Backes v. Misko

• Decision Date: 13 March 2015
• Docket Number: No. 05–14–00566–CV,05–14–00566–CV
• Citation: 486 S.W.3d 7
• Parties: Jane McCurley Backes d/b/a Backes Quarter Horses and Tracy Johns, Appellants v. Karen Misko and Misko Quarter Horses, LLC, Appellees
• Court: Texas Court of Appeals

486 S.W.3d 7

Jane McCurley Backes d/b/a Backes Quarter Horses and Tracy Johns, Appellants

v.Karen Misko and Misko Quarter Horses, LLC, Appellees

No. 05–14–00566–CV

Court of Appeals of Texas, Dallas.

Opinion Filed March 13, 2015

Kenneth B. Chaiken, Melinda Eitzen Plano, TX, Amy Ganci, Allen, TX, Joseph G. Chumlea, Dallas, TX, for appellants.

Before Justices Bridges, Lang, and Evans

OPINION

Opinion by Justice Bridges

Appellant Jane McCurley Backes d/b/a Backes Quarter Horses (“Backes”) sued appellees Karen Misko and Misko Quarter Horses (“Misko”) for tortious interference and invasion of privacy. Appellee Tracy Johns (“Johns”) filed a petition in intervention alleging tortious interference. Misko, individually, filed a counterclaim against Johns for libel and against Backes for civil conspiracy to commit libel. Backes and Johns filed motions to dismiss under the Citizens Participation Act, chapter 27 of the Texas Civil Practice and Remedies Code. The trial court denied both motions. On appeal, Johns and Backes argue they met their burdens under Chapter 27; therefore, the trial court erred by denying their motions to dismiss.

We affirm the trial court's order denying Johns's motion to dismiss. We reverse the trial court's order denying Backes's motion to dismiss and render judgment dismissing Misko's civil conspiracy counterclaim against Backes. We remand Backes's case to the trial court for a determination of costs, attorney's fees and other expenses as authorized under section 27.009(a). See Tex. Civ. Prac. & Rem.Code Ann. § 27.009(a) (West 2015).

Background

The background of this case involves three women who are competitors in the quarter horse breeding business, who used social media to interact with other horse enthusiasts about horse-related issues. However, the rhetoric between the women turned personal and as further explained below, Misko filed a libel suit against Johns and a conspiracy to commit libel suit against Backes after Johns raised the issue of Munchausen–Syndrome–By–Proxy (“MSBP”) on a horse forum, and Misko believed the Post (as the parties refer to it throughout their briefing) related to her.

Throughout the years, Misko's daughter struggled with health issues. Misko often shared the struggles with others, including Backes and Johns, and mentioned the struggles on Facebook and horse forums. Doctors eventually diagnosed Misko's daughter in 2008 with a neurological disorder called Reflex Neurovascular Dystrophy.

On December 29, 2012, Misko posted a message on her Facebook wall requesting comments from readers about developing a ten-point evaluation system for five attributes in weanlings and yearlings for sale purposes. Within days, many people provided comments, including Backes and Johns. Backes commented about the subjectivity of such a point system because, “What you might think is a 9 I might think is a 6. It would all go back to person[al] opinions of likes and dislikes.” Misko acknowledged the subjectivity but said her goal “is trying to educate everyone so that they may gain confidence in their decisions rather than relying upon a trainer or checking with 5–10 friends and then making a decision.” Johns later asked Misko why “... would [you] want to discourage buyers from checking with friends and/or trainers prior to purchasing?” Misko later clarified she would never discourage consulting with friends or trainers but was trying to establish a system to improve breeding.

In a January 1, 2013 response directed to Johns, Misko asked Johns the following, “So, Tracy, could you please answer the question from the last time that you came onto my wall and never responded to me? What would a trainer have to do to your horses to make you leave their barn and disrupt your loyalty to them? I am seriously interested in your answer and am still waiting.” Johns claimed she missed the question, and said she would think about it. As others continued to provide input on the point system, Johns continued to argue it was a self-serving concept directed to support a particular breeder's ideas.

The banter continued between Johns and Misko regarding the point system, prior horse dealings, and the various trainers they had used in the past. Later, on January 1, 2013, Misko said to Johns:

You have learned a great deal since 2002 from being bright, diligent, and having a great mentor, Tracy. I love your mind, work ethic, and outstanding care for your horses ... you are impressive to me. Therefore, I simply want you to understand that I do like and respect you, but you and [Backes] do need to communicate on this wall with the proper facts concerning me, ok? ... I am very happy to continue the discussion with you about this question but bringing in hidden agendas is a conflict I will not tolerate when you do not have many or all of the facts, whatsoever.

Misko's mention of Backes in her comment to Johns pulled Backes back into the Facebook chatter. Backes accused Misko of sounding like a lawyer and noted that “tones and questions on a computer vs live can come across wrong. Learn to give a person the benefit of the doubt :).” Misko responded that she could no longer give the two women the benefit of the doubt given the past three months of posts on her Facebook wall or Johns's “silly winking smiley faces.” Misko's comment to Backes continued:

Seriously? If a person would review both of your statements, about so many subjects on my wall, do we all go back to Jr. High? I think that tones are confused on the computer but patterns become crystal clear. We are acquaintances which is different than friends ... we do not spend time together nor do we agree about choices regarding trainers. I respect you as a Mom and love what you have created with Audrey Grace's memory ... it is so, so wonderful. :) I respect you as a fellow breeder and have always told folks to go over and check out your horses. I appreciated the care that you provided for my mares ... it was great. Still, we do not spend time together nor talk except on FB which is fine, but to me, a friend is like Tracy is to you.... I am not angry in any way, but I am not going to play games on FB.... Also, I know that you do most of what I had mentioned which is why I did not think that you would object so adamantly about a grading system since it is what you do every year with every foal. Why not put it into writing for others on your website? Anyhow, I still think that we have gleaned many insights and great ideas if I can collect them in a more expedient and easier to read summation. :) As a last request, I will ask you, like I did with Tracy, what actions from a trainer, to your horses, would force you to take them from their care and violate your trust and loyalty to them? You have had so many years with trainers, that your answer is very meaningful to me, Jane. I sincerely mean this which is why I continue to ask the question from both of you. I do appreciate your efforts and sharing of knowledge which is why I think that we have gotten along for so many years ... out of respect as Moms and fellow horse owners and breeders, I am off to be with my wonderful daughter. This has been exhausting? ? LOL

Backes then suggested Misko should put on the top of her page, “If your views are not like mine do not post.” Backes continued to question Misko about Misko's previous problems with a breeder, whom Misko now said was great. Johns encouraged Misko to “take a break from the keyboard before you give yourself a stroke.” A male commenter noted that “pissing matches should be kept private ladies.”

In the middle of the above January 1, 2013 discussion on Misko's Facebook wall, Backes and Johns began posting messages on Backes's Facebook wall. One post, shared from “The Ramblings of a Crazy Bitch,” featured the photo of a woman with the caption, “Did someone forget to put on their big girl panties?” Backes commented the post was not directed at Johns. Backes also mentioned that she tried to find the picture of a child sitting at a computer saying, “the bitch blocked me,” but she could not find it. Johns responded she could not find the picture because she changed phones. Johns then asked, “Is it appropriate to do a preemptive strike?” Backes said no and that she wanted to figure out how Misko “gets out of the lie about my personal emails with her flat out talking bad about her new mentor.” Backes then asked if it was legal to post the emails. The next day, Misko saw these Facebook posts and advised Backes to check with her legal advisor.

When another person inquired about the “drama,” Backes accused Misko of erasing comments regarding people's contrary opinions on the ten-point system and responding to Backes's and Johns's criticism with “looooong, passive-aggressive posts ... All while blinking her eyes in Disney Princess innocence ... Hoping her followers don't see her for who she is?” Misko denied erasing posts, and both women claimed to have preserved every word about recent exchanges. This ended the early January 2013 communications between Misko, Johns, and Backes.

Towards the end of January 2013, the women once again began attacking each other on social media. Backes served as moderator of the “Who to Breed To” posting thread on a horse-related site called “Pleasurehorse.” Posts on the site included topics ranging from horse sales, pricing, and breeding services. On the site, Misko posted under the name “karenmisko.” Backes posted as “marepower,” and Johns posted as “tmk5.”

In an affidavit attached to her response to the motions to dismiss, Misko claimed Backes announced on the “Who to Breed To” thread that one of Backes's stallions tested positive for the HERDA genetic skin disease. This statement was inconsistent with several prior posts in which Backes claimed the stallion was HERDA negative. When Misko raised questions about the genetic testing of the stallion, Misko stated Backes immediately began personally attacking her through posts on the thread regarding her mental...