DISMISS and Opinion Filed May 3, 2019 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-00556-CV SKEET PHILLIPS, Appellant V. RAY CLARK, Appellee On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 90510-422 

### OPINION Before Justices Whitehill, Molberg, and Reichek Opinion by Justice Reichek In this suit for libel and defam ation, Skeet Phillips appeals the trial court’s denial of his motion for traditional and no-ev idence partial summary judgment . Because we conclude Phillips has failed to demonstrate his entitlement to bring an interlocu tory appeal under section 51.014(a)(6) of the Texas Civil Practice and Remedies Code, we dismiss this appeal for lack of jurisdiction. Procedural Background Ray Clark brought this suit agai nst Phillips and others assert ing claims for defamation/libel per se, defamation/libel per quod, and conspiracy. According t o Clark’s live pleading, in March 2014, he was the incumbent candida te for the office of County C ommissioner of Precinct 2 in Kaufman County, Texas. Phillips was one of Clark’s challengers in the Republican primary–2– election. Clark asserted that Phillips hired his co-defendants Michael Hendrix, Ben Campbell, and John Knox, along with their organ izations, The Precise Agency, The Precise Agency Group, My Right to Know, and Your Right to Know, to advertise for his cam paign. On March 1, 2014, three days before the election, many residen ts of Precinct 2 received a mailer purportedly sent by My Ri ght to Know. Clark asserted th e mailer contained numerous false statements of fact that unambi guously associated him with corru ption in connection with the prosecution of an alleged child molester, Stoney Adams. The ne xt day, an article appeared on myrighttoknow.org containing subs tantially similar statements a bout Clark’s asso ciation with Stoney. Clark alleged that “My Right to Know” was an assumed n ame of Hendrix, Campbell, and Your Right to Know, and that Phillips provided them with all or part of the information contained in the article. Phillips filed a motion for partial summary judgment on Clark’ s claims for defamation/libel per quod and conspiracy asserting both traditional and no-evide nce grounds. In the motion, Phillips argued Clark could not establish damages caused by the allegedly false statements in the mailer and on the website or a meeting of the minds to defame h im. The trial court denied the motion, and Phillips filed thi s interlocutory appeal. In his notice of appeal, Phill ips relies on section 51.014(a)( 6) of the Texas Civil Practice and Remedies Code as the basis for this Court’s jurisdiction. Section 51.014(a)(6) permits an interlocutory appeal from an order that denies a motion for summary judgment that is based in whole or in part upon a claim against or a defense by a member of the electronic or pri nt media, acting in such capacity, or a person whos e communication appears in or is published by the electronic or print media, arising under the free speech or fre e press clause of the First Amendment to the United States Constitution, or Article I , Section 8, of the Texas Constitution, or Chapter 73. T EX

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. C ODE A NN . § 51.014(a)(6). Phillips further states in the notice, “For purposes of appellate jurisdic tion, Defendant attaches and inco rporates by reference the Affidavit–3– of Ben Campbell dated May 27, 2014 (Exhibit A), and two inForne y.com news articles dated March 3, 2014 and March 25, 2014 (Exhibit B).” 1 In Campbell’s affidavit he states that Your Right to Know is a Texas nonprofit corporation of which he is one of three directors. The corporation’s state ment of purpose is “for charitable, religious, education, and scien tific purposes under 501(c)(3) o f the Internal Revenue Code.” Campbell also states Your Right to Know created the website myr ighttoknow.org and, prior to March 2014, the website addressed “the need for transparency in healthcare matters.” According to Campbell, Lacie Adams, Stoney’s ex-wife, wanted t o have her “strong opinion” on the matter of Stoney’s prosecution posted in an art icle on the myrighttoknow.org website. Your Right to Know “hire d an individual who had inves tigative reporting experience” to write the article, but the content of the article “did not cont ain anything that was a substantive change from what Lacie had provi ded to be posted on the website .” The mailer sent out to some of the residents of Precinct 2 pr ior to the election referenced the myrighttoknow.org website. Exhibit B to Phillips’s notice of appeal is two articles print ed from inForney.com. The first is entitled “Will Precinct 2 voters reject negative political m ailers?” The second is entitled “Commissioner Clark files defama tion suit against Skeet Phillip s, wife, and others.” On May 16, 2018, Phillips filed in this Court an affidavit by Mathew Richa rds, a journalist working with inForney.com. Richards states “inForney is an online news publ ication that publishes stories/news on a variety of topics which include, but are not limited to, L ocal News, Business, Crime, Education, Sports, Politics, and Entertainment.” Richards furt her states that the articles published

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. G OV ’ T C ODE A NN . § 22.220(c) (court of appeals may, on affidavit or otherwise, ascertain matters of fact necessary to proper exercise of jurisdiction); Greystar, LLC v. Adams , 426 S.W.3d 861, 865 (Tex. App.—Dallas 2014, no pet.) (we may consider submitted documents outside the recor d for limited purpose of determining our own jurisdiction).–4– on the inForney website containe d quotes from the mailer and/or the article published on myrighttoknow.org. In his brief on appeal, Phillips does not address this Court’s jurisdiction over his appeal other than to cite section 51.014 of the Texas Civil Practice a nd Remedies Code and refer to Richards’s affidavit. Clark asser ts in his responsive brief th at we have no jurisdiction because Phillips is not a media defendant and has not asserted any defe nses based on free speech, freedom of the press, or Chapter 73. Although Phillips filed a reply b rief, he did not address Clark’s jurisdictional arguments. Jurisdiction Under Section 51.014(a)(6) Appellate courts have jurisdiction to consider immediate appea ls from interlocutory orders only if a statute explicitly p rovides such jurisdiction. Tex. A&M Univ. Sys. v. Koseoglu , 233 S.W.3d 835, 840 (Tex. 2007). In this case, Phillips relies sol ely on section 51.014(a)(6) of the civil practice and remedies code. For an interlocutory appeal under section 51.014(a)(6), there must be: (1) an order (2) that denies a motion for summary jud gment (3) that is based in whole or in part upon a claim against or defense by (4) a member of the media or a person quoted in the media (5) arising under constitutional free speech guarantees o r Texas libel statutes. T EX

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. C ODE A NN . § 51.014(a)(6); see also Dallas Symphony Ass’n, Inc. v. Reyes , No. 17- 0835, 2019 WL 1090771, at *4 (Tex. Mar. 8, 2019). The order fr om which Phillips appeals denies his motion for summary judgment ch allenging Clark’s claims agai nst him arising under the Texas libel statutes. 2 However, unless the record affirmatively shows Phillips was e ither a member of the media, or his statements appeared in the media, we must dis miss the appeal. See Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.—Dallas 2009, no pet.).

2 We disagree with the concurrence’s conclusion that a motion c hallenging a claim under the Texas libel statutes is not a motion “based upon” the challenged claim.–5– Assuming the communications at issue are attributable to Phill ips, which he denies, not everyone who comments on the news or political or social issues is a “member of the media.” Serv. Emps. Int’l Union Local 5 v. Prof ’l Janitorial Serv. of Houston, Inc. , 415 S.W.3d 387, 395 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). The distinc tion between media defendants and those who merely opine on the issues of the day is particul arly important today when every person with an internet connection has the ability to publish h is or her comments to a broad audience. If the entirety of the internet and those who commun icate on it were considered the “media,” the limiting language of section 51.014(a)(6) would be rendered meaningless. Id

. Several courts have addressed the application of section 51.014 (a)(6)’s media defendant requirement in this age of easy mass communication. Each of th ese cases has rec ognized that the term “media” must be interpreted in such a way as to limit the applicability of the section to the class of persons it was intended to benefit. In Service Employees Internat ional Union Local 5 v. Professional Service of Houston, Inc. , the Houston First Court of A ppeals held that a person is a “member of the media” when “the person’s primary business is re porting the news and they are . . . acting in such capacity.” Id . at 398. In Kaufman v. Islamic Society of Arlington , the Fort Worth Court of Appeals set out a number of factors to be considered, including the “circumstances relating to the character and text of the communication itself, its editorial process, its volume of dissemination, the communicator’s extrinsic notoriety unconnect ed to the communication, [and] the communicator’s compensation for or professional relationshi p to making the communication.” 291 S.W.3d 130, 142 (Tex. App.—Fort Worth 2009, pet. denied). Finally, in Hotze v. Miller , the Tyler Court of Appeals concluded the appellant was a “media def endant” based, in part, on the record showing he had been a pol itical writer and journalist fo r thirty years, his editorials were published in a weekly newspaper, and he hosted a radio broadcas t and website that published his articles. 361 S.W.3d 707, 711–12 (Tex. App.—Tyler 2012, pet. d enied). A common thread–6– through all of these holdings is that the appellant’s communica tions must be made in the context of professional news reporting or professional investigation an d commentary on matters of public

concern. See also Main v. Royall , 348 S.W.3d 381, 387 (Tex. App.—Dallas 2011, no pet.) (writer and publisher of traditional book criticizing government’s use of eminent domain power were “members of the electronic or pr int media” for purposes of sect ion 51.014(a)(6)). The record before us shows that Phillips was a candidate for pu blic office who allegedly provided information that was published in mailers and on a web site. Nothing in the record shows Phillips has ever engaged in professional news reporting or any other form of journalism or professional investigation and commentary about matters of publ ic concern. Accordingly, Phillips does not qualify as a “member of the media.” We recognize that section 51.014(a)(6) contains a second, indep endent basis to bring an interlocutory appeal if the appellant’s communications appeared in the media. Hotze. at 712. There is no suggestion in the statute, however, that the “media ” in which the appellant’s communications must appear is any different than the “media” of which the appellant must be a member. Accordingly, not every publication falls within the sc ope of section 51.014(a)(6). For example, although the internet has been recognized as a type of “nontraditional electronic media,” not every website will qualify as “media” for purposes of secti on 51.014(a)(6). See Serv. Emps ., 415 S.W.3d at 402. To conclude oth erwise would lead to the abs urd result that a person who was not a member of the media could b ecome a “media defendant” simp ly by having his statements appear somewhere on the internet regardless of the context in w hich they appeared. The media in which the appellant’s communicat ions appear, therefore, must al so be in the business of news reporting or professional investigation and commentary on matte rs of public concern. In this case, Phillips’s allege d communications appeared in mai lers and a website article published by myrighttoknow.org. According to the affidavit tes timony submitted by Phillips,–7– myrighttoknow.org was a website c reated by Your Right to Know, a Texas nonprofit corporation established “for charitable, r eligious, educati on, and scientif ic purposes.” Alt hough Phillips’s codefendant Campbell testified that Your Right to Know hired an i ndividual with “investigative reporting experience” to write the article about which Clark co mplains, Campbell also stated the content of the article came entirely from a non-media source pr ovided to the writer. There is no indication that inves tigative report ing played any role in the creation of the article. Clark has alleged that Hendrix, another co-defendant, is the re gistered owner of myrighttoknow.org and that Hendrix “does business as My Right t o Know, Your Right to Know, The Precise Agency, LLC, and The Precise Agency Group LLC.” He ndrix testified by affidavit that Phillips retained the Precise Agency as a consultant for h is campaign and to provide campaign advertising and maintenance and monitoring of social media. On this record, there is nothing to suggest that myrighttoknow.org, or any of the persons associate d with it, is in the business of news reporting or professional investigation and commentary. Becaus e of this, we conclude their publications do not qualify as “media” for the purposes of sect ion 51.014(a)(6). Finally, Phillips appears to rely on the news articles appearin g on inForney.com to bring him within the scope of section 51.014(a)(6). The articles on inForney.com were written by a professional journalist and disc uss the mailers sent prior to t he election and the subsequent lawsuit brought by Clark. But Clark has not pleaded any claims based o n the publication of those articles, nor does he allege that they are defamatory. Phillips cannot, therefore, rely on those articles to establish his standing as a media defendant. Id . at 403.–8– Based on the foregoing, we conclu de the record fails to affirma tively show that Phillips falls within the class of persons to which section 51.014(a)(6) applies. Accordingly, we dismiss this appeal for want of jurisdiction.

Whitehill, J., concurring.

180556F.P05 /Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE–9– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SKEET PHILLIPS, Appellant

No. 05-18-00556-CV V. RAY CLARK, Appellee On Appeal from the 422nd Judicial District Court, Kaufman County, Texas Trial Court Cause No. 90510-422. Opinion delivered by Justice Reichek. Justices Whitehill and Molberg participating. In accordance with this Court’s opinion of this date, the appe al is DISMISSED for want of jurisdiction. It is ORDERED that appellee RAY CLARK recover his costs of this appeal from appellant SKEET PHILLIPS.
Judgment entered May 3, 2019