Opinion
No. 05-18-00003-CV
06-12-2018
CYRIL WILLIAM "BUDDY" MINETT, Appellant/Cross-Appellee v. JEFFORY G. SNOWDEN, Appellee/Cross-Appellant
On Appeal from the 366th Judicial District Court Collin County, Texas
Trial Court Cause No. 366-04143-2017
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Lang
In this interlocutory appeal, Cyril William "Buddy" Minett challenges the trial court's denial of his motion to dismiss Jeffory G. Snowden's claims against him pursuant to the Texas Citizens Participation Act ("TCPA"). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001-.011 (West 2015). Specifically, in his sole issue on appeal, Minett contends (1) Snowden failed to produce clear and specific evidence of his claims for defamation and conspiracy and (2) the publications in question were "covered by qualified privilege." Additionally, on "conditional cross-appeal," Snowden states that if this Court does not affirm the denial of Minett's motion to dismiss, "then Snowden asserts that the trial court erred in denying his Motion for Specified and Limited Discovery to obtain additional evidence to establish his prima facie case of defamation."
We decide Minett's issue against him, in part, and in his favor, in part. Further, we conclude this Court lacks jurisdiction over Snowden's "conditional cross-appeal." We (1) dismiss Snowden's cross-appeal for lack of jurisdiction; (2) reverse the trial court's order, in part; (3) render judgment dismissing a portion of Snowden's claims; (4) otherwise affirm the trial court's order; and (5) remand this case to the trial court for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL CONTEXT
In early spring 2017, Snowden campaigned for a seat on the board of the Frisco Independent School District. The general election for that position was held on May 6, 2017. At some point prior to April 20, 2017, the Dallas Morning News ("DMN") published a "voter guide" featuring responses of Snowden and other candidates to several questions, including the following: "Have you ever been arrested on any misdemeanor or felony charge or otherwise involved in any criminal judicial proceeding? If so, please explain and include the outcome of the case." Snowden's response to that question was "No."
On April 20, 2017, statements pertaining to Snowden's response to the DMN questionnaire were published in a post on the Facebook page of "Frisco Citizens for Campaign Integrity" ("FCCI"). Specifically, that post ("the Facebook post") stated in part as follows:
BREAKING: Frisco United Candidate Jeff Snowden For Frisco ISD Lied to Dallas Morning News About Criminal Record, Conviction for Serving Alcohol to Minors. Share with voters, and follow Frisco Citizens for Campaign Integrity for future alerts revealing the truths that politicians want to hide from you.
Frisco United Candidate Hides Criminal Conviction
Jeff Snowden Arrested, Convicted for Serving Alcohol to Minor
FOR IMMEDIATE RELEASE
April 18, 2018
Frisco, TX: Recently, Frisco ISD School Board candidate Jeffrey Green Snowden lied to the Dallas Morning News about being arrested and convicted of serving alcohol to a minor.
This fact was uncovered by concerned Frisco citizens during a routine vetting and background check prompted by an incident involving some Frisco teenagers.
In Case 90-0833 The State of Texas vs. Jeffrey Green Snowden, Mr. Snowden pled guilty and was convicted of selling alcohol to a minor in violation of Texas Statute 106.03, a Class A Misdemeanor. Mr. Snowden was sentenced to 90 days in the Brazos County Jail.
. . . .
The Dallas Morning News Questionnaire offers voters a glimpse into what their elected officials stand for. Mr. Snowden lied when asked the following question:
Have you ever been arrested on any misdemeanor or felony charge or otherwise involved in any criminal judicial proceeding? If so, please explain and include the outcome of the case.
A statement from the new watchdog group Frisco Citizens for Campaign Integrity: "It is very disappointing to learn that a school board candidate would tell such an egregious lie. If he is not honest about his past, voters should not trust him when it comes to the future of Frisco teachers and students. This is the opposite of transparency."
Additionally, on approximately April 28, 2017, "numerous" Frisco residents received mailed copies of a flyer from FCCI ("the flyer") that stated in part,
The record does not show how many Frisco residents received the flyer. The term "numerous" was used by Snowden in his affidavit described below.
When it comes to deceiving Frisco voters . . .
Jeff Snowden and Bryan Powell are two peas in a pod!
Since Snowden and Powell Lied to Voters About Their Past, We Should Not Trust Them With the Future of Our Schools.
Further, at the bottom of the flyer was the following notation: "*DMN questionnaires April 2017. Snowden inmate #83390. Powell Prisoner ID #79991."FACT: Jeff Snowden and Bryan Powell failed to disclose their arrest records in their Dallas Morning News questionnaires.
FACT: Jeff Snowden was arrested for serving alcohol to a minor.
FACT: Bryan Powell was arrested for public intoxication, disorderly conduct and resisting arrest.
FACT: Bryan Powell and Jeff Snowden talk about transparency, but they don't think it applies to them.
. . . .
Don't allow our schools to fall prey to politicians who will say just about anything to get elected.
This lawsuit was filed by Snowden on August 29, 2017. In his live petition at the time of the trial court's order complained of, Snowden asserted claims against Minett for defamation and conspiracy based on the Facebook post and flyer. Specifically, according to Snowden, (1) "Defendant, acting individually and in concert with his fellow FCCI members, first defamed Plaintiff by way of a Facebook Post on an anonymous Facebook page operated under the FCCI name"; (2) in an April 22, 2017 "detailed response on FCCI's Facebook page," Plaintiff "advised Defendant and his fellow FCCI members of all of the true facts," including that Plaintiff "had not lied in response to the Dallas Morning News question at issue," "had never been 'arrested,'" "had never 'pled guilty' to selling alcohol to a minor or minors," and "was never 'sentenced to 90 days in the Brazos County Jail'"; (3) nevertheless, on approximately April 28, 2017, "the Flyer went even further by blatantly claiming the false statements at issue were 'FACT;' and fabricating a false inmate number for Plaintiff—'Snowden inmate #83390'"; (4) although "Defendant and his fellow FCCI members went to great lengths to hide behind the FCCI name in order to conduct their anonymous, defamatory attack on Plaintiff aimed at influencing Frisco's voters," Plaintiff "was able to expose Defendant's identity" by petitioning the trial court for pre-suit discovery, including a deposition of Ed Valentine of Valentine Direct Marketing ("VDM"), the company hired to print and coordinate distribution of the flyer; and (5) "Plaintiff has suffered and continues to suffer economic and non-economic damages due to the unlawful conduct of Defendant and his co-conspirators."
Attached to Snowden's petition was a copy of a 1991 "Judgment and Sentence" in cause number 833-90 in County Court at Law No. 1 of Brazos County, Texas. That judgment stated that defendant "Jeffrey Green Snowden" (1) was charged with the misdemeanor offense of delivery of alcohol to a minor, which occurred on February 8, 1990; (2) pleaded not guilty to that charge and waived a jury trial; (3) was tried before the court and found guilty as charged; and (4) was sentenced to "thirty (30) days in jail" and a fine of $100, both of which were probated for ninety days.
Minett filed a general denial answer and asserted several defenses, including "qualified privilege." Additionally, Minett filed a September 28, 2017 motion to dismiss Snowden's claims pursuant to the TCPA. Therein, Minett asserted in part (1) "[t]he facts are . . . that Snowden was charged and convicted of selling alcohol to a minor and in response to a direct question about his criminal history from the Dallas Morning News, denied having been involved in any criminal proceedings"; (2) "Snowden cannot satisfy the requirements necessary to avoid dismissal and cannot produce the required evidence regarding publication, falsity, actual malice, or damages"; and (3) even if Snowden could provide clear and specific evidence of all the elements of his claims, the claims still must be dismissed because "qualified privilege applies." Exhibits attached to Minett's motion to dismiss included (1) an affidavit by him; (2) a printout of a computer screen showing purported "Westlaw information"; and (3) a printout of a "Brazos County Judicial Records Search."
In his affidavit, Minett stated in part,
5. Mr. Snowden was a defendant in a criminal judicial proceeding in Case No. 833-90, The State of Texas v. Jeffrey Green Snowden, in the County Court at Law No. 1 of Brazos County, Texas. This information is reflected in the Judgment and Sentence attached to Plaintiff's Original Petition. In that case, he was charged, tried by the Court and convicted of the crime of delivery of alcohol to a minor.
6. In his response to the Dallas Morning News, Mr. Snowden did not identify that he had been involved in the criminal judicial proceeding or explain the proceeding or outcome as directly requested by the Candidate Questionnaire. Mr. Snowden's response to the Dallas Morning news questionnaire was not accurate. Research showed Mr. Snowden's criminal history and the conviction for the crime in question.
7. Frisco Citizens for Campaign Integrity ("FCCI") is an organization that was formed to provide voters in the community with information related to political candidates for local office. I did not donate money to FCCI and am not an officer of FCCI.
8. I did not manage the FCCI Facebook page or post the statement on Facebook that is discussed in Mr. Snowden's Original Petition. The flyer discussed in Mr. Snowden's Original Petition was distributed to voters with an interest in the Frisco ISD School Board election.
9. I reviewed records regarding Mr. Snowden's criminal history including information from Westlaw that indicated he was arrested on February 8, 1991. A true and correct copy of the Westlaw information is attached hereto.
That Westlaw screen printout shows a "Current Date" of "09/20/2017" and contains, among other things, the following statements: (1) "Offender Name: SNOWDEN, JEFFERY GREEN"; (2) "Date of Arrest: 02/08/1991"; (3) "Arresting Agency: Community Supervision and Corrections Department"; (4) "Case Information: INMATE NUMBER: 83390"; (5) "Offense Charged: DELIVERY OF ALCOHOL TO A MINOR"; (6) "Court Disposition: CONVICTED"; (7) "Sentence: 30 DAY(S)"; and (8) "Probation Max: 90 DAY(S)."
That undated printout describes the defendant as "Snowden, Jeffrey Green," describes the "Charge" as "SELL ALC BEV TO PERS<21," and contains, among other things, the following statements: (1) "Case Number 90-0833"; (2) "07/12/1991 Sentenced—Brazos County Jail (OCA)"; (3) "Confinement to Commence: 07/12/1991"; and (4) "CSCD 0 Year 0 Month 90 Days with Community Service of 0 Hour."
Snowden filed an October 13, 2017 "Motion for Specific and Limited Discovery" pursuant to TCPA section 27.006(b). See id. § 27.006(b). That motion was denied by the trial court in an order dated November 20, 2017. Subsequently, Snowden filed a response to Minett's motion to dismiss in which he contended the motion to dismiss should be denied because (1) Snowden can establish by clear and specific evidence a prima facie case for each essential element of his defamation and conspiracy claims, and (2) Minett cannot establish by a preponderance of the evidence each essential element of a valid defense.
Exhibits attached to Snowden's response to the motion to dismiss included, among other things, affidavits of (1) Snowden; (2) Kyle Davis, a criminal defense lawyer who practices in Brazos County; (3) Snowden's wife, Jane Snowden; and (4) several former and potential clients of Snowden, who testified he was not hired for certain projects because of the statements in question. Also, the attachments to Snowden's response included excerpts from the pre-suit deposition of Valentine described above, in which Valentine testified in part (1) the content of the flyer was "hand-delivered" to VDM "after hours" in a folder dropped through VDM's mail slot; (2) after receiving that folder, Valentine had a conversation about the content and cost of the flyer with Minett, whom he understood to be responsible for the delivery of the folder to VDM; (3) Valentine does not recall speaking with anyone other than Minett respecting the content of the flyer; (4) FCCI was billed $8,919.26 for VDM's work respecting the flyer; and (5) after the flyers were sent, Valentine spoke with Brian Ravkind, whom he understood to be the treasurer of FCCI, about payment.
In his affidavit, Snowden testified in part,
3. In May 1990, I worked as a bartender at the Ptarmigan Club in Bryan, Texas while attending college at Texas A&M University. One evening, a Texas Alcoholic Beverage Commission ("TABC") agent cited all of the employees working in the bar, at the time, for an incident involving college students. It is my understanding that one of the college aged students had taken a drink off the bar, which I had poured for a waitress and placed on her serving tray. The student took the drink without my knowledge. The TABC agent alleged the student was not twenty-one years old at the time and cited all the employees in the bar for serving alcohol to a minor.
4. I have asserted my innocence from the time of the citation until today. Neither I nor any of my coworkers was arrested in conjunction with the citation. I pleaded not guilty in response to the citation and represented myself. I was later found guilty in a trial to the judge in July 1991. The Judge ordered me to serve probation and pay $112.50 in court costs. I did not serve any time in jail. I was never assigned an inmate number.
. . . .
7. During the campaign process, I responded to a voluntary Dallas Morning News candidate questionnaire. . . . One of the questions asked by the Dallas Morning News was, "[h]ave you ever been arrested on any misdemeanor or felony charge or otherwise involved in any criminal judicial proceedings?" The Dallas Morning News did not define "criminal judicial proceeding." I answered "no" to this question because I have never been arrested nor involved in a criminal judicial proceeding as I understand the meaning. When answering this question, I did not equate the TABC citation and related events with a "criminal judicial proceeding."
8. I had no intention to deceive the voters or hide my past. There was no reason to hide what happened twenty-seven years ago. While I may have interpreted the question differently than Buddy Minett and anyone associated with him using the name "Frisco Citizens for Campaign Integrity" ("FCCI"), my answer is truthful.
. . . .
12. I welcomed the opportunity to explain the past events. Thus, as an attempt to correct some of the damage caused by the April 20, 2017 Facebook Post, on April 22, 2017, I responded on Facebook with the following statement: (herein the "April 22, 2017 Response" and a true and correct copy of the email I sent to my wife, Jane Snowden, with the post is attached hereto as Exhibit D):
"I think most voters see through fake news from anonymous sources. For those who want more details, here are the facts:
1. While attending Texas A&M University, I worked as a bartender.
2. In May of 1990 [27 years ago] an undercover TABC agent observed [a minor] drinking alcohol at the bar where I was working.
3. All bartenders, waitresses and employees received a ticket for serving minors, including me.
4. I refused to plead guilty and pay the fine (the easy route). Why? Because I did not serve minors. On a very busy night at a bar in a college town, I filled one of many orders from a waitress, placed the drink on her tray and immediately moved on to my next order. The TABC agent claimed to observe a minor remove a drink I had prepared off of the tray where I had placed it.
5. I challenged this and requested to appear before the judge so that I could make my case.
6. Fourteen months later I got my day in court. Because I was a broke college kid I represented myself. The judge sided with the undercover TABC agent and I lost.
7. I paid $212.50 [sic] in fines and court fees. That was the extent of my punishment.
8. I was not arrested, never pleaded guilty, and never served any time in jail. I got a ticket and fought it. . . . . FISD Voters, how about we send these people our own message? Vote for Jeff Snowden!"
13. Unfortunately, I was unable to identify the individuals behind the anonymous April 20, 2017 Facebook Post to request that a formal retraction and correction be issued. The "FCCI" Facebook Page was anonymous and the administrator was undisclosed. Additionally, there were no public documents available regarding the existence of a Political Action Committee ("PAC") named "FCCI" or otherwise, nor any other information related to "FCCI" or its members. . . .
. . . .
16. The Flyer wrongly claimed that I had lied to voters about my past. The Flyer also incorrectly stated I had failed to disclose my arrest record to the Dallas Morning News. The Flyer additionally claimed I had been arrested for serving alcohol to a minor. The Flyer even falsely claimed to the voters that I had served jail time as it included a false inmate number next to my name -"Snowden inmate #88390." All of these statements taken together painted a much more damaging picture of me than the truth which I had previously set forth in my public April 22, 2017 Response.
17. As the Flyer was sent to numerous, unknown Frisco voters whose identities were unknown to me, I was unable to correct and challenge the defamatory statements in the Flyer with each of the voters who received the Flyer. However, the Flyer did contain the direct mail stamp of Valentine Direct Marking ("VDM"). Thus, I contacted VDM and spoke with Ed Valentine, who I understand to be the owner, regarding who was responsible for the Flyer. Mr. Valentine refused to identify the individual responsible for the Flyer. Therefore, my only recourse to redeem my public, personal and professional reputation was to hire legal counsel. My attorneys filed a Rule 202 Petition on my behalf in order to compel VDM and Mr. Valentine to provide a deposition and identify those behind the Flyer and "FCCI." Mr. Valentine testified that Buddy Minett was responsible for the content of the Flyer and the only person he spoke with about the Flyer prior to its mailing with the one exception of the company that provided graphics for the Flyer.
Davis testified in his affidavit,
I have reviewed the attached documents and discussed the facts of the charges with Mr. Jeffory Snowden. From this, I make the following conclusions.
"The charge of Delivering Alcohol to a Minor was alleged by the Texas Alcoholic Beverage Commission (TABC) and resulted in a citation. . . . There was not an arrest in this case based upon Mr. Snowden which is supported by the docket sheet not listing a bondsman or refer to any bond. In Brazos County it is customary for TABC officers to give a citation instead of arrest, then present the case to the County Attorney's office to file charges and require that person to come to court when notified. The case was concluded when a jury was waived and a bench trial resulted in a 30 day jail sentence which was probated for 90 days. The $100.00 fine was also probated. A condition of this probation was to pay the $112.00 court cost. There was never any jail time served as a result of this citation, either with an arrest or with a sentence after a finding of guilt."
Jane Snowden's affidavit stated in part,
In an effort to correct some of the damage done by the April 20, 2017 Facebook Post, on the same day, I posted a response on behalf of Jeff. My response was written in the comment section to FCCI's April 20, 2017 Facebook Post and informed everyone associated with FCCI and its followers that the information was wrong and the fake press release was itself a lie.
Minett filed a reply in support of his motion to dismiss in which he restated his arguments described above and asserted in part (1) "[t]he gist of the Facebook post and the flyer is that Snowden, a political candidate, lied to the Dallas Morning News and the public about his criminal record"; (2) "Snowden does not allege, much less provide clear and specific evidence, that Minett participated in the Facebook post or even knew that it would be published"; (3) "Snowden cannot use a conspiracy claim to hold Minett liable for the alleged actions of non-parties"; and (4) "[t]here is no evidence that Minett knew the allegedly erroneous statements were false or that he had serious doubts regarding the truth of the information."
After a hearing, the trial court signed a December 19, 2017 order denying Minett's motion to dismiss in its entirety. This interlocutory appeal timely followed. See id. § 51.014(a)(12) (West Supp. 2017).
II. DENIAL OF MINETT'S TCPA MOTION TO DISMISS
A. Standard of Review and Applicable Law
The TCPA was enacted "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." Watson v. Hardman, 497 S.W.3d 601, 605 (Tex. App.—Dallas 2016, no pet.) (quoting CIV. PRAC. & REM. § 27.002). The main feature of the statute is a motion procedure that enables a defendant to seek the dismissal of frivolous claims. Id.
Under the TCPA, the movant has the initial burden to show by a preponderance of the evidence that the legal action "is based on, relates to, or is in response to" the movant's exercise of the right of free speech, petition, or association. Id. (citing CIV. PRAC. & REM. § 27.005(b)). If the movant carries its initial burden, the nonmovant must then "establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question." CIV. PRAC. & REM. § 27.005(c). If the nonmovant fails to carry this burden, the trial court shall dismiss the legal action. Id. § 27.005(b)-(c). Further, even if the nonmovant satisfies its section 27.005(c) burden, the trial court shall dismiss the legal action if the movant establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim. Id. § 27.005(d). If the trial court dismisses a legal action, it shall award the movant court costs, reasonable attorney's fees, and certain other expenses. Id. § 27.009(a).
In determining whether a legal action should be dismissed under the TCPA, "the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a). Also, "[o]n a motion by a party or on the court's own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion." Id. § 27.006(b). A "prima facie case" refers to "evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted." In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015). It is the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Id. "[T]he clear and specific evidence requirement ultimately means that the 'plaintiff must provide enough detail to show the factual basis for its claim.'" Watson, 497 S.W.3d at 610 (quoting Lipsky, 460 S.W.3d at 591).
Appellate courts "review de novo the trial court's determinations that the parties met or failed to meet their § 27.005 burdens." Id. at 605 (citing Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 282 (Tex. App.—Dallas 2015, pet. denied)); accord Levatino v. Apple Tree Café Touring, Inc., 486 S.W.3d 724, 727 (Tex. App.—Dallas 2016, pet. denied); Campbell v. Clark, 471 S.W.3d 615, 623 (Tex. App.—Dallas 2015, no pet.); see also Fishman v. C.O.D. Capital Corp., No. 05-16-00581-CV, 2017 WL 3033314, at *5 (Tex. App.—Dallas Jul. 18, 2017, no pet.) (mem. op.) ("In conducting this review, we consider, in the light most favorable to the non-movant, the pleadings and any supporting and opposing affidavits stating the facts on which the claim or defense is based.").
B. Analysis
As described above, Minett contends in his sole issue that the trial court erred by denying his motion to dismiss because (1) Snowden failed to produce clear and specific evidence of his claims for defamation and conspiracy and (2) Minett established the defense of qualified privilege by a preponderance of the evidence. Snowden disputes those contentions with multiple specific arguments, which we address in detail in the analysis below.
Following oral submission before this Court, Snowden requested leave to supplement his appellate brief by filing a post-submission letter brief. In response, Minett asked this Court to deny Snowden's request or, in the alternative, allow Minett to file a post-submission letter brief addressing Snowden's letter brief. We hereby grant the parties' respective motions for leave to file post-submission letter briefs. We consider the arguments and authority in those post-submission letter briefs in our analysis.
1. Evidence Respecting Snowden's Defamation and Conspiracy Claims
The parties do not dispute that the TCPA applies to Snowden's claims and that he had the burden to establish a prima facie case as to each element of his claims to avoid dismissal. See CIV. PRAC. & REM. § 27.005. "Defamation's elements include (1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in some cases." Lipsky, 460 S.W.3d at 593. The status of the person allegedly defamed determines the requisite degree of fault. Id. A private individual need only prove negligence, whereas a public figure or official must prove actual malice. Id.
In making the determination of whether a publication is capable of a defamatory meaning, we examine its "gist." D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017) (citing Neely v. Wilson, 418 S.W.3d 52, 63 (Tex. 2013)). "Gist" refers to "a publication or broadcast's main theme, central idea, thesis, or essence." Dallas Morning News, Inc. v. Tatum, No. 16-0098, 2018 WL 2182625, at *8 (Tex. May 11, 2018). We construe the publication "as a whole in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive it." D Magazine Partners, 529 S.W.3d at 434; see also Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002) ("It is well settled that 'the meaning of a publication and thus whether it is false and defamatory, depends on a reasonable person's perception of the entirety of a publication and not merely on individual statements.'"). Consistent with this approach, under the "substantial truth doctrine" a publication's truth or falsity depends on whether the publication "taken as a whole is more damaging to the plaintiff's reputation than a truthful [publication] would have been." D Magazine Partners, 529 S.W.3d at 434. A publication "with specific statements that err in the details but that correctly convey the gist of a story" is "substantially true." Id. Conversely, even if all the publication's individual statements are literally true, the story "can convey a false or defamatory meaning by omitting or juxtaposing facts." Id.
To establish actual malice, a plaintiff must show a defamatory statement was published with either knowledge of its falsity or reckless disregard for its truth. Lipsky, 460 S.W.3d at 593. Reckless disregard is a subjective standard, focusing on the defendant's state of mind. Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 171 (Tex. 2003) (citing Bentley, 94 S.W.3d at 591). Mere negligence is not enough. Id. "Rather, the plaintiff must establish 'that the defendant in fact entertained serious doubts as to the truth of his publication,' or had a 'high degree of awareness of . . . [the] probable falsity' of the published information." Id. (quoting Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989)). The evidence must be viewed in its entirety. Campbell, 471 S.W.3d at 629. Further, "[a] defendant's state of mind 'can—indeed, must usually—be proved by circumstantial evidence.'" Id. (quoting Bentley, 94 S.W.3d at 591). Specifically, the supreme court has stated,
A lack of care or an injurious motive in making a statement is not alone proof of actual malice, but care and motive are factors to be considered. An understandable misinterpretation of ambiguous facts does not show actual malice, but inherently improbable assertions and statements made on information that is obviously dubious may show actual malice. A failure to investigate fully is not evidence of actual malice; a purposeful avoidance of the truth is.Id. (quoting Bentley, 94 S.W.3d at 597). In addition, the supreme court has stressed that proof of actual malice is not defeated by a defendant's self-serving protestation of sincerity. Id.
Civil conspiracy is generally defined as a combination of two or more persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996) (orig. proceeding). "[A] defendant's liability for conspiracy depends on participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable." Id.; accord Moldovan v. Polito, No. 05-15-01052-CV, 2016 WL 4131890, at *15 (Tex. App.—Dallas Aug. 2, 2016, no pet.) (mem. op.).
a. The Facebook Post
As to the Facebook post, Minett asserts in part (1) "Snowden did not allege any specific conduct by Minett regarding publication of the Facebook post and did not provide any supporting evidence" and (2) "[t]herefore, Snowden did not provide clear and specific evidence regarding publication of the Facebook post."
Snowden contends there is clear and specific evidence Minett published the Facebook post individually, "in conspiracy with Ravkind and FCCI," "and/or by third party." Specifically, as to Minett's publication of the Facebook post individually, Snowden asserts in part, (1) "Minett did not deny that he published the flyer"; (2) "the evidence showed that the same information appeared in both the FCCI flyer and the FCCI Facebook post, and Minett's own affidavit testimony asserts the same claim that inaccurate research was used for both publications"; (3) "[a]dditionally, the same themes and allegations against Snowden were repeated in both the FCCI flyer and the FCCI Facebook post"; (4) "both the flyer and Facebook publications were FCCI publications, and Ed Valentine's testimony established that in all things related to the flyer, Minett was FCCI"; (5) "[a]ccordingly, there is an abundance of circumstantial evidence tying the Facebook post and the content of the flyer together"; (6) "this circumstantial evidence satisfies the required clear and specific evidence of a prima facie case threshold at this stage"; and (7) "Minett is also the common connection between the two FCCI publications." Further, Snowden contends (1) although a party is generally not liable for a republication of a defamatory statement by another, "[i]f a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a third party, the conduct becomes a negligent communication, which amounts to a publication just as effectively as an intentional communication"; (2) "[e]ven though Minett denied clicking the mouse to post the fake press release on FCCI' s Facebook page, he does not deny he provided the content to be published by a third party"; (3) "Minett's own affidavit, therefore, is circumstantial evidence that he provided the defamatory statements to FCCI with recognition and substantial certainty they would be published to voters"; and (4) "[t]his is clear and specific evidence Minett published the Facebook post through collaboration with FCCI."
The record shows Minett's affidavit included the following statements:
6. . . . Research showed Mr. Snowden's criminal history and the conviction for the crime in question.
7. Frisco Citizens for Campaign Integrity ("FCCI") is an organization that was formed to provide voters in the community with information related to political candidates for local office. I did not donate money to FCCI and am not an officer of FCCI.
8. I did not manage the FCCI Facebook page or post the statement on Facebook that is discussed in Mr. Snowden's Original Petition. The flyer discussed in Mr. Snowden's Original Petition was distributed to voters with an interest in the Frisco ISD School Board election.
9. I reviewed records regarding Mr. Snowden's criminal history including information from Westlaw that indicated he was arrested on February 8, 1991. . . .
The Facebook post was published on April 20, 2017, and the flyer was received by Frisco residents approximately one week later. Both of those publications stated Snowden had lied to voters about his past and failed to disclose an "arrest" for serving alcohol to a minor. Additionally, the Facebook post stated (1) Snowden "pled guilty," was convicted, and was "sentenced to 90 days in the Brazos County Jail," and (2) the "fact" described therein "was uncovered by concerned Frisco citizens during a routine vetting and background check prompted by an incident involving some Frisco teenagers." The flyer did not include those additional statements, but, unlike the Facebook post, contained a notation that stated "Snowden inmate #83390."
Although both publications asserted Snowden lied about an "arrest," each publication also contained additional statements that did not appear in the other. Further, as described above, the statements respecting an "arrest" also appeared in "information" available on the Internet. On this record, we conclude there is no evidence to support a rational inference that Minett posted the content in question on the FCCI Facebook page or provided that content to be published on that Facebook page by a third party. Therefore, we conclude Snowden did not meet his burden under the TCPA to establish by clear and specific evidence a prima facie case for the element of publication respecting the Facebook post. Accordingly, the trial court erred by denying Minett's motion to dismiss the portion of Snowden's defamation claim based on that post.
Additionally, Snowden asserts an argument in his appellate brief respecting the applicable standard of review. Specifically, while acknowledging that "[a] trial court's denial of a TCPA Motion to Dismiss is reviewed on appeal under a de novo standard," Snowden asserts this Court should consider an "alternative standard" under which we would review the trial court's factual determinations for abuse of discretion and its legal determinations de novo. According to Snowden, "[u]nder this standard, the appellate court would defer to the trial court's factual determinations, if they are supported by evidence, that the non-movant Snowden provided clear and specific evidence of a prima facie case to support each element of his defamation cause of action."
A trial court abuses its discretion if it rules without reference to guiding rules or principles. See, e.g., Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). Also, a trial court abuses its discretion when there is no evidence to support its ruling. See, e.g., D.N.S. v. Schattman, 937 S.W.2d 151, 155 (Tex. App.—Fort Worth 1997, orig. proceeding). We concluded above that no evidence supports the element of publication respecting the Facebook post. In light of that conclusion, applying an abuse of discretion standard of review results in the same outcome as applying a de novo standard of review. See id. Consequently, we need not address Snowden's argument respecting an "alternative standard of review." See TEX. R. APP. P. 47.1.
Further, as to Snowden's conspiracy claim respecting the Facebook post, "a defendant's liability for conspiracy depends on participation in some underlying tort." Tilton, 925 S.W.2d at 681. Appellate courts "do not analyze the trial court's refusal to dismiss plaintiffs' causes of action for conspiracy separately from its refusal to dismiss their other causes of action." Id. Consequently, in the absence of a viable claim against Minett for defamation based on the Facebook post, Snowden's claim for conspiracy respecting the Facebook post must fail. See Moldovan, 2016 WL 4131890, at *15.
b. The Flyer
As to the flyer, Minett contends Snowden did not provide clear and specific evidence that the flyer was defamatory and that Minett acted with actual malice. We address those contentions in turn.
Also, in the "Summary of the Argument" section of his appellate brief, Minett asserts Snowden did not provide clear and specific evidence of damages. However, Minett provides no argument or citation to authority in his appellate briefing respecting damages, nor did he specifically challenge Snowden's damages in the trial court. As described above, the exhibits attached to Snowden's response to the motion to dismiss included affidavits of several former and potential clients of Snowden who testified he was not hired for certain projects because of the statements in question. We conclude Minett's complaint respecting Snowden's damages presents nothing for this Court's review. See TEX. R. APP. P. 38.1(i).
First, according to Minett, (1) the "gist" of the flyer was "that Snowden, a political candidate, lied to the Dallas Morning News and the public about his criminal record"; (2) "[g]iven the fact that Snowden was tried and convicted, the details of his prosecution are items of secondary importance that do not affect the gist of the publication"; (3) "Snowden did not provide any evidence . . . that the inmate number was inaccurate"; (4) "[e]ven had Snowden provided clear and specific evidence on this point, it is a minor detail that does not affect the gist of the publication"; and (5) "[t]he gist of the [flyer] is not more harmful than the truth, and thus not defamatory."
Snowden asserts in part,
Minett represented that Snowden had been assigned "Snowden Inmate #83390" to create the false appearance that Snowden is dangerous and has had to be incarcerated away from society. The truth, which would have been less damaging to Snowden's reputation, is that Snowden has never been in jail or prison, has never had an inmate number, and the purported inmate number #83390 was simply cause no. 833-90 of his TABC citation county court case proceeding in 1990.
Construing the flyer "as a whole in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive it," we conclude a reasonable view of the flyer's "gist" is that Snowden has a prior arrest and incarceration that he attempted to hide. See D Magazine Partners, 529 S.W.3d at 439. However, the record shows Snowden's thirty-day jail sentence was probated and he did not serve any time in jail. The inclusion of an "inmate number" on the flyer without further detail or explanation conveyed a false meaning, i.e., that Snowden had been assigned that number as an incarcerated inmate. See id. at 434, 439. We disagree with Minett's position that the false allegation of a prior incarceration is "a minor detail" that "does not affect the gist" of the flyer. On this record, we conclude there is clear and specific evidence that the flyer "taken as a whole" was "more damaging to the plaintiff's reputation than a truthful [publication] would have been." See id. at 434. Thus, Snowden met his TCPA burden to show the flyer was defamatory. See id.
Second, with respect to actual malice, Minett argues (1) "the public records support the information contained in the publications" and (2) "there was no evidence indicating that Minett entertained serious doubts about the truth of the information that would prompt a duty to seek additional information."
Snowden argues in part,
Minett tried to rely on unauthenticated documents he found on the internet which he mistakenly refers to as "public records" to try to justify some of the false statements in his defamatory publications. However, Minett apparently made no effort to investigate and resolve the inconsistency in the records he allegedly looked at before he published his false version of events. More importantly, Minett failed to ask Snowden about the DMN questionnaire answer or what actually happened in 1990 with respect to the TABC citation when Minett had opportunities to do so.
The record shows Minett stated in his affidavit (1) "[r]esearch showed Mr. Snowden's criminal history and conviction for the crime in question" and (2) "I reviewed records regarding Mr. Snowden's criminal history including information from Westlaw that indicated he was arrested on February 8, 1991." Nothing in Minett's affidavit describes his state of mind or addresses information respecting Snowden's sentence or an "inmate number." Attached to Minett's affidavit was a Westlaw screen printout that showed a "Current Date" of "09/20/2017" and contained, among other things, the following statements: (1) "Offender Name: SNOWDEN, JEFFERY GREEN"; (2) "Date of Arrest: 02/08/1991"; (3) "Arresting Agency: Community Supervision and Corrections Department"; (4) "Case Information: INMATE NUMBER: 83390"; (5) "Offense Charged: DELIVERY OF ALCOHOL TO A MINOR"; (6) "Court Disposition: CONVICTED"; (7) "Sentence: 30 DAY(S)"; and (8) "Probation Max: 90 DAY(S)." Also, the attachments to Minett's affidavit included an undated printout from a "Brazos County Judicial Records Search" that describes the defendant as "Snowden, Jeffrey Green," describes the "Charge" as "SELL ALC BEV TO PERS<21," and contains, among other things, the following statements: (1) "Case Number 90-0833"; (2) "07/12/1991 Sentenced—Brazos County Jail (OCA)"; (3) "Confinement to Commence: 07/12/1991"; and (4) "CSCD 0 Year 0 Month 90 Days with Community Service of 0 Hour."
Minett does not explain, and the record does not show, how an online Westlaw document constitutes a "public record" or has the same reliability as such. The public record from Brazos County contained no "inmate number." Further, in addition to stating "Case Information: INMATE NUMBER: 83390" and "Sentence: 30 DAY(S)," the Westlaw document also stated "Probation Max: 90 DAY(S)." Although "a failure to investigate fully is not evidence of actual malice," "a purposeful avoidance of the truth is." Campbell, 471 S.W.3d at 629 (quoting Bentley, 94 S.W.3d at 597). "Recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports." Warner Bros. Entm't, Inc. v. Jones, 538 S.W.3d 781, 809 (Tex. App.—Austin 2017, pet. filed) (quoting Bentley, 94 S.W.3d at 596). Here, although the Brazos County document contained no "inmate number" and the Westlaw document relied upon by Minett stated "Probation Max: 90 DAYS," the record does not show any investigation by Minett as to whether probation was applicable to Snowden's conviction. See id. at 809-10 (lack of investigation was evidence of actual malice where there was obvious reason to doubt accuracy of reports relied upon). Additionally, to the extent Minett contends the content of the flyer merely reflected details from the documents he found, the record shows he omitted any mention of "Probation Max: 90 DAYS" in the flyer. See id. at 810 (selective omission of facts from police report supported prima facie case of actual malice in TCPA case). Also, the record shows (1) Valentine testified the content of the flyer was "hand-delivered" to VDM "after hours" in a folder dropped through VDM's mail slot, and (2) although Minett was responsible for the content of the flyer, that publication did not contain his name or identify him in any way. See Campbell, 471 S.W.3d at 629 (defendant's state of mind must usually be proved by circumstantial evidence). Viewing the evidence in its entirety, we conclude Snowden has provided clear and specific evidence that supports a prima facie case of actual malice as to the portion of his defamation claim based on the flyer. See id.; Warner Bros. Entm't, 538 S.W.3d at 812.
Further, as to Snowden's conspiracy claim respecting the flyer, appellate courts "do not analyze the trial court's refusal to dismiss plaintiffs' causes of action for conspiracy separately from its refusal to dismiss their other causes of action." Tilton, 925 S.W.2d at 681. Accordingly, if the trial court did not err by refusing to dismiss the portion of Snowden's defamation claim based on the flyer, then it did not err by refusing to dismiss the conspiracy claim related to that defamation claim. See Warner Bros. Entm't, 538 S.W.3d at 814 ("if the trial court did not err by refusing to dismiss the defamation claim, then it did not err by refusing to dismiss the conspiracy claim related to the defamation claim").
2. Qualified Privilege Defense
Next, we address Minett's contention that even if Snowden met his TCPA evidentiary burden as to any of his claims, the trial court erred by denying the motion to dismiss because Minett established the affirmative defense of qualified privilege by a preponderance of the evidence. A qualified privilege against defamation applies to good-faith communications "upon any subject in which the author or the public has an interest or with respect to which the author has a duty to perform to another owing a corresponding duty." Iroh v. Igwe, 461 S.W.3d 253, 263 (Tex. App.—Dallas 2015, pet. denied). To meet his TCPA burden respecting this defense, Minett was required to establish by a preponderance of the evidence that he did not make the statements in question with actual malice, defined as knowledge of falsity or reckless disregard for the truth. See Spencer v. Overpeck, No. 04-16-00565-CV, 2017 WL 993093, at *7 (Tex. App.—San Antonio Mar. 15, 2017, pet. denied) (mem. op.); see also CIV. PRAC. & REM. § 27.005(d).
Minett asserts in part "the preponderance of the evidence reflects that Minett did not know that any part of the flyer was allegedly inaccurate, nor did he have serious doubts about its truth." In support of that assertion, Minett relies on his arguments described above respecting evidence of actual malice. However, we concluded above that Snowden established by clear and specific evidence a prima facie case for actual malice. Based on that same analysis, we conclude Minett has not met his burden to establish lack of actual malice by a preponderance of the evidence. See CIV. PRAC. & REM. § 27.005(d).
We decide in favor of Minett on the portion of his issue respecting Snowden's claims based on the Facebook post and against Minett on the portion of his issue respecting claims based on the flyer.
III. DENIAL OF SNOWDEN'S DISCOVERY MOTION
In his "conditional" cross-issue, Snowden complains as to the trial court's November 20, 2017 order denying his "Motion for Specified and Limited Discovery." Although the parties do not address this Court's subject matter jurisdiction over Snowden's cross-issue, we consider subject matter jurisdiction sua sponte. See, e.g., Rusk State Hosp. v. Black, 392 S.W.3d 88, 103 (Tex. 2012).
Unless a statute authorizes an interlocutory appeal, appellate courts generally only have jurisdiction over final judgments. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); see also Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) ("Interlocutory orders may be appealed only if permitted by statute."). We strictly apply statutes granting interlocutory appeals because they are a narrow exception to the general rule that interlocutory orders are not immediately appealable. See, e.g., Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007). Pursuant to section 51.014(a)(12) of the civil practice and remedies code, "[a] person may appeal from an interlocutory order of a district court . . . that . . . denies a motion to dismiss filed under Section 27.003." CIV. PRAC. & REM. § 51.014(a)(12).
The record shows the trial court signed a December 19, 2017 order denying Minett's motion to dismiss. That order did not address or mention Snowden's discovery motion or the November 20, 2017 order denying that discovery motion. Recently, the supreme court concluded in D Magazine Partners that the scope of section 51.014(a)(12) allowed for appellate consideration of the denial of a defendant's claim for attorney's fees premised on section 27.009(a) where the trial court's single order partially denied and partially granted the defendant's TCPA motion to dismiss. See D Magazine Partners, 529 S.W.3d at 441. However, we find no authority to support appellate jurisdiction pursuant to section 51.014(a)(12) over a challenge to a trial court's prior separate order denying a request for discovery under the TCPA. See Cavin v. Abbott, No. 03-18-00073-CV, 2018 WL 2016284, at *3-4 (Tex. App.—Austin Apr. 30, 2018, no pet.) (mem. op.) (concluding section 51.014(a)(12)'s interlocutory appellate jurisdiction in TCPA case did not extend to appeal of separate interlocutory order that did not deny motion to dismiss under section 27.003); Moricz v. Long, No. 06-17-00011-CV, 2017 WL 3081512, at *3 (Tex. App.—Texarkana Jul. 20, 2017, no pet.) (mem. op.) (concluding court of appeals lacked interlocutory jurisdiction over plaintiff's attempted cross-appeal asserting errors by trial court in dismissing portions of claims pursuant to TCPA). Accordingly, we conclude we lack subject matter jurisdiction over Snowden's cross-appeal. See Lehmann, 39 S.W.3d at 195; CIV. PRAC. & REM. § 51.014(a)(12).
IV. CONCLUSION
We decide Minett's issue against him, in part, and in his favor, in part. Additionally, we conclude this Court lacks subject matter jurisdiction over Snowden's cross-appeal.
We (1) dismiss Snowden's cross-appeal for lack of jurisdiction; (2) reverse the portion of the trial court's order denying Minett's motion to dismiss Snowden's claims based on the Facebook post; (3) render judgment dismissing Snowden's claims based on the Facebook post; (4) affirm the portion of the trial court's order denying Minett's motion to dismiss Snowden's other claims, i.e., those based on the flyer; and (5) remand this case to the trial court for further proceedings consistent with this opinion.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE 180003F.P05
JUDGMENT
On Appeal from the 366th Judicial District Court, Collin County, Texas
Trial Court Cause No. 366-04143-2017.
Opinion delivered by Justice Lang, Justices Myers and Stoddart participating.
In accordance with this Court's opinion of this date, we (1) REVERSE that portion of the trial court's order denying appellant/cross-appellee Cyril William "Buddy" Minett's motion to dismiss the claims of appellee/cross-appellant Jeffory G. Snowden based on the complained-of Facebook post, and (2) RENDER judgment dismissing Snowden's claims based on the complained-of Facebook post. In all other respects, the trial court's order is AFFIRMED. Additionally, we DISMISS the cross-appeal of appellee/cross-appellant Jeffory G. Snowden for lack of jurisdiction. We REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal. Judgment entered this 12th day of June, 2018.