Wholesale TV and Radio Advertising, LLC v. Better Business Bureau of Metropolitan Dallas, Inc.

Citation: Not availableDocket: 05-11-01337-CV

Court: Court of Appeals of Texas; June 14, 2013; Texas; State Appellate Court

Original Court Document: View Document

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Wholesale TV and Radio Advertising, LLC (Wholesale) appealed a trial court's dismissal of its lawsuit against Better Business Bureau of Metropolitan Dallas, Inc. (BBB) under the Texas Citizens Participation Act (TCPA). The trial court ruled in favor of BBB and awarded it $15,999 in attorneys' fees. Wholesale's claims included violations of the Deceptive Trade Practices Act (DTPA), business disparagement, fraud, and negligent misrepresentation, stemming from BBB's rejection of its accreditation application and subsequent 'F' rating on BBB's website, which Wholesale contended harmed its business. Despite providing additional information to BBB, the rating remained unchanged. The trial court held a hearing on BBB's motion to dismiss, ultimately deciding to dismiss all of Wholesale’s claims after considering supplemental evidence regarding negligent misrepresentation. Wholesale raised five issues on appeal, arguing that BBB's conduct constituted false commercial speech not protected by the First Amendment and that it had provided sufficient evidence to support its claims against BBB. The appellate court affirmed the trial court's dismissal.

The TCPA's motion-to-dismiss procedure requires the initial burden to rest on the plaintiff, in this case, the Better Business Bureau (BBB), to demonstrate that the defendant's (Wholesale's) claims are related to BBB's exercise of rights protected under the TCPA, such as free speech. The TCPA broadly defines "the right of free speech" as communications connected to matters of public concern, which includes goods, products, or services in the marketplace. Wholesale contends that BBB's statements about Wholesale's services constitute false commercial speech unprotected by the First Amendment. However, precedent from similar cases confirms that BBB's online reviews are protected under the TCPA, as they pertain to marketplace issues. Consequently, BBB successfully showed its actions were protected, thereby shifting the burden to Wholesale to provide clear and specific evidence for its claims. Wholesale's failure to adequately brief every essential element of its claims in issues two through five leads to rejection of these claims, as an appellant must address all independent grounds supporting a trial court's judgment. If any independent ground remains unchallenged, it supports the trial court's ruling, rendering any errors in the challenged grounds harmless.

When a ruling has an unchallenged independent ground, the appellate court must affirm the lower court's decision. In this case, the Texas Citizens Participation Act (TCPA) requires the nonmovant to demonstrate each essential element of every claim. Wholesale claimed it established a prima facie case for its claims but failed to adequately argue or support every element, which undermines its position. 

In its second issue regarding the Texas Deceptive Trade Practices Act (DTPA), Wholesale did not address the essential elements of producing cause and damages, leading to rejection of this claim. For the third issue on business disparagement, Wholesale did not sufficiently brief the fourth element of special damages, nor did it provide supporting evidence, resulting in rejection of this claim as well. 

In the fourth issue concerning fraud, Wholesale failed to address the elements of reliance and injury, and did not cite evidence to support these claims, leading to rejection. Lastly, for the fifth issue on negligent misrepresentation, although the elements were outlined, it is implied that Wholesale's arguments were similarly insufficient, lacking adequate evidence and support for the necessary elements.

Wholesale TV and Radio Advertising, LLC's appeal against Better Business Bureau of Metropolitan Dallas, Inc. was rejected due to insufficient evidence supporting the fourth element of its negligent misrepresentation claim—justifiable reliance, causation, or pecuniary loss. The court noted that Wholesale failed to adequately explain how the presented email and other unspecified evidence established these elements and did not cite the record to support its arguments. Consequently, the trial court's judgment was affirmed, and the Better Business Bureau was awarded costs of the appeal. The opinion was delivered by Justice Kerry P. FitzGerald, with Justices Bridges and Myers participating. Judgment was entered on June 14, 2013.