                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-16-00061-CV

MICHELLE MCMANUS,
                                                          Appellant
v.

SHEILA RICHEY, INDIVIDUALLY, AS NEXT
FRIEND OF T.R., A MINOR, AND AS
INDEPENDENT EXECUTRIX OF THE
ESTATE OF GEORGE RICHEY,
                                                          Appellee



                          From the 12th District Court
                             Madison County, Texas
                         Trial Court No. 15-14136-012-02


                         MEMORANDUM OPINION


      In two issues, appellant, Michelle McManus, challenges the trial court’s denial of

her motion to dismiss brought under Chapter 27 of the Texas Civil Practice and Remedies

Code—the Texas Citizens Participation Act (“TCPA”). See TEX. CIV. PRAC. & REM. CODE

ANN. § 27.001-.011 (West 2015). Specifically, McManus contends that the claims brought

by appellee, Sheila Richey, individually, and as next friend of T.R., a minor, and as
independent executrix of the estate of George Richey, were based on her exercise of the

rights of free speech and association and, thus, were subject to dismissal under Section

27.003 of the Texas Civil Practice and Remedies Code. See id. § 27.003. Additionally,

McManus alleges that Sheila’s claims should have been dismissed with an award of fees,

costs, and sanctions because Sheila purportedly did not establish by clear and specific

evidence a prima-facie case for each essential element of her claims. Because we conclude

that Sheila is a limited-purpose public figure and, thus, Chapter 27 applies, and because

appellate courts are limited to reviewing the findings of the trial court, we reverse and

remand.

                                      I.      BACKGROUND

       Here, Sheila sued numerous people, including McManus, over allegedly libelous

comments made on the internet that were critical of Sheila.1              Sheila asserted that

McManus made numerous defamatory comments on numerous websites, including

Facebook, on a GoFundMe account, and the webpage for the Madisonville Meteor. Many

of McManus’s comments referenced the loss of Tammy Wynette memorabilia after a fire

at Sheila’s house. Among McManus’s many comments was the following:

       What a horrible shame to have lost so many irreplaceable items belonging
       to Tammy Wynette and George Jones. Of course if Sheila Richey had
       possessed even an ounce of compassion. She would have returned all of
       these items to Tammy’s daughters a long time ago. How a person can stoop
       so low as to manipulate and steal the daughter’s inheritance is beyond

       1 The record reflects that Sheila is the widow of George Richey. George was the widower of
Virginia Wynette Pugh, better known as country music legend Tammy Wynette.
McManus v. Richey                                                                         Page 2
      comprehension. What drives someone to have a lack of empathy and
      conscience? Could it have been greed? Surely Karma is calling! What a
      blessing that Sheila’s daughter was spending the night at a friends house,
      the dog was at the Groomer and the Rolls Royce was at a Garage being
      worked on. “Bless her heart,” she only had the time to throw on Tammy’s
      fur and jewelry before escaping . . . .

      If you want to be benevolent why not give to a truly needy, deserving cause!
      This Woman has millions stashed away that she unjustly took from
      Tammy’s kids and Grandkids.

McManus also posted a photograph of the ruins of Sheila’s home on Facebook with an

image of Tammy Wynette superimposed over it and with the caption, “Karma’s a Bitch!”

      Sheila also alleged that, in addition to numerous defamatory statements made on

the internet, McManus also sent her a letter dated March 5, 2015, which mirrors many of

the statements made on various websites.2 According to Sheila, in the letter, McManus

accused Sheila of stealing Tammy Wynette’s possessions and burning down her own

home. The letter further stated that Sheila is a “compassionless slut”; that “we have

people in this ugly town who hate you as much as we do”; and that it was the writer’s

and others’ intent to “make [Sheila’s] life hell.” The letter concluded with a warning that

Tammy’s daughters “are coming after you” and that “[w]e are right behind them.”

      Upon discovering McManus’s comments, Sheila sent a letter on May 22, 2015,

requesting that McManus clarify, correct, or retract her statements on the internet.

McManus purportedly posted a clarification and apology on two different Facebook




      2   McManus claims that she has no recollection of writing the letter.
McManus v. Richey                                                                    Page 3
pages, acknowledging that the matters referenced in her postings were not within her

personal knowledge, but rather based on information received from others. McManus

also notified members on a Facebook page dedicated to Tammy Wynette and George

Jones, for which she was an administrator, that postings critical of Sheila would be

deleted and posters would be blocked. McManus then sent notice to Sheila’s counsel

confirming that she had complied with the request made on May 22, 2015.

       Thereafter, on September 4, 2015, Sheila filed suit against McManus and numerous

others, asserting claims for libel, intentional infliction of emotional distress, and

conspiracy. McManus filed an answer, generally denying the allegations contained in

Sheila’s original petition. McManus also made numerous assertions herself, including

the following: (1) Sheila’s claims are not defamatory as a matter of law; (2) the publication

complained of is privileged; (3) the complained-of publication is true or substantially

true; (4) the publication contains some evaluative opinion and/or rhetorical hyperbole

that does not state or imply verifiable fact and, thus, is not actionable; (5) Sheila is a public

figure; (6) McManus’s comments were not made with actual malice; (7) Sheila is barred

from recovery by the doctrine of no incremental harm; and (8) Sheila cannot recover

exemplary damages under section 73.059 of the Texas Civil Practice and Remedies Code.

See TEX. CIV. PRAC. & REM. CODE ANN. § 73.059 (West Supp. 2015).                  Additionally,

McManus pleaded for the mitigation of damages under section 73.003 of the Texas Civil

Practice and Remedies Code. See id. § 73.003 (West 2011).


McManus v. Richey                                                                         Page 4
       Subsequently, McManus filed a motion to dismiss Sheila’s claims against her

under section 27.003 of the TCPA. See id. § 27.003. Specifically, McManus alleged that

Sheila’s suit infringes on McManus’s exercise of her rights of free speech and association

and that Sheila cannot produce clear and specific evidence on each essential element of

her claims; thus, the claims should be dismissed under section 27.003. See id.

       The trial court ultimately concluded that Sheila is not a public figure and that the

TCPA does not apply to the claims asserted against McManus. Accordingly, the trial

court denied McManus’s motion to dismiss. This accelerated, interlocutory appeal

followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(12) (West Supp. 2015); see

also TEX. R. APP. P. 28.1(a).

                            II.   MCMANUS’S MOTION TO DISMISS

A.     Standard of Review

       We review de novo a trial court’s ruling on a motion to dismiss pursuant to

Chapter 27 of the Texas Civil Practice and Remedies Code. See Better Bus. Bureau of Metro.

Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.]

2013, pet. denied); see also Serafine v. Blunt, 466 S.W.3d 352, 357 (Tex. App.—Austin 2015,

no pet.).

B.     Whether the Claims Fall Under Chapter 27




McManus v. Richey                                                                    Page 5
       Chapter 27 of the Texas Civil Practice and Remedies Code allows parties to seek

dismissal of certain types of claims filed against them unless the opposing party presents

prima-facie evidence of each element of those claims. See TEX. CIV. PRAC. & REM. CODE

ANN. § 27.003(a), 27.005(b)-(c). This involves a two-step process. See, e.g., Fawcett v.

Rogers, No. 01-15-00121-CV, 2016 Tex. App. LEXIS 3175, at *6 (Tex. App.—Houston [1st

Dist.] Mar. 29, 2016, no pet.) (op. on reh’g) (citing Prather & Bland, Bullies Beware:

Safeguarding Constitutional Rights Through Anti-SLAPP in Texas, 47 TEX. TECH. L. REV. 725,

750-53 (2015)). Initially, as it applies in this case, the moving party must show “that the

legal action is based on, relates to, or is in response to the party’s exercise of . . . the right

of free speech . . . or the right of association.” TEX. CIV. PRAC. & REM. CODE ANN. §

27.005(b)(1), (3).

       If the movant establishes that the claims against her fall within the scope of

Chapter 27, the burden shifts to the non-movant to “establish[] by clear and specific

evidence a prima facie case for each essential element of the claim in question.” Id. §

27.005(c). In reviewing the evidence, the trial court “shall consider the pleadings and

supporting and opposing affidavits stating the facts on which the liability or defense is

based.” Id. § 27.006(a). While the requirement that prima-facie proof be established by

clear and specific evidence “demands more information about the underlying claim, the

Act does not impose an elevated evidentiary standard or categorically reject

circumstantial evidence.” In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015). For a defamation


McManus v. Richey                                                                          Page 6
claim, “pleadings and evidence that establish 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 TCPA motion to dismiss.” Id.

       Sheila brought defamation claims against McManus.                The elements for a

defamation claim are “(1) the publication of a . . . statement of fact to a third party, (2)

that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and

(4) damages, in some cases.” Id. at 593 (citing McLemore, 978 S.W.2d at 571). In any event,

McManus argues that the defamation claims relate to her exercise of the right of free

speech and association. As noted earlier, a legal action that “is based on, relates to, or is

in response to a party’s exercise of . . . the right of free speech . . . or the right of

association” falls within the protections of Chapter 27. See TEX. CIV. PRAC. & REM. CODE

ANN. § 27.003(a); accord id. § 27.005(b)(1), (3). “‘Exercise of the right of association’ means

a communication between individuals who join together to collectively express, promote,

pursue, or defend common interests.” Id. § 27.001(2). Moreover, “‘[e]xercise of the right

of free speech’ means a communication made in connection with a matter of public

concern.” Id. § 27.001(3). Matters of public concern include issues related to health or

safety; environmental, economic, or community well-being; the government; a public

official or public figure; or a good, product, or service in the marketplace. Id. § 27.001(7).

Here, the parties disagree about whether Sheila is a public figure.




McManus v. Richey                                                                        Page 7
       Chapter 27 does not define a public figure; however, the Texas Supreme Court has

categorized public figures as being either (1) all-purpose, or general-purpose, public

figures, or (2) limited-purpose public figures. WFAA-TV, Inc. v. McLemore, 978 S.W.2d

568, 571 (Tex. 1998). General-purpose public figures are those individuals who have

achieved such pervasive fame and notoriety that they become public figures for all

purposes and in all contexts. Id. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.

Ct. 2997, 41 L. Ed. 2d 789 (1974)). Limited-purpose public figures are only public figures

for a limited range of issues surrounding a public controversy. Id. McManus contends

that Sheila is a limited-purpose public figure.

       To be a limited-purpose public figure, the record must show: (1) there is a public

issue “both in the sense that people are discussing it and people other than the immediate

participants in the controversy are likely to feel the impact of its resolution”; (2) the

plaintiff has more than a trivial or tangential role in the issue; and (3) the alleged

defamation is germane to the plaintiff’s participation in this issue. Neely v. Wilson, 418

S.W.3d 52, 70 (Tex. 2013). It is “exceedingly rare” for an individual to become a public

figure involuntarily. Id. at 71 (citing Gertz, 418 U.S. at 345, 94 S. Ct. at 3009). Rather,

limited-purpose public figures are those that “have thrust themselves to the forefront of

particular public controversies in order to influence the resolution of the issues involved.”

Gertz, 418 U.S. at 345, 94 S. Ct. at 2009.




McManus v. Richey                                                                        Page 8
       In an affidavit attached to her motion to dismiss, McManus asserts that this

dispute centers on the will of Tammy Wynette and the “lack of inheritance received by

her daughters.”3 With respect to Sheila’s status as a public figure, McManus notes the

following:

       In following matters related to Tammy Wynette over many years, I have
       become familiar with Plaintiff Sheila Slaughter Richey’s public profile.
       Until fairly recently, Ms. Richey kept a very prominent public profile and
       was frequently involved in matters concerning Ms. Wynette, including
       publicity surrounding the ongoing controversy over Ms. Wynette’s will.
       For example, in the ID [Investigation Discovery] television network
       program discussed above, Ms. Richey is prominently featured and makes
       many statements regarding her conduct, and that of George Richey, in
       connection with the controversy. In that program, Ms. Richey is shown
       making the following statements, among others, which I have confirmed by
       re-watching the program on YouTube:

               [George] Richey later told me that they [Ms. Wynette’s daughters]
               had been told that they were going to get, you know, a life insurance
               policy. But I know from my own experience, I mean, I’ve changed
               my own personal life insurance many times. So, Tammy probably
               decided to change it. [At approximately 20:25-20:45 in the YouTube
               link given above]

                      They weren’t just Tammy Wynette’s riches. They were
               George Richey and Tammy Wynette’s riches. They built it together.
               George Richey was a wildly successful music executive, he was
               president of Capitol Records. I mean, you just couldn’t get or find a
               better producer or writer, piano player. He was as equal to her. So
               to say George Richey wanted Tammy’s riches is a total insult, and
               you can see that’s not the way it really was. [At approximately 21:23-
               21:58]


       3  One of Tammy Wynette’s greatest hits was “Stand By Your Man,” see Billboard.com, Tammy
Wynette: Chart History, http://www.billboard.com/artist/281500/tammy-wynette/chart (last visited June
3, 2016); however, McManus notes that Tammy’s daughters have asserted in various books and in the
media that George and Sheila have not stood by them.
McManus v. Richey                                                                             Page 9
                        I know that there’s been a lot of question of where was this
               list of things that Tammy wanted to give out. And he told me that
               she wrote them out, not daily, but constantly. She’d get mad at this
               kid and it would—you know, they would be scratched off. You get
               mad at this kid. I mean, she was constantly revising it. [At
               approximately 22:38-23:00]

                      [On her donating some of Tammy Wynette’s items to the
               Country Music Hall of Fame:] Those items were not Tammy’s girls’
               items. They were George Richey’s. And he did not want them to
               end up on E-Bay. She was a member of the Country Music Hall of
               Fame, the highest honor that any artist could have. So why not have
               her things in an elegant, beautiful, honorable situation that where
               she could be safe? [At approximately 38:41-39:11]

                     Her will was carried out to the letter how she would have
               wanted it after what her children did to her after she died. I’m a very
               compassionate person. They’ve never reached out to me in kind. If
               they had, they would have gotten a very different response. [At
               approximately 41:58-42:18][4]

       In response to McManus’s motion to dismiss, Sheila executed her own affidavit,

wherein she averred:

       8. In 2012, a producer for the IDTV show “The Will—Family Secrets
       Revealed” contacted me because they planned on an episode featuring
       Tammy Wynette’s death and the aftermath involving the distribution of her
       estate. The producer wanted my participation. I did not want to participate
       in this program in any manner whatsoever and initially refused. However,
       it was represented to me that the show would be produced and would air
       with or without my input. In light of the prior hurtful accusations made
       against my deceased husband, I participated in the filming of the “The
       Will—Family Secrets Revealed” episode simply to answer questions. After
       filming my interview, I did not participate in any of the promotion of the


       4 The ID television network series described in McManus’s affidavit is called “The Will: Family
Secrets Revealed.”


McManus v. Richey                                                                             Page 10
       episode, including the Dr. Drew program cited in Defendant McManus’s
       motion.

              9. Prior to the Dr. Drew program, I was contacted by staff at the Dr.
       Drew show who requested my participation. I refused to participate
       beyond giving a very brief comment. I refused to appear on the show and
       also declined appearances on other television programs.

       The above-mentioned evidence shows that Tammy’s will and the disinheriting of

Tammy’s children is a public issue “both in the sense that people are discussing it and

people other than the immediate participants in the controversy are likely to feel the

impact of its resolution." See Neely, 418 S.W.3d at 70. Indeed, the purported defamatory

comments made by McManus and others, as well as the numerous television shows and

internet websites dedicated to this issue, illustrate that this issue has been highly

publicized. Moreover, Sheila admitted to participating in the Investigation Discovery

network show, entitled “The Will—Family Secrets Revealed,” and the Dr. Drew show to

discuss Tammy’s will and the complaints made by Tammy’s children. See McLemore, 978

S.W.2d at 573 (“‘By publishing your views you invite public criticism and rebuttal; you

enter voluntarily into one of the submarkets of ideas and opinions and consent therefore

to the rough competition in the marketplace.’” (quoting Dilworth v. Dudley, 75 F.3d 307,

309 (7th Cir. 1996))); see also Gertz, 418 U.S. at 345, 351; Steaks Unlimited, Inc. v. Deaner, 623

F.2d 264, 273 (3d Cir. 1980) (noting that public figures have “assumed the risk of

potentially unfair criticism by entering into the public arena and engaging the public’s

attention”). Furthermore, the alleged defamatory comments made by McManus and


McManus v. Richey                                                                         Page 11
others directly relate to Sheila’s involvement in the distribution and possession of the

assets of the Tammy Wynette estate.

       We conclude that the evidence demonstrates that Sheila is a limited-purpose

public figure with regard to the issue at hand. See Neely, 418 S.W.3d at 70; see also Einhorn

v. LaChance, 823 S.W.2d 405, 413 (Tex. App.—Houston [1st Dist.] 1992, writ dism’d w.o.j.)

(holding that pilots who flew for a hospital’s air ambulance system and who had made

statements to the press regarding a controversy over unionization were limited-purpose

public figures).    Moreover, we further conclude that the complained-of statements

involved in this case pertain to matters of public concern that touch on the exercise of

McManus’s right of free speech and that McManus carried her burden of establishing

that Chapter 27 applies. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(3), (7), 27.003(a),

27.005(b)(1).

       Nevertheless, the record reflects that the trial court denied McManus’s motion to

dismiss, specifically noting that “Plaintiff Sheila Richey is not a public figure and that

Texas Civil Practice and Remedies Code Chapter 27 does not apply to the claims asserted

by Plaintiffs against Defendant Michelle Reiber Wood McManus.”               Based on the

foregoing, we conclude that the trial court erred in denying McManus’s motion to dismiss

on the grounds that Sheila is not a public figure and that Chapter 27 does not apply. See

Serafine, 466 S.W.3d at 357; John Moore Servs., Inc., 441 S.W.3d at 353; see also TEX. CIV.

PRAC. & REM. CODE ANN. §§ 27.001(3), (7), 27.003(a), 27.005(b)(1). On the contrary, we


McManus v. Richey                                                                     Page 12
believe that Sheila is a limited-purpose public figure and that Chapter 27 does apply. We

therefore sustain McManus’s first issue on appeal.

C.     Prima-Facie Elements of the Defamation Claims

       Ordinarily, as the second step in the analysis outlined in Chapter 27, we must

analyze whether Sheila established by clear and specific evidence a prima-facie case for

each essential element of the claim in question. See TEX. CIV. PRAC. & REM. CODE ANN. §

27.005(c); see also In re Lipsky, 460 S.W.3d at 587. However, McManus admits, and the

record reveals, that the trial court never reached the second step of the analysis because

of the conclusions that Sheila is not a public figure and that Chapter 27 does not apply.

Regardless, McManus urges us to make an independent determination that Sheila did

not establish by clear and specific evidence the essential elements of her defamation

claims.

       It is well-established that courts of appeals are limited to reviewing findings made

by trial courts and may not make affirmative findings. See Tex. Nat’l Bank v. Karnes, 717

S.W.2d 901, 903 (Tex. 1986) (per curiam); City of Beaumont v. Graham, 441 S.W.2d 829, 832-

33 (Tex. 1969); Duff v. Spearman, 322 S.W.3d 869, 887 (Tex. App.—Beaumont 2010, pet.

denied); AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 519 (Tex. App.—Fort

Worth 2009, no pet.).       We therefore decline McManus’s invitation to make a

determination as to whether Sheila established by clear and specific evidence the essential

elements of her defamation claims. That determination should be made by the fact finder


McManus v. Richey                                                                   Page 13
in the trial court. See Karnes, 717 S.W.2d at 903; Graham, 441 S.W.2d at 832-33; Duff, 322

S.W.3d at 887; AMX Enters., L.L.P., 283 S.W.3d at 519.         Accordingly, we overrule

McManus’s second issue.

                                    III.   CONCLUSION

      Because we have concluded that Sheila is a limited-purpose public figure and that

Chapter 27 applies in this case, we reverse the trial court’s denial of McManus’s motion

to dismiss and remand to the trial court to consider the second step in the Chapter 27

analysis—whether Sheila established by clear and specific evidence the essential

elements of her claims against McManus.




                                                 AL SCOGGINS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
(Chief Justice Gray dissenting with a note)*
Reversed and remanded
Opinion delivered and filed July 27, 2016
[CV06]

*(Chief Justice Gray dissents. A separate opinion will not issue. He notes, however, that
even if Sheila Richey meets some of the elements to be a limited-purpose public figure,
of which he has grave doubts under first amendment jurisprudence, he finds no support
for the proposition that the matter at issue is of public concern. Further, he cautions the
parties on remand that Sheila Richey is present in this suit in three capacities and each
must be addressed in any efforts to summarily and finally dispose of this proceeding.)


McManus v. Richey                                                                   Page 14
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