## In T he

Court of Appeals
Seventh District of Texas at Amarillo

No. 07

- 21

- 00079

- CV

GARY CLARK

, JR. AND NICOLE TRUNFIO CLARK

, A PPELLANT S

V.

SCOTT OGLE

, APPELLEE

On Appeal from the 274th District Court

Hays County

, Texas

Trial Court No

. 20

- 2146

, Honorable Gary L. Steel

, Presiding



### August 10

, 2021

MEMORANDUM OPINION

Before QUINN

, C.J.

, and P IRTLE and DOSS

, JJ.

Gary Clark

, Jr. and Nicole Trunfio Clark (the Clarks) appeal the trial court ’ s denial

of their motion to dismiss Scott Ogle ’ s Texas Rule of Civil Procedure 202 petition

. 1

Through six issues

, the Clarks contend that 1) the Texas Citizens Participation Act

(TCPA) app lies to Texas Rule of Civil Procedure 202 petitions

, 2) Ogle ’ s defamation

claims are time

- barred and therefore the trial court should dismiss Ogle ’ s petition as moot

,

1 Per that rule

, one may petition the court for an order allowing the taking of a deposition to (a) perpetuate or obtain a person ’ s testimony for use in an anticipated suit or (b) investigate a potential claim

or suit. T EX

. R. C IV

. P

. 202.1(a)

, & (b ).2

3) the trial court erred in denying their motion to dismiss because Ogle f a iled to present

clear and specific evidence in support of his claims

, 4) Ogle ’ s claims fail as a matter of

law and 5) the alleged defamatory statements are “ true or substantially true. ” We reverse

and render

. 2

Background

The Clarks purchased property outside o f Austin

, Texas

, which was adjacent to

property owned by Ogle. On one occasion

, Ogle ’ s donkey wandered onto the Clark ’ s

property. The ensuing exchange between Clark and Ogle resulted in the former writing

a song titled “ This Land

. ” It concerns racism in the United States. Its l yrics include the

following verse :

Fifty acres and a Model A Right in the middle of Trump country I told you

, “ There goes a neighborhood ”

Now mister Williams ain ’ t so funny I see you looking out your window

Can ’ t wait to call the police on me. 3

While promoting the album in which appeared “ This Land ,” Clark gave interviews

to both Rolling Stone and F LOOD magazine s

. It is in those interviews that the alleged

defamatory statements were published. For instance

, i n the February 7

, 2019 Rolling

Stone article

, it was written that:

Clark wrote it [the song “ This Land ” ] after a confrontation with his own neighbor near his new 50

- acre ranch outside Austin

, where Clark lives with his wife

, model Nicole Trunfio

, and their

toddlers

, Zion and Gia. One day

, Clark drove over to tell the neighbor his donkey had wandered onto Clark ’ s property. “ He was very disrespectful to me in front of my kids ,” says Clark

.

2 Because this appeal w as transferred from the Third Court of Appeals

, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court.

See T EX

. R. A PP

. P. 41.3.

3 G ARY C LARK

, J R

. , This Land

, on T HIS L AND (Warner Bros. Rec ords 2019).3 “ And I don ’ t play with that shit. He started saying

, ‘ You don ’ t

live here. There ’ s no way you could live here. Who really owns this place? ’”

And

, in the July 3

, 2019

, FLOOD article

, the following passage appeared :

Clark and his family purchased a sprawling fifty

- acre ranch

estate

- complete with a fourteen

- stall horse barn

- outside of Austin in the bustling community of Kyle

, Texas. A chance encounter with a neighbor was enough to remind the Grammy

winner that all the success in the world still doesn ’ t begin to transcend race in America. When Clark approached the neighbor to let him know that his donkey had found its way

onto Clark ’ s land

, the neighbor ’ s response was less than cordial. According to Clark

, the man was blatantly disrespectful

- and in fron t of his children.

The gist of the neighbor ’ s rant was that he refused to accept

that Clark was

, indeed

, the owner of the impressive property.

“ I don ’ t know what kind of day he was having

, or what his

situation is. But it was at the end of a long year and a long day

, and I was just trying to check my damn mail ,” Clark sighs.

“ Like

, really

, man? But I wish him all the best. ”

T wo other publications later alluded to the Rolling Stone and Flood articles about

Clark

. According to Ogle

, a “ two

- page article from VailDaily

, ” published on September

3

, 2019

, discusse d the interview with Rolling Ston e

, alluded to “ a recent instance in

which [ Clark ] experienced racism ,” and reiterated the donkey incident. The other

publication involved “ a four

- pa ge article from Afterglow ” released on February 19

, 2021.

It focused on the lyrics to “ This Land ” and indicated that the “ Mr. Williams ” mentioned in

them was Clark ’ s neighbor. 4

4 Another instance of supposed defamation was mentioned by Ogle. It apparently consisted of passages from a book scheduled for publication o n March 15

, 2021. The record fails to address whether

the book was released.4

On September 24

, 2020

, Ogle petition ed under Texas Rule of Civil Procedure

202 to depose the Clarks and gather information about the alleged defamations. His

petition was amended to include opportunity to depose a neighbor

, as well

. Leave to

depose those individuals was granted and the deposi tion s were scheduled to occur in

mid

- December of 2020. Before they transpired

, though

, the Clarks invoked the Texas

Citizens Participation Act

, T E X

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 27.001 et seq. (West

2020 ) and moved to dismiss Ogle ’ s Rule 202 petition

. T he motion was denied on March

30

, 2021

, and the Clarks appealed

.

Of the myriad contentions asserted on appeal

, we address only three. One

concerns whether the TCPA applies to a Rule 202 proceeding. Another involves

limitations while the last concerns wh ether a reasonable person could interpret an alleged

defamatory statement as referring to Ogle.

Regarding the first

, the Austin Court of Appeals has held the TCPA applicable to

Rule 202 proceedings. In re Elliott

, 504 S.W.3d 455

, 465 (Tex. App

— Austin 20 16

, orig.

proc eeding ). We are bound to follow that authority because the appeal was transferred

to us from that court. Furthermore

, “ the relief sought by a Rule 202 petition investigating

a potential claim or suit is an equitable remedy ,” as explained by the Elliot court. Id. at

464

– 65. Being an equitable remedy

, it falls outside the amended definition of “ legal

action ” that excludes “ a procedural action taken or motion made in an action that does

not amend or add a claim for legal

, equitabl e

, or declaratory relief ,” contrary to Ogle ’ s

suggestion. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 27.001(6)(A) (defining “ L egal

action ” and what the term does not include).5

Regarding the second

, d efamation claim s have a one

- year limitations period

commencing from the time they accrue. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 16.002(a)

(West 2017) ; Glassdoor

, Inc. v. Andra Grp.

, L.P

. , 575 S.W.3d 523

, 527 (Tex. 2019) ; Ruiz

v. Austin Indep. Sch. Dist.

, No. 03

- 02

- 00798

- CV

, 2004 Tex. App. LE XIS 4725

, at *10

– 11

(Tex. App.

— Austin May 27

, 2004

, no pet.) (mem. op.). Furthermore

, t hey generally

accrue when the purported defamatory statement is published. See Childs v.

Haussecker

, 974 S.W.2d 31

, 36

– 37 (Tex. 1998) (holding that a cause of action generally

accrues when a wrongful act causes an injury

, regardless of when the plaintiff learns of

the injury or if all the resulting damages have yet to occur) ; see also Glassdoor Inc.

, 575

S.W.3d at 528 (noting that the discovery rule may appl y to an action for defamation when

the statement is not a matter of public knowledge )

. 5

As mentioned earlier

, Ogle cites four publications he considered defamatory.

None have yet to be the substance of an actual lawsuit. The first occurred in February of

2019. It appeared in the Rolling Stone article. Given that the date of this opinion is more

than one year after February 2019

, limitatio ns applicable to that supposed defamation

expired. The same is no less true of the u tterance s appearing in the July 2019 issue of

Flood and September 2019 issue of Vail D aily

. Neither were the basis for any defamation

suit initiated by Ogle. Thus

, limitations bars a defamation suit founded upon them.

5 Ogle failed to plead the discovery rule or provide evidence illustrating its applicability

, if any

, to

his situation . This is of import since a plaintiff must first raise the dis covery rule

. Draughton v. Johnson

, __ S.W.3d __

,

__ , 2021 Tex. LEXIS 462

, at *12

– 13 (Tex. June 11

, 2021 ) ; see also Woods v. William M. Mercer

, Inc

. , 769 S.W.2d 515

, 518) (Tex. 1988) (holding that at trial

, “ [t]he [plaintiff] seeking to benefit from the discovery rule must also bear the burden of proving and securing favorable findings thereon ” as it will

“ generally have greater access to the facts necessary to establish that it falls within the rule ” ).6

That leaves the Afterglow statement. I t was published in February of 2021

, and

limitation s has yet to expire. Yet

, that alone does not mean the trial court acted

appropriately in denying the motion to dismiss

, as we now explain.

T he supposed defamatory statement consisted of: “ [p] rior to the album ’ s release

,

Clark recalled the time he was approached by a neighbor

, re ferred to in the album as Mr.

Williams

, who asked him: ‘ Who owns this house? There ’ s no way you can live here

- who

owns this house? ’” Missing from that utterance

, and the article itself

, is mention of the

neighbor ’ s actual name and reference to the donkey incident described in earlier articles.

This is of import because the identity of the person claiming to be defamed must be

discernible from the statement and its context. See Dallas Morning News

, Inc. v. Hall

,

579 S.W.3d 370

, 37 7 (Tex. 2019) ( one of the several elements of defamation and to be a

defamatory statement concern s the plaintiff or complaining party ) ; Wright v. Rosenbaum

,

344 S.W.2d 228

, 232 (Tex. Civ. App.

— Houston 1961

, no pet.) (stating that the

defamatory words must refer to some ascertained or ascertainable person who must be

the plaintiff) ; see also Chehab v. Edgewood Dev.

, Ltd

. , 619 S.W.3d 828

, 835 (Tex. App.

—

Houston [14th Dist.] 2021

, no pet.) (stating that s tatements which neither identify the

plaintiff nor set forth any wrongful conduct have no defamatory meaning ) ; Cox Tex.

Newspapers

, L.P. v. Penick

, 219 S.W.3d 425

, 43 3

– 34 (Tex. App.

— Austin 2007

, pet.

denied) (stating that e ven “ if the plaintiff is not expressly named

, the plaintiff may satisfy

his burden on the ‘ of and concerning ’ element by offering proof that persons acquainted

with the plaintiff would understand the publication to refer to him ” ) ; McGregor v. Vela

, No.

03

- 01

- 00299

- CV

, 2002 Tex. App. LEXIS 1131

, at *12 (Tex. App.

— Austin Feb. 14

, 2002

,7

no pet.) ( mem. op.) ( stating that the p ublication need not name the plaintiff if those who

know or are acquainted with him understand that the defamatory publication refer s him)

.

Again

, th e statement at bar does not name Ogle

. Nevertheless

, he believes that

he was identified because he “ is the only person in the subdivision where both Appellants

and Appellee reside who owns a donkey. Under these circumstances

, acquaintances

and neighbors understand that the statements made by Appellant Gary Clark

, Jr. refer to

Appellee Scott Ogle. ” Thus

, the donkey plays a pivotal role in the story

. It serves to

identify him as the actual person about whom Clark uttered the comment

, according to

Ogle

. Yet

, the Afterglow article says nothing of a donkey or incident involving one

.

Instead

, third parties are only told about a “ neighbor ” called “ Mr. Williams

. ” Nothing in the

article or record suggests that Clark had only one neighbor and that neighbor was Ogle.

Nor does anything in it suggest that Ogle went by the name of or was known by others

as “ Williams

. ” Similarly missing is any reference by Afterglow to prior articles mentioning

the do nkey

. Nor has Ogle cited us to evidence of record from third parties familiar with

him and suggesting they understood the comments to refer to him. This leads us to

conclude that Ogle failed to present clear and specific evidence establishing a prima facie

case identifying him as the subject of Clark ’ s words. See T EX

. C IV

. P RAC

. & R EM

. C ODE

A NN

. § 27.005(c) (stating that a court may not dismiss the action if the party bringing it

“ establishes by clear a nd specific evidence a prima facie case for each essential element

of the claim in question ” ) ; see Wright

, 344 S.W.2d at 231

– 32 (holding the statement that

one of four ladies took the missing dress was insufficient to identify the plaintiff as the

person who allegedly took the dress).8

We sustain in part the Clarks ’ issue concerning limitation s and that concerning the

lack of evidence from which Ogle could be ascertained as the subject of the comments.

Denying the Clarks ’ motion to dismiss was err or. Thus

, we reverse that decision

, render

judgment dismissing Ogle ’ s Rule 202 petition

, and remand the cause to the trial court to

consider an award of attorney ’ s fees

, costs

, and sanctions per § 27. 009 of the Texas Civil

Practice and Remedies Code.

Brian Quinn

Chief Justice