David Martin Camp & Bargains for Millionaires LLC v. Patterson - No. 03-16-00733-CV, 2017 Tex. App. LEXIS 7258 (Tex. App. Aug. 3, 2017)

Rule:

Neither the United States Supreme Court nor the Supreme Court of Texas has required a private plaintiff to prove the falsity of defamatory statements in suits against nonmedia defendants, even when the statements are on matters of public concern. Instead, falsity is presumed.

Facts:

In this interlocutory appeal, David Martin Camp and Bargains for Millionaires LLC d/b/a Revival (Revival) challenged the trial court's denial of their motion to dismiss pursuant to the Texas Citizens Participation Act (TCPA or the Act).  Dawn Patterson sued Camp and Revival for defamation, business disparagement, tortious interference with prospective business relations, and intentional infliction of emotional distress, citing text messages and emails Camp sent to Patterson and others. Camp and Revival filed a motion to dismiss pursuant to section 27.003 of the TCPA, contending that Patterson filed her lawsuit "in response to" their "exercise of the right of free speech" under the Act. §§ 27.001(3), .003(a). 

Issue:

Was the contention of Patterson that as a private plaintiff suing non-media defendants, she is entitled to a presumption of falsity on her defamation claim tenable?

Answer:

Yes.

Conclusion:

The court found that the text and email messages to Patterson, although private, related to matters of public concern because they were made in connection with issues related to goods and products sold by the company in the marketplace. Because Patterson was a private individual suing a non-media defendant, the burden of proof would not shift to the contractor, and the falsity of the test and email statements was presumed. Patterson did not meet her burden to establish the falsity element of her business disparagement cause of action. There was no reasonable probability that Patterson would have entered into a business relationship with any third party but for the conduct of the business. The business did not show that the email statements that Patterson committed fraud were true. The court remanded to the trial court for the determination of reasonable attorney's fees.