© 2016 The Texas Lawbook.
By Natalie Posgate
(Aug 10) – Did a newlywed couple turn ‘bridezilla’ and purposely damage their wedding photographer’s career and reputation after not getting their way? Or did they simply express their opinions publicly about their negative experience with the photographer?
A jury now has the chance to decide after a state court tossed out an appeal from Neely and Andrew Moldovan that had attempted to nix a defamation lawsuit brought against them last year by Dallas wedding photographer Andrea Polito.
Last week’s ruling in the 5th District Court of Appeals gives Polito a shot at her day in court to prove to a jury that the Dallas couple turned what began as a dispute about a $150 charge for a wedding album cover into a public smear campaign that destroyed Polito’s personal and professional reputation and put her photography company out of business.
What’s more, the ruling is seemingly a rare exception to Texas’s strong anti-SLAPP laws – often cited among the strongest in the nation – by allowing a defamation lawsuit to proceed to decide the merits.
Dave Wishnew, who represents Polito and her company, Andrea Polito Photography, said the anti-SLAPP statute “at its core” is a good policy in Texas for preventing frivolous cases. But the facts and evidence in this case were too strong to not prevail, the appeals court found.
“Many motions to dismiss [defamation cases] are being granted, and the appellate rulings are either affirming dismissals or reversing and dismissing,” said Wishnew, a partner at Gruber Elrod Johansen Hail Shank. “What we argued to the Fifth District is that the anti-SLAPP statute was not intended to prevent legitimate claims from being decided by a jury. Freedom of speech is not freedom from consequence.”
Houston attorney Walter A. Boyd, III, who represents the Moldovans, did not immediately return a call for comment.
The Moldovans contend they did nothing wrong because their comments were just opinion or hyperbole. They also argued that their statements are protected under the Texas Citizens Participation Act, or the anti-SLAPP statute, which allows an expedited motion to dismiss a lawsuit filed by a retaliating party that attempts to silence another person’s First Amendment rights.
The dispute dates back to January 2015, when NBC 5, Dallas’s local NBC news affiliate, aired a story about Polito holding the Moldovan’s October 2014 wedding pictures “hostage until they pay an extra fee for a ‘cover’ for their photo album,” despite the newlyweds already having paid Polito more than $6,000 for her services. The Moldovans contended the extra $150 fee was not a part of their contract with Polito.
The article attracted more than 350,000 viewers and went viral through websites, blogs and social media. In their own reposts of the article, Andrew and Neely Moldovan, who is a professional blogger and social media marketer, encouraged their numerous social media contacts to “view the story, share negative information about Polito and APP, and use photographers other than Polito and APP,” the opinion says.
As a result, Polito began receiving hate mail from people she had never met and had to shut down her business’s Facebook page shortly after the story ran due to more than 50 negative reviews that posted on the page, the opinion says.
Polito sued the Moldovans in April 2015, claiming the Moldovans’ statements created instant damage that ruined her successful 12-year business. Polito has claimed in the litigation that after the story aired, her company only earned $38,000 between January and May 2015, whereas in the previous four years, APP earned between $180,000 and $255,000 in the same month range.
“The story you are not hearing is that it was only last week when the bride claimed to realize that, per our contract, welcome packet, and emails, she would not get her wedding images until her album was completed,” Polito wrote in a Jan. 20, 2015 blog post in response to the NBC 5 story.
Polito testified at a trial court hearing that she had been in constant contact with Neely Moldovan since she had hired her, despite the bride’s statements otherwise, and she and her staff explained multiple times “in detail to Neely the separate cost for the album covers, why the album covers are chosen after the wedding and showed her several different examples,” the Fifth District opinion says.
After the hearing, State District Judge Dale Tillery sided with Polito and denied the Moldovan’s motion to dismiss the case. The appeals court affirmed Tillery’s decision, finding there is clear and specific evidence that the Moldovans published defamatory statements about Polito and went out of their way to bring her business down.
“The Moldovans’ own statements provide clear and specific evidence that they ‘knew or strongly suspected that the publication as a whole could present a false and defamatory impression,” Justice Craig Stoddart wrote in a 31-page opinion joined by Justices Robert Fillmore and Michael O’Neill. “Among other statements, Neely voiced her desire to ‘completely ruin’ Polito’s business through publicity about the Moldovans’ complaint.”
Wishnew said he got involved in the litigation, his first defamation case on the plaintiff side, after another attorney referred Polito to him. Though defamation cases can be difficult to prove, Wishnew said he took the case because he “believes in Andrea” and his “heart broke for her.
“I don’t know that Andrea will ever recover from the defendants’ actions, but she is certainly relieved that both the trial and appellate courts agreed that she should have the opportunity to present evidence and prove her claims to a jury,” Wishnew said. “The evidence in this case demonstrates how posts and statements made on social media can hurt a person’s business and reputation. The brazen nature in which people will email and post on the Internet when sitting in front of a computer screen is disturbing, and often include things that one would never directly say to another.
“Defamatory statements that are published and republished on the Internet can have a huge effect on someone’s life,” he added. “This case is a sad example of what can happen.”
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