Over a vigorous dissent by Justice Benavides, the Corpus Christi Court of Appeals has affirmed a trial court order denying dismissal of defendants’ counterclaim for defamation under the Texas Citizens Participation Act (Ch. 27, CPRC).
Michael Neuman, Individually and Deriratively on Behalf of Rockport Area Assocition of Realtors, Inc. v. Keith Hamilton, Gemma Anthony, and Jennifer Bradshaw, As Executive Officers and Members of the Board of Directors of the Rockport Area Association of Realtors, Inc. (No. 13-23-00176-CV; February 29, 2024) arose from what appears to have become a nasty personal dispute between Plaintiff Neuman, a Rockport-area realtor, and several members of the board of the local board of realtors. The facts involve a series of charges and countercharges, so we will forego them here except to the extent necessary to explain the majority’s holding. Suffice it to say that Neuman didn’t like the way the local board was running its business and sued for declaratory judgment regarding its internal operating procedures, right to inspect books and records, right to vote, and whether the board followed its own procedures in the election and certification of officers. The named board members answered with a general denial and counterclaimed for defamation, asserting that Plaintiff spread defamatory information about them and the actions of the board to local realtors. Plaintiff moved to dismiss the counterclaim under the free speech prong of the TCPA. The trial court granted the motion and awarded the board members attorney’s fees.
In a majority opinion by Justice Tijerina, the court of appeals affirmed. The issue for the majority was whether Neuman’s allegedly defamatory comments about the board and its operations met the definition of “matter of public concern” under the TCPA as amended in 2019. Reviewing recent SCOTX authority, the majority concluded Plaintiff’s communications concerned only a “limited business audience” involving realtors on either side of dispute about the internal workings of their private organization. The majority further questioned whether such an internal dispute really had “some relevance to a public audience when [the communications] were made,” or, put another way, whether a group of realtors engaged in name-calling and mutual threats was of any public interest at all. In view of the recent narrowing of the statute, the majority was rightly wary of elevating what boiled down to a commercial dispute to the real of protected speech under the TCPA. No public concern, no TCPA dismissal.
Justice Benavides decidedly disagreed. While acknowledging that the Legislature had narrowed the statute, she would have held that it applied to Defendants’ counterclaim and that Defendants failed to make a prima facie case for their defamation claim. She based her argument on a broader reading of “public concern” than the majority’s, one which treat a “community” of realtors as a “public” and issues about professional governance of “concern” to that public. She makes a strong case, but we share the majority’s view of the matter. We believe that the 2019 Legislature set out to significantly winnow down the number of disputes between purely private parties that spawned the enormous surge of TCPA satellite litigation in our courts. The whole problem with prior statute was that “matter of public concern” meant just about anything. This case, in our view, presents precisely the kind of local, private, “inside-baseball” type of dispute that has no business getting hung up in the TCPA. Nobody in the “public” would have any idea what the dispute is about, much less have any “concern” about it. Recognizing that Justice Benavides’ scholarly review of recent SCOTUS’s commercial speech decisions is far better than anything we can produce, we still think it proves too much. The Legislature was trying to bring some common sense to TCPA litigation so that it wouldn’t go on mucking up the courts. We applaud the majority for seeing it in that light.
