Professional Documents
Culture Documents
07-16-00320-CV
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
12/19/2016 10:20:43 PM
Vivian Long, Clerk
No. 07-16-00320-CV
Leif A. Olson
State Bar No. 24032801
leif@olsonappeals.com
THE OLSON FIRM, PLLC
PMB 188
4830 Wilson Road, Suite 300
Humble, Texas 77396
(281) 849-8382
Oral argument requested
Table of Contents
Table of Contents ............................................................................................ 1
Index of Authorities ........................................................................................ 2
Issue Presented ................................................................................................. 4
Glossary............................................................................................................. 4
Introduction and Summary of Argument ..................................................... 5
Argument: OConnor didnt meet his burden to furnish prima facie evidence of
defamation because Castlemans statements are protected speech. The trial court erred
in denying the motion to dismiss. ............................................................................ 6
A. The commercial-speech exception doesnt apply, and even if it
did, OConnor failed the requirement that he show it. ................... 6
1. The commercial-speech exception applies to attempts to
win clients, not complaints about suppliers. ............................... 7
2. OConnor had the burden to show that the exception
applies, and he introduced no evidence of it. ............................ 11
B. But the Court doesnt have to get that far because OConnor
still hasnt met his burden to show a prima facie case. .................. 12
1. OConnor still misrepresents the facts. ...................................... 12
2. Post-mess-up changes to the instructions are irrelevant to
whether OConnor messed up the instructions. ....................... 13
3. There is still no evidence of falsity. ............................................ 14
C. Castleman is entitled to his fees and expenses, and OConnors
contrary argument directly contradicts the Supreme Court. ......... 16
D. OConnors remaining complaints can be disregarded. ................. 18
Conclusion and Prayer .................................................................................. 18
Certificate of Compliance ............................................................................. 19
Certificate of Service...................................................................................... 19
Index of Authorities
Cases
Austin v. Kroger Texas L.P.
465 S.W.3d 193 (Tex. 2015) ...................................................................... 9
Backes v. Misko
486 S.W.3d 7 (Tex. App. Dallas 2015, pet. denied) ............................. 5
Beaver County., Okla., Bd. of Commrs. v. Amarillo Hospital Dist.
835 S.W.2d 115 (Tex. App. Amarillo 1992, no writ) ........................ 13
Bentley v. Bunton
94 S.W.3d 561 (Tex. 2002) ............................................................... 10, 11
Better Business Bureau of Metropolitan Dallas, Inc. v. BH DFW, Inc.
402 S.W.3d 299 (Tex. App. Dallas 2013, pet. denied) ........................ 8
Combined Law Enforcement Assn. of Texas v. Sheffield
No. 03-13-00105-CV
(Tex. App. Austin Jan. 31, 2014, pet. denied) ................................... 13
Grohman v. Kahlig
18 S.W.3d 882 (Tex. 2010) ...................................................................... 10
Hancock v. Variyam
400 S.W.3d 59 (Tex. 2013) ...................................................................... 11
Hicks v. Group & Pension Administrators, Inc.
473 S.W.3d 518 (Tex. App. Corpus Christi 2015, no pet.) ................ 5
Kinney v. BCG Attorney Search, Inc.
No. 03-12-00579-CV, 2014 WL 1432012
(Tex. App. Austin April 11, 2014, pet. denied) ................................... 5
Milkovich v. Lorain Journal Co.
497 U.S. 1 (1990) ...................................................................................... 11
Miller Weisbrod, LLP v. Llamas-Soforo
No. 08-12-00278-CV, __ S.W.3d __, 2014 WL 6679122
(Tex. App. El Paso Nov. 25, 2014, no pet.). ....................................... 7
Issue Presented
A customer posted online about his experience with a
service provider. The post described their interactions
and the providers breach of their contract, opined on
the providers performance, and suggested that others
avoid the provider. The provider asserts that the post
was defamatory because he read the parties contract differently.
Did the trial court err in denying the customers motion
to dismiss under the Texas Citizens Participation Act?
Glossary
Castleman
CR
Clerks record
OConnor
1SCR
2SCR
speech about OConnor isnt excepted from the Acts protection. Second, OConnor, not Castleman, is the one who must show that the exception applies, and he adduced no evidence that it does.
1. The commercial-speech exception applies to attempts to
win clients, not complaints about suppliers.
Contra OConnors representation, OConnors Br. at 11, there is
nothing unsettled about the Acts commercial-speech exception. Let
there be no mistake that this is radical: He is asking the Court to become
the only one in the nation to hold that speech is exempted from the protection of an anti-SLAPP law if it is a complaint about the services that a
business offers in the marketplace. He is asking, that is, for the Court to
rule that the commercial-speech exception swallow[s] the protections
the statute intended to afford to speech about services offered in the
marketplace. Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
416 S.W.3d 71, 8889 (Tex. App. Houston [1st Dist.] 2013, pet. denied). That is literally unprecedentedCastleman has uncovered not a
single case in a single state or federal court that reaches such a conclusion, and OConnor cites to support his interpretation the exact same
number of cases: zero.
a. OConnor cant distinguish the opinions that say the exception doesnt apply.
The Act itself protects speech about goods, products, and services
offered in the marketplace. TEX. CIV. PRAC. & REM. CODE at
7
web page any more than complaints about shoddy administrative services were attempts to win patients to an anesthesiology
practice. OConnors Br. at 1213, citing Whisenhunt v. Lippincott, 474 S.W.3d 30, 4243 (Tex. App. Texarkana 2015, no
pet.). (Nor is it notabl[e] that August 2015 opinion has been
cited in only one later published opinion.)
Castlemans complaints about OConnors shoddy administrative services arent evidence that Castleman is engaged in the
business of competing with OConnor any more than complaints about a quarterhorse breeder are evidence that the
complainer is a competing quarterhorse breeder. OConnors
Br. at 14, citing Backes v. Misko, 486 S.W.3d 7, 21 (Tex. App.
Dallas 2015, pet. denied).
For that matter, Castlemans complaints about OConnors
shoddy administrative services are less evidence that Castleman
was competing with OConnor than are complaints by a legal
recruiter about his former employer (a legal recruiter) on a
website where former employees can post their impressions of
former employers. OConnors Br. at 1516, citing Kinney v.
BCG Atty. Search, Inc., No. 03-12-00579-CV, 2014 WL 1432012
(Tex. App. Austin April 11, 2014, pet. denied).
Castlemans complaints about OConnors shoddy administrative services arent made to potential buyers of his own physical products any more than lawyers legal advice to their clients
is an attempt to win business from the clients counterparties.
OConnors Br. at 1415, citing Hicks v. Group & Pension Admrs., Inc., 473 S.W.3d 518, 531 (Tex. App. Corpus Christi
2015, no pet.) and Schimmel v. McGregor, 438 S.W.3d 847, 857
858 (Tex. App. Houston [1st Dist.] 2014, pet. denied).
forming unnecessary dental work. The firm claimed that it was entitled
to dismissal because it hadnt misrepresented anything about its own
work or the work of a competitor. NCDR, 745 F.3d at 755. But while
Californias anti-SLAPP law requires that the speech be about the speakers or a competitors products, Texass does not (and Castleman doesnt
claim that it does). Id. Rather, the Fifth Circuit said exactly what Castleman is saying and predicted that the Texas Supreme Court would do
the same: Speech is exempted from the Act if the intended audience
was an actual or potential customer. Id.
Second, the El Paso Court of Appeals has never agreed with him. See
OConnors Br. at 1718. That court reached the same conclusion that
the NCDR court did: Law firms that solicit clients by accusing individuals of wrongdoing arent entitled to have claims against them dismissed
because their speech is attempting to incur a commercial benefit
attempting to win customers of its services. Miller Weisbrod, LLP v. Llamas-Soforo, No. 08-12-00278-CV, __ S.W.3d __, 2014 WL 6679122 (Tex.
App. El Paso Nov. 25, 2014, no pet.).
2. OConnor had the burden to show that the exception applies, and he introduced no evidence of it.
OConnors discussion of the shifting burden of proof in a case under the Act omitted that, as the person seeking the benefit of the commercial-speech exception, it is his burden to prove that the exception
applies. OConnors Br. at 18; Better Bus. Bureau of Metro. Dallas, Inc. v. BH
11
DFW, Inc., 402 S.W.3d 299, 309 (Tex. App. Dallas 2013, pet. denied),
citing Newspaper Holdings, 416 S.W.3d at 89. This was no mistake: By
omitting a discussion that it is his burden to introduce supporting evidence, he was able to avoid discussing that he introduced none.
OConnor offers no support for his assertion that Castlemans
speech was intended to win Castleman customersan assertion he
didnt even make until his brief to the Court. The one email he cites to
support his assertion is an email where Castleman describes the impact
that his reviews will have on OConnors, not Castlemans, business. CR
68, 195. All of the evidence regarding businesses and customers is that
Castleman sells various physical products through his website and that
OConnor sells virtual-assistant services, or what he describes as various task-based services. CR 27 at 25; CR 87 at 2. There is no evidence that Castleman is trying to win customers to his web store or that
he is trying to compete with OConnor in furnishing virtual-assistant
services. Even if the commercial-speech exception could have applied,
OConnor has no evidence to show that it does.
B. But the Court doesnt have to get that far because OConnor
still hasnt met his burden to show a prima facie case.
1. OConnor still misrepresents the facts.
OConnor still cant tell the truth about what Castleman told him.
Castlemans brief reproduced in full both instant-message exchanges
where OConnor claims that he was told to double all orders unless
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way to foul it up. Castlemans instructions are so clear that they can be
construed as a matter of law. See Castlemans Br. at 28. OConnor has no
response except his innuendoa tacit admission that he cannot distinguish between clear and more clear.
3. There is still no evidence of falsity.
OConnor cant win dismissal unless he makes a prima facie case for
each element of defamation by clear and specific evidence, and defamation requires a false statement of fact. TEX. CIV. PRAC. & REM. CODE
27.005(b); Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex. 2002). OConnor
bases every claim of defamation upon his assertion that he was following
the instructions correctly. Even in his brief to the Court, he offers no
other basis upon which a reasonable person could find Castlemans
statements to be false except that he followed the instructions of Castleman. OConnors Br. at 24. But he didnt follow those instructions;
as he acknowledges, he was hired to fulfill orders on Castlemans behalf
and was given instructions on how to do it. CR 87 at 2. Those instructions can be given a definite meaning, and there is no question about
what OConnor did. See Castlemans Br. at 2729. There is thus no question that OConnor breached the contract as a matter of law. See
Grohman v. Kahlig, 18 S.W.3d 882, 887 (Tex. 2010) (standard for finding
breach as a matter of law). The sole basis that OConnor gives for claiming falsitythat he complied with his obligationsisnt just insufficient-
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tions or exaggeration for effect. OConnor complains about each statement by divorcing it from its context and analyzing it in isolation. Consider, for example:
A one-sentence statement furnishing no support or background that reads in full, Kevin OConnor stole thousands of
dollars from me, on the one hand, and
Yup same guy posted as a reply to a comment on a Facebook post that is itself a follow-up to an earlier Facebook post
that linked to a review that itself ran to 33 paragraphs, on the
other hand.
Might the context cause these two statements to be read differently?
Thats why Castlemans brief spends time discussing it. Castlemans Br.
at 3133. OConnor thinks that, This is not an opinion, but an allegation of facts by Castleman that could have been verified does the job.
OConnors Br. at 22.
OConnor is wrong. Context matters. He ignores it. His evidence is
thus neither clear nor specific enough to demonstrate falsity, and Castlemans motion should have been granted.
C. Castleman is entitled to his fees and expenses, and OConnors
contrary argument directly contradicts the Supreme Court.
OConnor claims that awarding Castleman his attorneys fees and expenses is optional because a trial court may decide that justice and equity do not require that costs, fees, or expenses be awarded.
OConnors Br. at 2829, citing Combined Law Enfmt. Assn. of Tex. v. Shef16
field, No. 03-13-00105-CV (Tex. App. Austin Jan. 31, 2014, pet. denied). Thats not what the Supreme Court says. Six months before
OConnor filed his brief, the Supreme Court addressed that very argumentin a case from this Court, no less. The Court had affirmed a trialcourt ruling that awarded only a fraction of the fees requested to a defendant who prevailed on a motion to dismiss under the Act because
justice and equity counseled for a lower award. The Supreme Court
reversed because the TCPA requires an award of reasonable attorneys
fees to the successful movant, an evaluation that does not include
considerations of justice and equity. Sullivan v. Abraham, 488 S.W.3d
294, 299 (Tex. 2016), citing TEX. CIV. PRAC. & REM. CODE
27.009(a)(1).
OConnors argument is wrong on its face, and it was wrong when he
made it. And, unlike Sullivan, there was no contest to the amounts Castleman requested, even though OConnor had the opportunity to contest
them. The Court can thus adjudge that Castleman recover those fees,
expenses, and costs because they have been established as a matter of
law. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881882 (Tex.
1990); Beaver Cnty., Okla., Bd. of Commrs. v. Amarillo Hosp. Dist., 835
S.W.2d 115, 128 (Tex. App. Amarillo 1992, no writ); cf. Sullivan, 488
S.W.3d at 300.
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Respectfully submitted,
THE OLSON FIRM, PLLC
/s/ Leif A. Olson
Leif A. Olson
State Bar No. 24032801
leif@olsonappeals.com
PMB 188
4830 Wilson Road, Suite 300
Humble, Texas 77396
Counsel for appellants
Certificate of Compliance
I certify that this Castlemans Reply Brief was prepared with Microsoft
Word 2010, and that, according to that programs word-count function,
the sections covered by Texas Rule of Appellate Procedure 9.4(i)(1) contain 3,408 words.
/s/ Leif A. Olson
Certificate of Service
I certify that on December 19, 2016, in accordance with Texas Rule
of Appellate Procedure 9.5(b), I served a copy of this Castlemans Reply
Brief by e-filing upon:
J. Paul Manning
jpmanning@lubbocklawfirm.com
Anna McKim
amckim@lubbocklawfirm.com
FIELD, MANNING, STONE, HAWTHORNE &
AYCOCK, P.C.
2112 Indiana Avenue
Lubbock, Texas 79410
(806) 792-0810
Counsel for appellees
/s/ Leif A. Olson
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