## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 15 - 00045 - CV

STEPHEN NOLAN BEDFOR D AND AUTUMN BEDFORD APPELLANTS

V. DARIN SPASSOFF AND 6 TOOL, LLC, FORMERLY KNOWN AS DALLAS DODGERS BASEB ALL CLUB, LLC, D/B/A DAL LAS DODGERS BASEBAL L APPELLEES

---------- FROM THE 96TH DISTRI CT COURT OF TARRANT COUNTY

TRIAL COURT NO. 096

- 275689

- 14

---------- 

### DISSENTING OPINION

---------- I. I NTRODUCTION I respectfully dissent. Appellee s Darin Spassoff and 6 Tool, LLC, formerly known as Dallas Dodgers Baseball Club, LLC, d/b/a Dallas Dodgers Baseball (collectively Dodgers) filed suit for libel based on two written statements

.2

Because as a matter of law the elements of libel cannot be established concerning either of the written statements, I dis sent from the majority’s failure to reverse the trial court’s judgment denying Appellants Stephen Nolan Bedford and Autumn Bedford ’s motion dismiss the libel claim pursuant to the T exas Citizen s’ Protection Act ( TCPA )

. 1
II. T HE A LLEGED L IBEL The first fa ctual basis for the Dodgers’ libel claim stems from an email sent by Mr. Bedford to Mr. Spassoff (the owner of the Dodgers) threat en ing to protest at the Dodgers ’ practice with homemade poster board signs that Bedford had made, photographed, and included i n the email

. The second factual basis for the Dodgers’ libel claim stems from a post on the Dallas Dodgers ’ Facebook page by

1 I agree with the majority’s conclusions that, app lying the required de novo standard of review, the Bedfords

–– as movants seeking a dismissal under the TCPA

–– established that the Dodgers’ claims against them were based on, related to, or in response to, the Bedfords ’ exercise of free speech; the burden th erefore shifted to the Dodgers to establish by clear and specific evidence a prima facie case for each essential element of every claim asserted against the Bedfords; and, although the Dodgers pleaded claims against the Bedfords for libel, business dispara gement, intentional infliction of emotional distress, and tortious interference with an existing contract or alternatively breach of contract , the Dodgers made no effort to meet their burden of establishing by clear and specific evidence a prima facie case on any claims except libel. See Tex. Civ. Prac. & Rem. Code Ann. § 27.00 5(c) (West 2015). Accordingly, I agree that , applying the required de novo standard of review , the trial court erred by denying the Bedfords ’ motion to dismiss these claims. I fur ther agree with the majority’s conclusion that any error by the trial court in sustaining the Dodgers’ objections to Mr. Bed ford’s affidavit was harmless.3

Mr. Bedford using Mrs. Bedford’s Facebook account and “rating” the Dodgers by giving them one star. Following the one - star ratin g , the post state s , in toto :

Be very careful. One of the coaches put my son on the team an [sic] then started calling and texting my wife. This coach is a home wrecker and the club stands behind him. I guess that ’ s the kind of lessons they plan on teach ing the kids. Very unethical and from talking to the executives they don’t plan on changing. Please stay away[.] III. N O P UBLICATION OF THE E MAIL Concerning Mr. Bedford ’ s email to Mr. Spassoff, the email (with photos of his hand made poster board sign s attached) as a matter of law cannot form the basis of the Dodgers ’ libel claim because the email was not published to a third party. S ee, e.g. , In re Lipsky , 460 S.W.3d 579, 593 (Tex. 2015) (orig. proceeding) (setting forth elements of libel with first element being “ the publication of a false statement of fact to a third party ”); Lyle v. Waddle , 144 Tex. 90, 92

– 93 188 S.W.2d 770 , 771

– 72 (1945) (holding that p ublication is an essential element of a libel action and that w ithout publication , there is no l ibel ); Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 201 1 ) (defining libel as a writing injuring reputation; a person’s reputation is not injured by a publication solely to that person , hence the requirement of publication to a “third party” )

. No eviden ce exists in the record ( n or even any allegation) that Mr. Bedford’s email to Mr. Spassoff was sent to anyone except Mr. Spassoff. Consequently, the4

Dodgers failed to meet their burden of establishing by clear and specific evidence a prima facie case for the essential element of publication in their libel claim. 2

I V
. T HE P OST IS N OT D EFAMATORY , AND THE D ODGERS

F AILED TO E STABLISH D AMAGES Concerning the post Mr. Bedford made to t he Dallas Dodge r s ’ Facebook
page, the Dodge r s failed to establish by clear and specific evidence a prima facie case for the required elements that (1) a statement in the post was defamatory 3
and (2) they suffered damages. S ee, e.g. , Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (defining libel as a defamatory statement made in writ ing); Lipsky , 460 S.W.3d at 593 ( recognizing that damages constitute an essential element of a libel claim)

. A. No Defamatory Statement Concerning Spassoff or the Dodgers
W hether a false statement is capable of a defamatory meaning is initially a question of law for the court. Hancock v. Variyam , 400 S.W.3d 59, 67 (Tex. 2013); Musser v. Smith Protective Serv s

. , Inc. , 723 S.W.2d 653, 655 (Tex. 1987). Whether a publ ication is false and defamatory depends upon a reasonable person’s perception of the entire publication. Turner v. KTRK Television, Inc. , 38

2 Although the majority sets forth publication to a third party as a required element of libel, its an alysis wholly omits any mention of what purported clear and specific evidence exists on this required element.

3 Neither the majority nor the Dodgers identify a specific allegedly defamatory sentence or statement wit hin the post; instead, they glommed the entire post together and call it generally defamatory. Consequently, I address each of the statements in the post to show that none are defamatory.5

S.W.3d 103, 115 (Tex. 2000). We construe an alleged defamatory statement “as a whole in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive it.” New Time s, Inc. v. Isaacks , 146 S.W.3d 144, 154 (Tex. 2004). A statement may be f alse, abusive, unpleasant, or objectionable without being defamatory in light of the surrounding circumstances. Do uble Diamond, Inc. v. Van Tyne , 109 S.W.3d 848, 854 (Tex. App.

–– Dal las 2003, no pet.). Moreover, to be actionable, a statement must assert an objectively verifiable fact rather than an opinion. Neely v. Wilson , 418 S.W.3d 52, 62 (Tex. 2013) ; Carr v. Brasher , 776 S.W.2d 567, 570 (Tex. 1989) (“ [ A]ll assertions of opinion a re protected by the [F]irst [A]mendment . . . .”). We classify a statement as fact or opinion based on the statement’ s verifiability and the entire context in which the statement was made. Bentley v. Bunton , 94 S.W.3d 561, 581 (Tex. 2002). Looking to the circumstances surrounding Mr. Bedford’s allegedly defamatory statement s in his post and how a person of ordinary intelligence would perceive them , I note that the statement s w ere made in a post on the Dodgers’ Facebook page after Mr. Bedford gave the Dodg ers a one - star rating. A consumer’s rating of a business and comments supporting the rating are designed to be an expression of that one consumer’s experience with and6

opinion of the business. 4 A person of ordinary intelligence perceives the ratings and reviews made by consumers on a business’s Facebook page as reflecting the opinion of that consumer. In the post, Mr. Bedford ascribed his opinion as to why a coach put his son on the team

–– as pretext to start calling and texting his wife. Why a player is placed on a team is not an objectively

- verifiable fact. To the extent the statement sa ys the coach called and texted Mrs. Bedford, this fact is true. 5 True statements cannot form the basis of a defamation complaint. See Randall’ s Food M

k ts

. , Inc. v. J ohnson , 891 S.W.2d 640, 646 (Tex. 1995). Mr. Bedford also expressed his opinion that “this coach” (not Mr. Spassoff or the Dallas Dodgers Baseball Club ) is a “ home wrecker ” and his opinion that “the club stands behind him .” Whether a person is a hom e wre cker is not an objectively

verifiable fact. See, e.g. , McConnell v. Coventry Health Care Nat ’ l Network

, No.
05

- 13

- 01365

- CV, 2015 WL 4572431 , at *10 (Tex. App.

— Dallas July 30, 2015, pet. denied) (mem. op.) (holding statement that doctor’s comments were “un professional” was an opinion and not an objectively verifiable fact); Ruder v. Jordan , No. 05

- 14

- 01265

- CV, 2015 WL 4397636 , at *5 (Tex. App.

— Dallas July 20, 2015, no pet.) (mem. op.) (holding seller’s post on Zillow giving relator low

4 See https://www.facebook.com/help/4346052600 12677/ (explaining that ratings and reviews must focus on the product or service offered by the Page and be based on personal experience) (last visited February 5, 2016 ).

5 In their brief, the Dodgers explain that the day after Mr. Bedford’s post , “the coa ch” mentioned in the post “admitted to working privately with the Bedfords’ son and ‘hooking up’ with Mrs. Bedford, but was adamant that the relationship ‘had n othing to do with baseball.’”7

rating and stating th at seller had been asked if relator’s conduct was attributable to “incompetence, unstable mind, or rage induced by re [ j ] ection” was not objectively verifiable and was a non actionable expression of opinion )

. And whether a business will “stand behind” a wor ker is not an objectively

- verifiable fact. 6 Mr. Bedford articulated his opinion that “I guess that’s the kind of lessons they plan on teaching the kids. ” This is likewise not an objectively

- verifiable fact but constitutes only Mr. Bedford’s speculation. Mr. Bedford stated his opinion that the conduct was “unethical” and that “they don’t plan on changing.” A business’s “ethics” in dealing with an independent contra c tor’s noncriminal conduct not related to job performance is not an objectively

- verifiable fact. Compare Double Diamond, Inc. , 109 S.W.3d at 855 (holding statement of opinionated criticism not actionable) , with Cummins v. Bat World Sanctuary , No.
02

- 12

- 00285

- CV, 2015 WL 1641144 , at *2, * 8 (Tex. App.

— Fort Worth Apr. 9, 2015, pet. denied) (mem. o p.) (holding statements

— that wild colony of bats outside the building had mites and included rabid bats, that owner of facility did not properly quarantine sick bats, did not notice when a bat fell in a trash can and neglected her own dogs

— were objective v erifiable statements of fact ) . Simply put, a s a matter of law, viewing the entire posting as a w hole in the context it was made

— as a post on the Dodgers’ Facebook page after giving the business a

one - star rating, a person of ordinary intelligence would vi ew every statement by

6 In their brief, the Dodgers state that “the coach” was a battin g coach who was an independent contractor w ith the organization.8

Mr. Bedford a s an expression of his own opinion. See, e.g. , Avila v. Larrea , 394 S.W.3d 646, 659 (Tex. App

–– Dallas 2012, pet. denied) ( explaining that a statement is opinion if it is “by its nature, an indefinite or ambiguous individ ual judgment that rests solely in the eye of the beholder”)

. The gist of Mr. Bedford’s post is his complaint that his wife decided to become romantically involved with a batting coach for the Dodgers and his dissatisfaction with the Dodgers ’ handling of t he situation ; Mr. Bedford’s post, at most, is opinionated criticism. See, e.g ., Double Diamond, Inc ., 109 S.W.3d at 855; Am. Heritage Capital, LP v. Gonzalez , 436 S.W.3d 865, 875

– 76 (Tex. App.

–– Dallas 2014, no pet. ) (holding none of the posts by defendan t on “various internet websites”

— that “[t]he guy that was supposed to handle closing could barely speak english [sic]’” and that “Chris end [sic] everyone I talked to at this company were incompetent. They reviewd [sic] my credit rating and pro mised a qui ck close. Then the list o f things got longer and longer”

— were as a matter of law non defamatory statements of opinion)

. B. Even if Post I s Defamatory, I t I s Not Defamatory Per Se , and No Damages Were Established A plaintiff asserting a defamation claim “must plead and prove damages, unless the defamatory statements are defamatory per se.” Lipsky , 460 S.W.3d at
592. The Dodgers failed to meet their burden of establishing by clear and specific evidence a prima facie case for the essential element of dam ages from Mr. Bedford’s post

. The parties ’ briefing as well as questions during oral argument established that the Dodgers successfully removed Mr. Bedford’s9

comments from the Dodgers’ Facebook page within a few weeks. The prayer for relief in the Dodger s’ original petition pleads for “actual damages , ” but neither the Dodgers’ petition, nor the Dodgers’ response to the Bedfords’ motion to dismiss,

n or Mr. Spassoff’s affidavit attached to the Dodgers’ response to the Bedfords’ motion to dismiss , identify a ny “actual damages” suffered by either Mr. Spassoff or by the Dallas Dodgers Baseball Club as a result of Mr. Bedford’s comments that were posted for approximately two weeks. 7 The Dodgers did not plead or prove that any individual actually read Mr. Bedfor d’s post before it was removed.
T he Dodgers did not plead or prove that the Dodgers received any calls or expressions of concerns regarding the post. The Dodgers did not plead or prove that they lost any clients or ballplayers as a result of the post. I n short, t he

7 Mr. Spassoff’s affidavit contains one sentence stating that “[t]his conflict with the Bedfords has caused m e countless hours of duress.” This sentence is insufficient to satisfy the TCPA’ s clear

- and

- specific evidence requirement because (1) it bases Mr. Spassoff’s duress on “the conflict with the Bedfords” not on damage to his reputation, and (2) such conclusory statements do not rise to clear and specific evidence. See , e.g. , Tex. Civ. P rac. & Rem. Code Ann. § 73.001 ( implying all recoverable damages for libel must stem from written defamatory statement ); Lipsky , 460 S.W.3d at 592

– 93 (holding “general averments of direct e conomic losses and lost profits ” do not satisfy the TCPA’s clear

- an d

- specific evidence standard without “specific facts illustrating how Lipsky’s alleged remarks about Range’s activities actually caused such losses” )

. To the extent the Dodgers attached evidence to their brief that is not included in the record before thi s court, I do not consider it. See Tex. R. App. P. 34.1 (describing the officia l appellate record as the clerk’ s record and reporter ’ s record); Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001) (stating supreme court would not consider a doc ument that w as not in the clerk’ s record) ; In re Guardianship of Winn, 372 S.W.3d 291, 297 (Tex. App.

— Dallas 2012, no pet.) (refusing to consider documents not contained in appellate record).10

Dod gers did not plead or establish by clear

- and

- specific evidence a prima facie case for the essential element of damages in their libel claim. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). Thus, the trial court was required to dismiss t he Dodgers’ libel claim unless Mr. Bedford’s post was defamatory per se so that general damages were presumed. See Hancock , 400 S.W.3d at 68 ( reversing defamation judgment for plaintiff because statements were not defamatory per se and because no evidence of damages existed to support award for defamation per quod). A statement may be defamatory per se if is false and injures a person in his office, profession, or occupation; charges a person with the commission of a crime ; imputes sexual misconduct; or ac cuses one of having a loathsome disease. Tex. Disposal Sys . Landfill, Inc. v. Waste Mgm t

. Holdings, Inc ., 219 S.W.3d 563, 580 (Tex. App.

–– Austin 2007, pets. denied). Mr. Bedford’s post did not impute sexual misconduct to either plaintiff (Mr. Spassoff or the Dallas Dodgers Baseball Club ), did not charge either plaintiff with the commission of a crime, and did not accuse either of having a loathsome disease. Thus, the only remaining question is whether the post injured Mr. Spassoff o r the Dallas Dodgers B aseball Club in their occupation or profession. The Texas Supreme Court has held that disparagement of a general character is not enough to constitute defamation per se “unless the particular quality disparaged is of such a character that it is peculiarl y valuable in the plaintiff’s business or profession.” Hancock , 400 S.W.3d at 67 (holding11

statements

— that doctor lacked ve racity and dealt in half

- truths

— were not, in the context the statements were made, defamatory per se) . The proper inquiry is whether a defamatory statement accuses a professional of lacking a peculiar or unique skill that is necessary for the proper conduct of the profession. Id

. When a statement is defamatory per se, then the factfinder may presume that the statement injured the pla intiff’s reputation, and this presumption will support an award of general damages. Ben tley , 94 S.W.3d at 604; see als o Downing v. Burns , 348 S.W.3d 415, 424 (Tex. App.

–– Houston [14th Dist.] 2011, no pet.) (holding that relators’ statements

— that former employee, who had worked as an assistant to the relators, had stolen from them and their clients

— was defamatory per se). Here, no statement in Mr. Bedford’s post accuses Mr. Spassoff or the Dallas Dodgers Baseball C lub of lacking a peculiar or unique s kill related to baseball or to running a baseball organization. Even the Dodgers’ brief states that the independent

- contract or coach’s conduct in “hooking up” with Mrs. Bedford had nothing to do with baseball. The Dodgers provide no argument or analysis explaining how Mr. Bedford’s post falls within the category of defamation
per se. 8 A statement disparaging the Dodgers for not preventing a batting coach from engaging in an extramarital affair or for not disciplining such a coach in

8 The majority nonetheless categorizes Mr. Bedford’s post as statements of fact constituting defamation per se and presumes Mr. Spassoff and the Dallas Dodgers Baseball Club suffered “mental anguish and loss of reputation” damages from the post.12

some unidentified man ner, as apparently desired by Mr. Bedford, is not the disparagement of a character or quality that is essential to the business of operating a baseball club. At most, it is a general disparagement. See Hancock , 400 S.W.3d at 68 (recognizing that “ [ i ] f an accusation of untruthfulness is defamatory per se for a physician in her profession, it would likewise be defamatory per se for other trades, businesses, and professions that rely on human interaction”). A n accusation on a business’s Facebook page as a “ ratings and reviews” comment that the business did not prevent an employee’s extramarital affair with a client and did not properly discipline the employee or handle the situation is defamatory per se only if it would likewise be defamatory per se for all other trades, businesses, and professions that rely on human interaction. I cannot agree with the majority that Mr. Bedford’s post, even if defamatory, was so egregious and obviously injurious to the reputation of Mr. Spassoff and of the Dallas Dodgers Ba seball C lub that damages to Mr. Spassoff’s reputation or to the Dallas Dodgers Baseball C lub can be presumed as a matter of law by the approximately two

- week

- long post. Accordingl y, I would sustain the Bedfords’ third point in toto. 9

9 Based on my disposition of the Bedfords’ third point , it would be unnecessary to ad dress their fourth and fifth points

. See Tex. R. App. P. 47.1 (requiring appellate court to address only issues necessary for disposition of appeal).13 V. C ONCLUSION For the above reasons, I would hold that the trial court erred by failing to dismiss all of the Dodgers’ claims against the Bedfords , including the libel claim, and I would remand the case to the trial court for further proceedings in accordance with the TCPA

. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.005(b), (d), .006, .007, .009 (West 2015). Because the majority holds otherwise, I respectfully dissent.

/s/ Sue Walker SUE WALKER JUSTICE DELIVERED: February 11, 2016