                IN THE SUPREME COURT OF TEXAS
                                           444444444444
                                             NO . 16-0229
                                           444444444444


   STEPHEN NOLAN BEDFORD, ALSO KNOWN AS NOLAN BEDFORD, PETITIONER,

                                                   v.


  DARIN SPASSOFF AND 6 TOOL, LLC, FORMERLY KNOWN AS DALLAS DODGERS
   BASEBALL CLUB LLC, D/B/A DALLAS DODGERS BASEBALL, RESPONDENTS

           4444444444444444444444444444444444444444444444444444
                              ON PETITION FOR REVIEW FROM THE
                     COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
           4444444444444444444444444444444444444444444444444444


                                           PER CURIAM


        This is a libel case brought by a business and its sole owner. We must decide if the plaintiffs

established a prima facie case that could survive a motion to dismiss under the Texas Citizens

Participation Act. In a split decision, the court of appeals held, among other things, that the statement

in dispute was defamatory per se and therefore damages could be presumed. We disagree, holding

that the statement cannot be defamatory per se and the plaintiffs failed to establish the necessary

damages element by clear and specific evidence. We reverse the court of appeals’ judgment as to the

libel claim and remand it to the trial court for dismissal and determination of attorney’s fees

consistent with the Act.
                                                          I

         Darin Spassoff is the sole owner and president of 6 Tool, LLC, formerly known as Dallas

Dodgers Baseball Club, LLC, a youth baseball-instructional organization. Stephen Nolan Bedford’s

son was a member of the Dodgers.

         On September 12, 2014, Bedford contacted Spassoff to allege that Bedford’s wife had

engaged in an inappropriate relationship with Terry Cruz, the Dodgers’ batting coach. A variety of

heated communications between them followed the same day. That evening, Bedford sent Spassoff

a copy of a Facebook post that Bedford had just made using his wife’s account.1 The post, which has

been modified to redact some profile attributes, is reproduced below:




        1
            Bedford’s now ex-wife was a defendant in the underlying suit and an appellant in the court of appeals, but
she is not party to this appeal. In this opinion, we have omitted discussion of her procedural involvement.

                                                          2
More communications followed, allegedly including threats by Bedford to protest at the Dodgers’

practice the next day. Within a few weeks, Spassoff had Bedford’s post removed from the Dodgers’

Facebook page.

        Spassoff and the Dodgers sued Bedford for libel and business disparagement. Spassoff also

asserted a claim for intentional infliction of emotional distress. The Dodgers asserted a claim for

tortious interference with a contract or, alternatively, a claim against Bedford and his now ex-wife

for breach of contract.

        Bedford moved to dismiss all the claims under the Texas Citizens Participation Act, arguing

that the plaintiffs brought the claims to prevent him from “engaging in constitutionally protected

activities.” The trial court denied his motion to dismiss. Bedford then filed an interlocutory appeal.

        The court of appeals, over a partial dissent, affirmed in part and reversed in part. It held that

Bedford met his initial burden under the Act by demonstrating that the claims against him were

premised upon statements made in connection with a matter of public concern. 485 S.W.3d 641,

646–48 (Tex. App.—Fort Worth 2016). But it also held that Spassoff and the Dodgers established

a prima facie case for each essential element of their libel claim, and therefore the trial court did not

err by denying Bedford’s motion to dismiss as to that claim. Id. at 649. It further held that the trial

court erred by denying Bedford’s motion to dismiss with regard to the other claims (business

disparagement, infliction of emotional distress, tortious interference, and breach of contract) and

reversed as to those claims. Id. The court remanded the libel claim for further proceedings in

accordance with the Act. Id.

                                                   3
        One justice dissented “from the majority’s failure to reverse the trial court’s judgment

denying [Bedford’s] motion [to] dismiss the libel claim.” Id. at 650 (Walker, J., dissenting). She

would have held that the Facebook post “at most, is opinionated criticism” and, even if it is

defamatory, it is not defamatory per se and no damages were established. Id. at 652–53.

                                                   II

        The scope of our review of this case is narrow. Only the libel claim is before us. The court

of appeals’ holding that the Act applies has not been challenged. Respondents did not file a cross-

petition, or even brief their position on the merits.

        Under the Act, a defendant may file a motion to dismiss an action that “is based on, relates

to, or is in response to a party’s exercise of the right of free speech.” TEX . CIV . PRAC. & REM . CODE

§ 27.003(a). “In reviewing that motion, the trial court is directed to dismiss the suit unless ‘clear and

specific evidence’ establishes the plaintiffs’ ‘prima facie case.’” In re Lipsky, 460 S.W.3d 579, 584

(Tex. 2015) (quoting TEX . CIV . PRAC. & REM . CODE § 27.005(c)).

        The elements of a prima facie case for defamation are: (1) the defendant published a false

statement; (2) that defamed the plaintiff; (3) with the requisite degree of fault regarding the truth of

the statement (negligence if the plaintiff is a private individual); and (4) damages, unless the

statement constitutes defamation per se. D Magazine Partners, L.P. v. Rosenthal, ___ S.W.3d ___,

___ (Tex. 2017) (citing Lipsky, 460 S.W.3d at 593; WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568,

571 (Tex. 1998)).

        Under the Act, more than mere notice pleading is required to establish a plaintiff’s prima

facie case. Lipsky, 460 S.W.3d at 590–91. Clear and specific evidence means that the “plaintiff must

                                                   4
provide enough detail to show the factual basis for its claim.” Id. at 591. “In a defamation case that

implicates the [Act], pleadings and evidence that establishes the facts of when, where, and what was

said, the defamatory nature of the statements, and how they damaged the plaintiff should be

sufficient to resist” a motion to dismiss under the Act. Id. When considering the motion to dismiss,

the court considers both the pleadings and any supporting and opposing affidavits. TEX . CIV . PRAC.

& REM . CODE § 27.006(a).

       Bedford argues, and the dissenting justice agreed, that the statements contained in the

Facebook post were not defamatory. But we need not decide that issue. A plaintiff asserting a

defamation claim “must plead and prove damages, unless the defamatory statements are defamatory

per se.” Lipsky, 460 S.W.3d at 593. Even if the Facebook post here were defamatory, the statement

is not defamation per se and Spassoff and the Dodgers failed to establish damages by clear and

specific evidence.

       The court of appeals held that Bedford’s statements were defamatory per se because Bedford

had “indirectly accused [the respondents] of lacking a peculiar or unique skill that is necessary for

the proper conduct of the Dodgers’ business—the moral judgment necessary to appropriately lead

a group of youths in furtherance of an extracurricular activity.” 485 S.W.3d at 649. Because

Bedford’s statements had “the potential to inflict financial injury upon the Dodgers’ business,” the

court of appeals held they amounted to defamation per se. Id. at 648.

       We disagree with that analysis. “While a defamatory statement is one that tends to injure a

person’s reputation, such a statement is defamatory per se if it injures a person in her office,

profession, or occupation.” Hancock v. Variyam, 400 S.W.3d 59, 62 (Tex. 2013). In Hancock, we

                                                  5
held statements that a physician lacked veracity and dealt in half-truths were not defamatory per se

because they did not injure the physician in his profession by ascribing that he lacked a necessary

skill peculiar or unique to the profession of being a physician. Id. at 67. “Disparagement of a general

character, equally discreditable to all persons, is not enough unless the particular quality disparaged

is of such a character that it is peculiarly valuable in the plaintiff’s business or profession.”

RESTATEMENT (SECOND ) OF TORTS § 573 cmt. e (cited approvingly in Hancock, 400 S.W.3d at 67).

As we said in that case: “If an accusation of untruthfulness is defamatory per se for a physician in

her profession, it would likewise be defamatory per se for other trades, businesses, and professions

that rely on human interaction.” Hancock, 400 S.W.3d at 68.

       The same logic controls here. Bedford’s post did not accuse Spassoff or the Dodgers of

lacking a peculiar or unique skill related to baseball or to running a baseball organization. Cf. id. at

64–67. We agree with the dissenting justice that a “statement disparaging the Dodgers for not

preventing a batting coach from engaging in an extramarital affair or for not disciplining such a

coach in some unidentified manner . . . is not the disparagement of a character or quality that is

essential to the business of operating a baseball club.” 485 S.W.3d at 654 (Walker, J., dissenting).

If an accusation that a baseball-instructional business failed to prevent its contractor or employee

from having an extramarital affair, or that the business did not handle the situation properly after the

affair was discovered, is defamation per se, then it would likewise be defamatory per se for all other

businesses that encounter people who are married. As we said in Hancock, that cannot be.




                                                   6
         Because the statements in the Facebook post were not defamatory per se, Spassoff and the

Dodgers bore the burden of establishing damages by clear and specific evidence. See Lipsky, 460

S.W.3d at 593. They failed to so.

         The prayer for relief in Spassoff and the Dodgers’ original petition seeks actual and

exemplary damages, but neither the petition, nor their response to Bedford’s motion to dismiss, nor

Spassoff’s affidavit attached to the response, identifies any actual damages. As Justice Walker

correctly noted in her dissent, Spassoff and the Dodgers did not plead or prove that anyone read the

Facebook post before it was removed. They did not plead or prove that the Dodgers received any

calls or expressions of concern regarding the post. They did not plead or prove that they lost any

clients because of the post.

         The respondents did plead that one practice was cancelled, but offered no evidence of

monetary or other damages suffered as a result. Further, Spassoff attests in his affidavit that the

“conflict with the Bedfords has caused [him] countless hours of duress.” Assuming, without

deciding, that this statement refers to damages that are actionable in libel,2 it is not sufficient

evidence. “[G]eneral averments of direct economic losses and lost profits” do not satisfy the Act’s

clear-and-specific-evidence standard without “specific facts illustrating how [a defendant’s] alleged

remarks about [a plaintiff’s] activities actually caused such losses.” Id. at 592–93. The respondents

have adduced no such evidence.


         2
            “ A libel is a defamation expressed in written or other graphic form . . . .” T EX . C IV . P R A C . & R EM . C O DE
§ 73.001. Spassoff’s general reference to the “conflict” with the Bedfords, which goes well beyond the Facebook post
at issue here, arguably does not relate to a written expression.




                                                               7
        Bedford also argues that the court of appeals erred by considering evidence that was not

properly before it. He claims the court relied on exhibits attached to Spassoff’s appellate briefing that

were not in the clerk’s record. Having concluded that Spassoff failed to establish his prima facie

case, we need not address this alleged error. But we note that this Court limited its review to the

“appellate record[, which] consists of the clerk’s record and, if necessary to the appeal, the reporter’s

record.” TEX . R. APP . P. 34.1. The clerk’s record and reporter’s record include documents that were

filed in or presented to the trial court. See TEX . R. APP . P. 34.5–.6.

                                                  ***

        We grant Bedford’s petition for review, and, without hearing oral argument, TEX . R. APP . P.

59.1, we reverse the court of appeals’ judgment as to the libel claim. We remand that claim to the

trial court for dismissal and determination of attorney’s fees consistent with the Act. See TEX . CIV .

PRAC. & REM . CODE § 27.009(a).



OPINION DELIVERED: June 9, 2017




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