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Pickleball vs. Tennis Leads to Defamation Lawsuit
From yesterday's decision by Texas Court of Appeals Justice Katy Boatman in Daly v. Lehle, joined by Justices Chad Bridges and Maritza Antú:
This appeal matches pickleball against tennis…. Defendant served as chairwoman of the courts for the Coles Crossing community, looking after the interests of local tennis players and ensuring that the community's tennis courts were well-maintained. Defendant gave monthly reports at the Coles Crossing homeowners' association board meetings.
Coles Crossing residents suggested the community install pickleball courts, so the HOA board set up an exploratory pickleball committee with members representing mixed interests: Plaintiff (team pickleball) was committee head and Defendant (team tennis) was one of several committee members. Things quickly soured, as the parties disagreed about the extent to which the tennis courts should be modified so they could double as pickleball courts.
During this time, Defendant also permitted a local tennis professional to use the courts to teach tennis lessons to children from the community. According to Defendant, she "received calls from at least four parents of clinic participants relaying serious concerns that an anonymous adult man was using his personal cell phone to take pictures of their young children doing drills on the tennis courts." Two HOA board members explained to Defendant that Plaintiff was taking the photographs to document HOA rules violations—namely, allowing a tennis professional to use multiple courts simultaneously. Plaintiff said he also relayed the reason for his photographs to Defendant.
Three months later, Defendant opened her monthly tennis report at the HOA board meeting by lobbing an accusation: she, "as a former teacher," had a "duty to report instances of sexual exploitation of minor children through photographs and videography." Defendant accused Plaintiff "of taking photographs of children for inappropriate purposes" and "implied that [he] was a pervert, pedophile, or sexual predator." Multiple community members complained to the HOA board about Defendant's statements….
Plaintiff sued, and the court held the case could go forward:
The TCPA [Texas Citizens Participation Act] aims to protect citizens who associate, petition, or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them. That protection comes in the form of a "special motion to dismiss" any suit that "appears to stifle the defendant's exercise of those rights."
The burden in a TCPA motion to dismiss volleys back and forth between the parties. First, the movant must demonstrate that the TCPA applies and show by a preponderance of the evidence that the legal action is based on or in response to the movant's exercise of the rights to associate, speak freely, or petition. If the movant clears this burden, the burden shifts to the nonmovant to establish by clear and specific evidence a prima facie case for each essential element of its claim. Finally, if the nonmovant satisfies this requirement, the burden shifts back to the movant to establish as a matter of law any valid affirmative defenses. Ultimately, a TCPA motion to dismiss is not the forum for deciding the winner; it simply decides whether the nonmovant has enough evidence to move to the next round….
Because the TCPA applies to Plaintiff's claims, the ball is in Plaintiff's court to provide prima facie evidence to support his defamation claim…. Plaintiff must show (1) 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….
[1] Plaintiff must first provide clear and specific evidence that the statement was made and was a statement of fact, which depends on its verifiability and the entire context in which it was made…. Plaintiff makes this shot …, at least at the TCPA stage. Plaintiff stated in his declaration that Defendant "accused [him] of taking photographs of children for inappropriate purposes and implied that [he] was a pervert, pedophile or sexual predator." Rather than dealing with these concerns privately, she decided to take them to the court of public opinion: an HOA board meeting that was open to the public and had "a large audience."
Other evidence also gives the advantage to Plaintiff's claims. The declaration from HOA board president Derek Hooper stated that the challenged statements were made at a board meeting attended by approximately 35-40 people…. Hooper said he "understood that [Defendant] was accusing [Plaintiff] of being a pervert, pedophile, or sexual predator because of her previous complaints about [Plaintiff]." The declaration from HOA board secretary Sarah Green also stated that she "understood that [Defendant] was publicly accusing [Plaintiff] of being a pervert, pedophile or sexual predator." …
Defendant tries to sideline Plaintiff's affidavits by saying they present nothing more than conclusory statements. A conclusory statement is one that expresses a factual inference without providing underlying facts to support that conclusion. But here, the statements in the declarations go beyond mere conclusions and provide sufficient underlying facts to show when, where, and what was said as necessary to support Plaintiff's defamation claim.
[2.] Plaintiff must next present evidence showing that Defendant's statements were reasonably capable of defamatory meaning, which we examine from the perspective of an ordinary person in light of the surrounding circumstances. Defamation per se refers to statements that are so obviously harmful that general damages may be presumed. "Accusing someone of a crime, of having a foul or loathsome disease, or of engaging in serious sexual misconduct are examples of defamation per se."
Here, the evidence shows that Defendant said Plaintiff was taking photographs of children for "inappropriate purposes" and implied that he was a "pervert, pedophile or sexual predator." An ordinary person would understand these statements to accuse Plaintiff of serious sexual misconduct; therefore, they constitute defamation per se and general damages may be presumed.
Defendant argues that her comments do not qualify as an actionable false statement of fact or a statement implying any undisclosed facts, but that argument is out of bounds. Courts across Texas have held that similar statements are verifiable statements of fact that keep a defamation claim in play….
[3.] Defendant asserts that Plaintiff is a limited-purpose public figure, meaning he must serve up evidence of actual malice to maintain his defamation claim. A three-part test determines whether a defamation claimant is a limited-purpose public figure:
- the controversy at issue must be public both in the sense that people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution;
- the plaintiff must have more than a trivial or tangential role in the controversy; and
- the alleged defamation must be germane to the plaintiff's participation in the controversy.
These requirements are satisfied here. The tennis versus pickleball debate was a matter of public controversy in the Coles Crossing community, the net effect of which would affect community members' ability to play at their local courts. Plaintiff was a major player in the controversy, as head of the exploratory pickleball committee. Finally, the alleged defamatory statements were related to Plaintiff's role in the controversy, i.e., the reason he was taking photographs during a children's tennis clinic.
Therefore, the deciding point at this stage is whether Plaintiff brought forth prima facie evidence of actual malice—that the defamatory statements were published with either knowledge of their falsity or reckless disregard for their truth. To show a reckless disregard for the truth, the plaintiff "must establish that the defendant in fact entertained serious doubts as to the truth of the publication or had a high degree of awareness of the probable falsity of the published information."
Plaintiff made the required showing: Defendant had twice been informed of the legitimate reasons for Plaintiff's photographs, but persisted in accusing Plaintiff of inappropriate purposes. Hooper said he and two other board members scheduled a meeting with Defendant after the board meeting to address "her persistent pattern of disruptive conduct." According to Hooper, Defendant "admitted … that she should not have made the derogatory comments about [Plaintiff] and acknowledged that she was wrong about [Plaintiff] being a pervert, pedophile or sexual predator"—further showing that Defendant made the statements with reckless disregard for their truth. Taken together and viewed in the light most favorable to Plaintiff, this constitutes prima facie evidence that Defendant made the alleged defamatory statements with a high degree of awareness of their probable falsity.
Defendant makes two arguments in response. She first argues that a subsequent apology is not evidence of actual malice. But the Supreme Court of Texas has held that that the actual malice standard was satisfied where defendant—unprompted—"expressed doubt to a friend that there was any basis for the charges he was making." This is especially true here because of the direct evidence that Defendant had been told of the innocent purpose for the pictures multiple times before the meeting. Defendant's second serve fails too: she argues that Plaintiff's actual motive in taking the pictures is "unverifiable," but all that is required at this stage is "a rational inference that the allegation of fact is true." Plaintiff has met that standard….
But the court concluded that plaintiffs' intentional infliction of emotional dismiss claim was duplicative of the defamation claim and should be dismissed:
IIED is not an ace; it is merely a "'gap-filler' tort, judicially created for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress." Accordingly, "[w]here the gravamen of a plaintiff's complaint is really another tort, [IIED] should not be available." …
