Reported / Citable
Background
Lina Ramey, a homeowner in a Denton County development, became embroiled in a dispute with her homeowners’ association (HOA) after the HOA sued her for alleged restrictive-covenant violations. Ramey counterclaimed and also joined other residents in an effort to remove the incumbent HOA board. In response, three HOA officers — Greg Smith, Brenda Barr Meckley, and Lisa Loshelder — signed a letter in their “individual capacities” defending the board’s record and criticizing Ramey’s “questionable personal behavior,” stating that she had engaged in conduct “designed to harass and intimidate” management-company employees, including following and verbally threatening an HOA inspector, conduct that the letter said prompted the HOA’s attorneys to send a cease-and-desist letter.
Ramey filed a third-party defamation and libel claim against the letter’s authors, arguing the letter was defamatory per se because its language imputed to her the Texas Penal Code crimes of harassment and stalking. Because per se defamation allows general damages to be presumed — eliminating the need for the plaintiff to produce proof of actual harm — Ramey contended she had no obligation to offer damages evidence to survive the Appellants’ Texas Citizens Participation Act (TCPA) motion to dismiss.
The trial court denied the TCPA dismissal motion, and the HOA officers took an authorized interlocutory appeal. The Second Court of Appeals limited its review to the narrow question of whether Ramey had met her prima facie burden on the damages element — which turned entirely on whether the letter was defamatory per se.
The Court’s Holding
The court reversed, holding that the letter was not defamatory per se. On the first analytical question — whether the letter described conduct meeting the statutory elements of criminal harassment under Texas Penal Code § 42.07 — the court found that Ramey’s best argument invoked Subsection (a)(9)(B), which requires “tracking or monitoring the personal property or motor vehicle” of another person. The court concluded that alleging Ramey “followed” someone does not, without more, establish the tracking-or-monitoring element, and that Ramey’s own brief elsewhere described the acts in question as “reprehensible non-criminal acts.”
On the second question — whether the letter’s use of the word “harassed” unambiguously imputed criminal conduct in the mind of an ordinary reader — the court again answered no. Because “harass” carries a well-understood, colloquial, non-criminal meaning, the word does not by itself carry the sting of a criminal accusation. To establish a criminal connotation, Ramey would need extrinsic evidence, which converts the claim from defamation per se to defamation per quod and requires independent proof of damages. Because Ramey conceded at the trial-court hearing that she had offered no damages evidence, she failed to carry her prima facie burden under Step 2 of the TCPA’s burden-shifting framework. The court also rejected Ramey’s stalking theory, noting that she effectively rewrote the stalking statute to omit the element requiring conduct directed at a specific person “on more than one occasion.”
The court ordered Ramey’s defamation and libel claims dismissed and remanded to the trial court to determine the attorney-fee award and any other relief Appellants are entitled to under Civil Practice and Remedies Code § 27.009.
Key Takeaways
- Using the word “harass” — even repeatedly and in the context of describing confrontational conduct — does not automatically render a statement defamatory per se merely because harassment is also a Texas Penal Code offense; the word’s common, non-criminal usage prevents an unambiguous criminal imputation.
- To constitute defamation per se by imputing a crime, a statement must unambiguously charge conduct that tracks the specific statutory elements of a criminal offense; broad descriptive language that approximates but does not satisfy those elements is insufficient.
- Under the TCPA’s Step 2 burden, a plaintiff whose defamation theory depends on per se status — and therefore presumed damages — must win that legal question; if the court decides per se does not apply, the plaintiff must come forward with actual damages evidence or face dismissal.
- When a TCPA motion to dismiss is granted, the trial court must award attorney fees and may award sanctions under § 27.009; the appellate court remanded specifically for that determination.
Why It Matters
This decision sharpens the line HOA boards, community associations, and their officers can draw when publicly responding to homeowner-removal campaigns. Officers who sign collective letters criticizing a homeowner’s conduct — even using charged terms like “harass” — will not automatically face a viable defamation per se claim so long as the language stops short of unambiguously tracking a criminal statute’s elements. The ruling reinforces that the TCPA provides a meaningful early exit for defendants when a plaintiff cannot independently establish damages, and it signals that plaintiffs cannot bootstrap a per se theory simply by pointing to a Penal Code section that shares vocabulary with the allegedly defamatory statement.
More broadly, the opinion illustrates the interplay between the court’s gatekeeping role and the jury’s fact-finding function in defamation cases: courts decide as a matter of law whether words are capable of carrying a per se criminal imputation; only if that threshold is met does the question of how the statement was actually understood reach the jury. Practitioners defending media clients, employers, or association officers against TCPA-covered defamation claims will find the court’s two-question framework — (1) does the conduct described match a crime’s elements? and (2) does the terminology unambiguously signal criminal accusation? — a useful analytical roadmap for attacking per se theories at the dismissal stage.