutting was done without a city permit. Adams sent text and e-mail messages asking Starside's officers and the HOA president to stop the tree cutting. The messages prompted a visit from law enforcement. The motion attaches deposition excerpts from Pourchot, who described the blog as referencing Golgart's legal problems and connecting Pourchot to those problems.

After Starside amended its petition to assert a defamation claim rather than a business disparagement claim, Adams filed a supplemental motion to dismiss the defamation claim, incorporating his prior motion to dismiss and arguing that Starside could not establish a prima facie case to survive dismissal under the TCPA. The trial court granted the motion to dismiss the business disparagement claim. The court did not rule on the motion to dismiss the defamation claim within the statutory period, so it was denied by operation of law.

C. The Court of Appeals Decision

Adams appealed, arguing that the trial court should have dismissed the defamation claim under the TCPA. The court of appeals reached only the issue of whether Adams established under section 27.005(b) that his defamation claim "is based on, relates to, or is in response to [Adams's] exercise of ... the right of free speech." TEX. CIV. PRAC. & REM. CODE § 27.005(b). The court concluded that Adams failed to meet this burden. Adams v. Starside Custom Builders, LLC , 545 S.W.3d 572, 579, 2016 WL 3548013 (Tex. App.—Dallas 2016, pet. granted). The court of appeals rejected Adams's argument that statements made in the blog and the March 18, 2015 e-mail relate to Starside's services in the marketplace. The court of appeals reasoned that while "Adams asserts the statements on which Starside's defamation claim are based related to Starside's services in the marketplace," "the complained-about statements do not mention Starside at all." Id. at 578. The court did not reach the merits of Adams's argument that his statements related to community well-being. The court effectively found that Adams waived this argument by failing to argue it with sufficient specificity in the trial court. Id. at 578 n.4.

II. Discussion

This appeal turns on our construction of the text of the TCPA, and we review issues of statutory construction de novo . Lippincott v. Whisenhunt , 462 S.W.3d 507, 509 (Tex. 2015) (per curiam). We disagree with the court of appeals' conclusion that the defamation claim against Adams was not based on or related to Adams's "exercise of the right of free speech" as defined by the TCPA. We must construe the TCPA according to its text. See ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 899 (Tex. 2017) (per...