Jones v. Heslin
| Decision Date | 25 March 2020 |
| Docket Number | NO. 03-19-00811-CV,03-19-00811-CV |
| Parties | Alex E. Jones; Infowars, LLC; Free Speech Systems, LLC; and Owen Shroyer, Appellants v. Neil Heslin, Appellee |
| Court | Texas Court of Appeals |
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-18-001835, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
Appellants Alex E. Jones; Infowars, LLC; Free Speech Systems, LLC; and Owen Shroyer appeal from the district court's order denying their motion to dismiss under section 27.003 of the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code § 27.003.1 We will affirm the district court's denial of Appellants' motion to dismiss.
BACKGROUND
Neil Heslin's son, Jesse, was killed in the Sandy Hook Elementary School shooting in December 2012. In June 2017, Heslin participated in a television interview during which he responded to claims by Jones that the shooting at Sandy Hook was "a giant hoax."Shortly thereafter, Appellants aired broadcasts disputing Heslin's account of how he lost his son. In response, Heslin sued Appellants for defamation and defamation per se related to Appellants' statements disputing Heslin's claim that he held his deceased son in his arms. On July 13, 2018, Appellants filed a motion to dismiss Heslin's claims under the TCPA. In August 2018, Heslin filed a motion for expedited discovery. Heslin also responded to the motion to dismiss. On August 30, 2018, the district court held a hearing to consider the pending motions. At that hearing, the court determined that it would grant limited discovery relevant to the motion to dismiss. See Tex. Civ. Prac. & Rem. Code § 27.006(b). Because Appellants did not respond to any discovery requests, Heslin filed a motion for contempt, seeking sanctions under Rule 215. See Tex. R. Civ. P. 215. The day Heslin filed his contempt motion, Appellants filed a notice of appeal, asserting that their TCPA motion had been dismissed by operation of law. See Tex. Civ. Prac. & Rem. Code § 27.008(a) (). This Court dismissed that premature appeal for want of jurisdiction because the district court had not yet ruled on the motion at issue. Jones v. Heslin, 587 S.W.3d 134, 136-37 (Tex. App.—Austin 2019, no pet.).
The district court then held a hearing on Appellants' still-pending TCPA motion to dismiss and Heslin's motion for sanctions. At the hearing, Appellants acknowledged that they never responded to discovery and confirmed their agreement to stipulate, for purposes of the TCPA motion, that all of the factual allegations in Heslin's pleadings are true. Appellants' counsel further explained that "it really comes down to whether or not the Court finds that what the defendants are alleged to have done is protected expressions of opinion or alleged statements of fact." The district court granted Heslin's motion for sanctions and ordered that "pursuant to Rule 215.2(b)(3), the matters regarding which the August 31, 2018 order was made (Plaintiff'sburdens in responding to Defendants' TCPA Motion) shall be taken to be established in favor of Plaintiff for the purposes of the TCPA Motion." That is, under the district court's order, Heslin has met his burden to establish a prima facie case for defamation under the TCPA. In the same order, the district court denied the TCPA motion, specifying that the motion would have been denied even without taking the Rule 215.2(b)(3) sanctions into account. Appellants assert on appeal that the district court erred in denying their motion to dismiss. However, Appellants do not complain on appeal about the sanctions order. In fact, neither their brief nor their reply mention their stipulation to the facts alleged in Heslin's pleadings nor the sanctions awarded by the district court. Heslin responded, arguing that (1) this appeal is rendered frivolous by the unchallenged contempt sanctions establishing all the matters contained in Heslin's court approved written discovery (the subject of the August 31, 2018 order) and (2) even in the absence of the sanctions, Heslin met his burdens under the TCPA to survive dismissal. Heslin has also moved for sanctions in this Court under Texas Rule of Appellate Procedure 45, arguing that Appellants' appeal is frivolous "for several reasons," including the fact that Appellants' brief ignores the existence of the Rule 215 sanctions establishing discovery responses in Heslin's favor.
ANALYSIS
Generally, "[r]eviewing a TCPA motion to dismiss requires a three-step analysis." Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). As a threshold matter, the moving party must show by a preponderance of the evidence that the TCPA properly applies to the legal action against it. Tex. Civ. Prac. & Rem. Code § 27.005(b). If the moving party meets that burden, the nonmoving party must establish "by clear and specific evidence a prima facie case for eachessential element of the claim in question." Id. § 27.005(c). If the nonmoving party satisfies that requirement, the burden shifts back to the moving party to prove each essential element of any valid defense by a preponderance of the evidence. Id. § 27.005(d).
"In determining whether a legal action should be dismissed under [the TCPA], the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a). We review de novo whether each party carried its assigned burden. Long Canyon Phase II & III Homeowners Ass'n v. Cashion, 517 S.W.3d 212, 217 (Tex. App.—Austin 2017, no pet.).
Although in their initial brief Appellants argue extensively that the TCPA applies, Heslin does not dispute the applicability of the TCPA. Appellants' brief also argues at length that Heslin has not established a prima facie case for defamation or defamation per se. However, Appellants' reply brief acknowledges that the Rule 215 discovery sanction ." In other words, Appellants concede that the effect of the district court's unchallenged sanctions order is that Heslin has met his burden to establish a prima facie case for each essential element of defamation and defamation per se. Therefore, Appellants are proceeding solely ," to determine whether they established a valid defense to Heslin's claims. We therefore assume the TCPA applies and consider, in light of Appellants' stipulation to the truth of all facts asserted in Heslin's pleadings and the sanctions imposed by the district court, whether Appellants proved each essential element of a valid defense by a preponderance of the evidence.
Statute of Limitations
Appellants first assert the one-year statute of limitations as a defense "to the extent that Heslin's claims are based on any alleged 'long history' of defamatory statements." Although Heslin's pleadings and brief contain Appellants' "history" of statements regarding the death of Heslin's son as background and to show knowledge of falsity or Appellants' intent, the statements that serve as the basis for the current suit were made in two broadcasts: one in June 2017 and the other in July 2017. Heslin filed suit in April 2018, and Appellants seem to acknowledge that the broadcasts made in summer of 2017, if they are defamatory "in and of themselves," may serve as the basis of a timely filed claim for defamation. Having conceded that, for the purposes of the TCPA motion, Heslin established a prima facie case for defamation as to the statements made in the summer of 2017, Appellants are not entitled to dismissal based on the statute of limitations.
Timely Requesting a Correction
In their second alleged defense on appeal, Appellants argue that Heslin was required to seek a correction "not later than the 90th day after receiving knowledge of the publication" in order to recover exemplary damages. Appellants do not present any argument or evidence regarding when Heslin learned of the broadcasts, though they state that he requested a correction on April 11, 2018. Relying on an affidavit attached to his petition, Heslin argues that he learned of the broadcast during the first week of April 2018, shortly before requesting a correction. Because Appellants identify no evidence as a basis for their argument that Heslin failed to timely request a correction, they have not met their burden under the TCPA to prove each element of this defense by a preponderance of the evidence, and are therefore not entitled to dismissal.
Protected Statements of Opinion
Appellants' third defense is that their statements were opinions. By agreeing that Heslin established his prima facie case for defamation, as discussed above, which includes the element of publishing a "false statement of fact," Appellants seem to have already acknowledged they made at least one false statement of fact. See Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 380 (Tex. 2019) (). However, without addressing any particular statements alleged as the basis of Heslin's claims, Appellants argue, generally, that their statements are constitutionally protected expressions of opinion, rather than statements of fact. "Whether a statement is an opinion is a question of law." Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 639 (Tex. 2018). "And, like the determination whether a publication is false and defamatory, the determination whether a publication is an actionable statement of fact or a protected expression of opinion depends upon a reasonable person's perception of the entirety of the publication." Vice v. Kasprzak, 318 S.W.3d 1, 18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citing Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex. 2002)). To distinguish between fact and opinion, the Texas Supreme Court has determined that we are to use Milkovich v. Lorain...
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