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A Texas couple’s dispute with their wedding photographer over what was, and was not, included in the customized photography package purchased escalated when the couple aired their grievance on television and on social media.  Now it will cost them $1.08 Million, instead of the $150 disputed fee.

Andrea Polito is a photographer and had done business as Andrea Polito Photography, Inc. (APP) in the Dallas, Texas area.  She brought suit asserting defamation, business disparagement, tortious interference with prospective contracts, and conspiracy against Neely Moldovan and Andrew Moldovan (now married) after the Moldovans went on television and social media accusing Polito and APP of holding their wedding photographs “hostage.”

On January 12, 2015, the same day their dispute with Polito and APP arose, the Moldovans contacted the local NBC news affiliate, Channel 5. The Moldovans invited Scott Gordan, an NBC 5 reporter, to their home for an interview. The resulting story aired on television on January 16, 2015, with an accompanying article on NBC 5's website. The article began, "[t]wo Dallas newlyweds claim that their wedding photographer is holding their pictures hostage until they pay an extra fee for a 'cover' for their photo album—even though they already paid for the book itself." The article stated that the Moldovans had already paid Polito over $6,000 to photograph their wedding, including the purchase of a wedding album. But Polito now required the Moldovans to pay an additional $150 for the cover of the album they had already purchased, a fee not disclosed in the parties' contract.

The article reported that the Moldovans "have not received a CD of their pictures, which was also part of their agreement," and "the photographer told them unless they pay for the cover or 'forfeit' the album, they can't get the disk either." "What's more," the article continues, "if the Moldovans don't do anything by Feb. 18, the photographer will 'archive' their pictures," and charge "another $250" to retrieve them. The article quotes Neely's complaints that "[o]ur wedding was over three months ago" and "[i]t's heartbreaking because these are our memories."

The first NBC article was viewed by more than 350,000 people.  The story "went viral," spurring thousands of "views" on the websites, blogs, and social media that carried it, and receiving comments from readers around the world. The Moldovans then published the story on social media—including a blog belonging to Mrs. Moldovan-- and encouraged their social media contacts to view the story, share negative information about Polito and APP, and use photographers other than Polito and APP. Polito closed down APP's Facebook page due to more than fifty negative reviews posted there after the story aired.

The Moldovans filed a motion to dismiss the suit, alleging that it was in response to their exercise of the right of free speech. After an evidentiary hearing at which Polito testified, the trial court denied the Moldovans' motion to dismiss. In its order, the trial court found that Mrs. Moldovan "is primarily engaged in the business of selling social media services through her personal blog, which exempts her statements from coverage" under the Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Code § 27.010(b).

At the hearing on the motion to dismiss, Polito offered the first page of APP's federal income tax returns for the years 2011, 2012, and 2013 with her affidavit in response to the Moldovans' motion. Those returns reveal APP's total income for those years. Although the Moldovans argued that the returns show decreasing total income each year, the court found that precipitous 2015 drop to which Polito testified far exceeded that trend.

Ultimately, Polito was forced to close her business.

On Friday, a jury found the couple liable for $1.08million in damages for their defamatory, disparaging and malicious statements, though the Moldovans can appeal the ruling.

Lexis subscribers can access the opinion at: Moldovan v. Polito, 2016 Tex. App. LEXIS 8283 (Tex. App. Dallas Aug. 2, 2016)

Lexis Advance subscribers can find the opinion at:  Moldovan v. Polito, 2016 Tex. App. LEXIS 8283 (Tex. App. Dallas Aug. 2, 2016)


Author:  Gabriela N. Nolen, Case Law Editor


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