Young v. Krantz

• Decision Date: 28 May 2014
• Docket Number: No. 05–13–00853–CV.,05–13–00853–CV.
• Citation: 434 S.W.3d 335
• Parties: Barbara Soules YOUNG and Amy Ganci, Appellants v. Robert and Hollie KRANTZ, Appellees.
• Court: Texas Court of Appeals

434 S.W.3d 335

Barbara Soules YOUNG and Amy Ganci, Appellants

v.Robert and Hollie KRANTZ, Appellees.

No. 05–13–00853–CV.

Court of Appeals of Texas,

Dallas.

May 28, 2014.

Julie E. Heath, Maricela Moore, William D. Cobb Jr., Matthew Last, Dallas, for Appellants.

Hollie Krantz, Robert Krantz, Dallas, for Appellees.

Before Justices BRIDGES, FILLMORE, and LEWIS.

OPINION

Opinion by Justice BRIDGES.

Appellants Barbara Soules Young (“Young”) and Amy Ganci (“Ganci”) appeal from the trial court's denial of their motion to dismiss. In a single issue, appellants contend the trial court should have granted their motion to dismiss pursuant to chapter 27 of the Texas civil practice and remedies code, the Texas Citizens Participation Act (“TCPA”). For the reasons expressed in this opinion, we reverse the trial court's order, render judgment granting appellants' motion to dismiss pursuant to the TCPA, and remand this case to the trial court for further proceedings consistent with section 27.009(a) of the Texas civil practice and remedies code.

Background

In 2010, Young hired an architect to design an outdoor living space as an addition to her home. Young then contacted Perennial Properties GC, LLC (“Perennial”) to obtain a quote to build the outdoor living space. Young met with appellee Robert Krantz (“Krantz”), who indicated he was the owner of Perennial. In June of 2011, Young and Krantz, on behalf of Perennial, entered into the “Contract Home Deck Addition,” which outlined the construction to be performed by Perennial and the payments to be made by Young.

Appellants allege Perennial failed to comply with the agreed-upon plans. For example, they contend: (a) Perennial did not perform the services timely; (b) Krantz or his workers left materials on Young's property and her neighbor's property; (c) the materials used were of poor quality; (d) Perennial failed to obtain the proper permits; and (e) Perennial abandoned the job before completion.

On September 15, 2011, Young received a letter from McKinney Lumber Company (“MLC”), stating Perennial failed to pay MLC $9,779.90 for lumber that was delivered to Young's address in July and August 2011. On October 14, 2011, MLC filed a lien affidavit and claim for mechanic's and materialman's lien against Young's property, which is alleged to have had a negative impact on Young's credit.

On October 12, 2012, MLC filed a lawsuit (“Underlying Lawsuit”) against Perennial and Young, seeking payment for lumber and materials purchased by Perennial for Young's outdoor addition. Appellant Ganci is the attorney representing Young in the Underlying Lawsuit. On December 19, 2012, Young filed counterclaims against MLC, Perennial, Krantz and Hollie Krantz, alleging, in part, that Perennial's work was substandard.

On January 30, 2013, Young, with the assistance of Ganci, prepared an Angie's List review (“Review”) regarding Young's experience with appellees and Perennial. The Review, titled “Outdoor Living Space Nightmare—Shoddy Untimely Work and Failure to Pay Materials,” gave Perennial an overall grade of “F.” In response to the Review, appellees filed a petition in intervention in the Underlying Lawsuit asserting claims against appellants for defamation and intentional infliction of emotional distress.

Pursuant to the TCPA, on March 22, 2013, appellants filed a motion to dismiss the claims asserted against them by appellees. After a hearing on April 22, 2013, the trial court denied appellants' motion to dismiss and severed the claims filed by appellees against appellants from the Underlying Lawsuit.

Analysis

In their sole issue on appeal, appellants argue the trial court erred by denying their motion to dismiss under the TCPA, because they were exercising their right to free speech in posting the Review. Appellees respond that the TCPA does not apply to the Review because the Review was defamatory per se.

Standard of Review

The issue in this case is whether the TCPA applies to appellants' Review on Angie's List. We review questions of statutory construction de novo. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011). When construing a statute, our primary objective is to ascertain and give effect to the legislature's intent. Tex. Gov't Code Ann. § 312.005 (West 2005); Molinet, 356 S.W.3d at 411. “We look first to the statute's language to determine that intent, as we consider it ‘a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.’ ” Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008) (quoting Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999)); see also Molinet, 356 S.W.3d at 411. We consider the statute as a whole rather than focusing upon individual provisions. TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011). If a statute is unambiguous, we adopt the interpretation supported by its plain language unless such an interpretation would lead to absurd results. Id. (citing Tex. Dep't of Protective and Regulatory Servs. v. Mega Child Care, 145 S.W.3d 170, 177 (Tex.2004)).

Applicable Law

The purpose of the TCPA is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem.Code Ann. § 27.002; see alsoTex. Const. Art. 1, § 8 (“Every person shall be at liberty to speak, write or publish his opinions on any subject....”). The TCPA is to be “construed liberally to effectuate its purpose and intent fully.” Id. at § 27.011(b).

The TCPA provides a means for a defendant, early in the course of a lawsuit, to seek dismissal of certain claims identified in the TCPA, including a legal action based on, relating to, or in response to a party's exercise of the right to free speech. Id. at § 27.003(a). “Exercise of the right of free speech” is defined as “a communication made in connection with a matter of public concern.” Id. at § 27.001(3). “Matter of public concern” includes an issue related to (1) health or safety; (2) environmental, economic, or community well-being; (3) the government; (4) a public official or public figure; or (5) a good, product, or service in the marketplace. Id. at § 27.001(7).

When a court orders dismissal of a legal action under the TCPA, the court shall award to the moving party (1) court costs, reasonable attorney's fees, and other expenses incurred in defending against the legal action as justice and equity may require, and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions. Id. at § 27.009(a).

Applicability of the TCPA to the Angie's List Review

To be entitled to a dismissal under the TCPA, appellants were required to establish by a preponderance of the evidence that appellees' defamation and intentional infliction of emotional distress claims are based on, relate to, or are in response to appellants' exercise of the right of free speech. Better Bus. Bureau of Metropolitan Dallas v. BH DFW, Inc., 402 S.W.3d 299, 307 (Tex.App.Dallas 2013, pet. denied). Specifically, appellants were required to establish by a preponderance of the evidence that the Review was a communication made in connection with a good, product, or service in the marketplace. Tex. Civ. Prac. & Rem.Code Ann. §§ 27.001(3), 27.001(7)(E).

The evidence before us shows that on January 20, 2013, Young, with the assistance of Ganci, posted the Review on Angie's List, which expressed Young's opinion regarding her experience with Perennial and appellees. As noted above, the Review gave Perennial an overall rating of “F” and the comments section of the Review stated as follows:

Homeowner hired this company through Robert Krantz, its principal, to construct an exterior deck living space onto a residential homestead. Krantz bid the job at $33,684.00 and the parties entered into a written contract in June 2011. Krantz promised to complete the deck by August, 2011 and agreed to build the deck according to plans that the homeowner had paid an architect and engineer to design. Krantz took the homeowner's money and ordered the wrong materials for the project, but had the framer construct a structure anyway, failing to connect columns and beams in a safe fashion or as designed by the engineer. The framer reports that he was told by Krantz not to do the connections as designed because it was too expensive. Krantz would disappear for weeks at a time and would try and satisfy the homeowner by sending over an undocumented worker, Walter, to slap paint around and act like work was being performed. Krantz used substandard materials not specified in the plans and failed to credit the homeowner for the significant difference in value of the products—particularly roof, railing and skylight materials. Krantz did not supply workers with a port-a-potty as required in the parties contract and the homeowner was forced to allow strange workers—many believed to be undocumented—into her home to use bathroom facilities, as opposed to having them urinate. etc. outdoors on her property. Krantz failed to keep the property cleaned up during the project and even allowed lumber to sit on a neighbor's driveway until the homeowner paid to have it moved. Krantz was paid through framing although he failed to obtain a framing inspection as agreed. The homeowner then learned he had only obtained a permit from the City of Dallas for a $6,000.00 deck addition and not the $33,684.00 outdoor living space contracted for. After paying according to the contract through the framing, the homeowner received a Notice of Intent to File Lien from McKinney Lumber Company, LLC, which claimed Perennial had ordered lumber in July and not paid the...