Unreported / Non-Citable
Background
Susan Michelle Aiello sued Jennifer Kott-Looney for defamation and intentional infliction of emotional distress after a series of alleged statements and actions arising from Aiello’s relationship with Kott-Looney’s husband during the couple’s divorce proceedings. Aiello alleged that Kott-Looney published her telephone number on social media, appeared at her home, contacted her workplace, searched for personal information about her, and communicated accusations about her to school-district employees, parents, and others.
Among other things, Aiello alleged that Kott-Looney falsely claimed she had been a stripper, used drugs while teaching, had a dangerous criminal history, operated a pornographic website, and had a sexual relationship with a minor. Kott-Looney moved to dismiss both claims under the Texas Citizens Participation Act, asserting that the suit responded to her exercise of the rights of free speech, association, and petition. The trial court denied the motion, and Kott-Looney brought an interlocutory appeal.
The Court’s Holding
The First Court of Appeals affirmed. Examining the content, form, and context of the alleged communications, the court concluded that they were personal attacks arising from a private dispute involving Kott-Looney’s marriage and had no public relevance beyond the interests of the people involved. The participation of third parties—including school employees and parents—did not transform the dispute into a matter of public concern.
Because the alleged communications did not concern a political, social, or other community interest or a subject of concern to the public, Kott-Looney failed to satisfy her initial TCPA burden of showing that Aiello’s claims were based on or in response to the exercise of protected free-speech or association rights. Kott-Looney inadequately briefed and therefore waived her separate right-to-petition argument. Because she failed at the TCPA’s initial stage, the court did not need to decide whether Aiello established prima facie cases or whether Kott-Looney proved defenses.
Key Takeaways
- Statements arising from a private relationship dispute are not matters of public concern merely because they are communicated to employers, parents, or other third parties.
- A TCPA movant must establish that the challenged claims respond to activity falling within the statute’s definitions of protected speech, association, or petitioning before the burden shifts to the claimant.
- An appellant waives a TCPA theory by mentioning it without substantive analysis, supporting authority, and record citations.
Why It Matters
The decision applies the narrower, post-2019 definition of “matter of public concern” and reinforces that the TCPA does not broadly cover every accusation distributed through social media or to members of a community. The communication must have genuine public relevance beyond the private interests of the disputants.
For litigants, the ruling also underscores that failure to satisfy the TCPA’s threshold applicability requirement ends the dismissal inquiry without requiring the plaintiff to establish a prima facie case or the defendant to prove an affirmative defense.