Dallas Court of Appeals, No. 05-13-00853-CV (May 28, 2014)
Justices Bridges (Opinion), Fillmore, and Lewis
For the second time in a week, the Dallas Court of Appeals issued an opinion applying the Texas Citizens Participation Act (“TCPA”), which provides an expedited procedure for dealing with claims that implicate the exercise of free speech and other constitutional rights. In this instance, the Court held that a homeowner who published an extremely negative review of a contractor on “Angie’s List” was entitled to dismissal under the TCPA of a defamation claim brought against her by that contractor.
Young hired Krantz and his construction firm, Perennial, to build an “outdoor living space” as an addition to her home. The structure was to be built in accordance with plans designed by an architect and engineer. Alas, things did not go well. According to Young, Krantz largely ignored the architect’s plans, failed to obtain proper permits, used substandard materials, and ultimately abandoned the job before completion, among other things. In addition, Young learned that Krantz had not been paying his subcontractors or suppliers—a point driven home when a lumber company filed a materialman’s lien on her property and later sued her (and Perennial) for the cost of lumber for which it said Krantz had not paid. Young then filed her own claims against Krantz and Perennial. But she didn’t stop there. With the assistance of her attorney, Young posted a long, scathing review of Krantz and Perennial on the consumer website “Angie’s List,” giving Perennial an overall grade of “F.” Krantz responded with claims against Young for defamation and intentional infliction of emotional distress (“IIED”), based on certain allegedly false and defamatory statements in the review. Young moved to dismiss the Krantz claims under the TCPA, claiming she was exercising her free speech rights in posting the review. The district court denied the motion, and Young took an interlocutory appeal. The Court of Appeals reversed.
The TCPA, TEX. CIV. PRAC. & REM. CODE §§ 27.001 et seq., provides a means for a defendant to seek dismissal of claims relating to, among other things, a party’s exercise of the right to free speech. The Act defines an “[e]xercise of the right of free speech” as “a communication made in connection with a matter of public concern”; it goes on to list several categories of such “matters of public concern,” including issues related to “a good, product, or service in the marketplace.” If a defendant establishes by a preponderance of the evidence that the conduct that forms the basis of the claim against him or her falls within the scope of the TCPA, then the burden shifts to the claimant to “establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question.” If the claimant fails, the claim is to be dismissed.
The Court had little difficulty in finding Young had met her threshold burden to show the claims against her were related to free speech, specifically, to a communication about “a good, product, or service in the marketplace.” Turning to Krantz’s burden in response, the Court first determined that, although the term “prima facie case” “implies a minimal factual burden,” the requirement of “clear and specific evidence” of every element demonstrates that the non-movant “must satisfy an elevated evidentiary standard.” Here, the Court held Krantz fell short of that elevated standard, failing to adduce the necessary evidence that the statements were defamatory or that Young acted with the requisite negligence or disregard for the truth. Because IIED is a “‘gap-filler’ tort” to be used only when no other recognized theory will suffice, and because Krantz’s IIED claim was predicated on the same facts as his defamation claim, the Court held that the deficiencies fatal to the defamation claim felled the IIED claim, as well.
