Growing up a sports fan, I recall anxiously waiting for two iconic rivals to compete. In the 70's we waited for the battle between Ali and Frazier. In the 80's it was Bird v. Magic. More recently, it was Brady v. Manning and Federer v. Nadal. Now, in that vein, we have the long-anticipated battle between pickleball and tennis. And it's playing out in a Texas Appellate Court.
For the benefit of readers under the age of 65, pickleball is a combination of tennis and ping pong. It's played on a court smaller than tennis, with a wooden paddle slightly larger than a ping pong paddle, and a whiffle ball with holes all over it. Pickleball players out there may get mad at me, but the sport is more approachable than tennis. A novice player can get proficient at pickleball with much less effort than tennis.
And that may be why the sport is so popular. Depending on which report you read, there are either 19.8 million players or 48.3 million players in the U.S. Over the last three years, it's grown by a rate of 311%. Old school tennis players may look down on it, but there is no denying it's a thing.
So, what's happening in Texas? A woman named Joan Daly served as chairwoman of the courts for the Coles Crossing community, responsible for the interests of local tennis players and ensuring that the community's tennis courts were well-maintained. Coles Crossing residents suggested the community install pickleball courts, so the HOA board set up an exploratory pickleball committee with members representing mixed interests: Peter Lehle (who the court referred to as "team pickleball") was committee head and Daly (who the court referred to as "team tennis") was one of several committee members. Very soon, the two sides disagreed about whether and how the community should modify the tennis courts to double as pickleball courts.
As the dispute raged, Daly permitted a local tennis professional to use the courts to teach tennis lessons to children from the community. Daly reported that she "received calls from at least four parents of clinic participants relaying serious concerns that an anonymous adult man was using his personal cell phone to take pictures of their young children doing drills on the tennis courts." Apparently, this was less sinister than it sounded. Two HOA board members explained to Daly that Plaintiff was taking the photographs to document HOA rules violations—namely, allowing a tennis professional to use multiple courts simultaneously.
Three months later, Daly upped the ante. She opened her monthly tennis report at the HOA board meeting by stating that she, "as a former teacher," had a "duty to report instances of sexual exploitation of minor children through photographs and videography." Daly accused Lehle "of taking photographs of children for inappropriate purposes" and "implied that [he] was a pervert, pedophile, or sexual predator." Lehle sued Daly for defamation and intentional infliction of emotional distress.
Daly filed a motion to dismiss both claims under the Texas anti-SLAPP statute. Anti-SLAPP statutes provide a mechanism for courts to dispose of frivolous lawsuits designed to discourage speakers from speaking out on matters of public interest. In ruling on the motion, the court needed to decide if Lehle presented a "prima facie" case. The ruling wound up a split decision.
The court concluded that Lehle presented a prima facie case of defamation. In its view, "[h]ere, the evidence shows that [Daly] said [Lehle] was taking photographs of children for 'inappropriate purposes' and implied that he was a 'pervert, pedophile or sexual predator.' An ordinary person would understand these statements to accuse Plaintiff of serious sexual misconduct; therefore, they constitute defamation per se and general damages may be presumed."
The court also concluded that Lahle presented a prima facie case of actual malice. As it stated, "[Daly] had twice been informed of the legitimate reasons for Plaintiff's photographs, but persisted in accusing Plaintiff of inappropriate purposes." In short, Daly knew that her accusation was false, and she leveled it anyway. That is quintessential actual malice.
But Lehle had less luck on his intentional infliction claim. The court found that Lehle's intentional infliction claim duplicated his defamation claim. Since Lehle's intentional infliction claim added no new facts to his defamation claim, the court had to dismiss it.
So, like a soccer match, the titanic struggle between pickleball and tennis ends in an anti-climactic tie.
