Rogers v. Bryan
| Decision Date | 26 January 2023 |
| Docket Number | 09-21-00338-CV |
| Parties | JORDAN ROGERS, Appellant v. BENJAMIN DAVID BRYAN, Appellee |
| Court | Texas Court of Appeals |
Submitted on October 10, 2022
On Appeal from the 457th District Court Montgomery County, Texas Trial Cause No. 21-04-05679-CV
Before Horton, Johnson and Wright JJ.
In this accelerated interlocutory appeal, pro se Appellant Jordan Rogers ("Rogers") appeals the trial court's order denying her motion to dismiss a counterclaim filed by Appellee Benjamin David Bryan ("Benjamin" or "Ben") who is a defendant in the lawsuit filed by Rogers. Rogers filed her motion to dismiss pursuant to the Texas Citizen's Participation Act ("TCPA"). See Tex. Civ. Prac. & Rem. Code Ann. § 27.001-27.011, 51.014(a)(12) (authorizing interlocutory appeal of an order denying motion to dismiss filed under TCPA section 27.003).[1] We affirm.
Procedural Information Rogers filed a pro se original petition against Benjamin for breach of contract and intentional infliction of emotional distress.[2] Rogers alleged that she purchased a golden retriever in January 2021 and offered the dog for sale to Benjamin in April 2021. According to the petition, Rogers then "made an oral offer of her dog" to Benjamin "to accept her dog for free" under the condition that he take adequate care of the dog, and Benjamin requested a seven-day trial period with the dog. Rogers alleged that before Benjamin accepted the offer to keep the dog for "free," she requested payment for the dog or return of the dog, but Benjamin refused. Rogers alleged in the petition that when she communicated that she would involve law enforcement to recover the dog, Benjamin sent her "a threatening text with videos and photographs of his criminal sexual indecency with a child by exposure December 6, 2020 incident[]" and a video of him participating in a sexual act involving another dog. Rogers alleged she notified law enforcement.
Rogers alleged in the petition that six days into Benjamin's trial period with her dog, she sent a cell phone text to Benjamin "revoking her free offer with conditions and seven day trial period and communicated a new offer of selling the dog" to Benjamin. According to Rogers, she revoked her offer before Benjamin clearly accepted the dog or paid any consideration, and Benjamin was in breach of contract because he neither returned her dog nor paid her consideration for the dog. Rogers sought actual damages recission, exemplary damages, court costs, and pre-judgment and post-judgment interest. Rogers also alleged Benjamin inflicted severe emotional distress on her by sending her pornography, and she sought actual damages, exemplary damages, court costs, and pre-judgment and post-judgment interest on her intentional infliction of emotional distress claim. Rogers attached an exhibit to her original petition which is an 8 1/2" x 11" printout of a photograph on which she typed "Defendant pedophile Ben Bryan[,]" and underneath that phrase is what appears to be a photograph of a man in a vehicle, with two children in car seats in the back seat, and a dog sitting in the passenger seat, and then she also typed on it the words "Felony Arrest Warrant."[3] Benjamin filed an Original Pro Se Answer, Jury Demand and Counter-Claim, and he alleged that Rogers's pleadings were "entirely false, libelous and frivolous in violation of Chapters 9 & 10 of the Texas Civil Practice[] & Remedies Code."[4]According to Benjamin, Rogers asked him to take custody of the dog to prevent further physical abuse that the dog was experiencing, and Benjamin alleged he did not have a contract with Rogers. Benjamin alleged that Rogers's intentional infliction of emotional distress claims were entirely false and baseless, and that the trial court should strike her petition and assess penalties and sanctions. Benjamin asserted a counterclaim against Rogers for defamation, alleging that Rogers had "engaged in an ongoing and unlawful scheme to publish and otherwise communicate these false and defamatory claims to the public for the purpose of financial gain[,]" and Benjamin sought actual and punitive damages from Rogers.
In her TCPA Motion, Rogers alleged that Benjamin's counterclaim "is void of any facts to any elements of defamation, no clear and specific evidence of the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged him" as required by section 27.005(c) of the Texas Civil Practice and Remedies Code. Rogers further argued that, even if Benjamin met his burden by establishing a prima facie case for each essential element of defamation, her statements and publications were made in the course of judicial proceedings and are privileged, and her defense of "absolute judicial privilege" bars Benjamin's defamation claims.
Benjamin filed a First Amended Answer and Counter-Claim, the live pleading at the time of the trial court's ruling on Rogers's TCPA Motion, wherein Benjamin alleged the following:
Plaintiff/Counter-Defendant Rogers has engaged in an ongoing and unlawful scheme to publish and otherwise communicate the false and defamatory claims detailed in her Original Petition to the public. Rogers, and/or her agents, have done so in multiple ways, including by publishing the defamatory remarks in her petition to [Benjamin]'s neighbors, friends, and family. Rogers has also sent e-mails, text message, social media messages, and made social media posts in which she asserts as fact the vile and false claims in her petition. Untrue claims of [t]hese actions constitute unlawful slander, libel, and defamation under law. Rogers' written communications constitute Statutory Libel, because her statements injured [Benjamin]'s reputation, thus exposing him to public hatred, contempt, and/or ridicule and impeached his honesty, integrity, virtue, and reputation. The despicable claims Rogers has made-that [Benjamin] has engaged in sexual activity with children, bestiality, and other sexual misconduct and criminal offenses-are common law defamation per se. Rogers, and her agents, published these statements despite either knowing they were false, or with reckless disregard for their falsity, solely to injure [Benjamin]. [Benjamin] seeks the recovery of both actual and punitive damages from Rogers for such wrongful conduct as provided by law.
Benjamin also filed a motion for sanctions against Rogers.
Benjamin filed a response to the TCPA Motion. Therein, Benjamin argued that the trial court should deny the TCPA Motion because Rogers "has misused her 'Right to Petition' and/or 'Right to Free Speech' as a vehicle to publish false and defamatory comments" against Benjamin, and the TCPA Motion should be denied because he could establish a prima facie case of defamation per se against Rogers, and Rogers was unable to establish an affirmative defense. Benjamin attached (1) his unsworn declaration; (2) an unsworn declaration of his ex-wife, Lindsay Bryan ("Lindsay"), along with exhibits to her declaration; and (3) an affidavit of his neighbor, Daniel Ogden Jones. According to Benjamin, his exhibits established the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged him. Benjamin argued that the exhibits "show the communications [he] complains of-claims of criminal offenses and sexual misconduct-were made throughout April and May of 2021 via hard copy and digital communication (e-mail and text messages)." Benjamin argued that the defamatory nature of these communications is obvious from the face of the statements and that the statements are so obviously harmful that general damages may be presumed.
As for Rogers's affirmative defense of absolute judicial privilege, Benjamin argued that even though his defamation claim includes the defamatory communications made by Rogers in Rogers's petition, not all of Rogers's defamatory communications were made in her petition, and that the exhibits attached to his response demonstrate that copies of Rogers's petition were distributed by Rogers in Benjamin's neighborhood, they were emailed to his ex-wife, Lindsay, and dropped off at his ex-wife's residence. Additionally, Benjamin contends the judicial privilege does not apply because Rogers's defamatory communications have nothing to do with the claims she alleged in her petition. Citing to Landry's, Inc. v. Animal ...
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