Timothy Castleman & Castleman Consulting, LLC v. Internet Money Ltd., 07–16–00320–CV
| Decision Date | 19 April 2017 |
| Docket Number | No. 07–16–00320–CV,07–16–00320–CV |
| Citation | 545 S.W.3d 682 |
| Parties | Timothy CASTLEMAN and Castleman Consulting, LLC, Appellants v. INTERNET MONEY LIMITED d/b/a The Offline Assistant and Kevin O'Connor, Individually, Appellees |
| Court | Texas Court of Appeals |
Jared B. Hall, Leif A. Olson, Houston, for Appellants.
Anna McKim, J. Paul Manning, for Appellees.
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
The trial court denied the motion of Timothy Castleman and Castleman Consulting, LLC (Castleman) to dismiss the defamation suit filed against them by Internet Money Limited d/b/a The Offline Assistant and Kevin O'Connor (collectively referred to as Offline). Castleman thought itself entitled to such relief per the terms of the "Texas Citizens Participation Act" (TCPA). TEX. CIV. PRAC. & REM. CODE ANN. § 27.01 et seq. (West 2015). We affirm.
According to the limited record before us, the dispute arose from a commercial or business relationship between Castleman and Offline. The former retained the latter to help order and deliver products sold over the Castleman website. Allegedly, Offline failed to properly comply with instructions from Castleman about how to perform its tasks, which deviations purportedly resulted in Castleman experiencing lost profits. Offline responded by alleging that it had followed the instructions provided it.
Eventually, Castleman posted on the internet comments about Offline's performance. For instance, it titled one of its blogs "Warning: Stay Away From The Offline Assistant Company & Kevin O'Connor" and wrote about the business relationship between the two, how he mentored O'Connor, how he "help[ed] [O'Connor] grow his business," and the controversy arising therefrom. That blog also contained allegations that 1) "[n]o one from [O'Connor's] company ... reviewed any of the orders to ensure they were being done correctly despite his assurances they do quality control and project management on all jobs," 2) "[t]here was an 85% error rate by his staff in ordering products for us," 3) O'Connor "doesn't stand behind his employees['] work," and 4) Offline "has zero quality control or checks to ensure work is being done correctly." Through other internet avenues, Castleman stated that 1) his "goal [was] to protect other business owners from losing $8k or having to take a company to court like [he's] doing," and 2) "[t]he fallout for this is going to be maybe 10 or 100 multiples of what this guy owes me, and none of it had to happen."
Offline deemed the comments defamatory, demanded their removal, and requested damages. So too did it sue Castleman when the latter refused Offline's demands.
Upon answering the petition, Castleman invoked the provisions of the TCPA and moved to dismiss the suit. According to Castleman, Tim Castleman had Furthermore, the "Texas Citizens Participation Act" purportedly "protect[ed] him from [Offline's] attempts to impose upon him the cost of defending such a lawsuit."
The trial court denied the motion to dismiss and issued findings of facts and conclusions of law supporting its decision. Among other things, it determined that 1) "[t]he statements at issue arose out of the sale of goods, and the intended audience is actual or potential buyers or customers," 2) Castleman's "statements were made with either the knowledge of their falsity or, at the very least, with reckless disregard as to their truth or falsity," 3) Castleman "admitted their intent to harm [Offline] and acknowledged the damage their statements were causing [Offline]," 4) Castleman failed to prove that "the legal action was based on, related to, or was in response to [Castleman's] exercise of the right of free speech, the right to petition, or of the right of association," 5) "Defendant Castleman Consulting, LLC did not file a motion to dismiss under the Texas Citizens Participation Act," only Tim Castleman," and 6) Castleman's "acts fall within an exception to the Citizens Participation Act." Castleman appealed.
The sole issue before us concerns whether the trial court properly denied the motion to dismiss. We overrule the issue.
The TCPA requires the dismissal of suits that impinge on certain First Amendment rights. Greer v. Abraham , 489 S.W.3d 440, 441 (Tex. 2016). The rights within its scope are those pertaining to free speech, to petition, and of association. TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a). Yet, the Act "does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of ... a commercial transaction in which the intended audience is an actual or potential buyer or customer." Id. § 27.010(b). Offline contended that the circumstances underlying its suit fall within this exemption. The trial court agreed, as illustrated by its statements that the "statements at issue arose out of the sale of goods, and the intended audience is actual or potential buyers or customers," and Castleman's "acts fall within an exception to the Citizens Participation Act."
Before us, though, Castleman posits that the decision is "nonsense" since "[t]he commercial-speech exception denies the Act's protection to misstatements about the products or services of a company or its competitors in an attempt to win business for the speaker ." (Emphasis added). It was not attempting to win business for itself, according to Castleman, when uttering the purported falsehoods at bar. Rather, he was attempting to warn prospective customers of Offline about Offline's supposed business capabilities and shortcomings. And, to support the contention, he cited multiple opinions rendered by various Texas intermediate appellate courts and a federal trial court. See, e.g. , Epperson v. Mueller , No. 01-15-00231-CV, 2016 WL 4253978, 2016 Tex. App. LEXIS 8671 (Tex. App.—Houston [1st Dist.] Aug. 11, 2016, no pet.) (mem. op.); Backes v. Misko , 486 S.W.3d 7 (Tex. App.—Dallas 2015, pet. denied) ; Whisenhunt v. Lippincott , 474 S.W.3d 30 (Tex. App.—Texarkana 2015, no pet.) ; Hicks v. Grp. & Pension Adm'rs, Inc. , 473 S.W.3d 518 (Tex. App.—Corpus Christi–Edinburg 2015, no pet) ; Kinney v. BCG Attorney Search, Inc. , No. 03-12-00579-CV, 2014 WL 1432012, 2014 Tex. App. LEXIS 3998 (Tex. App.—Austin Apr. 11, 2014, pet. denied) (mem. op.); Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd. , 416 S.W.3d 71 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) ; NCDR, L.L.C. v. Mauze & Bagby , P.L.L.C., 745 F.3d 742 (5th Cir. 2014) ; Lamons Gasket Co. v. Flexitallic, L.P. , 9 F.Supp.3d 709 (S.D. Tex. 2014).
No doubt, cited authorities say what Castleman says they say, and it would be quite easy to simply accept that. Yet, one of those opinions caught our attention and caused us to hesitate. The opinion of which we speak is NCDR . Issued by the United States Court of Appeals for the Fifth Circuit, it too dealt with the commercial speech exemption of the TCPA. Apparently, Mauze & Bagby had posited that "the California Supreme Court, interpreting a ‘similarly-worded exemption,’ held that the exemption ‘did not exempt attorney advertisements from the protections of the Anti–SLAPP law.’ " NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C. , 745 F.3d at 755. The reviewing court rejected the argument, though, because M & B "neglect[ed] the fact that the California Supreme Court's holding rested on a clause in the California statute that is not present in Texas's anti-SLAPP statute." Id. "Texas's commercial speech exemption contains no such limitation...." Id. This observation about the difference between the Texas statute and California statute piqued our curiosity. This was so since the California Supreme Court opinion alluded to, i.e. Simpson Strong–Tie Co., Inc. v. Gore , 49 Cal. 4th 12, 109 Cal.Rptr.3d 329, 230 P.3d 1117 (Cal. 2010), was the very same California Supreme Court opinion relied upon by the court in Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd . More importantly, it was Newspaper Holdings that Backes , Whisenhunt , Hicks , Kinney and the others cited to hold as they did.
To continue reading
Request your trial
-
Timothy Castleman & Castleman Consulting, LLC v. Internet Money Ltd.
...exemption. The court of appeals affirmed, agreeing that the commercial-speech exemption applies. 545 S.W.3d 682, 2017 WL 1449224, at *4 (Tex. App.—Amarillo, Apr. 19, 2017). Because of that holding, the court of appeals did not address Castleman's challenges to the trial court's other findin......