Kinney v. BCG Attorney Search, Inc.
| Decision Date | 11 April 2014 |
| Docket Number | NO. 03-12-00579-CV,03-12-00579-CV |
| Parties | Appellant, Robert Kinney // Cross-Appellants, BCG Attorney Search, Inc.; and Professional Authority, Inc. d/b/a Legal Authority v. Appellees, BCG Attorney Search, Inc.; and Professional Authority, Inc. d/b/a Legal Authority // Cross-Appellee, Robert Kinney |
| Court | Texas Court of Appeals |
ON MOTION FOR REHEARING
NO. D-1-GN-12-001521, HONORABLE GARY HARGER, JUDGE PRESIDING
We withdraw our opinion and judgment dated August 21, 2013, and substitute the following in its place. Appellees' motion for rehearing is denied.
This is an interlocutory appeal from the trial court's partial denial, and cross-appeal from its partial grant, of a motion to dismiss under chapter 27 of the Texas Civil Practices and Remedies Code. See generally Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. Chapter 27, known as the Texas Citizens Participation Act (TCPA), is an "anti-SLAPP" statute that permits defendants targeted by "Strategic Lawsuits Against Public Participation" or SLAPP suits to move for dismissal if the action relates to the defendant's exercise of the right of free speech, right to petition, or right of association. See id. § 27.003. BCG Attorney Search, Inc., and Professional Authority, Inc. d/b/a/Legal Authority (sometimes jointly BCG) sued Kinney for breach of contract, breach of fiduciary duty, and violations of the Lanham Act, see 15 U.S.C. §1125(a), based on statements Kinney made in a post on an internet website. Kinney filed a motion to dismiss pursuant to section 27.003 of the TCPA. The trial court granted the motion as to BCG's Lanham Act claim and awarded sanctions against BCG. See Tex. Civ. Prac. & Rem. Code § 27.009(a)(2) (). The trial court denied the motion as to BCG's breach of contract and breach of fiduciary duty claims. For the reasons that follow, we reverse the trial court's denial of the motion as to the breach of contract and fiduciary duty claims, render judgment dismissing those claims, and affirm the order in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
BCG and Legal Authority are two of more than 100 affiliated job search websites, employment services, recruiting firms, online employment news magazines, and student loan companies owned by Andrew Harrison Barnes. From 2002 to 2004, Kinney worked for BCG, a legal recruiting company. Kinney contends his employment agreement with BCG was oral, confirmed by an offer letter that asked him to keep the terms of the offer confidential. According to Barnes, the terms of Kinney's employment were governed by a written employment agreement signed by Kinney. The employment agreement, on which Kinney maintains his signature was forged, includes a confidentiality provision. After leaving BCG, Kinney formed a legal recruiting firm, Kinney Recruiting, Inc. In May 2008, Kinney made a single post to an internet website describing BCG's business operations "based on his experience as a former employee" and statingnegative opinions of Barnes and his companies. The post was made anonymously and contained no reference to Kinney or his business.
Barnes, BCG, and other related companies (jointly Barnes and BCG) brought suit in California state court against Kinney, Kinney Recruiting, and other defendants who had posted comments concerning Barnes and BCG on the internet, asserting claims for libel, unfair competition, and intentional interference with economic advantage. In the complaint, Barnes and BCG alleged that the statements were false and defamatory, had damaged the reputations of Barnes and his companies, and had caused them to lose customers and business opportunities, resulting in damages in the amount of at least $10 million. Kinney filed a motion to strike under California's anti-SLAPP statute. See Cal. Civ. Proc. Code §§ 425.16-.18. The California court held that, with the exception of BCG, the plaintiffs had failed to demonstrate a probability that they would prevail on the merits. See id. § 425.16(b)(1) ().
As reasons for its conclusion, the court stated that (1) notwithstanding the allegations of unfair competition and interference with economic advantage, the gravamen of the action was libel and the complaint was barred by the one-year statute of limitations for libel, see id. § 340(c), because Kinney and Kinney Recruiting had not been added as defendants until more than one year after the posting of Kinney's comments and (2) the defendants had produced evidence that there was already a good deal of online discussion regarding plaintiffs' businesses when Kinney posted his remarks, which were based on first-hand knowledge and were statements of opinion that areprivileged communications under section 47 of the California Civil Code,1 see id. § 47(c) (). The California court also awarded Kinney and Kinney Recruiting more than $45,000 in attorney's fees and costs as the prevailing parties. See id. § 425.16(c). As for BCG, the court reasoned that it was Kinney's competitor and was therefore exempt from the anti-SLAPP statute. See id. § 425.17(c). Subsequently, however, the court dismissed BCG's claims as barred by limitations because BCG had not been added as a plaintiff until after the one-year statute of limitations for libel had expired, see id. § 340(c), and the court of appeal affirmed.2
In May 2012, BCG filed this action against Kinney asserting breach of the employment contract and breach of fiduciary duty for Kinney's disclosure of confidential information and violations of the Lanham Act for false and defamatory statements in Kinney's single online post. BCG alleged that it had suffered reputational injury and lost revenues and profits as a result of the post and sought damages of at least $1 million.3 Kinney filed a motion to dismiss pursuant to section 27.003 of the TCPA. The trial court heard the motion on July 3, 2012, and on that same day issued a "Court's Rendition on Defendant's First Amended Motion to Dismiss andfor Other Relief." Two days later the trial court issued and filed with the clerk a document entitled "Amended Court's Rendition on Defendant's First Amended Motion to Dismiss and for Other Relief," in which the court "render[ed]" that (1) the conduct alleged regarding the Lanham Act or other claims of libel or disparagement is protected speech governed by the TCPA and (2) the breach of contract and breach of fiduciary duty claims stem from an alleged employment agreement, the validity of which is a matter of fact, not law, to be determined by the trier of fact. Consequently, the trial court "render[ed] dismissal" of the Lanham Act claim and denial of the motion to dismiss as to the claims for breach of contract and breach of fiduciary duty. In connection with the dismissal of the Lanham Act claim, the trial court awarded $75,000 in sanctions against BCG. See Tex. Civ. Prac. & Rem. Code § 27.009(a)(2).
In the cover letter transmitting the amended rendition to the parties, the trial court asked counsel for Kinney to prepare an order consistent with the rendition. Kinney submitted an order, to which BCG objected and proposed revisions. Kinney filed his notice of appeal on August 31, 2012, and BCG filed a "conditional" notice of cross-appeal on September 14, 2012.4 On November 9, 2012, the trial court signed the order as submitted by Kinney. The order included additional findings not contained in the rendition, including that (1) the Lanham Act claims had been brought to deter or prevent Kinney from exercising his constitutional rights and for the improper purpose of harassing Kinney and (2) considering finding (1) and the previous litigation betweenthe parties, sanctions in the amount of $75,000 were necessary to deter BCG from bringing similar actions.
DISCUSSION
Standard of Review
The parties' issues concerning the TCPA present matters of statutory construction, which is a question of law that we review de novo. See Railroad Comm'n of Tex. v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). Of primary concern is the express statutory language. See Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009). We apply the plain meaning of the text unless a different meaning is supplied by legislative definition or is apparent from the context or the plain meaning leads to absurd results. Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010). "We generally avoid construing individual provisions of a statute in isolation from the statute as a whole[,]" Texas Citizens, 336 S.W.3d at 628, and we must consider a provision's role in the broader statutory scheme, 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008). We presume that "the entire statute is intended to be effective[,]" Tex. Gov't Code § 311.021(2), and we interpret it so as to give effect to every part, Parker, 249 S.W.3d at 396.
Jurisdiction over Interlocutory Appeal
Application of Amendment to TCPA
As a preliminary jurisdictional matter, we consider whether the TCPA authorizes this interlocutory appeal and cross-appeal. Since the enactment of chapter 27, our sister courts have wrestled with the question of whether section 27.008 provides for interlocutory appeal of a trial court's express ruling on a motion to dismiss and have come to differing conclusions. Compare KTRK TV, Inc. v. Robinson, 490 S.W.3d 682, 688 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (); San Jacinto Title Servs. of Corpus Christi,...
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