Warner Bros. Entm't, Inc. v. Jones

538 S.W.3d 781

WARNER BROS. ENTERTAINMENT, INC.; Warner Bros. Technical Operations, Inc. d/b/a Warner Bros. Advanced Digital Services; TMZ Productions, Inc. ; EHM Productions Inc. d/b/a TMZ; TMZ.com ; and Elizabeth McKernan, Appellants

v.Robert JONES, Appellee

NO. 03-16-00009-CV

Court of Appeals of Texas, Austin.

Filed: December 21, 2017

Mr. Charles L. Babcock IV, Jackson Walker, L.L.P., 1401 McKinney, Suite 1900, Houston, TX 77010, Mr. Joshua A. Romero, Mr. Sean D. Jordan, Jackson Walker L.L.P., 100 Congress Ave., Suite 1100, Austin, TX 78701, for Appellants.

Mr. Ben C. Broocks, Broocks Law Firm, PLLC, 900 S. Capital of Texas Highway, Las Cimas IV, Suite 403, Austin, TX 78746, Mr. Alan B. Daughtry, 3355 West Alabama, Suite 444, Houston, TX 77098, for Appellee.

Before Chief Justice Rose, Justices Goodwin and Bourland

OPINION

Cindy Olson Bourland, JusticeThis suit arises at the crossroads where the First Amendment's protection of free speech and a free press meets the Texas Constitution's protection of the right to bring suit for reputational torts—an area with which the Texas Citizens Participation Act intersects to the extent it provides for early dismissal of some claims. Compare U.S. Const. amend. I ("Congress shall make no law ... abridging the freedom of speech, or of the press....") with Tex. Const. art. I §§ 8 ("Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege...."), 13 ("All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation , shall have remedy by due course of law." (emphasis added)); see also generally Tex. Civ. Prac. & Rem. Code §§ 27.001 -.011 (TCPA). In this case, a news story about a former Dallas Cowboy football player, Robert Jones, was posted on the celebrity-news website, TMZ.com. The article's headline reads, "EX-SUPER BOWL CHAMP SUSPECT IN POLICE INVESTIGATION," with a subheading stating, "Allegedly Tried to Hire Hit Man." The article states that Jones allegedly tried to hire a hit man "to take out his agent." TMZ's source for the article was Theodore Watson, Jones's first cousin and a convicted felon. The record indicates that Watson had been harassing Jones and his family and trying to extort money from them. Watson called the TMZ tip line a couple of days after Jones's attorney had sent Watson a cease-and-desist letter. The TMZ article was posted at 2:45 a.m. Central time on June 18, 2014, without first obtaining Jones's reaction to it.¹ Jones's attorney contacted defendant Elizabeth McKernan ("Liz" or "McKernan"), the TMZ associate producer who investigated the story, at 8:00 a.m. Central time that morning. After the attorney sent McKernan a press release on Jones's behalf, an update appeared on TMZ.com later that morning that included some of the information from the press release.

Jones later sued the appellants, Warner Bros. Entertainment, Inc.; Warner Bros. Technical Operations, Inc. d/b/a Warner Bros. Advanced Digital Services; TMZ Productions, Inc.; EHM Productions Inc. d/b/a TMZ; TMZ.com; and Elizabeth McKernan (collectively, "the TMZ Defendants"), for libel, civil conspiracy, intentional infliction of emotional distress, malicious prosecution, and abuse of process, seeking exemplary damages and a permanent injunction. The TMZ Defendants moved to dismiss Jones's claims pursuant to the TCPA, which provides a mechanism for early dismissal of claims in some cases involving First Amendment rights. See In re Lipsky , 460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding) ("The TCPA's purpose is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits."). The trial court allowed limited discovery, including document production and the deposition of McKernan, before conducting a hearing. See Tex. Civ. Prac. & Rem. Code § 27.006(b) (providing that "court may allow specified and limited discovery relevant to the motion" as exception to TCPA's stay of discovery after motion to dismiss is filed). Both sides submitted various affidavits with their motion- to-dismiss briefing. After the hearing, the trial court issued an order stating, "After considering Defendants' motion to dismiss, the responses, the replies, the evidence, the pleadings, and argument of counsel, the Motion to Dismiss is DENIED."

The TMZ Defendants appeal from the trial court's denial of their motion in three issues, contending that (1) the TCPA applies to Jones's suit, (2) Jones failed to establish a prima facie case by clear and specific evidence of each essential element of his claims, and (3) the trial court erred by overruling their objections to Jones's evidence and considering that evidence when ruling on the motion to dismiss. See id. § 51.014(a)(12) (authorizing interlocutory appeal from order denying TCPA motion to dismiss). We conclude that the TCPA applies to the suit but that Jones failed to establish a prima facie case for the essential elements of (1) his claims for libel and civil conspiracy against only TMZ.com and (2) his claims against all appellants for intentional infliction of emotional distress, malicious prosecution, and abuse of process; therefore, we will reverse in part and render judgment dismissing those claims. We further conclude that Jones established a prima facie case against all appellants other than TMZ.com on his libel claim and his conspiracy claim, which is derivative of the libel claim; we will affirm the trial court's decision not to dismiss those claims and will remand the case for further proceedings.

THE TMZ ARTICLE

The initial article appeared on the Sports webpage of TMZ.com at 2:45 a.m. Central time on June 18, 2014. The article's headline was "EX-SUPER BOWL CHAMP SUSPECT IN POLICE INVESTIGATION," with a subheading stating, "Allegedly Tried to Hire Hit Man." The article states it is "BY TMZ STAFF" and "EXCLUSIVE." A picture of Jones in his Dallas Cowboys uniform appears between the headline and the body of the article. The original article stated:

A former Dallas Cowboys linebacker has been named the primary suspect in a police investigation in Cleveland after allegedly trying to hire a hit man to take out his agent ... this according to a police report obtained by TMZ Sports .

The man at the center of the case is Robert Jones —a 1st round pick in the '92 NFL Draft who went on to become a Pro Bowler who won 3 Super Bowls with the Cowboys.

According to the document, a 47-year-old man named Theodore told police that Jones approached him and tried to hire Theo to take out Jones' agent.

Theo told cops he refused—and Jones (who's also 47-years-old)—responded by saying he is a "gangster" and he would make Theodore "disappear."

Theodore told cops he's afraid and fears for his personal safety because he believes Jones will make good on his threat.

So far, Jones has NOT been arrested or charged with a crime. We reached out to Jones several times for comment—so far, no word back.

Later that morning, after McKernan spoke with Jones's lawyer, an update appeared at 10:21 a.m. Central time (8:21 a.m. Pacific time) between Jones's picture and the body of the original article. The update stated:

8:21 AM PT—Jones says the hit man allegations are complete B.S.—and insists he's got a great relationship with his agent.

The former NFL star just issued a statement saying the accuser—a distant relative—"has filed a false police report" ... and that he "absolutely denies" all allegations.

Jones says he plans on taking legal action of his own against Theodore—and says the guy has "recently been attempting to extort money" from him and his family.

As far as the allegation that he tried to hire a hit man to take out his agent, Jones says the two have a "wonderful relationship" and the notion that he wants him dead is completely false.

After the update, the full article appeared as follows on the Internet:

Later that day, TMZ posted on its Twitter account: "WHOA. Ex-Super Bowl champ, Robert Jones allegedly tried to hire a HIT MAN to kill who?"²

BACKGROUND

The following table provides a chronology of events leading up to the publication of the TMZ article. The facts are derived from the evidence the parties submitted with the briefing on the motion to dismiss, which included various affidavits, McKernan's deposition testimony, email correspondence, and phone records.

Date              Time                   Event3
Tuesday                                  Jones's attorney, Nicholas Bressi, sends Watson a
June 10, 2014                            cease-and-desist letter advising him to cease
                                         communications with Jones and his family or risk the
                                         filing of civil and criminal complaints against him
                                         and a lawsuit seeking a restraining order
Thursday          (unclear from          Watson calls Bressi's office and leaves threatening
June 12, 2014     record)                voice mail
June 12, 2014     9:34-9:45 a.m. CDT     Watson calls TMZ tip line
June 12, 2014     9:40 a.m. CDT          McKernan emails her contact information to Watson
June 12, 2014     11:36-11:40 a.m.       Watson calls McKernan. McKernan did not recall
                  CDT                    the details of any specific conversations with
                                         Watson, but she testified at her deposition that it was
                                         reasonable to assume that she had spoken with him
                                         on the morning of June 12

June 12, 2014     12:07-12:09 p.m.       McKernan calls Watson
                  CDT
June 12, 2104     3:34 p.m. CDT          Bressi emails Watson and asks him to cease
                                         communicating with his office
June 12, 2014     4:05 p.m. CDT          Watson forwards email from Bressi to McKernan.
June 12, 2014

...