Weber v. Fernandez
| Decision Date | 28 March 2019 |
| Docket Number | No. 02-18-00275-CV,02-18-00275-CV |
| Parties | RICHARD A. WEBER, ERIC ELAM, AND JOE PALMER, Appellants v. FRANK FERNANDEZ, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 48th District Court Tarrant County, Texas
Before Gabriel, Pittman, and Bassel, JJ.
MEMORANDUM OPINION
This interlocutory appeal arises from the trial court's order denying Appellants Richard A. Weber's, Eric Elam's, and Joe Palmer's Texas Citizens Participation Act (TCPA) motion to dismiss.
Many understandably find the tenor of today's political discussion unpleasant. But the TCPA protects those who speak on matters of public concern. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011. Undoubtedly, the statements in this case—directed toward a public official, Appellee Frank Fernandez, who had recently pled guilty to a criminal offense, resigned from public office, and continued to participate in political activities—fall within the ambit of the TCPA. The legislature has made its decision that the subjects of legal actions falling within the ambit of the TCPA may immediately put those bringing the action to the task of establishing "by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). And the burden to make the prima facie showing in this case is enhanced by another rule of law designed to foster free—though perhaps unpleasant—speech. That rule requires clear and specific proof by a plaintiff who is a public figure that the defamatory statements were made with actual malice.
Here, the allegedly defamatory statements at issue were not made of whole cloth—the public record demonstrates that although the trial court deferred an adjudication of guilt, Fernandez had recently pleaded guilty to a charge ofmisdemeanor theft. See Tex. Penal Code Ann. § 31.03(e)(3). Instead, Fernandez challenges how Appellants characterized the disposition and nature of the offense that no one disputes occurred. We agree that Appellants made statements that mischaracterized both the disposition and the nature of the offense and that those mischaracterizations appear blatant to lawyers and judges who devote themselves to parsing the distinctions that Appellants misstated. But we do not analyze the statements through a lens so finely tuned to the intricacies of the law. Our lens focuses on whether the statements were substantially true as perceived by a person of ordinary intelligence. And again, at the TCPA stage, Fernandez carries the burden to establish by clear and specific prima facie proof that Appellants made the statements while acting with actual malice.
These principles guide our resolution of this appeal in two ways. First, analyzed through the lens of substantial truth perceived by a person of ordinary intelligence, we conclude that the mischaracterization of the disposition of the criminal offense was not defamatory. Second, we conclude that Fernandez failed to present clear and specific evidence to make a prima facie showing that Appellants mischaracterized the offense while acting with actual malice. But because Appellants failed to challenge Fernandez's claim for intentional infliction of emotional distress (IIED) in their TCPA motion to dismiss or on appeal, we affirm in part and reverse and remand in part.
This controversy began with a conflict between Fernandez and Janie Woodside Joplin. Fernandez is a former councilmember of the City of Kennedale; Joplin is a current councilmember of the City of Kennedale. According to Fernandez, his relationship with Joplin has been problematic since 2016 when Joplin's husband "physically accosted" him, and Fernandez in turn filed charges against him.
Fernandez's service as a councilmember ended in 2017 after legal troubles of his own. While still a councilmember, he was charged with the offense of Class A misdemeanor theft for allegedly stealing a silver bar worth more than $750 but less than $2,500. See id. As part of a plea bargain, Fernandez pleaded guilty to the offense. He was placed on deferred adjudication-community supervision, was fined $500, and was ordered to pay court costs. Fernandez resigned from his position as a councilmember around the same time that he pleaded guilty.
Fernandez claims that when he subsequently became involved in an effort to obtain signatures to support a petition to recall Joplin (who had recently been elected as a councilmember), Appellants and Joplin began "a smear campaign" against him by using a variety of media to publish "false and defamatory statements"—that he is "a convicted criminal" and a "known thief," that he "committed robbery while being a Kennedale city council member," that "he lied when gathering signatures for a Kennedale political campaign," and that he took part in "corruption and cover-up."Fernandez also alleged that Elam stopped him in the middle of the road and began filming him as an "intimidation tactic."
Fernandez filed a lawsuit against Appellants and Joplin, asserting claims for statutory defamation by libel, common law defamation by libel and libel per se, defamation by slander, and IIED.1 Fernandez also sought temporary and permanent injunctive relief. Fernandez filed a supplement to his pleading in which he asserted a claim against Appellants for conspiracy to defame.
Fernandez complained about the following communications from Appellants that he contends are defamatory:
Appellants filed a TCPA motion to dismiss, contending that Fernandez's claims were based on, related to, or in response to the exercise of their rights of free speech.2 See Tex. Civ. Prac. & Rem. Code Ann. § 27.003. Fernandez filed a response and objections to Appellants' declarations that were attached to their motion. The trial court considered the motion to dismiss by submission before signing an order indicating that it would sustain Fernandez's objections to Appellants' declarations,except that Appellants would be permitted to cure the formal defects in the declarations.3 The order then stated that the failure to cure the defects would result in the denial of the TCPA motion to dismiss but that if the defects were cured, the trial court would grant the motion to dismiss.
Appellants filed "improved" declarations and submitted a proposed order granting the motion to dismiss, but the trial court signed an order denying the motion. The order stated that the trial court had considered "the pleadings, the evidence and arguments of counsel," and while the trial court acknowledged its prior order indicating that it would grant the motion if the declarations' formal defects were cured, the trial court stated that it "undertook a complete review of the matter and decided to [deny] the motion."
Appellants raise three issues challenging the denial of their TCPA motion to dismiss: (1) the trial court erred by deciding that Fernandez's defamation claimsagainst them are not based on, related to, or in response to the exercise of their rights of free speech; (2) the trial court erred by deciding that Fernandez had established by clear and specific evidence a prima facie case for each element of his defamation claims, including that Appellants acted with actual malice because they contend Fernandez is a public figure; and (3) the trial court erred by deciding that Appellants had failed to establish by a preponderance of the evidence each element of their defense to the defamation claims. Although he disagrees with each contention, Fernandez focuses the majority of his brief on his contention that because...
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