the Dallas Morning News, Inc. v. Christopher Kevin Mapp

REVERSE, RENDER, and REMAND, Opinion Filed June 26, 2015.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00848-CV

THE DALLAS MORNING NEWS, INC., Appellant
V.
CHRISTOPHER KEVIN MAPP, Appellee

On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-02118-J

MEMORANDUM OPINION
Before Justices Francis, Lang, and Myers
Opinion by Justice Francis
Christopher Kevin Mapp sued the Dallas Morning News for defamation for a statement

attributed to him in an editorial published when Mapp was a Republican primary candidate for

the United States Senate. The News moved to dismiss the suit under chapter 27 of the Texas

Civil Practice and Remedies Code, known as the Texas Citizens Participation Act and commonly

referred to as an anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. When the

trial court failed to rule on the motion within the time period set out in the statute, the News’s

motion was denied by operation of law. After the News perfected its appeal, the trial court

belatedly granted the motion and awarded the News some of its requested attorney’s fees.

For reasons set out below, we conclude the trial court was without authority to grant the

motion outside the time allowed by statute; thus, the trial court’s order granting the motion is

void. With respect to the denial of the motion by operation of law, the News argues, among
other things, that Mapp failed to meet his statutory burden on the element of actual malice. We

agree. Therefore, we reverse the denial of the motion, render judgment dismissing Mapp’s

claims, and remand the case to the trial court for a determination of costs, attorney’s fees, and

other expenses of the News as authorized by chapter 27.

The News jointly interviewed Mapp and another candidate seeking the 2014 Republican

nomination for the U.S. Senate seat held by John Cornyn. The interview was conducted by Jim

Mitchell and Ralph De La Cruz, who are editorial staff writers and members of the News’s

editorial board. During the interview, Mapp expressed his views on a variety of issues and

identified one of his “top three platforms” as immigration. He described his stance on

immigration as “very hard” and advocated a “seal, defend, and protect” policy for our Southern

borders. He explained:

. . . I am not a fence man. We only build fences in East Berlin. We don’t build
fences in the United States. As far as our borders go, we can give immigrants a
choice. We can either ask them to respect our borders by choice or they can
respect them by force. It’s obvious that choice has not been working out so well.

The other part of this is since 9-11, it’s really important we know who you
are, why you’re here, and how long you’re staying and what your intentions are.
So we already have border crossings. You will only use those border crossings. If
you do not use those border crossings, you are a legal, lethal target. If a rancher
in South Texas is afraid for immigrants who come – illegal immigrants who come
across his property, in fear of his life, he has the right to defend his property just
like anybody else that has trespassers on their property. And the problem with
the porous border is we’re not getting just illegal immigrants from South America
all the way down, but we’re also getting the drug cartel coming through there.

I’ve had numerous people tell me that they’re sitting in a deer stand and
watch two guys come through. One has the AR-15; one has a big black sack on
his back. It’s either money or drugs, which is question number two. We’re not
really at war on drugs; we’re at conflict with drugs. If we were at war on drugs,
war means killing people and breaking the political will. We would be handling it
completely different. We’re talking about immigration.

So my concept of the border is we have the technology to put up cameras,
to have the cell phones. Somebody comes across, just like a motion detector,
somebody is going to be getting a phone call, but the citizens who live on our
Southern border have the right to defend their property. So we’re not going to put

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 a fence up. We’re going to allow people that live on our Southern border to
defend their property. And if they get counteracted by those who want to fight
back, let me tell you something, we have the manpower to send down there, and I
mean enforce that border.

In later remarks, Mapp referred to illegal immigrants as “wetbacks.” During the

interview, he also called President Obama a “socialist son of a bitch.”

Days after the interview, on February 16 and 17, 2014, the News published an editorial,

authored by Mitchell, endorsing Cornyn in the Senate Republican primary. The editorial made

the following comments about Mapp:

South Texas businessman Chris Mapp, 53, told this editorial board that ranchers
should be allowed to shoot on sight anyone illegally crossing the border on their
land, referred to such people as “wetbacks,” and called the president a “socialist
son of a bitch.”

Two weeks later, Mapp sued the News alleging the editorial defamed him.

In response to the lawsuit, the News filed a motion to dismiss under chapter 27, alleging

the lawsuit was based on, relates to, or in response to the News’s exercise of its right to free

speech. Further, the News asserted Mapp could not meet his burden of establishing by “clear

and specific” evidence a prima facie case for each element of his claims because the undisputed

evidence shows the editorial was true, non-defamatory, and published without actual malice.

The News attached the following evidence to the motion: Mitchell’s affidavit, a copy of the

editorial, a digital recording of the interview, a court reporter’s transcription of the interview, and

a copy of Mitchell’s handwritten notes taken during the interview. Mapp filed a response to the

motion to which he attached his own affidavit, Mitchell’s affidavit, a copy of a portion of the

transcribed interview, and the affidavit of his lawyer.

A hearing was held on May 23, 2014, and a ruling was required by statute within thirty

days. On May 30 and again on June 13, the News wrote letters to the trial judge to remind her of

the upcoming statutory deadline of June 22. When the trial court did not rule by that date, the

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motion was denied by operation of law. The News perfected an appeal. Ten days later, outside

the statutory time period, the trial judge signed a written judgment granting the News’s motion,

dismissing the case with prejudice, and awarding the News attorney’s fees. Mapp then perfected

an appeal from this order, and the News filed a cross-appeal challenging the amount of attorney’s

fees. The News also filed a conditional motion in this Court to dismiss the first appeal as moot

in light of the trial court’s written order, and Mapp responded. This Court consolidated the two

appeals.

The TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence

them on matters of public concern. In re Lipsky, No. 13-0928, 2015 WL 1870073, at *3 (Tex.

Apr. 24, 2015). The Act provides a special procedure for the expedited dismissal of such suits.

A two-step process is initiated by motion of a defendant who believes the lawsuit responds to the

defendant’s valid exercise of First Amendment rights. Id. Under the first step, the defendant-

movant has the initial burden to show “by a preponderance of the evidence” that the plaintiff’s

claim “is based on, relates to, or is in response to the [movant’s] exercise” of free speech, right to

petition, or right of association. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b)(1-3); Lipsky,

2015 WL 1870073, at *3. If the movant is able to demonstrate that the plaintiff’s claims

implicates one of these rights, the second step shifts the burden to the plaintiff to establish by

“clear and specific evidence a prima facie case for each essential element of the claim in

question.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c); Lipsky, 2015 WL 1870073 at *3.

In determining whether the plaintiff’s claims should be dismissed, the court is to consider

the pleadings and any supporting and opposing affidavits. TEX. CIV. PRAC. & REM. CODE ANN. §

27.006(a); Lipsky, 2015 WL 1870073 at *3. The trial court must rule on the motion not later

than the 30th day following the date of the hearing. TEX. CIV. PRAC. & REM. CODE ANN. §

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27.005(a). If the trial court does not rule on the motion within the time prescribed, the motion is

considered denied by operation of law. Id. § 27.008(a).

We begin by addressing the validity of the trial court’s written order signed forty-one

days after the hearing. Our sister court addressed this issue in Direct Commercial Funding, Inc.

v. Beacon Hill Estates, LLC, 407 S.W.3d 398 (Tex. App.—Houston [14th Dis.] 2013, no pet.).

There, the trial court signed an order granting the defamation defendant’s motion to dismiss six

weeks after the motion was denied by operation of law. After considering the plain language of

the statute and its purpose, the Houston court concluded a trial court is not authorized to grant a

motion to dismiss under the Act more than thirty days after the hearing on the motion. Direct

Comm’l Funding, 407 S.W.3d at 401–02. As the court explained:

The entire Act is directed toward the expeditious dismissal and appeal of suits that
are brought to punish or prevent the exercise of certain constitutional rights. The
distinction drawn by the legislature between extendable deadlines and firm
deadlines––and more particularly, the mandatory deadline that applies to the trial
court’s authority to rule on a motion to dismiss––would be meaningless if the trial
court, acting sua sponte, could reverse the consequences imposed by statute for
the failure to timely act.

Id. at 401.

The court further rejected any suggestion that Texas Rule of Civil Procedure 329b

provided authority for the trial court to grant the motion to dismiss after it had been denied by

operation of law. Rule 329b, which governs motions for new trial and motions to modify,

correct, or reform judgments, specifically empowers a trial court to “grant a new trial or to

vacate, modify, correct, or reform the judgment until thirty days after all such timely-filed

motions are overruled, either by a written and signed order or by operation of law, whichever

occurs first.” TEX. R. CIV. P. 329b(e) (emphasis added). But, as the Houston court noted, the

TCPA does not contain an analogous provision empowering the trial court to grant a motion to

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dismiss after it has been overruled by operation of law. Direct Comm’l Funding, 407 S.W.3d at

402.

We agree with the analysis employed in Direct Commercial and likewise conclude a trial

court is without authority to grant a motion to dismiss under the Act more than thirty days after

the hearing. In reaching this conclusion, we are unpersuaded by the News’s argument that Texas

Rule of Appellate Procedure 29.5 provided the trial court with authority to belatedly rule on the

motion. Rule 29.5 provides: “While an appeal from an interlocutory order is pending, the trial

court retains jurisdiction of the case and unless prohibited by statute may make further orders,

including one dissolving the order complained of on appeal.” TEX. R. APP. P. 29.5 (emphasis

added). The News’s argument ignores the rule’s plain language excepting acts prohibited by

statute. Here, the trial judge took an act prohibited by statute when she signed an order outside

the statutorily mandated time period. Consequently, rule 29.5 does not apply. Because the trial

court’s order was signed outside the statutory time period, we conclude it is void and the

controlling ruling is the denial of the motion by operation of law.

Having so concluded, we now turn to whether the trial court erred in allowing the motion

to be denied by operation of law. Below and on appeal, Mapp takes issue with the editorial’s

“shoot on sight” statement attributed to him. He asserts that while stating concerns about illegal

crossings, he said that when ranchers are “afraid” or in “fear for their life,” they should be able to

defend their property as would anyone else. He complains the News ignored this “significant

qualifier,” materially changing the meaning conveyed by his statements.

The News responds that regardless of whether Mapp used the words “shoot on sight,”

Mapp does not dispute he told the editorial board that immigrants illegally crossing the border

should be considered a “legal, lethal target.” The News argues the editorial is substantially true

as a matter of law because there is no “material distinction” between saying a person may be

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“shot-on-sight and that a person is a ‘legal, lethal target.’” Moreover, the News contends Mapp

did not establish the statement was published with actual malice.

The parties do not dispute the News met its first-step burden of proving that Mapp’s

action is based on, related to, or is in response to its exercise of free speech; consequently, we

address only whether Mapp has established by clear and specific evidence a prima facie case of

each element of his defamation claim.

The statute does not define what is meant by “clear and specific evidence,” but the Texas

Supreme Court recently interpreted the plain meaning of the words “clear” and “specific” within

the context of the statute. In re Lipsky, 2015 WL 1870073, at *6. Clear means “‘unambiguous,’

‘sure,’ or ‘free from doubt’” and specific means “‘explicit or ‘relating to a particular named

thing.’” Id. A prima facie standard generally “requires only the minimum quantum of evidence

necessary to support a rational inference that the allegation of fact is true.” Id. It refers to

evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted.

Id. Together, the term “clear and specific evidence” refers to the quality of evidence required to

establish a prima facie case, while the term “prima facie case” refers to the amount of evidence

required to satisfy the nonmovant’s minimal factual burden. Serafine v. Blunt, No. 03-12-00726-

CV, 2015 WL 2061922, at *3 (Tex. App.—Austin May 1, 2015, no pet. h.). The Act does not

impose an elevated evidentiary standard nor does it categorically reject circumstantial evidence.

Id. at 7.

Public officials and public figures cannot recover for defamatory statements made about

them absent proof of actual malice. New Times, Inc. v. Issacks, 146 S.W.3d 144, 161 (Tex.

2004). The purpose of requiring public officials to overcome this high burden is to protect

uninhibited debate on public issues. See id. at 161–62. It is undisputed that Mapp, as a candidate

for public office, is a public official for defamation standards. See Freedom Newspapers of

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Texas v. Cantu, 168 S.W.3d 847, 853 (Tex. 2005); Cruz v. Van Sickle, 452 S.W.3d 503, 516

(Tex. App.—Dallas 2014, pet. filed).

Actual malice in a defamation case is a term of art. Unlike common-law malice, it does

not include ill-will, spite, or evil motive. Huckabee v. Time Warner Entertainment Co. L.P., 19

S.W.3d 413, 420 (Tex. 2000). Rather, to establish actual malice, a plaintiff must prove the

defendant made the statement “with knowledge that it was false or with reckless disregard of

whether it was true or not.” Id. (quoting New York Times v. Sullivan, 376 U.S. 254, 279–80

(1964)). Reckless disregard is a subjective standard, focusing on the defendant’s state of mind.

Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002). Mere negligence is not enough. Id. Rather,

the plaintiff must prove “the defendant in fact entertained serious doubts as to the truth of his

publication” or had a “high degree of awareness of . . . [the] probable falsity” of the published

information. Id. (quoting Harte-Hanks Commn’s, Inc. v. Connaughton, 491 U.S. 657, 688

(1989).

The evidence before the trial court included the recording of the interview, a court

reporter’s transcription of the interview, Mitchell’s handwritten notes taken during the interview,

Mitchell’s amended affidavit, and Mapp’s affidavit. Mitchell authored the editorial at issue in

this case. In his affidavit, Mitchell said he and De La Cruz jointly interviewed Mapp and another

senatorial candidate. Mitchell digitally recorded the interview and took handwritten notes.

When he was preparing the editorial, Mitchell said he listened to his recording and reviewed his

notes; he did not have a transcription of the recording at the time.

During the interview, Mapp described undocumented immigrants as “wetbacks” and a

“legal, lethal target,” referred to the use of “force” to enforce our borders, and referred to

President Obama as a “socialist son of a bitch.” Mitchell said he believed the complained-of

statement attributed to Mapp––“that ranchers should be allowed to shoot on sight anyone

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illegally crossing the border––was a “fair, accurate and truthful paraphrase of the statements” by

Mapp in the interview. He further said he believed the paraphrase was a “fair, accurate and

truthful account” of Mapp’s reference that those who did not use official border crossings to

enter the United States were a “legal, lethal target” because he “understood that Mr. Mapp would

allow the use of deadly force against immigrants who do no respect borders and enter a rancher’s

land.” Mitchell’s handwritten notes confirm that his “immediate mental impression” of Mapp’s

“legal, lethal target” statement was that Mitchell believed Mapp was saying he “would allow

people to shoot anyone on his property coming from Mexico at other than legal checkpoints.”

In his affidavit, Mitchell stated that at the time the editorial was published, he believed

everything in the editorial was true, entertained no doubts as to its truth, had no awareness of any

“probable falsity,” and did not include anything he believed or suspected was false. In writing

the editorial, he used his “rational interpretation” of the interview to prepare what he believed

and intended to be “a truthful and factually accurate editorial” and did not omit any information

that he believed was material to the editorial or that he believed would have put Mapp in a

“materially more favorable light.” Mitchell stated he did not believe the editorial conveyed any

false or misleading statement or impression of Mapp.

In response, Mapp offered no evidence to refute Mitchell’s affidavit. Instead, he argues

by omitting the qualifying language “afraid” and “in fear of his life,” the News materially altered

the meaning of what he said by attributing to him a “shoot-on-sight ‘frame of mind.’” He says

Mitchell was present during the interview, listened to the audio recording, and “weighed it all”

before he wrote the editorial, which he contends circumstantially establishes actual malice.

Paraphrasing or deliberately altering the words of a plaintiff does not establish actual

malice unless some evidence is presented that the defendant misinterpreted the remarks on

purpose or “in circumstances so improbable that only a reckless publisher would have made the

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mistake.” See Cantu, 168 S.W.3d at 855. “An understandable misinterpretation of ambiguous

facts does not show actual malice.” Id. (quoting Bentley, 94 S.W.3d at 596).

In Cantu, the supreme court considered a similar argument in the context of summary

judgment. There, the former sheriff of Cameron County, Conrado Cantu, sued the local

newspaper alleging he was defamed in a story about a candidate debate. Id. at 149. During the

debate, Cantu made comments about cultural and language differences between him and his

opponent and said he could address residents’ needs because he was “bi-cultural.” Id. at 850.

The reporter covering the debate took notes but did not record it. (An audience member did

record the event.)

The next morning, an article appeared on page one under a headline that read: “Cantu:

No Anglo can be sheriff of Cameron County”. In the article, the reporter used quotation marks

repeatedly to indicate statements made by Cantu and his opponent. Id. at 851.

Cantu went to the newspaper offices that day, spoke to the editor, and objected to the use

of the word, “Anglo.” The newspaper published a second article the next day under the headline,

“Sheriff candidate says racial issue wasn’t the point”. Id. The article contained Cantu’s remarks

that he never intended to suggest race was an issue in the campaign and quoted Cantu as saying,

“I did not say an Anglo could not be sheriff.” Id. at 851–52. The article also contained remarks

from his opponent saying he understood Cantu’s remarks to suggest he was “incapable of

communicating or relating with the Hispanic culture.” Id. at 852. Another citizen was quoted as

saying he “clearly heard that the only person who could be sheriff is an Hispanic.” Id.

Cantu ultimately won the election. After taking office, he sued the newspaper for

defamation. Id. The newspaper moved for summary judgment, which the trial court denied. In

an interlocutory appeal, the court of appeals affirmed. The supreme court, however, concluded

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there was no evidence of actual malice, reversed the court of appeals, and rendered a take-

nothing judgment. Id. at 853.

The court’s decision was based, in part, on its conclusion that given the entire context of

the debate, the articles were a rational interpretation of Cantu’s remarks. Id. at 857. The court

noted Cantu’s remarks “bristled with ambiguities.” Although Cantu asserted his remarks were

not racial as anyone could be both bilingual and bicultural, the court noted the context of the

statements was a debate in which Cantu was attempting to distinguish himself from his

opponent. Id. at 856. Cantu conceded at his deposition that he knew his opponent was not

Hispanic, but did not know whether he spoke Spanish, suggesting he was using “bilingual” as a

race issue. Further, Cantu could not explain why his opponent was not “bicultural.” The court

explained these terms are “similar to those sometimes used for ulterior purposes.” Id.

Here, Mapp does not dispute he advocated the use of force in response to immigrants

who cross our borders at other than legal crossings. Although he never used the explicit words

stated in the News’s editorial, the standard is whether the paraphrase or summary was a rational

interpretation of what he said. See id. at 857. Similar to Cantu, the context was an interview in

which Mapp was attempting to distinguish himself from other senatorial candidates on the

volatile issue of immigration. In doing so, he stressed he was not a “fence man.” He first

advocated the use of force against immigrants who cross our borders illegally and described

them as a “legal, lethal target." Mapp then followed these statements with his qualifying

comment that a South Texas rancher who fears for his life has the right to defend his property

against a trespasser just like anyone else. He further expounded by conflating immigration and

the war on drugs, giving his opinion that the “war on drugs” really is not a war at all, because

“war means killing people and breaking the political will.” As in Cantu, his remarks “bristled

with ambiguities.”

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 To establish a prima face case of actual malice, the editorial statement cannot have been a

rational interpretation of what Mapp said during the interview. Considering all of the evidence

presented and in particular Mapp’s remarks as a whole and in the context in which they were

made, we conclude the editorial is a rational interpretation of what he said. We acknowledge

that “placing a reporter’s words in a speaker’s mouth may be evidence of malice in some

circumstances.” Cantu, 168 S.W.3d at 854. Here, however, the published statement to which

Mapp takes offense––shoot on sight––was not in quotation marks in the editorial, unlike Mapp’s

comments referring to illegal immigrants as “wetbacks” and referring to the president as a

“socialist son of a bitch.” By not placing the particular offending phrase in quotation marks, the

editorial signaled to its readers that he or she was reading a paraphrase and not the verbatim

words of the speaker. See id. Moreover, the only evidence before the trial court on the editorial

writer’s subjective intent came from the writer’s affidavit and his contemporaneous notes.

Mitchell explained why he believed the offending remark was a “fair, accurate and truthful

paraphrase” of Mapp’s comments in the interview, and his contemporaneous notes support that

the “paraphrase” was his immediate mental impression.

In sum, Mapp had the burden to establish by clear and specific evidence a prima facie

case to support a rational inference that the News acted with actual malice in publishing the

editorial. This required Mapp to show the News “in fact entertained serious doubts as to the

truth of [its] publication or had a “high degree of awareness of . . . [the] probable falsity.” See

Huckabee, 19 S.W.3d at 420. As said previously, that it was an “understandable

misinterpretation” of ambiguous facts is not enough; rather, Mapp was required to show the

News misinterpreted his remarks on purpose or “in circumstances so improbable that only a

reckless publisher would have made the mistake.” See Cantu, 168 S.W.3d at 855; Bentley, 94

S.W.3d at 596. The evidence relied on by Mapp does not meet this test.

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 Reviewing the record as a whole, we conclude the trial court erred by denying the News’s

motion by operation of law. We reverse the denial of the News’s motion to dismiss by operation

of law and render judgment dismissing Mapp’s claims. We remand the cause to the trial court

for a determination of costs, attorney’s fees, and other expenses as authorized by statute. See

TEX. CIV. PRAC. & REM. CODE ANN. § 27.009. We dismiss all issues related to the cross-appeal.

/Molly Francis/
MOLLY FRANCIS
JUSTICE

140848F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

THE DALLAS MORNING NEWS, INC., On Appeal from the 191st Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. DC-14-02118-J.
No. 05-14-00848-CV V. Opinion delivered by Justice Francis;
Justices Lang and Myers participating.
CHRISTOPHER KEVIN MAPP, Appellee

In accordance with this Court’s opinion of this date, the trial court’s order denying by
operation of law the Dallas Morning News’s motion to dismiss is REVERSED and judgment is
RENDERED that appelleee Christopher Kevin Mapp’s claims are dismissed. We REMAND
the cause to the trial court for a determination of costs, attorney’s fees, and other expenses
authorized by section 27.009 of the Texas Civil Practice and Remedies Code.

It is ORDERED that appellant The Dallas Morning News, Inc. recover its costs of this
appeal from appellee Christopher Kevin Mapp.

Judgment entered this 26th day of June, 2015.

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