Jane McCurley Backes D/B/A Backes Quarter Horses v. Karen Misko and Misko Quarter Horses, LLC , 486 S.W.3d 7 ( 2015 )

Affirmed in part; Reverse, Render and Remand in part and Opinion Filed March 13, 2015
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00566-CV
JANE MCCURLEY BACKES D/B/A BACKES QUARTER HORSES AND TRACY
JOHNS, Appellants
V.
KAREN MISKO AND MISKO QUARTER HORSES, LLC, Appellees
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-01844-2013
OPINION
Before Justices Bridges, Lang, and Evans
Opinion by Justice Bridges
Appellant Jane McCurley Backes d/b/a Backes Quarter Horses (“Backes”) sued appellees
Karen Misko and Misko Quarter Horses (“Misko”) for tortious interference and invasion of
privacy. Appellee Tracy Johns (“Johns”) filed a petition in intervention alleging tortious
interference. Misko, individually, filed a counterclaim against Johns for libel and against Backes
for civil conspiracy to commit libel. Backes and Johns filed motions to dismiss under the
Citizens Participation Act, chapter 27 of the Texas Civil Practice and Remedies Code. The trial
court denied both motions. On appeal, Johns and Backes argue they met their burdens under
Chapter 27; therefore, the trial court erred by denying their motions to dismiss.
We affirm the trial court’s order denying Johns’s motion to dismiss. We reverse the trial
court’s order denying Backes’s motion to dismiss and render judgment dismissing Misko’s civil
conspiracy counterclaim against Backes. We remand Backes’s case to the trial court for a
determination of costs, attorney’s fees and other expenses as authorized under section 27.009(a).
See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a) (West 2015).
Background
The background of this case involves three women who are competitors in the quarter
horse breeding business, who used social media to interact with other horse enthusiasts about
horse-related issues. However, the rhetoric between the women turned personal and as further
explained below, Misko filed a libel suit against Johns and a conspiracy to commit libel suit
against Backes after Johns raised the issue of Munchausen-Syndrome-By-Proxy (“MSBP”) on a
horse forum, and Misko believed the Post (as the parties refer to it throughout their briefing)
related to her.
Throughout the years, Misko’s daughter struggled with health issues. Misko often shared
the struggles with others, including Backes and Johns, and mentioned the struggles on Facebook
and horse forums. Doctors eventually diagnosed Misko’s daughter in 2008 with a neurological
disorder called Reflex Neurovascular Dystrophy.
On December 29, 2012, Misko posted a message on her Facebook wall requesting
comments from readers about developing a ten-point evaluation system for five attributes in
weanlings and yearlings for sale purposes. Within days, many people provided comments,
including Backes and Johns. Backes commented about the subjectivity of such a point system
because, “What you might think is a 9 I might think is a 6. It would all go back to person[al]
opinions of likes and dislikes.” Misko acknowledged the subjectivity but said her goal “is trying
to educate everyone so that they may gain confidence in their decisions rather than relying upon
a trainer or checking with 5-10 friends and then making a decision.” Johns later asked Misko
why “. . . would [you] want to discourage buyers from checking with friends and/or trainers prior
–2–
to purchasing?” Misko later clarified she would never discourage consulting with friends or
trainers but was trying to establish a system to improve breeding.
In a January 1, 2013 response directed to Johns, Misko asked Johns the following, “So,
Tracy, could you please answer the question from the last time that you came onto my wall and
never responded to me? What would a trainer have to do to your horses to make you leave their
barn and disrupt your loyalty to them? I am seriously interested in your answer and am still
waiting.” Johns claimed she missed the question, and said she would think about it. As others
continued to provide input on the point system, Johns continued to argue it was a self-serving
concept directed to support a particular breeder’s ideas.
The banter continued between Johns and Misko regarding the point system, prior horse
dealings, and the various trainers they had used in the past. Later, on January 1, 2013, Misko
said to Johns:
You have learned a great deal since 2002 from being bright,
diligent, and having a great mentor, Tracy. I love your mind, work
ethic, and outstanding care for your horses…you are impressive to
me. Therefore, I simply want you to understand that I do like and
respect you, but you and [Backes] do need to communicate on this
wall with the proper facts concerning me, ok? . . . I am very happy
to continue the discussion with you about this question but
bringing in hidden agendas is a conflict I will not tolerate when
you do not have many or all of the facts, whatsoever.
Misko’s mention of Backes in her comment to Johns pulled Backes back into the
Facebook chatter. Backes accused Misko of sounding like a lawyer and noted that “tones and
questions on a computer vs live can come across wrong. Learn to give a person the benefit of the
doubt :).” Misko responded that she could no longer give the two women the benefit of the
doubt given the past three months of posts on her Facebook wall or Johns’s “silly winking smiley
faces.” Misko’s comment to Backes continued:
Seriously? If a person would review both of your statements, about
so many subjects on my wall, do we all go back to Jr. High? I think
–3–
that tones are confused on the computer but patterns become
crystal clear. We are acquaintances which is different than
friends…we do not spend time together nor do we agree about
choices regarding trainers. I respect you as a Mom and love what
you have created with Audrey Grace’s memory ... it is so, so
wonderful. :) I respect you as a fellow breeder and have always
told folks to go over and check out your horses. I appreciated the
care that you provided for my mares ... it was great. Still, we do
not spend time together nor talk except on FB which is fine, but to
me, a friend is like Tracy is to you. . . . I am not angry in any way,
but I am not going to play games on FB. . . . Also, I know that you
do most of what I had mentioned which is why I did not think that
you would object so adamantly about a grading system since it is
what you do every year with every foal. Why not put it into
writing for others on your website? Anyhow, I still think that we
have gleaned many insights and great ideas if I can collect them in
a more expedient and easier to read summation. :) As a last
request, I will ask you, like I did with Tracy, what actions from a
trainer, to your horses, would force you to take them from their
care and violate your trust and loyalty to them? You have had so
many years with trainers, that your answer is very meaningful to
me, Jane. I sincerely mean this which is why I continue to ask the
question from both of you. I do appreciate your efforts and sharing
of knowledge which is why I think that we have gotten along for
so many years ... out of respect as Moms and fellow horse owners
and breeders, I am off to be with my wonderful daughter. This has
been exhausting?? LOL
Backes then suggested Misko should put on the top of her page, “If your views are not like mine
do not post.” Backes continued to question Misko about Misko’s previous problems with a
breeder, whom Misko now said was great. Johns encouraged Misko to “take a break from the
keyboard before you give yourself a stroke.” A male commenter noted that “pissing matches
should be kept private ladies.”
In the middle of the above January 1, 2013 discussion on Misko’s Facebook wall, Backes
and Johns began posting messages on Backes’s Facebook wall. One post, shared from “The
Ramblings of a Crazy Bitch,” featured the photo of a woman with the caption, “Did someone
forget to put on their big girl panties?” Backes commented the post was not directed at Johns.
Backes also mentioned that she tried to find the picture of a child sitting at a computer saying,
–4–
“the bitch blocked me,” but she could not find it. Johns responded she could not find the picture
because she changed phones. Johns then asked, “Is it appropriate to do a preemptive strike?”
Backes said no and that she wanted to figure out how Misko “gets out of the lie about my
personal emails with her flat out talking bad about her new mentor.” Backes then asked if it was
legal to post the emails. The next day, Misko saw these Facebook posts and advised Backes to
check with her legal advisor.
When another person inquired about the “drama,” Backes accused Misko of erasing
comments regarding people’s contrary opinions on the ten-point system and responding to
Backes’s and Johns’s criticism with “looooong, passive-aggressive posts . . . All while blinking
her eyes in Disney Princess innocence . . . Hoping her followers don’t see her for who she is?”
Misko denied erasing posts, and both women claimed to have preserved every word about recent
exchanges. This ended the early January 2013 communications between Misko, Johns, and
Backes.
Towards the end of January 2013, the women once again began attacking each other on
social media. Backes served as moderator of the “Who to Breed To” posting thread on a horse-
related site called “Pleasurehorse.” Posts on the site included topics ranging from horse sales,
pricing, and breeding services. On the site, Misko posted under the name “karenmisko.” Backes
posted as “marepower,” and Johns posted as “tmk5.”
In an affidavit attached to her response to the motions to dismiss, Misko claimed Backes
announced on the “Who to Breed To” thread that one of Backes’s stallions tested positive for the
HERDA genetic skin disease. This statement was inconsistent with several prior posts in which
Backes claimed the stallion was HERDA negative. When Misko raised questions about the
genetic testing of the stallion, Misko stated Backes immediately began personally attacking her
through posts on the thread regarding her mental status and her horse breeding program. Backes,
–5–
as moderator, deleted these postings. Backes admitted to deleting the thread; therefore, the
content of the posts are in the record only through affidavit testimony.
Backes and Misko continued to bicker on the “Pleasurehorse” forum. In the early hours
of January 29, 2013, Backes posted, “So for every sin you decided I committed it all goes back
to just not liking me which I can live with. Now some of our fun debates I will miss but stalking
me down wherever I post and even correcting my bad spelling is something I can live without.”
Within an hour, Misko unfriended Backes and Johns from her Facebook account because
although she could accept criticism and suggestions, she refused to tolerate such things when
“mixed with innuendo or false facts.”
On February 9, 2013 at 3:17 p.m., Johns, under her “tmk5” screen name, posted the
following message (referred to as the “Post” by the parties) in a new thread on the
“Anythingshowhorse” Delphi Forum:
General- Munchausen Syndrome by Proxy
From: tmk5
to: All
Has anyone ever known anyone with this disease/issue?
If you have STRONG suspicions…to whom do you turn them
over?
I know this is a horse forum…but people have such vast life
experiences, I thought someone could point me in the right
direction.1
Within an hour, “trublu11” responded, “I can think of someone that fits the pattern that’s
for sure. You can message me for some more info if needed.” Shortly thereafter, Johns
responded to “trublu11” and said, “Thanks! Just odd behavior by one of the parents and has been
going on for some time.” At 5:26 p.m., “dazookeeperz” replied to “tmk5” as follows:
1
The ellipses are present in the original Post and do not indicate any deletion of text.
–6–
Seriously, Tracy,
What is WRONG with you, Jane and the other minions? It’s one
thing to bicker amongst our adult selves. You are now going to
bring children into it? My advice to you would be to batten down
the hatches. I have a feeling this is a low blow that will not even
be tolerated.
Shame on you. Shame on the others.
Another comment by “lynnesmyname,” shared similar sentiments:
Everyone can see right through you Tracy. What is wrong with
you people. Do you not see how foolish you make yourself look
coming on here saying that trash. You are a sad pathetic person
and if you really had a concern for a child that might be the subject
of this you certainly would not come on a public HORSE forum to
see what to do. You’re a smart lady Tracy, surely you could figure
out where to report such a person.
Shameful, nasty, pathetic does not even describe this latest
behavior.
“Dazookeeperz” later added, “Everyone knows the venom you spew for your BFF Jane. . . .”
“Lynnesmyname” also added, “The two of them only do or say whatever suits them at the time
its spewing out of their collective mouths . . . When you need to have the last word, call out a
child and say something horrific about their parent. Good job Tracy, you win…happy now?”
Johns responded back at 8:19 p.m. on February 9, 2013 with the following:
I want to thank everyone for the MULTITUDE of private emails
and messages to me over the last hour or so. From those messages
and three phone calls...I now have a GREAT resource available to
help this child…that I was somehow attacked for trying to help.
This makes no sense to me…and now I understand why people get
tired of posting on forums.
The people attacking me should be ASHAMED of themselves.
EVERYONE that knows me closely…knows that I have worked
since 1997 when my oldest daughter was born…to help children,
whether through a formal organization or not. This is something
near and dear to me, and always will be.
So today’s learning…unless you are bashing someone…don’t post.
–7–
Got it.
On February 10, Johns was called out by one forum member for “playing the victim” and
another member posted that “anyone with half an ounce of intelligence would know immediately
to call local (or jurisdictional) child protective services; they wouldn’t go on a horse forum and
ask what to do about it” because “that’s just blatantly devious.” Misko responded to Johns on
the same day and informed her that Misko’s attorney would be contacting her about the names of
the mother and child referred to in the Post for a thorough investigation. Misko also told Johns
she contacted the moderator of the thread to lock it down so it could not be deleted.
Misko stated in her affidavit she understood the Post to be directed at her and her
daughter, and she believed it implied she needed to be reported to authorities for abusing her
daughter as a result of MSBP. She stated any such accusation was utterly and completely false.
Dr. V. Frank Cody, a psychiatrist and psychoanalyst who has treated Misko intermittently since
1984 and on occasion treated her daughter, also provided an affidavit stating Misko does not
suffer from, and has never suffered from, or acted against her daughter as a result of MSBP.
Misko stated that within days of the Post, she received several Facebook messages from
people she did not know asking her, “How could you have done that to your daughter since you
take such good care of your horses,” and “I did not think you were capable of such a thing.”
Despite Misko attaching almost one hundred pages of screen shots from Facebook and the
Delphi Forum of the women’s conversations, she did not attach copies of these alleged messages
to her affidavit.
Misko later obtained affidavits from Geraldine White, Karen Redding, Barbara Mahon,
Marci Braddock, and Paula Hogan, none of whom had ever met her, but they had communicated
on message boards. The women stated that based on the prior attacks by “tmk5” and
“marepower,” they understood the Post “referred to Karen Misko and her daughter, and I
–8–
believed it implied that Karen Misko needed to be reported to proper authorities because she had
mistreated her daughter as a result of Munchausen Syndrome by Proxy.”
On May 9, 2013, Backes filed a lawsuit alleging tortious interference and invasion of
privacy based on Misko’s alleged communications with a genetics laboratory in early 2013
regarding the HERDA test results on Backes’s stallion. Backes argued that because of Misko’s
misleading publications about the stallion and his suitability as a breeding partner, prospective
breeders elected not to enter into contracts with her. Johns filed her original petition in
intervention the same day alleging tortious interference based on Misko’s alleged online
harassment of would-be buyers of quarter horses who posted inquiries on Johns’s Facebook wall.
Misko answered Backes’s petition on June 5, 2013 and answered Johns’s petition in intervention
on July 13, 2013.
On January 27, 2014, Misko filed an original counterclaim against Johns for libel and
against Backes for civil conspiracy to commit libel. She alleged the Post by Johns constituted
libel per se and Backes and Johns were “primarily involved in the business of selling services
that compete with Misko and the internet postings that give rise to this libel action arose out of a
commercial transaction in which the intended audience was actual or potential buyers or
customers.” Misko further alleged Johns and Backes had a meeting of the minds for the purpose
of wrongfully defaming her in a commercial setting in order to harm her reputation and business.
Backes and Johns filed motions to dismiss pursuant to Texas Civil Practice and
Remedies Code chapter 27. Johns argued Misko’s counterclaim was brought in response to her
exercise of protected speech, and Backes argued the counterclaim was an improper response to
her right of association. They further challenged Misko’s ability to provide clear and specific
evidence for each essential element of her libel and civil conspiracy claim.
–9–
The trial court held a hearing on the motion to dismiss on May 6, 2014. The trial court
asked the parties to address two issues: (1) whether or not the claims are exempt under the
chapter; and (2) the issue that no name is specifically mentioned in the Post. The trial court took
the motions under advisement, but denied them both, without specifying the reason, on May 7,
2014. This interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. §
51.014(a)(12) (West 2015) (allowing interlocutory appeal from an order denying a motion to
dismiss filed under section 27.003 of the Texas Civil Practice and Remedies Code).
Chapter 27 Standard of Review
Chapter 27 of the Texas Civil Practice and Remedies Code creates an early-dismissal
mechanism intended to “encourage and safeguard the constitutional rights of persons to petition,
speak freely, associate freely, and otherwise participate in government to the maximum extent
permitted by law” while simultaneously protecting the rights of persons with meritorious claims.
TEX. CIV. PRAC. & REM. CODE ANN. § 27.002 (West 2015). Statutes like chapter 27 are
commonly known as “anti-SLAPP statutes” because they are intended to curb “strategic lawsuits
against public participation.” See Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 869
(Tex. App.—Dallas 2014, no pet.).
Chapter 27 instructs a trial court to dismiss a legal action if the party filing the motion to
dismiss shows by a preponderance of the evidence that the action is based on, relates to, or is in
response to the movant’s exercise of her right to free speech or exercise of the right of
association. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)(1), (3) (West 2015). The
“[e]xercise of the right to free speech” is defined as “a communication made in connection with a
matter of public concern.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3). A “[m]atter of
public concern” includes an issue related to “health or safety.” TEX. CIV. PRAC. & REM. CODE
ANN. § 27.001(7) (West 2015). The “[e]xercise of the right of association” is defined as “a
–10–
communication between individuals who join together to collectively express, promote, pursue,
or defend common interests.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(2).
When determining whether a legal action should be dismissed under chapter 27, the trial
court considers the pleadings and supporting and opposing affidavits stating the facts on which
the liability or defense is based. TEX. CIV. PRAC. & REM. CODE ANN. § 27.006 (West 2015).
The statute further instructs that the chapter “shall be liberally construed to effectuate its purpose
and intent fully.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.011 (West 2015).
We review de novo whether Johns established by a preponderance of the evidence that
she was exercising her right of free speech when she made the Post and whether Backes
established by a preponderance of the evidence that she was exercising her right of association
by engaging in a friendship with Johns in which they both posted on social media. See Pickens
v. Cordia, 433 S.W.3d 179, 184 (Tex. App.—Dallas 2014, no pet.) (noting every Texas court of
appeals to address standard of review has concluded the first prong is reviewed de novo); see
also Cruz v. Van Sickle, No. 05-13-00191-CV, 2014 WL 6850971, at *4 (Tex. App.—Dallas
Dec. 3, 2014, no pet.); see also TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b).
If Johns and Backes, as the movants, establish by a preponderance of the evidence that
Misko’s suit is based on, relates to, or is in response to their exercise of these rights, section
27.005(b) requires dismissal of the suit unless Misko “establishes by clear and specific evidence
a prima facie case for each essential element of the claim in question.” TEX. CIV. PRAC. & REM.
CODE ANN. §§ 27.003, .005(b), (c). The purposeful inclusion of this “clear and specific”
requirement indicates Misko must satisfy an elevated evidentiary standard under section 27.005.
See Young v. Krantz, 434 S.W.3d 335, 343 (Tex. App.—Dallas 2014, no pet.).
We first consider whether Johns and Backes met their initial burden under section
27.005(b). TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b).
–11–
Johns’s Burden Under Section 27.005(b)
Section 27.005(b) requires the trial court to dismiss, except as provided by subsection (c),
if Johns shows by a preponderance of the evidence that Misko’s libel suit is based on, relates to,
or is in response to Johns’s right of free speech. Id. Johns argues the Post related to a “matter of
public concern,” defined under the chapter to include issues related to “health or safety.” TEX.
CIV. PRAC. & REM. CODE ANN. § 27.001(3), (7)(A). She specifically claims “a question about a
psychological condition/mental disorder—clearly involved ‘issues related to . . . health or
safety.’” Misko has not provided any argument challenging Johns’s contention that she was
exercising her right of free speech. However, because Johns’s must first meet her burden under
section 27.005(b) that she was exercising her right of free speech, Misko’s failure to respond in
the trial court or on appeal is of no consequence.2
Although the definition of “matter of public concern” is defined to include an issue
related to “health or safety,” chapter 27 does not define these terms. Undefined terms in a statute
are typically given their ordinary meanings, but if a different or more precise definition is
apparent from the term’s use in the context of the statute, we apply that meaning. Lanier v. E.
Found., Inc., 401 S.W.3d 445, 462 (Tex. App.—Dallas 2013, no pet.).
The dictionary defines “health” to mean “the state of being sound in body or mind.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1043 (1981). It defines “safety” to mean
“the condition of being safe: freedom from exposure to danger: exemption from hurt, injury, or
loss.” Id. at 1998. We consider these definitions along with the purpose of chapter 27, which “is
to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate
freely, and otherwise participate in government to the maximum extent permitted by law and, at
2
In Misko’s response to the motions to dismiss, she relied on the commercial speech exemption provided by section 27.010 and argued,
“Even if Chapter 27 applies to Misko’s claims,” she established a prima facie case on each essential element by clear and specific evidence.
–12–
the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”
TEX. CIV. PRAC. & REM. CODE ANN. § 27.002.
Under the facts of this case, the Post created by Johns to “all” in the
“Anythingshowhorse” public Delphi Forum inquired as to whether anyone knew someone with
MBPS, and “If you have a STRONG suspicion...to whom do you turn them over?” MBPS is
described in the American Psychiatric Association’s DSM as falsification of physical or
psychological signs or symptoms, or induction of injury or disease, in another, associated with
identified deception. Asking others about information related to a recognized psychological
disorder is clearly an inquiry into someone’s state of mind, which falls under the definition of
“health.” By stating her strong suspicion that someone suffered from MBPS, Johns indicated a
child was suffering abuse from a parent. Thus, Johns’s statement not only involved a matter of
someone’s health, but also a child’s safety. Because Johns’s statement related to health or safety,
it fell within the statutory definition of “matter of public concern.” TEX. CIV. PRAC. & REM.
CODE ANN. § 27.001(7); see Shipp v. Malouf, 439 S.W.3d 432, 438 (Tex. App.—
Dallas 2014, pet. denied) (“A matter of public concern is defined broadly; therefore, the
legislature expressed its intent that the statute, enacted to protect the right of free speech, be
construed broadly.”); see also Nguyen v. Dallas Morning News, L.P., No. 2-06-298-CV, 2008
WL 2511183, at *5 (Tex. App.—Fort Worth June 19, 2008, no pet.) (mem. op.) (“Protection of
children from abuse is of the upmost importance in Texas.”).
While case law is scarce discussing what constitutes a “matter of public concern” related
to “health or safety,” we find support for our conclusion by distinguishing Pickens v. Cordia, 433
S.W.3d 179 (Tex. App.—Dallas 2014, no pet.) and Whisenhunt v. Lippincott, 416 S.W.3d 689
(Tex. App.—Texarkana 2013, pet. filed).
–13–
In Pickens, the appellees sued appellant for invasion of privacy by public disclosure of
private facts, defamation, statutory libel, and intentional infliction of emotional distress for
remarks Pickens published on his blog about family members. Id. at 181. Pickens moved to
dismiss the case under chapter 27 alleging appellees’ lawsuit implicated his right to freedom of
speech. Id. at 182. In addressing the first prong, Pickens argued his blog concerned issues
related to “addiction, parental abuse, fathers’ responsibilities to their children and family
dynamics,” all of which he contended related to health and safety. Id. at 184. This court agreed
these issues “generally may be matters of public concern,” but Pickens’s blog was “more akin to
a personal diary of his journey from drug addiction to recovery in which he draws upon his
perceived family experiences . . . . Its primary focus is Michael.” Id. As such, the type of
private life statements recounted on the blog did not “implicate the broader health and safety
concerns or community well-being concerns contemplated by chapter 27.” Id.
In reaching its conclusion, Pickens relied on Miranda v. Byles, 390 S.W.3d 543 (Tex.
App.—Houston [1st Dist.] 2012, pet. denied). Although not a chapter 27 case, Miranda
discussed private facts and public issues. The case involved a step-grandfather who sued for
slander and intentional infliction of emotional distress after the defendant made false statements
that he sexually assaulted his step-granddaughter. Id. at 548. On appeal, the appellant
challenged the trial court’s finding that the sexual abuse allegations were a private, rather than a
public, issue. Id. at 554. The appellant argued allegations of sexual abuse “implicate a question
of public importance.” Id. In determining whether the issue was a private matter, the appellate
court noted an issue is not a public issue simply because it is a controversy of interest to the
public. Id. A matter can be a public issue because people in the public are discussing it or
because people other than the immediate participants in the controversy are likely to feel the
impact of its resolution. Id. In concluding the trial court did not err in determining the alleged
–14–
sexual assault was a private issue, the appellate court noted there was no evidence in the record
the matter was being discussed by anyone other than officials in charge of the investigation and
the family. Id. Nor was there any evidence anyone other than the family was likely to feel the
impact of the resolution. Id.
Thus, relying on Miranda and following a similar analysis, Pickens concluded there was
no evidence suggesting the public was discussing Pickens’s blog or that anyone other than family
members would likely feel the impact from it. Pickens, 433 S.W.3d at 185. As such, Pickens’s
blog entries describing personal drug addiction and abuse did not implicate a matter of public
concern to satisfy his initial burden under section 27.005(b) that his family’s lawsuit was in
response to his right to free speech. Id. at 185. Thus, the trial court properly denied his motion
to dismiss. Id. at 187.
In Whisenhunt, a nurse anesthetist filed suit against the defendants, with whom he had
worked, for several causes of action including defamation. 416 S.W.3d at 691. Attached to
Whisenhunt’s petition were internal emails containing the alleged defamatory remarks. Id. The
defendants moved to dismiss the lawsuit under chapter 27 arguing the emails related to matters
of public concern “in the areas of health and safety, community well-being, and a service in the
market place” because they discussed Whisenhunt’s conduct as a nurse. Id. at 697. The trial
court agreed and granted the motion. The court of appeals reversed concluding “the TCPA does
not apply to speech that is only privately communicated.” Id. at 700. A person must be
exercising his right to speak freely in public for chapter 27 to apply and internal emails were not
of a public nature. Id.
Here, unlike Pickens and Whisenhunt, the Post was not on someone’s personal blog or
contained in private emails between individuals, but rather written in a public internet forum
frequently visited by others. The Post invited responses and in fact, garnered both positive and
–15–
negative replies. It received 1255 views and one hundred twenty-six responses, seventeen of
which are in the record. Thus, unlike Pickens and Miranda, the record contains evidence that
people besides Johns, Backes, and Misko engaged in discussions about the Post.
Accordingly, we conclude the evidence shows the Post was a communication made in
connection with an issue of public concern. Thus, Johns was exercising her right of free speech,
and Misko’s lawsuit is based on, relates to, or was filed in response to Johns’s exercise of that
right.
Backes’s Burden Under Section 27.005(b)
We now address whether Backes met her burden of showing by a preponderance of the
evidence that Misko’s civil conspiracy suit is based on, relates to, or is in response to Backes’s
right of association. Chapter 27 defines the exercise of the right of association as “a
communication between individuals who join together to collectively express, promote, pursue,
or defend common interests.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(2).
In Misko’s counterclaim against Backes, Misko described the disagreements posted
between the women on social media beginning in January 2013. She asserted that while some of
the postings involved issues of “shared concern and interest among the internet horse
community, such as genetic testing, others were personal attacks against Misko and her
business.” Misko further contended that after she complained about the tenor of Backes’s posts
on the forum in which Backes served as moderator, Backes was removed as moderator in
February 2013. Misko alleged she believed Backes blamed her for removal and “in spite, sought
revenge against Misko.” Shortly thereafter, the Post appeared on the “Anythingshowhorse”
Delphi Forum. Misko alleged Johns and Backes, acting in concert, were “negligent in writing
and publishing the postings about Misko discussed above on the internet.”
–16–
While Misko’s counterclaim focuses on the Post, she also supports her conspiracy claim
against Backes by relying on the heated discussions between the women over Misko’s suggested
point system, over the genetic testing of Backes’s stallion, and over Backes’s removal as
moderator of the forum to support her contention that Backes sought revenge against her. These
types of discussions clearly fall under the “right of association” as they were “communication[s]
between individuals who join together to collectively express, promote, pursue, or defend
common interests” within the horse community. TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.001(2); see Combined Law Enforcement Ass’n of Tex. v. Sheffield, No. 03-13-00105-CV,
2014 WL 411672, at *5 (Tex. App.—Austin Jan. 31, 2014, pet. filed) (mem. op.) (alleged
defamatory emails sent by the executive director of a law enforcement labor union to members
of the union fell within chapter 27 definition of “right of association” because the content of the
emails were communications between individuals joined together to collectively express,
promote, or defend the common interests of police officers).
As Backes argued in her motion to dismiss, Misko’s claim does nothing more than attack
and complain about Backes’s right of association: “[T]he counterclaim against Backes is based
on, relates to, or is in response to Backes purportedly exercising her right to associate with Johns,
who in turn apparently exercised her protected right of speech in a manner Misko found
offensive . . . .” We agree. Johns and Backes are close friends. As friends, they have the right
to associate with each other on social media, particularly when it involves a common interest
such as horse breeding.3 Thus, Misko’s lawsuit is based on, relates to, or was filed in response to
Backes’s association with Johns on social media.
3
During oral argument, Misko argued for the first time that Backes should not be allowed to deny her involvement in the Post and at the
same time, seek dismissal under chapter 27 based on her right of association. She argued such an argument flies in the face of this court’s
holding in Pickens, in which we held that when a motion to dismiss is premised on the right to speak freely, yet the person filing the motion
denies writing the very communication that is the focus of the motion, chapter 27 does not apply. 433 S.W.3d at 188. Misko did not raise this
argument in her brief; therefore, we will not address it. See TEX. R. APP. P. 39.2 (“Oral argument should emphasize and clarify the written
–17–
Before addressing whether Misko met her burden under section 27.005(c) to provide
clear and specific evidence of each essential element of her claims against Johns and Backes, we
address Misko’s argument that the commercial speech exemption applies and supports the trial
court’s denial of the motions to dismiss. See TEX. CIV. PRAC. REM. CODE ANN. § 27.010 (West
2015); see also Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299, 309
(Tex. App.—Dallas 2013, pet. denied) (concluding that after the Better Business Bureau
established the business review fell within the exercise of free speech as defined by chapter 27,
BH DFW had the burden to establish the communication was exempt from the statute).
Application of Section 27.010 Exemption
Misko argues she proved her claims are exempt from dismissal under section 27.010.
Johns and Backes respond the Post does not relate to or arise from any of the parties’ business
activities; therefore, the exemption does not automatically apply to deny dismissal of their
claims. As explained below, we agree with Johns and Backes.
Section 27.010(b) states:
[The TCPA] does not apply to a legal action brought against a
person primarily engaged in the business of selling or leasing
goods, or services, if the statement or conduct arises out of the sale
or lease of goods, services, or an insurance product, insurance
services, or a commercial transaction in which the intended
audience is an actual or potential buyer or customer.
TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(b). This section is described as a “commercial
speech exception.” Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d
71, 89 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). It has been construed to mean that
for the exemption to apply, the statement must be made for the purpose of securing sales in the
arguments in the briefs.”); see also Foster v. Richardson, 303 S.W.3d 833, 839 n.6 (Tex. App.—Fort Worth 2009, no pet.) (refusing to consider
arguments raised in oral argument about deficiencies in an expert affidavit that were not raised in brief).
–18–
goods or services of the person making the statement. Id. at 88–89. The party asserting the
exemption bears the burden of proving its applicability. Id. at 89.
Misko alleged in her counterclaim that Backes and Johns are competitors in the horse
breeding and sales business. She further alleged, “Backes and Johns are primarily involved in
the business of selling services that compete with Misko and the internet postings that give rise
to this libel action arose out of a commercial transaction in which the intended audience was
actual or potential buyers or customers.” Her reference to “internet postings” relates only to the
Post; therefore, our analysis of whether the exemption applies focuses on (1) whether Misko’s
libel and conspiracy claims are against Johns and Backes, as individuals primarily engaged in the
business of selling or leasing goods or services in the quarter horse industry; (2) whether the
statements made in the Post “arise out of” the sale or lease of goods or services in the quarter
horse business; and (3) whether the intended audience for the Post was an actual or potential
buyer or customer. If Misko fails to provide evidence supporting any one of these elements, she
has not met her burden to prove the applicability of the exemption.
Misko relies on Backes’s statement in her original petition that Misko is a “competitor of
Plaintiff’s in the quarter horse breeding business” and Johns’s statement in her petition in
intervention that Misko is “a sometime competitor of Intervenors in the quarter horse business”
as evidence that Backes and Johns are primarily engaged in selling horses and horse-breeding
services. Misko also relies on her affidavit in which she explains how she utilizes the internet to
promote and market her business and to locate customers. She then summarily states, “I know
that Backes and Johns also use the internet, and particularly Facebook and the Delphi Forum
horse-related sites, to promote and conduct their horse-breeding and horse-sale businesses in
similar fashion.” Misko alleges the exhibits she attached to her affidavit, which consist of
screenshots of internet postings, establish further proof. We do not agree.
–19–
Regardless of whether Misko is a competitor with Backes or a sometimes competitor
with Johns in the quarter horse business, this is not evidence that Johns and Backes are primarily
engaged in the business of selling or leasing goods or services in the quarter horse industry. In
fact, in a December 31, 2012, 6:10 p.m. post, Backes said to Misko, “I have a full time job
raising money for charity and breeding has to come second.”
The internet postings Misko attached to her affidavit, and detailed at length above in the
background section, reference (1) the women’s disagreements about Misko’s suggested point
system, (2) the postings on Backes’s personal Facebook wall, and (3) the comments on the
Delphi Forum regarding whether Backes’s stallion tested HERDA positive. While we agree
these posts shed light on the women’s interactions and their ideas within the quarter horse
industry, we do not agree the posts provide any evidence that Johns and Backes are “primarily
engaged in the business of selling or leasing goods or services.”
Even if we determined Johns and Backes are primarily engaged in the business of selling
or leasing goods or services, Misko failed to meet her burden that the Post “[arose] out of the
sale or lease” of these goods or services. Misko asks this court to consider the entire background
of exchanged postings between the parties and the alleged suspicious timing of the Post to
conclude the Post arose out of the sale or lease of goods or services.
Section 27.010 clearly states the chapter does not apply to an action if the statement
arises out of the sale or lease of goods or services. On its face, the Post concerns a general
inquiry into whether anyone is familiar with MSBP and if so, asks for information about
reporting a suspected individual. Nothing within the Post involves the sale or lease of any goods
or services related to the quarter horse industry or any other related business. Thus, the Post
does not arise out of the sale or lease of goods or services.
–20–
In reaching this conclusion, Kinney v. BCG Attorney Search, Inc., No. 03-12-00579-CV,
2014 WL 1432012 (Tex. App.—Austin, Apr. 11, 2014, pet. denied) (mem. op.) is instructive. In
that case, BCG sued Kinney for breach of contract, breach of fiduciary duty, and violations of
the Lanham Act based on statements Kinney made in a post on an internet website. Id. at * 1.
While the opinion does not provide the details of the internet post, the court noted Kinney made
a single post describing BCG’s business operations “based on his experience as a former
employee,” and Kinney wrote negative opinions about BCG’s owner and the company. Id.
Kinney posted anonymously and the post contained no reference to Kinney or his business. Id.
BCG argued Kinney’s statements did “arise out of” the sale of Kinney’s services because Kinney
was in the business of selling legal recruiting services and “it is ‘obvious’ that Kinney would not
have made the post had it not been for the fact that he and BCG were competitors.” Id. at *6.
The court did not find this argument persuasive. It noted Kinney posted anonymously on a
website, and his comments made no reference whatsoever to his business or the sale of his
services. Id. at *7. The court further stated BCG offered no evidence the post was “for the
purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial
transactions in, [Kinney’s] goods or services or in the course of delivering [Kinney’s] goods or
services.” Id.
Similar to Kinney’s post, Johns made no reference whatsoever in the Post to her alleged
horse business or the sale of any horses or horse-related services. Misko’s reasoning for the Post
is similar to BCG’s “it’s obvious” argument. However, Misko failed to bring forth evidence,
except speculation and suspicious timing, that the Post arose out of the sale or lease of goods or
services. Thus, Misko failed to meet her burden that Johns’s statement or Backes’s conduct fell
within section 27.010’s exemption.
–21–
Having concluded the exemption does not apply, we now address whether Misko met her
burden of providing clear and specific evidence to support each element of her claims against
Johns and Backes. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c).
Misko’s Burden Under Section 27.005(c) as to Her Libel Claim Against Johns
To avoid dismissal of her lawsuit, Misko was required to bring forth clear and specific
evidence establishing a prima facie case for each essential element of her libel claim against
Johns. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c). Johns argues Misko failed to meet her
burden because (1) the Post did not concern Misko as a matter of law and (2) the Post is a
protected expression of opinion.
As to Misko’s burden, the statute does not define “clear and specific.” Therefore, we
apply the ordinary meaning of these terms. Schimmel v. McGregor, 438 S.W.3d 847, 855-56
(Tex. App.—Houston [1st Dist.] 2014, pet. filed). “Clear” means “unambiguous,” “sure,” or
“free from doubt,” and “specific” means “explicit” or “relating to a particular named thing.”
KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2013,
pet. denied) (citing BLACK’S LAW DICTIONARY 268, 1167 (8th ed. 2004)).
Libel is defamation expressed in written or other graphic form. TEX. CIV. PRAC. & REM.
CODE ANN. § 73.001 (West 2011). A written expression encompasses one that appears as text on
an internet website. See Kaufman v. Islamic Soc’y of Arlington, 291 S.W.3d 130, 144–45 (Tex.
App.—Fort Worth 2009, pet. denied). A libel plaintiff must prove that the defendant (1)
published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with
either actual malice, if the plaintiff was a public official or public figure, or negligence, if the
plaintiff was a private individual, regarding the truth of the statement. Rehak, 404 S.W.3d at 727
(citing WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998)).
–22–
A statement is defamatory if it tends to injure the subject’s reputation, to expose her to
public hatred, contempt, ridicule, or financial injury, or to impeach her integrity, honesty, or
virtue. Am. Heritage Capital, LP, 436 S.W.3d at 875. A statement may be false, unpleasant,
abusive, or objectionable without being defamatory in light of the surrounding circumstances.
Id. Whether a statement is capable of a defamatory meaning is initially a question of law for the
court. Id. Moreover, to be actionable, a statement must assert an objectively verifiable fact
rather than an opinion. Id.; see also Main v. Royall, 348 S.W.3d 381, 389 (Tex. App.—Dallas
2011, no pet.). Merely expressing a defamatory statement in the form of an “opinion” does not
shield it from tort liability because opinions often imply facts. Avila v. Larrea, 394 S.W.3d 646,
658 (Tex. App.—Dallas 2012, pet. denied). We classify a statement as fact or opinion based on
the statements verifiability and the entire context in which the statement was made. Bentley v.
Bunton, 94 S.W.3d 561, 581 (Tex. 2002). Whether a statement is a statement of fact or opinion
is also a question of law. Am. Heritage Capital, LP, 436 S.W.3d at 875.
As to the first libel element, it is undisputed Johns authored the Post. Further, Johns does
not challenge or argue on appeal that Misko failed to prove Johns acted negligently regarding the
truth of the statement. Therefore, we focus our analysis on the second libel element: whether
Misko provided clear and specific evidence the Post was defamatory as to her.
Johns first argues the Post did not concern Misko as a matter of law because the Post did
not specifically name her. To establish that the Post “concerned” her, Misko needed to prove the
Post was specifically directed towards her. Kaufman, 291 S.W.3d at 144. In other words, “[i]n
order to entitle one to maintain an action for an alleged defamatory statement, it must appear that
he is the person with reference to whom the statement is made.” Id. (citing Newspapers, Inc. v.
Matthews, 339 S.W.2d 890, 893 (Tex. 1960)). However, it is likewise true that it is not
necessary for the individual referred to be named if those who knew and were acquainted with
–23–
Misko understood from reading the Post that it referred to her. Matthews, 339 S.W.2d at 894;
Kaufman, 291 S.W.3d at 145; Houseman v. Publicaciones Paso del Norte, S.A. DE C.V., 242
S.W.3d 518, 525 (Tex. App.—El Paso 2007, no pet.) (“A publication is ‘of and concerning the
plaintiff’ if persons who knew and were acquainted with him understood from viewing the
publication that the defamatory statement referred to him.”); Allied Mktg. Group, Inc. v.
Paramount Pictures Corp., 111 S.W.3d 168, 173 (Tex. App.—Eastland 2003, pet. denied).
Misko attached several affidavits to her response to the motions to dismiss. Geraldine
White testified she was familiar with the postings of Misko, Johns, and Backes on the various
horse forums. She knew of Misko’s daughter’s prior health struggles because Misko
occasionally commented on them in postings on Facebook and the Delphi Forums. White also
read the back and forth comments between Misko and Backes concerning Backes’s stallion
testing HERDA positive on the deleted “Who To Breed To” Forum.
Then, on January 31, 2013, White received an email from Karen Thompson in which she
described Misko as a “bit of a strange duck.” Thompson also shared her suspicions that Misko
had a “major case of Munchausen’s by proxy reading the trials and tribulations of her daughter.”
When White read the Post several days later, based on Thompson’s email and the dissention
between Johns, Backes, and Misko on social media, White “understood the posting as pointing to
Karen Misko and her daughter, and I believed it implied that Karen Misko needed to be reported
to the authorities because she had mistreated her daughter as a result of Munchausen Syndrome
by Proxy.” White further explained the Post did not pose a real question, but instead made an
accusation that Misko was a child abuser.
Karen Redding, Barbara Mahon, Marci Braddock, and Paula Hogan, also provided
affidavits stating their familiarity with the women and their interactions on various social media
–24–
sites. They also testified they believed the Post was directed at Misko and her daughter and that
the Post insinuated Misko should be reported to authorities for abusing her daughter.
These women’s affidavits unambiguously and explicitly state they knew upon reading the
Post that it related to Misko. Although the Post did not refer to Misko by name, the evidence is
“clear” and “specific” to establish the Post “concerned” Misko because those who knew and
were acquainted with her understood from reading the Post that it referred to her. Matthews, 339
S.W.2d at 894; Kaufman, 291 S.W.3d at 145.
Although not a chapter 27 case, we find the libel analysis in Diaz v. Rankin, 777 S.W.2d
496 (Tex. App.—Corpus Christi 1989, no writ) similar to the present facts. In that case, two
owners of a golf course filed a libel and slander suit after the defendant made a statement during
a radio broadcast pertaining to the location of a golf tournament and “whether participants would
have to go up there and play with dope dealers.” Id. at 498. Plaintiffs admitted the broadcast did
not mention them by name, but referred to the owner and operator of the golf course. Id.
Defendants moved for summary judgment arguing, among other things, the statements were not
defamatory because they did not mention the plaintiffs or the golf course. Id. In response to the
summary judgment, plaintiffs attached an affidavit in which one listener testified he knew the
broadcasted statement referred to the plaintiffs because they owned the golf course and were
registered participants in the tournament. Id. In concluding a fact issue existed to deny summary
judgment, the court recognized a statement does not have to specifically name a plaintiff to be
defamatory. Id. at 499. “Every listener does not have to understand the statement to be a
reference to the individual plaintiff as long as there are some who reasonably do.” Id.; see also
Allied Mktg. Group, Inc., 111 S.W.3d at 173 (the “of and concerning” issue is whether persons
viewing the televised segment regarding an alleged sweepstakes scam thought the segment
referred to the actual company who conducted sweepstakes despite the broadcast’s attempt to use
–25–
a fake company name, and plaintiff provided evidence in support of its defamation suit that some
viewers thought the segment accused the actual company of engaging in a sweepstakes scam).
Thus, similar to the Diaz affidavit, Misko’s affidavits, which each contained screenshots of the
Post and subsequent comments, established evidence that some of the readers of the Post
reasonably understood the statements to be a reference to her. Cf. Fitzmaurice v. Jones, 417
S.W.3d 627, 633 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (passing reference to “lies”
spread on Facebook did not meet burden of establishing clear and specific evidence of libel
claim when party failed to attach any evidence of statements appearing on Facebook to petition
or response to motion to dismiss). Therefore, we conclude Misko established the Post concerned
her.
We now turn to Johns’s argument that the Post was not defamatory because it was a
protected expression of opinion. Johns contends a statement that is nothing more than rhetorical
hyperbole is not actionable as defamation, and “Misko even characterizes the Post [as] a
‘rhetorical question.’”
While we agree rhetorical hyperbole is not actionable, a rhetorical question is not the
same as rhetorical hyperbole. A “rhetorical question” is defined as “a question not intended to
elicit an answer but asked for rhetorical effect often with an assumption that only one answer is
possible.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1946 (1981). “Rhetorical
hyperbole” has been defined as “extravagant exaggeration [that is] employed for rhetorical
effect.” Am. Broad. Cos. v. Gill, 6 S.W.3d 19, 30 (Tex. App.—San Antonio 1999, pet. denied)
(citing WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 592, 1011 (1988 ed.)). For example,
the use of “rewarding,” “ripping off,” and “bilking” when reviewed in context have been
considered rhetorical hyperbole. Rehak, 404 S.W.3d at 729.
–26–
The Post, however, as argued by Misko is a rhetorical question. Misko provided clear
and specific evidence that many people read and understood Johns’s “question” as a transparent
accusation against her, as the Post was written in such a way that readers familiar with Misko
knew she was the only possible person Johns had a “STRONG suspicion” of suffering from
MSBP and allegedly abusing her daughter.
In reaching this conclusion, we are mindful of our holding in Avila v. Larrea, 394 S.W.3d
646, 659 (Tex. App.—Dallas 2012, pet. denied) in which we concluded the title of a broadcast
posted on the internet, “Lawyer in Dallas Defrauding the Undocumented?” was phrased as a
question, rather than an objectively verifiable fact, when the appellant did not explain, and the
record did not show, how the title asserted an objectively verifiable fact. However, as previously
stated, Misko provided clear and specific evidence that the Post asserted an objectively verifiable
fact about her—whether she suffered from MSBP. Injuring a child or placing a child in
imminent danger of injury constitutes a felony. See TEX. PENAL CODE ANN. 22.04 (West Supp.
2014). Mothers have been convicted of medical child abuse, which is also referred to as MSBP.
See Williamson v. State, 356 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (mother
convicted of two first-degree felony offenses of injury to a child and sentenced to fifteen years’
confinement for each offense, to run concurrently); Austin v. State, 222 S.W.3d 801 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d) (mother convicted of felony injury to a child and
sentenced to ninety-nine years’ incarceration). Further, a doctor such as Dr. V. Frank Cody, a
psychiatrist and psychoanalysis who treated Misko for years, is capable of diagnosing and
confirming whether Misko suffers from MBPS. He specifically denied that Misko suffered from
the psychological disorder. As such, Misko established the Post, as written, was an accusation
against her of child abuse due to MBPS, which is an objectively verifiable fact.
–27–
On the facts before us, we conclude Misko offered clear and specific evidence
establishing a prima facie case of each element of her libel suit against Johns. Thus, the trial
court correctly denied Johns’s motion to dismiss under section 27.005(c). Having reached this
conclusion, we need not address Misko’s argument that Johns’s motion to dismiss was waived
because Johns failed to timely set the motion for hearing pursuant to section 27.004(a). TEX.
CIV. PRAC. & REM. CODE ANN. § 27.004(a) (“A hearing on the motion under Section 27.003
must be set not later than the 60th day after the date of service of the motion . . .”).
Misko’s Burden Under Section 27.005(c) as to Her Civil Conspiracy Claim Against Backes
To avoid dismissal of her claim against Backes, Misko was required to bring forth clear
and specific evidence establishing a prima facie case for each essential element of her civil
conspiracy claim. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c). Backes argues Misko failed
to bring forth any evidence to support a meeting of the minds between Backes and Johns to
create and publish the Post. Misko responds the overall context of the women’s postings, which
include “The Ramblings of a Crazy Bitch” photo, their attempts to find the picture of “the kid at
the computer saying the bitch blocked me,” and the “vitriol” against her on the deleted “Who to
Breed To” thread show a conspiracy. Misko also relies on the “preemptive strike” post by Johns
on Backes’s Facebook wall. Backes replies any alleged agreement between her and Johns to
publish insults on social media that occurred prior to the Post is not clear and specific evidence
of a conspiracy to publish the Post. We agree.
The essential elements of a civil conspiracy are (1) two or more persons; (2) an object to
be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more
unlawful, overt acts; and (5) damages as a proximate result. Anderton v. Cawley, 378 S.W.3d
38, 60 (Tex. App.—Dallas 2012, no pet.). The object to be accomplished must be either an
unlawful purpose or a lawful purpose to be achieved by unlawful means. Id. A defendant’s
–28–
liability for conspiracy depends on “participation in some underlying tort for which the plaintiff
seeks to hold at least one of the named defendants liable.” Cotton v. Weatherford Bancshares,
187 S.W.3d 687, 701 (Tex. App.—Fort Worth 2006, pet. denied). Recovery for civil conspiracy
is not based on the conspiracy but on the underlying tort. Tilton v. Marshall, 925 S.W.2d 672,
681 (Tex. 1996) (orig. proceeding) (op. on reh’g). A civil conspiracy claim may be proved by
circumstantial evidence and reasonable inferences from parties’ actions. In re Lipsky, 411
S.W.3d 530, 549 (Tex. App.—Fort Worth 2013, orig. proceeding).
The crux of Misko’s argument is that because of the various postings between Backes
and Johns prior to the Post, many of which are mean-spirited, this Court should infer Backes and
Johns agreed to create and publish the Post. Chapter 27 requires more than an inference that
there was a meeting of the minds between the two women. Rather, it requires clear and specific
evidence. See KTRK Television, Inc., 409 S.W.3d at 689 (citing BLACK’S LAW DICTIONARY 268,
1167 (8th ed. 2004)) (defining “clear” as “unambiguous,” and “specific” as “explicit” or
“relating to a particular named thing”). The evidence relied on by Misko does not meet this
threshold.
The “The Ramblings of a Crazy Bitch” photo with the words, “Did someone forget to put
on their big girl panties?” and their attempts to find the picture of “the kid at the computer saying
the bitch blocked me,” is not evidence of a meeting of the minds between Johns and Backes to
publish the Post. These pre-Post comments have nothing to do with Misko’s daughter, her
health, or MBPS; therefore, no such implication can be made about some meeting of the minds
about an object to be accomplished, which is the Post.4
4
Misko argues Backes and Johns have “miscast” her civil conspiracy claim as being a conspiracy to publish the Post; however, Misko
claims theirs was a conspiracy to defame her, which was “furthered and accomplished by Johns’ Munchausen post.” Regardless of how Misko
claims to have pleaded her conspiracy claim, she still has failed to bring forth clear and specific evidence supporting an essential element of the
claim–a meeting of the minds between Johns and Backes to defame her.
–29–
The post on Backes’s Facebook wall in which Johns asked, “Is it appropriate to do a
preemptive strike?” was answered by Backes with a “No.” Any leap by Misko that Backes must
have accepted the proposal, despite her clear negation of it, is pure conjecture and speculation.
Further, the record contains no clear and specific evidence about what Johns meant by
“preemptive strike.”
Accordingly, we conclude Misko did not establish through clear and specific evidence a
prima facie case that Johns and Backes agreed to defame her; therefore, Misko failed to carry her
burden under section 27.005(c).
In reaching this conclusion, we reject Misko’s spoliation argument. Misko contends
Backes’s deletion of posts on the “Who to Breed To” Delphi Forum gives rise to a presumption
the deleted posts supported Misko’s conspiracy claim against Backes. We do not agree.
A party who establishes that spoliation has occurred may be entitled to a presumption that
the destroyed evidence would not have been favorable to the destroyer. Rico v. L-3 Commc’ns
Corp., 420 S.W.3d 431, 437 (Tex. App.—Dallas 2014, no pet.). Such a presumption is
appropriate when a party has deliberately destroyed evidence or has failed to either produce or
explain the evidence’s nonproduction. Id. In determining whether a spoliation presumption is
justified, a trial court considers whether (1) there was a duty to preserve the evidence; (2) the
alleged spoliator breached this duty; and (3) the spoliation prejudiced the non-spoliator’s ability
to present its case or defense. Id. Assuming without deciding that Backes had a duty to preserve
the postings and breached the duty, we consider whether the deleted posts prejudiced her ability
to present her conspiracy claim.
The affidavits submitted by White and Redding stated Johns and Backes were
aggressively attacking Misko personally and challenging the integrity of her horse breeding
program on the deleted thread. The thread also discussed whether Backes’s stallion tested
–30–
positive for HERDA. White and Mahon testified Backes called Misko “bat shit crazy” on the
deleted thread.
Misko herself testified she recalled some of the content of the deleted thread, which
related to Backes’s admission a stallion tested HERDA positive, which was inconsistent with a
prior statement. Misko stated Backes and Johns began personally attacking her mental status and
her horse breeding program. She “observed the close timing and quantity of these postings
against me on the deleted thread and that they described me as being unstable and with Backes
stating that one of my mares might be HERDA positive.”
Having considered this evidence, we conclude Misko’s ability to present her conspiracy
to commit libel claim has not been prejudiced by any destruction of evidence. No one testified
Johns and Backes agreed to write and publish the Post. Further, no one testified Misko’s
daughter or her health were discussed in the deleted thread. Rather, the evidence shows the
deleted thread discussed genetic horse testing and personal attacks against Misko. It did not
discuss or mention MSBP. Accordingly, Misko has provided no evidence from which the trial
court could conclude she was prejudiced in her ability to present her case such that she may be
entitled to a spoliation presumption. Rico, 420 S.W.3d at 437 (stating party who establishes
spoliation has occurred may be entitled to a presumption that the destroyed evidence would not
have been favorable to the destroyer).
Because Misko failed to carry her burden under section 27.005(c), the trial court erred by
denying Backes’s motion to dismiss. We reverse the trial court’s judgment and render judgment
dismissing Misko’s counterclaim against Backes for civil conspiracy to defame Misko.
Conclusion
We affirm the trial court’s order denying Johns’s motion to dismiss. We reverse the trial
court’s order denying Backes’s motion to dismiss and render judgment dismissing Misko’s
–31–
counterclaim against her. We remand Backes’s case to the trial court for a determination of
costs, attorney’s fees and other expenses as authorized under section 27.009(a). See TEX. CIV.
PRAC. & REM. CODE ANN. § 27.009(a).
140566F.P05
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
–32–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JANE MCCURLEY BACKES D/B/A On Appeal from the 429th Judicial District
BACKES QUARTER HORSES AND Court, Collin County, Texas
TRACY JOHNS, Appellants Trial Court Cause No. 429-01844-2013.
Opinion delivered by Justice Bridges.
No. 05-14-00566-CV V. Justices Lang and Evans participating.
KAREN MISKO AND MISKO QUARTER
HORSES, LLC, Appellees
In accordance with this Court’s opinion of this date, we AFFIRM the trial court’s order
denying appellant Tracy Johns’s motion to dismiss.
We REVERSE the trial court’s order denying appellant Jane McCurley Backes d/b/a/
Backes Quarter Horses and RENDER judgment dismissing appellees’ Karen Misko and Misko
Quarter Horses, LLC’s civil conspiracy counterclaim against appellant Jane McCurley Backes
d/b/a/ Backes Quarter Horses. We REMAND appellant Jane McCurley Backes d/b/a/ Backes
Quarter Horses’s case back to the trial court for a determination of costs, attorney’s fees and
other expenses as authorized under TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a).
It is ORDERED that Jane McCurley Backes d/b/a/ Backes Quarter Horses recover her
cost of this appeal from Karen Misko and Misko Quarter Horses, LLC.
It is ORDERED that Karen Misko and Misko Quarter Horses, LLC recover their cost of
this appeal from Tracy Johns.
Judgment entered March 13, 2015.
–33–