Dall. Symphony Ass'n, Inc. v. Reyes

Decision Date08 March 2019
Docket NumberNo. 17-0835,17-0835
Parties DALLAS SYMPHONY ASSOCIATION, INC. a/k/a Dallas Symphony Orchestra, Petitioner, v. Jose REYES, Respondent
CourtTexas Supreme Court

Jason Patrick Bloom, Dallas, Thomas J. Williams, Fort Worth, Allen Ryan Paulsen, Sally Dahlstrom, Dallas, for D Magazine Partners, L.P. d/b/a D Magazine.

Jennifer Meghan Nylin, Bryan P. Neal, Marc H. Klein, Dallas, for Dallas Symphony Association, Inc. a/k/a Dallas Symphony Orchestra.

Eric D. Fein, Vickie Lynn Stephens Brandt, Dallas, for Jose Reyes.

Chief Justice Hecht delivered the opinion of the Court.

Generally, Texas law permits an appeal from "an interlocutory order ... that ... denies a motion for summary judgment ... based in whole or in part upon a claim against or defense by a member of the ... media, acting in such capacity, or a person [quoted] by the ... media," involving federal or state constitutional guarantees of freedom of speech or of the press.1 A divided court of appeals held that "order" refers only to the ruling on the constitutional grounds stated in the motion.2 We hold that "order" means the ruling on the entire motion, including nonconstitutional grounds, and that the defendants were entitled to summary judgment on all claims against them. We affirm the court of appeals' judgment in part, reverse in part, and remand the case to the trial court.


The Dallas Symphony Orchestra3 relies for support on a large number of donors, sponsors, fundraisers, benefactors, committees, organizations, and volunteers. Jose Reyes, a low-level customer-call-center employee of the Bank of America, participated in Orchestra events as a volunteer and small donor for some ten years. But he acquired a reputation for crashing events uninvited, photobombing, and speaking to the media purportedly on the Orchestra's behalf but without authorization. Other supporters complained, and the Orchestra repeatedly requested him to stop. Finally, with approval of the Orchestra's president and chief executive officer, Jonathan Martin, Reyes was told that he was no longer welcome as a volunteer. At Martin's direction, the Orchestra's contact at the Bank was informed of the decision.

Early the next day, at 3:21 a.m., Reyes sent Martin a lengthy email from his Bank computer, protesting that he was "shocked and highly offended" at the way he had been treated. "As you know," he wrote, "we are one of your major donors that supports the [Orchestra]". "You don't bite the hand that feeds you," Reyes continued, "and this information is being duly noted by the Bank, which is not impressed. This is not going over very well with us right now." "I won't go quietly," he warned.

Martin had the email forwarded to the Orchestra's Bank contact. The contact responded that Reyes did not speak for the Bank and that further communications from Reyes should be forwarded to her. The contact notified Reyes' superior of all that had transpired, he referred the matter to the Bank's human resources department, and Reyes was placed on administrative leave. Several days later, the Bank terminated Reyes' employment, citing prior performance and violations of the Bank's social media policy, code of ethics, and conflict of interest policy.

The Orchestra issued this media advisory:

The Dallas Symphony Orchestra would like to inform its sponsors and media partners that as of [the previous day], Jose Reyes is no longer affiliated as a volunteer with the Dallas Symphony Orchestra or with any of its volunteer organizations and/or organizing committees. Thank you.

After receiving the advisory, D Magazine4 investigated the matter, interviewed Reyes, and published an article entitled "The Talented Mr. Reyes: How a Man of Meager Means and a Mysterious Past Duped Dallas Society ". "It seemed strange that so many people on the party circuit knew him," the article observed, " but none could say where he'd come from or what, precisely, he did for a living." Reyes "told people he worked ‘in marketing,’ " the article stated, when he actually "worked in a call center" and bought inexpensive event tickets but "portrayed [himself] as having a grander role in these events than he actually had." The article called Reyes a "social butterfly", noting that "[p]eople griped that he crashed parties, blustered his way into photos, and misrepresented his role with charities." After the Orchestra "fired Reyes as a volunteer", the article concluded, the Bank fired him as an employee.

Reyes sued D Magazine and the Orchestra alleging various tort claims. D Magazine and the Orchestra each moved for summary judgment on all of Reyes' claims. D Magazine argued that many of the statements in its article are constitutionally protected. The trial court issued an order granting D Magazine's motion on some claims5 but denying it on Reyes' claims for defamation, conspiracy to defame, negligence, and gross negligence. In a separate order, the trial court also granted the Orchestra's motion in part6 but denied it on Reyes' claims for conspiracy to defame and tortious interference with employment. D Magazine and the Orchestra each appealed the interlocutory order partially denying its motion for summary judgment.

Their appeals were based on Section 51.014(a)(6), which allows an interlocutory appeal by "a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media".7 Unquestionably, D Magazine is in the first category, and the Orchestra is in the second. The appeal must involve a claim or defense "arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or [Texas Civil Practice and Remedies Code] Chapter 73".8 Some of the claims and defenses in the case arise under libel law, covered by Chapter 73, and some of D Magazine's and the Orchestra's defenses arise under constitutional guarantees of free speech and a free press. Thus, it is undisputed that Section 51.014(a)(6) covers D Magazine, the Orchestra, and their defenses to some of Reyes' claims. But Reyes' claim of tortious interference against the Orchestra, and the Orchestra's defenses, do not arise under such constitutional guarantees or libel law.

The statute requires that the appeal be from "an interlocutory order of a district court ... that denies a motion for summary judgment that is based in whole or in part" on such a defense.9 The Orchestra argues that the statute covers its defenses to Reyes' tortious interference claims because they were a part of the basis for its motion for summary judgment that the district court denied with its order. Without analyzing the statutory text, the court of appeals disagreed. "We conclude," it wrote, that "the purpose of this section is to allow immediate appeal of claims involving free speech or press issues that are directed at the press or those the press rely upon as sources of information.... Our review ... is limited to the denial of summary judgment on claims or defenses implicating rights of free speech or free press."10

The court reversed the denial of D Magazine's motion for summary judgment, and part of the denial of the Orchestra's motion. The court held that Reyes' defamation claims failed because the statements in the article of which he complained were either true or not defamatory, and that absent a viable defamation claim, there could be no claim of conspiracy to defame.11 The court also held that Reyes' negligence claims failed because they were based entirely on the article and therefore should be treated as defamation claims.12 But the court held that it had no jurisdiction under Section 51.014(a)(6) to consider the Orchestra's argument that its motion for summary judgment on Reyes' tortious interference claim should not have been denied.13

On this last issue, six justices of the 13-member court dissented from the denial of the Orchestra's motion for rehearing en banc.14 They argued that "the plain meaning of section 51.014(a)(6)"—specifically, allowing an appeal from an order denying a motion "based in whole or in part" on constitutional issues—"authorizes appeal of an interlocutory order that denies a motion for summary judgment so long as at least one ground is based on a free-speech claim or defense."15 The dissenting justices noted that the courts of appeals have long been split on the matter.16

We granted Reyes' and the Orchestra's petitions for review.17


The Orchestra argues that Section 51.014(a)(6) allows it to appeal the denial of its motion for summary judgment on Reyes' tortious interference claim, and that the claim should fail.


As the court of appeals noted, we said in Bally Total Fitness Corp. v. Jackson that Section 51.014 should be "strictly construed as a ‘narrow exception to the general rule that only final judgments and orders are appealable.’ "18 That may have been the general rule once upon a time. Before 1979, interlocutory appeals were allowed in very few cases, only from orders appointing or refusing to vacate the appointment of a receiver or trustee, and granting or denying a temporary injunction.19 In 1979, the Legislature added another category of orders certifying or refusing to certify a class.20 So when Section 51.014 was first codified in 1985, it had four subsections—83 words—covering those orders.21 Now, the statute—in four times as many words—allows interlocutory appeals in 13 broad types of cases.22 Additionally, an interlocutory appeal can be taken from any order that "involves a controlling question of law as to which there is a substantial ground for difference of opinion" if permitted by the trial court, accepted by the court of appeals, and "an immediate appeal ... may materially advance the ultimate termination of the litigation."23 Limiting appeals to final judgments can no longer be said to be the general rule.

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