Background

In Adams v. Starside Custom Builders LLC, 16-0786, (Tex. April 20, 2018), the Texas Supreme Court reversed the Dallas Court of Appeals, again, when it denied a motion to dismiss under the Anti-Slapp statute.

The defendant, John Adams, moved to dismiss the defamation claim filed against him. The court of appeals affirmed the denial of the motion to dismiss, holding that Adams’s allegedly defamatory communications did not relate to a “matter of public concern.” Because we conclude that the challenged communications do relate to a “matter of public concern” as defined by the TCPA, we reverse the court of appeals judgment and remand the case to that court for further proceedings.

Under the TCPA, a party may file a motion to dismiss a “legal action” that is “based on, relates to, or is in response to a party’s exercise of the right of free speech…The TCPA provides its own definition of “exercise of the right of free speech.” The statutory definition is not fully coextensive with the constitutional free-speech right protected by the First Amendment to the U.S. Constitution and article I, section 8 of the Texas Constitution. In the TCPA, the “‘[e]xercise of the right of free speech’ means a communication made in connection with a matter of public concern.“…“‘Communication’ includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.”…A “‘[m]atter of public concern’ includes an issue related to . . . environmental, economic, or community well-being; . . . the government; . . .or . . . a good, product, or service in the marketplace.” (emphasis added.)

Facts

This appeal is part of a long-running dispute between Adams and the developer of the neighborhood where he lives.

Starside and Adams became embroiled in an ugly dispute over a common area in the subdivision. Starside sued Adams and his wife, asserting claims for threat of imminent bodily injury and business disparagement. The petition also sought a declaratory judgment that Adams did not own any of the land that Starside alleged was a common area. Adams moved to dismiss the business disparagement claim under the TCPA. Starside then filed an amended petition that dropped the business disparagement claim and added a defamation claim.

Adams opposed the work done by Starside and the HOA in the common area. Adams accused the HOA of clear cutting trees in violation of Plano city ordinances. On March 15, 2015, Adams sent angry texts to the HOA board and others, in which he threatened to shoot people involved in the landscaping work. Pourchot and his attorney contacted the Plano police department. Two officers visited Adams and reported that “the situation was worse than was thought.” Adams claimed he owned a portion of the common area stretching from his property to a creek running through the common area.

After Starside amended its petition to assert a defamation claim rather than a business disparagement claim, Adams filed a supplemental motion to dismiss the defamation claim, incorporating his prior motion to dismiss and arguing that Starside could not establish a prima facie case to survive dismissal under the TCPA. The trial court granted the motion to dismiss the business disparagement claim. The court did not rule on the motion to dismiss the defamation claim within the statutory period, so it was denied by operation of law.

Court of Appeals

Adams appealed, arguing that the trial court should have dismissed the defamation claim under the TCPA. The court of appeals reached only the issue of whether Adams established under section 27.005(b) that his defamation claim “is based on, relates to, or is in response to [Adams’s] exercise of . . . the right of free speech.” TEX. CIV. PRAC. & REM. CODE § 27.005(b). The court concluded that Adams failed to meet this burden. Adams v. Starside Custom Builders, LLC, ___ S.W.3d ___, ___ (Tex. App.—Dallas 2016, pet. granted). The court of appeals rejected Adams’s argument that statements made in the blog and the March 18, 2015 e-mail relate to Starside’s services in the marketplace. The court of appeals reasoned that while “Adams asserts the statements on which Starside’s defamation claim are based related to Starside’s services in the marketplace,” “the complained-about statements do not mention Starside at all.” Id. at ___. The court did not reach the merits of Adams’s argument that his statements related to community wellbeing. The court effectively found that Adams waived this argument by failing to argue it with sufficient specificity in the trial court. Id. at ___ n.4.

Ruling

We disagree with the court of appeals’ conclusion that the defamation claim against Adams was not based on or related to Adams’s “exercise of the right of free speech” as defined by the TCPA. The “exercise of the right of free speech” extends to any “communication made in connection with a matter of public concern.”

A matter of public concern “includes” but is not limited to “an issue related to . . . environmental, economic, or community well-being; . . . the government; . . . or . . . a good, product, or service in the marketplace.” Id. § 7.001(7).

The alleged defamatory communications made by Adams raise “issues related to” Starside’s products or services in the marketplace as a homebuilder and neighborhood developer.

Furthermore, in the context of a small residential community like Normandy Estates, any allegation of malfeasance and criminality by the developer and the HOA likely concerns the wellbeing of the community as a whole…Particularly in a planned community like Normandy Estates, an allegation of HOA misconduct is not altogether unlike an allegation of local government misconduct in a small city, which would quite plainly count as a matter of public concern under section 27.001(7)(C).

As to the Dallas Court of Appeals ruling that Adams waived this argument by failing to argue it with sufficient specificity in the trial court, the Texas Supreme Court ruled:

“When it is clear from the plaintiff’s pleadings that the action is covered by the Act, the defendant need show no more.” Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017).

In this case, a review of the pleadings and the record demonstrates that Adams’s alleged defamatory communications relate to Starside’s services in the marketplace and to the community and environmental well-being of the Normandy Estates subdivision. Adams was therefore exercising his “right of free speech,” as defined by the TCPA, when he made the challenged communications. As a result, he was entitled to file a motion to dismiss challenging the sufficiency of Starside’s defamation allegations.

Conclusion and Disposition

Because the court of appeals concluded that Adams did not satisfy his initial burden to establish the applicability of the TCPA under section 27.005(b), it did not proceed to decide whether Starside established a prima facie case for each essential element of its defamation claim under section 27.005(c) or whether Adams established a valid defense under section 27.005(d). We therefore remand the case to the court of appeals to make these determinations in the first instance. See TEX. R. APP. P. 60.2(d). The judgment of the court of appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

The Texas Supreme Court has continually give an expansive review of Anti-Slapp (TCPA) cases. Most of the courts of appeal have followed the Supreme Court’s lead. The Dallas appeals court is the one court most likely to deny a motion to dismiss based on the Anti-Slapp (TCPA) statute.

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