Steinhaus v. Beachside Envtl., LLC

590 S.W.3d 672

Joanie STEINHAUS, Individually, and Turtle Island Restoration Network, Appellant

v.BEACHSIDE ENVIRONMENTAL, LLC, Appellee

NO. 14-18-01048-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed November 26, 2019

Neal Hoffman, William S. Bush Jr., Houston, for Appellant.

James B. Galbraith, Anthony P. Brown, Galveston, Ashley Harshaw, for Appellee.

Panel consists of Justices Christopher, Wise, and Hassan.

Ken Wise, Justice

In this appeal, we hold that a nonprofit corporation and one of its directors are entitled to dismissal of a company's claims governed by the Texas Citizens Participation Act (TCPA)¹ because the appellants proved a qualified privilege and the company failed to establish a prima facie case to support its claims. Thus, we reverse the trial court's order denying the appellants' motion to dismiss and remand for the trial court to award relief under the TCPA.

I. BACKGROUND

Beachside Environmental, LLC sued Joanie Steinhaus and the Turtle Island Restoration Network (TIRN) (collectively, appellants) for defamation per se, tortious interference with contractual relations, and tortious interference with prospective contractual relations. Appellants filed a motion to dismiss under the TCPA, and the parties filed affidavits and other evidence.

Beachside, a company partially owned and managed by Hernan Botero, had been providing beach cleaning and grooming services since 2012 to residential subdivisions and condominiums on the island. The Galveston Island Park Board of Trustees² also had been cleaning beaches using heavy equipment and vehicles. To do so required a federal permit, but none had been obtained until the Park Board ultimately obtained one in 2017. The Park Board spent about $100,000 to obtain the permit. The United States Army Corps of Engineers issued the Park Board a permit, which covered areas where Beachside also operated. The Park Board initially authorized Beachside to work "under" the permit for beaches on the island not directly cleaned by the Park Board, and in return Beachside or its customers would pay fees.

The permit prohibited the "take"³ of certain endangered species, allowed some incidental take, and imposed conditions to prevent take. The parties agree that Beachside was required to comply with the permit's conditions for beach cleaning, among other conditions. Beachside acknowledges that it was required to (1) notify appellants prior to cleaning any beaches; (2) have a trained and certified "spotter" or "monitor" present during cleaning; and (3) only remove seaweed (sargassum) if the seaweed covered more than 10% of the area.

The TIRN is a nonprofit corporation "dedicated to the preservation and protection of marine wildlife." Steinhaus is the Gulf program director for the TIRN, and her duties include overseeing and directing projects on the upper Texas coast related to ocean conservation and habitat and watershed protection. Her duties include the protection of nesting and stranded turtles from mechanized beach cleaning and raking activity.

The permit requires the TIRN to conduct "sea turtle patrols" in Galveston as part of a "two-part monitoring plan," with the goal of detecting and protecting species that may be impacted by beach maintenance equipment. The permit provides, "The Park Board should coordinate with TIRN to ensure all proposed beach areas that will be maintained during the sea turtle nesting season are patrolled daily." The permit requires monitors to work in collaboration with sea turtle patrollers from the TIRN.⁴

Steinhaus testified that the operations manager for the Park Board asked Steinhaus to notify him if she observed any violations of beach maintenance operations. Appellants adduced other evidence indicating that the United States Army Corps of Engineers could revoke the Park Board's permit if beach cleaning was not performed in compliance with the permit, and the Park Board had been concerned about losing its permit if vendors failed to abide by the permit's terms and conditions.

In May 2018, Steinhaus made the following statements, among others, at a meeting of the Park Board's Beach Maintenance Advisory Committee:

... I feel that, um, Hernan is out more frequently raking the beach and not leaving the wrack line that is required. So those are definite concerns of mine, and the placement of the material when it's done. I personally have been on the beach, patrolling and not[—]he has not had a sea turtle monitor on the beach. And I have called him, and requested to know why there was not a monitor on the beach. So those are all concerns.

In its petition, Beachside alleged that the appellants' defamatory statements were that (1) Beachside was "out more frequently raking the beach and not leaving the [w]rack line that is required"; (2) Beachside "has not had a sea turtle monitor on the beach" when Steinhaus was patrolling; and (3) Steinhaus called Beachside and "requested to know why there was not a monitor on the beach."

In their motion to dismiss under the TCPA, and more fully developed in their reply, appellants argued among other grounds for dismissal that appellants had proven a qualified privilege defense and that Beachside failed to make a prima facie case for its claims. The trial court denied the motion, and appellants bring this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(12).

II. ANALYSIS

In ten issues, appellants contend that the trial court erroneously admitted evidence and denied the motion to dismiss. We do not recite all the arguments because the third and tenth issues are dispositive. See Tex. R. App. P. 47.1. In their tenth issue, appellants contend that they proved an affirmative defense of qualified privilege to the defamation claim and that Beachside failed to show appellants' actual malice. In their third issue, appellants contend that Beachside failed to show a prima facie case for any element of its tortious interference claims.

A. TCPA Motion to Dismiss and Standard of Review

The TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern. In re Lipsky , 460 S.W.3d 579, 586 (Tex. 2015). The TCPA provides a special procedure for expedited dismissal. Id. First, movants such as appellants must show by a preponderance of the evidence that the plaintiff's claim is based on, relates to, or is in response to the movant's exercise of the right of free speech, the right to petition, or the right of association. Id. (citing Tex. Civ. Prac. & Rem. Code § 27.005(b) ).⁵ Beachside concedes that its claims are governed by the TCPA because appellants' statements were made in connection with their exercise of the right to petition. See Tex. Civ. Prac. & Rem. Code § 27.001(4).

Because this initial burden has been met, the burden shifts to Beachside to establish, by clear and specific evidence, a prima facie case for each essential element of the claim in question. See ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 899 (Tex. 2017) (citing Tex. Civ. Prac. & Rem. Code § 27.005(c) ). Even if Beachside satisfies this burden, a court will dismiss the action if appellants establish by a preponderance of the evidence each essential element of a valid defense. See id. (citing Tex. Civ. Prac. & Rem. Code § 27.005(d) ).

We review the trial court's denial of a motion to dismiss de novo. Cox Media Grp., LLC v. Joselevitz , 524 S.W.3d 850, 859 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Under this standard, we make an independent determination and apply the same standard used by the trial court in the first instance. Id.

B. Defamation and Qualified Privilege

The elements of defamation include (1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) made with the requisite degree of fault, and (4) damages in some cases. In re Lipsky , 460 S.W.3d at 593. Generally, the status of the plaintiff determines the requisite degree of fault. See id. A private individual need only prove negligence, whereas a public figure or official must prove actual malice. Id. However, even a private individual must prove actual malice if the circumstances support the application of a qualified privilege. Robert B. James, DDS, Inc. v. Elkins , 553 S.W.3d 596, 610 (Tex. App.—San Antonio 2018, pet. denied) (citing Espinosa v. Aaron's Rents, Inc. , 484 S.W.3d 533, 543 (Tex. App.—Houston [1st Dist.] 2016, no pet.) ); see also Thomas-Smith v. Mackin , 238 S.W.3d 503, 509, 511 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (noting that the burden would be on the private individual plaintiff to prove malice if the defendant proves the affirmative defense of qualified privilege); Gulf Const. Co. v. Mott , 442 S.W.2d 778, 784 (Tex. App.—Houston [14th Dist.] 1969, no writ) ("The burden of proof is on the plaintiff to prove that the defendants in the exercise of a conditional [or qualified] privilege was prompted or partially prompted by malice or a want of good faith."). "Actual malice" means that the statement was made with knowledge of its falsity or with reckless disregard for its truth. In re Lipsky , 460 S.W.3d at 593.

A qualified privilege—sometimes called a "conditional" privilege—arises out of the occasion upon which the false statement is published. Shell Oil Co. v. Writt , 464 S.W.3d 650, 654 (Tex. 2015) (citing Hurlbut v. Gulf Atl. Life. Ins. , 749 S.W.2d 762, 768 (Tex. 1987) ). The occasions that may give rise to a conditional privilege are described in the Restatement. Id. (citing Hurlbut , 749 S.W.2d at 768 (citing Restatement (Second) of Torts §§ 594 - 598A (1977) )). Circumstances that may give rise to a qualified privilege include those that induce: "(1) a belief that publication protects the publisher's interest; (2) a belief that publication protects the interest of certain recipients or third persons; (3) a belief that a person sharing a common interest in the published information is entitled to know that...