NO. 05-11-01337-CV ACCEPTED 225EFJ016773378 FIFTH COURT OF APPEALS DALLAS, TEXAS 12 March 12 P4:50 Lisa Matz CLERK IN THE FIFTH DISTRICT COURT OF APPEALS AT DALLAS, TEXAS WHOLSALE TV AND RADIO ADVERTISING, LLC, v. BETTER BUSINESS BUREAU OF METROPOLITAN DALLAS, INC. Appellant Appellee Appeal from the 14th Judicial District Court of Dallas County, Texas (Hon. Eric Moye, Presiding) APPELLEE S BRIEF DAVID C. MYERS State Bar No. 14759400 COLIN LECROY State Bar No. 24070120 JACKSON WALKER L.L.P. 901 Main Street, Suite 6000 Dallas, Texas 75202 214-953-6000 214-953-5822 facsimile ATTORNEYS FOR APPELLEE
1. Appellant/Plaintiff in the trial court: IDENTITY OF PARTIES AND COUNSEL Wholesale TV and Radio Advertising, LLC 2. Counsel for Appellant: Shae Armstrong 5430 LBJ Freeway #1200 Dallas, Texas 75240 3. Appellee/Defendant in the trial court: The Better Business Bureau of Metropolitan Dallas, Inc. 4. Counsel for Appellee: David C. Myers Colin LeCroy Jackson Walker L.L.P. 901 Main St., Suite 6000 Dallas, Texas 75202 -i-
STATEMENT REGARDING ORAL ARGUMENT The Court should decline to hear oral argument of this appeal because Appellant does not request oral argument. Appellee also submits that the Court s decisional process would not be significantly aided by oral argument because, as the briefs make clear, there is no basis whatsoever to reverse the trial court s order. -ii-
TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT...ii STATEMENT OF THE CASE... 1 ISSUES PRESENTED IN RESPONSE... 1 First Issue (In Response to Appellant s First Issue)... 1 Second Issue (In Response to Appellant s Issues Two through Five)... 2 STATEMENT OF FACTS... 2 SUMMARY OF THE ARGUMENT... 5 ARGUMENT AND AUTHORITIES... 7 First Issue (In Response to Appellant s First Issue)... 7 Second Issue (In Response to Appellant s Issues Two through Five)... 9 1. Appellant waived any error regarding the trial court s dismissal by failing to identify record references supporting its contentions... 9 2. Appellant failed to establish by clear and specific evidence a prima facie case for each element of its DTPA action... 10 3. Appellant failed to establish by clear and specific evidence a prima facie case for each element of its business disparagement action... 12 4. Appellant failed to establish by clear and specific evidence a prima facie case for each element of its fraud action... 15 5. Appellant failed to establish by clear and specific evidence a prima facie case for each element of its negligent misrepresentation action... 17 CONCLUSION... 18 -iii-
TABLE OF AUTHORITIES STATE CASES Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768 (Tex. 2009)... 15 Blake v. Intco Investment Of Tex., Inc., 123 S.W.3d 521 (Tex. App. San Antonio 2003, no pet.)... 8, 9 Brammer v. KB Home Lone Star, L.P., 114 S.W.3d 101 (Tex.App.-Austin 2003, no pet.)... 5, 8 Carr v. Brasher, 776 S.W.2d 567 (Tex. 1989)... 14 Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992)... 8 DeGrate v. Executive Imprints, Inc., 261 S.W.3d 402 (Tex. App. Tyler 2008, no pet.)... 9 Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422 (Tex. App. Waco 1997, writ denied)... 14 Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472 (Tex. 1995)... 10 Fisher Controls International, Inc. v. Gibbons, 911 S.W.2d 135 (Tex. App. Houston [1st Dist.] 1995, writ denied)... 11 Fluor Enterprise, Inc. v. Conex International Corp., 273 S.W.3d 426 (Tex. App. Beaumont 2008, pet. denied)... 13, 14 Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003)... 12, 13 Fredonia State Bank v. General America Life Insurance Co., 881 S.W.2d 279 (Tex. 1994)... 15 Hand v. Dean Witter Reynolds, Inc., 889 S.W.2d 483 (Tex. App. Houston [14th Dist.] 1994, writ denied)... 11 -iv-
Izen v. Commission for Lawyer Discipline, 322 S.W.3d 308 (Tex. App Houston [1st Dist.] 2010, pet. denied)... 11, 13, 14 Khorshid, Inc. v. Christian, 257 S.W.3d 748 (Tex. App. Dallas 2008, no pet.)... 10 Melody Home Manufacturing Co. v. Barnes, 741 S.W.2d 349 (Tex. 1987)... 11 Nazareth International v. J.C. Penney Co., 287 S.W.3d 452 (Tex. App. Dallas 2009, pet. denied)... 16 Pruett v. Harris County Bail Bond Board, 249 S.W.3d 447 (Tex. 2008)... 8 FEDERAL CASES Central Hudson Gas & Electric v. Public Serv. Commission, 447 U.S. 557 (1980)... 8 Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137 (5th Cir. 2007)... 13 STATUTES Texas Civil Practices and Remedies Code 27.000, et seq.... 1 SECONDARY AUTHORITIES Blacks Law Dictionary 268 (8th ed. 2004)... 10 -v-
TO THE HONORABLE FIFTH DISTRICT COURT OF APPEALS: Appellee Better Business Bureau of Metropolitan Dallas, Inc. (the BBB ) files this Appellee s Brief in response to the Appellant s Brief as follows: STATEMENT OF THE CASE Appellant appeals from the trial court s order granting the BBB s motion to dismiss pursuant to Chapter 27 of the Texas Civil Practices and Remedies Code, known as the Citizen s Participation Act (the CPA ). 1 The CPA requires a trial court to dismiss a lawsuit if the defendant demonstrates by a preponderance of the evidence that the action is based on, related to, or in response to the defendant s exercise of the right of free speech as defined by the CPA, unless the plaintiff establishes by clear and specific evidence a prima facie case for each essential element of the causes of action alleged. By dismissing Appellant s lawsuit, the trial court necessarily found that Appellant s action was based on, related to, or in response to the BBB s exercise of its right of free speech and that Appellant did not establish by clear and specific evidence a prima facie case for each essential element of the causes of action alleged. ISSUES PRESENTED IN RESPONSE First Issue (In Response to Appellant s First Issue) The trial court correctly applied the CPA because the BBB conclusively demonstrated that it exercised its right of free speech as defined by the CPA, and that Appellant s action was based on, related to, or in response to the BBB s exercise of the 1 The CPA is sometimes referred to as anti-slapp legislation, meaning anti-strategic lawsuit against public participation. -1-
right of free speech. The CPA does not contain any language exempting commercial speech from its application. Second Issue (In Response to Appellant s Issues Two through Five) The trial court correctly granted the BBB s motion to dismiss pursuant to the CPA because Appellant did not establish by clear and specific evidence a prima facie case for each essential element of the causes of action it alleged. In many instances, Appellant did not produce any evidence, much less clear and specific evidence, to establish a prima facie case for the essential elements of the alleged causes of action. STATEMENT OF FACTS Appellant sued the BBB complaining that an online business review published by the BBB on February 16, 2010, in which Appellant was given an F rating, was false and disparaging. (CR 22). The BBB published that review after Appellant failed to substantiate an advertising claim that it sold television and radio advertising at wholesale prices in compliance with the BBB s Code of Advertising. (CR 44). The BBB is an independent, non-profit corporation founded in 1920 that promotes ethical business practices through voluntary self-regulation. (CR 43). The BBB provides the general public with consumer alerts, tips, and business reviews. Id. Business reviews are provided to the public for both accredited and non-accredited businesses. Id. The BBB also reviews advertising by businesses for compliance with the Code of Advertising, which describes basic advertising standards for the guidance of advertisers, advertising agencies and advertising media. (CR 47). -2-
The Code of Advertising specifies that an advertiser should not describe itself as a wholesaler unless it owns and operates or directly and absolutely controls a wholesale or distribution facility which primarily sells products to retailers for resale and that an advertiser should not assert it offers products at wholesale prices unless it sells those products at the current prices which retailers usually and customarily pay when they buy such merchandise for resale. (CR 49). The Code further provides that the term wholesale should not be used in a business name unless the business meets the Code s definition of wholesaler. (CR 55). Appellant applied for accreditation with the BBB in December 2009. (CR 43). As part of its accreditation process, the BBB undertook to review Appellant s advertising claims. Id. By letter dated December 21, 2009, the BBB informed Appellant that it would defer consideration of its application pending resolution of its concerns about Appellant s claims that it was a wholesaler of television and radio advertising. (CR 57). In that letter, the BBB explained to Appellant the Code of Advertising s guidelines and requested that Appellant provide information to substantiate the claim that Appellant was a wholesaler. Id. A week later, Appellant s president, Dennis Zedrick, sent an email to the BBB s marketing manager, Thomas Manders, stating he had no idea what to do about the advertising review and that he would leave it to you [Manders] to come up with a solution to this. (CR 95). Manders responded by email on January 4, 2010. (CR 94). Appellant contends this response is an admission by the BBB that Appellant is a wholesaler. (Br. 2). However, in his response, Manders advised that Appellant should -3-
send us [the BBB] a letter explaining your business model and gave Appellant an example of what the letter should contain: You buy unsold inventory and resell it in bulk to Agencies or Advertisers (something like that). You are a wholesaler that occupies a unique niche in the world of broadcast advertising. (CR 94). Get the letter out ASAP, Manders said, and with that documentation, you ll be up for a favorable review[.] Id. More than a month later, Appellant sent a letter to the BBB, which Appellant described as a cut and paste from an introductory email that Appellant sent to potential customers. (CR 60-61). Although Appellant mentioned in the letter that it had a unique bidding/auction program for purchasing advertising time, the information Appellant provided did not, according to the BBB, substantiate that Appellant sold advertising to retailers for resale or that the prices its customers paid were the prices retailers usually and customarily pay when they buy advertising time for resale, as required by the Code of Advertising. (CR 69-70). Based on Appellant s failure to substantiate its advertising claim, the BBB did not approve Appellant as an accredited business. (CR 44). In keeping with its policy, the BBB then published a business review on Appellant that stated, As of February 16, 2010, [Appellant] has provided no information that would substantiate that it sells advertising at wholesale prices. (CR 67). Based in part on this failure to substantiate, the grade assigned to Appellant was, in the BBB s opinion, an F. (CR 66). Appellant initially filed suit on July 8, 2011 and filed an amended petition on August 10, 2011, alleging causes of action for DTPA violations, business disparagement, -4-
fraud, and negligent misrepresentation. (CR 5, 20). In the amended petition, Appellant complained that the F rating has significantly harmed [Appellant s] business since February 2010. (CR 23-24). The BBB filed its motion to dismiss on August 12, 2011. (CR 29). Appellant filed a response on August 31, 2011. (CR 82). At a hearing on September 6, 2011, the district court offered Appellant an opportunity to provide supplemental briefing on its negligent misrepresentation claim, and Appellant filed a supplemental response and evidence on September 9, 2011. (CR 90). On September 30, 2011, the trial court granted the BBB s motion to dismiss and awarded the BBB its attorneys fees under the statute. 2 (CR 102-103). SUMMARY OF THE ARGUMENT Appellant first attempts to avoid dismissal by characterizing the BBB s online business review as commercial speech that should not be afforded protections under the First Amendment. (Br. 6-8). Appellant s argument is without merit. By its own terms, the CPA applies to actions that are based on, related to, or in response to a defendant s exercise of the right of free speech, which the CPA defines as a communication made in connection with a matter of public concern. Tex. Civ. Prac. & Rem. Code 27.003(a), 27.001(3). In turn, a matter of public concern is defined to include communications about an issue related to a good, product, or service in the marketplace. Tex. Civ. Prac. & Rem. Code 27.001(7). The BBB conclusively demonstrated that it exercised its right of free speech by communicating with the public through its online review about Appellant s goods, products, and services in the 2 Appellant does not appeal the award of attorneys fees to the BBB. -5-
marketplace. The BBB further demonstrated that Appellant s action was based on, related to, or in response to that exercise of the right of free speech. Indeed, Appellant s complaint is that the BBB published the review. There is no language in the CPA that exempts commercial speech from its application. In any event, the BBB s speech is not properly characterized as commercial speech because it is not speech solely concerning the BBB s economic interests. See Brammer v. KB Home Lone Star, L.P., 114 S.W.3d 101, 108 (Tex. App. Austin 2003, no pet.). Accordingly, the trial court correctly applied the CPA to dismiss Appellant s lawsuit. Appellant also tries to avoid dismissal by asserting that it established by clear and specific evidence a prima facie case for each essential element of the four causes of action it alleged. The lack of record references in Appellant s brief, however, belies that assertion. Indeed, just like in the trial court, Appellant s brief here does not even address each element of the causes of action alleged. Appellant, for example, points to no evidence in the record much less clear and specific evidence to establish its consumer status (essential to its DTPA action), its justifiable reliance on any statement by the BBB (essential to the fraud and negligent misrepresentation actions), or malice (essential to its business disparagement action). Moreover, Appellant s evidence that the BBB published a false statement is not clear and specific. Although it was not required to, the BBB submitted evidence demonstrating that the complained of statement was true when made. Appellant wholly failed to carry its burden to establish by clear and specific evidence a prima facie case for each essential element of its actions. Accordingly, the trial court did not err in granting the BBB s motion to dismiss. -6-
ARGUMENT AND AUTHORITIES 3 First Issue (In Response to Appellant s First Issue) The CPA applies in every case where the defendant demonstrates by a preponderance of the evidence that a party s action is based on, related to, or in response to the defendant s exercise of the right of free speech. Tex. Civ. Prac. & Rem. Code 27.003(a). The CPA defines the exercise of the right of free speech as a communication made in connection with a matter of public concern. Tex. Civ. Prac. & Rem. Code 27.001(3). A matter of public concern includes an issue related to a good, product, or service in the marketplace. Tex. Civ. Prac. & Rem. Code 27.001(7)(E). The BBB conclusively demonstrated that Appellant s action is based on, related to, or in response to the BBB s posting of the online business review and that the business review was a communication related to a good, product, or service in the marketplace. (CR 32-34). Indeed, Appellant complained in its petition that [t]he placement of [the F rating] has significantly harmed [Appellant s] business since February 2010 and sought a temporary injunction to have the review removed. (CR 23-24, 108). Appellant does not contest the applicability of the CPA to its action, with one exception. Specifically, Appellant argues that the CPA does not apply because the BBB s business review was commercial speech and thus is not afforded protection under the First Amendment. (Br. 6-8). Appellant is wrong for two reasons. First, Appellant s 3 The BBB does not take issue with Appellant s statement that the standard of review is de novo. -7-
argument is directly contradicted by the text of the statute. The procedural protections of the CPA are independent of the First Amendment and apply whenever the plaintiff s suit falls within the class of cases addressed by the statute. 4 Under the plain language of the CPA, a plaintiff s burden of going forward is triggered when the defendant proves by a preponderance of the evidence that the action is based on, related to, or in response to the defendant s communication about a matter of public concern, including communications about a good, product, or service in the marketplace. Tex. Civ. Prac. & Rem. Code 27.003(a), 27.001(7)(E). Far from carving out an exception for commercial speech, the text of the statute explicitly brings at least some types of commercial speech within its ambit. Second, the business review is not actually commercial speech. Commercial speech is "expression related solely to the economic interests of the speaker and its audience." Cent. Hudson Gas & Elec. v. Pub. Serv. Comm n, 447 U.S. 557, 561 (1980) (emphasis added). Speech addressing a matter of public concern that is not intended to further the speaker s commercial interest is not commercial speech. See Brammer, 114 S.W.3d at 108 (holding that customer s criticism of a home builder was not commercial speech because the customer was not a commercial competitor of the builder). The BBB is not a competitor of Appellant and its business review was not intended to further its own commercial interests; rather, it publishes business reviews as part of its mission to 4 While the commercial speech doctrine generally permits the government to regulate some speech, it does not prohibit Texas from enacting other protections for such speech. See, e.g., Pruett v. Harris County Bail Bond Bd., 249 S.W.3d 447, 456 (Tex. 2008) (stating that the First Amendment limits the types of commercial speech that may permissibly be banned); Davenport v. Garcia, 834 S.W.2d 4, 8 (Tex. 1992) (noting that the Texas constitution provides greater free speech protections than the First Amendment to the Unites States Constitution). -8-
promote fair business practices through voluntary self regulation. (CR 43). Appellant produced no evidence to the contrary. Accordingly, Issue One should be overruled. Second Issue (In Response to Appellant s Issues Two through Five) 1. Appellant waived any error regarding the trial court s dismissal by failing to identify record references supporting its contentions. Appellant s briefing, both here and before the trial court, consists primarily of arguments unsupported by any citation to record evidence. On appeal, [a]n appellant has a duty to show the record supports [its] contentions. Blake v. Intco Inv. Of Tex., Inc., 123 S.W.3d 521, 525 (Tex. App. San Antonio 2003, no pet.) (affirming summary judgment). Where an appellant fails to point to any evidence contradicting the trial court s holding, the trial court s ruling should be affirmed. Id. Likewise, where a party fails in the trial court to identify evidence supporting its claims, when such evidence is required, the trial court does not err in dismissing the case. DeGrate v. Exec. Imprints, Inc., 261 S.W.3d 402, 408 (Tex. App. Tyler 2008, no pet.) (affirming summary judgment where plaintiff failed to identify any evidence of its claims in response to a no evidence summary judgment motion). There are no record references in Appellant s brief in support of Issue Two (DTPA) or Issue Four (fraud). (Br. 9, 11). 5 As to Issues Three (business disparagement) and Five (negligent misrepresentation), Appellant makes no record references to support 5 The only record reference made in Issue Two is to Appellant s response brief in the trial court, not to record evidence. (Br. 9). The trial court response did not cite to evidence either. (CR. 86-87). The reference in Issue Four is to the BBB s motion. -9-
several essential elements of those claims, notably, malice and justifiable reliance, respectively. (Br. 10, 12). The Court may affirm the trial court for this reason alone. 2. Appellant failed to establish by clear and specific evidence a prima facie case for each element of its DTPA action. Appellant can only avoid dismissal if it established by clear and specific evidence a prima facie case for each element of its causes of action. Thus, in enacting the CPA, the legislature clearly intended to impose a higher burden on a plaintiff than the usual civil standard of a preponderance of the evidence. The clear and specific standard is most closely akin to the standard of clear and convincing evidence. Clear and convincing evidence is an intermediate burden of proof, less than beyond a reasonable doubt but greater than the usual standard in civil cases of preponderance of the evidence. Khorshid, Inc. v. Christian, 257 S.W.3d 748, 765 (Tex. App. Dallas 2008, no pet.). Clear and convincing evidence is defined as the measure of degree or proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Id. (citing Tex. Civ. Prac. & Rem. Code 41.001(2)). Clear means free from doubt, sure, and unambiguous, Blacks Law Dictionary 268 (8th ed. 2004), and specific means of or relating to a particular named thing. Id. at 1434. By definition, then, conclusory allegation cannot be clear and specific evidence. On the record in this case, Appellant wholly failed to carry its burden under any evidentiary standard, much less under the CPA s heightened standard. -10-
Appellant s argument to avoid dismissal of its DTPA cause of action consists of a single paragraph on page 9 of its brief. Although Appellant s burden is to establish by clear and specific evidence a prima facie case for each essential element, Appellant cites no evidence at all, thereby failing to establish a prima facie case for several essential elements of its DTPA action, including: (1) Appellant s status as a consumer; (2) that the BBB engaged in false, misleading, or deceptive acts; or (3) that these acts constituted a producing cause of Appellant s alleged damages. See Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995) (listing elements of DTPA cause of action). Appellant s brief offers nothing but conclusory assertions under Issue Two that the BBB s business review was false and that the BBB persisted in maintaining the business review on its website. (Br. 9). Appellant thus wholly failed to carry its burden under any evidentiary standard, much less the heightened standard required by the CPA. See Izen v. Comm n for Lawyer Discipline, 322 S.W.3d 308, 322 (Tex. App Houston [1 st Dist.] 2010, pet. denied) ( [A] conclusory statement without citation to the record or to relevant authority is insufficient to preserve this issue for appeal ) (citing Tex. R. App. P. 38.1(I)). Even if Appellant had cited to the record in support of its DTPA action, the record demonstrates that, in this case, Appellant cannot establish its consumer status as a matter of law. To be a consumer, a plaintiff must prove (1) it sought or acquired goods or services by purchase or lease and (2) the goods or services it purchased or leased form the basis of its complaint. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 351-52 (Tex. 1987). The only thing Appellant alleged that it sought from the BBB was accreditation. -11-
(CR 21, 43). But a right is an intangible and therefore, does not confer consumer status under the DTPA. Hand v. Dean Witter Reynolds, Inc., 889 S.W.2d 483, 497 (Tex. App. Houston [14 th Dist.] 1994, writ denied). Because the right to promote itself as a BBB-accredited company is neither a good nor a service, it cannot support a DTPA claim. See Fisher Controls Int l, Inc. v. Gibbons, 911 S.W.2d 135, 139 (Tex. App. Houston [1 st Dist.] 1995, writ denied) (holding plaintiff s purchase of the right to hold itself out as defendant s sales representative was an intangible business right that did not support a DTPA claim). Further, it is not clear under Issue Two what Appellant alleges is the false and misleading representation. To the extent it is the same argument Appellant makes under its business disparagement argument, the BBB incorporates here its position set forth at pages 13-15 of this brief below. Accordingly, Issue Two should be overruled. 3. Appellant failed to establish by clear and specific evidence a prima facie case for each element of its business disparagement action. Appellant s briefing on Issue Three (business disparagement) is equally inadequate, in that it also consists almost entirely of conclusions unsupported by record references. (Br. 10-11). To avoid dismissal, Appellant was required to establish by clear and specific evidence a prima facie case that the BBB published a statement that was false when made, that the BBB acted with malice, and that Appellant suffered special damages. See Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003) (listing elements of business disparagement claim). Appellant s brief does not -12-
address each of these essential elements, much less identify clear and specific evidence in the record establishing a prima facie case for each of these elements. As to malice, the extent of Appellant s argument is that the Appellee maliciously attacked the Appellant s reputation and name through its website when the Appellant refused to adhere to the Appellee s demands to change its name and delete wholesale from its marketing materials. (Br. 10). Appellant, however, cites to no evidence that the BBB knew the statement was false when made on February 16, 2010, that the BBB made the statement with reckless disregard for its truth, or that the BBB acted with ill will or an intent to interfere with the plaintiff s economic interests. See Fluor Enter., Inc. v. Conex Int l Corp., 273 S.W.3d 426, 438-39 (Tex. App. Beaumont 2008, pet. denied) (describing the malice requirement). Because Appellant offers no more than unsupported arguments in its brief, it failed to preserve any issue regarding the dismissal of its business disparagement claim. See Izen, 322 S.W.3d at 322. Moreover, contrary to Appellant s argument, the BBB submitted evidence (although not required to do so) that demonstrated that the complained of statement was not false when made, but was true and remains true. (CR. 69-71). Appellant contends four exhibits, submitted to the BBB on August 23, 2010, months after the online review was published, provided substantial information justifying its position as a wholesaler. (Br. 10). 6 The Court need not consider this evidence because [e]vidence concerning events after an article has been printed and distributed, has little, if any, 6 Appellant s brief also refers to a fifth exhibit, consisting of solicitation emails and telephone calls, but does not explain how that exhibit supports any of the business disparagement elements. (Br. 10). -13-
bearing on a business disparagement claim. Forbes, 124 S.W.3d at 174; see also, Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 146 (5th Cir. 2007) (interpreting Texas law and holding that a web article is published on the day it was originally posted). Nevertheless, even if the Court considers the evidence, it does not help Appellant. The exhibits do not clearly and specifically establish that Appellant satisfies the Code of Advertising definition of a wholesaler. Indeed, Appellant entirely fails to explain what these documents mean, much less why they constitute clear and specific evidence that the complained of statement was false. Exhibits A and B, respectively, are a courier receipt and a copy of a photograph of several stacks of paper and a book. (SCR 9-11). Exhibits C and D contain purchase orders, radio station pricing sheets, rate quotes and a chart of the cost of advertising Appellant sold to customers. At most, these exhibits suggest that Appellant s customers paid rates below the published market rate for advertising. (SCR 13-46). The BBB s review, however, stated that as of February 16, 2010, Appellant had not provided information to substantiate that it sells advertising at wholesale prices, a term that the review and the Code of Advertising explained should not be used unless the prices are the current prices that retailers usually and customarily pay when they buy for resale. (CR. 49, 67). The exhibits do not clearly and specifically establish what retailers usually and customarily pay or that Appellant s customers are buying advertising for resale. These exhibits are hardly free from doubt or unambiguous on the issue of whether -14-
the complained of statement is false, and therefore fail to show Appellant met its evidentiary burden in the trial court. 7 Finally, Appellant points to no evidence in the record that it suffered lost sales or other special damages. See Fluor Enterprises, 273 S.W.3d at 440 (stating a plaintiff must ultimately prove it sustained a pecuniary loss that has been realized or liquidated, such as specific lost sales). Rather, Appellant merely states in its brief that the business review damaged its business. (Br. 10-11). Accordingly, Issue Three should be overruled. 4. Appellant failed to establish by clear and specific evidence a prima facie case for each element of its fraud action. As to the fraud claim, which Appellant also addresses in a single paragraph, Appellant does little more than recite the elements of the cause of action. Because Appellant has not identified for this Court any evidence that it submitted to establish each element of its fraud action, it has waived any error related to the action s dismissal. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex. 1994) (stating error may be waived through inadequate briefing, including failure to cite to the record). Even if Appellant s briefing was not fatally deficient, the Court should still affirm. To avoid dismissal, Appellant had to establish by clear and specific evidence a prima facie case that the BBB knowingly made a false statement or recklessly disregarded the truth of the complained of statement and that Appellant suffered injury as a result of 7 Appellant makes several references to the F rating, though Appellant never clearly states whether its business disparagement action is based on that rating. (Br. 10). The rating cannot support Appellant s business disparagement action (or any of its other actions) because it is a statement of opinion, and is therefore constitutionally protected and not actionable. See Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989); Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 426 (Tex. App. Waco 1997, writ denied). Appellant fails completely to address this basis supporting the trial court s order. -15-
justifiably relying on any such false statement. See Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009) (listing the essential elements for a fraud claim). As explained on pages 13-15 of this brief, Appellant s evidence, submitted to the BBB after it published the review, does not clearly and specifically establish that Appellant met the Code of Advertising s definition of a wholesaler, much less establish that the BBB knew when it made the statement that it was false or was made recklessly. Moreover, Appellant points to no evidence that it justifiably (or otherwise) relied on the publication of the complained of statement. Accordingly, Issue Four should be overruled. 5. Appellant failed to establish by clear and specific evidence a prima facie case for each element of its negligent misrepresentation action. At page 12 of its brief, Appellant contends that the BBB admitted in a January 4, 2010 email that Appellant was a wholesaler, thereby establishing that the business review was false. (Br. 12). Appellant completely misconstrues the meaning of the email. The BBB sent the January 4 email in response to Appellant s request for help from the BBB s marketing manager about responding to the BBB s requirement that Appellant substantiate its advertising claim in connection with the accreditation process. (CR 95). The BBB responded that Appellant should send us a letter explaining your business model. (CR 94). The employee s next statement, on which Appellant relies, simply informed Appellant what type of information was needed for favorable consideration. Id. Far from an admission that Appellant is a wholesaler, the email simply advises what Appellant should submit to be favorably considered for accreditation. Id. Read in -16-
context, this email does not establish by clear and specific evidence that the BBB admitted Appellant is a wholesaler (or that the complained of statement is false). In any event, even if the BBB s statement was false, which it is not, Appellant failed to produce any evidence that it justifiably relied on the statement or that it suffered pecuniary loss as a result of such reliance; both elements are essential parts of Appellant s cause of action. See Nazareth Int l v. J.C. Penney Co., 287 S.W. 3d 452, 460 (Tex. App. Dallas 2009, pet. denied) (listing elements for negligent misrepresentation claim). Accordingly, Issue Five should be overruled. CONCLUSION In short, on this record, there is no evidence much less clear and specific evidence to establish a prima facie case for each element of the causes of action alleged. The trial court correctly dismissed the lawsuit. The BBB respectfully prays that this Court overrule each of Appellant s Issues and affirm the trial court s judgment in its entirety. -17-
Respectfully submitted, JACKSON WALKER L.L.P. Dated: March 12, 2012. /s/ David C. Myers DAVID C. MYERS State Bar No. 14759400 COLIN LECROY State Bar No. 24070120 JACKSON WALKER L.L.P. 901 Main Street, Suite 6000 Dallas, Texas 75202 214-953-6000 214-953-5822 facsimile ATTORNEYS FOR APPELLEE -18-
CERTIFICATE OF SERVICE I hereby certify that, on the 12th day of March, 2012, a true and correct copy of the foregoing Brief for Appellees was served on all counsel of record listed below in accordance with Rule 9.5(c) of the Texas Rules of Appellate Procedure via electronically: Shae Armstrong 5430 LBJ Freeway #1200 Dallas, Texas 75240 ATTORNEY FOR APPELLANT /s/ David C. Myers 8008925v.3 006540/00040-19-